i 

August 2016 

TABLE OF CONTENTS 

COMMISSION DECISIONS 

08-12-16 CAM MINING, LLC KENT 2013-196-R Page 1903 

08-23-16 SEC. OF LABOR O/B/O CHARLES 

RIORDAN v. KNOX CREEK COAL 

CORPORATION 

VA 2014-343-D Page 1914

08-25-16 KENAMERICAN RESOURCES, INC. KENT 2013-211 Page 1943

08-25-16 THE AMERICAN COAL COMPANY 

and UNITED MINEWORKERS OF 

AMERICA and UNITED STEEL, 

PAPER and FORESTRY, RUBBER 

MANUFACTURING, ALLIED and 

INDUSTRIAL SERVICE WORKERS 

INTERNATIONAL UNION 

LAKE 2011-13 Page 1972

08-26-16 THE AMERICAN COAL COMPANY LAKE 2011-701 Page 1987

08-26-16 SEC. OF LABOR O/B/O THOMAS 

McGARY and RON BOWERSOX and 

UNITED MINE WORKERS OF 

AMERICA INTERNATIONAL 

UNION v. THE MARSHALL 

COUNTY COAL CO., McELROY 

COAL CO., MURRAY AMERICAN 

ENERGY, INC., and MURRAY 

ENERGY CORPORATION 

WEVA 2015-583-D Page 2006

08-29-16 NEWTOWN ENERGY, INC. WEVA 2011-283 Page 2033

08-30-16 THE AMERICAN COAL COMPANY LAKE 2009-35 Page 2062

08-30-16 HECLA LIMITED WEST 2012-760-M Page 2117
ii 

COMMISSION ORDERS 

08-17-16 SHERWIN ALUMINA COMPANY, 

LLC 

CENT 2015-151-RM Page 2149 

ADMINISTRATIVE LAW JUDGE DECISIONS 

08-06-16 ASH GROVE CEMENT COMPANY WEST 2014-963 Page 2151

08-09-16 RBS, INC. WEVA 2014-0817 Page 2186

08-18-16 CANYON FUEL COMPANY, LLC WEST 2015-635 Page 2205

08-24-16 MACH MINING, LLC LAKE 2014-0746 Page 2229

08-24-16 EUREKA STONE QUARRY, INC. PENN 2015-12-M Page 2254

08-24-16 SAIIA CONSTRUCTION, LLC SE 2011-127-M Page 2291

08-30-16 SCOTT D. MCGLOTHLIN v. 

DOMINION COAL CORPORATION 

VA 2014-233-D Page 2310

08-30-16 SEC. OF LABOR O/B/O JACOB 

HAMILTON v. AMERICAN MINING 

AND TUNNELING, LLC 

WEST 2016-326-DM Page 2319

ADMINISTRATIVE LAW JUDGE ORDERS 

08-04-16 SEC. OF LABOR O/B/O CURTIS 

LOGSDON v. PARK COUNTY 

GOVERNMENT 

WEST 2016-380-DM Page 2337

08-11-16 MARSHALL JUSTICE v. GATEWAY 

EAGLE COAL CO., LLC 

WEVA 2015-924-D Page 2341

08-24-16 SHAWN HIRT v. GARY SERVAES 

ENTERPRISES 

CENT 2015-0598-DM Page 2346
iii 

08-29-16 SEC. OF LABOR O/B/O STEVE 

GLOSSON v. LOPKE QUARRIES, 

INC. 

SE 2016-299-DM Page 2356

08-30-16 SCOTT D. MCGLOTHLIN v. 

DOMINION COAL CORPORATION 

VA 2014-233-D Page 2360
iv 

Review was granted in the following case during the month of August 2016: 

Secretary of Labor v. Arnold Stone, Inc., Docket No. CENT 2016-95 M (Judge Miller, July 20, 

2016) 

Review was denied in the following case during the month of August 2016: 

Secretary of Labor v. BHP Copper, Inc. and Tetra Tech Construction Services, Docket No. 

WEST 2013-187 RM, et al. (Judge Miller: April 25, 2016 and June 24, 2016) 

 
COMMISSION DECISIONS
38 FMSHRC Page 1902
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710 

August 12, 2016 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. 

CAM MINING, LLC 

Docket Nos. KENT 2013-196-R 

KENT 2013-197-R 

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

DECISION 

BY: Jordan, Chairman; Nakamura and Althen, Commissioners 

These contest proceedings arise under the Federal Mine Safety and Health Act of 1977, 

30 U.S.C. § 801 et seq. (2012) (“Mine Act”). At issue are a citation and order which the 

Department of Labor’s Mine Safety and Health Administration (“MSHA”) issued to CAM 

Mining, LLC (“CAM”). The citation alleges a violation of 30 C.F.R. § 75.220(a)(1)1 for the 

failure to follow the mine’s approved roof control plan by leaving insufficient stumps during 

retreat mining. The order alleges a violation of 30 C.F.R. § 75.360(b)(3)2 for failing to document 

the aforementioned hazard during the preshift examination. MSHA designated both violations as 

1

 30 C.F.R. § 75.220(a)(1) states that: 

Each mine operator shall develop and follow a roof control plan, 

approved by the District Manager, that is suitable to the prevailing 

geological conditions, and the mining system to be used at the 

mine. Additional measures shall be taken to protect persons if 

unusual hazards are encountered. 

2

 30 C.F.R. § 75.360(b) requires that preshift examinations be conducted in working 

places and approaches to worked-out areas where miners will work or travel during the 

subsequent shift. 

38 FMSHRC Page 1903
being “significant and substantial” (“S&S”) and resulting from an unwarrantable failure to 

comply.3

 

The Administrative Law Judge affirmed the citation and order as written. He found that 

both the citation and order were “validly issued” to CAM but did not specifically address the 

S&S and unwarrantable failure allegations. 36 FMSHRC 2204, 2223 (Aug. 2014) (ALJ). On 

review, CAM challenges the Judge’s findings as to the validity of the preshift examination order 

and the S&S and unwarrantable failure designations for both violations. 

For the reasons that follow, we affirm the Judge’s decision. 

I. 

Factual and Procedural Background 

CAM operates an underground coal mine in Kentucky. The mine has an approved roof 

control plan that permits it to engage in retreat mining, whereby CAM makes cuts in the pillars 

of coal that were originally left for roof support as mining advanced into the coal seam. The roof 

control plan permits CAM to take two to three cuts on each side of a 60-by-50 foot pillar, 

forming a chevron pattern. See CAM Ex. G. Cuts must be made at least six feet away from the 

corners of the pillar so that sufficient coal remains to help temporarily support the roof. The 

remaining coal on the outby side of the pillar is referred to as a “stump.” 

On October 17, 2012, MSHA Inspector Carl Little was inspecting the seven entries along 

the 001/003 super-section of the mine that was engaged in retreat mining. 36 FMSHRC at 2218; 

Tr. 257–58. At the breaker line,4

 Little looked across the intersection and noted that the stumps 

appeared significantly less than the six-foot minimum required by the roof control plan. Tr. 58–

59, 68–70, 260. Little estimated that the stumps measured between one to five feet, with over 

half of the stumps measuring three feet or less. 36 FMSHRC at 2215 (citing Sec’y Ex. 5, Tr. 321, 

322). 

The row of columns in the worked-out area adjacent to the active workings had been 

mined during the previous day. Since mining began on the row, CAM had performed two 

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

§ 814(d)(1), which distinguishes as more serious any violation that “could significantly and

substantially contribute to the cause and effect of a . . . mine safety or health hazard.”

The unwarrantable failure terminology is taken from section 104(d)(1) of the Act, 30 

U.S.C. § 814(d)(1), which establishes more severe sanctions for any violation that is caused by 

“an unwarrantable failure of [an] operator to comply with . . . mandatory health or safety 

standards.” 

4

 The breaker line is the most inby point of each entry on the working section where 

timbers are set to help temporarily support the roof during the retreat mining process. Miners are 

not permitted to work or travel inby the breaker line. See 36 FMSHRC at 2206, 2211–12; CAM 

Ex. G. 

38 FMSHRC Page 1904
preshift examinations of the area. Tr. 270. When Little reviewed the preshift reports, he found no 

mention of the inadequately sized stumps. 

Based on these observations, Little issued Citation No. 8273702, alleging a violation of 

30 C.F.R. § 75.220(a)(1), and Order No. 8273703, alleging a violation of 30 C.F.R. § 

75.360(b)(3). Sec’y Exs. 1–2. Citation No. 8273702 states that the operator failed to leave the 

minimum size stumps as required in the approved roof control plan. Order No. 8273703 states 

that CAM failed to conduct an adequate preshift examination because the conditions for which 

Citation No. 8273702 was issued were not observed by the preshift examiner, reported to the 

operator, or corrected prior to the beginning of the shift. Both of the violations were designated 

as S&S and as unwarrantable failures with high negligence. Id. 

In his decision, the Judge affirmed both the citation and the order. Crediting the 

testimony of Inspector Little, the Judge found that CAM had taken three cuts from each side of 

the pillars, and, in doing so, had failed to leave the six-foot stumps required under the roof 

control plan. The Judge rejected CAM’s arguments that the reduced size of the stumps could be 

explained by sloughage or permitted rounding of the pillar’s corners. Instead, the Judge 

concluded that the evidence of greatly undersized stumps, some only one to three feet wide, 

strongly suggested that CAM had mined more coal from the pillars than the roof control plan 

allowed. The Judge credited the Inspector’s testimony and found that the inadequate stumps 

could reduce the stability of the roof in the active workings and would pose a hazard to miners 

working outby in the next row of pillars. 36 FMSHRC at 2215–16. 

Concerning the preshift examination, the Judge found that CAM was required to examine 

the stumps from the breaker line because sections 75.360(b)(3) and (11)(i) specifically require 

that the preshift examination be conducted in “approaches to worked-out areas” and that such 

examinations identify roof control violations. The Judge did not fully articulate how subsection 

75.360(b)(3), the cited standard, could be interpreted to include areas outside the approach to the 

worked-out area in the preshift examination. Rather, the Judge concluded that 30 C.F.R. § 

75.360(b)(11) requires the preshift examiner to examine the entire subsection, regardless of 

whether miners will work or travel in that area. 36 FMSHRC at 2222. 

II. 

Disposition

 

A. Order No. 8273703 – Failure to Perform an Adequate Preshift Examination 

Section 75.360(b) states in relevant part: 

The person conducting the preshift examination shall examine for 

hazardous conditions and violations . . . at the following locations: 

. . . . 

(3) Working sections and areas where mechanized mining 

equipment is being installed or removed, if anyone is scheduled to 

work on the section or in the area during the oncoming shift. The 

38 FMSHRC Page 1905
scope of the examination shall include the working places, 

approaches to worked-out areas and ventilation controls on these 

sections and in these areas, and the examination shall include tests 

of the roof, face and rib conditions on these sections and in these 

areas. 

30 C.F.R. § 75.360(b)(emphasis added). 

The parties disagree as to the meaning of section 75.360(b)(3).5

 CAM argues that the 

preshift examination is limited to the areas specified in section 75.360(b)(3), i.e., working places, 

approaches to worked-out areas, and ventilation controls on these sections and in these areas. 

CAM contends that an examiner is not responsible for reporting hazards or violations that exist 

outside the areas expressly identified in section 75.360(b)(3). The Secretary, however, disagrees 

and argues that requiring the examiner to include all hazards visible from the examination area is 

consistent with the history and purpose of the standard. 

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

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

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

F.2d 1062, 1066 (9th Cir. 1987); Utah Power & Light Co., 11 FMSHRC 1926, 1930 (Oct. 1989);

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

silent or ambiguous with respect to the specific point at issue, we must defer to the agency’s

interpretation as long as it is reasonable.” Tenet HealthSystems Healthcorp. v. Thompson, 254

F.3d 238, 248 (D.C. Cir. 2001). See generally Auer v. Robbins, 519 U.S. 452, 457 (1987).

The plain purpose of the regulation is to protect miners on working sections and where 

mechanized equipment is being installed or removed. It would be antithetical to that purpose if a 

preshift examiner could turn a blind eye to observable conditions that create hazards within the 

designated areas merely because the source of the hazard is in an area outside the specific area 

the examiner must traverse. Section 75.360(b)(3) requires that a preshift examination be 

conducted “at” the approaches to worked-out areas. “At” is an imprecise term that can mean “in” 

or “near” a specified location. The American Heritage Dictionary of the English Language 112 

(4th ed. 2009). Nothing in the standard excludes a preshift examiner from reporting a hazard to 

miners in working areas because the hazard arises from outside the specific areas traveled in the 

preshift. Therefore, we conclude that section 75.360(b)(3) requires preshift examiners to report 

observable conditions regardless of where the condition is located if the condition creates a 

5

 In its reply brief, CAM claims that the order should be vacated because it was not given 

fair notice of the Secretary’s interpretation of the preshift standard. The Secretary filed a motion 

to strike CAM’s fair notice argument, claiming that the issue was not raised in CAM’s Petition 

for Discretionary Review. To the extent that the issue of notice was raised in the petition, it was 

limited to the argument that the Secretary was advancing a new position under a 2012 revision to 

30 C.F.R. § 75.360(b) which added section 75.360(b)(11). PDR at 2. Because our holding is 

based on section 75.360(b)(3), which predated the 2012 revisions, we need not address issues 

arising from the Judge’s consideration of section 75.360(b)(11). Accordingly, the Secretary’s 

motion to strike is moot. 

38 FMSHRC Page 1906
hazard within working sections or an area where mechanized equipment is being installed or 

removed. 

 

Were we uncertain of the proper interpretation, we would find the regulation ambiguous 

and recognize that the Secretary’s interpretation is reasonable and must be accorded controlling 

deference. The Secretary’s interpretation does not, as CAM argues, require the examiner to enter 

the worked-out area. The Judge found that the stumps were clearly visible from the breaker line 

while the examiner was making other required observations. 36 FMSHRC at 2221. This 

interpretation does not require a preshift examination of the entire mine. 

If a hazardous condition that would affect miners outby can be seen from the examination 

area, then our and the Secretary’s interpretation of section 75.360(b)(3) requires such a condition 

to be recorded during the preshift examination and abated before the start of the shift. As stated, 

such an interpretation is consistent with the standard’s plain language and furthers the purpose of 

the preshift examination—to prevent miners from being exposed to hazardous conditions created 

during the prior shift. See 57 Fed. Reg. 20,868, 20,893 (May 15, 1992) (codified at 30 C.F.R. pt. 

75) (the preshift examination “allows miners on the oncoming shift to be notified if hazards exist 

and allows corrective actions to be taken”). We note that CAM’s interpretation is inconsistent 

with its own practice of checking the roof and timbers located in the intersection beyond the 

breaker line. Tr. 185–86. 

Based on the foregoing, we find that the Secretary’s interpretation is reasonable and 

deserving of controlling deference. Accordingly, we affirm the fact of the violation. 

B. Citation No. 8273702 and Order No. 8273703 – S&S and Unwarrantable Failure

The Judge concluded that Citation No. 8273702 and Order No. 8273703 were “validly 

issued to CAM Mining LLC.” 36 FMSHRC at 2223. However, the Judge did not expressly make 

findings as to S&S or the unwarrantable failure designation. Both the Secretary and CAM 

acknowledge that the Judge erred in failing to provide any analysis of these issues. 

Pursuant to Commission Rule 69(a), a Judge is responsible for addressing “all findings of 

fact and conclusions of law, 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). The Commission requires 

that its Judges analyze and weigh all probative evidence, make appropriate findings, and explain 

the reasons for their decisions. Mid-Continent Res., Inc., 16 FMSHRC 1218, 1222 (June 1994); 

Martin County Coal Corp., 28 FMSHRC 247, 262–63 (May 2006) (reversing and remanding 

ALJ’s decision to uphold violation, S&S and unwarrantable failure because the opinion “fails to 

articulate the basis for his conclusion and omits necessary findings.”). 

Because the Judge failed to address S&S and unwarrantable failure in his decision, we 

would normally remand the case to make these findings. However, we need not do so where the 

record so clearly supports the Secretary’s S&S and unwarrantable failure allegations. See 

American Mine Servs., Inc., 15 FMSHRC 1830, 1834 (Sept. 1993) (where evidence supports 

only one conclusion, remand on that issue is unnecessary) (citing Donovan v. Stafford Constr. 

Co., 732 F.2d 954, 961 (D.C. Cir. 1984)). 

38 FMSHRC Page 1907
1. S&S

First, we address whether the violations were S&S. In Mathies Coal Company, the 

Commission explained: 

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

is significant and substantial under National Gypsum, the Secretary 

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

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

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

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

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

a reasonably serious nature. 

6 FMSHRC 1, 3–4 (Jan. 1984) (footnote omitted); accord Buck Creek Coal, Inc. v. MSHA, 52 

F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103 (5th Cir.

1988) (approving Mathies criteria).

The record is clear that CAM’s failure to leave adequate stumps severely jeopardized the 

integrity of the roof, exposing miners to the hazard of working under an inadequately supported 

roof. At the time of the inspection, the roof conditions had deteriorated to the point where it was 

possible to hear the roof working, and timbers were starting to fail in the area that had been 

mined during the previous shift. Tr. 265. The danger of the roof was so pronounced that 

Inspector Little found it necessary to require CAM to skip an entire row of pillars in order to 

abate the hazard. 

The Judge credited Inspector Little’s assessment of the risk posed by the inadequate 

stumps and Graduate Engineer Robert Bellamy’s testimony that even a one-foot reduction in the 

stump size across an entire row would be a “big concern.” 36 FMSHRC at 2211. The Judge also 

credited the inspector’s testimony that the failure of the roof in the worked out area could 

adversely affect the miners mining the next pillar and that the conditions were “likely to cause a 

very serious accident or fatality if the practice continues.” Id. at 2210. Given these findings, it is 

reasonably likely that the hazard could result in an injury of a reasonably serious nature. See

Halfway, Inc., 8 FMSHRC 8, 12–13 (Jan. 1986) (affirming an S&S determination for failing to 

comply with the mine’s roof control plan when miners could have worked or traveled in areas 

with inadequately supported roof). 

2. Unwarrantable Failure

Unwarrantable failure is aggravated conduct constituting more than ordinary negligence. 

Emery Mining Corp., 9 FMSHRC 1997, 2001 (Dec. 1987). Unwarrantable failure is 

characterized by “reckless disregard,” “intentional misconduct,” “indifference,” or a “serious 

lack of reasonable care.” Id. at 2003–04; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 

194 (Feb. 1991); see also Buck Creek Coal, 52 F.3d at 136 (approving Commission’s 

unwarrantable failure test). 

38 FMSHRC Page 1908
Whether the conduct is “aggravated” in the context of unwarrantable failure is 

determined by looking at all the facts and circumstances of each case, including (1) the extent of 

the violative condition, (2) the length of time that it has existed, (3) whether the violation posed a 

high risk of danger, (4) whether the violation was obvious, (5) the operator’s knowledge of the 

existence of the violation, (6) the operator’s efforts in abating the violative condition, and (7) 

whether the operator has been placed on notice that greater efforts are necessary for compliance. 

See Manalapan Mining Co., 35 FMSHRC 289, 293 (Feb. 2013); IO Coal Co., 31 FMSHRC 

1346, 1350–57 (Dec. 2009). These factors need to be viewed in the context of the factual 

circumstances of a particular case. 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 

operator’s conduct is aggravated or whether mitigating circumstances exist. Id.

As discussed above in our S&S analysis, the record is clear that the failure to maintain 

adequate stumps created a high degree of danger. In addition, CAM should have known about 

the deficient stumps because the hazardous condition was so extensive and obvious. All of the 

stumps on the 001/003 super-section were less than the six-foot minimum, and many of them 

were significantly deficient. Four of the stumps were two feet or less in width. 26 FMSHRC at 

2215. 

Such a striking difference in size should have been obvious during even the most cursory 

exam. Yet, despite the fact that the Judge found that it was “entirely possible to observe and 

estimate the size of the stumps from the breaker line,” examiners traveled to the breaker line but 

did not report observable conditions across the crosscut during two separate preshift 

examinations. Id. at 2221. 

Moreover, CAM’s repeated failure to report the inadequate stumps and abate the hazard 

exposed at least two shifts of miners to highly dangerous conditions. The row of pillars had been 

cut during the day shift the day prior to the MSHA inspection. Tr. 59–60. That means that the 

hazardous condition had lasted in excess of 24 hours before the hazardous condition could be 

abated. See generally Windsor Coal Co., 21 FMSHRC 997, 1001–04 (Sept. 1999) (finding that a 

duration in excess of one shift weighs in favor of finding an unwarrantable failure). 

While the record does not contain any evidence that CAM was placed on notice that 

greater efforts were required to comply with its roof control plan or preshift examination 

requirements, the evidence supporting the other factors overwhelmingly weighs in favor of the 

unwarrantable failure designations. Accordingly, we affirm the Judge’s S&S and unwarrantable 

failure determinations. 

 

38 FMSHRC Page 1909
III. 

Conclusion 

For the foregoing reasons, we affirm the Judge’s finding of a violation for failing to 

perform an adequate preshift examination. We also conclude that the record supports the S&S 

and unwarrantable failure designations for both Citation No. 8273702 and Order No. 8273703. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner 

38 FMSHRC Page 1910
Commissioners Young and Cohen, concurring in part and dissenting in part: 

 We agree with the majority’s reasoning and its decision in affirming the Judge’s finding 

of a violation. We also agree with the conclusion that the nature of the violation as S&S is 

irrefutably established by the record. However, we do not join in its short-circuiting—wellintentioned and understandable though it may be—of the review process on the unwarrantable 

failure findings. 

 Our principal concern is the lack of any analysis or even an express conclusion on the 

unwarrantable failure issue by the Judge. The determination of an unwarrantable failure is 

inherently a judicial function. It is both fact-intensive and committed to the subjective discretion 

of the trier of fact. IO Coal Co., 31 FMSHRC 1346, 1351 (Dec. 2009) (vacating and remanding 

ALJ’s finding for failure to address all the elements of unwarrantable failure, and failure to 

identify the relevant factors that affected his finding); see also Martin County Coal Corp., 28 

FMSHRC 247, 261 (May 2006) (“The Commission requires that a judge analyze and weigh all 

probative record evidence, make appropriate findings, and explain the reasons for his or her 

decision.”). While the majority correctly notes that the record clearly contains substantial 

evidence that would support a finding of unwarrantable failure, the operator did, in fact, contest 

the issue, both before the Judge and on review, and argued at length that the finding was not 

appropriate. See CAM Post Hrg. Br. at 33–36; PDR at 22–25. As the operator notes, and as the 

Secretary acknowledges,1

 the Judge’s opinion doesn’t discuss “unwarrantable failure” beyond 

noting the inspector’s designation of the violation as such in the order. Thus, there is no 

exposition of the specific criteria or the weight given to those criteria in determining that the 

violations here arose from the operator’s unwarrantable failure. 

 The Commission, citing the D.C. Circuit Court of Appeals, has noted that “‘[p]erhaps the 

most essential purpose served by the requirement of an articulated decision is the facilitation of 

judicial review.’” IO Coal Co., 31 FMSHRC 1346, 1351 (Dec. 2009) (quoting 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.” Id. (citing Anaconda Co., 3 FMSHRC 299, 299–300 (Feb. 1981)). The credibility of 

the Commission’s deliberative process depends on the transparency afforded by clearly 

articulated bases in our decisions. 

 In this case, the operator expressly noted the Commission’s well-established requirement 

that the factors relevant to the determination of the unwarrantable failure issue must all be at 

least acknowledged, and that relevant factors must be discussed. CAM Post Hrg. Br. at 34–35 

(citations omitted). There is a complete absence of any analysis in the Judge’s Decision, or even 

recognition of the relevant factors here. 

 As the majority notes, there is no evidence in the record that the operator was on notice 

that greater efforts at compliance were necessary. Slip op. at 7. Arguably, then, this is a factor 

weighing in favor of the operator. The Judge’s failure to either decide that the factor is not 

 1

 The Secretary did not argue that the Commission should conclude that the violations 

were established as S&S and unwarrantable by the record, requesting instead that the issues be 

remanded for determination. 

38 FMSHRC Page 1911
relevant or is outweighed by the other factors requires remand because the evaluation of the 

relative weight assigned to various factors is the province of the Judge. Sierra Rock Prods., Inc., 

37 FMSHRC 1, 6 (Jan. 2015) (noting that “[i]t is ordinarily the province of the Judge to engage 

in an analysis and balancing of the unwarrantability factors in the context of the cited standard in 

the first instance.”). In Sierra Rock Products, the Commission remanded the case to the Judge for 

further consideration of the operator’s good faith belief, recognizing that consideration of that 

sole factor needed to be “weighed against other unwarrantability factors as re-examined in the 

context of the cited standard.” Id. at 6–7. As we have held: 

These factors need to be viewed in the context of the factual 

circumstances of a particular case, and some factors may be 

irrelevant to a particular factual scenario. But all of the relevant 

facts and circumstances of each case must be examined to 

determine if an actor’s conduct is aggravated, or whether the level 

of the actor’s negligence should be mitigated. 

Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000); see also Martin County Coal, 28 

FMSHRC at 257 (stating that “fact-finding is not the province of the Commission”) (citing MidContinent Res., Inc., 16 FMSHRC 1218, 1222–23 (June 1994) (holding remand appropriate 

when the Judge failed to adequately address evidentiary record)). 

A remand would reinforce the important and central contribution Judges make in 

weighing the totality of evidence presented in order to establish or refute a charge of 

unwarrantable failure. Unlike an S&S determination, which often involves a somewhat simpler, 

or at least more direct, analysis of the danger presented by a hazard and the violation’s 

contribution to it, unwarrantable failure requires an assessment and weighing of various different 

factors. The fact that it involves weighing factors reinforces the need to show how the Judge’s 

conclusion is grounded on objective facts in the record and their relative values under the unique 

circumstances presented in each case. 

38 FMSHRC Page 1912
 We, therefore, would remand the case for the Judge to make and support an express 

finding on the unwarrantable failure issue. Such an outcome would be consistent with the 

requirements we have established and our general practice to remand a decision to the Judge for 

further consideration when decisions do not conform to those requirements in deciding whether a 

violation did or did not result from the operator’s unwarrantable failure. 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

 /s/ Robert F. Cohen, Jr. 

 Robert F. Cohen, Jr., Commissioner 

38 FMSHRC Page 1913
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004-1710 

August 23, 2016 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 on behalf of CHARLES RIORDAN 

v. Docket No. VA 2014-343-D 

KNOX CREEK COAL CORPORATION 

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

DECISION 

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

This proceeding concerns a discrimination complaint filed by the Secretary of Labor 

pursuant to section 105(c) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 815(c) (2012) (“Mine Act”),1 on behalf of Charles Riordan. After a hearing on the case, the

Judge issued his decision finding that discrimination had occurred and assessed a $25,000 civil

penalty against the operator. 37 FMSHRC 1074 (May 2015) (ALJ). He subsequently entered a

final unpublished order requiring Knox Creek to permanently reinstate Riordan to his former

position with back pay.

For the reasons stated below, we affirm the Judge’s decision and final order. We 

conclude that substantial evidence supports the Judge’s findings that the Secretary established a 

prima facie case of discrimination and that a layoff occurring at the mine was used as a pretext to 

retaliate against the miner for making safety complaints. We also conclude that the Judge

1

 Section 105(c)(1) of the Act provides in relevant part: 

No person shall discharge or in any manner discriminate against or 

cause to be discharged or cause discrimination against . . . any 

miner . . . because such miner . . . has filed or made a complaint 

under or related to this Act, including a complaint notifying the 

operator . . . of an alleged danger or safety or health violation in a 

coal or other mine. . . . 

30 U.S.C. § 815(c)(1). Section 105(c)(2) provides that the Secretary of Labor shall file a 

complaint with the Commission on behalf of a miner if he determines that section 105(c)(1) has 

been violated. 

38 FMSHRC Page 1914
properly applied the Commission’s longstanding analytical framework in reaching his 

determination that discrimination occurred. 

I. 

Factual and Procedural Background 

A. Factual Background 

Riordan began working at Knox Creek’s Tiller No. 1 Mine in 2004. Tr. 30. Riordan, who 

had 32 years of experience as a miner, most recently worked for Knox Creek as a foreman on the 

active working section, an “outby” foreman for mine areas away from the active section, a 

trainer for other miners seeking foreman certifications, and a safety trainer for new hires. Tr. 29-

33. Riordan received a $3,000 bonus from the operator in March 2013 following what he 

believed was a positive performance review for 2012. Tr. 34-35. On December 13, 2013, Knox 

Creek terminated Riordan’s employment. 

 

As part of his job as a section foreman, Riordan was responsible for checking the mine’s 

ventilation to ensure that a sufficient volume of air reached the working section. Tr. 58-62. 

Riordan began voicing concerns about ventilation at the Tiller Mine to his supervisor, general 

mine foreman Mark Jackson, in late 2012, and did so “almost . . . daily.” Tr. 36, 39. At that time, 

Knox Creek was developing a “super section,”2

 and controlling the flow of air to the two 

working faces became increasingly difficult as the cut went deeper. Tr. 37-38. Riordan did not 

retain any documentation of the ventilation problems, but did make verbal safety complaints and 

fixed the problems directly by doing “whatever was necessary.” Tr. 62-64. When Riordan found 

inadequate ventilation, he would stop production until ventilation had been restored. Id. 

Although Riordan acknowledged that Knox Creek committed a large amount of resources and 

made “quite a number of changes” to address the ventilation problems, he did not see results 

from those efforts. Tr. 67-69, 73. 

 

Jackson acknowledged discussing ventilation issues with Riordan, but testified that only 

two or three such conversations occurred and that they were as frequent as his discussions with 

other foremen. According to Riordan, Jackson “usually had a smart aleck comment about 

everything” in response to the safety complaints. Tr. 41-42. Riordan also voiced his concerns to 

Mine Superintendent Scott Jessee, Jackson’s boss, and Mike Wright, Knox Creek’s safety 

representative. Tr. 53-54, 207, 233; S. Ex. 1 at 22-23 (deposition testimony of Mike Wright). 

Jessee and Wright downplayed the frequency and import of those conversations with Riordan. 

Tr. 208; S. Ex. 1 at 22-23, 34-35. 

 On August 22, 2013, Riordan attended a company picnic at which Ron Patrick, Knox 

Creek’s General Manager (and Jessee’s supervisor), was present. KC Ex. 5, at 1. Jackson was on 

vacation and not at the picnic. Tr. 210. At the picnic, Riordan and fellow section foreman Les 

Blankenship raised with Patrick their concerns with the adequacy of the ventilation to the super 

                                                             2

 A “super section” is a section with two continuous miners operating, one on each side 

of the section, with two splits of air. This allows both continuous miners to operate at the same 

time. Tr. 38, 53, 208-09. 

38 FMSHRC Page 1915
section. Tr. 43, 81-84. Riordan made some suggestions as to how to improve airflow. Tr. 43, 81-

84. According to Riordan, Patrick responded that Knox Creek would do whatever was necessary

to fix the ventilation problems. Tr. 43-44.

Riordan next saw Jackson on August 26, Jackson’s first day back from vacation. 

According to Riordan, Jackson confronted Riordan then and told Riordan he had “thrown 

[Jackson] under the bus by discussing these problems with Mr. Patrick.” Tr. 44-45, 85. Jackson 

denied that this conversation occurred. Tr. 285-86, 299. 

The same day as the alleged “under the bus” comment, Jackson and Jessee claimed that 

they saw Riordan standing under unsupported roof. Riordan testified that he had been in the 

bleeder entry that was not being actively mined. Tr. 47-48. Jackson issued Riordan a written 

warning and suspended Riordan with pay for three days. Tr. 46-48. This was the only time Knox 

Creek ever disciplined Riordan in writing. Regarding Jesse, Riordan believed that his 

relationship with him began generally deteriorating in 2013 and “continued to go downhill” after 

the picnic. Tr. 33, 46. 

Also in August 2013, the Dickenson-Russell Coal Company3

 (“Dickenson-Russell”) 

began the process of closing two nearby coal mines and laying off the 133 miners who worked in 

those mines.4

 Tr. 118-22. Patrick, who was general manager for both Knox Creek and 

Dickenson-Russell, testified that he wanted to retain the best foremen from the closed mines. 

Tr. 122. Patrick asked the superintendents from the Tiller mine and Dickenson-Russell’s three 

mines to evaluate their salaried employees, including foremen, using a standardized form. 

Tr. 123; KC Ex. 2A. According to Patrick, the highest-ranked foremen were retained and moved 

to other mines where necessary, while lower-ranked foremen were terminated. Tr. 126-28, 344. 

Knox Creek terminated Riordan’s employment on December 13, 2013, the same day 

Dickenson-Russell closed the Laurel Mountain mine. Tr. 48-49; KC Ex. 3. Riordan had scored a 

46 on his standardized evaluation. Tr. 135, 194. A foreman who scored a 61 directly replaced 

Riordan. Tr. 135. Knox Creek also retained another foreman, Donald Duncan, who received a 

score of 45 on the evaluation. Tr. 135-37. Riordan was the only Knox Creek foreman fired in the 

layoffs. Tr. 160; S. Ex. 3. 

Patrick asserted that Riordan’s score was based solely on Superintendent Jessee’s 

standardized evaluation. Tr. 127, 199, 232. Jessee denied speaking with anyone about the 

evaluations or inquiring as to their purpose.5

 Tr. 200-01, 220-21, 224, 242-44. Jackson denied 

3

 Alpha Natural Resources controlled both the Knox Creek and Dickenson-Russell coal 

companies. Tr. 122-23. 

4

 Dickenson-Russell mined out and closed the Roaring Fork mine in October 2013. 

Tr. 327. The company closed the Laurel Mountain mine the following December for economic 

reasons. Tr. 120, 327. 

5

 Knox Creek produced no objective criteria, or any guidance relied upon by Jessee 

regarding objective factors to be considered when evaluating foremen. 

38 FMSHRC Page 1916
any knowledge of or involvement with the evaluation process. Tr. 287-88. Jessee claimed that he 

filled out Riordan’s evaluation on August 8-9, 2013, approximately two weeks before the 

company picnic. Tr. 199. Nevertheless, Knox Creek’s summary of Riordan’s evaluation 

apparently referenced the miner’s subsequent incident under an unsupported roof on August 26, 

noting “[d]isciplinary measures regarding red zone areas.” See Sec Ex. 3, at 19-20; Tr. 231. 

When confronted with this inconsistency, Patrick and Jessee both denied any knowledge of how 

the comments referencing the disciplinary measure came to be included in the summary of 

Riordan’s evaluation. Tr. 155, 231-32. 

 

Patrick referred some of the miners displaced by closures, but apparently not Riordan, to 

another Alpha company, Paramont Coal.6 In the year after Riordan’s termination, Knox Creek 

hired as many as six new foremen, including several who had not previously worked as foremen. 

Tr. 163, 237-38, 273. 

Riordan believed his discharge resulted from his recent complaints about ventilation 

safety issues at the Tiller Mine. Tr. 51. Riordan filed a discrimination complaint with the 

Department of Labor’s Mine Safety and Health Administration (MSHA), and the Secretary filed 

the section 105(c)(2) complaint on Riordan’s behalf. 

B. The Judge’s Decision 

The Judge analyzed the discrimination claim under the analytical framework set forth in 

Secretary of Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2799 (Oct. 

1980), rev’d on other grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3d 

Cir. 1981); and Secretary of Labor on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 

803, 817-18 (Apr. 1981). The Judge rejected the operator’s argument that the Pasula-Robinette

approach to discrimination cases7

 “must be discarded” in light of the Supreme Court’s recent 

decisions dealing with the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. 

§ 621 et seq. (2012), and Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq. 

(2012). 37 FMSHRC at 1100-04, n. 18 (discussing Gross v. FBL Financial Services, Inc., 557 

U.S. 167 (2009) (ADEA); University of Texas Southwestern Medical Center v. Nassar, 133 S. 

Ct. 2517, 2533 (2013) (Title VII)). The Judge held that the Supreme Court’s decisions in Gross

and Nassar are inapplicable in the Mine Act context. Id. 

                                                             6

 Patrick testified that he could not remember if Riordan was on the list of employees sent 

to Paramont, and that list was not provided to the Secretary during discovery. Tr. 176-78. In its 

brief on appeal, the operator conceded that Riordan was not on that list. KC PDR at 28. 

7

 Under Pasula-Robinette, as described infra, the Commission utilizes a shifting burden 

of proof in cases under section 105(c). The Secretary’s initial burden is only to prove that the 

adverse action was motivated “in any part” by protected activity. The burden then shifts to the 

operator to prove that the adverse action was motivated “in no part” by the protected activity or, 

alternatively, that the adverse action would have been taken solely for non-protected activities. 

See, e.g., Pasula, 2 FMSHRC at 2786; Driessen v. Nevada Goldfields, Inc., 20 FMSHRC 324, 

328 (Apr. 1998). 

38 FMSHRC Page 1917
Applying Pasula-Robinette, the Judge found that Riordan engaged in protected activity. 

37 FMSHRC at 1074, 1104-05. He noted that Riordan made several verbal safety complaints 

about Knox Creek’s inadequate ventilation, and he determined that these complaints constituted 

protected activity. Id. at 1104-05. In addition, the Judge found that Riordan’s dismissal was an 

adverse action. Id. at 1104. 

The Judge further determined that Riordan had established a prima facie case of 

discrimination, in that his protected activity motivated Knox Creek’s decision to terminate his 

employment. The Judge found that Riordan’s direct supervisor, Jackson, displayed animus 

toward Riordan’s safety complaints in general and was particularly upset with Riordan’s 

discussion of ventilation problems with Patrick at the mine’s picnic. Id. at 1077, 1105. The Judge 

rejected Jackson’s and Jessee’s testimony that they had not heard of Riordan’s comments to the 

mine’s general manager.8

 To the contrary, the Judge found that Jackson took umbrage at 

Riordan’s comments during the picnic and that Jackson’s and Jessee’s subsequent punishment of 

Riordan for allegedly standing under unsupported roof was “no coincidence.” Id. at 1105. The 

Judge also noted a strong proximity in time between Riordan’s protected activities and the 

adverse actions against him. Id. at 1104 n.20. The Judge thus found a nexus between Riordan’s 

safety complaints and his termination, and accordingly concluded that Riordan’s protected 

activity motivated Knox Creek’s decision to terminate him. 

Next, the Judge found that Riordan’s inclusion in the layoffs was a pretext. The Judge 

rejected the operator’s assertions of the “legitimacy of the [performance] rating system as 

applied.” Id. at 1078. He found that the system “was malleable” and that “[d]esired outcomes 

trumped scores when needed.” Id. at 1105. The Judge found that the allegations regarding 

Riordan’s failings as a foreman lacked credibility, and thus dismissed the rationale behind 

Riordan’s low evaluation score. Moreover, the Judge did not believe that Jessee conducted 

Riordan’s evaluation in early August or independently of Jackson because Riordan’s evaluation 

summary noted his later disciplinary action for allegedly standing under unsupported roof. Id. at 

1094-95.9

 In addition, the Judge expressed doubts that Duncan, the foreman who received a 

lower rating than Riordan, was retained because of his membership on the mine rescue team. 

Finally, the Judge emphasized that Knox Creek hired a number of other foremen in 2014, 

undermining the operator’s assertion that it needed to dismiss Riordan to make room for other 

foremen. Id. at 1105. In sum, the Judge inferred that the operator’s witnesses were covering up 

the improper dismissal of Riordan. Id. at 1089-90 n.9, 1094-95, 1105. 

In making his factual findings, the Judge found Riordan to be “a very credible and 

forthright witness.” Id. at 1075. The Judge also made several specific negative credibility 

determinations about the operator’s witnesses and discounted their testimony about Riordan’s 

termination. The Judge generally found Jackson, Jessee, and Patrick to lack credibility in light of 

8

 The Judge also found Patrick’s poor recollection of the picnic to be a sign of 

suspiciously selective memory. 37 FMSHRC at 1086, 1092 n.13. 

9

 In discounting the operator’s narrative, the Judge also pointed to inconsistencies in the 

testimony of Christy Viers, Knox Creek’s human resources representative, about the evaluations’ 

completion and processing. Id. at 1088-89. 

38 FMSHRC Page 1918
their demeanor, evasive answers during cross examination, reliance on leading questions during 

direct testimony, and selective memories. Id. at 1079 n.5, 1092 n.13, 1094 n.15. 

The Judge concluded that the Secretary had proven that Knox Creek Coal unlawfully 

discriminated against Riordin for engaging in protected activity. Id. at 1104-06. The Judge 

assessed a penalty of $25,000, which was $5,000 more than the Secretary had proposed, in light 

of the operator’s “lack of good faith, the gravity, and the negligence involved.” Id. He retained 

jurisdiction to determine what remedies Riordan was owed. On July 23, 2015, the Judge issued a 

final order awarding Riordan relief. 

 

II. 

Analysis 

 Knox Creek challenges the Judge’s decision on multiple grounds. First, the operator 

contends that the Judge improperly applied the Commission’s Pasula-Robinette test because the 

Supreme Court has invalidated the same burden-shifting scheme in other, similar contexts. KC 

PDR at 18-23. Knox Creek further argues that substantial evidence does not support the Judge’s 

conclusion that Riordan engaged in activity protected by section 105(c) of the Mine Act. Id. at 

14-18. Third, Knox Creek contends that substantial evidence does not support the Judge’s 

finding that animus toward Riordan’s safety concerns motivated his dismissal. Id. at 27-35. 

Fourth, Knox Creek contends that substantial evidence does not support the Judge’s conclusion 

that the broader layoffs were a pretext concealing the operator’s discrimination against Riordan. 

Id. at 23-26. 

A. The Pasula-Robinette test is the correct test for discrimination under the Mine 

Act. 

Under Pasula-Robinette, a miner alleging discrimination under the Act establishes a 

prima facie case of prohibited discrimination by proving that he engaged in protected activity 

and that the adverse action complained of was motivated in any part by that activity. Pasula, 2 

FMSHRC at 2799; Robinette, 3 FMSHRC at 817-18. The 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 protected activity. Robinette, 3 FMSHRC at 818 n.20. If the operator cannot 

rebut the prima facie case in this manner, it nevertheless may defend affirmatively by proving 

that the adverse action also was motivated by the miner’s unprotected activity and the operator 

would have taken the adverse action against the miner for the unprotected activity alone. Id. at 

817-18; Pasula, 2 FMSHRC at 2799; see also Eastern Assoc. Coal Corp. v. FMSHRC, 813 F.2d 

639, 642 (4th Cir. 1987). 

Knox Creek contends that the Supreme Court has invalidated the same burden-shifting 

scheme in age discrimination and Title VII cases, and that therefore the burden-shifting scheme 

in Mine Act discrimination cases must also be invalidated because the Mine Act involves the 

same operative language. KC PDR at 18-23; see Gross, 557 U.S. at 167 (age discrimination); 

Nassar, 133 S. Ct. at 2533 (Title VII). Specifically, the operator argues that section 105(c) of the 

Mine Act, like the ADEA’s discrimination provision and Title VII’s retaliation provision, only 

38 FMSHRC Page 1919
remedies discrimination that occurs “because of” the protected status or activity. KC PDR at 19. 

The operator asserts that the Mine Act provides no remedy where the protected activity was 

simply “a motivating factor.” Id. 

Knox Creek asserts that the cited Supreme Court cases establish two important principles 

pertinent to this case: first, the Secretary must prove as part of his case in chief that Riordan 

would not have been terminated “but for” the protected activity; and second, the burden of proof 

never shifts to the operator to show that the adverse action was motivated “in no part” by the 

protected activity or that the adverse action would have been taken solely for non-protected 

activities. Id. Rather, the burden of proof remains with the Secretary. 

The operator’s argument disregards the differences in the context, goals, and legislative 

history of the Mine Act and the statutes at issue in Gross and Nassar. In both Nassar and Gross, 

the Supreme Court emphasized that the legislative history and context of the discrimination 

provisions were essential to interpreting what standard of causation applies. See Nassar, 133 

S.Ct. at 2530, 2533 (“Text may not be divorced from context”); Gross, 557 U.S. at 174 (“[We]

must be careful not to apply rules applicable under one statute to a different statute without

careful and critical examination.”); see also Paroline v. United States, 134 S.Ct. 1710, 1727

(2014) (stating that even when Congress uses terms that, under Nassar, ordinarily connote “butfor” causation, such terms may have other meanings based on “textual or contextual” reasons

(quoting Burrage v. United States, 134 S.Ct. 881, 888 (2014)).

In contrast to the ADEA and Title VII, the legislative history of the Mine Act 

affirmatively demonstrates that Congress envisioned such a burden-shifting framework when 

drafting the discrimination protections of section 105(c)(1). The report of the Senate committee 

that drafted section 105(c)(1) states that for the protections of the Mine Act “to be truly effective, 

miners will have to play an active part in the enforcement of the Act.” S. Rep. 95-181, 35, 

reprinted in Senate Subcomm. on Labor, Comm. on Human Res., Legis. History of the Federal 

Mine Safety and Health Act of 1977, at 624 (1978). Thus, Congress recognized that in a 

treacherous environment, miners had to have the ability to act to protect their safety. There is no 

equivalent to this concern in the ADEA or Title VII contexts. Obviously, if miners advocate 

strongly for their own safety, they could be inviting retaliation from mine management. For this 

reason, Congress concluded that “[w]henever protected activity is in any manner a contributing 

factor to the retaliatory conduct, a finding of discrimination should be made.” Id. at 36 (emphasis 

added). As noted in Pasula, “the [in any part] test reflects better the congressional policy under 

the 1977 Act of encouraging the free engagement by employees in protected activities . . . .” 2 

FMSHRC at 2798. 

The predecessor provision to section 105(c)(1) in the 1969 Coal Act prohibited 

discrimination “by reason of” a miner’s protected activity. 30 U.S.C. § 820(b)(1) (1970). That 

provision was introduced as a floor amendment by Senator Kennedy, who said its purpose was to 

provide “the same protection against retaliation which we give employees under other Federal 

labor laws.” 115 Cong. Rec. 27948 (Oct. 1, 1969). Senator Kennedy cited the National Labor 

Relations Act (NLRA) as the first example of “other Federal labor laws.” Id. At that point, the 

NLRB had long applied the “in any part” test in NLRA retaliation cases. See NLRB v. 

38 FMSHRC Page 1920
Transportation Management Corp., 462 U.S. 393, 398-99 (1983) (discussing NLRA case law 

from 1938-1947); see also Wright Line, 251 NLRB 1083, 1083-84 (1980). 

In Pasula, the Commission observed that the Mine Act replaced the Coal Act’s phrase 

“by reason of” with the phrase “because of.” See 2 FMSHRC at 2798. The only legislative 

history that speaks to this change suggests that it was calculated to expand the scope of the Coal 

Act’s anti-retaliation provision. As noted above, the Senate Report stated that “[w]henever 

protected activity is in any manner a contributing factor to the retaliatory conduct, a finding of 

discrimination should be made.” S. Rep. No. 95-181, at 36 (emphasis added); see also Simpson, 

842 F.2d 453, 463 (D.C. Cir. 1988) (relying on this legislative history to construe section 

105(c)(1) to protect conduct not discussed in the Mine Act’s text). This suggests that, if anything, 

the “because of” language was intended to reduce the causation standard in mine health and 

safety cases – not to heighten it, as the operator argues. 

Finally, Congress intended generally that the Mine Act be read broadly in favor of 

protecting miners. See, e.g., RNS Servs., Inc. v. Sec’y of Labor, 115 F.3d 182, 187 (3d Cir. 1997); 

United Mine Workers of Am. v. Dep’t of Interior, 562 F.2d 1260, 1265 (D.C. Cir. 1977); see also

Speed Mining, Inc. v. FMSHRC, 528 F.3d 310, 315 (4th Cir. 2008). The legislative history of

section 105(c)(1) is even clearer: the provision was intended “to be construed expansively to 

assure that miners will not be inhibited in any way in exercising any rights afforded by the 

legislation.” S. Rep. No. 95-181, at 36 (emphasis added); see Swift v. Consolidation Coal Co., 16 

FMSHRC 201, 205 (Feb. 1994); Pasula, 2 FMSHRC at 2791. 

Given the distinct history and legislative intent of the Mine Act, we do not find Gross and 

Nassar to be controlling for discrimination proceedings under the Mine Act. The Commission’s 

reasoning in Pasula was sound, and we decline to overturn it. The Judge appropriately applied 

the Commission’s burden-shifting framework to analyze this section 105(c)(2) case.10

 

                                                             10 We note that the burden of proof under both the test from Gross and Nassar and the 

Pasula approach is a preponderance of the evidence. Gross, 557 U.S. at 167; Nassar, 133 S. Ct. 

at 2533. This means that the party bearing the burden of proof only needs to show that it is more 

likely than not that causation does or does not exist. Regardless of which party faces this burden, 

the outcome is the same here. As discussed below, the Judge made several well-supported 

credibility findings and properly concluded that it was “clear enough from the record testimony 

that, circumstantially, [Jackson] was the force behind Mr. Riordan’s discharge.” 37 FMSHRC at 

1078-79; see also id. at 1092 (“[T]he Court agrees that Riordan’s job loss particularly came 

about because of Mr. Jackson’s animus towards Riordan . . . and not because he was simply the 

‘unfortunate’ recipient of a lower evaluation score.”). Thus, the Judge concluded in effect that 

Knox Creek would not have terminated Riordan “but for” his protected conduct. Given the 

Judge’s findings, the result of this case would not change under the standard articulated in 

Nassar and Gross. 

38 FMSHRC Page 1921
B. Substantial evidence supports the Judge’s finding that Riordan engaged in

protected activity.

Riordan testified that he raised safety issues regarding ventilation on an almost “daily” 

basis. Tr. 36, 39. Furthermore, both Jackson and Jessee acknowledged discussing ventilation 

issues with Riordan. Tr. 53-54, 207, 233, 278-79, 282, 294, 302. The Judge found that Riordan’s 

complaints constituted protected activity under the Mine Act. 37 FMSHRC at 1104. 

Knox Creek challenges the Judge’s conclusion, asserting that Riordan’s voiced concerns 

about the ventilation system were not protected safety complaints. Knox Creek agrees that 

Riordan regularly discussed ventilation problems with his supervisors. Knox Creek asserts, 

however, that Riordan’s comments were nothing more than discussions between mine managers 

trying to address problems and were motivated by a desire to improve production, not to ensure 

safe working conditions. 

Raising safety concerns is paradigmatic “protected activity” within the meaning of 

section 105(c)(2). Although other miners and foremen may have raised similar concerns, 

Riordan’s safety complaints are no less protected as a result. Sec’y of Labor on behalf of Jones v. 

Kingston Mining, Inc., 37 FMSHRC 2519, 2523 n.3 (Nov. 2015). 

Furthermore, Knox Creek’s framing of Riordan’s concerns is misleading. Riordan 

explained that he stopped producing coal whenever he observed insufficient airflow until he 

could remedy the problem. In this role, Riordan was thus responsible for satisfying the pressures 

of production demands without sacrificing the mine’s safety requirements. Faced with this 

balancing act, Riordan’s production concerns were inherently connected to safety. 

In enacting the Mine Act, Congress indicated that the concept of protected activity in 

section 105(c) is to “be construed expansively to assure that miners will not be inhibited in any 

way in exercising any rights afforded by the legislation.” UMWA, on behalf of Hoy v. Emerald 

Coal Res., LP, 36 FMSHRC 2088, 2095-96 (Aug. 2014) vacated and remanded on other 

grounds, 620 Fed. Appx. 127 (3d Cir. 2015), citing S. Rep. 95-181, at 36, reprinted in Senate 

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

and Health Act of 1977, at 624 (1978). 

Given these principles, the Judge was correct in determining that Riordan’s complaints 

about the ventilation system were safety complaints protected under the Mine Act. Accordingly, 

the Judge’s finding that Riordan engaged in protected activity is consistent with the law and 

supported by substantial evidence. 

Other than its assertion that Riordan did not establish protected activity, Knox Creek does 

not dispute that Riordan demonstrated a prima facie case. Accordingly, we need not discuss the 

remaining elements of his prima facie case. 

38 FMSHRC Page 1922
C. The Judge’s finding that the adverse action was motivated by Riordan’s 

protected activity is supported by the record. 

Knox Creek contends that its termination of Riordan’s employment was unrelated to his 

voicing of safety concerns. KC PDR at 27-35. Thus, in terms of Pasula-Robinette, the operator 

seeks to rebut Riordan’s prima facie case by proving the termination was in no way motivated by 

the miner’s protected activity. Specifically, Knox Creek asserts that the Judge improperly 

discredited the testimony of the operator’s witnesses and made inferences that were not logically 

or rationally connected to the facts in evidence.11 Id. at 27. 

Among the indicia of discriminatory intent that establish that a complainant’s adverse 

action was motivated by his protected activity are: (1) knowledge of the protected activity, 

(2) hostility or animus toward the protected activity, (3) a coincidence in time between the 

protected activity and the adverse action, and (4) disparate treatment of the complainant. Turner 

v. Nat’l Cement Co. of California, 33 FMSHRC 1059, 1066 (May 2011) (citing Sec’y of Labor 

on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510 (Nov. 1981)). The Judge 

found that those indicia had been established. His conclusions are supported by the record. 

 

Riordan raised safety concerns to Jackson, Jessee, Wright and Patrick about ventilation, 

providing knowledge of his protected activity to his entire chain of supervision. 

Concerning hostility, the Judge credited Riordan’s testimony that Jackson accused 

Riordan of throwing him “under the bus” by discussing the ventilation problems with Patrick at 

the picnic. 37 FMSHRC at 1077 n.4. The Judge also credited Riordan’s testimony that Jackson 

“usually had a smart aleck comment about everything” in response to safety complaints. Id. at 

1077; see Tr. 41-42. For example, the Judge credited Riordan’s testimony that when Riordan 

once tried to discuss inadequate airflow with Jackson, Jackson told Riordan that he could tell if 

there was adequate airflow by “slapping his jacket” and watching the “dust blow[...] off” it. 

37 FMSHRC at 1077; see Tr. 55.12 Additionally, the Judge reasonably found Patrick’s claim that 

                                                             11 Since Knox Creek contends that its termination of Riordan was completely unrelated to 

his protected activity, this is not a “mixed-motive” case where, under Pasula-Robinette, the 

operator could prove an affirmative defense by showing that it would have terminated Riordan 

for unprotected activity alone. 

12 Our dissenting colleague states that the Judge “rests the outcome of the case squarely 

on Jackson’s reaction to the brief conversation in late August. . . .” Slip op. at 20. Although this 

conversation was important to the Judge, he based his findings of hostility on a whole course of 

conduct that culminated in the conversation at the picnic. Specifically, the Judge relied upon 

Riordan’s testimony that from the time he began making safety complaints in late 2012, Jessee 

and Jackson were, at best, dismissive of Riordan’s concerns. In one incident prior to the picnic in 

late August, he pressed Jackson to use air readings from an anemometer to ensure that the active 

face received a sufficient volume of clean air. Tr. 55, 62. Jackson insisted that the tool was 

unnecessary because he could tell by slapping his jacket and watching the dust blow off that the 

air flow to the face was an ample 2,000 cubic feet per minute. Tr. 55. Riordan, however, had 

measured less than a third of that amount. Tr. 55. 

38 FMSHRC Page 1923
he did not discuss the picnic conversation with Jessee or Jackson to lack credibility because: 

1) the Judge found Patrick’s inability to remember the picnic conversation at all to be

“suspiciously selective”; and 2) the Judge rejected as not believable Jackson’s denial that he had

accused Riordan of throwing Jackson “under the bus.” 37 FMSHRC at 1077, 1086; Tr. 138-39,

285-86, 299.

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

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

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

extent the judge’s conclusion reflects a credibility determination . . . that credibility 

determination should be given deference.”). The Commission has also recognized that, because 

the Judge “has an opportunity to hear the testimony and view the witnesses[,] he [or she] is 

ordinarily in the best position to make a credibility determination.” In re: Contests of Respirable 

Dust Sample Alteration Citations, 17 FMSHRC 1819, 1878 (Nov. 1995) (quoting Ona Corp. v. 

NLRB, 729 F.2d 713, 719 (11th Cir. 1984)), aff’d sub nom. Sec’y of Labor v. Keystone Coal 

Mining Corp., 151 F.3d 1096 (D.C. Cir. 1998). Knox Creek’s objections to the Judge’s 

credibility findings amount to nothing more than a request that the Commission reweigh the 

evidence. We do not accept this invitation.13 

The Judge’s finding of discriminatory intent was particularly reasonable given that 

Riordan was not only disciplined almost immediately after the picnic, but was also terminated 

less than four months later. Taken together, these two incidents raise an inference that Riordan’s 

termination was not coincidental. See, e.g., Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 

110 (2d Cir. 2010) (“five months is not too long to find the causal relationship” between 

discipline and protected activity); Pero v. Cyprus Plateau Mining Corp., 22 FMSHRC 1361, 

1365 (Dec. 2000) (four-month gap between protected activity and discharge probative of 

animus). 

The record also supports a conclusion of disparate treatment. The Secretary showed that 

the operator did not discharge Duncan, the similarly situated foreman who had a lower 

evaluation score than Riordan. Patrick claimed that Duncan was retained specifically because he 

was a member of the mine rescue team and that if Duncan had lost his job, the rescue team 

would have fallen short of the required team members and the mine would have been in violation 

of the law. Tr. 135. On cross examination, however, Patrick admitted that other trained Knox 

Creek miners could have taken over for Duncan, preventing the team from falling short of the 

required members. Tr. 188. Patrick’s willingness to retain a lower-ranked foreman, rather than 

finding other miners to fill in for Duncan undermines the legitimacy of Knox Creek’s claim that 

13 Likewise, our dissenting colleague’s rejection of the Judge’s credibility findings 

amounts to an attempt to reweigh the evidence. It is well-established that it is not within our 

power to reweigh the evidence or to enter de novo findings of fact based on an independent 

evaluation of the record. Island Creek Coal Co., 15 FMSHRC 339, 347 (Mar. 1993); see also

Wellmore Coal Corp v. Federal Mine Safety and Health Review Comm’m, No. 97-1280, 1997 

WL 794132, at *3 (4th Cir. 1997) (“‘[T] he ALJ has sole power to . . . resolve inconsistencies in 

the evidence.’”). 

38 FMSHRC Page 1924
it was necessary to retain Duncan while terminating Riordan. This supports the Judge’s finding 

of disparate treatment.14 

As a result, the Judge’s finding that Riordan’s adverse action was motivated by his 

protected activity is supported by substantial evidence. 

D. Substantial evidence supports the Judge’s finding that the layoff was used as a 

pretext to retaliate against Riordan for making safety complaints. 

Knox Creek also argues that the Judge’s finding that it used the layoffs as a pretext to 

terminate Riordan’s employment lacks the support of substantial evidence in the record. The 

operator maintains that it would not fabricate wide-reaching layoffs merely to dismiss one 

foreman, and that its business judgment in the layoffs should be respected. Knox Creek further 

attests that it followed the evaluation scores closely, deviating only once to retain Duncan, who 

was a member of the legally required mine rescue team. 

The Commission has explained that an operator’s business justification defense should 

not be “examined superficially or be approved automatically once offered.” Haro v. Magma 

Copper Co., 4 FMSHRC 1935, 1938 (Nov. 1982); see Cumberland River Coal Co. v. FMSHRC, 

712 F.3d 311, 320 (6th Cir. 2013). In reviewing defenses, the Judge must “determine whether 

they are credible and, if so, whether they would have motivated the particular operator as 

claimed.” Bradley v. Belva Coal Co., 4 FMSHRC 982, 993 (June 1982). The Commission has 

held that “pretext may be found . . . where the asserted justification is weak, implausible, or out 

of line with the operator’s normal business practices.” Sec’y of Labor on behalf of Price v. Jim 

Walter Res., Inc., 12 FMSHRC 1521, 1534 (Aug. 1990) (citing Haro, 4 FMSHRC at 1937-38). 

In finding pretext, the Judge made a number of credibility determinations and drew 

reasonable inferences from the record. The Judge noted instances where testimony was 

inconsistent, vague, or simply implausible. For instance, he noted that Jackson and Jessee failed 

to document alleged instances of misconduct by Riordan. 37 FMSHRC at 1085, 1105. The Judge 

found that Jessee’s claims – that he never spoke with anyone about the miner evaluation process, 

Riordan’s termination, the closure of other Alpha mines, or the transfer of employees to Knox 

Creek’s Tiller Mine – to be inherently implausible. The Judge also found Patrick’s testimony to 

lack credibility because the general manager inconsistently remembered the mine picnic, alleged 

discussions with Jessee about Riordan’s performance, and his own efforts to retain foremen 

displaced by the mine closures. We have reviewed these findings, find no error, and therefore 

affirm the conclusion of the Judge that Knox Creek’s asserted business justification was 

pretextual and not credible. The Judge’s specific findings are supported by substantial evidence. 

                                                             14 Knox Creek asserts that the Judge improperly overlooked the operator’s retention of 

Les Blankenship, the other section foreman who raised concerns about the ventilation to Patrick. 

Knox Creek’s contention misses the point. Although Blankenship was retained, the operator 

provided no evidence that Blankenship worked under Jackson or scored similarly to Riordan on 

the foreman evaluations. Knox Creek therefore failed to establish that Blankenship and Riordan 

were similarly situated. Accordingly, the Judge properly disregarded the fact that Blankenship 

was retained while Riordan was terminated. 

38 FMSHRC Page 1925
The operator’s asserted business justification relies on a factual timeline that is 

inconsistent with the record evidence. Jessee claimed to have conducted Riordan’s evaluation 

prior to the picnic and without input from anyone else. Specifically, Jessee claimed that he filled 

out the evaluations on August 8 or 9, two weeks before the August 22 picnic and therefore before 

any of Riordan’s supervisors had reason to retaliate. Tr. 199. However, Knox Creek’s evaluation 

summary included the following reference to Riordan’s written warning for allegedly standing 

under unsupported roof: “Disciplinary measures regarding red zone areas.” Sec Ex. 3 at 19-20. 

Riordan received this warning on the first day Jackson returned to work after the picnic, and the 

same day that Jackson accused Riordan of throwing Jackson “under the bus.”15 Tr. 231. The 

evidence therefore indicates that the evaluation forms were amended, if not prepared, after the 

picnic,

16 when a motive to retaliate against Riordan clearly existed.17 When confronted with this 

discrepancy in the evaluations’ completion, Patrick and Jessee both denied any knowledge of 

how the comments referencing the disciplinary measure came to be included in the summary of 

Riordan’s evaluation. Tr. 155, 231-32. This evidence, in the absence of any explanation, supports 

the Judge’s finding that the layoff was used as a pretext to retaliate against Riordan.18

15 It is worth noting that Jessee was in Riordan’s chain of supervision between Patrick, 

with whom Riordan had discussed ventilation, and Jackson, who resented that discussion. 

16 Our dissenting colleague suggests that we have conceded the numerical rankings were 

completed prior to the picnic. Slip op. at 26. We do not make any such concession. 

17 As noted supra, slip op. at 10 n.12, although Jackson’s animus toward Riordan was 

most apparent following the picnic, Riordan’s relationship with his supervisors began 

deteriorating months earlier. Tr. 33. According to Riordan, Jessee and Jackson displayed 

indifference or hostility to the ventilation complaints Riordan began making in late 2012. Tr. 39, 

41-42.

18 Our dissenting colleague rejects the inference that Jessee filled out or altered the form 

after the August 22 picnic as unsupported speculation. See slip op. at 25-28. Jessee testified he 

filled out the evaluation on August 8 or 9 and that he conducted the evaluations alone. Tr. 199. 

Riordan’s evaluation included a warning for standing under unsupported roof. Ex. 3 at 19-20. 

However, it is undisputed that Riordan was not warned about standing under unsupported roof 

until after August 22. Tr. 231. This raises a question as to the accuracy of the August 8/9 

evaluation dates. 

Knox Creek was the only party that could explain how the warning was added to the 

evaluation. It had an opportunity to make that explanation at hearing but failed to do so; Jessee 

and Patrick simply testified that they did not know how or when the warning was added. Tr. 155, 

231-32. The only reasonable conclusion that can be drawn from this record is that the evaluation

was completed or amended after August 22. It is possible that there is some explanation for the

inclusion of the warning that could lead to a different conclusion regarding the timing of the

evaluation. However, that explanation is not in the record. If anything would be speculative, it

would be for the Commission to supply such an alternative explanation now.

38 FMSHRC Page 1926
The record also lacks written documentation to support Jackson’s and Jessee’s testimony 

regarding Riordan. Jackson and Jessee attested that Riordan had serious shortcomings as a 

foreman.19 However, Jackson and Jessee did not document in writing those alleged 

shortcomings, despite company policy requiring a written record of any serious failures by mine 

employees. Tr. 293, 303-09. Riordan’s only written discipline was the warning he received for 

allegedly standing under unsupported roof, and that warning followed shortly on the heels of the 

picnic and Jackson’s confrontation with Riordan. The lack of further written documentation 

undermines Jessee’s and Jackson’s testimony about Riordan’s alleged shortcomings.20 

Similarly, Patrick’s testimony included inconsistencies. Patrick testified at hearing that he 

had previously discussed Riordan’s allegedly subpar performance with Jackson because Patrick 

saw Riordan above ground suspiciously often. Tr. 132-35. During his earlier deposition, 

however, Patrick was unable to recall any significant detail about his conversation with Jackson. 

Tr. 145-48, 164-67. At another point, Patrick testified that he could not recall the picnic 

conversation with Riordan, but nevertheless contended he did not discuss that conversation with 

Jessee or Jackson. Tr. 137-39. Patrick also inconsistently remembered whether he sought to get 

jobs at Paramont for all terminated employees, including Riordan. And although Patrick insisted 

he wanted to retain Knox Creek’s workers, the operator began expanding its workforce in the 

months following Riordan’s December 2013 layoff but did not rehire Riordan. Tr. 163, 237-38, 

273. Patrick’s inconsistent recollections of the picnic conversation, his discussions about 

Riordan, and his efforts to retain miners call into question the veracity of his testimony. 

In contrast to Knox Creek’s witnesses, Mike Wright, Knox Creek’s safety representative, 

considered Riordan a “conscientious” foreman, an “excellent employee” who “gave a hundred 

and ten percent to the mine,” and “a stronger employee” than others at the mine. Sec Ex. 1, at 5-

6, 16, 21, 25. Moreover, Knox Creek continued to allow Riordan to teach safety classes and train 

other foremen, despite alleged concerns about Riordan’s safety record. Knox Creek’s reliance 

 

                                                             19 Jackson claimed that Riordan was a “poor” foreman who hung curtains incorrectly and 

lingered around instead of directing his men. Tr. 286-87, 292, 302-03. Jessee claimed that 

Riordan was one of Knox Creek’s “weaker foremen.” Tr. 203. Jessee added that he had difficulty 

getting Riordan to go underground in the Spring of 2013 because Riordan had back issues and 

desired instead to work on the surface as a safety trainer. Tr. 92, 203-04, 207, 225-26, 244-45. 

20 The dissent criticizes the Judge’s analysis as flawed, asserting that the termination of 

Riordan’s employment was not due to his poor performance, but rather was part of widespread 

layoffs. Slip op. at 22. However, Knox Creek’s case justifying Riordan’s dismissal was based on 

Jessee’s and Jackson’s testimony on direct examination that Riordan was a “poor” and “weak” 

foreman. Tr. 203-04, 207, 286-87. The dissent creates a distinction without a difference. 

Whatever the context for Riordan’s dismissal, that dismissal was improper under the Mine Act if 

it resulted from animus toward Riordan’s protected safety complaints. 

38 FMSHRC Page 1927
upon Riordan to teach miners does not comport with its alleged low regard for Riordan’s work. 21

Given these inconsistencies, it was reasonable for the Judge to doubt Knox Creek’s assertion that 

Riordan was a poor foreman. See 37 FMSHRC 1086-88, 1092, 1098-99, 1105. Accordingly, the 

Judge reasonably inferred that Knox Creek manipulated the layoffs and Riordan’s evaluation to 

retaliate against the miner. 

Knox Creek argues that the Secretary could not prove Jackson had any influence on the 

scoring process. This argument overlooks the difficulty of establishing such matters in this 

context. The Secretary acknowledges that he “couldn’t prove exactly how this happened because 

Jackson, Jessee, and Patrick were each lying, dissembling, or ‘forgetting’ the relevant facts.”22

This is precisely why “the consideration of indirect evidence when examining motivational intent 

necessarily involves the drawing of inferences.” Colorado Lava, Inc., 24 FMSHRC 350, 354 

(Apr. 2002). The Judge reasonably drew the necessary and logical inference that “[w]hile the 

discrimination was not so clumsily or inartfully done so as to leave Jackson’s fingerprints on 

some overt act, it is clear enough from the record testimony that, circumstantially, he was the 

force behind Mr. Riordan’s discharge.” 37 FMSHRC at 1078-79. See Desert Palace, Inc. v. 

Costa, 539 U.S. 90, 99-100 (2003) (recognizing the utility of circumstantial evidence to establish 

motivation in discrimination cases because such evidence “may [] be more certain, satisfying and 

21 Our dissenting colleague takes issue with the Judge’s finding of an inconsistency 

between Knox Creek’s view of Riordan as one of the mine’s poorer foremen and his assignment 

to conduct safety training. Slip op. at 23-24, citing 37 FMSHRC at 1099. However, not only did 

Knox Creek allegedly regard Riordan as one of its poorer foremen, but the operator’s evaluation 

of Riordan specifically gave him a score of “3” for safety, tied for the lowest score among all of 

the foremen at the Tiller mine included in Knox Creek’s evaluation summary. KC Ex. 3. Thus, 

the low regard Knox Creek claims to have had for Riordan as a foreman extended to his concern 

for safety. Clearly, substantial evidence supports the Judge’s finding of an inconsistency. The 

inconsistency may also call into question the specific score Knox Creek gave Riordan for safety. 

22 Our dissenting colleague assigns great significance to the fact that Patrick made the 

decision on which miners were retained. However, his “decision” was grounded on the 

numerical rankings provided by Jesse, who was either evasive or genuinely ignorant about any 

guidance or objective criteria used in calculating the ratings assigned to foremen. This is a classic 

“garbage in, garbage out” scenario. Jessee gave Riordan the lowest evaluation score of all the 

Knox Creek foremen. S. Ex. 3. If Patrick was provided with invalid or improperly skewed data, 

and he based his decision on those data, Patrick’s decision was tainted by the flaws in the 

process. See Turner, 33 FMSHRC at 1067-69. As we have noted, both Jackson and Jessee were 

between Riordan and Patrick in the chain of command, and both participated in what the Judge 

fairly characterized as a retaliatory disciplinary action against Riordan almost immediately after 

Jackson confronted Riordan about his conversation with Patrick at the picnic. 

38 FMSHRC Page 1928
persuasive than direct evidence”); Sec’y of Labor on behalf of Williamson v. Cam Mining, 

LLC, 31 FMSHRC 1085, 1089.23

Our dissenting colleague asserts that “[t]he lack of evidence that Jackson could, or did, 

manipulate the rankings, standing alone, warrants reversal of the Judge’s decision.” Slip op. at 

21. Consistent with this statement, our colleague repeatedly accepts the truthfulness of the 

testimony of Knox Creek’s witnesses.24 However, the Judge generally disbelieved their 

testimony, and, as discussed herein, the Judge’s credibility determinations were supported. 

Substantial evidence is not limited to direct evidence, but includes inferences drawn from 

negative credibility determinations. In Southwest Merchandising Corp. v. N.L.R.B., 53 F.3d 1334 

(D.C. Cir. 1995), for example, the National Labor Relations Board found that a successor 

corporation had committed an unfair labor practice by not hiring workers who had engaged in a 

strike while employed by the predecessor company. Id. at 1342-44. Although Southwest 

vehemently disputed the allegation that it was motivated by anti-union animus, the Board found 

an unfair labor practice based entirely on inferences drawn from finding Southwest’s witnesses 

to be not credible. 53 F.3d at 1340-41. The court concluded that substantial evidence supported 

the NLRB’s inferences drawn from negative credibility determinations. Id. at 1342-44. Here, the 

negative inferences drawn by the Judge after finding Knox Creek’s witnesses to be not credible 

similarly are supported by substantial evidence.25 

Knox Creek demands that its business justification for terminating a miner requires 

acceptance unless it is “plainly incredible or implausible.” Chacon, 3 FMSHRC at 2516. 

However, the Commission has rejected this argument. The language Knox Creek relies on from 

Chacon, 3 FMSHRC at 2516, merely means that if an operator’s explanation is true, a Judge 

                                                             23 The operator further asserts that the closure of two mines and widespread layoffs could 

not reasonably be considered a pretext to fire one employee. KC PDR at 27. Knox Creek’s 

argument, however, misrepresents the Judge’s findings. The Judge did not deem the closure of 

the mines to be a pretext for firing Riordan, but rather determined that the operator manipulated 

its broader layoff process to terminate Riordan’s employment, and that Jackson’s hostility 

influenced the decision-making process. 37 FMSHRC at 1078, 1092. 

24 For example, our colleague states that prior to the August 22 picnic, “evidence shows 

Riordan only engaging in ventilation discussions with Jackson and, occasionally, with Jessee in 

the same manner essentially as one would expect of all underground foremen.” Slip op. at 25. 

This was the characterization by Jessee and Jackson, but it certainly was not how Riordan 

described the conversations. See footnote 12, supra. Our colleague’s description is based on 

testimony that the Judge rejected. 

25 The dissent suggests we are reversing the burden of proof in this matter. Slip op. at 25 

n.12. The dissent, however, fails to recognize how the burdens of proof are allocated under the 

approach set forth in Pasula-Robinette. The burden is upon the Secretary to establish a prima 

facie case, as was done here. The operator may then seek to rebut the prima facie case. Robinette, 

3 FMSHRC at 818 n.20. On rebuttal, the operator bears the burden of proof. The Judge’s 

negative inferences from finding the operator’s witnesses to be not credible support the 

conclusion that Knox Creek’s asserted justification for Riordan’s dismissal was pretextual. 

38 FMSHRC Page 1929
should not reject it because he disagrees with the business decision or considers it unfair. See

Haro, 4 FMSHRC at 1937-38. But that “does not mean that such defenses should be examined 

superficially or be approved automatically once offered.” Id.; see Cumberland River Coal, 712 

F.3d at 320. Before deferring to an operator’s business justifications, a Judge must first

“determine whether they are credible and, if so, whether they would have motivated the

particular operator as claimed.” Haro, 4 FMSHRC at 1938 (emphasis and quotation marks

omitted). That is precisely what the Judge did here. He found that the justifications were not

credible.

As discussed infra, a Judge’s credibility determinations are entitled to great weight. 

Farmer, 14 FMSHRC at 1541; Penn Allegh Coal, 3 FMSHRC at 2770. The operator’s 

complaints about the Judge’s credibility determinations ignore the mutually dependent nature of 

those determinations and the fact that they were partially based on the witnesses’ demeanor. See

Wainwright v. Witt, 469 U.S. 412, 428 (1985) (findings of “demeanor and credibility . . . are 

peculiarly within a trial judge’s province”); Cordero Mining LLC v. Sec’y of Labor ex rel. Clapp,

699 F.3d 1232, 1236 (10th Cir. 2012). Evaluation of the demeanor of witnesses is an essential 

element of a judge’s credibility determinations. For example, here the Judge noted that Jessee, 

when asked to explain a discrepancy between his trial testimony and his deposition testimony, 

looked over at his attorney to seek assistance in answering. 37 FMSHRC 1095; Tr. 236.26 

Accordingly, we defer to the Judge’s credibility determinations and conclude that his 

findings of pretext are supported by substantial evidence. 

26 Knox Creek’s claim that Riordan testified inconsistently about the timing of the “under 

the bus” conversation is exaggerated. Although Riordan first said the conversation happened the 

day after the picnic, he later clarified – without prompting – that the conversation happened, 

“either the following day or the next time I encountered [Jackson], the next morning I 

encountered him.” Tr. 44-45, 85. 

38 FMSHRC Page 1930
III. 

Conclusion 

For the reasons stated above, we affirm the Judge’s decision that Knox Creek 

discriminated against Riordan because it is supported by substantial evidence under a correct 

interpretation of the Mine Act. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner 

38 FMSHRC Page 1931
Commissioner Althen, dissenting: 

The Judge’s and majority’s decision in this case rests upon wholly unfounded speculation 

rather than substantial evidence. I respectfully dissent. 

I. 

Analysis 

Ronald Patrick, General Manager for operations of Dickenson Russell Coal Company 

and Knox Creek Coal Company, testified that he alone made the final decision to layoff section 

foreman Charles Riordan. Patrick testified he made that decision based upon the numerical 

rankings resulting from evaluations of foremen made by mine superintendents. Tr. 126. 

Therefore, there were two possible routes to prove that protected activity motivated, at least in 

part, the layoff of Riordan by Patrick.1

If Patrick laid off Riordan based upon animus by Patrick himself to protected activity by 

Riordan, then discrimination occurred. The Judge, however, does not find that Patrick himself 

chose to discriminate against Riordan. Despite several adverse credibility comments regarding 

Patrick,2 the Judge does not find that Patrick lied in testifying that he was the person to decide 

which four foremen to lay off as a result of the two mine consolidations and does not find that 

1

 The operator raised an affirmative defense that, if Riordan’s layoff was motivated in 

any part by protected activity, it would have occurred in any event based on unprotected 

activities alone — that is, the shutdown of Laurel Mountain and consequent layoffs. As I view 

the case, however, whether examined from the standpoint of the second part of the Pasula test or 

from the view of an affirmative defense, the case turns upon one issue — whether protected 

activity, standing alone, was the motive for the layoff of Riordan. For that reason, I do not find it 

necessary or desirable to deal with the operator’s defense based upon the decisions in Gross v. 

FBL Financial Services, Inc., 557 U.S. 167 (2009), or University of Texas Southwestern Medical 

Center v. Nassar, 133 S. Ct. 2517, 2533 (2013). I express no opinion regarding the impact of 

those decisions upon our discrimination jurisprudence. The majority agrees that consideration of 

those cases is not necessary for adjudication of this case. Slip op. at 8 n. 10 (“Given the Judge’s 

findings, the result of this case would not change under the standard articulated in Nassar and 

Gross.”). Nonetheless, it discusses the cases in a brief passage of dicta. Slip op. at 7-8. I look 

forward to a future case in which the Commission will have the opportunity to consider the issue 

when it is outcome determinative. 

2

 The Judge found it not credible that Patrick did not recall the brief picnic conversation 

with several miners including Riordan and, to some extent, that finding carries throughout his 

decision. 37 FMSHRC at 1086. The Judge does not identify any motive Patrick would have had 

for not recalling that conversation. Given Patrick accepted the occurrence of the conversation 

(Tr. 138), it would have been better for the operator if Patrick remembered the conversation in 

exactly the detail as Riordan. There is no evidence of discrimination in the conversation. Instead, 

the conversation shows the most senior manager desirous of, and receptive to, comments and 

advice from a number of miners, including Riordan. 

38 FMSHRC Page 1932
Patrick himself had animus against, or discriminated against, Riordan because of protected 

activities. 

 In finding discrimination, the Judge expressly identifies the culprit as Mark Jackson, an 

employee two levels beneath Patrick and with respect to whom there is no evidence of 

participation in the rankings leading to the layoff decisions. The Judge states: 

The issue is whether Riordan was discriminated against for making 

the safety complaints, which specifically came to rest on Mr. 

Jackson’s doorstep, and about which Mr. Jackson took umbrage. 

While the discrimination was not so clumsily or inartfully done so 

as to leave Jackson’s fingerprints on some overt act, it is clear 

enough from the record testimony that, circumstantially, he was

the force behind Mr. Riordan’s discharge. 

37 FMSHRC at 1078-79. 

Indeed, the Judge rests the outcome of the case squarely on Jackson’s reaction to the brief 

conversation in late August, in which Riordan and other employees amicably discussed 

ventilation with Patrick: 

As noted, the Court agrees that Riordan’s job loss particularly

came about because of Mr. Jackson’s animus towards Riordan for 

his remarks on that subject to mine president Ron Patrick and not 

because he was simply the “unfortunate” recipient of a lower 

evaluation score. 

Id. at 1092.3

 Riordan’s testimony does not provide any evidence of manipulation of the ranking 

system. The Judge drew an outcome determinative inference of discrimination based upon 

circumstantial evidence drawn from testimony of operator employees, none of whom testified in 

any manner that the operator manipulated the rankings or discriminated against Riordan. 

                                                             3

 The Judge, in his “overview” of his findings, further stresses Jackson as responsible for 

the rankings manipulation, stating that “Riordan’s candor with the president did not sit well with 

his immediate supervisor, Mark Jackson.” 37 FMSHRC at 1075. The majority asserts that the 

Judge based his decision upon an entire course of conduct. Slip op. at 10 n.12. That is not what 

the Judge stated. Again, he said, “the Court agrees that Riordan’s job loss particularly came 

about because of Mr. Jackson’s animus towards Riordan for his remarks on that subject to mine 

president Ron Patrick.” 37 FMSHRC at 1092. Ironically, the majority’s footnote cites one 

conversation between Jackson and Riordan. Thus, the majority, along with the Judge, points at 

Jackson as causing manipulation of the rankings although neither is able to cite any evidence of 

such manipulation of previously completed rankings. Consequently, they expose their opinion to 

the critical flaw – there is an absence of any, let alone substantial, evidence of manipulation of 

rankings by Jackson. 

38 FMSHRC Page 1933
The fatal problem with the Judge’s decision, and the majority opinion, is that the 

evidence does not support the outcome determinative inference. It should be enough to reverse 

the Judge’s unsupported inference to point out that the Judge bases his decision upon the finding 

that “Riordan’s job loss particularly came about because of Mr. Jackson’s animus towards 

Riordan for his remarks.” There is not a speck, scintilla, or smidgen of evidence that Jackson, 

one of many general mine foremen, had or could have had any role in rankings that were 

compiled before the company picnic, or that he had any ability or made any effort to manipulate 

those already made rankings after the picnic. In reaching his circumstantial inference, the Judge 

writes a discursive opinion mostly citing irrelevancies to find that Jackson, an employee not 

involved in human relations and two steps below Patrick, took aim at Riordan due to a three-tofive minute conversation between Riordan and other miners with Patrick in late August and in 

some unexplained way manipulated a major workforce consolidation to discriminate against 

Riordan.4

 

The lack of evidence that Jackson could, or did, manipulate the rankings, standing alone, 

warrants reversal of the Judge’s decision. However, it is useful to cut the many disparate threads 

of the Judge’s decision.5

First, the Judge notes, but does not discuss, the testimony that the miner who replaced 

Riordan scored far above him on the ranking system. 37 FMSHRC at 1090. In fact, that miner 

had to take a demotion from general mine foreman to section foreman. Tr. 131. The Judge 

further notes testimony that Patrick gave Knox Creek Human Resources a list of high performers 

at the Cherokee, Roaring Fork, and Laurel Mountain mines with whom Knox Creek would like 

4 The majority asserts that the dissent does not accept the Judge’s credibility findings. 

Slip op. at 11 n.13. In fact, the dissent rests upon the absence of substantial evidence that 

Jackson, directly or indirectly, manipulated the rankings and thus that protected activity 

motivated one particular layoff made as part of a massive realignment and reduction in force. 

There simply is not substantial evidence that protected activity motivated Riordan’s layoff. 

Further, neither the Judge nor the majority explain the anomaly of conspirators, determined to 

manipulate rankings to make sure Riordan was laid off, only manipulating the rankings to the 

extent that Riordan was fifth from the bottom of the ranked foremen, a position that did not 

assure that he would be reached in the layoff. 

5

 Riordan was the first witness. 37 FMSHRC at 1075. The Judge enthusiastically praised 

Riordan’s testimony immediately after he left the witness stand gushing, “you served yourself 

well” and “I want to compliment you on your demeanor . . . you did yourself a service by the 

way you maintained a calm demeanor, answered questions, I felt honestly, and so that's a 

compliment to you.” Tr. 100-01. This praise contrasts with the Judge’s treatment of the operator 

witnesses, whom he mocks with the contrived, flippant terms “recall-itis” and “no idea-it is.” Id. 

at 1092-94 & nn.13-15, 1098. The Judge further explicitly “discounted” testimony of operator 

witnesses solely because of the form of questions, even though the Judge never intervened and 

opposing counsel, with rare exception, did not object to the form of the questions. Id. at 1075 

n.5. There is no reason not to think the substance of the testimony would have differed had a

more time-consuming approach been followed in this bench hearing. Further, all of these

operator witnesses were subject to cross-examination.

38 FMSHRC Page 1934
to fill vacancies. 37 FMSHRC at 1089 n.9. Obviously, the Judge could not and did not find that a 

desire to retain the best workers would be a basis for finding unlawful discrimination in the 

layoff of less proficient employees. No one asserts that the general mine foreman who replaced 

Riordan suffered such demotion due to manipulated rankings. That miner suffered an adverse job 

action because of workforce consolidation and mine closures. None of this supports 

manipulation. 

 Second, the Judge writes at length about Riordan’s job performance as if Riordan’s layoff 

resulted from unsatisfactory performance; the Judge finds that the evidence does not support a 

conclusion that Riordan was an unsatisfactory foreman. Id. at 1097-99. This extensive discussion 

of whether Riordan was a competent foreman ignores the fact that the operator did not assert that 

Riordan was laid off for cause or for poor performance. The testimony, including Riordan’s 

testimony, is consistent that the operator laid off Riordan because of a reduction in force in 

which four foremen and 129 other employees lost their positions, resulting from the 

consolidation of workforces resulting from the closure of two mines. There is no evidence, for 

example, that the three other foremen who were laid off as a result of the consolidations were not 

competent foremen. There is no evidence that, absent the consolidations, any of the four foremen 

would have been discharged for cause. By discussing the case as if it were a for-cause dismissal, 

the Judge miscasts the discussion and decision. 

 In terms of the rankings used for the necessary reduction in force, Riordan did not 

produce any evidence and in fact did not even claim that the points he received in the rankings 

were unjust — that is, that his ranking points on any specific performance characteristics were 

unfair, or that any other foreman received scores higher than deserved. By casting the layoff as if 

it were a dismissal for cause, the Judge holds the layoff to an entirely different standard than a 

necessary workforce contraction due to market or mining conditions, in which all foremen were 

evaluated and the best retained, albeit some with demotions. 

 Third, there is no evidence whatsoever that the ranking system or rankings themselves 

were unfair. The evidence establishes that, in planning for a substantial reduction in force, the 

operator asked superintendents to rank foremen under their supervision. Four separate 

superintendents individually ranked the foremen under their supervision by assigning each of 

them 1 to 5 points to each factor in a list of 15 specific and easily understood characteristics of 

performance. 37 FMSHRC at 1088; S. Ex. 3. The four superintendents assigned points to a total 

of 24 foremen based upon those criteria. Id.

6

 Further, the ranking system added points for 

certifications. Riordan was the principal beneficiary of such additions – a fact that is, of course, 

inconsistent with manipulation of the system to dismiss Riordan. Riordan did not finish last – 

that is, in a position assuring layoff. He finished fifth from the bottom in rankings. That system 

and result does not speak to a discharge for cause; it speaks to an objective and business-like 

approach to keeping the best foremen. No evidence even suggests that Riordan was a superior 

                                                             6

 The criteria were: safety, policy and procedure, attitude, right thing, cooperative, 

observations, knowledge, ability, reduce cost, results based, quick learner, dependable, adapt to 

change, proactive, and problem solver. S. Ex. 3. Additionally, extra points were awarded for 

certifications, thereby giving Riordan an extra 5 points. Id. 

38 FMSHRC Page 1935
performer to any foreman ranked above him. Indeed, Riordan had expressed the desire to leave 

the position as an underground foreman and work on the surface.

Although the Judge writes in terms of the reduction in force as a pretext for laying off 

Riordan, he does not make the patently absurd suggestion that the operator closed two mines and 

laid off 133 employees as a pretext for the dismissal of Riordan. The Judge, therefore, must 

believe that the operator used the closures as a convenient opportunity to layoff Riordan. 

However, although Riordan claims, and the Judge implicitly found, that the rankings were 

manipulated in some way, Riordan does not contest the fairness of his score as compared to other 

foremen. There simply is no evidence that Superintendent Scott Jessee ranked Riordan unfairly 

as compared to other foremen under his supervision. 

Fourth, the Judge finds it unbelievable that the operator did not explain the scoring 

process to the mine superintendents. 37 FMSHRC at 1091 n.10. However, as noted immediately 

above, superintendents entered 1 to 5 points based upon objective and easily understood 

characteristics or reasons for compilation of the rankings through assignment of points to each 

specific characteristic. A simple review of the criteria (listed supra, note 6) demonstrates they are 

self-explanatory. Further, a lack of explanation to superintendents had no particularized effect on 

Riordan. The state of the superintendents’ knowledge applied equally to the ranking of all 

foremen by their respective superintendents and is irrelevant to Riordan being ranked fifth from 

the bottom. 

Fifth, the Judge found it unbelievable that senior management did not explicitly inform 

superintendents of the reason for obtaining the rankings. 37 FMSHRC at 1094. He states this 

disbelief without identifying any evidence, testimony, or expertise on his part for such disbelief. 

It seems as likely that an operator would not announce to any persons other those to whom it was 

necessary that it was planning/considering closure of two mines in advance of the actual decision 

and a planned announcement. The Judge simply expresses his uninformed, non-expert opinion to 

take what amounts to judicial notice that an operator would explicitly identify plans to close 

mines in advance of such announcement becoming necessary. In any event, as with the point 

directly above, the absence of explanation would apply equally to all four superintendents who 

ranked their foremen. The Judge’s disbelief is irrelevant to whether the operator manipulated the 

rankings and, therefore, is irrelevant to the claim made in this case.7

 

Sixth, the Judge states that the ranking of foremen process was malleable and allowed 

manipulation to achieve desired results – another merely conclusory statement. See 37 FMSHRC 

at 1093, 1105. In reality, of course, there is no evidence of manipulation to achieve 

predetermined or prejudicial results. This case involves one and only one person, Riordan. Other 

than Riordan’s claim, there is not any other claim that any other foreman was favored or 

disfavored in the ranking system. The Judge cites no evidence of manipulation other than his 

own conclusory speculation that somehow Jackson caused the layoff of Riordan. However, no 

one, particularly none of the three foremen ranked lower than Riordan and, therefore, also laid 

off, has suggested how the process was “manipulated” to achieve dismissal of pre-selected 

7

 Notably, the Judge does not find that Jessee had any discriminatory motive or intent 

when he ranked the foremen under his supervision in early August. 

38 FMSHRC Page 1936
foremen. Here, we have one, explained exception to use of the numerical rankings. That does not 

constitute substantial evidence of nefarious malleability. 

Seventh, the Judge finds it unbelievable that an operator would assign an inferior foreman 

to teach safety. 37 FMSHRC at 1099. Once again, the Judge just states a conclusion not 

supported by evidence or expertise and misses the point that the operator did not assert Riordan 

was an incapable foreman who would have been discharged absent the consolidations. Further, 

the shortcomings that witnesses describe in Jackson’s performance did not have anything to do 

with knowledge of safe operating practices. No relationship may be drawn fairly between his 

performance as a production foreman and his ability to teach safety. It is not libelous to suggest 

that many a scholarly law professor or learned judge might be a poorly producing legal 

practitioner.8

A foreman with good knowledge of safety, reasonable communication skills, desire to 

work outside, and inferior production capabilities would seem an excellent candidate to teach 

safety. In any event, the Judge again simply engages in irrelevant speculation that has no 

evidentiary value to any conclusion regarding motivation for the layoff.9

 The Judge makes no 

 

                                                             8

 The Judge finds fault with Patrick’s testimony stating that Patrick was not entirely clear 

in recalling whether he asked a related company to try to find jobs for laid off employees only 

after the first layoff of 40 employees resulting from closure of the Roaring Forks mine or also 

after the closure of Laurel Mountain and a resultant 93 additional layoffs. 37 FMSHRC at 1087-

88. The Judge never draws any connection between asking a related company to see if it could 

hire some of the 133 employees laid off as a result of the two consolidations and discrimination 

against Riordan. I do not suppose the Judge could be implying that perhaps Patrick reached out 

after the closure of Roaring Forks and loss of 40 jobs but did not reach out after the closure of 

Laurel Mountain with a loss of 93 jobs because reaching out after the second consolidation might 

have helped Riordan — one of the 93 laid off employees. The more important point is that, if 

there were a conspiracy to layoff Riordan, the conspirators skipped the first opportunity — the 

layoffs associated with the closure of Roaring Fork. In sum, the Judge did not connect how any 

confusion over whether Patrick asked a related entity to try to find jobs for the 40 employees laid 

off because of the Roaring Fork closure is relevant to Riordan’s discrimination claim. 

9

 The Judge’s opinion places weight on the absence of any written reprimands of Riordan 

other than the one for violating the mine’s roof control plan. 37 FMSRHC at 1105. Of course, 

this continues to miss the point that the operator did not discharge Riordan for poor performance 

or misconduct. Undocumented deficiencies might well explain his placement fifth from the 

bottom in the assessment of performance. 

38 FMSHRC Page 1937
mention in his analysis of the fact that three other foremen were ranked lower than Riordan and 

were also laid off in the consolidations. None of them filed discrimination complaints.10

Eighth, the evidence testimony and exhibits demonstrate that Superintendent Jessee 

ranked the foremen under his supervision in early August. Tr. 260; S. Ex. 3. Prior to that time, 

evidence shows Riordan only engaging in ventilation discussions with Jackson and, occasionally, 

with Jessee in the same manner essentially as one would expect of all underground foremen. 

Obviously, discussions between mine foremen and a general mine foreman are routine and 

regularly occurring. Wright Dep. Tr. 10, 32.11 The Judge does not cite such conversations as the 

reason for his inferential decision. Instead, he explicitly finds the motivation for his finding of 

manipulation of rankings to layoff Riordan arose from the three-to-five minute conversation at 

the company picnic in late August. Essentially, the Judge hangs his speculative inference on that 

brief conversation in which Patrick, the senior mine official and layoff decision maker, 

encouraged communication. 

There is not a scintilla of evidence that anyone altered the rankings to reduce Riordan’s 

ranking points in any way after the picnic. The Judge below does not even deal with that 

10 Among the trivialities relied upon by the majority to uphold the Judge’s decision is the 

fact that the layoff occurred four months after the picnic. Slip op. at 11. Of course, the majority 

ignores the inconvenient fact that there was a layoff soon after the picnic that Riordan survived 

so that the purported animus was not strong enough to cause quick action but apparently in 

minds of the majority was strong enough to be a slow burn. They assert this is a factor of “close 

in time” to the picnic. For support, they cite two cases involving individual adverse action 

against specific individuals. Obviously, those cases provide no support for that proposition when 

the layoffs were part of a major contraction resulting in displacement of 133 employees. 

11 The majority states that only Jackson and Jessee gave such testimony. To the contrary, 

the testimony of the Secretary and Riordan’s deposition witness Mike Wright fully supports the 

routine nature of such discussions. Mr. Wright discussed his conversations with virtually all 

section foremen about ventilation. Those conversations were along the same lines and in the 

same manner as his talks with Riordan. Wright Dep. Tr. 33, 34. Of course, Wright was testifying 

only about his conversations with the section foremen, but there is no reason to believe other 

foremen talked to Wright in the same manner as Riordan but acted differently in talking with 

Jackson or Jessee. Further, although Commissioners are lawyers not miners, we have sufficient 

familiarity with mining to realize that section foremen and general mine foremen must regularly 

discuss ventilation. It will be a sad day for mining and miners if section foremen are not 

routinely discussing ventilation issues with the general mine foreman. Nonetheless, here, the 

Judge bases his decision upon a conversation among Riordan, several other miners, and Patrick 

in which Riordan made a specific suggestion related to ventilation after another miner raised the 

subject. The Judge found Riordan’s immediate supervisor, Jackson, became angry because 

Riordan made a safety recommendation to Patrick, and then became a driving force behind 

Riordan’s layoff. 37 FMSHRC at 1086-87. For that reason, I will accept that protected activity 

occurred in this specific case during the brief conversation upon which the Judge bases his 

decision. 

38 FMSHRC Page 1938
dilemma. He just infers there must have been manipulation stemming from the remark by 

Jackson. Yet, there is no evidence, none whatsoever, regarding how Jackson could have caused a 

change in a previously submitted ranking for Riordan.12

To their intellectual credit, the majority gamely attempts to deal with this fatal flaw. Slip 

op. at 13. Its effort, however, ends up only completing the trilogy of concessions that undercut its 

decision. It asserts that “evaluations” were “amended” after the picnic. That phrasing is 

important. In the context used by the majority, the term “evaluations” means follow-up notes 

made on a spreadsheet after Jessee entered the rankings in early August. The majority’s focus on 

“evaluations” – that is, not the rankings that determined layoffs — constitutes an implicit 

concession that the actual rankings were made before the picnic and not changed afterwards. No 

witness suggested that any follow-up notes had anything to do with Patrick’s decisions. Further, 

there is no evidence that the “evaluations” were “amended.” Someone simply reviewed the 

evaluations and made supplemental notes as is normal for reductions in force. The case does not 

turn on when supplemental notes to the evaluations were made but rather upon the numerical 

rankings that determined the layoffs. Clearly, Jessee entered those rankings before the picnic. 

                                                             12 The majority suggests that the Judge could infer unlawful discrimination solely on the 

basis that he found all operator witnesses were lying. Slip op. at 16. This assertion amounts to a 

reversal of the burden of proof in which a Judge may base a discrimination finding solely upon 

an operator’s alleged failure to prove a negative — that is, that the operator did not prove it did 

not discriminate against a claimant. The Secretary and Complainant bear the burden of 

establishing protected activity and that such protected activity motivated at least in part an 

adverse action. Sec’y on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2797-

2800 (October 1980), rev'd on other grounds sub nom. Consolidation Coal Co. v. Marshall, 663 

F.2d 1211 (3rd Cir. 1981). The United States Court of Appeals expressed an identical burden in 

National Labor Relations Board cases clearly when it said that “[T]he General Counsel must 

make a prima facie showing sufficient to support an inference that the applicant's protected 

conduct was a ‘motivating factor’ in the employer's decision.” Cobb Mechanical Contractors, 

Inc. v. NLRB, 295 F.3d 1370, 1375 (D.C. Cir. 2002). Because substantial evidence does not 

support a finding that protected activity was a motivating factor for the layoff, the Secretary and 

Complainant did not carry the initial burden of establishing a prima facie case. 

 Whether a sufficient prima facie case has been established is, of course, a question of 

substantial evidence. The problem for the majority in this case is that there is no substantial 

evidence that the “protected activity” of Riordan’s cordial chat along with several other miners 

with Patrick at a company picnic motivated Jessee’s ranking made before the picnic or Patrick’s 

decision based upon the rankings. The majority posits that the operator waited, apparently 

patiently, for a massive realignment (even skipping a first round of layoffs) to layoff Riordan 

because Jackson was mad at him. However, they do not demonstrate how the Secretary or 

claimant carried their burden of proof. Having admitted the rankings were the basis of the layoff 

and that there is no evidence that Jessee ranked foremen after the picnic, the majority shifts the 

burden of proof to the operator to show it did not discriminate. 

38 FMSHRC Page 1939
As noted, the majority’s concession on this point is the final concession necessary to 

complete the trilogy: Patrick used the rankings to determine layoffs; the rankings predate the 

picnic; and, no evidence shows Jackson manipulating the rankings made before the picnic. With 

those concessions, the raison d’etre of the majority decision collapses.13 

Ninth, despite discovery, the Secretary and Riordan did not introduce any evidence of 

any change in the rankings between the assignment of points by the four superintendents in early 

August and the layoffs in October and December. Further, there is no evidence that Jessee had 

any idea of the points being assigned other foremen by their respective superintendents. 

Additionally, there is no evidence offered as to how Jackson, identified by Judge as the 

progenitor of the discrimination, could have achieved such manipulation.14

Tenth, the majority observes, “pretext may be found . . . where the asserted justification is 

weak, implausible, or out of line with the operator’s normal business practices.” Sec’y of Labor 

on behalf of Price v. Jim Walter Res., Inc., 12 FMSHRC 1521, 1534 (Aug. 1990) (citing Haro, 4 

FMSHRC at 1937-38). Here, the asserted reason for the layoff is certainly not weak, implausible, 

or out of line with the operator’s normal business practices. 

The reason for the layoff flows from a normal business practice. Closure of two mines 

resulted in consolidation of workforces. The operator utilized a system to retain the better 

performing employees. One can only imagine the Commission’s reaction and the number of 

13 By footnote, the majority observes that among marked follow-up entries on the 

spreadsheet of employee evaluations (S. Ex. 3), there is a notation of discipline of Riordan for 

standing under unsupported roof. Slip op. at 13 n.18. However, follow-up notations did not 

appear only with respect to Riordan. Notes were made for many if not all other foremen. There is 

no evidence that the follow-up notes that were made with respect to the foremen being reviewed 

were made by the superintendents, who did rankings. Of course, if Jessee did not enter the notes 

personally, they are not evidence for when Jessee did his rankings and create no suspicion let 

alone proof of a post-picnic change in rankings. The Secretary’s Exhibit 3 shows the date on 

which each of the four different superintendents entered their rankings. The exhibit shows that 

Superintendents Johnson, Ohlson, and Clevinger entered their rankings on August 8 and 

Superintendent Jessee entered his on August 9 — that is, weeks before the picnic. No evidence 

shows a later change to rankings as the majority effectively concedes by focusing on other 

entries on the evaluation forms. The follow-up entries on the ranked foremen are indicia of an 

ordinary reduction in force review, rather than any broad “manipulation” of the ranking point 

scores used by Patrick. 

14 The Judge and majority hint at something nefarious in Patrick’s decision to keep a 

foreman who scored one point lower than Riordan because that foreman was a member of a mine 

rescue team. They assert that another arrangement could have been made to keep an active mine 

rescue team. 37 FMSHRC at 1090-91 & n.10; slip op. at 11. This is nothing more than second 

guessing a business judgment by Patrick that he wanted to keep an existing mine rescue team 

together rather than substitute personnel. Certainly, it does not show discrimination and is 

inconsistent with Patrick’s favorable conversation with miners during the picnic and the Judge’s 

focus on Jackson as the generator of some speculative manipulation. 

38 FMSHRC Page 1940
discrimination cases that employees would file if an operator arbitrarily picked and chose among 

foremen without any means for an objective evaluation. The practice in this case is not out of 

line with normal business practices. Instead, it is fully in line with normal and expected business 

practices. It is a lawful and typical business practice to evaluate employees based upon 

performance in a reduction in force resulting from consolidation of operations or reduction in 

production. 

Eleventh, as stated at the outset, the absolute absence of any evidence that Jackson, an 

underground foreman, could or did lead a conspiracy involving multiple managers, standing 

alone, demonstrates the erroneousness of the Judge’s decision. According to the Judge, the 

generator of the “conspiracy” to manipulate the rankings was Mark Jackson. For the Judge, the 

specific animus resulting in discrimination against Riordan sprang from the heart and mind of 

Jackson when he, according to the Judge’s findings, learned that Riordan and others spoke with 

Patrick about ventilation at the company picnic during the prior week. However, there is no 

evidence (none whatsoever) that Jackson was involved in ranking the employees by Jessee. 

There is no evidence (none whatsoever) that Jackson had anything to do with the many personnel 

decisions arising from the closure of two mines and the layoff of 133 workers. There is no 

evidence (none whatsoever) that Jackson had any relationship with individuals or access to 

records that would have permitted him, or others acting on his behalf, to manipulate rankings. In 

short, there is no evidence (none whatsoever) that Jackson played any role in compiling the 

rankings or in Patrick’s consideration of the rankings. Yet, the Judge assigns Jackson the role as 

the generator of manipulation. 

The majority strains to support an inference refuted by the Secretary’s own exhibit. In 

doing so, the majority goes beyond reviewing the Judge’s decision and the law. To infer that 

Jackson caused the manipulation of the rankings, one must simply blindly assert that Jackson 

somehow played a role in manipulating already prepared rankings and that all operator witnesses 

either had no knowledge of or lied about such manipulation. The finding that Jackson 

precipitated a manipulation in ranking is a bald and unsupported conclusory statement without 

evidentiary support or foundation. 

II. 

Conclusion 

The Judge’s speculative decision rests upon two unsupportable bases. First, the Judge 

evaluates the case as if this were a discharge for cause. In fact, of course, the operator laid off 

133 employees in a reduction in force. The operator laid off four foremen based upon rankings 

calculated from 15 specific performance criteria entered by multiple superintendents and 

involving multiple mines. 

Second, the Judge sums up as the rationale for his decision, “[w]hile the discrimination 

was not so clumsily or inartfully done so as to leave Jackson’s fingerprints on some overt act, it 

is clear enough from the record testimony that, circumstantially, he was the force behind Mr. 

Riordan’s discharge.” 37 FMSHRC at 1078-79. This is equivalent to saying “I know there is no 

evidence that Jackson, a mid-level employee, had anything whatsoever to do with the rankings or 

38 FMSHRC Page 1941
the layoffs. However, I think he said something mean to Riordan so I find Jackson managed to 

manipulate the operator’s reduction in force rankings to achieve Riordan’s layoff.” That is an 

unfounded emotional sentiment; it is not an objective or judicious decision. The majority offers no 

reasonable basis for endorsing his sentiment. I respectfully dissent. 

/s/ William I. Althen 

William I. Althen, Commissioner 

38 FMSHRC Page 1942
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710 

August 25, 2016 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

Docket No. KENT 2013-211 

v. 

KENAMERICAN RESOURCES, INC. 

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

DECISION 

BY: Jordan, Chairman; Cohen and Nakamura, Commissioners 

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

30 U.S.C. § 801 et seq. (2012) (“Mine Act” or “Act”), involves a single citation issued to 

KenAmerican Resources, Inc. (“KenAmerican”) by the Department of Labor’s Mine Safety and 

Health Administration (“MSHA”). The citation alleges that a communication during a mine 

inspection, in which a caller asked if there was “company outside” and the dispatcher responded 

“yeah, I think there is,” conveyed advance notice of an inspection, in violation of section 103(a) 

of the Act.1 37 FMSHRC 1809, 1811 (Aug. 2015) (ALJ). 

KenAmerican filed a motion for summary decision, which the Secretary opposed. The 

Judge found that there were no genuine disputes of material fact regarding the issue of whether a 

violation occurred, that the cited communication was vague and ambiguous, and that he was 

unable to conclude that it conveyed prohibited advance notice of an inspection. Accordingly, he 

granted KenAmerican’s motion and vacated the citation. Id. at 1811-12. The Secretary seeks 

review of the Judge’s grant of summary decision. 

We conclude that the Judge erred in granting KenAmerican’s motion. When the record is 

viewed in the light most favorable to the Secretary (the party opposing summary decision), an 

inference could reasonably be drawn that the communication was meant to convey advance 

notice of an inspection. Accordingly, we vacate the Judge’s grant of summary decision and 

remand the matter for further proceedings.

1

 Section 103(a) states in relevant part that “no advance notice of an inspection shall be 

provided to any person.” 30 U.S.C. § 813(a). The Act does permit advance notice for certain 

activities, such as investigations to gather or information on health and safety conditions, or 

inspections in response to imminent danger complaints. See 30 U.S.C. §§ 813(a), 813(g)(1). 

38 FMSHRC Page 1943
I. 

Factual and Procedural Background 

The following facts are undisputed. MSHA Inspector Doyle Sparks and six others 

traveled to KenAmerican’s Paradise No. 9 Mine, to conduct an investigation in response to a 

hazard complaint. Before traveling underground, the inspectors took control of the mine’s 

communication system. While monitoring the system, approximately 30-35 minutes after his 

arrival at the mine, Sparks overheard a call from underground. The caller asked if there was 

“company outside,” and the dispatcher responded “yeah, I think there is.” 2 Sparks asked who 

was on the line and received no response.3 He determined that the communication was advance 

notice of an inspection and issued Citation No. 8502992, which states that “[d]uring a Hazard 

Compliant [sic] inspection conducted on 04/20/2012 . . . mine personnel provided advance notice 

to miners underground that MSHA inspectors were on mine property.” 

KenAmerican contested the citation before the Commission and filed a motion for 

summary decision, requesting that the citation be vacated because the undisputed material facts 

“cannot and do not amount to a violation.” KenAmerican argued that the citation fails on its face 

to allege advance notice of an inspection because it alleges only that a communication “during” 

an inspection conveyed notice that inspectors were “on mine property.” KenAmerican also 

noted that inspectors can be on-site for many reasons, including some for which advance notice 

is permitted.4

 In addition, KenAmerican argued that the cited communications were general 

statements which did not indicate that inspectors were about to inspect the mine. Therefore the 

Secretary had no evidence to support the violation, and KenAmerican was entitled to summary 

decision. 

KenAmerican also claimed that enforcing section 103(a) in these circumstances would 

constitute a content-based restriction of free speech, in violation of the First Amendment. 

KenAmerican stated that section 103(a) should be narrowly tailored to prohibit only 

communications that contain specific content concerning an inspection, and intentionally or 

knowingly convey advance notice. 

2

 KenAmerican accepts the dispatcher’s alleged response for purposes of summary 

decision, but notes that it will dispute the content if a hearing becomes necessary. 

3

 This fact only appears in the Secretary’s version of events. Resp. to Mot., Ex. C. 

However, it has not been contested by KenAmerican, and in the summary decision context we 

look at the record in the light most favorable to the non-moving party. See, e.g., Poller v. 

Columbia Broadcasting Sys., Inc., 368 U.S. 464, 473 (1962). Accordingly, for these purposes, 

we accept the fact as true and undisputed. 

4

 KenAmerican specifically noted that advance notice is encouraged when dealing with a 

hazard complaint involving an imminent danger. 30 U.S.C. § 813(g)(1). KenAmerican then 

argued that, because the inspectors were investigating a hazard complaint, the inspection at issue 

was exempt from the prohibition on advance notice. We find that the Judge properly rejected 

this argument, as there is no indication that an imminent danger was present. 37 FMSHRC at 

1811. 

38 FMSHRC Page 1944
The Secretary filed an opposition, stating that KenAmerican was not entitled to summary 

decision because “KenAmerican violated section 103(a) of the Mine Act and . . . there are 

genuine issues as to the material facts relating to the gravity and negligence of the citation 

issued.” Resp. to Mot. at 3-4. The Secretary did not specifically identify any disputed facts, or 

offer a theory as to why the cited language conveyed prohibited advance notice of an inspection. 

The Secretary did restate the undisputed facts – that while inspectors were preparing to begin an 

inspection, a miner called to inquire if there was “company outside,” and was told that there was. 

Id. at 4. The Secretary also noted that the inspection at issue constituted direct enforcement 

activity which included an impact inspection, and was therefore not exempt from the prohibition 

on advance notice. Id. at 5. As for the First Amendment claim, the Secretary noted that no court 

has ever found section 103(a) unconstitutional, and permitting advance notice would interfere 

with enforcement of the Act. Id. 

In addressing KenAmerican’s motion, the Judge first found that there were no genuine 

issues of material fact with respect to the existence of the violation, because the content of the 

cited communication was undisputed, and the Secretary only alleged disputes as to gravity and 

negligence. 37 FMSHRC at 1811. He then found that the undisputed statements were 

ambiguous and vague, and was “unable to conclude as a matter of law” that the statements 

conveyed prohibited advance notice. Id. The Judge stated that where (as here) the non-moving 

party would have the ultimate burden of proof at trial, summary decision is appropriate where the 

non-movant is unable to meet its ultimate burden. Id. at 1811 n.2. He found that the Secretary 

had failed to “marshal evidence that would at least support a reasonable inference” that the cited 

communications conveyed advance warning, and therefore concluded that a trial would serve no 

purpose, and that KenAmerican was entitled to summary decision as a matter of law. Id. 

Accordingly, he granted the motion for summary decision and vacated the citation. The Judge 

did not reach KenAmerican’s First Amendment claim. 

On appeal, the Secretary argues that the Judge erred by granting KenAmerican’s motion 

for summary decision. Specifically, the Secretary states that the Judge erred by: interpreting 

section 103(a) to exclude advance notice conveyed through ambiguous language; failing to make 

an inference in the non-movant’s favor regarding the intent of the cited communication; and 

finding insufficient evidence in the record to support a reasonable inference of advance notice. 

Ultimately, the Secretary argues that the Judge “should have . . . concluded that a hearing was 

necessary to develop the facts regarding the context for and intended meaning of the exchange.” 

S. Br. at 1. 

Also before the Commission is KenAmerican’s motion to strike the majority of the 

Secretary’s brief. KenAmerican argues that the Secretary has raised several theories on appeal 

which were never presented to the Judge, including issues of statutory interpretation, intent, 

coded or euphemistic language, and the proper drawing of inferences. The Secretary counters 

that his position on appeal is merely a refinement of his position below and that, regardless, 

where good cause exists, the Commission may consider new theories on appeal. 

38 FMSHRC Page 1945
II.

Framework 

Commission Procedural Rule 67 provides that summary decision shall only be granted if 

the entire record shows that there is no genuine issue as to any material fact, and that the moving 

party is entitled to summary decision as a matter of law. 29 C.F.R. § 2700.67(b). We have long 

analogized summary decision to summary judgment under Rule 56 of the Federal Rules of Civil 

Procedure. See, e.g., Energy West Mining Co., 16 FMSHRC 1414, 1419 (July 1994). As with 

summary judgment under Rule 56, appellate review of summary decisions is de novo, in that the 

reviewing court applies the same standard as the trial court. See, e.g., Hanson Aggregates New 

York, Inc., 29 FMSHRC 4, 9 (Jan. 2007). When the Commission reviews a summary decision 

and determines that the record before the Judge contained disputed material facts, the proper 

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

hearing. See Energy West Mining Co., 17 FMSHRC 1313, 1316-17 (Aug. 1995). 

Addressing Rule 56, the Supreme Court has emphasized that the party moving for 

summary judgment bears the initial burden of showing that there are no genuine disputes as to 

material fact. Celotex Corp v. Catrett, 477 U.S. 317, 323 (1986); Adickes v. S.H. Kress & Co., 

398 U.S. 144, 157 (1970). If the moving party carries its burden of showing that there is no 

genuine dispute as to material fact and that the movant is entitled to judgment as a matter of law, 

then the burden shifts to the non-movant to establish a genuine dispute as to material fact. See, 

e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986); Scott v. Harris, 550 U.S. 372,

380 (2007); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–587 (1986).

If the moving party fails to meet its burden, then summary decision must be denied, 

regardless of the sufficiency of the opposition. Even the absence of an opposition does not 

entitle the movant to summary decision, if the motion is not adequately supported. See Adickes,

398 U.S. at 159-61 (summary judgment must be denied where the evidence in support of the 

motion does not establish the absence of a genuine issue, even if no opposing evidence is 

presented). See also In re Rogstad, 126 F.3d 1224, 1227-28 (9th Cir. 1997); Campbell v. Hewitt, 

Coleman & Assocs., Inc., 21 F.3d 52, 55-56 (4th Cir. 1994). 

In determining the universe of material facts and whether such facts are undisputed, the 

Judge should not rely solely on the parties’ claims, but should conduct an independent review of 

the record. See, e.g., Adickes, 398 U.S. at 153; Campbell, 21 F.3d at 55-56; Hanson Aggregates, 

29 FMSHRC at 10-11. When making such a determination, the Supreme Court has stated that 

“[w]e look at the record on summary judgment in the light most favorable to . . . the party 

opposing the motion.” Poller v. Columbia Broadcasting Sys., Inc., 368 U.S. 464, 473 (1962). 

Additionally, “the inferences to be drawn from the underlying facts contained in [the] materials 

[supporting the motion] must be viewed in the light most favorable to the party opposing the 

motion.” U.S. v. Diebold, Inc., 369 U.S. 654, 655 (1962). 

Central to our analysis in this case is the principle that “material fact” for purposes of 

defeating a summary decision can also be an inference, drawn from the evidence on record, as to 

a factual element of the claim. Accordingly, even if the basic factual scenario – the “actuality of 

38 FMSHRC Page 1946
circumstances” – is undisputed, there may still be a genuine issue of material fact. Katz v. 

Goodyear Tire & Rubber Co., 737 F.2d 238, 244-45 (2d Cir. 1984). Summary decision is 

precluded if, when the record is viewed and reasonable inferences are drawn in the light most 

favorable to the non-movant, “there is a disagreement over what inferences can be reasonably 

drawn from the facts even if the facts are undisputed.” Ideal Dairy Farms, Inc. v. John Labatt 

Ltd., 90 F.3d 737, 744 (3d Cir. 1996) (quoting Nathanson v. Med. Coll. Of Pa., 926 F.2d 1368, 

1380 (3d. Cir. 1991). 

Even intent or motive can be a material fact for summary decision purposes, where it is 

an essential element of the underlying claim. If opposing inferences regarding intent or motive 

can reasonably be drawn, summary judgment is inappropriate. In Hunt v. Cromartie, for 

example, the Supreme Court reversed a grant of summary judgment in favor of residents alleging 

that a redistricting plan violated the Equal Protection Clause. The Court found that “reasonable 

inferences from the undisputed facts” could be drawn in favor of either a legally permissible or 

an impermissible motivation for the redistricting. Accordingly, triable issues of material fact 

existed, and resolution at the summary judgment stage was inappropriate. A dispute as to 

motivation was sufficient to render summary judgment improper. 526 U.S. 541, 548-52 (1999); 

see also Ideal Dairy Farms, 90 F.3d at 744-45 (summary judgment regarding a time-barred 

contract claim was inappropriate where the facts could suggest intent to terminate in 1987 or 

1990); Katz, 737 F.2d at 244-45 (summary judgment was inappropriate where there was a 

dispute as to intent to change domiciles). 

Summary judgment should not be granted “unless the entire record shows a right to 

judgment with such clarity as to leave no room for controversy and establishes affirmatively that 

the adverse party cannot prevail under any circumstances.” Campbell, 21 F.3d at 55 (quotation 

omitted). For summary judgment to be appropriate, the evidence must do more than allow the 

court to find in the movant’s favor, it must “require that the court do so.” Hunt, 526 U.S. at 552 

(emphasis in original). If, when viewing the evidence and drawing all permissible inferences in 

favor of the non-movant, the record could support either party, then resolution at the summary 

judgment stage is inappropriate. Id.; Anderson, 477 U.S. at 251-255.5

 

 5

 Contrary to the dissent’s suggestion, our holding below is consistent with Celotex. In 

Celotex, the Supreme Court noted that the “party seeking summary judgment always bears the 

initial responsibility” of identifying those portions of the record “which it believes demonstrate 

the absence of a genuine issue of material fact.” 477 U.S. at 323. The Court explained that the 

movant need not produce evidence, but may meet its burden by “pointing out to the district court 

[ ] that there is an absence of evidence to support the nonmoving party’s case.” Id. at 325. 

Here, as discussed below, KenAmerican has failed to demonstrate an absence of evidence 

to support the Secretary’s claim of a section 103(a) violation. The communication described by 

the Secretary (in his pleadings and in the inspector’s affidavit) is sufficient to show a dispute as 

to the material fact of intent, i.e., whether the cited communication referred to the presence of 

MSHA inspectors at the mine. Significantly, the communication described by Inspector Sparks 

included not only the back-and-forth conversation between the underground miner and the 

dispatcher but also the inspector asking the miner for his name and the miner refusing to answer. 

(continued...) 

38 FMSHRC Page 1947
III. 

Disposition 

The Judge erred in granting KenAmerican’s motion for summary decision. As explained 

below, when the record is viewed and inferences are drawn in the light most favorable to the 

Secretary (as the non-moving party), one could reasonably infer from the underlying facts that 

the cited communication was meant to convey advance notice of an inspection. There is a 

genuine dispute as to the meaning of the communication, resolution of which could allow the 

Secretary to prevail. As KenAmerican failed to establish that there was no genuine issue of 

material fact and that it was entitled to summary decision as a matter of law, the Judge erred in 

granting the motion. 

We reverse the Judge, not because the Secretary established that summary judgment was 

improper, but because neither the record nor KenAmerican’s motion establish that the 

requirements for summary decision have been met.6

 To meet its burden here, KenAmerican 

must show that the record cannot establish that the purpose of the communication was to convey 

prohibited advance notice of an inspection. We find that KenAmerican failed to meet that 

burden. 

Although it is undisputed that a miner called the dispatcher to ask if there was “company 

outside,” that the dispatcher responded, “yeah, I think there is,” and that when Sparks took the 

phone and asked the caller who was on the line, he received no response, these facts do not 

encompass all material facts necessary to resolve the proceeding. Cf. Hanson Aggregates, 29 

FMSHRC at 10-11 (the parties’ stipulations did not encompass all material facts). The intent or 

meaning of the cited communication is also a material factual question – it is the ultimate 

question needed to be resolved in this case. Cf. Hunt, 526 U.S. at 549. 

Intent is generally inferred from underlying facts; when making such an inference, the 

underlying facts are viewed, and the inference drawn, in the light most favorable to the party 

opposing summary decision. See id. at 548-52; Ideal Dairy Farms, 90 F.3d at 744-45. Here, 

when the undisputed circumstances surrounding the communication are viewed in the light most 

favorable to the Secretary, they suggest a miner underground may have become aware that 

inspectors were on site to conduct an inspection and called the dispatcher to confirm. 

5

 (...continued) 

It is worth noting that Celotex, unlike the present case, involved an issue of pure physical fact – 

whether the plaintiff’s deceased husband was exposed to a product containing asbestos which 

was manufactured or distributed by Celotex. There was no issue of intent. Id. at 319. 

6

 Accordingly, we need not address KenAmerican’s motion to strike. In the summary 

decision context, filings in opposition need not be considered if the moving party fails to meet its 

initial burden. See Adickes, 398 U.S. at 153; Campbell, 21 F.3d at 55-56. Having found that 

KenAmerican failed to meet its initial burden, the Secretary’s opposition plays no part in our 

decision. As a result, any new issues raised on appeal would have no impact on the outcome of 

this analysis. 

38 FMSHRC Page 1948
When viewing the record in this light, one could reasonably infer that “company outside” 

was meant to inquire whether MSHA was present to conduct an inspection. The dispatcher’s 

affirmative response of “Yeah, I think there is” could be inferred as advance notice of an 

inspection in violation of section 103(a). Moreover, one could infer that the caller’s failure to 

identify himself in response to the inspector’s request is evidence that the caller’s question was 

intended to determine whether an MSHA inspection was occurring.7

 

Inherent in our analysis is an understanding that ambiguous language can violate section 

103(a), if context establishes that it conveyed advance notice of an inspection. Indeed, because 

the communication at issue does not explicitly discuss inspectors or inspections, its intent is only 

material if non-explicit language can be violative. This reading of section 103(a) is consistent 

with its plain language, which focuses on whether advance notice of an inspection was in fact 

provided. It is also consistent with the purpose of section 103(a), which is to ensure the efficacy 

of inspections by preventing operators from concealing hazards before an inspector can observe 

them. See S. Rep. No. 95-181, at 27 (1977), reprinted in Senate Subcomm. on Labor, Comm. on 

Human Res., Legislative History of the Federal Mine Safety and Health Act of 1977, at 615 

(1978) (noting the “ease with which many safety or health hazards may be concealed if advance 

7

 Our dissenting colleagues acknowledge that when considering a motion for summary 

decision, a judge must give the non-moving party the benefit of every “reasonable inference.” 

Slip op. at 13 (citations omitted). However, they apparently disagree that in this case the 

potential inference which could be drawn in the Secretary’s favor – that the statement “company 

outside” referred to MSHA inspectors – is a reasonable one. 

The use of coded language to warn of MSHA inspections is a documented problem in the 

mine industry. For example, in the recent criminal prosecution of former Massey CEO Don 

Blankenship (which in part involved charges stemming from the 2010 explosion at the Upper 

Big Branch “UBB” Mine), a federal district court judge discussed the use of coded language for 

the purposes of advance notice in denying the defendant’s motion for judgement of acquittal on 

all counts. U.S. v. Blankenship, No. 5:14-cr-00244, 2015 WL 8731688 (S.D.W.Va. Dec. 9, 

2015). Specifically, the judge stated: 

As to the issue of advance notice, the Court notes as a preliminary matter the 

evidence in the record that advance notice was a common practice at UBB and 

other mines during the time period of the indictment. Several witnesses . . . 

testified that in their work at UBB, they provided advance notice to underground 

miners and other UBB employees about the arrival of MSHA inspectors, and that 

they were instructed to do so by supervisors at UBB. . . . Stanley Stewart also 

testified that when the crews underground at UBB received advance notice of an 

inspection from a dispatcher, often by means of code words, such as “it's cloudy 

out there today,” the crews would “[t]ry to clean up anything we could find.” . . . 

Viewing these [and other] facts in the light most favorable to the United States, 

the Court finds them sufficient for a jury to infer that providing advance notice of 

MSHA inspections was a frequent practice at UBB . . . . 

Id. at *6. Thus, a judge could reasonably infer that the use of coded language while mine 

inspectors were on KenAmerican’s property was a reference to those inspectors. 

38 FMSHRC Page 1949
warning of inspection is obtained”). KenAmerican does not disagree that coded or ambiguous 

language can support a violation of section 103(a), if the context establishes that it conveys 

advance notice of an inspection. See Resp. Br. at 15-17. 

It its motion before the Judge, KenAmerican argued that the communication was not 

necessarily intended to convey advance notice of an inspection. KenAmerican stated that the 

conversation “easily could have been made in the context of determining the availability of 

transportation,” was “consistent” with non-violative intent, and “easily could encompass” 

various activities which are exempt from the prohibition on advance notice. Memo Supp. Mot. 

at 6-8, Reply Supp. Mot. at 2. However, KenAmerican must do more than show that the record 

would allow us to conclude that the communication was non-violative; KenAmerican must show 

that the record requires us to resolve the matter in KenAmerican’s favor, i.e., show that the 

communication was non-violative, or at least that the Secretary would be unable to prove a 

violation. Cf. Hunt, 526 U.S. at 552. 

The Judge granted KenAmerican’s motion, finding that the Secretary had failed to 

marshal evidence that would allow a reasonable person to conclude that the communication 

conveyed advance notice. At this stage, however, the Secretary did not bear the burden of 

showing that the communication had such a meaning, and viewing the record in the light most 

favorable to the Secretary, we infer that the communication could have conveyed advance notice 

of an inspection. Therefore a genuine issue of material fact exists, and summary decision was 

inappropriate. We note that we are holding only that the communication could be violative, not 

that it was violative. In other words, we do not hold that summary decision should have been 

granted for the Secretary, only that resolution prior to hearing was inappropriate. All that is 

required to defeat a motion for summary decision is a finding that the matter could be resolved in 

favor of the non-movant, when the record is viewed and all inferences are drawn in the nonmovant’s favor. See Anderson, 477 U.S. at 251-52.8

8

 Our dissenting colleagues contend that “the majority completely disregards” Anderson. 

Slip op. at 15 n.3. As our colleagues state, intent was an issue in Anderson, but our colleagues 

miss the mark in equating Anderson with the present case. In Anderson, public figures (Liberty 

Lobby and its founder) sued investigative reporters for allegedly libelous magazine articles. 

Citing N.Y. Times v. Sullivan, 376 U.S. 254 (1964) and Curtis Publ’g Co. v. Butts, 388 U.S. 130 

(1967), the Court noted that a public figure plaintiff in a libel action must prove that the 

defendant acted with actual malice – knowledge that the allegedly defamatory statement was 

false or reckless disregard of whether the statement was false or not. 477 U.S. at 244. The Court 

further noted that the standard of proof of actual malice was the elevated standard of clear and 

convincing evidence. Id. In reversing the Court of Appeals, the Supreme Court held only that 

the clear and convincing standard of proof in libel cases applied on a motion for summary 

judgment. Our colleagues quote the statement in Anderson, 477 U.S. at 254: “When determining 

if a genuine factual issue as to actual knowledge exists in a libel suit brought by a public figure, a 

trial judge must bear in mind the actual quantum and quality of proof necessary to support 

liability under New York Times.” Slip op. at 15 n.3. The dissent also quotes a passage from 

Anderson that a plaintiff in a conspiracy or libel case, in response to a motion for summary 

(continued...) 

38 FMSHRC Page 1950
Thus we do not suggest that the existing record compels an inference that the 

communication did convey advance notice of an inspection. We only find that one could 

reasonably reach that conclusion, particularly with further development of the record. However, 

that is enough to establish that a genuine dispute as to a material factual inference exists and 

therefore summary decision is inappropriate. Cf. Hunt, 526 U.S. at 552-54 (noting that 

“[p]erhaps, after trial, the evidence will support a finding that race was the . . . predominant 

motive,” but that the case was not suited for summary disposition because there was a genuine 

dispute as to motivation under the existing record). Where, as here, opposing inferences can be 

drawn from undisputed facts, a genuine dispute exists and summary decision is precluded. Ideal 

Dairy Farms, 90 F.3d at 744-45. 

For this reason, the Judge erred in finding no genuine issues of fact regarding the 

existence of a violation. He failed to recognize that, when the undisputed factual scenario is 

viewed in the light most favorable to the Secretary, opposing inferences can reasonably be drawn 

as to the intended meaning of the communication. If the proper inference is drawn, the 

communication could have referred to an MSHA inspection, and a genuine dispute exists.9

 

Our dissenting colleagues argue that when a judge, rather than a jury, is acting as trier of 

fact he may reach the ultimate conclusions to be drawn from undisputed facts in considering a 

summary decision motion. In short, our dissenting colleagues believe that ultimate inferences 

regarding what was meant by the term “company” can be drawn in favor of the moving party 

when no other facts are in dispute. 

8

 (...continued) 

judgment, must produce evidence that would support a jury verdict. Slip op. at 20 n.6. Our 

decision in this case is consistent with these principles. For purposes of resisting the motion for 

summary decision under Commission Procedural Rule 67 in this case, the Secretary need only 

show that under a standard of preponderance of the evidence, the communication could have 

conveyed advance notice. Considering that the communication included the unidentified miner 

refusing to provide his name to Inspector Sparks, a reasonable trier-of-fact could certainly 

conclude that the miner‘s question about “company outside” was a reference to the MSHA 

inspector he did not want to give his name to. This is “sufficient evidence to meet the 

[Secretary’s] substantive evidentiary burden at trial.” Dissent, slip op. at 15 n.3, citing Anderson,

477 U.S. at 254. 

9

 The Secretary claims the Judge failed to draw an inference in the Secretary’s favor as 

to whether “company” referred to MSHA. While we agree that the Judge failed to view the 

record and draw inferences in the light most favorable to the Secretary, we note that the Judge 

was not required to infer that company did refer to MSHA; it would have been sufficient and 

proper to infer that, based on the record, “company” could have referred to MSHA. 

38 FMSHRC Page 1951
Despite the urging of our colleagues, we decline to adopt this approach,10 which deviates 

from the traditional method of reviewing summary decision motions: that inferences drawn from 

the underlying facts must be viewed in the light most favorable to the party opposing the motion. 

Poller, 368 U.S. at 473. Drawing the ultimate conclusion in favor of the moving party in this 

case would be particularly inappropriate because here that conclusion rests on the state of mind 

of the dispatcher and the miner who were discussing the presence of “company” at the mine. In 

Croley v. Matson Nav. Co., the court stated: 

The court should be cautious in granting a motion for summary 

judgement when resolution of the dispositive issue requires a 

determination of state of mind. Much depends on the credibility of 

witnesses testifying as to their own states of mind. In these 

circumstances the jury should be given the opportunity to observe 

the demeanor, during direct and cross-examination, of the 

witnesses whose states of mind are at issue. 

434 F.2d 73, 77 (5th Cir. 1970) (citing NLRB v. Smith Indus., Inc., 403 F.2d 889, 895 (5th Cir. 

1968); Riley-Stabler Constr. Co. v. Westinghouse Elec. Corp., 401 F.2d 526, 527 (5th Cir. 1968) 

(Rives, J., specially concurring); Consol. Elec. Co. v. United States for Use and Benefit of Gough 

Indus., 355 F.2d 437, 438-439 (9th Cir. 1966)). We believe this to be an apt observation even 

when a judge, rather than jury, is deciding the issue.11

Aside from the issue of factual disputes, KenAmerican also raised various legal 

arguments before the Judge as to why the citation must be vacated as a matter of law. We are 

not persuaded by these arguments. KenAmerican claimed that the communication could not 

convey advance notice because it occurred “during” an inspection. However, the Commission 

has found violative advance notice where miners were warned after the inspectors had already 

proceeded underground and begun their inspection. See Topper Coal Co., 20 FMSHRC 344, 

346, 348 (1998). Advance notice can still occur once an inspection is underway. We also find 

10 As our colleagues recognize, the principle that a Judge in a non-jury case may, on a 

motion for summary judgment, draw the ultimate inference is not applicable where the case 

involves a credibility determination. Slip op. at 21. Here, of course, the Judge at trial will have 

to make credibility determinations regarding the explanation by KenAmerican’s witnesses about 

what the phone conversation between the underground miner and the dispatcher meant. 

11 The Commission’s practice with regard to summary decision has generally been 

similar to that described by the cases cited above. As the Secretary noted in his opening brief, 

Commission judges have in the past held that a hearing, with the opportunity to observe a 

witness’ demeanor, is the proper venue to determine intent and credibility, not a summary 

decision motion. See, e.g., Pride v. Highland Mining Co., 36 FMSHRC 1792, 1797 (June 2014) 

(ALJ) (declining to resolve on summary decision whether complainant engaged in protected 

activity because the complainant’s motive was relevant to the inquiry, and because the ALJ 

would need to make a credibility determination when assessing motive); UMWA v. Jim Walter 

Res. Inc., 24 FMSHRC 797, 799 (July 2002) (ALJ) (denying summary decision where operator’s 

motive for mine closure was in dispute). 

38 FMSHRC Page 1952
that the Judge properly rejected KenAmerican’s claim that an exemption to the prohibition on 

advance notice applied. See supra note 1. As the Judge noted, direct enforcement activities (an 

impact inspection) were occurring, and there was no indication of an imminent danger. 37 

FMSHRC at 1811. Finally, KenAmerican raised a First Amendment claim. As we reverse the 

Judge on other grounds, and the Judge declined to address this issue in the first instance (id. at 

1812 n.3), we also decline to address this issue and find that it is more properly resolved by the 

Judge on remand. 

IV. 

Conclusion 

For the foregoing reasons, the Judge’s grant of summary decision is vacated, and the 

matter is remanded for further proceedings. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner 

Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner 

38 FMSHRC Page 1953
Commissioners Althen and Young, dissenting: 

The majority vacates and remands this case to the Administrative Law Judge. In doing 

so, it wholly discounts the failure of the Secretary to introduce any evidence supportive of his 

interpretation of the facts or contesting the facts set forth by Respondent. Because the Secretary 

failed to identify any disputed fact and did not submit any evidence to support a contrary 

interpretation of those undisputed facts, all that was left for the Judge to decide was the ultimate 

issue in the case. Overwhelming case law establishes that, under those circumstances, the Judge 

was entitled to draw an inference based upon the record before him. The Judge properly entered 

summary decision for Respondent. Accordingly, we respectfully dissent. 

I. Summary of the Dissent

Federal courts of appeal uniformly hold that in a bench trial, the Judge may make an 

ultimate factual inference against the nonmoving party. Significantly, the District of Columbia 

Circuit and the Sixth Circuit, the courts with appellate jurisdiction in this case, have recognized 

that a dispute between the parties regarding the ultimate inference to be drawn does not preclude 

summary judgment when the trial court is the ultimate finder of fact. 

The right of the Judge to make the ultimate inference in a case in which the facts are 

undisputed fulfills the purpose of summary judgment. When the nonmoving party fails to 

contest the material facts or to submit evidence raising a factual dispute — that is, submits to the 

summary judgment motion on uncontested facts — the Judge should not withhold summary 

judgment based on the possibility that the party might have introduced evidence to dispute the 

inference but failed to do so. The Judge cannot consider evidence that a party might have 

presented to create a dispute if the party does not introduce evidence of such dispute in response 

to the motion for summary judgment. Further, courts overturn a grant of summary judgment 

because of evidence not submitted before the summary judgment motion only if such evidence is 

newly discovered. Therefore, courts uphold summary judgment where a party later provides 

material, probative evidence when the party could have discovered and submitted that evidence 

at the summary judgment stage. To hold otherwise would allow a party to withhold material 

evidence at the summary judgment stage only to submit it at trial. 

In addition to failing to recognize the right of the Judge to make an outcomedeterminative inference when the Secretary did not contest the facts presented by the moving 

party, the majority also fails to recognize the importance of the Secretary’s duties as the party 

bearing the burden of proof in responding to a summary judgment motion. The majority vacates 

the Judge’s grant of summary decision on the basis that to grant summary judgment the Judge 

was required to conclude that the “record cannot establish that the purpose of the communication 

was to convey prohibited advance notice of an inspection.” Slip op. at 6. That is error. The 

majority misconstrues the summary decision standard. It improperly reallocates the burdens of 

proof and production at the summary decision stage and fails to recognize that the Secretary’s 

failure to produce any evidence in support of the citation at the summary decision 

unquestionably left the Judge in a position to make an inference based upon the uncontested 

material facts before him. 

38 FMSHRC Page 1954
II. Summary Judgment

 The Commission’s summary decision standard states: 

(b) Grounds. A motion for summary decision shall be granted only 

if the entire record, including the pleadings, depositions, answers 

to interrogatories, admissions, and affidavits, shows: 

(1) That there is no genuine issue as to any material fact; and 

(2) That the moving party is entitled to summary decision as a 

matter of law. 

29 C.F.R. § 2700.67(b). The Commission has analogized this rule to the summary judgment 

standard in Rule 56 of the Federal Rules of Civil Procedure. See, e.g., Hanson Aggregates N.Y., 

Inc., 29 FMSHRC 4, 9 (Jan. 2007); see also Fed. R. Civ. P. 56(a) (“The court shall grant 

summary judgment if the movant shows that there is no genuine dispute as to any material fact 

and the movant is entitled to judgment as a matter of law.”). While the Commission “has long 

recognized that [] ‘[s]ummary decision is an extraordinary procedure,’” Energy West Mining 

Co., 16 FMSHRC 1414, 1419 (July 1994) (quoting Missouri Gravel Co., 3 FMSHRC 2470, 

2471 (Nov. 1981)) (alterations in original), it is a procedure with a purpose: “Summary judgment 

procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral 

part of the Federal Rules as a whole, which are designed ‘to secure the just, speedy and 

inexpensive determination of every action.’” Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) 

(quoting Fed. R. Civ. P. 1). Use of summary judgment in Commission proceedings is thus 

consistent with the Commission’s goal of streamlining its decision process where possible.1

 See, 

e.g., 75 Fed. Reg. 81,459 (Dec. 28, 2010) (adopting rules to simplify certain civil penalty 

proceedings). 

 Under Rule 56, a “material” fact is one that “might affect the outcome of the suit under 

the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of 

material fact is “genuine” if “the evidence is such that a reasonable jury could return a verdict for 

the nonmoving party.” Id. When an inference from the facts must be drawn, “the nonmovant 

need not be given the benefit of every inference but only of every reasonable inference.” Spence 

v. Zimmerman, 873 F.2d 256, 258 (11th Cir. 1989); see also McKay v. Federspiel, 823 F.3d 862, 

866 (6th Cir. 2016) (stating that the court “draw[s] all reasonable inferences” in favor of the 

nonmoving party). 

 An inference is reasonable when a party provides sufficient evidence from which the 

court can make that inference: “Although the nonmoving party is entitled to have inferences 

drawn in his favor at summary judgment, such inferences must be supported by record 

 1

 Summary judgment promotes efficiency: “The nonmovant is essentially forced to 

identify facts in the record that demonstrate issues of fact that need to be tried. This 

‘put up or shut up’ feature forces the nonmovant and movant to advance cogent facts that either 

support or oppose summary judgment.” Edward Brunet, The Efficiency of Summary Judgment, 

43 Loy. U. Chi. L.J. 689, 691 (2012) (footnote omitted). Professor Brunet notes that federal 

courts had used the “put up” phrase 1,235 times by the date of his article. Id. at 691 n.7.

38 FMSHRC Page 1955
evidence.” Noll v. Int’l Bus. Mach. Corp., 787 F.3d 89, 97 n.6 (2d Cir. 2015). This is because 

“there is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a 

jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly 

probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50 (emphasis 

added). Similarly, as the Supreme Court has stated, “facts must be viewed in the light most 

favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those facts.” Scott v. 

Harris, 550 U.S. 372, 380 (2007). 

A. The Majority Misapprehends the Burdens of Proof and Production at the

Summary Judgment Stage

The majority finds that KenAmerican failed to meet a burden as the party moving for 

summary judgment. Thus, the majority states, “summary judgment must be denied where the 

evidence in support of the motion does not establish the absence of a genuine issue.” Slip op. at 

4. For this proposition, the majority cites extensively to Adickes v. S.H. Kress & Co., 398 U.S.

144 (1970), and to a lesser extent Celotex Corp. v. Catrett, 477 U.S. 317 (1986). The majority

takes the requirement that the movant must “establish” the absence of a genuine issue of fact

from Adickes, 398 U.S. at 160. However, in Celotex, the Supreme Court specifically repudiated

the notion of a requirement that the moving party establish the absence of a genuine issue of fact.

The Court found that the moving party need only set forth uncontested facts supporting its

motion and not containing evidence supporting the non-movant’s case whereas the non-movant

must identify facts creating a genuine dispute.

 In Celotex, the plaintiff filed a claim against 15 defendants, alleging that the death of her 

husband was the result of exposure to asbestos-containing products manufactured or distributed 

to by the defendants. 477 U.S. 319. Several of the defendants, including Celotex, filed a motion 

for summary judgment. Id. Celotex’s motion for summary judgment argued that the plaintiff 

had “failed to produce evidence that any [Celotex] product . . . was the proximate cause of the 

injuries alleged within the jurisdictional limits of [the District] Court.” Id. at 319-20. The 

district court granted summary judgment for Celotex, and the plaintiff appealed. Id. at 320-21. 

The court of appeals reversed, stating that the “summary judgment motion was rendered ‘fatally 

defective’ by the fact that [Celotex] ‘made no effort to adduce any evidence, in the form of 

affidavits or otherwise, to support its motion.” Id. at 321 (quoting Catrett v. Johns-Manville 

Sales Corp., 756 F.2d 181, 184 (D.C. Cir. 1985)). Much like the majority in the present case, the 

court of appeals cited to Adickes for the proposition that “the party opposing the motion for 

summary judgment bears the burden of responding only after the moving party has met its 

burden of coming forward with proof of the absence of any genuine issues of material fact.” 756 

F.2d at 184. The Supreme Court reversed.

The Celotex Court quoted its statement from Adickes that “the burden of the moving 

party [is] to show initially the absence of a genuine issue concerning any material fact.” Celotex, 

477 U.S. at 325 (quoting Adickes, 398 U.S. at 159). However, the Court explained the meaning 

of those words from Adickes: 

We think that this statement is accurate in a literal sense, . . . [b]ut 

we do not think the Adickes language quoted above should be 

38 FMSHRC Page 1956
construed to mean that the burden is on the party moving for 

summary judgment to produce evidence showing the absence of a 

genuine issue of material fact, even with respect to an issue on 

which the nonmoving party bears the burden of proof. Instead, as 

we have explained, the burden on the moving party may be 

discharged by “showing”—that is, pointing out to the district 

court—that there is an absence of evidence to support the 

nonmoving party’s case. 

Id. at 325 (emphasis added). The Court also noted the well-recognized “power [of district 

courts] to enter summary judgments sua sponte, so long as the losing party was on notice that 

[the party] had to come forward with all of her evidence.” Id. at 326. Accordingly, “[i]t would 

surely defy common sense to hold that the District Court could have entered summary 

judgment sua sponte in favor of petitioner in the instant case, but that petitioner’s filing of a 

motion requesting such a disposition precluded the District Court from ordering it.”2

 Id. After 

Celotex, federal courts recognize that a movant that does not have the burden of proof/persuasion 

need only make a minimal showing, whereas the nonmovant has the burden of showing there are 

issues for trial.3

 2

 The Court also noted that the standard for granting summary judgment “mirrors the 

standard for a directed verdict under Federal Rule of Civil Procedure 50(a).” Celotex, 477 U.S. 

at 323 (quoting Anderson, 477 U.S. at 250). Under Rule 50(a), as under Rule 56, the moving 

party need not present any evidence. 

3

 The majority argues that its decision is consistent with Celotex, asserting Kenamerican 

failed to demonstrate an absence of evidence to support the Secretary’s claim and distinguishing 

Celotex as involving an issue of “pure physical fact” rather than one of intent. Slip op. at 5 n.5. 

The majority states that the mere fact of the communication “is sufficient to show a dispute as to 

the material fact of intent.” Id. Yet, the Secretary both did not dispute this “material fact of 

intent” and did not produce any piece of evidence to render that purported dispute genuine. To 

the majority, its apparently fixed view that the language could have been coded makes up for the 

Secretary’s utter failure to contest the material fact or to submit any evidence in support of a 

contest of material fact. 

 Furthermore, in making this distinction, the majority completely disregards Anderson, 

477 U.S. 242, in which intent was the disputed issue. In Anderson, the Court stated that “[w]hen 

determining if a genuine factual issue as to actual malice exists in a libel suit brought by a public 

figure, a trial judge must bear in mind the actual quantum and quality of proof necessary to 

support liability under New York Times.” Id. at 254. In cases in which intent is at issue, the 

nonmoving party must provide sufficient evidence to meet the substantive evidentiary burden at 

trial. Id. That a dispute concerns intent rather than “pure physical fact” does not relieve the 

Secretary of this burden at the summary decision stage. Cf. Coverdell v. Dep’t of Social and 

Health Servs., 834 F.2d 758, 769 (9th Cir. 1987) (“Although summary judgment is often 

questionable in civil rights actions where the defendant’s motive and intent are involved, . . . 

even in a civil rights action, [a] plaintiff may not survive a motion for summary judgment 

without offering some evidence in support of her claim.” (citation omitted)); Bagley v. 

 (continued...)

38 FMSHRC Page 1957
The Secretary bore the burden of proof, and based on the uncontested facts before the 

Judge resulting from the motion by Respondent and the failure of the Secretary to introduce any 

evidence of a violative intent, there was no evidence upon which the Secretary could 

preponderate to show violative conduct. In short, the Secretary failed in the most elementary 

duty of a party in responding to a motion for summary judgment. He failed to introduce any 

3

 (...continued) 

Blagoyevich, 646 F.3d 378, 389 (7th Cir. 2011) (“If a genuine dispute as to a material fact exists, 

such as intent, summary judgment is inappropriate. But that genuine dispute must be supported 

by ‘sufficient evidence . . . [to permit] a jury to return a verdict for’ appellants.” (alterations in 

original) (quoting Egonmwan v. Cook Cnty. Sheriff’s Dep’t, 602 F.3d 845, 849 (7th Cir. 2010)). 

The majority asserts that we “miss the mark in equating Anderson with the present case.” 

Slip op. at 8 n.8. They do so by arbitrarily restricting, without citation, Anderson’s 

applicability. In fact, courts have long relied on Anderson in summary judgment cases under the 

preponderance of the evidence standard. See, e.g., United States v. 2621 Bradford Drive, 369 F. 

App’x 663, 665-66 (6th Cir. 2010) (civil forfeiture case); Lemaire v. Danos & Curole Marine 

Contractors Inc., No. 00-31153, 2001 WL 872840, at *4 (5th Cir. 2001) (per curiam) (affirming 

memorandum opinion of district court in negligence action against employer); Diaz v. Broglin, 

No. 92-1507, 1993 WL 118066, at *2 (7th Cir. 1993) (affirming recommendation of magistrate 

judge in 42 U.S.C. § 1983 case); Mares v. ConAgra Poultry Co., 971 F.2d 492, 494 (10th Cir. 

1992) (wrongful discharge case); Winchester v. Prudential Life Ins. Co., 975 F.2d 1479, 1488 

(10th Cir. 1992) (denial of insurance benefits case); Thomas v. Digital Equip. Corp., 880 F.2d 

1486, 1490 n.2 (1st Cir. 1989) (national origin discrimination case); Richardson ex rel. 

Richardson v. Richardson-Merrell, Inc., 857 F.2d 823, 828 (D.C. Cir. 1988) (product liability 

case); Sorba v. Penn. Drilling Co., 821 F.2d 200, 203 (3rd Cir. 1987) (age discrimination case). 

Further, they continue to not deal with the right of a trial judge to draw a reasonable inference 

based upon uncontested facts and arguments placed before him. 

Elsewhere, the majority mistakenly asserts that upon the inspector asking the 

underground miner for his name, the miner refused to answer. Slip op. at 5 n.5, 8-9 n.8. The 

actual note is that “Sparks asked who was on the line and received no response.” Slip op. at 

2. The majority infers refusal from silence. However, the Secretary never asserted such an

inference and most importantly did not do so in his response to the motion for summary

decision. See slip op. at 2 n.3. The majority, therefore, draws an unrequested, unsupported

inference and then piles upon it another inference that the miner’s silence demonstrates advance

notice.

38 FMSHRC Page 1958
evidence upon which to base the need for a subsequent trial. The majority’s reliance on Adickes

is misplaced.4

 In Grimes v. District of Columbia, 794 F.3d 83 (D.C. Cir. 2015), for example, the 

plaintiff argued that the district court used an improper summary judgment standard. The 

plaintiff “fault[ed] the government for merely pointing out in its summary judgment motion that 

she lacked factual support for her claims, without citing to factual material in the record that 

supported the government’s version of events.” Id. at 93. The plaintiff, citing Adickes, stated 

that “it has consistently been held that the moving party bears the burden of demonstrating the 

absence of any genuine issue of material facts.” Id. (quoting Appellant’s Br. 8; Appellant’s 

Reply 8). 

Although the D.C. Circuit remanded on other grounds (the district court did not consider 

a claim that counsel had a conflict of interest prior to granting summary judgment), the court 

decided to “briefly reiterate the governing legal standard” for summary judgment because the 

district court may revisit the issue on remand. Id. The circuit court found that the plaintiff 

“fail[ed] to appreciate that the burden on a defendant moving for summary judgment may be 

discharged without factual disproof of the plaintiff’s case.” Id. (emphasis added). Thus, rather 

than “establishing” that there is no dispute of material fact, “[t]he burden that the movant ‘always 

bears’ is that of ‘informing the district court of the basis for its motion, and identifying those 

portions of [the record] which it believes demonstrate the absence of a genuine issue of material 

fact.’” Id. at 93-94 (alteration in original) (quoting Celotex, 477 U.S. at 323) (citing Celotex, 477 

 4

 In addition to Adickes, the majority relies on Hunt v. Cromartie, 526 U.S. 541 (1999), 

Campbell v. Hewitt, Coleman & Associates, Inc., 21 F.3d 52 (4th Cir. 1994), Katz v. Goodyear 

Tire & Rubber Co., 737 F.2d 238 (2d Cir. 1984), and Ideal Dairy Farms, Inc. v. John Labatt 

Ltd., 90 F.3d 737 (3d Cir. 1996). Contrary to the majority’s position, the contexts of these cases 

further demonstrate that the majority’s decision applies a legally incorrect summary judgment 

standard. In contradiction to the present case, there was ample evidence provided by the 

nonmoving party in each of the cited cases. See Hunt, 526 U.S. at 550 (highlighting specifically 

that the defendants submitted an expert affidavit that “weaken[ed] the probative value” of the 

plaintiffs’ evidence by concluding that “the data as a whole supported a [valid] political 

explanation at least as well as, and somewhat better than, a racial explanation.”); Campbell, 21 

F.3d at 55-58 (stating that, in stamping motions for summary judgment “GRANTED WITHOUT 

OPPOSITION FILED,” the judge failed to show he considered answers to interrogatories and the 

moving parties’ evidence that itself supported inferences for the nonmoving party); Katz, 737 

F.2d at 244-45 (listing affidavits and other evidence proffered by the nonmoving party to dispute 

the factual inference of intent); Ideal Dairy Farms, 90 F.3d at 744-45 (stating that the judge 

should have reserved the issue of the correct interpretation for the jury because the evidence 

supported three possible inferences). Other issues abound, including that Hunt and Katz were 

both cases in which the moving party had the burden of proof at trial. See Katz, 737 F.2d at 243-

44 (noting that the moving party’s burden was the “clear and convincing evidence” standard); 

Hunt, 526 U.S. at 553 (“Summary judgment in favor of the party with the burden of persuasion, 

however, is inappropriate when the evidence is susceptible of different interpretations or 

inferences by the trier of fact.”). 

38 FMSHRC Page 1959
U.S. at 328 (White, J., concurring) (agreeing with the Celotex majority’s summary judgment 

standard); 477 U.S. at 331-32 (Brennan, J., dissenting) (same)). 

The First Circuit case of Packgen v. BP Exploration, 754 F.3d 61 (1st Cir. 2014), is also 

instructive. The plaintiff, Packgen, had “sought to sell oil containment boom” to two BP entities, 

the defendants, after the Deepwater Horizon Spill in 2010. Id. at 63. BP declined to purchase 

the boom after months of negotiations. Id. The defendants moved for and prevailed on summary 

judgment. Id. at 63, 64. 

The plaintiff had sued on several grounds: negligent and intentional misrepresentation, 

breach of contract, equitable relief, quantum meruit, and promissory estoppel. Throughout the 

negotiations, BP agents at various times stated that they intended to purchase Packgen’s full 

production capacity and that they would purchase the entire stock once certain specifications 

were met. Id. at 65. However, approximately two months into negotiations, BP capped the oil 

well, and no longer needed Packgen’s product. Id. at 66. BP never told Packgen to stop 

producing the boom, and it did not pay for any that Packgen produced. Id.

For the intentional and negligent misrepresentation counts, Packgen was required to show 

that BP made a “false representation of present fact.” Id. (quoting Kearney v. J.P. King Auction 

Co., 265 F.3d 27, 33 n.8 (1st Cir. 2001)). The district court granted summary judgment for the 

defendants because there was “no evidence in the record that any of the alleged 

misrepresentations were false at the time they were made.” Id. at 67. On appeal, Packgen 

argued that the district court “improperly weighed the evidence in BP’s favor while overlooking 

reasonable inferences that the jury could have drawn in Packgen’s favor.” Id. In response, the 

First Circuit stated: 

None of the possible inferences raised by Packgen controvert the 

fundamental deficiency identified by the district court, however, 

because Packgen still does not identify specific evidence in the 

record showing that any of BP’s statements were false at the time 

they were made. A party cannot survive summary judgment 

simply by articulating conclusions the jury might imaginably 

reach; it must point to evidence that would support those 

conclusions. 

Id. (citing Miss. Pub. Emps.’ Ret. Sys. v. Bos. Sci. Corp., 649 F.3d 5, 28 (1st Cir. 2011) (“With 

respect to each issue on which [a] plaintiff has the burden of proof at trial, it must present 

definite, competent evidence to rebut the motion . . . .” (internal quotation marks omitted)) 

(alteration in original)). Packgen argued that “a jury could reasonably conclude that BP kept 

making changes to its specification during the spill so that manufacturers would continue to work 

for BP, acceding to different requests made by BP at different times, without BP actually having 

to pay for the boom.” Id. (quoting Appellant’s Br. 42-43). The court stated, simply, that “[i]f a 

jury reached that conclusion, it would be pure speculation,” because nothing in the record 

indicated that BP’s intentions or specification changes “reflect[ed] the bad intentions that 

Packgen describes.” Id. The plaintiff offered merely a conclusory assertion, and conclusory 

assertions are not evidence. Cf., e.g., Teamsters Local Union No. 17 v. Wash. Dept. of 

38 FMSHRC Page 1960
Corrections, 789 F.3d 979, 994 (9th Cir. 2015) (“Argument without evidence is hollow rhetoric 

that cannot defeat summary judgment.”). Similarly, here, the Secretary did not introduce any 

evidence into the record supportive of its proffered conclusion. The Secretary simply asserted 

the existence of a violation. In other words, nothing in the record reflected the words could have 

the meaning ascribed to them by the Secretary. The Secretary did not oppose any of the facts 

asserted by the operator but accepted them with only a naked claim that the words violated the 

regulation. 

B. Inferences May Be Drawn from Record Evidence 

 

 In Spierer v. Rossman, 798 F.3d 502 (7th Cir. 2015), a university student went missing 

after a night of heavy drinking, and the parents of the student brought suit against three other 

students who were with the student in the hours before her disappearance. Id. at 504. The 

parents alleged negligence and violations of the Dram Shop Act. Id. The defendants moved for 

summary judgment prior to substantial discovery arguing that the plaintiffs could not prevail at 

trial on the issues of proximate cause or legal injury. The plaintiffs, rather than assert that 

discovery was required, stated: “We’re not asking for anything to respond to summary judgment. 

We think that we are going to win . . . on the basis . . . that [the defendants] haven’t met their 

burden.” Id. at 507 (alterations in original). The district court granted summary judgment. Id. at 

504. 

 On appeal, the plaintiffs argued, similarly to the majority’s position here that the 

defendants did not meet their burden of production at the summary judgment stage. The Seventh 

Circuit rejected the plaintiffs’ argument, stating that “[t]he actual requirement in Rule 56 is less 

specific: the moving party need only inform the court of the basis for the motion 

and identify supporting materials.” Id. at 508 (citing Celotex, 477 U.S. at 323). Further, 

“[c]ontrary to plaintiffs’ arguments, the only burden of production recognized in Rule 56 falls 

upon the nonmoving party once a basis for summary judgment has been established (and this can 

be initiated sua sponte by a court under Rule 56(f) with proper notice).” Id. 

 Thus, circuit courts agree that if the nonmoving party has the burden of production at 

trial, it has a burden of production at the summary judgment stage. A nonmoving party with the 

burden of production cannot simply assert that a trial court could make an inference from 

undisputed facts when that nonmoving party fails to submit evidence from which a finder of fact 

can draw that inference. 

 

 In addition, the Judge on summary judgment views the evidence according to the ultimate 

evidentiary standard. Under a preponderance of the evidence standard, “[t]he judge’s inquiry, 

therefore, unavoidably asks whether reasonable jurors could find by a preponderance of the 

evidence that the plaintiff is entitled to a verdict.” Anderson, 477 U.S. at 252. Here, the 

 

38 FMSHRC Page 1961
Secretary offered the Judge no evidence to raise a dispute regarding the meaning of the 

uncontested facts.5

Here, the Secretary did not challenge any fact offered by the Respondent and did not 

suggest that he desired to contest those facts or offer any evidence related to those facts or 

asserting any other facts. Thus, the only reason the majority can have in reversing the Judge 

would be to allow the Secretary to provide additional evidence — evidence that he failed to 

provide at the summary judgment stage. The majority actually admits their error. See slip op. at 

7 (“We only find that one could reasonably reach that conclusion, particularly with further 

development of the record.”) (second emphasis added). 

In arriving at this result, the majority fails to recognize that the Secretary failed in the 

most basic duty of opposing a summary judgment motion. He did not provide evidence at the 

summary judgment stage from which the Secretary could preponderate on, or from which the 

Judge could find, advance notice. Simply stated, the Secretary did not offer any evidence of a 

genuine dispute. Yet, the majority requires only that the Secretary might provide sufficient 

evidence at some point in the future. This is antithetical to the very purpose of the summary 

5

 The majority cites to United States v. Blankenship, No. 5:14-cr-00244, 2015 WL 

8731688 (S.D.W.Va. Dec. 9, 2015), noting testimony in that case from several miners regarding 

the advance notice they provided as part of their work. Slip op. at 7 n.7 (quoting 2015 WL 

8731688, at *6). “Thus,” the majority asserts, “a judge could reasonably infer that the use of 

coded language while mine inspectors were on Kenamerican’s property was a reference to those 

inspectors.” Id. In relying on evidence not in the record and not provided to the Judge on 

summary decision to support an inference in this case, the majority tips its hand toward a desired 

outcome rather than adjudication of this case on the law and facts before us. The majority is not 

drawing a possible inference from the record in this case. Instead, based upon a different case, 

the majority speculates about what might be offered at trial that the Secretary failed to offer on 

summary decision. Under the correct summary judgment standard, the majority must find that 

the uncontested record evidence before the Judge on the motion for summary judgment in this 

case alone precludes the trial judge from drawing a reasonable inference.

The majority asserts that it is following “the traditional method of reviewing summary 

decision motions: that inferences drawn from the underlying facts must be viewed in the light 

most favorable to the party opposing the motion.” Slip op. at 9-10 (citing Poller v. Columbia 

Broad. Sys., Inc., 368 U.S. 464, 473 (1962)). However, the majority’s inferences are not made 

from evidence in the record but from the record of a wholly different case that went to hearing. 

The majority piles inference upon inference. The Secretary did not offer anything to support the 

Secretary’s requested inference, that the statements made by KenAmerican’s miners constituted 

advance notice. Moreover, as demonstrated, in our discussion, the trial Judge was entitled to 

draw a reasonable inference from the undisputed record before him. 

38 FMSHRC Page 1962
judgment procedure.6

 As the Supreme Court states in Matsushita Electric Industrial Co., Ltd. v. 

Zenith Radio Corp., 475 U.S. 574, 586-87 (1986), when the moving party fulfills its duty under 

Rule 56, 

its opponent must do more than simply show that there is some 

metaphysical doubt as to the material facts. See DeLuca v. Atlantic 

Refining Co., 176 F.2d 421, 423 (CA2 1949) (L. Hand, J.), cert. 

denied, 338 U.S. 943, 70 S.Ct. 423, 94 L.Ed. 581 (1950); 10A C. 

Wright, A. Miller, & M. Kane, Federal Practice and Procedure 

§ 2727 (1983); Clark, Special Problems in Drafting and 

Interpreting Procedural Codes and Rules, 3 Vand.L.Rev. 493, 504-

505 (1950). Cf. Sartor v. Arkansas Natural Gas Corp., 321 U.S. 

620, 627, 64 S.Ct. 724, 728, 88 L.Ed. 967 (1944). In the language 

of the Rule, the nonmoving party must come forward with 

“specific facts showing that there is a genuine issue for 

trial.” Fed.Rule Civ.Proc. 56(e) (emphasis added). See also 

Advisory Committee Note to 1963 Amendment of Fed.Rule 

Civ.Proc. 56(e), 28 U.S.C.App., p. 626 (purpose of summary 

judgment is to “pierce the pleadings and to assess the proof in

 6

 The majority, as it must, relies on pre-Celotex, Anderson, and Matsushita cases for its 

proposition that where a conclusion rests on the credibility of a witness regarding his state of 

mind, summary judgment is perforce inappropriate. Slip op. at 10. The majority believes that 

this is an “apt observation” and quotes from Croley v. Matson Nav. Co., 434 F.2d 73, 77 (5th Cir. 

1970), to support its contention. Slip op. at 10. Croley, in turn, relied in part on Riley-Stabler 

Constr. Co. v. Westinghouse Electric Corp., 401 F.2d 526, 527 (5th Cir. 1968) (Rives, J., 

specially concurring), which cited to Poller, 368 U.S. at 473. The Supreme Court addressed 

precisely this aspect of Poller in Anderson. 

The respondents in Anderson argued, almost identically to the majority in this case, that 

“the defendant should seldom if ever be granted summary judgment where his state of mind is at 

issue and the jury might disbelieve him or his witnesses as to this issue,” citing Poller. 

Anderson, 477 U.S. at 256. The Court stated: 

We do not understand Poller, however, to hold that a plaintiff may 

defeat a defendant’s properly supported motion for summary 

judgment in a conspiracy or libel case, for example, without 

offering any concrete evidence from which a reasonable juror 

could return a verdict in his favor and by merely asserting that the 

jury might, and legally could, disbelieve the defendant’s denial of a 

conspiracy or of legal malice. The movant has the burden of 

showing that there is no genuine issue of fact, but the plaintiff is 

not thereby relieved of his own burden of producing in turn 

evidence that would support a jury verdict. 

Id. (emphasis added). 

38 FMSHRC Page 1963
order to see whether there is a genuine need for trial”). Where the 

record taken as a whole could not lead a rational trier of fact to find 

for the non-moving party, there is no “genuine issue for 

trial.” Cities Service, supra, 391 U.S., at 289, 88 S.Ct., at 1592. 

Because the Secretary did not provide any evidence from which the Judge could find for 

the Secretary, the court properly concluded that there was no genuine issue of fact in dispute. In 

the federal system, summary judgment is the “put up or shut up moment.” Steen v. Myers, 486 

F.3d 1017, 1022 (7th Cir. 2007) (quoting Hammel v. Eau Galle Cheese Factory, 407 F.3d 852,

859 (7th Cir. 2005)). Here, the Secretary did not put up.

III. When the Judge is the Ultimate Trier of Fact, the Judge May Draw the Ultimate

Inference in a Summary Judgment Proceeding

The majority’s summary judgment standard also is incorrect in that it fails to apply the 

correct summary judgment standard in a nonjury proceeding before a judge as the ultimate trier 

of fact. Virtually every federal circuit court explicitly and repeatedly has stated that where the 

Judge alone is the trier of fact and there is no genuine dispute of material fact or credibility 

determination, the court may draw the ultimate inference in the case, even if it is a “question of 

fact.”7 Therefore, in a nonjury case, a court need not withhold judgment on the basis that a 

7

 EEOC v. Steamship Clerks Union, Local 1066, 48 F.3d 594, 603 (1st Cir. 1995), cert. 

denied, 516 U.S. 814 (1995); Posadas de P.R., Inc. v. Radin, 856 F.2d 399, 400-01 (1st Cir. 

1988); Federacion de Empleados del Tribunal Gen. de Justicia v. Torres, 747 F.2d 35, 36 (1st 

Cir. 1984) (Breyer, J.); Nunez v. Superior Oil Co., 572 F.2d 1119, 1123-24 (5th Cir. 1978); 

Fontenot v. Upjohn Co., 780 F.2d 1190, 1197 (5th Cir. 1986); B.F. Goodrich Co. v. U.S. Filter 

Corp., 245 F.3d 587, 593 n.3 (6th Cir. 2001); Cent. States, Se. & Sw. Areas Pension Fund v. 

Slotky, 956 F.2d 1369, 1373-74 (7th Cir. 1992); Tripp v. May, 189 F.2d 198, 200 (7th Cir. 1951); 

U.S. Manganese Corp. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 576 F.2d 153, 156 (8th 

Cir. 1978); TransWorld Airlines, Inc. v. Am. Coupon Exch., Inc., 913 F.2d 676, 684-85 (9th Cir. 

1990); Harris v. Railway Express Agency, 178 F.2d 8, 10 (10th Cir. 1949); Coats & Clark, Inc. 

v. Gay, 755 F.2d 1506, 1509-10 (11th Cir. 1985), cert. denied, 474 U.S. 903 (1985); Preseault v.

United States, 100 F.3d 1525, 1546 (Fed Cir. 1996); Loglan Inst., Inc. v. Logical Language Grp.,

Inc., 962 F.2d 1038, 1040 (Fed. Cir. 1992); Connors v. Incoal, Inc., 995 F.2d 245, 251-52 (D.C.

Cir. 1993); Fox v. Johnson & Wimsatt, 127 F.2d 729, 736-37 (D.C. Cir. 1942). Of the two

circuits that have not recognized this procedure, the Third Circuit has not had an opportunity to

rule on it, and the Second Circuit has established a substantially similar procedure in ERISA

cases. See, e.g., O’Hara v. Nat’l Union Fire Ins. Co. of Pittsburgh, 642 F.3d 110, 116 (2d Cir.

2011) (allowing a judge to make findings of fact at the summary judgment stage, but stating that

“it must be clear that the parties consent to a bench trial on the parties’ submissions”). Lower

courts in both jurisdictions, however, have recognized the right of the judge to make the ultimate

inference in a nonjury case on undisputed facts. See, e.g., SEC v. Credit Bancorp, Ltd., 738 F.

Supp. 2d 376, 392 (S.D.N.Y. 2010) (“Where the only issues remaining concern the legal

consequences of undisputed facts, summary judgment is appropriate.”); Chao v. Local 54, Hotel

 (continued...) 

38 FMSHRC Page 1964
hypothetical reasonable jury could make the ultimate inference for one side or the other — the 

court itself is the trier of fact. 

For example, in EEOC v. Steamship Clerks Union, Local 1066, 48 F.3d 594, 610 (1st Cir. 

1995), cert. denied, 516 U.S. 814 (1995), the First Circuit affirmed a grant of summary judgment 

finding that a union’s membership policy discriminated against minorities.8

 The parties crossmoved for summary judgment, “the Union voiced no disagreement with the facts on which the 

EEOC had constructed its case[, and i]t gave no indication either that it intended to introduce any 

additional evidence or that any such evidence existed.” Id. at 603 (footnote omitted). Instead, 

“the Union’s contentions centered entirely around the ultimate legal significance to be accorded 

to conceded facts,” and the circuit court considered the dispute as submitted as “a case stated.” 

Id. The circuit court provided the following summary judgment standard: 

Circuit precedent teaches that in such a situation—where, 

in a nonjury case, “the basic dispute between the parties concerns 

the factual inferences . . . that one might draw from the more basic 

facts to which the parties have drawn the court's attention,” where 

“[t]here are no significant disagreements about those basic facts,” 

and where neither party has “sought to introduce additional factual 

evidence or asked to present witnesses”—the district court is freed 

from the usual constraints that attend the adjudication of summary 

judgment motions. 

Id. (alterations in original) (quoting Federacion de Empleados del Tribunal Gen. de Justicia v. 

Torres, 747 F.2d 35, 36 (1st Cir. 1984) (Breyer, J.)). In affirming the judgment on liability, the 

court allowed summary judgment to stand even though the union sought to rebut the EEOC’s 

case with an alternative theory of causation in the case. The First Circuit stated that “[a]lthough 

this twist, if believed, might conceivably furnish an alternative theory of causation, it is 

unsupported by any cogent evidence, and, in all events, did not foreclose the district court from

making a contrary, inference-based determination of causation.” Id. at 607 n.15 (emphasis 

added). 

The D.C. Circuit applies the same rule, first stated in Fox v. Johnson & Wimsatt, 127 

F.2d 729, 737 (D.C. Cir. 1942): “Conflict concerning the ultimate and decisive conclusion to be

drawn from undisputed facts does not prevent rendition of a summary judgment, when that

conclusion is one to be drawn by the court.” The issue in that case was whether a resolution of a

board of directors to redeem preferred stock was a binding contract or a mere statement of policy

7 (...continued) 

Emps. & Rest. Emps. Int’l Union, 166 F. Supp. 2d 109, 116 (D.N.J. 2001) (stating that a court is 

allowed to resolve the factual question of “reasonableness” on undisputed facts “if a bench trial 

would not enhance its ability to draw inferences and conclusions”). 

8

 The court, however, vacated in part and remanded the case for a reconsideration of the 

district court’s remedial ruling, since the partial motion for summary judgment filed by the 

EEOC addressed only the question of liability. Steamship Clerks Union, 48 F.3d at 609-10. 

38 FMSHRC Page 1965
by the board. Id. at 733. The court admitted that “the resolution conceivably could be given the 

meaning for which each [party] contends.” Id. Nevertheless, the court found that summary 

judgment was appropriate: “There was conflict concerning interpretation of the facts and the 

ultimate conclusion to be drawn from them respecting intention. But here was none as to the 

facts themselves. In other words, the evidentiary facts were not substantially in dispute.” Id. at 

736. 

More recently, the D.C. Circuit, although finding legal error in the case, stated that “if all 

the material facts underlying the ultimate fact of whether the operation at issue rises to the level 

of a ‘trade or business’ were undisputed, then the case might have been ripe for disposition on 

summary judgment.” Connors v. Incoal, Inc., 995 F.2d 245, 251-52 (D.C. Cir. 1993) (emphasis 

in original). The District Court of the District of Columbia follows this rule: 

Where . . . the Court would be the trier of fact if the case were to 

proceed to trial, “the ‘Court is not confined to deciding questions 

of law, but also may . . . draw a derivative inference from 

undisputed subsidiary facts, even if those facts could support an 

inference to the contrary, so long as the inference does not depend 

upon an evaluation of witness credibility.’” 

Gen. Elec. Co. v. Jackson, 595 F. Supp. 2d 8, 14-15 (D.D.C. 2009), aff’d, 610 F.3d 110 (D.C. 

Cir. 2010), cert. denied, 563 U.S. 1032 (2011) (quoting OAO Alfa Bank v. Ctr. for Pub. Integrity, 

387 F. Supp. 2d 20, 39 (D.D.C. 2005) (quoting Cook v. Babbitt, 819 F. Supp. 1, 11 & n.11 

(D.D.C. 1993))). 

Judge Posner of the Seventh Circuit has explained that any superficial tension between 

these precedent and Rule 56 is illusory: 

Factual disputes are not supposed to be resolved on summary 

judgment. The purpose of the summary judgment procedure is to 

determine whether there is a (material) factual dispute, in which 

event there must be a trial. That is the general rule, all right, but it 

doesn't make much sense in a case in which the only “factual” 

issue is one of characterization, that is, of application of undisputed 

lay facts, and the opponent of summary judgment claims no right 

to a jury trial. For then both the record and the factfinder are the 

same in the summary judgment proceeding as they would be in a 

trial. There is no more evidence to put in and no different trier to 

evaluate it. When both these conditions are satisfied, the formally 

“factual” dispute is properly resolved on summary judgment. 

Cent. States, Se. & Sw. Areas Pension Fund v. Slotky, 956 F.2d 1369, 1373-74 (7th Cir. 1992) 

(internal citation omitted) (citing Dimmitt & Owens Financial, Inc. v. United States, 787 F.2d 

1186, 1192 (7th Cir. 1986); May v. Evansville–Vanderburgh Sch. Corp., 787 F.2d 1105, 1116 

(7th Cir. 1986)). 

38 FMSHRC Page 1966
 Accordingly, in nonjury cases, where the lay, evidentiary, or historical facts are not in 

dispute, even if the ultimate inference to be drawn remains in dispute, courts allow that issue to 

be resolved on summary judgment. See Nunez v. Superior Oil Co., 572 F.2d 1119, 1123-24 (5th 

Cir. 1978) (“If decision is to be reached by the court, and there are no issues of witness 

credibility, the court may conclude on the basis of the affidavits, depositions, and stipulations 

before it, that there are no genuine issues of material fact, even though decision may depend on 

inferences to be drawn from what has been incontrovertibly proved.”). Thus, judges may on 

summary judgment conclude “that there was or was not negligence, or that someone acted 

reasonably or unreasonably, or . . . that delay under the circumstances proved is justified or 

unjustified, even if that conclusion is deemed ‘factual’ or involves a ‘mixed question of fact and 

law.’” Id. at 1124. Here, the Secretary did not raise any factual dispute, and the Judge was 

entitled to infer whether the uncontested facts constituted advance notice of an inspection. 

IV. Summary Judgment for Respondent Is Supported by the Record 

 Applied to the facts of this case, the summary judgment standard compels one 

conclusion: the Judge properly granted summary decision for Respondent.9 The evidentiary 

facts were not in dispute for the purposes of the motion for summary motion. Respondent and 

the Secretary both restate the facts from the MSHA inspector’s citation and notes: Inspector 

Sparks heard a voice from the #4 unit ask if there was “company outside,” and the dispatcher 

responded, “Yeah, I think there is.” Mem. Supp. Mot. at 3; Resp. to Mot. at 2. Sparks then 

asked who was on the line and received no response. Resp. to Mot., Ex. C. 

 Respondent argued in its memorandum in support of its motion for summary judgment 

that “taking the undisputed material facts as alleged by the Secretary . . . as true, the facts cannot 

and do not amount to a violation of Section 103(a).” Mem. Supp. Mot. at 4. Respondent also 

argued that company being outside was a “general statement that easily could encompass any of 

[several] exempted activities,” id. at 6 n.2, and that no one discussed where an inspector would 

be heading, the target of any inspection, or use words such as “inspection,” “investigation,” 

“inspector,” or any other words regarding inspection activities. Id. at 5. 

 The Secretary, therefore, was clearly on notice of the material facts that were undisputed 

and the conclusion to drawn from those facts — namely, that the uncontested facts did not 

demonstrate a violation. It was, therefore, the Secretary’s responsibility to set forth any disputed 

material facts supporting a violation. Yet, the Secretary offered nothing. The Secretary simply 

assumed the occurrence of a violation and “assert[ed] that KenAmerican violated Section 103(a) 

of the Mine Act and that there [were] genuine issues as to the material facts relating to the 

gravity and negligence of the citation issued. Therefore, KenAmerican is not entitled to 

summary decision.” Resp. to Mot. at 3-4. 

 With respect to the possible violation, therefore, the Secretary merely made a conclusory 

argument that based on the undisputed facts KenAmerican violated section 103(a)’s proscription 

 9

 While the circuit courts are split in the applicable standard of review for ultimate 

inferences made on summary judgment — de novo or abuse of discretion — that issue need not 

be decided in this case, because the Judge should be affirmed under either standard. 

38 FMSHRC Page 1967
against advance notice. The Secretary disputed the legal conclusion; he did not dispute the facts 

from which such conclusion would or would not be drawn. Further, the Secretary did not submit 

any evidence supporting a contradictory interpretation of the facts and, thus, submitted the 

motion to the court’s review on the facts set forth by the Respondent.10

Respondent, in its reply to the Secretary’s response, gave the Secretary another 

opportunity to provide evidence that could support a different inference: 

The Secretary . . . does not allege any dispute of material fact as 

to the fact of the violation itself. Any dispute of fact as to gravity 

and negligence should not preclude summary disposition as to 

the fact of the violation. . . . KenAmerican . . . has pointed out 

that, indisputably, “company” being “outside” (i.e., the allegedly 

violative communication here) is a very general statement that 

easily could encompass any of the exempted investigatory 

activities, further warranting summary decision. 

Reply Supp. Mot. at 2. The Secretary did not seek to file a sur-reply in the weeks prior to the 

Administrative Law Judge’s decision. 

Reviewing the evidence provided on summary decision, the Judge properly found no 

disputed facts. 37 FMSHRC 1809, 1809 (Aug. 2015) (ALJ). There was one witness identified, 

Doyle Sparks, the Judge had his complete declaration, and there was no issue of witness 

credibility alleged by the Secretary regarding his one witness. Thus, summary judgment was 

appropriate. 

Additionally, the Secretary had over three years to gather sufficient evidence to overcome 

a motion for summary decision. The citation in this case was issued on April 20, 2012. The 

Secretary’s penalty petition was received by the Commission on January 3, 2013. The 

Secretary’s response to the motion for summary decision was filed on August 3, 2015. Despite 

the three years in which the Secretary had time to investigate and support his allegation, there 

were only three items of support for the citation in the record, and he provided those as exhibits 

to his response: (1) the original citation, issued by Doyle Sparks; (2) the inspector’s notes, 

written by Doyle Sparks; and (3) a declaration restating the inspector’s notes, also written by 

Doyle Sparks. No depositions were taken. The Secretary in his response did not identify any 

additional witnesses that would provide more illuminating testimony. Thus, the Judge heard a 

motion and response asserting the same, uncontested material facts, and the Secretary failed to 

state any material factual dispute regarding the occurrence of a violation. Thus, the facts were 

undisputed, and there was no issue of witness credibility to justify a hearing: Doyle Sparks was 

the only witness, and the Judge had his statement in triplicate. 

10 See also PDR at 9 (“The Secretary agreed that the words Inspector Sparks overheard 

were not in dispute. The Secretary argued that summary decision was not warranted, however, 

because the statements violated Section 103(a) of the Act and KenAmerican was therefore not 

entitled to summary decision as a matter of law.” (citations omitted)). 

38 FMSHRC Page 1968
 The courts are clear — in a nonjury trial, a Judge, faced with undisputed material facts 

and no issues of witness credibility, may make the ultimate inference in the case without 

subjecting the parties to the time and expense of a trial. The Secretary, in response to a motion 

alleging undisputed facts, responded not with evidence, or even an argument, but merely a legal 

conclusion that the Respondent committed a violation: “The Secretary asserts that KenAmerican 

violated Section 103(a) of the Mine Act.” Resp. to Mot. at 3-4. The Secretary did not assert any 

rebuttal evidence in responding to the motion and, thus, the motion was ripe for final 

adjudication regarding the inference to be drawn. 

V. The Secretary’s Attempt to Introduce New Evidence Before the Commission 

Must Be Rejected 

Contrary to precedent cited above, the majority remands the case presumably to allow the 

Secretary to present additional evidence through affidavits, exhibits, or trial testimony that was 

not in the record and not presented to the Judge in opposition to the motion for summary 

judgment. The majority, therefore, provides the Secretary an opportunity to present evidence 

that it failed to produce in response to the motion for summary judgment. That decision is 

contrary to well-established and long-standing precedent precluding a post-decision proffer of 

additional evidence not provided before a court on summary judgment. Indeed, courts regularly 

uphold summary judgments and deny motions for reconsideration where the losing party 

attempts to introduce additional, material evidence along with an argument that it would have 

affected the outcome of the case. The majority’s decision undermines the purpose of summary 

judgment. 

 The Supreme Court has stated that at the summary judgment stage: 

[W]here the nonmoving party will bear the burden of proof at trial 

on a dispositive issue, . . . Rule 56(e) . . . requires the nonmoving 

party to go beyond the pleadings and by her own affidavits, or by 

the “depositions, answers to interrogatories, and admissions on

file,” designate “specific facts showing that there is a genuine issue 

for trial.” 

Celotex, 477 U.S. at 324. In such a case, “the burden on the moving party may be discharged by 

‘showing’ — that is, pointing out to the district court — that there is an absence of evidence to 

support the nonmoving party’s case.” Id. at 325 (emphasis added). 

Because the nonmoving party must provide sufficient evidence from which the party can 

meet the burden of proof, a party has no excuse for not producing material and relevant evidence 

when challenged by a summary judgment motion. Courts have long recognized that one of the 

purposes of summary judgment, in fact, is to permit a party to pierce the allegations of fact in the 

pleadings, or, in other words, to require the party with the burden of production to produce 

evidence to support its claim. 

In Engl v. Aetna Life Ins. Co., 139 F.2d 469, 470 (2d Cir. 1943), for example, a plaintiff 

sued to collect as a beneficiary of three insurance policies, and the defendant contended that in 

38 FMSHRC Page 1969
applying for the insurance the deceased husband had misrepresented the facts of his 

consultations with physicians. The defendant tried to depose two of the physicians, but the 

plaintiff claimed privilege, asserting that the conversations were confidential. Id. The district 

court granted summary judgment, and the plaintiff appealed, contending that “she was not 

compelled to disclose her case in advance of trial . . . and thus could rely until then upon the 

possibility that the doctors might show the consultation to have been on inconsequential 

ailments.” Id. The Second Circuit affirmed the grant of summary judgment. Id. at 473. In 

doing so, the court noted that the plaintiff’s argument would defeat the purpose of the summary 

judgment standard: 

If one may thus reserve one’s evidence when faced with a motion

for summary judgment there would be little opportunity ‘to pierce 

the allegations of fact in the pleadings’ or to determine that the 

issues formally raised were in fact sham or otherwise 

unsubstantial. It is hard to see why a litigant could not then 

generally avail himself of this means of delaying presentation of 

his case until the trial. So easy a method of rendering useless the 

very valuable remedy of summary judgment is not suggested in 

any part of its history or in any one of the applicable decisions. 

Id. To allow a party to withhold evidence on summary judgment and still proceed to trial is 

anathema to the purpose of the procedure. Cf. Teamsters Local Union No. 117, 789 F.3d at 994 

(stating that the nonmoving party “may not merely state that it will discredit the moving party’s 

evidence at trial and proceed in the hope that something can be developed at trial in the way of 

evidence to support its claim” (quoting T.W. Elec. Serv. v. Pac. Elec. Contractors Ass’n, 809 

F.2d 626, 630 (9th Cir. 1987))).

Furthermore, as the Seventh Circuit has repeatedly stated, summary judgment is “not a 

dress rehearsal or practice run; it is the put up or shut up moment in a lawsuit, when a party must 

show what evidence it has that would convince a trier of fact to accept its version of the events.” 

Steen, 486 F.3d at 1022 (quoting Hammel, 407 F.3d at 859). Where a party has ample time to 

conduct discovery and develop his or her case, but fails to produce admissible evidence, courts 

are not required to give that party a “do over.” Winters v. Fru-Con Inc., 498 F.3d 734, 743 (7th 

Cir. 2007). 

The Secretary attempts to introduce additional evidence on appeal that he failed to submit 

to the Judge below. See S. Br. at 23; Apps. B, C (providing evidence from MSHA handbooks 

that were not submitted to the judge on summary decision). The Secretary could and should 

have presented the evidence in opposition to summary judgment. 

On appeal from a summary judgement, a party is permitted to rely upon only “newly 

discovered evidence that, with reasonable diligence, could not have been discovered in time to 

move for a new trial under Rule 59(b).” Fed. R. Civ. P. 60(b)(2). In Useden v. Acker, 947 F.2d 

1563, 1571-72 (11th Cir. 1991), for example, the circuit court upheld the district court’s decision 

to strike an affidavit from a key witness submitted after a deadline, but prior to a hearing on the 

motions for summary judgment. The court refused to consider it in its review of the grant of 

38 FMSHRC Page 1970
summary judgment, stating that “[t]he content of the affidavit was not newly discovered 

evidence extracted from a previously missing source[, and t]he affiant was available to the 

appellant throughout the course of discovery and in fact provided extensive deposition testimony 

apart from the affidavit.” Id. at 1572. 

Here, the Secretary seeks to introduce appendices to his opening brief. However, the two 

MSHA handbooks and a district court order denying a motion to dismiss were available well 

before summary decision was entered in this case. Appendix A, the district court order, was 

issued in September 2002, and it was easily available with a diligent search (one the Secretary 

chose not to conduct until this case was on appeal). Appendix B, a coal inspection procedure 

handbook, was published in February 2013 by the Secretary. Appendix C, a metal/non-metal 

inspection procedure handbook, was published in April 2013 by the Secretary. Summary 

decision was entered on August 25, 2015. The Secretary obviously could have provided in the 

summary judgment proceeding the material he now attempts to provide to the Commission.11 

CONCLUSION 

 Under the proper summary judgment standard, the Judge’s decision was correct. It is 

possible that the Secretary could have provided evidence to support his allegations at the 

summary decision stage, but he did not. By filing a perfunctory response, the Secretary risked 

and received an adverse judgment. We disagree with the majority’s decision to give the 

Secretary a second chance. Such action in this case encourages insufficient pleadings by the 

Secretary. We respectfully dissent. 

 Michael G. Young 

 Michael G. Young, Commissioner 

 William I. Althen 

 William I. Althen, Commissioner 

 11 For these reasons, we would grant KenAmerican’s motion to strike with respect to the 

appendices. 

38 FMSHRC Page 1971
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004-1710

August 25, 2016 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. Docket No. LAKE 2011-13 

THE AMERICAN COAL COMPANY 

and 

UNITED MINEWORKERS 

 Of AMERICA 

and 

UNITED STEEL, PAPER and FORESTRY, 

 RUBBER MANUFACTURING, 

 ALLIED and INDUSTRIAL SERVICE 

 WORKERS INTERNATIONAL UNION 

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

DECISION 

BY THE COMMISSION: 

In this civil penalty proceeding, arising under the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 801 et seq. (2012) (“Mine Act” or “Act”), a Commission Administrative Law 

Judge denied a motion to approve a settlement between The American Coal Company 

(“AmCoal”) and the Secretary of Labor because no factual support had been provided for a 30% 

penalty reduction for each of the 32 citations issued to AmCoal by the Secretary. 35 FMSHRC 

515 (Feb. 2013) (ALJ). The Secretary subsequently filed a motion for reconsideration, in which 

the Secretary refused to provide further factual support and challenged the basis for the Judge’s 

action. The Judge again denied the motion. 36 FMSHRC 1489 (May 2014) (ALJ). 

In this interlocutory appeal of the Judge’s denial, the Secretary seeks to change the course 

of more than 35 years of administrative practice and case law. The Secretary has chosen this 

case to be the “test case” for advancing his position that the Commission’s authority to review 

settlements of contested penalties under section 110(k) of the Mine Act, 30 U.S.C. § 820(k),1

 is

1

  Section 110(k) provides in relevant part that a proposed penalty that has been contested 

can be settled only if approved by the Commission.  

38 FMSHRC Page 1972
much more limited than that described in Black Beauty Coal Co., 34 FMSHRC 1856, 1860-64 

(Aug. 2012). See Intervenor’s Br., Ex. D (Memorandum from Heidi Strassler, Assoc. Solicitor 

for Mine Safety and Health, to Regional Solicitors (May 2, 2014)). The Secretary also seeks to 

have the Commission import and apply the consent decree standard of review employed by the 

Second Circuit in SEC v. Citigroup Global Markets, Inc., 752 F.3d 285 (2d Cir. 2014) 

(“Citigroup II’). For the reasons that follow, we decline to do so and affirm in all respects the 

Judge’s denial of the motion to approve settlement. 

I. 

Factual and Procedural Background 

 This case involves 32 contested citations issued to AmCoal between July 13 and August 

12, 2010, 14 of which were designated as significant and substantial (“S&S”).2 In February 

2013, the Secretary filed a motion to approve a proposed settlement and dismiss the proceedings. 

Under the proposed settlement, AmCoal would accept the citations as written, including the 

allegations regarding gravity and negligence, but pay a 30% across-the-board penalty reduction. 

The proposed settlement states as the rationale for the reduction in penalties: 

After further review of the evidence, the Secretary has determined 

that a reduced penalty is appropriate in light of the parties’ interest 

in settling this matter amicably without further litigation. In 

recognition of the nature of the citations at issue, and the 

uncertainties of litigation, the parties wish to settle the matter with 

a 30% reduction in the total assessed penalty with no changes in 

gravity or negligence for any of the citations at issue. 

Mot. to Approve Set. at 2-3. 

The Judge issued a decision denying the settlement motion based upon his reading of 

section 110(k), its legislative history, and the Commission’s decision in Black Beauty. 

35 FMSHRC at 515-17. He reasoned that the motion failed to provide adequate factual support 

for the penalty reductions, and stated that the across-the-board reduction for each of the citations 

was itself a “red flag.” Id. 

The Secretary subsequently filed a motion for reconsideration. In the motion, the 

Secretary requested that the Judge reconsider his conclusions that section 110(k) compelled him 

to reject the settlement for lack of factual support, and that section 110(k) does not permit the 

                                                             2

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

§ 814(d)(1), which distinguishes as more serious any violation that “could significantly and 

substantially contribute to the cause and effect of a . . . mine safety or health hazard.”

38 FMSHRC Page 1973
Secretary to negotiate settlement agreements structured as a uniform percentage reduction of 

penalties. S. Mot. for Recon. at 4. The Secretary’s counsel stated that: 

Exercising her professional judgment as a representative of the

Secretary, she considered the value of the proposed compromise;

the prospects of coming out better, or worse, after a full trial; and 

the resources that the Secretary would need to expend in going 

through a trial. The Secretary, through the undersigned counsel, 

represents that the proposed settlement is in the public interest and 

is compatible with MSHA’s enforcement goals. 

 Id.

The Judge again denied the motion to approve settlement. 36 FMSHRC at 1502. The 

Judge concluded that the Secretary had not altered the terms of the original settlement agreement 

or provided further explanation to justify it. Id. at 1489. 

The Secretary subsequently filed a motion requesting that the Judge certify his ruling for 

interlocutory review. The Judge denied the motion and issued a certification for interlocutory 

review on his own motion. The Secretary then filed a petition for interlocutory review with the 

Commission. In light of the Judge’s certification and the Secretary’s petition, we issued an 

order granting interlocutory review on the issue of whether the Judge erred in denying the 

Secretary’s motion to approve settlement. 

We also issued an order permitting intervenor participation by the United Mine Workers 

of America (“UMWA”) and the United Steel, Paper and Forestry, Rubber Manufacturing, 

Energy, Allied Industrial and Service Workers International Union (“United Steel Workers”), 

and amicus curiae participation by former U.S. Representative George Miller.3

 In addition, we 

heard oral argument. 

II. 

Disposition 

On review, the Secretary argues that the Judge erroneously denied the settlement 

proposal and rejected across-the-board percentage penalty reductions based on an incorrect 

reading of section 110(k). He contends that section 110(k) should be interpreted in light of the 

separation of powers principle that settlement decisions involve policy choices that the U.S. 

Constitution vests in political branches, not in court-like agencies like the Commission. 

The Secretary asserts that enforcement agencies are generally presumed to have 

unreviewable discretion to settle enforcement actions. Citing Heckler v. Chaney, 470 U.S. 821, 

834 (1985), he submits that such a presumption can be overcome only where the controlling 

statute both (1) indicates an intent to circumscribe agency enforcement discretion; and 

3

  AmCoal decided not to file a brief in this case.  

38 FMSHRC Page 1974
(2) provides meaningful standards for defining the limits of that discretion. The Secretary argues 

that section 110(k) does not satisfy the second prong of the Chaney test because the statute 

provides no meaningful standards for judicial review of settlements, and that the Commission’s 

role is no different than that of a “generalist court.” S. Br. at 19-22; S. Reply Br. at 6-7. 

The Secretary further contends that section 110(i) of the Act, 30 U.S.C. § 820(i),4 cannot 

supply the standard that section 110(k) does not provide, that the Act’s legislative history does 

not provide a standard for limiting the Secretary’s prosecutorial discretion, and that to the extent 

Commission Procedural Rule 31, 29 C.F.R. § 2700.31, provides a substantive standard, the rule 

exceeds the Commission’s authority to promulgate only procedural rules. He asserts that when 

reviewing settlement proposals, the Commission should apply the consent decree standard of 

review applied by the Second Circuit in Citigroup II. Under the Secretary’s theory, the Judge 

was not entitled to request any additional information supporting the reduction in penalties.

The UMWA and United Steel Workers respond that the Judge correctly denied the 

settlement motion. They argue that section 110(k) plainly requires that proposed settlements be 

approved by the Commission and delegates to the Commission the authority to effectuate that 

mandate. Former Congressman Miller supports the position of the intervenors. 

A. The Commission’s Role in Approving Settlements 

 Section 110(k) of the Mine Act sets forth the requirements for the approval of proffered 

settlements of contested penalties. It provides: 

No proposed penalty which has been contested before the 

Commission under section 105(a) shall be compromised, 

mitigated, or settled except with the approval of the Commission. 

No penalty assessment which has become a final order of the 

Commission shall be compromised, mitigated, or settled except 

with the approval of the court. 

30 U.S.C § 820(k). Thus, section 110(k) states in very clear language that the Commission has 

the exclusive responsibility for approving all proposed settlements of contested civil penalties. 

The legislative history of section 110(k) describes the Congressional rationale behind the 

provision in great detail. The Senate Report states that the “compromising of the amounts of 

penalties actually paid” had reduced “the effectiveness of the civil penalty as an enforcement 

tool.” S. Rep. No. 95-181, at 44 (1977), reprinted in Senate Subcomm. on Labor, Comm. on 

Human Res., Legislative History of the Federal Mine Safety and Health Act of 1977, at 632 

(1978) (“Legis. Hist.”). The Committee explained that in investigating the penalty collection 

system under the Federal Coal Mine Safety and Health Act of 1969, it learned “that to a great 

extent the compromising of assessed penalties [did] not come under public scrutiny,” and that 

“[n]egotiations between operators and Conference Officers of MESA [MSHA’s predecessor] are 

                                                             4

  Section 110(i) of the Act provides that the Commission is to assess all final civil 

penalties under the Act.  

38 FMSHRC Page 1975
not on the record.” Id. It noted that even after a petition for civil penalty had been filed, 

“settlement efforts between the operator and Solicitor [were] not on the record, and a settlement 

need not be approved by the Administrative Law Judge.” Id. 

In fashioning a solution to this problem, Congress emphasized the need for transparency 

in the penalty process, stating that “the purpose of civil penalties, [that is,] convincing operators 

to comply with the Act’s requirements, is best served when the process by which these penalties 

are assessed and collected is carried out in public,” where miners, Congress, and other interested 

parties “can fully observe the process.” Id. at 633. “To remedy this situation,” section 110(k) 

“provides that a penalty once proposed and contested before the Commission may not be 

compromised except with the approval of the Commission” and that a “penalty assessment 

which has become the final order of the Commission may not be compromised except with the 

approval of the Court.” Id. 

Congress explained that “[b]y imposing [the] requirements” of section 110(k), it 

“intend[ed] to assure that the abuses involved in the unwarranted lowering of penalties as a 

result of off-the-record negotiations are avoided.” Id. (emphasis added). Congress expressed its 

“inten[t] that the Commission and the Courts will assure the public interest is adequately 

protected before any reduction in penalties.” 5 Id. 

Based on the language of section 110(k) and its legislative history, the Commission 

reaffirmed in Black Beauty that Congress authorized the Commission to approve the settlement 

of contested penalties in section 110(k) “[i]n order to ensure penalties serve as an effective 

enforcement tool, prevent abuse, and preserve the public interest.” 34 FMSHRC at 1862 

(citations omitted). In effectuating this Congressional mandate, the Commission and its Judges 

consider whether the settlement of a proposed penalty is fair, reasonable, appropriate under the 

facts, and protects the public interest. 

The Commission’s consideration of proffered settlements has worked well for more than 

35 years.6 Indeed, a majority of proceedings under the Mine Act have been settled, and the vast 

5

  The Secretary downplays the significance of the legislative history. S. Br. at 30-31 

(“the statements about collection and litigation expenses and the Commission’s role in 

determining the public interest are highly specific criteria that . . . should not be construed as 

legal restrictions”), 32-38; see also Oral Arg. Tr. at 10, 24. However, Congress chose to explain 

the purpose of section 110(k) and the Commission’s role in approving settlements in unusually 

specific terms. That legislative history cannot be ignored simply because of the passage of time 

or because it may be convenient for the Secretary to do so. 

6

  The Secretary’s position in this case represents a reversal of a long-standing 

institutional position. See Amicus Br. at 13 (quoting the Secretary’s response to an audit by the 

General Accountability Office in which the Secretary explains that supporting reasons for 

settlements are presented to the Commission and that “MSHA and SOL agree that transparency 

in any resulting civil penalty settlement agreement is essential to ensure public confidence”).

38 FMSHRC Page 1976
majority of settlement agreements submitted for approval have been approved by Commission 

Judges.7

The Secretary argues that the Commission’s review should be more limited than that 

described in Black Beauty because section 110(k) should be interpreted in light of the separation 

of powers principle that settlement decisions involve policy choices that are vested in political 

branches, not in court-like agencies like the Commission. He further argues that the 

Commission’s function in reviewing settlement proposals is no different than that of a generalist 

court. 

The Commission is an independent federal agency that shares a unique split enforcement 

scheme under the Mine Act with the Secretary of Labor. Under the split enforcement scheme of 

the Mine Act, Congress has given the Secretary and the Commission separate roles and 

functions, particularly with respect to civil penalties. Section 110(i) describes the distinct roles 

of the Secretary and the Commission with respect to the proposal and assessment of penalties: 

the Secretary proposes penalties based on an available summary of information and need not 

make factual findings, while the Commission assesses “all” penalties under the Act, based upon 

its consideration of six specified criteria. 

The Commission shall have authority to assess all civil penalties 

provided in this Act. In assessing civil monetary penalties, 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 the person charged in attempting to achieve rapid 

compliance after notification of a violation. In proposing civil 

penalties under this Act, the Secretary may rely upon a summary

review of the information available to him and shall not be 

required to make findings of fact concerning the above factors.

30 U.S.C. § 820(i). See Mach Mining, LLC v. Sec’y of Labor, 809 F.3d 1259, 1264 (D.C. Cir. 

2016) (citing Sellersburg Stone Co. v. FMSHRC, 736 F.2d, 1147, 1151-52 (7th Cir. 1984)) (other 

citations omitted) (noting “split-function” of penalty scheme under the Mine Act); Thunder 

Basin Coal Co. v. Reich, 510 U.S. 200, 208 (1994) (“Only the Commission has authority actually 

to impose civil penalties proposed by the Secretary, § 820(i), and the Commission reviews all 

proposed civil penalties de novo according to six criteria.”). 

                                                             7

  Former Congressman Miller noted that “[i]n the past five years, Commission ALJs 

have approved 38,501 settlements and rejected only 17 (excluding the settlement in this case), or 

0.04% of all settlements submitted for approval.” Amicus Br. at 14. Counsel for the UMWA 

aptly described the Secretary’s position in this proceeding as “a solution in search of a problem.” 

Oral Arg. Tr. at 30. 

38 FMSHRC Page 1977
The Commission cannot accurately be compared to a generalist court or any other 

judicial or administrative entity owing deference to the unreviewable settlement decisions of an 

executive agency. Section 113(a) of the Mine Act requires Commissioners to have certain 

qualifications to carry out the Commission’s functions under the Act.8

 30 U.S.C. § 823(a) 

(stating that the Commission shall be comprised of “five members, appointed by the President by 

and with the advice and consent of the Senate, from among persons who by reason of training, 

education, or experience are qualified to carry out the functions of the Commission under this 

Act”); see Thunder Basin, 510 U.S. at 214 (noting the “Commission’s expertise” in construing 

the Mine Act). 

It is also noteworthy that civil penalties under the Mine Act ultimately become final 

orders or decisions “of the Commission,” not of the Secretary. Uncontested penalties, that is, 

penalties that have been proposed by the Secretary but have not been contested by an operator or 

miner under section 105(a) or 105(b) of the Mine Act, are “deemed a final order of the 

Commission” 30 days after the operator or miner receives the penalty notification from the 

Secretary. 30 U.S.C. §§ 815(a), 815(b) (emphasis added). Contested penalties that are the 

subject of proceedings before the Commission and its Judges ultimately become part of final 

decisions of the Commission under section 113(d) of the Act, 30 U.S.C. § 823(d). Similarly, in 

cases in which an operator has defaulted on a proposed penalty assessment by failing to timely 

answer the Secretary’s penalty petition, the Judge’s default order on the penalty becomes a “final 

decision of the Commission” 40 days after its issuance. 30 U.S.C. § 823(d)(1); see, e.g., Horton 

v. Coal River Mining, LLC, 38 FMSHRC ___, slip op. at 2, No. WEVA 2013-1183-D (June 28,

2016) (emphasis added). Under section 110(k), courts of appeals may review a proffered

settlement of a “penalty assessment which has become a final order of the Commission.” 30

U.S.C. § 820(k) (emphasis added).

8

  The Senate Report explains: 

The Committee believes that an independent Commission 

is essential to provide administrative adjudication which preserves 

due process and instills much more confidence in the program. 

The Commission is to have five members, who shall be 

selected from among those who by reason of training, education, or 

experience are qualified for consideration. This qualification is not 

intended to limit the selection of members to technicians. It is the 

Committee’s expectation that nontechnicians with requisite 

administrative experience or persons whose qualifications are 

based upon either formal training or practical experience in mine 

safety and health or related matters would qualify for appointment. 

S. Conf. Rep. No. 95-181, at 47 (1977), reprinted in Legis. Hist. at 635.

38 FMSHRC Page 1978
With respect to settlements of contested penalties, section 110(k) explicitly grants 

approval authority to the Commission.9

 The very existence of section 110(k) makes comparisons 

between the Commission’s review of settlement proposals with settlement review by other 

agencies and courts inappropriate. The Department of Labor and the Occupational Health and 

Safety Review Commission (“OSHRC”) share a split-enforcement scheme under the 

Occupational Safety and Health Act of 1970 (“OSHAct”), while other agencies that follow this 

model are rare. However, there is no provision similar to section 110(k) in the OSHAct. Indeed, 

the parties have not revealed a single provision in any federal statute that is similar to section 

110(k). 

 Accordingly, the Secretary’s contentions that separation of powers principles are relevant 

have no merit. First, because the Department of Labor and the Commission are wholly separate 

Article II agencies, such principles do not come into play. Second, although Congress gave the 

Secretary most of the enforcement powers under the Act, it expressly chose to give to the 

Commission the authority to assess penalties and approve settlements – powers that usually are 

given to an enforcement agency. Congress spoke clearly in this regard. 

B. Reviewability

 We similarly find unavailing the Secretary’s challenge to the scope of the Commission’s 

review of proposed settlements. The Secretary argues that enforcement agencies are generally 

presumed to have unreviewable discretion to settle enforcement actions. He contends, “[t]he 

default presumption of unreviewability is overcome, however, only where the controlling statute 

both (1) ‘indicate[s] an intent to circumscribe agency enforcement discretion,’ and (2) 

‘provide[s] meaningful standards for defining the limits of that discretion.’” S. Br. at 19, quoting 

Heckler, 470 U.S. at 834. He states that section “110(k) does not, however, satisfy the second 

part of the Heckler test because the statute provides no meaningful or substantive standards that 

limit the Secretary’s prosecutorial discretion when the Secretary negotiates settlement 

agreements.” S. Br. at 19-20. The Secretary concludes that because Congress gave the 

                                                             9

  Because the language of section 110(k) is clear, concepts of deference are not relevant. 

The Secretary does not argue that his interpretation of section 110(k) is owed deference under 

Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). 

Even if we were to consider the language of section 110(k) to be silent or ambiguous, our 

reading of the provision would be entitled to deference under Chevron because the Commission 

is charged with administering that provision. See North Am. Drillers, LLC, 34 FMSHRC 352, 

356 n.5 (Feb. 2012). If a Court were to decide that section 110(k) was not clear and declined to 

give the Commission deference under Chevron, any interpretation of section 110(k) advanced by 

the Secretary may be entitled to a lesser degree of deference under Skidmore v. Swift & Co., 323 

U.S. 134, 139-40 (1944), since the Secretary’s interpretation is not embodied in a citation or 

rules promulgated by MSHA. See, e.g., Vulcan Constr. Materials, L.P. v. FMSHRC, 700 F.3d 

297, 316 (7th Cir. 2012). Under Skidmore, the Secretary’s position that he need not provide 

factual support for reduced penalties in settlements would not be persuasive since it is a reversal 

of a contrary position held for decades. Id. (considering whether an interpretation had the power 

to persuade based in part on the consistency in an agency’s earlier and later pronouncements).  

38 FMSHRC Page 1979
Commission “no law to apply” when reviewing settlement agreements, “the scope of [the 

Commission’s] reviewing function is, at best, limited.” Id. at 20. 

As the Secretary argues, courts have determined that the presumption of nonreviewabilty 

generally extends to an agency’s decision to settle an action. See Speed Mining, Inc. v. 

FMSHRC, 528 F.3d 310, 317 (4th Cir. 2008), citing Baltimore Gas and Elec. Co. v. FERC, 252 

F.3d 456, 461-62 (D.C. Cir. 2001). However, a “presumption of nonreviewability may be

overcome by congressional limitations.” Baltimore Gas and Elec., 252 F.3d at 459.

Section 110(k) is an explicit expression of Congressional authorization that rebuts any 

presumption of unreviewability. The Commission does not review the Secretary’s decision to 

settle. Rather, the Commission reviews the proposed reduction of civil penalties in settlements. 

Moreover, the Secretary misreads Heckler v. Chaney to support his argument that the 

Commission’s review is “at best, limited.” In Heckler, the Supreme Court explained that if a 

statute does not set forth a meaningful standard against which to review an agency’s exercise of 

discretion, the statute may be read to make the agency’s decisionmaking unreviewable. 

[R]eview is not to be had if the statute is drawn so that a court

would have no meaningful standard against which to judge the

agency’s exercise of discretion. In such a case, the statute (‘law’)

can be taken to have ‘committed’ the decisionmaking to the

agency’s judgment absolutely.

470 U.S. at 830. The Court did not speak in terms of “limited” review but, rather, spoke in terms 

of an agency’s actions under a statute being reviewable or not depending upon whether there are 

manageable standards for that review.10

Section 110(k) explicitly limits the Secretary’s authority to reduce contested penalties in 

settlement and grants the Commission authority to approve proposed settlements. If the statute 

fails to set forth a meaningful standard for the Commission’s review of reduced contested 

penalties in settlement, section 110(k) could be read to make the Commission’s exercise of 

discretion unreviewable.11 As discussed below, however, there are meaningful standards for the 

Commission’s review of settlement proposals. 

10  The Secretary has acknowledged “that the Chaney presumption of unreviewability is 

rebutted by the existence of [s]ection 110(k).” S. Reply Br. at 4. 

11  We note that the Commission’s exercise of discretion in granting or denying petitions 

for discretionary review under section 113(d)(2)(A) of the Mine Act, 30 U.S.C. § 823(d)(2)(A), 

is unreviewable. See Eagle Energy, Inc. v. Sec’y of Labor, 240 F.3d 319, 324-25 (4th Cir. 2001). 

38 FMSHRC Page 1980
C. The Commission’s Standard for Reviewing Proposed Settlements of Contested 

Penalties 

As discussed above, in Black Beauty the Commission stated that the legislative history of 

section 110(k) reveals that Congress authorized the Commission to approve the settlement of 

contested civil penalties in order to ensure that penalties serve as an effective enforcement tool, 

prevent abuse, and preserve the public interest. 34 FMSHRC at 1862. 

The Commission and its Judges must have information sufficient to carry out this 

responsibility. Consequently, through its procedural rules, the Commission has required parties 

to submit facts supporting a penalty amount agreed to in settlement. In particular, Commission 

Procedural Rule 31 requires that a motion to approve penalty settlement must include for each 

violation the penalty proposed by the Secretary, the amount of the penalty agreed to in 

settlement, and facts in support of the penalty agreed to by the parties. 29 C.F.R. 

§ 2700.31(b)(1). Rule 31 also requires that “[a]ny order by the Judge approving settlement shall 

set forth the reasons for approval and shall be supported by the record.” 29 C.F.R. § 2700.31(g). 

The requirements to provide factual support in the settlement proposal and for the Judge’s 

decision approving settlement to be supported by the record have been largely unchanged since 

the inception of the Commission’s procedural rules in 1979. See 44 Fed. Reg. 38,226, 38,230 

(June 29, 1979).12

The Commission has recognized that standards for such factual support may be found in 

section 110(i). For instance, in Black Beauty, the Commission held that it was not error for the 

Judge to request factual support relating to the six criteria set forth in section 110(i) for her 

consideration of the penalties agreed to by the parties. 34 FMSHRC at 1864 (“The Judge did not 

abuse her discretion in requiring the Secretary to provide further factual support to demonstrate 

the penalty criteria as they relate to the subject penalties.”). 

The Secretary asserts that it is inappropriate for a Judge to consider section 110(i) factors 

when considering whether to approve a proposed penalty settlement. We disagree. Congress 

 

                                                             12  Contrary to the Secretary’s argument, Rule 31 is not a substantive provision. See S. 

Br. at 40-41.  The Commission has explained that a “critical feature” of a procedural rule is that 

“it covers agency actions that do not themselves alter the rights or interests of parties, although it 

may alter the manner in which parties present themselves or their viewpoints to the agency.” 

Drummond Co., 14 FMSHRC 661, 688 (May 1992) (citations omitted). In contrast, substantive 

or legislative rules “grant rights, impose obligations, or produce other significant effects on 

private interests” and “constrict the discretion of agency officials by largely determining the 

issue addressed.” Id. at 684 (citations omitted). The requirement in Rule 31 for parties to 

provide factual support is clearly procedural in that it directs parties to conform with a 

requirement in the manner in which they present their settlement to the Commission without 

constricting the Commission’s discretion in determining whether to approve the settlement.

38 FMSHRC Page 1981
recognized that the approval of a proposed penalty reduction in settlement is part of the 

assessment and collection process. As stated in the Senate Report: 

The Committee strongly feels that the purpose of civil penalties, 

convincing operators to comply with the Act’s requirements, is 

best served when the process by which these penalties are 

assessed and collected is carried out in public, where miners and 

their representatives, as well as the Congress and other interested 

parties, can fully observe the process. 

To remedy this situation, Section 111(l) [later codified as 

section 110(k)] provides that a penalty once proposed and 

contested before the Commission may not be compromised 

except with the approval of the Commission. 

S. Conf. Rep. No. 95-181, at 45 (1977), reprinted in Legis. Hist. at 633 (emphasis added). Thus,

in Black Beauty, the Commission reasoned that its authority to “assess all civil penalties

provided in [the] Act” under section 110(i) “clearly includes contested penalties that are the

subject of a settlement agreement.” 34 FMSHRC at 1862.

Upon reviewing information supporting a reduced penalty agreed to by the parties, the 

Commission Judge need not make factual findings with respect to each of the section 110(i) 

factors as a Judge would in the assessment of a penalty after hearing. Rather, the Judge 

considers such information in the evaluation of whether the proposed reduction of penalties is 

fair, reasonable, appropriate under the facts, and protects the public interest. 

We note that parties may submit facts supporting a settlement that fall outside of the 

section 110(i) factors but that support settlement. For instance, parties may provide factual 

support demonstrating that the operator has provided additional training or made relevant 

engineering or personnel changes. As the Commission observed in Black Beauty, section 110(k) 

“contains no explicit restrictions on what a Commission Judge may consider when reviewing a 

settlement proposal.” 34 FMSHRC at 1865. Such a conclusion does not mean that the 

Commission’s review is unbounded. Rather, it means that there may be considerations beyond 

the six statutory criteria of section 110(i) that are relevant to whether a settlement proposal is 

fair, reasonable, appropriate under the facts, and protects the public interest. 

Although the language of section 110(k) contains no explicit restrictions on the 

Commission’s review, the Commission’s review of proposed settlements of contested penalties 

is bounded. Such boundaries are provided by section 110(i) of the Mine Act, the Act’s 

legislative history, and the Commission’s Procedural Rules. See, e.g., Padula v. Webster, 822 

F.2d 97, 100 (D.C. Cir. 1987) (citations omitted) (“Judicially manageable standards may be

found in formal and informal policy statements and regulations as well as in statutes.”); Cargill,

Inc. v. United States, 173 F.3d 323, 335 (5th Cir. 1999) (considering legislative history to discern

meaningful standard for an agency’s exercise of discretion).

38 FMSHRC Page 1982
D. The Second Circuit’s Consent Decree Standard 

 The Secretary argues that when reviewing settlement proposals, the Commission should 

apply the consent decree standard of review applied by the Second Circuit in Citigroup II. 

Under that standard, the Commission would consider whether the proposed settlement (1) is 

legally sound, (2) is clear, (3) resolves the claims in the penalty petition, and (4) is not tainted by 

improper collusion or corruption. 752 F.3d at 294-95. The Secretary argues that, under this 

standard, he is entitled to deference with respect to his determination that the proposed 

settlement is in the public interest. 

The Secretary’s application of the Citigroup II standard to the 32 citations at issue in this 

case is set forth in approximately five pages of his brief. S. Br. at 49-53. He asserts that the 

proposed settlement is legally sound because section 110(k) does not prohibit uniform 

percentage reductions in penalties; that the settlement is clear because there is no doubt about the 

penalties AmCoal has agreed to pay or the effect of the conceded violations on AmCoal’s history 

of violations; that the settlement reflects a resolution of the actual claims because no citations 

have been erroneously added or omitted; and that there have been no allegations of improper 

collusion or corruption. Id.

 In Citigroup II, the Second Circuit broke with nearly three decades of practice by 

eliminating the consideration of the “adequacy,” or the substantive validity, of a consent decree 

entered into by the Securities and Exchange Commission (“SEC”), and by focusing instead on 

the procedural propriety of the decree. 752 F.3d at 294-95. The court explained that it was 

excluding the requirement that a consent decree must be adequate because the adequacy factor 

was borrowed from the review standard applied to class action settlements, and that the factor 

was inapt in the context of a proposed SEC consent decree. Id. at 294. The court noted that if 

the decree involves injunctive relief, the court must determine that the “public interest would not 

be disserved” by the decree. Id. at 294. It stated that since the SEC has the “job of determining 

whether the proposed S.E.C. consent decree best serves the public interest,” the SEC’s decision 

merits “significant deference.” Id. at 296. 

 Adoption of the Second Circuit’s consent decree standard would effectively render 

section 110(k) meaningless. “[A] fundamental rule of construction is that effect must be given to 

every part of a statute . . . , so that no part will be meaningless.” Daanen & Janssen, Inc., 20 

FMSHRC 189, 194 (Mar. 1998) (quoting Sekula v. FDIC, 39 F.3d 448, 454 (3d Cir. 1994). 

Because penalties become final orders or decisions “of the Commission,” Commission Judges 

must necessarily determine the basic procedural propriety of proposed settlements requested by 

the Secretary even if section 110(k) were absent from the Mine Act. 

As discussed above, Congress enacted section 110(k) in order to remedy a problem 

involving abuses involved in behind-the-scenes compromises by MSHA’s predecessor, and to 

ensure that penalties serve as an effective enforcement tool. Congress explicitly stated its 

“inten[t] that the Commission and the Courts will assure the public interest is adequately 

protected before any reduction in penalties.” S. Conf. Rep. No. 95-181, at 45 (1977), reprinted 

in Legis. Hist. at 633. Thus, Congress intended that the Commission have the job of determining 

whether a reduced penalty in settlement serves the public interest. 

38 FMSHRC Page 1983
The Citigroup II standard is also distinguishable because a settlement agreement 

involving violations of mandatory safety standards affects all miners working in the cited mine. 

Thus, the miners may be likened to a class affected by a settlement. In addition, under the Mine 

Act, violations accepted by an operator in a settlement agreement may be considered as part of 

the operator’s history of violations in the assessment of future civil penalty assessments. See 

Amax Lead Co. of MO, 4 FMSHRC 975, 978-79 (June 1982). 

The D.C. Circuit applies a consent decree standard of review that, unlike the Second 

Circuit’s, includes the adequacy factor. See, e.g., Citizens for a Better Env’t v. Gorsuch, 718 

F.2d 1117, 1126 (D.C. Cir. 1983) (citations omitted) (considering whether the “settlement is fair,

adequate, reasonable and appropriate under the particular facts and that there has been valid

consent by the concerned parties.”); United States v. MTU America, Inc., 105 F. Supp.3d 60, 63

(D.D.C. 2015) (noting that courts must “consider both procedural and substantive fairness in

their analysis of proposed consent decrees.”). The Secretary did not note or discuss this

standard.

Finally, the lack of detail required by the Second Circuit’s consent decree standard, as 

evident in the Secretary’s terse application of the standard, is completely inconsistent with the 

need for transparency that section 110(k) was enacted to address.13 Indeed, the Secretary’s 

counsel asserted during oral argument that “uncertainties of litigation,” if proffered as the only 

rationale for settlement, would be sufficient factual support for the Commission’s review. Oral 

Arg. Tr. at 67. Of course, the phrase “uncertainties of litigation” is devoid of content; all 

litigation contains uncertainties. Accordingly, we decline to adopt the Citigroup II standard in 

the Commission’s review under section 110(k). 

E. The Judge’s Denial of the Proposed Settlement

The Commission reviews a Judge’s denial of a proposed settlement under an abuse of

discretion standard. Shemwell v. Armstrong Coal Co., 36 FMSHRC 1097, 1101 (May 2014); see 

also Calle-Vujiles v. Ashcroft, 320 F.3d 472, 475 (3d Cir. 2003) (citations omitted) (“If an 

agency ‘announces and follows – by rule or by settled course of adjudication—a general policy 

by which its exercise of discretion will be governed,’ that exercise may be reviewed for abuse.”). 

An abuse of discretion may be found where there is no evidence to support the Judge’s decision 

or if the decision is based on an improper understanding of the law. Shemwell, 36 FMSHRC at 

1101. 

We conclude that the Judge did not abuse his discretion by denying the motion to 

approve the subject proposed settlement. As discussed above, a Judge must have information 

13  We find revealing the observation with respect to the Citigroup II standard that 

“between the court’s explicit exclusion of the adequacy factor and its emphasis on procedural 

propriety, the court likely foreclosed all meaningful substantive review,” and that the Citigroup 

II standard will “practically speaking, result in the rubber-stamping of consent decrees.” 

Securities Regulation – Consent Decrees – Second Circuit Clarifies that a Court’s Review of an 

SEC Settlement Should Focus on Procedural Propriety, 128 Harv. L. Rev. 1288, 1291, 1292 

(2015). 

38 FMSHRC Page 1984
sufficient to carry out the Commission’s responsibility under section 110(k). Parties are required 

to provide facts in support of a penalty agreed to in settlement by the Commission’s Procedural 

Rules. 29 C.F.R. § 2700.31(b)(1). 

Here, the Secretary provided no facts to support the proposed penalty reductions agreed 

to by the parties. When the Secretary initially filed the motion to approve the proposed 

settlement, the Secretary noted that the original allegations regarding the subject penalties would 

remain unchanged, but that the parties wished to settle the matter by a uniform penalty reduction 

of 30% “[i]n recognition of the nature of the citations at issue, and the uncertainties of litigation.” 

Mot. to Approve Set. at 2. Upon the Judge’s denial of the motion based on insufficient factual 

support, the Secretary filed a motion for reconsideration with the Judge but refused to provide 

further factual support. Rather, the Secretary merely represented to the Judge that “the proposed 

settlement is in the public interest and is compatible with MSHA’s enforcement goals.”14 S. 

Mot. for Recon. at 4. 

This is not a case where the Commission Judge has impermissibly substituted his views 

of enforcement policy for those of the Secretary.15 Rather, the Judge requested facts to support 

the proposed settlement of 32 reduced penalties, and the Secretary refused to provide any facts 

whatsoever. The Judge did not abuse his discretion by denying approval of the settlement 

without any supporting facts. 

Nor did the Judge conclude that the Secretary’s ability to structure settlements as uniform 

penalty reductions was impermissible under the Mine Act. Rather, the Judge stated that the 

percentage reduction was a red flag, and that “information is needed to justify any reductions.” 

36 FMSHRC at 1501 (emphasis in original). The Mine Act does not prohibit uniform penalty 

reductions, nor has the Commission rejected the structuring of settlements based on uniform 

penalty reductions, and nothing in our decision should be construed as implying that they are 

improper per se. The Judge did not err in requesting facts supporting the reduction. 

 In sum, the Secretary’s repeated failure to provide any facts to support the proposed 

reduction of 32 penalties through a settlement agreement is inconsistent with the requirements of 

the Act, Congressional intent, and Commission procedure. Accordingly, we conclude that the 

Judge did not err in denying the proposed settlement. 

                                                             14  The Secretary’s counsel made this representation after stating, “Exercising her 

professional judgment as a representative of the Secretary, she considered the value of the 

proposed compromise; the prospects of coming out better, or worse, after a full trial; and the 

resources that the Secretary would need to expend in going through a trial.” S. Mot. for Recon. 

at 4. We note the Committee’s statement in the Senate Report that, “the need to save litigation 

and collection expenses should play no role in determining settlement amounts.” S. Conf. Rep. 

No. 95-181, at 44-45 (1977), reprinted in Legis. Hist. at 632-33. 

15  The Secretary stated during oral argument that Judges “second-guess[] the kinds of 

enforcement and prosecutorial decisions that the Secretary present[s] for approval.” Oral Arg. 

Tr. at 71. The Secretary may seek appellate review of any perceived abuses by the 

Commission’s Judges. See, e.g., Knox Cty. Stone Co., 3 FMSHRC 2478 (Nov. 1981).

38 FMSHRC Page 1985
III. 

Conclusion 

For the reasons discussed above, we conclude that the Judge did not err in denying the 

proposed settlement, affirm the denial, and remand this matter for further proceedings. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen Jr., Commissioner 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner

38 FMSHRC Page 1986
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710

August 26, 2016 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) Docket Nos. LAKE 2011-701 

LAKE 2011-881 

v. LAKE 2011-962 

LAKE 2012-58 

THE AMERICAN COAL COMPANY 

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

DECISION

BY: Young, Cohen, and Althen, Commissioners 

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

U.S.C. § 801 et seq. (2012) (“Mine Act” or “Act”), the Administrative Law Judge affirmed five 

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

(“MSHA”) to The American Coal Company (“AmCoal”), including the significant and 

substantial (“S&S”) designations for each violation, but with reductions in the penalties.1 35 

FMSHRC 3077 (Sept. 2013) (ALJ). 

On appeal, AmCoal challenges the civil penalties assessed by the Judge. It argues that 

those penalties were derived in part from MSHA’s proposed penalties, which were specially 

assessed pursuant to MSHA’s penalty regulations. It further maintains that those specially 

assessed proposed penalties are not supported in the record and therefore should not have been 

considered by the Judge. 

For the reasons that follow, we remand for further proceedings consistent with this 

decision.

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

§ 814(d)(1), which distinguishes as more serious any violation that “could significantly and

substantially contribute to the cause and effect of a . . . mine safety or health hazard.”

38 FMSHRC Page 1987
I. 

Facts and Proceedings Below 

A. Factual Background

Between October 2010 and March 2011, MSHA inspectors issued ten citations to 

AmCoal for alleged safety violations at its New Era Mine in Saline County, Illinois. MSHA 

proposed penalties for the citations using its special assessment regulations set forth at 30 C.F.R. 

§ 100.5. AmCoal contested the proposed civil penalties. The parties reached a partial settlement

with regard to five of the citations. The remaining five citations—all specially assessed by

MSHA—were the subject of a hearing before a Commission Administrative Law Judge in May

2013. The citations are summarized below.

Docket No. LAKE 2011-701 

Citation No. 8428508 alleged a section 104(a) S&S violation of 30 C.F.R. § 75.202(a)2

consisting of roof bolts that were not supporting the roof. The citation alleged that: (1) the 

violation was the result of AmCoal’s high negligence; (2) an injury was reasonably likely to 

occur; (3) any such injury could reasonably be expected to be permanently disabling; and (4) one 

person would potentially be affected. MSHA proposed a special assessment of $40,300. 

Docket No. LAKE 2012-58 

Citation No. 8432118 alleged a section 104(a) S&S violation of 30 C.F.R. § 75.202(a) 

consisting of a rib that was cracked, broken, and leaning away from the pillar. The citation 

alleged that: (1) the violation was the result of AmCoal’s moderate negligence; (2) an injury was 

reasonably likely to occur; (3) the injury could be expected to result in lost workdays or 

restricted duty; and (4) one person would potentially be affected. MSHA proposed a special 

assessment of $9,100. 

Citation No. 8432126 alleged a section 104(a) S&S violation of 30 C.F.R. § 75.202(a) 

consisting of damaged roof bolts in a crosscut. The citation alleged that: (1) the violation was the 

result of AmCoal’s moderate negligence; (2) an injury was reasonably likely to occur; (3) the 

injury could be expected to result in lost workdays or restricted duty; and (4) one person would 

potentially be affected. MSHA proposed a special assessment of $7,700. 

Citation No. 8432129 alleged an S&S section 104(a) violation of 30 C.F.R. § 75.202(a) 

consisting of roof bolts that were too far from the pillar. The citation alleged that: (1) the 

violation was the result of AmCoal’s moderate negligence; (2) an injury was reasonably likely to 

occur; (3) the injury could be expected to result in lost workdays or restricted duty; and (4) one 

person would potentially be affected. MSHA proposed a special assessment of $7,700. 

2 30 C.F.R. § 75.202(a) 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.” 

38 FMSHRC Page 1988
Docket No. LAKE 2011-962 

Citation No. 8432052 alleged a section 104(a) S&S violation of a safeguard that was 

previously issued to the mine pursuant to section 314(b) of the Mine Act and 30 C.F.R. 

§ 75.1403,3 involving a transformer parked less than 25 feet away from a curtain. The citation

alleged that: (1) the violation was the result of AmCoal’s moderate negligence; (2) an injury was

reasonably likely to occur; (3) the injury could be expected to result in lost workdays or

restricted duty; and (4) one person would potentially be affected. MSHA proposed a special

assessment of $4,800.

For each citation, AmCoal contested (1) whether a violation had occurred; (2) the 

Secretary’s S&S designation; and (3) the appropriate civil penalty. 

B. The Judge’s Decision

The Judge affirmed all five violations and the associated S&S designations. 35 FMSHRC 

at 3099-122. For four of the five citations, the Judge reduced the level of negligence alleged by 

the Secretary. Id. at 3108-09, 3114-15, 3118-19, 3122. For one of the citations, the Judge 

reduced the level of gravity alleged by the Secretary of Labor. Id. at 3108. For all five of the 

citations, the Judge reduced the penalty amounts proposed by the Secretary. Id. at 3105, 3111, 

3115, 3119, 3122. In total, the Judge assessed penalties of $43,200 for the five violations at 

issue, rather than the total of $69,600 proposed by MSHA by special assessment. Id. at 3123. 

The Judge declined to address AmCoal’s arguments about the validity of MSHA’s 

special assessments process and the appropriate standard for reviewing the Secretary’s proposed 

penalties. The Judge explained that AmCoal’s challenges to the special assessment scheme failed 

to raise cognizable claims because the Commission alone is responsible for assessing final 

penalties. Id. at 3078 n.2, 3109-11. He concluded that whether the Secretary proposes a regular 

assessment or a special assessment is “not relevant” to the Commission’s determination of a 

penalty amount. Id. at 3110 (citation omitted). The Judge explained that “[r]egardless of the 

special assessment arrived at by the Secretary and the methodology, however flawed, used, — 

this Court is guided in its final determination by the polestar of 30 U.S.C. § 820(i) penalty 

considerations.” Id. 

3

 Both section 314(b) of the Mine Act, 30 U.S.C. § 874(b), and 30 C.F.R. § 75.1403 

provide: “Other safeguards adequate, in the judgment of an authorized representative of the 

Secretary, to minimize hazards with respect to transportation of men and materials shall be 

provided.” 

38 FMSHRC Page 1989
II.

Disposition 

AmCoal argues that MSHA’s proposed penalties were arbitrary because the Secretary 

failed to meet a burden of proof of substantiating enhanced special assessments in these cases. 

According to AmCoal, the Secretary must prove by a preponderance of the evidence that 

specially assessed proposed penalties are warranted or appropriate under the circumstances in 

each case. AmCoal argues that the “practical result” when proposed penalties are specially 

assessed is that Judges rely on those elevated proposed penalties as a “baseline” for their 

assessments. PDR at 11. AmCoal also contends that Judges must utilize the penalty amounts that 

would have resulted from the regular assessment process as the baseline for determining penalty 

amounts and in explaining any substantial divergences under Sellersburg Stone Co., 5 FMSHRC 

287, 293 (Mar. 1983), aff’d, 736 F.2d 1147 (7th Cir. 1984). 

As explained below, the Secretary is not required to prove by a preponderance of the 

evidence that it was appropriate to utilize the special assessment procedures to arrive at a 

proposed penalty amount rather than using the regular assessment formulas. In turn, however, 

Commission Judges are not bound by the Secretary’s penalty regulations set forth at 30 C.F.R. 

Part 100 or his special assessments. Their duty is to make a de novo assessment based upon their 

review of the record. The Commission does require an explanation of any substantial divergence 

from the penalty proposal of the Secretary. However, the Judge’s assessment must be 

independent, and the Secretary’s proposal is not a baseline or starting point that the Judge should 

use a guidepost for his/her assessment. 

In these cases, the Judge did engage in a significant discussion of the evidence. However, 

his opinion could be read to indicate that he used the Secretary’s special assessment as a starting 

point. In order to assure the independence of the assessment, we remand the cases to the Judge 

for reconsideration and further explanation. 

A. The Secretary’s Broad Discretion in Proposing Penalties Under the Mine Act

The Mine Act establishes a bifurcated scheme for the proposal and assessment of 

penalties for violations. The Mine Act requires the Secretary to propose a penalty initially. In 

doing so, the Act grants the Secretary latitude. Section 105(a) of the Mine Act states only that 

“[i]f, after an inspection or investigation, the Secretary issues a citation or order under section 

104, he shall, within a reasonable time after the termination of such inspection or investigation, 

notify the operator by certified mail of the civil penalty proposed to be assessed under section 

110(a) for the violation cited.” 30 U.S.C. § 815(a). Moreover, section 110(i) provides that “[i]n 

proposing civil penalties under this Act, the Secretary may rely upon a summary review of the 

information available to him and shall not be required to make findings of fact concerning the 

[six factors above].” 30 U.S.C. § 820(i) (emphasis added). 

Although Congress did not require MSHA to issue regulations governing its proposal of 

penalties, MSHA has chosen to promulgate such regulations. The Secretary’s Part 100 provides 

38 FMSHRC Page 1990
for two types of proposed assessments: (1) regular formula assessments and (2) special 

assessments. 

Regular formula assessments are made pursuant to 30 C.F.R. § 100.3. Under section 

100.3, the Secretary proposes a penalty by applying specific penalty tables established by 

regulation to the allegations contained in the citation or order. A specific number of points are 

assigned to each penalty criterion and then a penalty amount is derived from Table XIV in 30 

C.F.R. § 100.3(g). When MSHA proposes regular assessments, MSHA’s Office of Assessments

provides operators and, in turn, Judges with an “Exhibit A” that consists of a penalty report

detailing the penalty points assessed under each statutory factor. This exhibit provides the

operator and the Judge an explicit explanation of the bases for the proposed penalty.

Special assessments are governed by 30 C.F.R. § 100.5. Section 100.5(a) states that 

“MSHA may elect to waive the regular assessment under § 100.3 if it determines that conditions 

warrant a special assessment.” Section 100.5(b) states that “[w]hen MSHA determines that a 

special assessment is appropriate, the proposed penalty will be based on the six criteria set forth 

in § 100.3(a). All findings shall be in narrative form.” The regulation does not state conditions 

warranting a special assessment. Therefore, the decision to issue a special assessment rather than 

a regular penalty is wholly within MSHA’s discretion. 

When MSHA elects to specially assess violations under section 100.5, its Office of 

Assessments sends operators a special assessment version of “Exhibit A” that includes Narrative 

Findings for a Special Assessment (“Narrative”) purportedly to explain the agency’s rationale for 

the proposed special assessment. See R. Exs. 4, 10, 18. It also sends a special assessment penalty 

report containing some factual allegations pertaining to the statutory penalty factors. See R. Exs. 

3, 9, 17. In these cases, the Narrative Findings do not state specific reasons for the decision to 

issue a special assessment and provide little or no substantive information. For instance, the 

Narratives in these cases simply state that “MSHA has carefully evaluated the conditions cited 

and the inspector’s relevant information and evaluation. The proposed penalty reflects the results 

of an objective and fair appraisal of all the facts presented.” Then, the Narratives continue to 

provide a cursory and summary treatment of the penalty criteria for each violation.4

 R. Exs. 4, 

10, 18. 

MSHA has not promulgated a regulation explaining the calculation of special 

assessments. However, it has issued informal General Procedures explaining how the 

Assessment Office adds penalty points in specially assessing a penalty. Although there are 

exceptions, especially for flagrant violations, most commonly the Assessment Office adds points 

to the regular negligence and gravity points based upon the specific circumstances of the 

violation, such as the seriousness of any injury, unwarrantable failure, imminent danger, etc. See

4

 In response to an issue raised at oral argument before the Commission, the Secretary’s 

counsel represented that MSHA is working on ways to make Narrative Findings more 

informative “by including a more detailed explanation of the rationale for its decision to 

specially assess a violation.” Sec’y Suppl. Statement dated May 2, 2016, at 2; Oral Arg. Tr. 59-

61.

38 FMSHRC Page 1991
MSHA General Procedures (Special Assessment), 

https://www.msha.gov/sites/default/files/Compliance_Enforcement/Special-AssessmentTable_Sept-2-2015.pdf) (outlining general procedure for calculating special assessments). This 

report prepared by MSHA provides information on the addition of penalty points but does not 

provide, at least in these cases, any explanation about the basis for the decision to specially 

assess the penalty. 

In summary, the Mine Act does not require the Secretary to explain the basis for the 

proposed penalty, beyond its establishment of the penalty criteria. Otherwise, the Secretary has 

discretion to propose penalties that are now subject only to his own regulations. Those 

regulations, in turn, do not require the Secretary to explain the basis for the proposed penalty 

when he makes the discretionary decision to specially assess, beyond the requirements in 30 

C.F.R. § 100.5(b) that MSHA base the penalty on the criteria set forth in section 100.3(a)5

 and

that “[a]ll findings shall be in narrative form.” If an operator ultimately disagrees with an

assessment, the remedy is a hearing before the Commission.

B. The Commission’s Independent Authority to Assess Penalties under the Act

Under the Mine Act’s bifurcated penalty assessment scheme, the Commission possesses 

independent authority to assess all contested penalties de novo pursuant to section 110(i) of the 

Mine Act. 30 U.S.C. § 820(i) (“The Commission shall have authority to assess all civil penalties 

provided in this Act.”). When an operator contests the Secretary’s proposed assessment pursuant 

to section 105(d) of the Mine Act, 30 U.S.C. § 815(d), a Commission Administrative Law Judge 

“issue[s] an order, based on findings of fact, affirming, modifying, or vacating the Secretary’s . . 

. proposed penalty, or directing other appropriate relief.” Id.

Section 110(i) of the Mine Act provides that the Commission is authorized to assess all 

penalties under the Act and that the penalties must reflect consideration of six statutory factors: 

[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

[operator] charged in attempting to achieve rapid compliance after

notification of a violation.

30 U.S.C. § 820(i). See also 30 U.S.C. § 815(b)(1)(B) (enumerating the same six factors that the 

Secretary “shall consider” when proposing penalties pursuant to section 110(b), 30 U.S.C. 

§ 820(b)).

5

 The criteria in section 100.3(a) are substantively identical to the six criteria in section 

110(i) of the Act.

38 FMSHRC Page 1992
The Commission considers the same statutory penalty criteria as the Secretary in 

assessing penalties. In doing so, a Judge is bound neither by the Secretary’s proposed penalty nor 

by the Part 100 regulations governing his penalty proposal process. See Sellersburg Stone Co., 

736 F.2d at 1151-52 (“neither the ALJ nor the Commission is bound by the Secretary’s proposed 

penalties;” also, “neither the Act nor the Commission’s regulations require the Commission to 

apply the formula for determining penalty proposals that is set forth in section 100.3”); Mach 

Mining, LLC v. Sec’y of Labor, 809 F.3d 1259, 1263-64 (D.C. Cir. 2016) (“[U]nder both 

Commission and court precedent, the regulations do not extend to the independent Commission, 

and thus the MSHA regulations are not binding in any way in Commission proceedings.”) 

(citations omitted); Walker Stone Co., Inc., 12 FMSHRC 256, 260 (Feb. 1990). 

Congress has thus conferred broad discretion upon the Commission and its Judges in 

assessing civil penalties under the Mine Act. Westmoreland Coal Co., 8 FMSHRC 491, 492 

(Apr. 1986). Of course, such discretion is not unbounded. Penalty assessments must reflect 

proper consideration of the penalty criteria set forth in section 110(i). Id. (citing Sellersburg, 5 

FMSHRC at 290-94). Under Sellersburg and the Commission’s Procedural Rules, an 

Administrative Law Judge must make findings of fact under each of the statutory penalty factors. 

5 FMSHRC at 292; 29 C.F.R. § 2700.30(a); see also Cantera Green, 22 FMSHRC 616, 621 

(May 2000). The Judge then independently assesses a penalty. See, e.g., Mize Granite Quarries, 

Inc., 34 FMSHRC 1760, 1764 (Aug. 2012) (“[T]he penalty assessment for a particular violation 

is within the sound discretion of the administrative law judge.”). 

C. The Secretary’s Evidentiary Burden for Proposed Penalties

AmCoal argues that when the Secretary chooses to use the special assessment process, he 

should be required to prove by a preponderance of the evidence that the violation warranted 

specially assessed penalties. AmCoal further contends that, if a Judge decides to use a baseline or 

starting point for his independent assessment, he should begin with a penalty calculated using the 

regular assessment formulas, not the special assessment regulations. It also argues that MSHA’s 

special assessment narratives are deficient because they contain only “conclusory statements of a 

legal nature” without identifying the reasons justifying the special assessment, or the quantitative 

basis for the resulting proposed penalty. 

The Secretary’s authority to issue a special assessment is plenary. He is not required to 

explain the reasons for his decision to specially assess a violation to the Commission. The 

Secretary has authority to choose to propose a special assessment based on the alleged facts 

pertaining to the violation known to him at the time of the proposal. 

The Secretary, however, does bear the “burden” before the Commission of providing 

evidence sufficient in the Judge’s discretionary opinion to support the proposed assessment 

under the penalty criteria. When a violation is specially assessed that obligation may be 

considerable. While the Secretary may provide a narrative that explains why a special assessment 

has been sought in a given case, no regulation or statutory provision provides criteria to guide 

that decision. Thus, Judges must be attentive to the rationale supporting the decision to seek the 

special assessment and the facts and circumstances supporting that decision, so that the ultimate 

determination of the penalty conforms to the Judge’s findings and conclusions. 

38 FMSHRC Page 1993
Hence, the decision to specially assess the penalty, and the rationale supporting that 

decision, may be relevant if the Judge appears to rely upon it, expressly or implicitly. This is true 

because the Commission Judge makes the final determination of the appropriate penalty based 

upon the evidence and arguments of the parties. In all civil penalty cases under the Act, the 

operator and the Secretary have the opportunity to persuade the Judge as to the amount 

constituting an appropriate penalty for a violation. The Secretary’s proposed assessment is a 

proposal. Each party may and should present evidence on each penalty criteria in support of its 

positon.6 After the hearing, as we have emphasized, it is the Judge’s responsibility to assess the 

penalty independently. 

There is one caveat—a caveat upon which resolution of these cases centers. While the 

Commission has emphasized the right of the Judge to impose the appropriate penalty based upon 

the Judge’s application of the penalty criteria, the Commission has recognized that the Secretary 

plays an important role in the penalty process. Therefore, in an early case, the Commission held 

that Judges must explain any substantial divergence between the penalty proposed by MSHA and 

the penalty assessed by the Judge. The rationale was plain and continues to be important. “If a 

sufficient explanation for the divergence is not provided, the credibility of the administrative 

scheme providing for the increase or lowering of penalties after contest may be jeopardized by 

an appearance of arbitrariness.” Sellersburg, 5 FMSHRC at 293. The Commission’s reason for 

requiring an explanation for a substantial divergence between the Secretary’s proposed penalty 

and a Judge’s assessed penalty is to maintain the integrity of the assessment process. See id.;

Cantera Green, 22 FMSHRC at 621. 

Accordingly, the Secretary’s decision to propose a penalty under his regular assessment 

formulas or under his special assessment regulations does not negate the Judge’s duty to exercise 

his or her independent authority to assess a penalty de novo based on the record and 

consideration of the section 110(i) criteria. In either instance, however, the Judge must also 

explain a substantial divergence from the proposed penalty amount. 

 It is relatively easy for the Judge to give such explanation when the Secretary uses the 

regular point system. Any modifications by the Judge to the Secretary’s proposal with respect to 

penalty criteria, such as negligence or gravity, are likely to explain the divergence. The situation 

is somewhat more complicated with special assessments. Because the Secretary has proposed a 

penalty that may be substantially higher than would have been proposed under the regular 

system, the Secretary presumably will introduce evidence to support what is essentially an 

6

 A lack of explanation or justification for the Secretary’s special penalty proposal may 

fail to provide sufficient notice to the operator of the facts upon which the Secretary relied to 

specially assess the penalty to prepare its rebuttal. However, any notice issue that may exist from 

a special assessment narrative can be cured through discovery and/or a pretrial order by the 

Judge. 

38 FMSHRC Page 1994
elevated assessment under the Secretary’s regulations.7 Evaluation of the evidence to support the 

elevated assessment will certainly be central to any substantial deviation from the proposed 

penalty. Therefore, a full discussion of the evidence bearing upon the appropriate penalty must 

be the basis for any explanation of a substantial deviation. 

For either regular or special assessments, the Secretary’s proposal is not a baseline from 

which the Judge’s consideration of the appropriate penalty must start. The Judge’s assessment is 

made independently and, regardless of the Secretary’s proposal, the Judge must support the 

assessment based on the penalty criteria and the record. 

D. The Judge’s Findings in These Cases and Reason for Remand

In specifically challenging the Judge’s penalty assessments in these cases, AmCoal 

argues that the Judge cited no aggravated circumstances—such as extraordinarily high 

negligence or gravity, an imminent danger, an accident, or conditions likely to lead to fatal 

injury—warranting elevated penalties for the violations. AmCoal contends that the only statutory 

criterion mentioned or relied upon by the Judge to warrant increasing penalties beyond the 

regular assessment mechanism is its history of previous violations, which he referenced in 

relation to the four section 75.202(a) violations. 

In fact, the Judge did substantially consider the section 110(i) criteria with regard to the 

violations and explained his reduction of the penalties, at least in part. 35 FMSHRC at 3105, 

3111, 3115, 3119, 3122. In particular, the Judge made explicit findings as to negligence and 

gravity for each violation. The parties stipulated to good faith abatement. Id. at 3079; Jt. Ex. 1. 

The operator does not contend that the penalties would affect its ability to remain in business. 

Although the Judge did not make an explicit finding in the record, there is undisputed evidence 

that this was a large mine. Tr. I 92; Ex. R-37. 

For all but one citation the Judge did discuss the evidence as it applied to the penalty. 

Thus, the Judge considered the section 110(i) criteria and evidence supporting his penalty 

assessments. The exception is the history of violations criterion pertaining to the safeguard 

violation, Citation No. 8432052.8

7

 Here, for example, had the Secretary used the regular point schedule, the total penalties 

proposed for the five violations at issue would have been $19,961. The Secretary’s special 

assessment proposal was $69,600. As stated above, the Secretary need not explain his decision to 

specially assess, but must support the proposal he makes. 

8 As to Citation No. 8432052, which involved a safeguard violation for parking a 

transformer less than 25 feet from a curtain, the Judge did not make a finding with regard to the 

mine’s violation history. The Secretary proposed a penalty of $4,800, which the Judge reduced to 

$3,800 despite affirming the Secretary’s gravity and negligence findings. The evidence indicates 

that the operator has a history of 19 violations of the same standard. R. Ex. 9. 

38 FMSHRC Page 1995
On the other hand, however, the Judge also stated that he “reduced the [Secretary’s 

proposed] penalty to [the Judge’s assessment],” see 35 FMSHRC at 3105, 3111, 3115, 3119, 

3122, thereby suggesting that he may have used the Secretary’s specially assessed proposed 

penalties as a benchmark for calculating his ultimate assessments. For most violations, he 

lowered the penalty by approximately 20% from the Secretary’s special proposal. 

As we have repeatedly held, Judges must make independent assessments of the final 

penalty. Sellersburg, 5 FMSHRC at 291; Wade Sand and Gravel, 37 FMSHRC 1874, 1876 

(Sept. 2015). We are unable to discern with assurance whether the Judge did in fact rely on the 

Secretary’s specially assessed proposed penalties or made an independent assessment. In order to 

assure the credibility of the administrative scheme, we require that Judges explain a substantial 

divergence from the penalty proposed by the Secretary. However, that requirement does not 

constrain the independence of the Judge to make a final penalty assessment with upwards or 

downward adjustments as the Judge determines circumstances warrant. 

Here, MSHA issued a special assessment without explaining the basis in its Narrative 

Findings. At trial, AmCoal introduced the Secretary’s “Special Assessment Narrative Form” 

(“SANF”), which assigns points for each of the section 110(i) criteria under both the regular and 

special assessment formulas and calculates a penalty amount based on those points. R. Ex. 5, 19. 

These exhibits do not conform with the Secretary’s stated rationale provided at trial for the 

increased proposed assessments in these cases. While the Secretary’s witnesses testified that the 

operator’s excessive history of violations and repeated noncompliance with the roof standard 

justified MSHA’s decision to specially propose penalties in these cases, the SANFs assign no 

extra points for the history criterion, but rather increase the points assigned for negligence and 

gravity.9

 R. Ex. 5. Thus, the points added to determine the proposed penalty bore no relationship 

to the asserted basis for the special assessment. They did nonetheless dramatically increase the 

proposed assessment. 10 

9

 At the hearing, the operator’s counsel did try to question the Secretary’s witness about 

the fact that the form did not indicate a higher point value for history although the inspector 

testified that the operator’s history was a basis for recommending these violations for special 

assessment. The Secretary’s witness claimed he was not involved in calculating the assessment 

and did not know the answer. Tr. 325-28. 

10 The contrast between the proposed and final assessments in these cases provides an 

interesting perspective on the special assessment process. It is evident from the calculations 

provided by the Secretary in discovery that the calculation of specially assessed penalties is 

mechanically the same as regular assessments, including use of the same penalty points table. As 

an example, in Citation No. 8428508 (issued for roof bolts that failed to support the roof), the 

Secretary’s special assessment procedures added 19 penalty points to the points that would have 

been assigned under the regular schedule for a total of 138 points, which converts to a $53,858 

penalty. R. Ex. 5; see MSHA General Procedures (Special Assessment) at 3-8. As permitted in 

the special assessment procedures, MSHA then reduced that amount by 25% to $40,300. R. Ex. 

5. After the hearing, the Judge reduced negligence from high to moderate and reduced severity

(continued...) 

38 FMSHRC Page 1996
The Judge’s decision only summarily addressed the history of violations criterion in a 

general context as to the roof and rib violations and explicitly stated that he was reducing the 

penalties from the Secretary’s proposed amounts to his ultimate assessments. In addition, the 

Judge failed to make any finding on the violations history relative to the safeguard violation. As 

a result, we are unable to determine exactly what the Judge did and whether he abused his 

discretion. See Mining & Property Specialists, 33 FMSHRC 2961, 2964 (Dec. 2011) (vacating 

and remanding the penalty assessment to the Judge to address each of the statutory criteria, 

especially the negligence criterion, where the Commission could not determine from the Judge’s 

decision whether the reduction in penalty was supported by the application of the statutory 

criteria). 

 In order to assure fairness, therefore, it is important for us to know whether the Judge 

made an independent assessment or felt constrained to making his assessment as an adjustment 

to the Secretary’s proposal. In this unique case, if the Judge did rely on the Secretary’s specially 

assessed proposed penalties as a benchmark, the Judge should explain whether and how he also 

independently arrived at the penalty amounts based on the statutory penalty criteria and the 

record.

Essentially, we are affirming the right and duty of Commission Judges to make 

assessments independently. Without undercutting the administrative credibility value of asking 

Judges to explain any substantial variance from MSHA’s proposed penalty, we must be able to 

understand that the Judge made an independent final assessment. This does not impose a burden 

or any new obligations on the Judge; it merely conforms to our established law that the Judge 

must show he/she considered the six penalty criteria and assessed the penalty based upon his/her 

evaluation. We simply fulfill our obligation to know the Judge decided his/her penalty 

assessment based upon consideration of the penalty criteria. 

Accordingly, we vacate the Judge’s decision in part and remand the cases to him for 

further clarification of his penalty assessments. On remand, the Judge should explain whether he 

relied on the Secretary’s specially assessed proposed penalties and provide an adequate 

explanation for the bases of his assessments, in light of the record evidence and his section 110(i) 

findings. If the Judge relied on the Secretary’s proposed assessment as a starting point for his 

assessments, then he should specifically address the discrepancies noted in the record pertaining 

to the operator’s history of violations, and explain how he considered this criterion in assessing 

10 (...continued) 

from permanently disabling to lost work days/restricted duty. If the Secretary had used those 

findings with his special assessment procedures, the total points assessed would have been 113 

for a penalty of $7,774. The Judge reduced the proposed penalty of $40,300 to $20,000. This 

means that, while the Judge substantially reduced the proposed penalty, his penalty was more 

than double the penalty that would have resulted under the Secretary’s special assessment 

procedures had the Judge’s findings been used. In citing this example, we do not mean to 

undercut the Judge’s assessment or require a change. We use it only to illustrate the need to 

consider whether the Judge independently assessed the penalty or used the Secretary’s proposed 

special assessment as a benchmark. 

38 FMSHRC Page 1997
the penalties. On remand, the Judge must also make a finding as to the history of violations 

pertaining to the safeguard violation, Docket No. LAKE 2011-962. 

III. 

Conclusion 

For the foregoing reasons, we vacate the Judge’s decision in part and remand these cases 

for further proceedings consistent with this opinion. 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner 

38 FMSHRC Page 1998
Commissioner Nakamura, concurring and dissenting: 

Although I agree with much of the majority’s discussion of the governing principles 

underlying the assessment of penalties under the Mine Act, I disagree with the new requirement 

my colleagues impose on Judges, who must now provide an additional rationale for the penalties 

they assess in cases where they have taken the Secretary’s special assessment into account. 

All Commissioners agree on several central concepts underlying the penalty assessment 

process: 

 Under the Mine Act’s bifurcated penalty assessment process, the Secretary initially

proposes a penalty. 30 U.S.C. § 815(a).

 There is no requirement in the Mine Act mandating that the Secretary explain the basis

for this proposed penalty when he makes the discretionary decision to specially assess. 30

C.F.R. § 100.5.

 The operator has the right to challenge the Secretary’s proposed penalty assessment. 30

U.S.C. § 815(a). This contest results in a penalty proceeding before the Commission.

 An Administrative Law Judge has the independent authority to assess all penalties. 30

U.S.C. § 820(i). In so doing, he or she must consider the six penalty criteria listed in that

provision and the deterrent purpose of the Mine Act.

 Commission Judges are neither bound by the Secretary’s proposed assessment nor by his

Part 100 regulations governing the penalty proposal process. Sellersburg Stone Co. v.

FMSHRC, 736 F.2d 1147, 1150-51 (7th Cir. 1984); Mach Mining, LLC, 809 F.3d 1259,

1263-64 (D.C. Cir. 2016) (MSHA Part 100 regulations are not binding in any way in

Commission proceedings).

 The Judge must provide an explanation for a substantial divergence between the

Secretary’s proposed penalty and the Judge’s assessed penalty. Sellersburg Stone Co., 5

FMSHRC 287, 290-94 (Mar. 1983).

 The Commission reviews a Judge’s civil penalty assessment under an abuse of discretion

standard. Douglas R. Rushford Trucking, 22 FMSHRC 598, 601 (May 2000) (citation

omitted).

Applying these principles to the litigation of a penalty proposal at a hearing before a

Commission Judge, it is clear that at trial the question of what penalty should be assessed unfolds 

on a level playing field. The Judge has broad discretion to assess a penalty de novo, 

Westmoreland Coal Co., 8 FMSHRC 491, 492 (Apr. 1986), and is in no way bound by the 

Secretary’s penalty proposal. 

When a penalty amount is in dispute, both parties should offer evidence and argument to 

support their positions; the Secretary must show that the amount he is requesting is warranted 

38 FMSHRC Page 1999
under the facts of the case, and the operator must rebut these contentions. Specifically, each party 

must offer evidence and argument in support of how the Judge should apply the section 110(i) 

penalty criteria to the facts of the case at hand. The parties fail to do so at their peril. 

Subsequently the Judge has the authority to assess a penalty de novo. As noted above, his 

or her discretion in setting the penalty amount is circumscribed by only two legal requirements: 

(1) he or she must make the appropriate findings consistent with section 110(i) of the Mine Act

and (2) any substantial deviation from the Secretary’s penalty proposal must be explained.

Historically, this is the sum total of what a judge must do when assessing a penalty. My 

colleagues, however, have now added an additional requirement, one supported neither by statute 

nor Commission precedent: notwithstanding their acknowledgement that the Secretary’s 

proposal is not a baseline for the Judge, slip op. at 9, the Judge must be “attentive to the rationale 

supporting the decision to seek the special assessment and the facts and circumstances 

supporting that decision,” if he or she relies on that special assessment. Id. at 7. But given that 

my colleagues recognize that “it is the Judge’s responsibility to assess the penalty 

independently,” id. at 8, I fail to understand why they believe that the Secretary’s decision to 

issue a special assessment and the reasons supporting that decision are relevant if the Judge relies 

on that proposal. Either the Judge’s penalty assessment is independent or it is not. 

My colleagues remand these cases because, they say, they do not know whether the Judge 

relied on the specially assessed proposed penalties as a starting point. Id. at 10. If he did so rely, 

the Judge must address any inconsistencies in the record regarding the basis for the Secretary’s 

proposed assessments and the Secretary’s penalty criteria findings. Id. at 11. They impose this 

requirement despite their acknowledgement that “[t]he Judge’s assessment is made 

independently and, regardless of the Secretary’s proposal, the Judge must support the assessment 

based on the penalty criteria and the record.” Id. at 9. In short, the majority demands that a Judge 

explicitly state whether he or she used the special assessment as a benchmark, while at the same 

time recognizing that the Secretary’s proposal is not a baseline. And if the Judge confesses to 

having taken the special assessment into account, he or she will have a new burden: review the 

Secretary’s rationale (as expressed in the special assessment narrative and at trial) and ensure 

that it is internally consistent. As we have not previously required a Judge to discuss or explain 

how the Secretary may have allocated points to arrive at her or his penalty proposal, we find our 

colleagues claim that their ruling “does not impose . . . any new obligations on the Judge” 

unconvincing. Id. at 11. 

Under a statutory scheme where a Judge is free to disregard the Secretary’s penalty 

proposal, and where a Judge need only explain how his or her penalty assessment conforms to 

the section 110(i) criteria and the appropriateness of any substantial deviation from the penalty 

proposal, he or she must now embark on an additional analysis to satisfy the majority’s new 

inquiry. Little wonder that our Judges will be puzzled as to how they must meet this new 

requirement, and why they need to look behind the Secretary’s special assessment and at times 

review the narrative form accompanying it. 

In my view, the penalty analysis traditionally applied by our Judges (discussing the six 

section 110(i) criteria and explaining any substantial deviation from the Secretary’s penalty 

38 FMSHRC Page 2000
proposal) provides sufficient information for the assessment and, if the penalty is appealed, 

permits the Commission to determine whether there has been an abuse of discretion. The extra 

layer of explanation now required by the majority (forcing the Judge to look behind the 

mechanics of the Secretary’s special assessment process) adds nothing to our understanding of 

whether a Judge conformed to his or her duty to independently assess a penalty in accordance 

with the provisions of section 110(i) of the Mine Act. 

I join my colleagues in the majority in vacating and remanding the penalty for the 

safeguard violation. That citation involved a safeguard violation for parking a transformer less 

than 25 feet from a curtain. The Secretary proposed a penalty of $4,800, which the Judge 

reduced to $3,800 despite affirming the Secretary’s gravity and negligence findings. In his 

penalty assessment analysis, the Judge did not make a finding with regard to the mine’s violation 

history, and thus failed to provide a complete explanation as to how his assessment comported 

with all of the section 110(i) criteria. As the majority correctly notes, this omission impedes our 

determination as to whether the Judge’s reduction in penalty was supported by the application of 

the statutory criteria. 

I depart from my colleagues, however, in their decision to remand the four penalties for 

the roof control violations.1

 I would affirm these penalties, finding that the Judge did not abuse 

his discretion in assessing these penalties. 

The Judge explained how, applying the six penalty criteria in section 110(i), he arrived at 

his penalty determinations. He made explicit findings as to negligence and gravity for each 

violation (reducing the level of negligence for all four). The parties stipulated to good faith 

abatement. 35 FMSHRC at 3079; Jt. Ex. 1. The operator does not contend that the penalties 

would affect its ability to remain in business. Although the Judge did not make an explicit 

finding in the record, there is undisputed evidence that this was a large mine. Tr. I 92; Ex. R-37. 

Thus, the history of violations is the only criterion really in dispute and it is on that issue 

that the majority remands the penalty determination to the Judge. However, the Judge made 

findings and addressed that criterion in his decision. Specifically, the Judge stated: “With 

reference to the operator’s history of previous violations, the ALJ agrees with the Secretary’s 

argument that the imposition of significant penalties is consistent with case law holding repeated 

violations and notice of heightened scrutiny warrant increased penalties.” 35 FMSHRC at 3111 

(footnote omitted); see also id. at 3115 (“in light of Respondent’s previous violations history . . 

.”), 3119 (same), and 3122 (same)). The Judge explicitly adopted the Secretary’s allegation that 

the operator had an excessive history. Thus, it appears that the Judge concluded that AmCoal had 

a significant history of violations, particularly due to its history of repeat violations of section 

1

 The Secretary proposed a $40,300 penalty for Citation No. 8428508 and the Judge 

reduced it to $20,000. The Secretary proposed a penalty of $9,100 for Citation No. 8432118 and 

the Judge reduced it to $7,200. For Citations Nos. 8432126 and 8432129, The Secretary 

proposed penalties of $7,700 and the Judge reduced them to $6,100. 35 FMSHRC at 3111, 3115, 

3119, 3122. 

38 FMSHRC Page 2001
75.202(a), and considered this to be aggravating. I believe that substantial evidence supports the 

Judge’s findings. 

The record contains evidence of the operator’s repeated history of noncompliance. With 

respect to Citation No. 8432118, Inspector Edward Law “recommended the citation for special 

assessment because the operator had a ‘lot of issues with ribs’ and roofs and had been cited a 

‘pretty high’ number of times for 202(a) violations.” Id. at 3089. Citation No. 8428508 stated 

that “Standard 75.202(a) was cited 109 times in two years at mine.” Id. at 3106. The inspectors 

acknowledged consideration of AmCoal’s excessive history as influencing the decision to 

propose special assessments. “Respondent’s past history of violations involving ribs and roofs 

was considered by Law in recommending a special assessment.” Id. at 3090. Regarding Citation 

Nos. 8432126 and 8432129, the inspector again testified that he recommended special 

assessments due to the operator’s history violations. Id. at 3092 (“Law had again recommended a 

special assessment because . . . of Respondent’s past violation history.”); 3096 (“Law had 

recommended a special assessment for essentially the same reasons, number of previous 

citations/violations that existed for the other citations testified to.”). 

As explained, the Judge must make findings on the penalty criteria, but has the discretion 

to assign varying weight to each criterion and need only explain any substantial deviation from 

the Secretary’s proposed assessment, not from the assessment value the penalty would have been 

under the regular assessment formula, as the operator suggests. The Judge appropriately 

considered the evidence here in the context of the penalty criterion pertaining to the operator’s 

history of violations. 

The Judge’s explanation merely must reflect proper consideration of the penalty criteria 

and the deterrent purpose of the Act. Sellersburg, 5 FMSHRC at 294. In Cantera Green, the 

Commission clarified that “[w]hile the findings and explanations relating to a penalty assessment 

do not have to be exhaustive, they must at least provide the Commission with a basis for 

determining whether the judge complied with the requirement to consider and make findings 

concerning the section 110(i) penalty criteria.” 22 FMSHRC 616, 621 (May 2000). See also

Lopke Quarries, Inc., 23 FMSHRC 705, 713-14 (July 2001) (holding that Judge did not abuse 

his discretion by weighing the factors of negligence and gravity more heavily than the other four 

statutory criteria). 

Here, the Judge noted that the operator’s violation history served as an aggravating 

circumstance in consideration of the penalty assessment. Addressing the operator’s history of 

violations, the Judge agreed “with the Secretary’s argument that the imposition of significant 

penalties is consistent with case law holding repeated violations and notice of heightened 

scrutiny warrant increased penalties.” 35 FMSHRC at 3111. His penalty reductions were 

undoubtedly due to the fact that he lowered the negligence level for all the roof control violations 

(and, in addition, reduced the gravity level for one of them). 

38 FMSHRC Page 2002
In short, I conclude that the Judge adequately explained how he applied the section 110(i) 

history of violations criterion, as well as the other statutory penalty criteria, that he did not abuse 

his discretion in assessing the penalties, and that accordingly his penalty determinations should 

be affirmed. 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner 

38 FMSHRC Page 2003
Chairman Jordan, dissenting: 

I join the opinion of Commissioner Nakamura regarding the extent of the penalty analysis 

a Judge must make when the Secretary has proposed a special assessment. I also join the section 

of his opinion affirming the penalties for the four roof control violations. I part ways only 

regarding the penalty for the safeguard violation, which I would affirm. 

The Secretary proposed a $4,800 penalty for this violation, which involved parking a 

transformer less than 25 feet away from a ventilation curtain. The gravity was marked as serious, 

and the negligence as moderate. The Judge affirmed both of these findings and assessed a 

penalty of $3,800. Based on this record, I cannot conclude that in so doing he abused his 

discretion. See Broken Hill Mining Co., 19 FMSHRC 673, 676-77 (Apr. 1997) (a Judge’s 

assessment of a penalty constituting an abuse of discretion is not immune from reversal) (citation 

omitted). 

In fact, the operator did not even argue as much. Placing all of its eggs in the regular 

assessment vs. special assessment basket, the operator argues that the Judge’s five penalty 

assessments represent significant increases over what would have been proposed under a regular 

assessment formula and thus are not supported by substantial evidence. Nowhere in its 

submissions to us has it argued that the Judge abused his discretion by not making requisite 

findings on the six 110(i) penalty criteria. 

My colleagues in the majority insist on vacating the penalty and remanding it to the 

Judge because, since he did not address the operator’s history of violations for this penalty, they 

are “unable to determine exactly what the Judge did and whether he abused his discretion.” Slip 

op. at 11. 

I have no such problem. The Judge assessed a penalty of $3,800 against the operator of a 

large mine for a violation of moderate negligence and serious gravity for which the Secretary had 

proposed a $4,800 penalty. True, the Judge did not make a finding regarding the history of 

violations for this penalty (but the evidence indicates that the operator has a history of 19 

violations for this standard, R. Ex. 9). Having reviewed the record and the Judge’s other findings 

on the statutory penalty criteria, I am reluctant to hold that this single omission constitutes an 

abuse of discretion necessitating a remand of the penalty.1

1

 Although I am mindful that under Sellersburg Stone Co., 5 FMSHRC 287, 293 (Mar. 

1983), aff’d 736 F.2d 1147 (7th Cir. 1984), a Judge should explain any substantial divergence 

between the Secretary’s proposed penalty and the Judge’s assessment, I do not find the penalty 

reduction here substantial enough to vacate the Judge’s assessment on this basis. 

38 FMSHRC Page 2004
In sum, I dissent from the majority’s holding requiring an additional explanation from a 

Judge when it appears that the Judge might have relied on a proposed special assessment, and I 

also dissent from the majority’s ruling to vacate and remand all five penalties at issue. 

/s/ Mary Lu Jordan 

 Mary Lu Jordan, Chairman 

38 FMSHRC Page 2005
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

August 26, 2016 

v. 

THE MARSHALL COUNTY COAL CO., 

 McELROY COAL CO., MURRAY 

 AMERICAN ENERGY, INC., and 

 MURRAY ENERGY CORPORATION1

 

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

DECISION

BY: Young, Nakamura, and Althen, Commissioners 

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

30 U.S.C. § 801 et seq. (2012) (“Mine Act” or “Act”), and involve complaints of interference 

brought by the Secretary of Labor on behalf of six miners pursuant to section 105(c) of the Act, 

30 U.S.C. § 815(c).2 The Respondents are five underground coal mines in West Virginia and 

associated corporate entities, including the owner and operator of the five mines, Murray Energy 

1

 Additional captions are listed in Appendix A to this order. 

2

 Section 105(c)(1), 30 U.S.C. § 815(c)(1), provides in pertinent part: 

No person shall discharge or in any manner discriminate against or 

cause to be discharged or cause discrimination against or otherwise 

interfere with the exercise of the statutory rights of any miner . . . 

because of the exercise by such miner . . . on behalf of himself or 

others of any statutory right afforded by this [Act]. 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), on behalf 

 of THOMAS McGARY and RON 

 BOWERSOX 

 and 

UNITED MINE WORKERS OF 

 AMERICA INTERNATIONAL UNION, 

 Intervenor 

Docket No. WEVA 2015-583-D

38 FMSHRC Page 2006
Corporation.3

 The interference complaints all involve a largely common fact pattern concerning 

meetings Respondents held with their miners at each of the five mines. One of the subjects 

addressed by Respondents at the meetings was miners contacting the Department of Labor’s 

Mine Safety and Health Administration (“MSHA”) pursuant to section 103(g) of the Act, 

30 U.S.C. § 813(g),4 to alert the agency to perceived safety and health issues at the mines. 

In her decision on the complaints, the Judge largely ruled in favor of the Secretary and 

the complainants, finding that interference with miners’ section 103(g) rights had been 

established. 37 FMSHRC at 2608-10. However, she also dismissed one count of the Secretary’s 

complaint. Id. at 2609. The Commission granted the cross petitions for discretionary review filed 

by the Respondents and the Secretary, and later granted the UMWA’s motion to intervene.

I. 

Factual and Procedural Background 

In December 2013, a subsidiary of Murray Energy acquired the five mines from 

CONSOL Energy, Inc. Shortly thereafter, MSHA received a number of complaints from miners 

alleging safety hazards and violations at the mines, which MSHA investigated. At all of the 

mines, hourly production and maintenance workers are represented by the UMWA through local 

unions. 37 FMSHRC at 2600. 

On April 10, 2014, Robert Murray, the Chief Executive Office of Murray Energy 

Corporation, wrote to UMWA President Cecil Roberts about that “rash” of complaints from 

“disgruntled employees” and union officials, which he believed were being made not for safety 

reasons, but rather to strike back at the mining companies. Mr. Murray took the position that this 

was a misuse of the section 103(g) process that was wasting the inspection resources of both 

MSHA and the mines. He stated that while the company would “never interfere with a miner’s 

right to file 103(g) complaints,” he went on to request that management “be given the 

3

 As shown in the five case captions, each of the cases was brought on behalf of United 

Mine Workers of America (UMWA) International Safety Representative Ronald Bowersox and 

another individual. Each of these individuals is a local UMWA representative at his or her 

respective mine. 37 FMSHRC 2597, 2599 (Nov. 2015) (ALJ). 

4

 Section 103(g)(1) provides that, if a miner or miner representative has reasonable 

grounds to believe that a violation of the Act or a mandatory standard exists, the miner or 

representative has a right to obtain an immediate inspection by MSHA. It further provides that 

the name of the person requesting an inspection shall not be revealed. 

38 FMSHRC Page 2007
opportunity to also simultaneously be informed [of] safety issues in place of the 103(g) 

complaints, or afterwards.” Gov’t Ex. 18.5

Two weeks later, Respondents began a series of what they refer to as “Awareness 

Meetings” at their mines. Miner and management attendance is mandatory at such meetings for 

each shift at each mine. The five mines employed approximately 3500 workers in total during the 

time in question. 37 FMSHRC at 2600. 

At each of the meetings held at those mines between April and July 2014, CEO Murray 

would speak while giving a PowerPoint presentation. Id. at 2600-01. There were between 69 and 

77 PowerPoint slides, including three slides which further addressed the section 103(g) issues 

Murray had previously raised in his letters. Gov’t Ex. 4-7. CEO Murray also sent a copy of the 

PowerPoint presentation to Cecil Roberts prior to the first meeting. Gov’t Ex. 20. 

At one of the Marshall County Mine Awareness Meetings, a miner made a recording of 

CEO Murray’s remarks given in conjunction with the PowerPoint presentation, including his 

remarks regarding the section 103(g) issue slides. Recordings of Murray’s statements were not 

made at the other Awareness Meetings. 37 FMSHRC at 2601-02. 

On June 23, 2014, Bowersox filed a discrimination complaint with MSHA with regard to 

the Awareness Meetings and the letters sent to local union officials, alleging that management at 

the five mines was trying to intimidate miners and interfere with the miners’ right to file section 

103(g) complaints with MSHA while keeping their identities confidential. Gov’t Ex. 1. On July 

21, 2014, the five other complaints were filed with MSHA based upon the same allegations. 

Gov’t Ex. 2. 

On March 24, 2015, the Secretary filed with the Commission the five actions on behalf of 

the six complainants, and on July 14, 2015, amended the actions. The Secretary alleged that 

Respondents interfered with the exercise of miners’ rights at each of the mines by coercively 

imposing a requirement that miners who make section 103(g) complaints report the same 

complaint to management. The Secretary argued that this undermined a miner’s right to make a 

section 103(g) complaint to MSHA on a confidential basis. The Secretary further identified the 

threat of reprisal against the Marshall County miners and the threat to close the Marshall County 

Mine as a separate count of interference. Discovery subsequently ensued, including 

Respondents’ deposition of each of the six complainants. 37 FMSHRC at 2602. 

The witness list which the Secretary submitted for the hearing included three of the six 

complainants: Bowersox, Michael Payton, and Ann Martin. On the Friday prior to the hearing 

scheduled for Tuesday, September 22, 2015, Respondents and related mining companies filed a 

5

 Similar letters were sent to each of the local union presidents, safety committee officers, 

and mine committee officers at the five mines. Those letters requested that miners inform the 

company of safety issues instead of, or in conjunction with, making a section 103(g) complaint. 

The letters emphasized that the company did not intend “to chill the exercise by concerned 

miners of their rights under Section 103(g)”; rather, the reporting policy was intended to serve 

“the most effective means to address and correct safety issues.” Gov’t Ex. 19. 

38 FMSHRC Page 2008
complaint in the United States District Court for the Northern District of West Virginia against 

the UMWA, its District 31, and Bowersox. The complaint alleged a breach of the National 

Bituminous Coal Wage Agreement of 2011, the collective bargaining agreement between the 

UMWA and coal mine operators, including Respondents (hereinafter “CBA”). The court 

complaint contended that the CBA and past practice under it were being continually breached by 

miners making section 103(g) complaints to MSHA without first raising the issues with mine 

management. The complaint included quotes from the depositions of Bowersox, Payton, and 

Martin taken in this case. Gov’t Ex. 31. 

Shortly before the hearing, the Secretary moved to cancel the hearing and submit the case 

for summary decision, on the ground that the three complaining witnesses were intimidated by 

the federal court complaint. The Secretary stated, and reiterated at hearing, that the three were 

not aware at the time of their depositions that their testimony would be used in a separate law 

suit filed against the union, and subsequently did not wish to testify further. Tr. 16-18.6

Consequently, at the hearing no witnesses were called by either the Secretary or the 

Respondents, and Joint Stipulations of Fact and 28 agreed-to exhibits were admitted into the 

record by the Judge, along with four exhibits admitted over Respondents’ objections. 

In her decision, the Judge found that miners had a protected right under section 103(g) to 

make anonymous complaints to MSHA regarding health and safety violations at the five mines, 

and that under section 105(c), CEO Murray’s presentations at the Awareness Meetings 

constituted unlawful interference with the miners’ exercise of that right. She further concluded 

that in this case the harm to the miners’ protected rights was not outweighed by the mine 

operators’ asserted interests. 37 FMSHRC at 2603-08. As relief, the Judge ordered that a number 

of remedial measures be taken, some of which are at issue on review. See id. at 2609. 

II. 

Disposition 

A. Whether Interference Was Established

Section 105(c) of the Mine Act contains multiple references to the prohibition against

interference with miners’ protected rights. Section 105(c)(1) states that “[n]o person shall 

discharge or in any manner discriminate against . . . or otherwise interfere with the exercise of 

the statutory rights of any miner.” 30 U.S.C. § 815(c)(1) (emphasis added). Section 105(c)(2) 

permits the filing of a discrimination complaint by a miner, applicant, or representative of miners 

“who believes that he has been discharged, interfered with, or otherwise discriminated against,” 

and states that the Secretary’s complaint to the Commission may allege “discrimination or 

interference.” 30 U.S.C. § 815(c)(2) (emphasis added). Section 105(c)(3) also permits an 

6

 The suit was recently dismissed by the federal district court on the ground that the 

subject matter of the complaint is subject to arbitration under the CBA. See Consolidation Coal 

Co. v. United Mine Workers of America, Civ. Action No. 1:15CV167, 2016 WL 3248427 

(N.D.W.Va. June 10, 2016). 

38 FMSHRC Page 2009
individual to file a complaint charging “discrimination or interference” in violation of section 

105(c)(1). 30 U.S.C. § 815(c)(3).7

The statutorily protected right at issue in this case is the right of a miner, under section 

103(g)(1) of the Mine Act, to contact MSHA in writing with concerns about the safety of his or 

her working conditions and to have MSHA investigate those concerns without the mine operator 

learning the miner’s identity.8

 The legislative history of the Mine Act makes clear that section 

103(g) was adopted as a means of protecting miners who make safety-related complaints, in 

addition to the protection provided by section 105(c). S. Rep. 95-191, at 29, Leg. Hist. at 617 

(“While other provisions of the bill carefully protect miners who are discriminated against 

because they exercise their rights under the Act, the Committee feels that strict confidentiality of 

complainants under Section [103(g)(1)] is absolutely essential.”). 

7

 The legislative history of the Mine Act expressly mentions that section 105(c) reaches 

interference. See S. Rep. 95-181 at 36 (1977), reprinted in Senate Subcomm. on Labor, Comm. 

on Human Res., 95th Cong., Legislative History of the Federal Mine Safety and Health Act of 

1977, at 624 (1978) (“It is the Committee’s intention to protect miners against not only the 

common forms of discrimination, such as discharge, suspension, demotion . . . but also against 

the more subtle forms of interference, such as promises of benefits or threats of reprisal.”). 

8

 Section 103(g)(1), 30 U.S.C. § 813(g), states: 

Whenever a representative of the miners or a miner in the case of a 

coal or other mine where there is no such representative has 

reasonable grounds to believe that a violation of this Act or a

mandatory health or safety standard exists, or an imminent danger 

exists, such miner or representative shall have a right to obtain an 

immediate inspection by giving notice to the Secretary or his 

authorized representative of such violation or danger. Any such

notice shall be reduced to writing, signed by the representative of 

the miners or by the miner, and a copy shall be provided the 

operator or his agent no later than at the time of inspection, except 

that the operator or his agent shall be notified forthwith if the 

complaint indicates that an imminent danger exists. The name of

the person giving such notice and the names of individual miners 

referred to therein shall not appear in such copy or notification. 

Upon receipt of such notification, a special inspection shall be 

made as soon as possible to determine if such violation or danger 

exists in accordance with the provisions of this title. If the 

Secretary determines that a violation or danger does not exist, he 

shall notify the miner or representative of the miners in writing of 

such determination. 

38 FMSHRC Page 2010
1. The Appropriate Test for Interference

In evaluating whether the miners here had established interference with their statutory 

rights, the Judge applied the two-step test articulated by Chairman Jordan and Commissioner 

Nakamura in their opinion in UMWA on behalf of Franks and Hoy v. Emerald Coal Resources, 

LP, 36 FMSHRC 2088, 2104-19 (Aug. 2014) (hereinafter “Franks interference opinion”).9

See 37 FMSHRC at 2603-08. The test, suggested by the Secretary in his amicus brief in that case 

and drawn from National Labor Relations Board precedent, provides that interference is 

established when 

(1) a person’s action can be reasonably viewed, from the

perspective of members of the protected class and under the

totality of the circumstances, as tending to interfere with the

exercise of protected rights, and

(2) the person fails to justify the action with a legitimate and

substantial reason whose importance outweighs the harm caused to

the exercise of protected rights.

36 FMSHRC at 2108.10 Here the Secretary reiterates his support for the test, and the UMWA 

endorses it. 

Respondents argue that the Franks interference opinion two-step test is not binding upon 

the Commission, because it has not been approved by a Commission majority. They contend that 

until it is, the Commission only has its prior interference cases on which to rely. R. Reply Br. at 

2-3 (citing Sec’y on behalf of Gray v. North Star Mining, Inc., 27 FMSHRC 1, 8 (Jan. 2005);

Moses v. Whitley Dev. Corp., 4 FMSHRC 1475, 1478-79 (Aug. 1982), aff’d, 770 F.2d 168 (6th

9

 A majority of Commissioners in that section 105(c)(3) case upheld the decision of the 

same Judge that the two complaining miners had been discriminated against. However, because 

the majority split as to the rationale for the affirmance, the decision was vacated and remanded 

by the court of appeals. See Emerald Coal Res. LP v. Hoy, 620 F. App’x 127 (3rd Cir. 2015). 

The Commission thereupon remanded the proceedings to the Judge “to conduct the interference 

analysis in the first instance.” 38 FMSHRC 226, 228 (Feb. 2016). The Judge applied the same 

test she applied in this case, and found interference. 38 FMSHRC 799, 804-10 (Apr. 2016) 

(ALJ). The parties subsequently filed a joint petition for review of the Judge’s decision and 

settled the case. See Decision Approving Settlement (May 17, 2016). 

10 The Commission has drawn on case law interpreting analogous provisions of the 

National Labor Relations Act for guidance in construing Mine Act provisions. See Sec’y on 

behalf of Bernardyn v. Reading Anthracite, 23 FMSHRC 924, 934 n.8 (Sept. 2001); Pero v. 

Cyprus Plateau Mining Corp., 22 FMSHRC 1361, 1368-69, n.11 (Dec. 2000). Here the 

analogous provision is section 8(a)(1) of the NLRA, 29 U.S.C. § 158(a)(1), which makes it 

unlawful for an employer “to interfere with, restrain, or coerce employees in the exercise of” 

rights by the NLRA. Threats of reprisal, force, or promise of benefits can be considered to 

constitute interference, restraint, or coercion. 29 U.S.C. § 158(c). 

38 FMSHRC Page 2011
Cir. 1985)). We conclude that the Franks two-step test is consonant with the Commission’s 

decisions in Gray and Moses and thus it was not error for the Judge to apply it in this instance. 

The language of the first prong of the Franks interference opinion test is entirely 

consistent with Moses and Gray. In Moses, the Commission concluded that the operator’s 

conduct constituted interference because it would “chill the exercise” of miners’ protected rights. 

4 FMSHRC at 1478-79. Consequently in Gray, the Commission analyzed “whether the employer 

engaged in conduct which, it may reasonably be said, tends to interfere with the free exercise of 

[protected] rights.” 27 FMSHRC at 9 (citation omitted). 

The second prong of the Franks interference opinion two-step test is similarly grounded 

in Commission precedent. In Moses, the Commissioner recognized that an operator may have 

legitimate and substantial reason for its conduct in question. See 4 FMSHRC at 1479 n.8 (“This 

is not to say that an operator may never question or comment upon a miner’s exercise of a 

protected right. Such question or comment may be innocuous or even necessary to address a 

safety or health problem . . . .”).11

11 Commissioners Young and Althen do not find it necessary to settle upon a final, 

specific test of interference in this case. They find that in Secretary on behalf of Pepin v. Empire 

Iron Range Mining Partnership, 38 FMSHRC ____, 2016 WL 3226148, Docket No. LAKE 

2015-386-DM (June 6, 2016) (ALJ) (not appealed to Commission), the Commission Judge wrote 

a thoughtful analysis of the specific wording of section 105(c) in the context of interference 

claims. Based upon his analysis and the differing management-employee contexts of the NLRA 

and Mine Act, the Judge formulated a test for interference that would require the Secretary to 

show the alleged interfering actions were motivated by the exercise of protected rights. In this 

case, the filing of complaints under section 103(g) clearly motivated the offending portions of 

the Respondent’s presentations. Consequently, the elements of the test formulated in Empire Iron

are present, and it is not necessary to adopt the Franks test. Because of the procedural posture in 

Franks, the issue was not briefed before the Commission in that case — and in fact, the issue 

never has been fully briefed to the Commission. Under the circumstances, Commissioners 

Young and Althen do not believe it is appropriate to settle upon a specific test of interference in 

this case in which either of competing tests would arrive at the same result. 

Commissioner Nakamura affirms the Judge’s application of the Franks text. Regarding 

the question of whether section 105(c)’s prohibition against discrimination and interference 

“because of” protected activity” requires a plaintiff to show a retaliatory motive, he observes that 

the Supreme Court has often recognized that statutes prohibiting discrimination “because of” 

congressionally designated criteria need not include a motive element. See Tex. Dep’t of Hous. & 

Cmty. Affairs v. Inclusive Communities Project, Inc., 135 S. Ct. 2507 (2015) (stating that proof 

of discriminatory motive is not needed to demonstrate liability under the Fair Housing Act, even 

though that statute includes “because of’ language, and noting that in prior cases the Court 

upheld disparate-impact liability under Title VII and the ADEA, which contain similar 

language); see also Griggs v. Duke Power Co., 401 U.S. 424 (1971); Smith v. City of Jackson, 

Miss., 544 U.S. 228 (2005). The Court noted that these statutes contained lengthy sentences that, 

while initially discussing prohibitions on actions taken with discriminatory motivation, also used 

results-oriented “catchall phrases looking to consequences, not intent.” Tex. Dep’t of Hous., 135 

(continued...) 

38 FMSHRC Page 2012
2. A Reasonable Miner Would View the Operator as Having Interfered with

His Rights in This Instance.

a. Miners’ Rights Under Section 103(g)

In her decision, the Judge ably summarized the rights that section 103(g) provides miners 

and their representatives, and the policy reasons behind those rights. See 37 FMSHRC at 2604-

05. Beginning with the Federal Coal Mine Health and Safety Act of 1969, a miners’

representative has had the right, by providing written notice to a representative of the enforcer of

that Act (then the Secretary of the Interior), to request an immediate inspection of a coal mine

when that miners’ representative had reasonable grounds to believe there was a violation of a

mandatory health or safety standard, or an imminent danger. Pub. L. No. 91-173 § 103(g); 83

Stat. 742, 750.

With the subsequent enactment of the Mine Act, this right was extended to miners 

lacking representatives, and to include alleged violations of the Mine Act itself. The legislative 

history of the Mine Act emphasized that the right to request an agency inspection was based on 

the firm belief “that mine safety and health will generally improve to the extent that miners 

themselves are aware of mining hazards and play an integral part in the enforcement of the mine 

safety and health standards.” S. Rep. No. 95-181, at 30 (1977), reprinted in Legis. Hist. at 618. 

The Coal Act also provided that a miners’ representative could request that his name, as 

well as the names of any miners referred to in the notice, not be included in the copy of the 

request to be provided to the mine operator. The Mine Act strengthened this right to expressly 

state that “[t]he name of the person giving such notice and the names of individual miners 

referred to therein shall not appear in such copy or notification.” 30 U.S.C. § 813(g)(1). The 

legislative history of the Mine Act stressed the importance of maintaining confidentiality: 

The Committee is aware of the need to protect miners against 

possible discrimination because they file complaints, and 

accordingly, the Section requires that the name of the person filing 

the complaint and the names of any miners referred to in the 

compliant not appear on the copy of the complaint which is served 

on the mine operator. While other provisions of the bill carefully 

protect miners who are discriminated against because they exercise 

their rights under the Act, the Committee feels that strict 

11 (...continued) 

S. Ct. at 2518-19. The shift in emphasis from the intent of the actor to the consequences of the

actor’s actions was signaled by the use of the word “otherwise” and implied that intent was not a

factor in the analysis. Id. Commissioner Nakamura believes that, in light of the text and purpose

of section 105(c), this line of Supreme Court cases provides support for the Franks test.

38 FMSHRC Page 2013
confidentiality of complainants under Section [103(g)(1)] is 

absolutely essential. 

S. Rep. No. 95-181, at 29, reprinted in Legis. Hist. at 617; see also III MSHA, U.S. Dep’t of

Labor, Program Policy Manual, Part 43, at 8 (2003), available at http://arlweb.msha.gov/REGS/

COMPLIAN/PPM/PMVOL3A.HTM#3 (“Information received about violations or hazardous

conditions should be brought to the attention of the mine operator without disclosing the identity

of the person(s) providing the information.”).

The reasoning behind this right to confidentiality is considered so persuasive that the 

Commission adopted a version of the right for Commission proceedings, recognizing that 

witnesses who qualify for it should generally be protected by the informant’s privilege. See Sec’y 

on behalf of Logan v. Bright Coal Co., 6 FMSHRC 2520, 2524-25 (Nov. 1984); see also

Commission Procedural Rule 61, 29 C.F.R. § 2700.61 (“A Judge shall not, except in 

extraordinary circumstances, disclose or order a person to disclose to an operator or his agent the 

name of an informant who is a miner.”). 

The court in Dole v. Local 1942, Int’l Bhd. of Elec. Workers, 870 F.2d 368 (7th Cir. 

1989), explained the informant’s privilege in a way that is in many respects applicable to miners 

cooperating in mine safety investigations: 

The doctrine of the informer’s privilege is not a recent 

phenomenon, having its roots in the English common law. . . . The 

underlying concern of the doctrine is the common-sense notion 

that individuals who offer their assistance to a government 

investigation may later be targeted for reprisal from those upset by 

the investigation. . . . The privilege recognizes the responsibility of 

citizens to cooperate with law enforcement officials and, by 

providing anonymity, encourages them to assume this 

responsibility. With the threat of reprisal real and unprotected 

against, well-intentioned citizens may hesitate or decline to assist 

the government in tracking down wrongdoers. The threatened 

reprisal may be physical, but the privilege also recognizes the

subtler forms of retaliation such as blacklisting, economic duress 

and social ostracism. . . . The most effective means of protection, 

and by derivation the most effective means of fostering citizen

cooperation, is bestowing anonymity on the informant, thus 

maintaining the status of the informant’s strategic position and also 

encouraging others similarly situated who have not yet offered 

their assistance. 

Id. at 372 (citations omitted). 

In light of the foregoing, we agree with the Judge in this case that “[i]f confidentiality is 

not guaranteed, a miner is forced to weigh . . . competing interests when deciding whether to 

report a dangerous condition to MSHA. For a miner to be truly free to exercise his statutory 

38 FMSHRC Page 2014
rights under section 103(g), then, confidentiality is essential.” 37 FMSHRC at 2605; see also 

Moses, 4 FMSHRC at 1479 (concluding operator interfered with miner’s exercise of section 

103(g) rights when it repeatedly and accusatorily questioned him as to whether he was the source 

of complaint to MSHA); Franks, 38 FMSHRC at 2095 (opinion of Comm’rs Young and Cohen) 

(stressing that substance of the section 103(g) confidential reporting right must be preserved, lest 

it be rendered illusory). 

b. Respondents’ Interference with Miners’ Section 103(g) Rights

In her decision, the Judge applied the first prong of the Franks interference opinion test 

— whether Respondents actions can be reasonably viewed, from the perspective of members of 

the protected class and under the totality of the circumstances, as tending to interfere with the 

exercise of protected rights. Citing the PowerPoint slides from the Awareness Meetings that 

miners at the Marshall County Mine were required to attend, the Judge was persuaded that a 

reasonable miner would have left a presentation thinking that mine management was hostile to 

the section 103(g) complaint process, particularly with regard to how miners were exercising 

their section 103(g) right at the mine at that time. The Judge found that a reasonable miner would 

have also concluded that the Marshall County Mine had established a rule requiring that any 

section 103(g) complaint be reported to mine management as well, thereby vitiating that miner’s 

right to make such complaints without exposing his or her identity to the mine operator. 37 

FMSHRC at 2605-07. Her conclusions applied to the other four mines as well. See id. at 2600 

n.1 (slides presented at other mines were largely the same, and the ones addressing miners’

exercise of section 103(g) rights were identical).

Respondents contend that the Judge failed to properly apply the “totality of the 

circumstances” test, and thus her finding on the first prong of the Franks interference opinion is 

not supported by substantial evidence.12 They argue that the overall tenor of the Awareness 

Meetings reflected the need for mutual trust between miners and mine management, so that the 

two sides could cooperate to keep the mine safe and economically competitive. According to 

Respondents, fostering such cooperation in the area of mine safety is consistent with the Mine 

Act, which calls for involvement of miners and their representatives in the process. 

While certain of the slides at the Marshall County Coal Awareness Meetings stressed the 

subject of miner-management cooperation (Gov’t Ex. 4 at slides 3, 6, 48-52, 71-75), the common 

subject matter of the slides presented there involved the issues that Respondents believed were 

preventing that mine and other unionized mines from being competitive in the present energy 

markets, including with non-union mines. The slides outlined Respondents’ belief that if such 

impediments continued, Marshall County miners would eventually lose their jobs in an area in 

which there is no alternative employment paying nearly as much. Id. at slides 14-18. In addition 

to discussing political, regulatory, and outside economic forces, the slides addressed labor12 When reviewing a Judge’s factual determinations, the Commission is bound by the 

terms of the Mine Act to apply the substantial evidence test. 30 U.S.C. § 823(d)(2)(A)(ii)(I). 

“Substantial evidence” means “‘such relevant evidence as a reasonable mind might accept as 

adequate to support [the Judge’s] conclusion.’” Rochester & Pittsburgh Coal Co., 11 FMSHRC 

2159, 2163 (Nov. 1989) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). 

38 FMSHRC Page 2015
related topics, such as the inefficiency and lack of productivity of the mine’s continuous miner 

sections, downtime with belts and their slow moves within the mine, poor relations with the 

UMWA, miner drug and alcohol abuse, and excessive employee absences. Id. at slides 34-51, 

53-60.

This led into the three slides addressing section 103(g). The first slide stated, in a large 

font, that “You Must Report Unsafe Situations and Compliance Issues to Management so that 

they Can Be Addressed By Management.” The next slide then stated, in bullet point format, that 

miners had the right to make 103(g) complaints to MSHA, and that the company “will never 

interfere with this in any way,” but that miners are “Required to Make the Same Report to 

Management.” The final of the three slides alleged that a high percentage of the section 103(g) 

complaints were resulting in MSHA finding no violations. This supposedly indicated that miners 

were using the section 103(g) process to get back at management for issues other than safety, 

which diluted mine and MSHA resources, hurt the company, and threatened the survival of 

miners’ jobs. Many of the underlined terms were highlighted in red or yellow. Id. at slides 61-63. 

Respondents attack on several fronts the Judge’s conclusion that the presentation of the 

three slides constituted interference with their miners’ section 103(g) rights. Primarily they 

question how the Judge could have found that “requiring miners to also inform management of 

complaints” made to MSHA pursuant to section 103(g) “removes th[e] guarantee of 

confidentiality.” See 37 FMSHRC at 2606. 

The answer to that is simple. Absent Respondents having a reliable system by which a 

miner could, without revealing his identity, inform mine management of the conditions that led 

the miner to make a section 103(g) complaint to MSHA — evidence of which is entirely missing 

from this record — basic common sense dictates that management can “put two and two 

together.” Respondents could readily learn the identity of a miner making a section 103(g) 

complaint when that miner “make[s] th[at] same report to management” under Respondent’s 

announced “requirement.” Gov’t Ex. 4 at slide 62. 

Respondents point to the slide that included the statement that they would not interfere 

with section 103(g) rights (No. 62). That slide, however, was bookended by information from 

which miners could easily conclude that their right to make confidential section 103(g) 

complaints was being substantially undercut, and that Respondents viewed the issue of miner 

section 103(g) complaints to MSHA as one that could have severe consequences for miners’ 

continued employment. Where an interference claim is made, examining in isolation the literal 

meaning of the language used is contrary to the totality of the circumstances test. See Gray, 27 

FMSHRC at 8 (“Whether an operator’s . . . comments concerning a miner’s exercise of a 

protected right constitute coercive . . . harassment proscribed by the Mine Act ‘must be 

determined by what is said and done, and by the circumstances surrounding the words and 

actions.’”) (quoting Moses, 4 FMSHRC at 1479 n.8); see also Gray, 27 FMSHRC at 10. 

Respondents also argue that what was discussed at the Awareness Meetings did not rise 

to the level of a company “policy” with respect to section 103(g) complaints made to MSHA. 

Under the totality of the circumstances test, however, we cannot ignore that all of the Awareness 

Meetings in question were personally conducted by CEO Murray. Jt. Stips. 20-29. In Gray, the 

38 FMSHRC Page 2016
Commission stated that one of the most important circumstances in any interference analysis is 

the position within the company that the communicator of the statements alleged to constitute 

interference holds relative to the recipients of the communications. 27 FMSHRC at 10. 

That consideration takes on even greater significance in a case where the operators’ CEO 

is traveling to the various mines and in essence putting on a PowerPoint-backed “roadshow” that 

all miners at each mine are required to attend. Presumably, a CEO who takes the time to hold 10 

to 20 meetings, each lasting two or more hours, is serious about the points he makes during those 

meetings. Cf. Gray, 27 FMSHRC at 11 n.10 (locus of statements can be important contextual 

factor). 

Respondents nevertheless contend that its miners, being union members, could have 

confidently ignored the import of CEO Murray’s presentation, because the terms of the CBA 

require that Respondents negotiate with the local union any new work rule, such as a reporting 

requirement for section 103(g) complaints outlined in the Awareness Meetings. The Judge 

rejected this argument below on the ground that “[t]he relevant perspective on the issue is that of 

the reasonable miner, and I find that a reasonable miner would have thought that a statement 

made by the CEO of the company at an all-staff mandatory meeting constituted binding company 

policy.” 37 FMSHRC at 2607.13

Respondents continue to maintain that their miners would have ignored any new 

reporting policy, but we find the Judge’s reasoning persuasive. Apart from the clear 

contradiction this position poses to that taken by the Respondents when they instituted their 

related federal court suit,14 to accept Respondents’ argument would be to assume that an average 

miner at the mines in question would be so confident in his or her understanding of the 

applicable CBA that the miner would ignore the clear statements made in the slide presentation 

given by the company’s CEO. Under a “totality of the circumstances” approach, it is simply 

unreasonable to assume that degree of confidence on the part of a miner. 

Moreover, the new reporting policy would only be declared a new work rule under the 

CBA after the dispute over it had been resolved through the grievance procedure of the CBA. As 

can be seen from the arbitration decisions appended to the UMWA’s brief, under this procedure 

a miner seeking to vindicate his section 103(g) right by ignoring the reporting requirement would 

have to wait weeks, if not months, for a decision upholding his position. During that time, miners 

choosing to ignore Respondents’ requirement that they report to management those conditions 

 13 Respondents object to the Judge using a “reasonable miner” standard in this instance 

on the ground “that all of named Complainants in this matter are officials of the UMWA, and 

have experience and knowledge of not only the provisions of the [CBA], but the actual 

rulemaking process.” R. Br. at 10 n.6. However, each of the complaints those officials filed with 

MSHA plainly state that the complaints were being brought “on behalf of all miners at the” mine 

in question. Gov’t Ex. 2. 

14 As the Secretary points out, Respondents alleged in the federal court complaint that the 

CBA already establishes the position Respondents took at the Awareness Meetings with regard 

to reporting safety concerns to management. 

38 FMSHRC Page 2017
that prompt them to make section 103(g) complaints to MSHA would be faced with uncertainty. 

Further, miners would be risking discipline, including loss of pay they may never recover, for 

failing to comply with Respondents’ reporting policy. Expecting miners to take such a risk is 

patently unreasonable on the part of the Respondents. 

In this instance, the chilling effect of the Respondents’ reporting requirement was 

amplified by the PowerPoint slide unequivocally communicating that if the miners did not 

change their use of section 103(g), the consequence could be loss of the miners’ jobs. This slide 

was not an outlier in the presentation. Many of the slides question whether, without changes, the 

five mines can continue to employ their present miners. Gov’t Ex. 4, at slides 4, 6, 14-18, 21-22, 

30, 34-35, 39-42, 54, 59. With regard to the miners’ exercise of section 103(g) rights, it was 

stated that, when a section 103(g) complaint was made but MSHA did not issue a citation, “[i]t 

Hurts your Company and Job Survival.” Id. at slide 63. 

It would have been quite reasonable for Respondents’ miners to conclude that 

management was linking use of section 103(g) by miners to the future of employment at the 

mine. Such “threats of reprisal” were specifically identified in the legislative history of section 

105(c) as a form of unlawful interference. S. Rep. 95-191, at 36, reprinted in Leg. Hist. at 624. 

Thus, in Gray, the Commission quoted the Supreme Court’s holding that, in the context of an 

interference case under the NLRA, the analysis “must ‘take into account the economic 

dependence of the employees on their employers, and the necessary tendency of the former, 

because of that relationship, to pick up intended implications of the latter that might be more 

readily dismissed by a more disinterested ear.’” 27 FMSHRC at 10 (quoting NLRB v. Gissel 

Packaging Co., 395 U.S. 575, 617 (1969)). Tying the survival of employment opportunities at 

the mine to use of the section 103(g) process only when it is vindicated by the issue of a citation 

by MSHA would tend to discourage a reasonable miner from making a section 103(g) complaint 

in the first instance. 

Consequently, we conclude that three section 103(g) PowerPoint slides shown to the 

Respondents’ miners, in the context of the many other slides included in the Awareness Meeting 

presentations, provide ample evidence to establish Respondents’ interference with their miners’ 

rights under section 103(g) to make confidential safety complaints to MSHA. Nothing in the 

presentations to miners explained how the confidentiality of their section 103(g) complaints 

could be preserved when miners were expected to make the same report to mine management. 

Without the guarantee of confidentiality, the protection section 103(g) provides miners becomes 

little more than a fiction. The Judge was thus correct in concluding that Respondents’ 

PowerPoint presentations would tend to chill the exercise of section 103(g) rights by miners. 

38 FMSHRC Page 2018
In light of our affirmance of the Judge on these grounds, we need not consider the further 

evidence the Judge considered in this case.15 Specifically, she found additional evidence of 

interference from the recording made of CEO Murray. She characterized the tone of his remarks 

as “serious and at times threatening,” and found that he had stated that if miners did not stop 

disagreeing over issues at the mine and using the section 103(g) process as a way of indicating 

displeasure, the mine would be closed. 37 FMSHRC at 2606. 

By that point in the presentation, however, the slides had made it abundantly clear that 

closure of the Marshall County Mine could result if certain matters at the mine did not change. 

Gov’t Ex. 4, at slides 4, 6, 14-18, 21-22, 30, 34-35, 39-42, 54, 59; see also 37 FMSHRC at 2606 

(“Throughout the two-hour presentation, miners were repeatedly reminded that their jobs, 

futures, and family livelihoods were at risk.”). The frequency of the miners’ use of section 

103(g) was just one of those matters. Gov’t Ex. 4, at slide 63. Because the slides alone constitute 

substantial evidence supporting the Judge’s decision that the first prong of the Franks

interference opinion test had been met, we need not address Respondents’ evidentiary arguments 

regarding the recording. 

3. Respondents’ Justification for the Reporting Policy Does Not Outweigh the

Resulting Interference with Miners’ Rights.

Under the second prong of the Franks interference opinion, an operator may defend 

against an otherwise valid interference claim if it offers a “legitimate and substantial reason 

whose importance outweighs the harm caused to the exercise of protected rights.” 36 FMSHRC 

at 2108. The Judge correctly identified Respondents’ proffered reason as their right to be 

informed of unsafe conditions at their mines. 37 FMSHRC at 2607. The Franks opinion quoted 

Moses, where the Commission stated that an operator may comment upon a miners’ exercise of a 

protected right when it is “necessary to address a safety or health problem.” 36 FMSHRC at 

2106 (quoting 4 FMSHRC 1479 n.8). Concern for mine safety or health problems clearly can 

provide a legitimate motivation for an operator’s actions. However, our review of the record does 

not reveal any evidence that demonstrates that the policy at issue here served the purported goal. 

Moreover, Respondents’ argument that their justification for this program is supported by 

Commission case law is unavailing. They maintain that any reporting requirement established at 

the Awareness Meetings is consistent with the situation in the Commission’s decision in 

Secretary on behalf of Pack v. Maynard Branch Dredging Co., 11 FMSHRC 168 (Feb. 

1989), aff’d, 896 F.2d 599 (D.C. Cir. 1990). In Pack, the Commission found that a mine operator 

did not discriminate against a mine security guard in violation of section 105(c) of the Act when, 

in terminating him, the operator took into account that the guard had not notified it of the 

15 The Judge accepted into the record the recording of CEO Murray’s remarks at the 

Marshall County Mine, edited to omit the recording that occurred before and after the 

presentation, along with a transcript of that portion of his remarks that addressed the section 

103(g) complaints being made to MSHA by Marshall County miners. Gov’t Ex. 29, 30. With 

regard to the recording, the Judge had earlier ruled that the redacted version of the recording was 

admissible, after listening in camera to a complete version of the recording. Order Denying 

Motion to Compel (July 20, 2015) (ALJ); Tr. 23-27. 

38 FMSHRC Page 2019
dangerous mine condition posed by improperly stored explosives. The guard had instead waited 

more than eight hours after discovering the explosives and then brought the circumstances of 

their storage to the attention of MSHA, which cited the operator. Id. at 169, 171-73. 

Pack is distinguishable from the present case because it relied heavily on the fact that 

Pack was a security guard and that one of his primary duties was to report security breaches to 

his employer. Id. at 171. Moreover, the Commission observed that “[t]he company policy only 

required employees to report dangerous conditions to the company, and contained no instructions 

or prohibitions as to employees’ actions vis-à-vis MSHA[,] and the Secretary’s position fail[ed] 

to take into account an operator’s right to require the reporting of dangerous conditions.” Id. at 

173. 

That right of an operator clearly remains legitimate for purposes of an interference 

analysis under section 105(c), and consequently was affirmed in the Franks interference opinion. 

See 36 FMSHRC at 2116 (discussing operators’ right under Pack to require that miners report 

“dangerous conditions”). Indeed, it appears from the record that a version of the right is reflected 

in the CBA governing the relationship between Respondents and their miners. See Gov’t Ex. 31, 

at 6 (quoting CBA, an excerpt of which was appended as Exhibit 2 thereto, to require any miner 

to “immediately notify his supervisor” when he “in good faith believes that he is being required 

to work under” conditions that are “abnormally . . . dangerous to himself . . . which could 

reasonably be expected to cause death or serious physical harm before such condition . . . can be 

abated”).

At the same time, however, the Commission in Pack was careful to articulate that the 

right must be accommodated with miners’ rights under section 103(g): 

It is important to point out what . . . did not happen here. Maynard 

Branch did not have a policy that prohibited miners from reporting 

dangerous conditions to MSHA, a policy that clearly would have 

been prohibited by the Mine Act. Nor did Maynard Branch have a 

policy that required miners to notify the company prior to 

contacting MSHA. . . . . [Thus, t]he specter raised by the Secretary 

of miners being intimidated from exercising their rights under 

sections 103(g) or 105(c) of the Mine Act simply is not presented 

by this case. 

11 FMSHRC at 172-73. 

In contrast, this case plainly presents an instance in which miners may be “intimidated 

from exercising their rights under section 103(g).” That is due to both the parameters of 

Respondents’ reporting policy and the circumstances in which it was established. The reporting 

requirement was not in any way limited to just “dangerous conditions.” According to the slide 

presentation, it extended to “Compliance Issues” and “103(g) Complaints.” Gov’t Ex. 4 at slides 

61-62. Section 103(g) complaints can be brought not just when a miner perceives a dangerous

situation, but when he reasonably believes that any violation of the Act or a mandatory health or

safety standard exists. 30 U.S.C. § 813(g)(1). Thus, the Judge here correctly observed that unlike

38 FMSHRC Page 2020
in Pack, the Respondents’ policy placed special emphasis on conditions that miners chose to 

report to MSHA. 37 FMSHRC at 2608. 

Even when an employer establishes a justification under the second step, the operator’s 

actions must be “narrowly tailored” to promote that justification as part of the balancing of the 

operator’s interests with the protected rights of employees. Franks, 36 FMSHRC at 2118 n.14 

(citing Guardsmark, LLC v. NLRB, 475 F.3d 369, 376-376 (D.C. Cir. 2007). The evidence 

establishes that Respondents did not narrowly tailor their reporting policy to avoid undue 

interference with the rights of miners. Nothing was presented that indicated that the Respondents 

were prepared, for instance, to institute a reporting system that preserved a miner’s anonymity 

from the mine operator, as section 103(g) provides with respect to complaints made to MSHA. 

Indeed, based on the method in which the policy was communicated, it appeared that preserving 

miner anonymity was not a concern of Respondents at all. The reporting policy as communicated 

to miners made no mention that it included measures designed to preserve the miners’ anonymity 

guaranteed by section 103(g). In fact, the Awareness Meetings left the opposite impression, 

when it was stated that, with regard to section 103(g) complaints, miners are “Required To Make 

the Same Report to Management.” Gov’t Ex. 4, at slide 62. By requiring miners to make the 

“same” report to Respondents as miners to do to MSHA, Respondents would entirely eliminate 

the critical anonymity component in section 103(g). 

In addition, the Respondents justified the reporting policy to miners on the ground that 

“High Percentages” of section 103(g) complaints were not resulting in citations to the 

Respondents, which indicated to Respondents that miners were using their section 103(g) rights 

as a way of addressing matters other than mine safety. Id. at slide 63. Without more in the way of 

evidence supporting this claim, we can only conclude that Respondents were motivated more by 

the effect that Respondents’ reporting policy would have on miners than in actually objectively 

justifying the policy. 

If any question remained at that point in the Awareness Meetings as to whether 

Respondents were trying to intimidate miners from using section 103(g), it was answered by 

Respondents’ statement to them that, as the right was being used presently, it threatened those 

miners’ “Job Survival.” Id. We thus agree with the Judge that the foregoing statements “went 

beyond what was necessary to establish a safe environment at the mine. Rather, they were 

calculated to discourage miners from using the MSHA complaint process.” 37 FMSHRC at 

2608. 

For the foregoing reasons, we hold that Respondents have failed to justify their actions 

here with a legitimate and substantial reason whose importance outweighs the harm caused to the 

exercise of miners’ protected rights. 

B. The Judge’s Decision to Dismiss the Second Marshall County Count

The Secretary’s complaint in these cases charged Respondents with one count of

interference for promulgating their coercive reporting requirement at each of the five mines. It 

included an additional count for threatening reprisal and mine closure at the Marshall County 

Mine. Upon her finding that the additional count “involves the same facts and analysis” as the 

38 FMSHRC Page 2021
Marshall County Mine reporting requirement count, the Judge held that the additional count 

merged into the reporting requirement count and dismissed the additional count. 37 FMSHRC at 

2609. The Commission granted the Secretary’s petition challenging the Judge’s dismissal of the 

second charge of interference against the Marshall County Mine.

The Secretary contends that threats of closure and other forms of reprisal are qualitatively 

different from an unlawfully imposed rule and thus in this case merits a separate charge of 

interference against the Marshall County Mine. The Secretary argues that in dismissing the 

separate threat count, the Judge in essence held for the Respondents on an affirmative defense 

they did not raise. Respondents counter that the Judge’s dismissal was well within her authority 

to manage the docket before her. 

The Secretary’s parsing of the evidence does not support overturning the Judge’s merging 

of the second count of interference with respect to the Marshall County Mine into the first. As 

the Awareness Meeting slides indicate, miners at all five of the mines were threatened with 

reprisal for exercising their section 103(g) rights. Gov’t Ex. 4, at slide 63; 5, at slide 58; 6, at 

slide 59; 7, at slide 58; 8, at slide 58. In addition, each of the presentations contained numerous 

statements threatening job losses should miners not cooperate on various issues. See, e.g., Gov’t 

Ex. 4, at slides 4, 6, 14-18, 21-22, 30, 34-35, 39-42, 54, 59. Such threats were also made with 

respect to the miners exercising section 103(g) rights at each of the mines. Gov’t Ex. 4, at slide 

63; 5, at slide 58; 6, at slide 59; 7, at slide 58; 8, at slide 58.16 Of course, broaching the subject of 

mine closure is another way of threatening miners’ jobs. 

Accordingly, we find that the evidence submitted regarding Respondents’ actions at the 

Marshall County Mine was not that different from the evidence submitted regarding their actions 

at the other four mines. In these circumstances, we conclude that the Judge, having considered 

that evidence, did not err in finding that a separate second count with respect to the Marshall 

County Mine was unjustified.17

16 Below, the Secretary, in arguing in support of the second count against the Marshall 

County Mine, cited the Awareness Meetings’ inclusion of the slide mentioning “job survival.” 

S. Post-Hearing Br. at 17. A version of that slide was used not just at the Marshall County Mine,

but at all five mines.

17 We do not agree with the Secretary’s characterization here that the Judge raised an 

affirmative defense on behalf of the Respondents. The Judge’s dismissal was not based on 

separate facts establishing a defense to the charge that Respondents had threatened reprisal 

against the Marshall County miners, or that such conduct could not violate section 105(c) as a 

matter of law. Rather, it was based on her view that the Secretary’s case, with respect to the 

Marshall County Mine, could not be broken down to support two separate counts of interference 

as cleanly as the Secretary contended it could. 

38 FMSHRC Page 2022
C. The Monetary Penalty Issues

The Secretary proposed a civil penalty of $20,000 for each alleged violation. After 

addressing all six section 110(i) penalty criteria,18 the Judge held that “a high penalty is 

appropriate and I assess a penalty of $30,000.00 for each of the five violations” found to have 

been established. 37 FMSHRC at 2609-10. The Judge found that Respondents are large operators 

with no history of interference violations, and cited to the stipulations, where the parties agreed 

that neither the Secretary’s proposed penalty of $20,000 for each of six violations, nor an 

increase in each penalty to the maximum of $70,000, would affect Respondents’ ability to 

continue in business. Id. at 2609; Jt. Stips. 34, 35. In finding that interference with a miner’s 

right to make confidential complaints pursuant to section 103(g) to be “a very serious matter that 

undermines the safety of the mine,” the Judge addressed the gravity criterion, and further found 

that Respondents’ negligence was high in this instance. 36 FMSHRC at 2609-10. 

“Penalties assessed by Commission Judges can be greater than, less than, or the same as 

those proposed by the Secretary. . . . When it is determined, based on further information 

developed in an adjudicative proceeding, that penalties should be assessed which substantially 

diverge from those originally proposed, Judges must sufficiently explain the bases underlying the 

penalties assessed.” Hidden Splendor Res., Inc., 36 FMSHRC 3099, 3104 (Dec. 2014) (citing 

Sellersburg Stone Co., 5 FMSHRC 287, 293 (Mar. 1983), aff’d, 736 F.2d 1147, 1151- 52 (7th 

Cir. 1984); Cantera Green, 22 FMSHRC 616, 622-23 (May 2000)). 

The Judge’s increase in the penalties for the individual mines by 50 percent is best 

explained by her conclusion that 

Respondents did not demonstrate good faith in abating any 

violation. Instead, they exacerbated the situation by filing a 

complaint in federal court that named the three individuals the

Secretary had named as witnesses in this case. The timing of the 

filing of the complaint, along with the fact that the deposition 

testimony taken in this case was attached, tends to indicate that the 

mine attempted to intimidate the witnesses. The filing of a legal 

action is an extension of the intimidation at Murray’s awareness 

meetings and shows that Respondents did not wish to make any 

good faith effort to eliminate the interference. 

37 FMSHRC at 2609-10. 

Over Respondents’ objections, the Judge had accepted into the record the federal court 

complaint, of which the Judge took judicial notice (Gov’t Ex. 31), along with a press release 

announcing the filing of the suit, put out by Murray American Energy (Gov’t Ex. 32). Tr. 27-29.

Respondents continue to challenge here the admissibility of that evidence. 

 18 In assessing civil penalties, the Commission must consider the operator’s history of 

violations; its size; whether the operator was negligent; the effect on the operator’s ability to 

continue in business; the gravity of the violation; and whether the violation was abated in good 

faith. 30 U.S.C. § 820(i). 

38 FMSHRC Page 2023
Commission Procedural Rule 63(a) governs the admissibility of evidence in Commission 

proceedings, stating that “relevant evidence, including hearsay evidence, that is not unduly 

repetitious or cumulative is admissible.” 29 C.F.R. § 2700.63(a). A Judge’s evidentiary rulings 

are reviewed under an abuse of discretion standard. Shamokin Filler Co., 34 FMSHRC 1897, 

1907 (Aug. 2012), aff’d, 772 F.3d 330 (3d Cir. 2014), cert. denied, 135 S.Ct. 1549 (2015); 

Dynamic Energy, Inc., 32 FMSHRC 1168, 1174 (Sept. 2010). “Abuse of discretion may be 

found when ‘there is no evidence to support the decision or if the decision is based on an 

improper understanding of the law.’” Pero v. Cyprus Plateau Mining Corp., 22 FMSHRC at 

1366 (citing Mingo Logan Coal Co., 19 FMSHRC 246, 249-50 n.5 (Feb. 1997)). 

The Judge in this instance plainly did not abuse her discretion in admitting the two 

exhibits. The court complaint is a publicly-filed document regarding a dispute over the reporting 

of mine safety and health hazards at Respondents’ mines, an issue that is at the heart of this case. 

It involves the CBA between Respondents and the UMWA, representing the Respondents’ 

miners. As discussed earlier, Respondents raised the terms of the CBA as relevant to this 

proceeding. 

In addition, the Secretary submitted the federal court complaint as evidence of animus on 

the part of Respondents. Tr. 27. Respondents contend that operator animus towards the exercise 

of miner rights is not a consideration in interference cases, citing Gray, 27 FMSHRC at 8 n.6. 

Gray, however, only stands for the proposition that evidence of such animus is not necessary to 

establish interference with those rights. Evidence of operator animus nevertheless remains 

relevant under the “totality of the circumstances” approach to determining whether interference 

with miners’ rights occurred.19

Respondents take issue with the conclusion the Judge reached with regard to the good 

faith abatement penalty criterion, in light of the filing of the federal court complaint. The 

criterion at issue requires that the Commission consider “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 reviewing the Judge’s factual findings supporting the consideration of the 

various penalty criteria, the Commission applies the substantial evidence test. Hubb Corp., 22 

19 As discussed in their separate opinion, Chairman Jordan and Commissioner Cohen join 

in affirming the Judge’s ruling on the admissibility of the federal court suit exhibits. Slip op. at 

22-23. Commissioners Young and Althen would reverse the Judge on this issue. They note that

on the day of the hearing, the Judge did not have any evidence or briefing regarding the merits of

the federal court complaint filed by Respondents. Without doubt, access to the courts is a

fundamental First Amendment right. Bill Johnson’s Rests., Inc. v. NLRB, 461 U.S. 731 (1983).

When disputes arise, all parties have a right to pursue their positions vigorously. Unless the filing

of a court complaint is demonstrated to be an unwarranted attempt to harass, it is inappropriate to

consider such a filing as facial evidence of animus. Here, there was no evidence that the suit was

filed in bad faith. Further, the parties — a major coal operator and the international union

representing its miners — are relatively sophisticated, and the suit was grounded on the statute

governing their ongoing bargaining relationship. Therefore, it was not relevant to a showing of

animus, and Commissioners Young and Althen would rule that the admission of the exhibits was

error.

38 FMSHRC Page 2024
FMSHRC 606, 609 (May 2000); Douglas R. Rushford Trucking, 22 FMSHRC 598, 601 (May 

2000). 

The Judge considered the filing to be nothing more than an extension of the Respondents’ 

interference with miners’ protected rights.20 She drew an inference that Respondents’ sole 

motivation for the filing of the complaint was to intimidate the three witnesses scheduled to 

testify at the hearing in this case. Inferences drawn by a Judge are “permissible provided they are 

inherently reasonable and there is a logical and rational connection between the evidentiary facts 

and the ultimate fact inferred.” Mid-Continent Res., Inc., 6 FMSHRC 1132, 1138 (May 1984) 

(citations omitted). 

The Judge raised the issue of Respondents’ good-faith abatement sua sponte, yet never 

requested the parties to develop the evidentiary record or even submit argument regarding the 

extent, if any, of Respondents’ “attempt[s] to achieve rapid compliance after notification” of the 

Secretary’s interference complaint against them. We note that the Secretary’s complaint was 

filed in March 2015, and thus six months prior to the filing of the federal court complaint. 

Moreover, the Secretary stipulated that, as of September 2015, he was unaware of any of 

Respondents’ miners having been investigated or disciplined for violating the reporting policy in 

the seventeen months since it was first announced at the Marshall County Mine Awareness 

Meetings. Jt. Stips. 20, 36-37. This was pertinent to the issue of Respondents’ good faith, and 

thus should have been considered by the Judge. See Sec’y on behalf of Johnson v. Jim Walter 

Res., Inc., 18 FMSHRC 552, 555, 560 (Apr. 1996) (under substantial evidence standard, Judge 

must consider all evidence relevant to good faith abatement of discrimination violation prior to 

reaching conclusion on the criterion). Yet she made no mention of it in her “good-faith 

abatement” analysis. 

Given these circumstances, we cannot conclude that the inference the Judge drew in this 

instance provides sufficient evidence in support of her finding of a lack of good faith on 

Respondents’ part in abating the violation of section 105(c). The Secretary suggests remand to 

the Judge for further record development, particularly on the issue of whether the federal court 

suit was baseless or otherwise a sham. He contends that the federal suit may be one of those 

“objectively baseless retaliatory lawsuits [that] fall outside of the protection of the First 

Amendment.” See Sec’y on behalf of Shemwell v. Armstrong Coal Co., 36 FMSHRC 1097, 1106 

n.3 (May 2014) (Comm’rs Young and Cohen, dissenting) (citing BE & K Constr. Co. v. NLRB, 

536 U.S. 516, 530-31 (2002)). 

In light of the federal court’s recent dismissal of the suit on jurisdictional grounds, in 

favor of permitting the dispute to be decided by the CBA’s arbitration procedure, we do not find 

the Secretary’s solution to be feasible at this time. Consequently, we are vacating the Judge’s 

 20 To the extent that the Judge, when she stated that three complainants in this case had 

been “named” in the federal court complaint meant that the three were listed as defendants to the 

complaint, she was mistaken. Only Bowersox was named as a defendant; the other two 

complainants here, Payton and Martin, were not named as defendants, though excerpts from their 

depositions in this case appear in the federal complaint. Gov’t Ex. 31, at 1, 8-10. 

38 FMSHRC Page 2025
penalty assessments and remanding the case to her to reassess penalties without considering 

Respondents’ filing of the federal court suit. 21

D. The Details of the Statement to Be Read to Miners

As part of the remedy in this case, the Secretary requested that the Judge order a Murray

Energy corporate officer to read a notice to all miners regarding section 105(c) violations, and to 

order the company to mail that notice to all miners and post it at the mine for one year. 

The Judge, relying on section 105(c)(2) of the Mine Act, which authorizes the 

Commission to require a person who has violated section 105(c)(1) “to take such affirmative 

action to abate the violation as the Commission deems appropriate,” 30 U.S.C. § 815(c)(2), 

granted the Secretary’s request in part. The Judge required Respondents “to post for one year on 

a document that is at least 8 1/2 by 11 inches in a public and conspicuous place at each mine a 

notice to all miners detailing the miners’ rights pursuant to section 103(g) of the Act and stating 

that there is no requirement or expectation that miners will make the same complaint to 

management.” She further required CEO Murray “to hold a meeting at each mine in which he 

shall read a prepared and approved statement notifying miners that they are not required to 

contact management when making a complaint to MSHA.” 37 FMSHRC at 2609. 

Respondents challenged the Judge’s remedial order on a number of grounds, some of 

which have been resolved due to a partial stay issued by the Commission. See Order dated Feb. 

10, 2016. The sole remaining issue involves the details of the “prepared and approved statement” 

CEO Murray is required to read to miners. The Secretary agrees with Respondents that the 

Judge’s decision with respect to this aspect of the remedy is not clear as to who should prepare 

and approve the statement Murray is to read,. The Secretary suggests that he prepare it, and that, 

if necessary, the Judge resolve any disputes and approve the statement. In reply, Respondents 

complain that this will permit the Secretary to include in the statement material that is beyond the 

scope of what the Judge’s order described. In sur-reply, the Secretary details what he views as 

the shortcomings of the notice that the Respondents were required to post, and maintains that the 

Commission needs to clarify the manner in which the statement is to be “prepared and 

approved.” 

While the Secretary’s proposed solution has merit, because this case is being remanded, 

we will permit the Judge to further clarify what she meant in requiring CEO Murray to read the 

“prepared and approved” statement. The Judge can then structure the proceedings on remand 

accordingly and in light of prior experience in this case. 

21 If the Secretary agrees with the Judge that the filing of the suit constituted an extension 

of Respondents’ interference with miners’ protected rights, filing one or more additional 

complaints alleging that would seem to be a more appropriate method of vindicating miners’ 

rights in this instance. In fact, the Judge suggested as much at hearing, when she stated that the 

circumstances surrounding the federal court complaint could be the subject of a separate 

interference complaint by the UMWA to MSHA. Tr. 42-43. 

38 FMSHRC Page 2026
III. 

Conclusion 

For the foregoing reasons, we (1) affirm the Judge’s decision upholding five counts of 

interference against Respondents and dismissing the second count of interference against the 

Marshall County Mine; (2) vacate the penalties she assessed for those counts; and (3) remand the 

penalty determinations and consideration of the statement CEO Murray is to read to miners for 

further proceedings consistent with this decision. 

/s/ Michael G. Young 

 Michael G. Young, Commissioner 

/s/ Patrick K. Nakamura 

 Patrick K. Nakamura, Commissioner 

/s/ William I. Althen 

 William I. Althen, Commissioner 

 

38 FMSHRC Page 2027
Chairman Jordan and Commissioner Cohen, concurring in part and dissenting in part: 

We join our colleagues in affirming the Judge’s decision that the Respondents interfered 

with the miners’ rights in violation of section 105(c) of the Mine Act. We agree with the Judge’s 

application of the test for interference articulated by Chairman Jordan and Commissioner 

Nakamura in UMWA on behalf of Franks v. Emerald Coal Resources, Inc., 36 FMSHRC 2088, 

2104-19 (Aug. 2014).22 In addition, we join the majority in affirming the Judge’s decision to 

dismiss the second count of interference against Marshall County Mine, and in directing the 

Judge to clarify what she meant in requiring CEO Murray to read the “prepared and approved” 

statement. We write separately, however, because we would affirm the penalties assessed by the 

Judge in this case. 

The Secretary proposed a penalty of $20,000 for each violation. The Judge assessed a 

penalty of $30,000 for each of the five violations. 37 FMSHRC at 2609-10. Reviewing the 

statutory criteria for penalty assessments in section 110(i) of the Mine Act against the Judge’s 

findings in this case, we find that the penalties she assessed did not constitute an abuse of 

discretion. 

Congress has conferred broad discretion upon the Commission and its Judges when 

assessing penalties under the Mine Act. Westmoreland Coal Co., 8 FMSHRC 491, 492 (Apr. 

1986). In concluding that the operators’ actions “were calculated to discourage miners from 

using the MSHA complaint process,” 37 FMSHRC at 2608, and in emphasizing that 

“interference with the right to make anonymous complaints [is] a very serious matter that 

undermines the safety of the mine,” id. at 2610, the Judge was well within the bounds of her 

discretion to significantly raise the penalty. She carefully set forth her findings on all six of the 

110(i) criteria (finding, for instance, that the mines and Murray entities were large operators, id.

at 2609, and determining that the level of negligence was high. Id. at 2610). 

Our colleagues, however, insist on remanding the case to the Judge. They believe she 

erred because, after admitting evidence of a federal court complaint that named the three 

individuals the Secretary had identified as witnesses in the case before her, she drew an inference 

that Respondents’ only reason for filing the lawsuit was to intimidate these three witnesses. She 

found this to be evidence to support a finding of a lack of good faith in abating the section 105(c) 

violation. 

In analyzing this question, we turn first to the issue of the admissibility of the evidence of 

the court suit, as that evidence plays a key role in our colleagues’ decision to vacate the penalty 

22 Chairman Jordan joins with Commissioner Nakamura’s footnote 11 in the majority 

opinion. Slip op. at 7 n.11. 

Because Respondents did not challenge the application of the Franks interference test in 

the proceedings before the Judge, Commissioner Cohen would apply the Franks test in this case. 

Absent briefing from the Secretary, the regulated community and miners, however, Commission 

Cohen does not believe it prudent to settle upon a specific test for interference under the section 

105(c) of the Mine Act at this time. 

38 FMSHRC Page 2028
assessments. We agree that the Judge did not err in admitting into the record the federal court 

complaint and a press release announcing the filing of the suit, distributed by Murray American 

Energy. We review such rulings under an abuse of discretion standard. Shamokin Filler Co., 34 

FMSHRC 1897, 1907 (Aug. 2012), aff’d, 772 F.3d 330 (3d Cir. 2014), cert. denied, 135 S. Ct. 

1549 (2015). Under our fairly flexible evidentiary standards, Commission Procedural Rule 63(a), 

29 C.F.R. § 2700.63(a), we discern no abuse of discretion in the Judge’s ruling. 

 Turning to the Judge’s use of this evidence to support her finding of a lack of good faith 

abatement, we are unable to agree that vacating and remanding her penalty determinations is 

warranted. As the Judge noted in her explanation of her penalty assessment, the timing of the 

filing of the complaint, together with the fact that the deposition testimony in the Mine Act case 

was included, would lead one to believe that the mine was trying to intimidate the witnesses.23 

 Unlike our colleagues, we consider this a permissible and inherently reasonable 

inference, with a logical and rational connection between the fact of the federal court case filing 

and the Judge’s inference. The lawsuit was filed on the Friday before the Tuesday when the 

Commission hearing was scheduled to begin. The lawsuit named Ron Bowersox as a defendant 

and quoted the deposition testimony of Michael Payton and Ann Martin in this case. Bowersox, 

Payton, and Martin had all been identified by the Secretary as witnesses in the scheduled 

Commission hearing. Interestingly, the other three complainants in the Commission case — 

Thomas McGary, Rick Baker, and Raymond Copeland — were not identified as witnesses on the 

Secretary’s witness list, nor were they mentioned or quoted in the Respondents’ federal court 

complaint. See Gov’t Ex. 31; S. List of Witnesses & Exhibits. It was certainly reasonable and 

permissible for the Judge to draw the inference that the Respondents’ federal court lawsuit 

represented a lack of good faith in abating the violation. 

 We further note that the Judge’s increase of the penalties was not predicated solely on the 

Respondents’ filing of the federal court complaint. Near the end of her opinion, the Judge stated, 

“I find interference with the right to make anonymous complaints to be a very serious matter that 

undermines the safety of the mine. The negligence is high.” 37 FMSHRC at 2610. Negligence is 

one of the factors identified for the assessment of penalties in section 110(i) of the Mine Act. The 

Judge’s finding of high negligence in this case is based on the Respondents’ acts of interference 

with the right of miners to make anonymous complaints under section 103(g) of the Mine Act. 

These acts occurred in the Awareness Meetings which constitute the basis for the finding of 

interference which the Commission affirms, not in the filing of the lawsuit. The Judge’s findings 

 

 23 Our colleagues are incorrect in asserting that the Judge concluded that the “sole 

motivation” for the Respondents’ filing of the complaint was “to intimidate the three witnesses 

scheduled to testify.” Slip op. at 19. The Judge did not state that intimidation was the “sole 

reason” for the filing of the lawsuit. 37 FMSHRC at 2609. 

38 FMSHRC Page 2029
of high negligence, together with the other factors she considered separate from the lawsuit, 

justify her increase in the penalties to $30,000 each. 

For the above reasons, we would affirm the penalties assessed by the Judge, and thus 

respectfully dissent.

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner 

38 FMSHRC Page 2030
Appendix A 

SECRETARY OF LABOR, Docket Nos. WEVA 2015-584-D 

 MINE SAFETY AND HEALTH WEVA 2015-585-D 

 ADMINISTRATION (MSHA) on behalf WEVA 2015-586-D 

 of RICK BAKER and RON WEVA 2015-587-D 

 BOWERSOX 

 and 

UNITED MINE WORKERS OF 

 AMERICA INTERNATIONAL UNION, 

 Intervenor 

v. 

OHIO COUNTY COAL CO., 

 CONSOLIDATION COAL COMPANY 

 MURRAY AMERICAN ENERGY, INC., 

 and MURRAY ENERGY CORPORATION 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) on behalf 

 of ANN MARTIN and RON 

 BOWERSOX 

 and 

UNITED MINE WORKERS OF 

 AMERICA INTERNATIONAL UNION, 

 Intervenor 

v. 

HARRISON COUNTY COAL CO., 

 CONSOLIDATION COAL COMPANY 

 MURRAY AMERICAN ENERGY, INC., 

 and MURRAY ENERGY CORPORATION 

38 FMSHRC Page 2031
SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) on behalf 

 of RAYMOND COPELAND and RON 

 BOWERSOX 

 and 

UNITED MINE WORKERS OF 

 AMERICA INTERNATIONAL UNION, 

 Intervenor 

v. 

MONONGALIA COUNTY COAL CO., 

 CONSOLIDATION COAL COMPANY 

 MURRAY AMERICAN ENERGY, INC., 

 and MURRAY ENERGY CORPORATION 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) on behalf 

 of MICHAEL PAYTON and RON 

 BOWERSOX 

 and 

UNITED MINE WORKERS OF 

 AMERICA INTERNATIONAL UNION, 

 Intervenor 

v. 

MARION COUNTY COAL CO., 

 CONSOLIDATION COAL COMPANY 

 MURRAY AMERICAN ENERGY, INC., 

 and MURRAY ENERGY CORPORATION 

38 FMSHRC Page 2032
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710

August 29, 2016 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. 

NEWTOWN ENERGY, INC. 

Docket No. WEVA 2011-283 

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

DECISION 

BY THE COMMISSION:1

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

§ 801 et seq. (2012) (“Mine Act”), and involves a section 104(d)(1) citation issued by the

Department of Labor’s Mine Safety and Health Administration (“MSHA”) to Newtown Energy,

Inc. (“Newtown”). The citation alleges that Newtown violated 30 C.F.R. § 75.511 by failing to

lock out a shuttle car’s2 trailing cable cathead while it was being physically inspected and

repaired.3

1

 A majority of the Commissioners joins in each section of this opinion, and therefore it 

constitutes the Commission’s decision in this case. A footnote at the beginning of each section 

and subsection explains which Commissioners join in that section. 

2

 A shuttle car is a vehicle on rubber tires or continuous treads used to transfer material 

such as coal and ore, from loading machines in trackless areas of a mine to the mine’s main 

transportation system. Am. Geological Institute, Dictionary of Mining, Minerals, & Related 

Terms 504 (2d ed. 1997).

3

 30 C.F.R. § 75.511 states: 

No electrical work shall be performed on low-, medium-, or highvoltage distribution circuits or equipment, except by a qualified 

person or by a person trained to perform electrical work and to

maintain electrical equipment under the direct supervision of a

qualified person. Disconnecting devices shall be locked out and

suitably tagged by the persons who perform such work, except that 

in cases where locking out is not possible, such devices shall be 

opened and suitably tagged by such persons. Locks or tags shall be 

removed only by the persons who installed them or, if such persons 

are unavailable, by persons authorized by the operator or his agent. 

38 FMSHRC Page 2033
The Administrative Law Judge affirmed the violation but determined that the gravity of 

the violation and the negligence of Newtown was less than alleged. 35 FMSHRC 2494 (Aug. 

2013). The Judge vacated the “significant and substantial” and “unwarrantable failure” 

determinations in the citation and reduced the negligence to “low.” The Secretary filed a petition 

for discretionary review of the Judge’s negligence, gravity, “significant and substantial,” and 

“unwarrantable failure” determinations, which we granted. 

For the reasons that follow, we reverse the Judge’s findings on S&S, and vacate and 

remand the Judge’s unwarrantable failure determination and civil penalty assessment. 

I. 

Factual and Procedural Background

In May 2010, MSHA Inspector Russell Richardson conducted a regular inspection of the 

No. 2 section of Newtown Energy’s Coalburg No. 2 Mine, an underground mine in West 

Virginia. Richardson was accompanied by Mine Superintendent Robert Herndon, a certified 

electrician. At the time of the inspection, the section had stopped production due to a problem 

with the section’s continuous miner. All miners on the section except the shuttle car operator 

were located at the site of the continuous miner. 

Upon arriving at the section, Richardson spoke briefly with the miners there, and then 

continued on with the shuttle car operator to inspect the nearby shuttle cars. Richardson directed 

Superintendent Herndon to lock out the shuttle car’s cathead4 at the power station so that he 

could inspect the shuttle car’s trailing cable. Herndon informed Richardson that he did not have a 

lock, but he agreed to obtain one from another miner. After several attempts, Herndon procured a 

lock owned by a roof bolt operator. 

While the shuttle car operator and Richardson proceeded to the shuttle cars, 

Superintendent Herndon went to the power center, de-energized the cathead for the shuttle cars, 

and locked the cathead with the roof bolter’s lock. However, Herndon found that he was unable 

to remove the lock’s key without possibly breaking it. So, he left the key in the lock and rejoined 

the inspection party. He left the locked cathead with the key still in it lying on the floor of the 

mine. Herndon did not tell Richardson that he left the key in the lock. 

While inspecting the shuttle car’s trailing cable, Richardson discovered two defects in the 

outer jacket of the trailing cable that required repair. The first defect was repaired with the 

application of electrical tape and rubber to the end of a splice boot where moisture could enter. 

The second defect, which exposed the inner copper wire of the black power conductor, was 

repaired by cutting away part of the cable’s insulation and adding rubber and tape to seal off the 

repair. 

4

 A cathead is the “connecting plug” permitting an electrical cable to be attached to a 

receptacle on a power station. Tr. 15, 17. 

38 FMSHRC Page 2034
Richardson continued inspecting the trailing cable until he reached the power station. At 

that time, the inspector discovered that the key had not been removed from the lock on the 

cathead. Accordingly, the inspector issued Citation No. 8110086 for a violation of 30 C.F.R. 

§ 75.511. Richardson alleged that the failure to properly lock out the shuttle car’s cathead while

performing electrical work was significant and substantial (“S&S”)5

 and constituted an

unwarrantable failure6 to comply on the part of Newtown. Sec’y Ex. 3.

The Judge determined that Herndon’s failure to properly lock out the trailing cable 

cathead while performing electrical repair work on the cable constituted a violation of section 

75.511. 35 FMSHRC at 2500. He then found five mitigating factors that warranted a finding of 

low negligence. In particular, the Judge found that (1) the citation was a direct result of the 

inspection process, not the normal mining cycle, and that if the inspector had not ordered the 

lockout of the power on the cable cathead to facilitate the inspector’s investigation of the trailing 

cable, no violation would have occurred; (2) the inspector failed to recognize the interplay 

between his direction to Herndon and the resulting violation; (3) although Herndon should not 

have used a faulty lock, his actions were a good faith attempt to comply with the inspector’s 

request; (4) section 75.511 allows for the use of a tag when locking out is not possible and the 

faulty lock “did act as a signal to anyone seeing it that something out of the ordinary was going 

on”; and (5) the faulty lock was only on the cathead for a short period of time—10 to 30 

minutes. 35 FMSHRC at 2501–02. 

The Judge vacated the citation’s S&S designation. The Judge found that the chain of 

events required for the hazard to result in an injury was so remote as to make the likelihood of 

injury “almost speculative.” Id. at 2506. He recognized that, if the events did occur, the result 

would be potentially fatal. However, the Judge reasoned that because the miners on the section 

were aware of the ongoing MSHA inspection, had been trained to only remove locks that they 

had themselves placed on electrical components, and were not under pressure to maintain 

production, a miner who is “reasonably aware of his surroundings” would not likely re-energize 

the trailing cable. Id. at 2503, 2506. Additionally, the Judge found that, for the short period of 

time the lock was on the cathead, the inspection party maintained some level of control over 

access to the trailing cable due to its close proximity to the power station. Id. at 2505. 

In his unwarrantable failure analysis, the Judge found that the violation was a product of 

ordinary negligence, not aggravated or intentional misconduct. The Judge stated that the 

traditional factors set forth in IO Coal Co., 31 FMSHRC 1346 (Dec. 2009), did not lend 

themselves to violations that occur in the course of an inspection and only exist for a short period 

of time. Based upon his negligence and gravity analysis, the Judge concluded that “this was an 

isolated, ad hoc event, noteworthy primarily because of the potential severity of consequences 

5

 The S&S terminology is taken from section 104(d)(1) of the Act, 30 U.S.C. § 814(d)(1), 

and distinguishes as more serious any violation that “could significantly and substantially 

contribute to the cause and effect of a . . . mine safety or health hazard.” 

6

 The unwarrantable failure terminology is taken from section 104(d)(1) of the Act, 30 

U.S.C. § 814(d)(1), and 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.” 

38 FMSHRC Page 2035
from an unlikely event” and thus did not warrant the unwarrantable failure designation. 35 

FMSHRC at 2508. The Judge reduced the $7,578 penalty proposed by the Secretary to $207. 

II. 

Disposition 

 On review, the Secretary argues that the Judge erred in vacating the citation’s S&S and 

unwarrantable failure designations and by reducing the proposed civil penalty from $7,578 to 

$207. As to the assessed penalty, the Secretary contests the Judge’s findings concerning the 

gravity of the violation and the negligence of the operator. 

 Below, we address the Commission’s S&S test as articulated in Mathies Coal Co., 6 

FMSHRC 1, 3–4 (Jan. 1984), in light of recent appellate decisions, and apply the test to the facts 

of the case. Next, we review the Judge’s unwarrantable failure findings. Finally, we examine the 

Judge’s findings as to the section 110(i) penalty criteria, negligence, and gravity. 

A. S&S 

1. The Mathies Test7 

 Section 104(d)(1) of the Mine Act provides that inspectors must note if a “violation is of 

such nature as could significantly and substantially contribute to the cause and effect of a coal or 

other mine safety or health hazard.” Under longstanding Commission precedent, a violation is 

significant and substantial if, based on the particular facts surrounding the violation, there exists 

a reasonable likelihood that the hazard contributed to by the violation will result in an injury or 

illness of a reasonably serious nature. Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 

(Apr. 1981). In National Gypsum, we also stated that a violation “‘significantly and substantially’ 

contributes to the cause and effect of a hazard if the violation could be a major cause of a danger 

to safety or health. In other words, the contribution to cause and effect must be significant and 

substantial.” Id. at 827. 

 In Mathies, the Commission further explained: 

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

is significant and substantial under National Gypsum, the Secretary 

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

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

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

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

 

 7

 Commissioners Young, Nakamura, and Althen join in this interpretation of the Mathies

test. 

38 FMSHRC Page 2036
and (4) a reasonable likelihood that the injury in question will be of 

a reasonably serious nature. 

6 FMSHRC at 3–4 (footnote omitted). Accord Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 

135 (7th Cir. 1995); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103 (5th Cir. 1988) 

(approving Mathies criteria). 

In conducting the Mathies analysis, the focus now generally centers on the interplay 

between the second and third steps. A correct understanding of that interplay is crucial to the 

appropriate evaluation of S&S.8

 

The second step addresses the extent to which the violation contributes to a particular 

hazard. This step is primarily concerned with likelihood of the occurrence of the hazard against 

which a mandatory safety standard is directed. Knox Creek Coal Corp. v. Sec’y of Labor, 811 

F.3d 148, 162 (4th Cir. 2016).

The third step is primarily concerned with gravity. Id. at 162. At this stage, the analytical 

focus shifts from the violation to the hazard, which has been established in stage two, and 

whether it would be reasonably likely to result in injury. See Cumberland Coal Res., LP, 33 

FMSHRC 2357, 2365 (Oct. 2011) (citing Musser Eng’g, Inc. & PBS Coals, Inc., 32 FMSHRC 

1257, 1281 (Oct. 2010); Knox Creek, 811 F.3d at 162 (“Requiring a showing at [step] three that 

the violation itself is likely to result in harm would make [step] two superfluous.”). “Every 

federal appellate court to have applied Mathies has also assumed the existence of the relevant 

hazard when analyzing the test’s third [step].” Knox Creek, 811 F.3d at 161–162 (citing Peabody 

Midwest Mining, LLC v. Fed. Mine Safety & Health Review Comm’n, 762 F.3d 611, 616 (7th Cir. 

2014); Buck Creek, 52 F.3d at 135; Austin Power, 861 F.2d at 103–04; cf. Cumberland Coal Res., 

LP v. Fed. Mine Safety & Health Review Comm’n, 717 F.3d 1020, 1025–27 (D.C. Cir. 2013)). 

Therefore, the relevant concept tying together the second step “likelihood” analysis and 

third step “gravity” analysis of Mathies is the “hazard” at issue. In light of the analytical 

8

 As discussed infra, we now consider the proper focus of the second step of the Mathies

test to be the likelihood of the occurrence of the hazard the cited standard is designed to prevent. 

In the past, the Commission considered in the third step of Mathies both whether there was a 

reasonable likelihood that the hazard contributed to by the violation would occur and whether 

there was a reasonable likelihood that that occurrence would result in injury. See U.S. Steel 

Mining Co., 6 FMSHRC 1834, 1836 (Aug. 1984) (the third step “requires that the Secretary 

establish a reasonable likelihood that the hazard contributed to will result in an event in which 

there is an injury.”) (emphasis added). As a result, for many years the second step was often a 

given in the S&S analysis. Indeed, the second step was not contested in this case or in Knox 

Creek Coal Corp. v. Sec’y of Labor, 811 F.3d 148, 154, 161-62 (4th Cir. 2016). Following the 

Commission’s decisions in Musser and Cumberland, infra, that combined analysis was split 

between the second and third steps. Consideration of whether the hazard was reasonably likely to 

occur is now moved to the second step. Consideration of whether an injury was reasonably likely 

in the event of that occurrence remained in the third step. However, the ultimate inquiry has not 

changed. 

38 FMSHRC Page 2037
importance placed on “hazards” under the Mathies test, it is essential for the Judge to adequately 

define the particular hazard to which the violation allegedly contributes. A clear description of 

the hazard at issue places the analysis of the violation’s potential harm in context, by requiring a 

determination of the relative likelihood that the violation will have a meaningful, adverse effect 

on conditions miners will encounter during normal mining operations. That same clearly defined 

hazard will also frame the potential source of injury for purposes of determining gravity in the 

third step analysis. The Commission thus defines the “hazard” in terms of the prospective danger 

the cited safety standard is intended to prevent. 

The articulation of the hazard in the instant matter therefore considers the potential 

danger, and the violation’s contribution to a reasonable likelihood that injury to miners may 

result. As described above, the starting point for determining the hazard is the actual cited 

section. Section 75.511, the standard violated in this case, requires that electrical equipment be 

locked out and tagged out while electrical work is performed on the equipment. The requirement 

of lock out and tag out is to ensure that power will not be restored during electrical work, thus 

protecting the miners performing the electrical work from electrical shock or electrocution. 

Hence, the specific hazard in this case is that the cathead for the shuttle car would be reconnected to the power center, thus re-energizing the cable which Richardson was inspecting and 

Herndon was repairing—that is, the hazard of a miner working on energized equipment. Simply 

stated, in this case, the tangible hazard for consideration at the second step was the likelihood of 

the occurrence of miners working on energized equipment. 

Having clearly defined the hazard, the next task at step two is for the Judge to determine 

whether the violation sufficiently contributed to that hazard. The Commission has utilized a 

“reasonable likelihood” analysis for determining whether a violation significantly and 

substantially “contributes” to a hazard. That means the second step requires a determination of 

whether, based upon the particular facts surrounding the violation, there exists a reasonable 

likelihood of the occurrence of the hazard against which the mandatory safety standard is 

directed. Here, for example, the question under step two is whether, under these particular 

circumstances, the violation (the failure to remove the key from the lock) was reasonably likely 

to result in the restoration of power to the shuttle car cables while the inspection group was 

working on it.9

 

If the Judge concludes, based upon the evidence, that the violation sufficiently 

contributes to the hazard identified at step two, the Judge then assumes such occurrence and 

determines at step three whether, based upon the particular facts surrounding the violation, the 

occurrence of that hazard would be reasonably likely to result in an injury. At step four, the 

Judge determines whether any resultant injury would be reasonably likely to be reasonably 

serious. 

9

 This is not a situation like a respirable dust violation, Consolidation Coal Co., 8 

FMSHRC 890, 898 (Jun. 1986), or a pre-shift examination violation, Manalapan Mining Co., 18 

FMSHRC 1375, 1388–98 (Aug. 1996) (Jordan and Marks, Comm’rs, concurring in part and 

dissenting in part), where the hazard may be presumed from the fact of the violation. Here, the 

Secretary must prove that the violation contributes to the hazard. 

38 FMSHRC Page 2038
We recognize that “reasonable likelihood” is not an exact standard. Obviously, a Judge 

cannot calculate the degree of risk of the occurrence of a hazard or a reasonably serious injury in 

precise percentage terms. Rather, the “reasonable likelihood” standard is a “matter of a degree” 

evaluation with particular focus on the facts and circumstances presented regarding these risks. 

This imprecision and the complexity of the facts in many Mine Act cases do not undercut the 

importance of the standard; indeed, it serves to emphasize the necessity for careful, thoughtful 

review of all relevant facts in every S&S proceeding. In this regard, it is not unlike other 

decisions that require Commission Judges to apply their experience and sound discretion to the 

resolution of difficult, fact-intensive questions, such as those involved in an unwarrantable 

failure analysis.10 And as with the unwarrantable failure analysis, Commission Judges have 

applied an analytical framework in S&S cases that has developed a generally coherent view of 

the term “reasonably likely,” despite its inherent imprecision. 

In a recent Mine Act case involving an S&S determination, the Fourth Circuit used the 

phrase “at least somewhat likely,” in describing the second step of Mathies. Specifically, the 

court stated that the Secretary establishes a contribution when he shows that the violation is “at 

least somewhat likely to result in harm.” Knox Creek, 811 F.3d at 163. 

The Fourth Circuit’s discussion on the second step of Mathies is brief and merely 

supplements the court’s primary discussion regarding other matters. Specifically, the meaning of 

the second step was not at issue in Knox Creek; instead the court was concerned with the 

application of the third step of Mathies. Id. at 161. The court only described the second step of 

Mathies in order to contrast its purpose with the purpose of the third step. Id. at 162. Thus, 

nothing in the case turned on the exact degree of “contribution” in the second step of Mathies, 

and the court was not required to analyze the differences between “at least somewhat likely” and 

“reasonably likely.” 

All Commissioners agree that the Judge must analyze the likelihood of the occurrence of 

the hazard at step two of the Mathies test. It is simply incorrect to assert that the Fourth Circuit

“promulgated” a test for the second step of Mathies in Knox Creek. Slip op. at 20 (Jordan, 

Chairman, and Cohen, Comm’r, concurring in part and dissenting in part). As pointed out above, 

the second step of Mathies was not an issue in Knox Creek. Neither party briefed step two; the 

step two test was not before the court. For that reason, the fact that the Fourth Circuit discussed 

the necessity of a likelihood element in step two simply emphasizes that a review of the 

likelihood of the occurrence of the hazard is required. Indeed, the words “at least” show the 

circuit court was writing in terms of a minimum standard in discussing a principle not in issue. 

Those words provide no basis for an inference that the court was considering changing, let alone 

intending to change, our long-existing reasonable likelihood standard in a case where the issue 

was not before it. If the court intended to substitute a new standard, it would have said so.11 

10 An unwarrantable failure refers to more serious conduct by an operator in connection 

with a violation. It is “more than ‘ordinary negligence.’” Emery Mining Corp., 9 FMSHRC 1997, 

2001 (Dec. 1987). Therefore, the Judge must determine the degree of negligence. 

11 The restraint the court displayed in its discussion of this issue is consistent with its 

thoughtful and well-reasoned opinion. 

38 FMSHRC Page 2039
 We note that the Commission itself has never construed “reasonable likelihood” in a 

narrow or cramped manner that would hinder achievement of the Mine Act’s objective of a safe 

and healthful mining environment.12 That leads us to believe that the Fourth Circuit was not 

trying to announce any particular interpretation of the statutory S&S language or draw any 

distinctions between degrees of likelihood, but was merely attempting to describe existing 

Commission jurisprudence. As a result, we continue to apply our established standard rather than 

embracing a different phrasing of the standard in this case.13

 We now apply the Mathies test to the facts of this case. 

 2. Application of the Mathies Test14

With respect to the first step of the Mathies test, Herndon’s actions constituted a violation 

of a mandatory safety standard. Specifically, he failed to lock out the shuttle car cathead while 

electrical work was being performed, in violation of 30 C.F.R. § 75.511. As a result, the first step 

of Mathies is met. 

The second step of the Mathies analysis asks whether this failure to lock out the shuttle 

car cathead during electrical work contributed to a discrete safety hazard. As noted above, the 

specific hazard posed by the violation in this case was that the cathead for the shuttle car would 

 12 For example, the Commission has repeatedly held that “reasonable likelihood” does 

not mean more probable than not. U.S. Steel Mining Co., 18 FMSHRC 862, 865 (June 1996); 

Amax Coal Co., 19 FMSHRC 846, 848-49 (May 1997). Further, we apply certain assumptions in 

determining reasonable likelihood, such as the presumption that the violation will continue 

unabated in the course of continued mining operations. Black Beauty Coal Co., 34 FMSHRC 

1733, 1740 (Aug. 2012), aff’d sub nom. Peabody Midwest Mining, LLC v. FMSHRC, 762 F.3d 

611 (7th Cir. 2014); Rushton Mining Co., 11 FMSHRC 1432, 1435 (Aug. 1989). Additionally, 

we do not take into account the existence of redundant safety measures. Knox Creek, 811 F.3d at 

162, aff’g 36 FMSHRC 1128 (May 2014). 

13 Because Knox Creek was issued after briefing in this case was completed, we have not 

yet heard from the Secretary, the operators, or others in the regulated community on this issue. 

For example, inspectors now evaluate the likelihood aspect of gravity under the penalty criteria 

in terms of “reasonably likely.” We do not know how or whether adopting an “at least somewhat 

likely” standard for the second step of Mathies would impact the assessment of gravity by 

MSHA inspectors. Nonetheless, we do not foreclose the possibility of making changes in our 

application of the Mathies test in the future if circumstances warrant such a change. 

14 Chairman Jordan and Commissioners Cohen and Nakamura join in reversing the 

Judge’s S&S findings. Commissioner Nakamura finds that the violation was S&S applying the 

“reasonably likely” standard for step two of the Mathies test. Chairman Jordan and 

Commissioner Cohen find that the violation is S&S applying either the “reasonably likely” or the 

“at least somewhat likely” standard which they discuss in a separate opinion, infra, for step two 

of the Mathies test. 

38 FMSHRC Page 2040
be re-connected to the power center while miners were working on the power cables. Therefore, 

under the second step of Mathies, the question is whether that hazard was reasonably likely to 

occur given the particular facts surrounding this violation. After a careful review of those facts, 

we conclude that such an occurrence was reasonably likely. 

The relevant facts surrounding this violation are as follows: The inspector, Herndon, and 

the shuttle car operator composed the inspection party. At the outset of the electrical inspection, 

Herndon had placed a lock he borrowed from a roof bolter on the shuttle car cathead so that the 

cable could be inspected and, if necessary, repaired. He was unable to remove the key from the 

lock and so he decided to simply leave it in place. Tr. 101–05. Inspector Richardson testified that 

because the key was left in place, anyone working in the area could have removed the lock from 

the cathead, put the cathead back in the power center, and energized the cable. Tr. 58. Roughly 

10 people were on the section and many of those miners would not have known that cable repair 

was being made. Tr. 61. Miners were likely to be near the power center because, as Richardson 

testified, this was a location where miners congregated to access their lunch buckets. Tr. 63. 

Richardson believed that a miner could “[w]alk by, see the cathead, the shuttle car, and 

think that the electrician was working on the shuttle car before he got called to work on the miner 

and say, ‘Well, I’ll help him out and I’ll finish re-energizing15 the cathead to the shuttle car.’” Tr. 

78–79. In doing so, a miner might simply think that the electrician forgot to remove the key. Tr. 

61. Richardson also testified that miners would be expected to work at the power center in the

near future. At the same time that Herndon was repairing the shuttle car in the fourth entry, a

different electrician, Carpenter, was repairing a continuous miner cable in the fifth entry. Tr. 34,

75. After Carpenter was finished with his repair he would have gone to the power center to

energize the continuous miner. Tr. 64. Or, he might have given another miner the key to his lock

and asked him to go to the power center to energize the continuous miner cable. Tr. 64. That

assistant miner might have seen the key in the shuttle car cable lock and energized that cable

because he believed he was assisting the section electrician or because he had mistaken the

shuttle car cathead for the miner cathead. Tr. 64.

These facts compel a finding that the violation contributed to the hazard of electrical 

shock. The failure to remove the key was reasonably likely to result in a miner accidentally or 

unknowingly plugging the cable back into the power center. The miner working on the cable 

would then be exposed to electrical shock. Therefore, the second step of Mathies is met. 

The Judge made several findings regarding the likelihood that the cable would be reenergized. Although he did so in his discussion of the third step of Mathies, as shown above, the 

proper place for this analysis is in the second step of Mathies. Therefore, the Judge’s findings 

regarding the likelihood of the occurrence of the event against which the standard is directed will 

15 The transcript quotes the inspector as saying “finish de-energizing the cathead.” Tr. 79. 

However, just before this, the inspector was agreeing that someone could walk by the power 

center and think that he was helping the electrician by “re-energiz[ing]” the cathead. Tr. 78. In 

context, it is clear that “de-energizing” was a typographical error by the Court Reporter. 

38 FMSHRC Page 2041
be considered here. In doing so, we conclude that the Judge’s findings contain legal errors and 

are not supported by substantial evidence.16

 Specifically, the Judge found that the lock, even with the key in place, constituted a 

“visual cue to any miner seeing it that the cathead should not be plugged back in, perhaps similar 

to the visual cue a proper tag used to tag out a cable like this would provide.” 35 FMSHRC at 

2504. In making this finding, the Judge relied on the fact that the standard at issue, section 

75.511, contains an alternative to locking out, “i.e., it is acceptable to ‘suitably’ tag a cathead 

when an actual lock out is not possible.” Id. The Judge was “convinced . . . that the tagging effect 

of finding a lock of any sort on a cathead mitigates against a finding of greater likelihood.” Id. 

 It is true that section 75.511 contains an alternative to locking out. However, this 

alternative is a narrow exception that is not applicable here. That section provides that 

disconnecting electrical devices should be locked out “except that in cases where locking out is 

not possible, such devices shall be opened and suitably tagged.” 30 C.F.R. § 75.511. Therefore, a 

predicate to the use of tagging out without locking is the impossibility of locking out. Here, there 

is no question that locking out was possible. In fact, Herndon was able to place a lock on the 

cathead; he claimed he simply wasn’t able to remove the key. Therefore, the exception to the rule 

is not applicable. 

 

 The Judge also found that the condition had existed “for only a few minutes before 

Herndon told Richardson about it, during which time no work was done on the power cable.” 35 

FMSHRC at 2505–06. This finding is based on the Judge’s incorrect assumption that Herndon 

told Richardson he had left the key in the lock when he returned to the inspection party. 

However, the record shows that this assumption is incorrect. Herndon testified that when he put 

the lock on the cathead, he was unable to remove the key, even with the help of channel locks. 

Tr. 104. He then walked back over to the shuttle car. Tr. 104–05. He testified that the time 

between when he left to place the lock on the cathead and when he returned was approximately 

three minutes. Tr. 105. He testified that in that three-minute period, no work was done on the 

cable. Tr. 105. However, Herndon did not tell Richardson about the condition when he returned. 

In fact, the undisputed evidence is that Richardson did not learn about the key in the lock until 

after the repairs were made. Tr. 46, 48–50. That means that all of the repairs were conducted 

while the key, unbeknownst to Richardson, was still in the lock. Herndon testified that the repairs 

lasted ten minutes. Tr. 108. Although the cuts in the cable may have taken ten minutes to repair, 

Richardson estimated that the lock and key were on the cathead for about 30 minutes during 

which time he was handling the cable looking for additional hazardous conditions. Tr. 56–57. 

 16 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)). In reviewing the whole record, an appellate tribunal must consider anything in the 

record that “fairly detracts” from the weight of the evidence that supports a challenged finding. 

Midwest Material Co., 19 FMSHRC 30, 34 n.5 (Jan. 1997) (quoting Universal Camera Corp. v. 

NLRB, 340 U.S. 474, 488 (1951)). 

38 FMSHRC Page 2042
Therefore, substantial evidence does not support the Judge’s finding that no repairs were 

conducted while the key was in place or that the condition existed for only a “few” minutes. 

In addition, the Judge found that from the shuttle car, “a visual observation of the cathead 

was arguably possible,” and that the inspection team could have shouted at any miner working 

around the cathead, warning that miner not to tamper with the lock. 35 FMSHRC at 2505. The 

Judge supported this finding by noting that the mining machine was turned off and no coal was 

being produced, meaning that the section would be much quieter than usual. Id. This would 

allow the voices of the inspection team to travel farther. Furthermore, the Judge stated that the 

power center was only 55 feet away from the shuttle car. Id. 

There are several problems with the Judge’s finding regarding the inspection party’s 

ability to see the power center. First, the Judge’s conclusion is based on disputed and 

contradictory evidence. In particular, while Herndon testified that the power center was only 55 

feet from the shuttle car, Richardson testified that it was 115 feet away. Tr. 36–37, 102. Further, 

Herndon testified that he could clearly see the power center from the shuttle car with his cap 

lamp, while Richardson testified that the power center was not visible from the shuttle car 

because of large blocks of coal between the entries. Tr. 37, 127–28. In analyzing whether the 

inspection crew would be able to verbally warn a miner against re-energizing the cable, the 

Judge used the 55-foot distance and also assumed that the inspection crew would be able to see a 

miner at the power center. 

Regardless of distance and visibility, the Judge’s conclusions are not supported by 

substantial evidence. Even if the power center was only 55 feet from the shuttle car and even if 

there was nothing obstructing the view, the evidence would still not support a finding that the 

inspection crew could “warn” miners away from the power center. First, of the three members of 

the inspection team present, only one, Herndon, was aware that the key was left in the lock. Tr. 

104–05. Richardson only learned of the condition after the repairs were completed. Tr. 46, 48–

50. Perhaps more importantly, Herndon, the only person in the inspection party aware of the

condition, was busy repairing the cable at the time and might not have been aware that a miner

was approaching the power center. Tr. 105–08. Even if Herndon happened to notice a miner

approaching, he testified that he did not believe that the key constituted a hazard and therefore

would have felt no need to warn the miner. Tr. 111–12. Thus, substantial evidence does not

support the Judge’s conclusion that the inspection party could warn miners away from the power

center.

The Judge also found that, because the continuous miner machine was being repaired, 

there was “less than normal pressure to keep a production pace, which as a matter of common 

sense might reduce a miner’s incentive to cut corners.” 35 FMSHRC at 2506. The Judge 

reasoned that without this pressure, there was no known impetus to re-energize a cable with a 

lock in it. Id. This conclusion is speculative and is not based on any evidence in the record. There 

is no reason to believe that miners would be more cautious simply because the continuous miner 

was being repaired. Richardson testified that the continuous miner being down can, in fact, sow 

confusion. Tr. at 61. Substantial evidence does not support the Judge’s assumptions. 

38 FMSHRC Page 2043
 Additionally, the Judge found that the miners would be less likely to re-energize the cable 

because they were aware that an MSHA inspector was in the area conducting an inspection. 35 

FMSHRC at 2506. The Judge believed that the presence of the inspector was “far enough out of 

the ordinary to override a miner’s being ‘on auto-pilot’ while doing his job to motivate him to be 

a bit more perspicacious and cautious than normal.” Id. Once again, the Judge’s conclusion is 

speculative. While it is true that miners were aware that Inspector Richardson was on the section, 

there is no evidence to suggest that this would somehow change the way miners would consider 

a lock with the key inserted. Further, many mines have federal inspectors present daily and there 

is no evidence to suggest that it was out of the ordinary for an inspector to be at this mine. Even 

if a mine inspection at this particular mine was relatively rare, there is no evidence to suggest 

that the presence of an inspector would necessarily make miners more cautious. Once again, 

substantial evidence does not support the Judge’s assumptions. 

Moreover, the Judge found that miners were trained to know that only the person who 

placed a lock on a cathead was permitted to unlock it and re-energize it. Id. at 2503, 2506. The 

Judge held that “[a]ll miners are initially trained and subsequently re-trained never to remove a 

lock placed by someone else . . . . In order for this element to fail, a miner must forget or ignore 

the training.” Id. at 2506. 

 The Judge’s reliance on the operator’s training program constitutes legal error. 

Essentially, the Judge is positing that miners were trained to be particularly cautious when 

working with locks on electrical equipment. However, in Eagle Nest, Inc., 14 FMSHRC 1119 

(July 1992), we held that whether miners would exercise caution is not relevant under the 

Mathies test. In fact, the Commission concluded that the consideration of mitigation by caution 

would essentially add a new element to the Mathies test. Instead, we held, “[t]he hazard 

continues to exist regardless of whether caution is exercised.” Id. at 1123. The second and third 

steps of the Mathies test should be applied by the Judge accordingly. “While miners should, of 

course, work cautiously, that admonition does not lessen the responsibility of operators, under 

the Mine Act, to prevent unsafe conditions.” Id. We have also held that “relying on [the] skill 

and attentiveness of miners to prevent injury ‘ignores the inherent vagaries of human behavior.’” 

U.S. Steel Mining Co., 6 FMSHRC 1834, 1838 n.4 (Aug. 1984) (quoting Great W. Elec. Co., 5 

FMSHRC 840, 842 (May 1983)). 

For those same reasons, we reject the Judge’s conclusion here that the likelihood of the 

hazard was lessened by Newtown’s training regime. The common sense justification for this 

legal conclusion is supported by the Judge’s own statement that miners forgetting or ignoring 

their training is “something that happens all too frequently.” 35 FMSHRC at 2506. Similarly, 

Inspector Richardson testified that miners do not always comply with their training. Tr. 61–62. 

After all, as Richardson noted, miners were trained not to leave their key in the lock but Herndon 

did so anyway here. Tr. 62–63. Therefore, the Judge committed legal error in his consideration 

of the miners’ training as a factor militating against a finding of S&S. 

 In light of these errors, we conclude that the Judge’s opinion (and the brief submitted by 

the operator) does not undermine our ultimate conclusion reached above: The presence of the 

key in the lock made it reasonably likely that the cable would be re-energized. 

38 FMSHRC Page 2044
Having determined that the Secretary has established the second step of Mathies, we can 

now turn to the third and fourth steps to discuss whether it was reasonably likely that the hazard 

would result in serious injury. As described above, it is necessary at this point to assume that the 

hazard is realized. See Knox Creek, 811 F. 3d at 161–62; Peabody Midwest Mining, LLC, 762 

F.3d at 616; Buck Creek Coal, 52 F.3d at 135. In this case, that means assuming that the cable

was re-energized while miners were working on it.

It is undisputed that Herndon worked on the cable with a metal knife. Tr. 60. The 

inspector testified that there were two separate conditions with the cable creating points of 

exposure. Tr. 40. The Judge credited this conclusion. 35 FMSHRC at 2497. If someone reenergized the cathead while the metal knife or a bare hand was in contact with the power 

conductor inside, the person would become exposed to ground voltage and would complete the 

path for electricity to flow. Tr. 60. While Herndon testified that he did not believe he or anyone 

else was exposed to a hazard, he also testified that he would not have touched the inner wires 

while energized because he would not be sure they were free from pinholes and they would 

constitute a shocking hazard. Tr. 132–133. If shocked, the miner would come into contact with 

277 volts of electricity. Tr. 58. A 277-volt shock would be sufficient to cause fatal injury. Tr. 43, 

58. In fact, the Judge found that the injury would be “potentially fatal.” 35 FMSHRC at 2506.

If the cable at issue had been energized, it was reasonably likely that Herndon would 

have been shocked. That shock would be reasonably likely to result in fatal injury. As a result, 

the third and fourth steps of Mathies are established. 

Therefore, we reverse the Judge’s finding that the Secretary failed to prove that the 

violation was significant and substantial. 

B. Unwarrantable Failure17

Unwarrantable failure is aggravated conduct constituting more than ordinary negligence.

Emery Mining Corp., 9 FMSHRC 1997, 2001 (Dec. 1987). Unwarrantable failure is 

characterized by “reckless disregard,” “intentional misconduct,” “indifference,” or a “serious 

lack of reasonable care.” Id. at 2003–04; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 

194 (Feb. 1991) (“R&P”); see also Buck Creek Coal, Inc., 52 F.3d 133, 136 (7th Cir. 1995) 

(approving Commission’s unwarrantable failure test). 

Whether the conduct is “aggravated” in the context of unwarrantable failure is 

determined by looking at all the facts and circumstances of each case, including (1) the extent of 

the violative condition, (2) the length of time that it has existed, (3) whether the violation posed a 

high risk of danger, (4) whether the violation was obvious, (5) the operator’s knowledge of the 

existence of the violation, (6) the operator’s efforts in abating the violative condition, and (7) 

whether the operator has been placed on notice that greater efforts are necessary for compliance. 

Manalapan Mining Co., 35 FMSHRC 289, 293 (Feb. 2013); IO Coal Co., 31 FMSHRC 1346, 

17 Commissioners Young, Cohen, and Althen vacate and remand the Judge’s finding 

regarding unwarrantable failure. 

38 FMSHRC Page 2045
1350–57 (Dec. 2009); Cyprus Emerald Res. Corp., 20 FMSHRC 790, 813 (Aug. 1998), rev’d on 

other grounds, 195 F.3d 42 (D.C. Cir. 1999). These factors need to be viewed in the context of 

the factual circumstances of a particular case. 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 operator’s conduct is aggravated or whether mitigating circumstances exist. Id. 

Noticeably absent from the Judge’s unwarrantable failure analysis was any consideration 

of Herndon’s position as mine superintendent.18 A supervisor is held to a higher standard of care 

than a rank and file miner, and as such, evidence of a supervisor’s involvement in the creation of 

a violative condition is an aggravating factor that should be considered in conjunction with the 

traditional unwarrantable failure factors. See, e.g., Lopke Quarries, Inc., 23 FMSHRC 705, 711 

(July 2001); REB Enters., Inc., 20 FMSHRC 203, 225 (Mar. 1998). Furthermore, a supervisor’s 

violative conduct which occurs within the scope of his employment may be imputed to the 

operator for unwarrantable failure purposes. R&P, 13 FMSHRC at 194–97. Therefore, 

recognition of Herndon’s position should have played a major role in influencing the analysis of 

the traditional factors, such as the operator’s knowledge of the violation. 

In addition, the Judge erred by failing to discuss the Commission’s established factors for 

unwarrantable failure, finding that the “traditional factors . . . do not lend themselves well to the 

facts of this case.” 35 FMSHRC at 2508. However, while a Judge may determine that some 

factors are not relevant or are less important than others under the circumstances, “all of the 

factors must be taken into consideration and at least noted by the Judge.” IO Coal Co., 31 

FMSHRC at 1351. Regardless of the weight the Judge lends to a factor, the Judge should at least 

identify the factors and state the reason for the weight he assigns. Obviously, the opinion need 

not be repetitive if the reason for the weight is the same for a number of factors. However, the 

Judge should indicate the weight placed on each factor. 

The traditional unwarrantable failure factors do not lose their relevancy simply because 

the violative conduct occurred in the context of an inspection. The extent of the violation, the 

length of time the violation existed, whether the violation was obvious, the operator’s knowledge 

of the violation, whether the operator was attempting to abate the violation prior to the issuance 

of the citation, and whether the operator had in the past been placed on notice of similar failures 

to properly lock and tag out equipment are all discernible when violative conduct occurs in such 

a context. Furthermore, each factor poses a separate and distinct question that, when taken 

together, helps to form a greater understanding of whether the operator’s conduct was aggravated. 

Given the absence of analysis of the fact that Herndon was the mine superintendent and 

of meaningful findings on many of the traditional unwarrantable failure factors, we remand the 

determination of unwarrantable failure. On remand, the Judge shall examine the evidence as to 

18 Consideration of Herndon’s supervisory role is of even greater importance given his 

role at the mine. Herndon was the mine’s superintendent. With the exception of the mine 

manager, every employee at the mine was under his authority. Tr. 31. He is also a certified 

electrician, and thus would have been in a better position to influence his subordinates’ approach 

to addressing electrical hazards. 

38 FMSHRC Page 2046
each of the unwarrantable failure factors with the recognition that the violation was attributable 

to the superintendent of the mine. 

C. Civil Penalty19

Pursuant to section 110(i) of the Mine Act, the Commission, in assessing a civil penalty,

considers six factors including the negligence and gravity of the violation. Here, the Secretary 

challenges the Judge’s reduction of the penalty to $207, specifically challenging the findings as 

to negligence and gravity. We agree that the Judge erred in changing the evaluation of 

Newtown’s negligence from “high” to “low.” 35 FMSHRC at 2500–03. With regard to gravity, 

we agree that the Judge erred in finding that an injury was unlikely to occur, even though it 

would be potentially fatal. Id. at 2503–04. 

1. Negligence

In analyzing an operator’s degree of negligence, the Commission has recognized that 

“[e]ach mandatory standard . . . carries with it an accompanying duty of care to avoid violations 

of the standard, and an operator’s failure to meet the appropriate duty can lead to a finding of 

negligence if a violation of the standard occurs.” A.H. Smith Stone Co., 5 FMSHRC 13, 15 (Jan. 

1983). In determining whether an operator met its duty of care, we consider what actions would 

have been taken under the same circumstances by a reasonably prudent person familiar with the 

mining industry, the relevant facts, and the protective purpose of the regulation. Brody Mining, 

LLC, 37 FMSHRC 1687, 1702 (Aug. 2015) (citations omitted); U.S. Steel Corp., 6 FMSHRC 

1908, 1910 (Aug. 1984). 

However, we have long recognized that mine management should be held to an even 

higher standard of care. See Midwest Materials Co., 19 FMSHRC 30, 35 (Jan. 1997) (“a 

foreman . . . is held to a high standard of care”). The Mine Act places primary responsibility for 

maintaining safe and healthful working conditions in mines on operators, with the assistance of 

their miners. 30 U.S.C. § 801(e). “Managers and supervisors in high positions must set an 

example for all supervisory and non-supervisory miners working under their direction. Such 

responsibility not only affirms management’s commitment to safety but also, because of the 

authority of the manager, discourages other personnel from exercising less than reasonable care.” 

Wilmot Mining Co., 9 FMSHRC 684, 688 (Apr. 1987). 

Substantial evidence does not support the Judge’s finding that the violative condition was 

the result of a low degree of negligence on the part of Newtown. It is clear from the record that 

Herndon, a certified electrician, failed to meet the high standard of care befitting his position as 

the mine’s superintendent. Herndon knew that leaving the key in the lock was a violation of 

federal regulations. Tr. 119. See Deshetty, employed by Island Creek Coal Co., 16 FMSHRC 

1046, 1053 (May 1994) (concluding that actual knowledge of violative conditions and failure to 

act constituted high negligence). He failed to demonstrate good faith because he did not inform 

19 Chairman Jordan and Commissioners Cohen and Nakamura join in reversing the 

Judge’s findings regarding negligence and gravity. 

38 FMSHRC Page 2047
Richardson that he was unable to procure a functional lock. Furthermore, despite his position and 

experience as an electrician, Herndon failed even to recognize the danger the faulty lock posed. 

Tr. 111. Not only did his actions put him in danger of serious bodily harm, they also set a poor 

example for the miners under his supervision. 

The Judge erred in finding that the standard of care expected of Newtown was diminished 

because the violation occurred in the course of an MSHA inspection of the trailing cable.20 It is 

indisputable that the violative condition was the product of Herndon’s decisions alone. 

Richardson did not instruct Herndon to use the defective lock, nor did he improperly pressure 

Herndon to utilize the most expedient means to facilitate the inspection. Further, the Judge erred 

in characterizing Herndon as a “deputized” agent of Inspector Richardson. See 35 FMSHRC at 

2499–500. Rather, Herndon’s participation in the inspection was voluntary pursuant to section 

103(f) of the Mine Act, 30 U.S.C. § 813(f), and Herndon was not at risk of sanction were he to 

report to Richardson that he was unable to locate a functional lock. Tr. 144–45. Because the 

Judge shifted part of the blame for the violation to Richardson, he failed to recognize the 

implication of his finding that Herndon “cut corners.” 35 FMSHRC at 2502. 

The Judge also found that leaving the key in the lock should be considered an element of 

mitigation because it represented something akin to tagging the cathead within the meaning of 30 

C.F.R. § 75.511, thus acting “as a signal to anyone seeing it that something out of the ordinary 

was going on.” 35 FMSHRC at 2502–03. However, the key in the lock was not intended as a 

“signal” like tagging. Herndon left the key in the lock simply because he could not get it out. 

Finally, the Judge found, as an element of mitigation, that the faulty lock was on the 

cathead for only a short period of time. Id. at 2503. While the length of time of the violation is 

relevant to the issue of unwarrantable failure, it has little relevance to negligence, especially 

where Herndon testified that “there was no danger” in leaving the key in the lock. Tr. 111. 

Although Herndon partially complied with section 75.511 by de-energizing the trailing 

cable and placing a lock, albeit defective, on the cathead, this fact alone does not preclude a 

finding of high negligence.21 As we have repeatedly held, the Commission and its Judges are not 

bound to apply the regulations in 30 C.F.R. Part 100 that MSHA uses to calculate most proposed 

penalties. See, e.g., Brody Mining, 37 FMSHRC at 1701–03. We have explained that an ALJ “is 

not limited to an evaluation of allegedly ‘mitigating’ circumstances” and should consider the 

“totality of the circumstances holistically.” Id. at 1702; Mach Mining, LLC v. Sec’y of Labor, 809 

F.3d 1259, 1264 (D.C. Cir. 2016). A finding of high negligence may be made in spite of 

 20 Given the highly regulated nature of underground coal mines, MSHA inspections occur 

with enough frequency to be considered a part of the normal mining cycle. Furthermore, the duty 

to inspect and repair the trailing cable existed independently of the inspection. As such, we see 

no need to treat the fact that the violation occurred in the context of an inspection as a mitigating 

factor. 

21 “Locking out” with a defective lock is analogous to using the wrong size of roof bolts. 

In both instances, the negligence is not diminished by a miner’s clearly ineffective effort to 

comply with the safety standard. 

38 FMSHRC Page 2048
mitigating circumstances. Brody Mining, 37 FMSHRC at 1702–03. Instead, the real gravamen of 

high negligence is that it “suggests an aggravated lack of care that is more than ordinary 

negligence.” Topper Coal Co., 20 FMSHRC 344, 350 (Apr. 1998) (citation omitted). 

Accordingly, we find that the operator failed to meet its duty of care and that Herndon’s 

actions in his position as mine superintendent require a finding of high negligence. 

2. Gravity

The gravity penalty criterion under section 110(i) of the Mine Act, 30 U.S.C. § 820(i), “is 

often viewed in terms of the seriousness of the violation.” Consolidation Coal Co., 18 FMSHRC 

1541, 1549 (Sept. 1996) (citing Sellersburg Stone Co., 5 FMSHRC 287, 294–95 (Mar. 1983), 

aff’d, 736 F.2d 1147 (7th Cir. 1984); Youghiogheny & Ohio Coal Co., 9 FMSHRC 673, 681 

(Apr. 1987)). The gravity analysis focuses on factors such as the likelihood of injury, the severity 

of an injury if it occurs, and the number of miners potentially affected. Here, the Judge 

concluded that if an injury occurred it would be potentially fatal and would affect one miner, but 

that an injury was unlikely to occur. 35 FMSHRC at 2503. 

The Judge reached his conclusion by noting that, despite the fact that Herndon’s actions 

placed him at risk of serious electric shock or electrocution, it was unlikely that the power cable 

would have been re-energized. However, for the reasons set forth in our S&S analysis, we find 

that substantial evidence does not support the Judge’s conclusion that an injury-causing event 

was unlikely. We vacate this finding and conclude that the gravity of this violation was high: a 

potentially fatal injury to one miner was reasonably likely to occur. 

Accordingly, we reverse the Judge’s findings as to negligence and gravity and remand for 

a reassessment of the civil penalty. 

38 FMSHRC Page 2049
III.

Conclusion 

For the foregoing reasons, we: (1) reverse the Judge’s findings on S&S, and reinstate the 

S&S designation for the violation; (2) vacate and remand the unwarrantable failure determination 

for further proceedings consistent with this decision; and (3) vacate and remand the civil penalty 

for reassessment consistent with the negligence and gravity findings in this decision and (if 

unwarrantable failure is found) the statutory minimum penalty for section 104(d)(1) citations and 

orders. See 30 U.S.C. § 820(a)(3)(A). 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner 

38 FMSHRC Page 2050
Chairman Jordan and Commissioner Cohen, concurring in part and dissenting in part:

While we join Commissioner Nakamura in finding that the violation was S&S, we write 

separately because we disagree with the interpretation of the second step of the S&S test in 

Mathies Coal Co., 6 FMSHRC 1, 3–4 (Jan. 1984), set forth by the majority on this issue 

(Commissioners Young, Nakamura, and Althen). In our view, all that is required to establish the 

second Mathies step is that the violation be shown to be “at least somewhat likely to result in 

harm,” as stated by the Fourth Circuit in Knox Creek Coal Corp. v. Secretary of Labor, 811 F.3d 

148, 162 (4th Cir. 2016). 

As our colleagues state, in the second step of the Mathies test, the question is whether the 

violation contributes to a particular hazard. This step is primarily concerned with likelihood, that 

is, the extent the violation increases the likelihood a hazardous condition will occur. Id. at 162. In 

the third and fourth steps, the violation is no longer the explicit concern of the analysis; the 

question instead is whether the previously identified hazard is reasonably likely to result in a 

reasonably serious injury. See Cumberland Coal Res., LP, 33 FMSHRC 2357, 2365, 2370 (Oct. 

2011), aff’d, 717 F.3d 1020 (D.C. Cir. 2013) (citing Musser Eng’g, Inc. & PBS Coals, Inc., 32 

FMSHRC 1257, 1281 (Oct. 2010)); Knox Creek, 811 F.3d at 162 (“Requiring a showing at [step] 

three that the violation itself is likely to result in harm would make [step] two superfluous.”). 

These steps are primarily concerned with gravity. Knox Creek, 811 F.3d at 162. 

We also agree with our colleagues that under the Mathies test, it is essential for the Judge 

to adequately define the particular hazard that is allegedly contributed to by the violation. 

Establishing a clear definition of the hazard at issue provides something tangible that the 

violation’s contribution can be measured against in the second step analysis. In the instant 

proceeding, the Judge did not articulate the hazard at issue. On that point, he simply asserted, 

“[i]t is a discrete safety hazard to perform electrical work on equipment without locking or 

tagging it out.” 35 FMSHRC 2494, 2505 (Aug. 2013) (ALJ). The Judge’s statement of the 

hazard is insufficient as it does not specify the danger facing miners. 

Additionally, we agree with our colleagues that the starting point for determining the 

hazard is the regulation cited by MSHA. The “hazard,” for purposes of the Mathies analysis, is 

the danger which the cited safety standard is intended to prevent. Section 75.511, the standard 

violated here, requires, among other things, that electrical equipment be locked out and tagged 

out while electrical work is performed. The requirement of lock out and tag out is to ensure that 

power will not be restored during electrical work. Under the plain wording of the standard, it is 

not sufficient for someone performing electrical work to simply de-energize the equipment. 

Hence, as the majority correctly acknowledges, the specific hazard in this case is that the cathead 

for the shuttle car would be re-connected to the power center, thus re-energizing the cable which 

Richardson was inspecting and Herndon was repairing. As Inspector Richardson testified, 

“[w]ith the key being left in the lock[,] anyone could have removed the lock from the cathead, 

put the cathead back in the power center and energized the cable.” Tr. 58. 

After identifying the specific hazard, the next step is to conduct the likelihood analysis in 

light of that hazard. To that end, the trier of fact must determine whether the Secretary has 

38 FMSHRC Page 2051
proven that the violation contributed to that hazard. It is at this point in the analysis that we 

disagree with our colleagues. 

 In Knox Creek, the Fourth Circuit held that the Secretary establishes a “contribution” for 

the purposes of the second step of Mathies when he shows that the violation is “at least 

somewhat likely to result in harm.” Knox Creek, 811 F.3d at 162, 163. Similarly, in Peabody 

Midwest Mining, LLC v. FMSHRC, the Seventh Circuit held that “[a] violation is significant and 

substantial if it could lead to some discrete hazard, the hazard was reasonably likely to result in 

injury, and the injury was reasonably likely to be reasonably serious.” 762 F.3d 611, 616 (7th 

Cir. 2014) (emphasis added). We find the standard put forth by the Fourth and Seventh Circuits 

to be similar and would apply this standard of proof for the second step of Mathies. In short, a 

violation “contributes” if it is at least somewhat likely to result in, or could result in, a safety 

hazard. In adopting this language, we note that this standard is in harmony with the wording of 

section 104(d) of the Mine Act. 30 U.S.C. § 814(d)(1) (“[S]uch violation is of such nature as 

could significantly and substantially contribute to the cause and effect of a . . . safety or health 

hazard . . . .”) (emphasis added).1 

Regarding Knox Creek, our colleagues state that the Fourth Circuit’s discussion of the 

second step of Mathies cannot be taken as intending to change our “long-existing reasonable 

likelihood standard,” and merely supplements the court’s primary analysis. Slip op. at 7–8. We 

disagree. While the term “reasonable likelihood” is longstanding in our jurisprudence, its 

traditional use in the third step of the Mathies test rather than the second step makes its meaning 

in the latter context far from clear. The question of what is meant by a hazard “contributed to by 

the violation” has not heretofore been addressed by the Commission, and has not been 

specifically equated with “reasonably likely.” 

Moreover, Knox Creek contains a thorough discussion of the Mine Act’s S&S provision,

and Commission decisions interpreting that provision. The Fourth Circuit stated that the 

evidentiary test for the second step of Mathies is “at least somewhat likely to result in harm” in 

two separate places within its opinion. 811 F.3d at 162, 163. The Commission should not ignore 

the test promulgated by the Fourth Circuit in Knox Creek. 

As explained in the Commission’s opinion, the Judge made several erroneous findings 

regarding the likelihood that the cable would be re-energized. Although he did so in his 

discussion of the third step of Mathies, as shown above, the proper place for this analysis is in 

the second Mathies step. Therefore, we would have considered the Judge’s findings regarding 

1

 We recognize that, in the past, the Commission has been reluctant to hold that a 

violation was S&S based on a finding that it “could” result in an injury-causing event. See, e.g., 

Zeigler Coal Co., 15 FMSHRC 949, 953 (June 1993) (“A reasonable likelihood of an ignition is 

[a] necessary precondition to the reasonable likelihood of an injury.”). However, as the court in

Knox Creek pointed out, that holding is inconsistent with our holding in Musser. 811 F.3d at 164.

38 FMSHRC Page 2052
likelihood in the context of the second step analysis. In doing so, we conclude that the Judge’s 

findings contain legal errors and are not supported by substantial evidence. We conclude that the 

violation was S&S under the majority’s “reasonably likely” test for the second step of Mathies as 

well as under the “at least somewhat likely” test which we would prefer to have the Commission 

adopt. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner 

38 FMSHRC Page 2053
Commissioners Young and Althen concurring in part and dissenting in part: 

We concur with Parts A.1 and B of the opinion. For the reasons set forth below, we 

dissent with regard to Parts A.2 and C. 

A. Substantial Evidence Supports the Judge’s Decision that the Violation Was Not

Significant and Substantial

This is a substantial evidence case. We agree with the majority that defining the hazard is

the first step in determining whether a violation is reasonably likely to result in the occurrence of 

the hazard against which a standard is directed. We further agree that the hazard in this case was 

the danger that Herndon or the shuttle car operator would work on energized equipment. 

Therefore, under the Commission’s articulation of the significant and substantial test, the 

evidence must preponderate that, upon the particular facts and circumstances of the case, it was 

reasonably likely that Herndon would work on energized equipment. Here, the Judge focused on 

the likelihood of the occurrence of the hazard. He analyzed the facts, made findings, and 

rendered his decision based upon the particular facts surrounding the violation. Substantial 

evidence supports his finding that the violation was not reasonably likely to result in Herndon or 

the shuttle car operator working on the shuttle car while it was energized. 

Because this is a substantial evidence case, our analysis must be whether, in light of the 

evidence placed before the Judge, a reasonable mind might accept such evidence as “adequate to 

support [the Judge’s] conclusion” that there was not a reasonable likelihood of the occurrence of 

the hazard under the facts related to the violation. Rochester & Pittsburgh Coal Co., 11 

FMSHRC 2159, 2163 (Nov. 1989) (quoting Consolidation Edison Co. v. NLRB, 305 U.S. 197, 

229 (1938). Without doubt, a reasonable person could, indeed would, arrive at the same 

conclusion as the Judge that the facts do not demonstrate any measurable likelihood that 

Herndon or the shuttle car operator faced a danger of working on energized equipment during the 

inspector’s brief inspection. 

Based upon evidence in the record cited and relied upon the Judge, he found: 

1. No mining was occurring. Other than the two miners with the inspector, all miners

were a substantial distance from the power center as they were located with the mining machine 

shut down for maintenance. Tr. 90, 99. Further, the Judge found, “[t]here was no known impetus 

to re-energize a cable with a lock on it.” 35 FMSHRC 2494, 2506 (Aug. 2013) (ALJ). Thus, 

based on the evidence, the Judge determined there was no miner near the power center and no 

reasonable likelihood a miner would go near the power center during the brief inspection. The 

majority conveniently ignores the time it took to perform the inspection. A reader of the majority 

opinion might assume that it was expected to go on for hours. In fact, it lasted a brief period, and, 

even then, took only minutes, at most, to do a brief repair. Of course, an accident only takes an 

instant. Here, however, the facts are that miners were far removed from the power center and had 

no reason to return to it during the period of the inspection or to make the gross mistake of 

energizing the shuttle car if by some remote chance a miner returned. 

38 FMSHRC Page 2054
2. Because the power center was only 55 feet from the shuttle car, in the very unlikely

event a miner did approach the power center, the Judge found the supervisor and shuttle car 

operator could see them and notify them of the inspection of the shuttle car. Id. at 2505. In fact, 

the Judge further found that the miners were aware that an inspector was on the section, so such 

an alert may not even have been necessary. 

3. The operator had labelled all catheads and receptacles at the power center. Tr. 89. The

catheads and the receptacles at the power center clearly designated both the cathead that went to 

the shuttle car and the receptacle for the shuttle car cathead. Similarly, specific labels displayed 

all other equipment receptacles. 

4. Herndon had removed the cathead for the shuttle car, labelled as described above, from

the power center and laid it on the floor of the mine. Tr. 103, 111. 

5. In fact, Herndon locked out the cathead. Herndon had placed and locked a lock on the

cable. The labelled shuttle car receptacle was empty and the labelled and locked cathead was 

lying on the floor. Tr. 103–04. Therefore, any approaching miner would have confronted a 

locked out cable labelled for the shuttle car. Such a lock actually does far more than “alert” 

miners to the out of service status of the cathead. Because the key was in the lock, the lock could 

be removed. However, such action would require a miner to physically turn the key and remove 

the lock from the labelled cathead lying on the floor. He would then have to have inserted the 

labelled cable into a labelled receptacle for a piece of equipment upon which he was not 

working, the shuttle car. 

Therefore, for the violation to result in Herndon working on energized equipment during 

the inspection, several events, none of which was individually reasonably likely to occur, would 

all have to have occurred. During a brief period, a miner, however unlikely and without reason, 

would have to have travelled to the power center. The inspector and the two miners would have 

to have not seen him. That miner, who would have had no work to do with the shuttle car, would 

have had to pick up the cathead clearly labelled for the shuttle car from the floor of the mine. 

Then, the miner would have to take the lock off the labelled cathead by turning the key and 

removing the lock. Then, he would have to have plugged the cathead into a receptacle labeled for 

the shuttle car and turned on power to the shuttle car. 

Not only is the foregoing sequence of events not reasonably likely but also such an action 

would violate the most basic training given miners. In this respect, the Commission previously 

has discounted the possibility of gross neglect as a basis for an S&S finding: 

Substantial evidence supports the Judge’s implicit finding that the 

only possibility through which miners could have been exposed to 

a hazard from the cut in the cable was if a mine repairman were

willfully grossly neglectful in completing repairs under an action 

plan that was underway. The possibility of such willful gross 

neglect in ongoing repairs does not provide grounds to overturn the 

38 FMSHRC Page 2055
Judge’s finding that that the Secretary did not carry his burden of 

proof. 

Knox Creek Coal Corp., 36 FMSHRC 1128, 1139 (May 2014), aff’d, 811 F.3d 148 (4th Cir. 

2016). Without doubt, taking a labelled and locked cathead from the floor of the mine, removing 

the lock, and inserting the cathead into a plug for equipment a miner is not using, and has no 

reason to use, would be grossly neglectful.1 

Thus, the Judge correctly followed Commission case law and applied the applicable 

reasonably likely standard to the likelihood of the occurrence of the hazard. He considered all the 

evidence and evaluated whether, “under the particular facts surrounding the violation,” there was 

a reasonable likelihood of an event causing an injury—that is, the occurrence of a hazard of 

working on energized equipment. He noted correctly that it is the Secretary’s job to prove 

through the particular facts that the violation was reasonably likely to cause such an occurrence 

rather than the operator’s job to prove injury was unlikely. It is not sustainable for the majority to 

find that a reasonable person reviewing the evidence could not reach such a conclusion. 

The Commission majority chooses to defy logic and disregard the substantial evidence 

rule in order to reverse the Judge’s eminently reasonable decision. We dissent. 

B. Civil Penalty

1. The Issue of Negligence Should be Remanded

While we would not hold the violation to be S&S, we would vacate and remand the 

Judge’s finding of low negligence for reconsideration. There may be some argument about the 

precise level of negligence implicated by Herndon’s conduct here, but the Judge had a duty to 

assess independently the operator’s negligence in light of all of the relevant facts and 

circumstances. 

Herndon was superintendent. He had responsibility for ensuring compliance with the Act 

and yet failed to comply fully with the requirement to lock and tag out electrical equipment while 

1 Eagle Nest, Inc., 14 FMSHRC 1119 (July 1992), cited by the majority, is not remotely 

relevant. Slip op. at 12. That case involved a presumption by the Judge that a miner would walk 

cautiously once he entered water that presented a substantial hazard of slipping. The issue was 

the likelihood of an injury where the occurrence of the hazard was conceded, and, therefore, 

involved caution by a miner already in a hazardous situation. Id. at 1123. This case is not 

remotely similar to a miner’s action when caught in a hazardous situation. Creation of a hazard 

in this case could occur only if a miner: (1) without reason to do so returned to the power center, 

(2) was not spotted by Herndon who had a clear view, (3) picked up a labelled and locked

cathead with which he was not working from the mine floor, (4) contrary to all training and

commonsense unlocked it (5) inserted it into the receptacle, (6) re-energized equipment with

which the miner would not have had any concern, and (7) within 10 minutes. Certainly, a

reasonable person viewing those facts could conclude that such a sequence of events was not

reasonably likely. That is the substantial evidence standard of review.

38 FMSHRC Page 2056
working on the equipment. This failure might have been mitigated by telling the inspector about 

the status of the lock or taking other measures to foreclose the possibility that the keyed lock 

might be removed and the cathead connected to the power. It is possible that Herndon did put a 

tag on the lock—as we have noted, the record is inconclusive—but he allowed the inspector to 

work on the cable without fully assuring that the lock could not be removed. 

In light of this failure by the superintendent, we could not find the negligence to be low. 

It may be either moderate or high negligence. We believe a remand is necessary for the Judge to 

consider the violation and Herndon’s actions in the context of his position and responsibilities as 

a supervisor and to determine independently the operator’s level of culpability. 

2. Gravity

For the reasons set forth above, we conclude that substantial evidence supports the 

Judge’s finding that the violation was not S&S. At the same time, we agree that the gravity 

requires consideration of a number of factors. For that reason, we join in a remand for reevaluation of gravity in considering the appropriate civil penalty. 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner 

38 FMSHRC Page 2057
Chairman Jordan and Commissioner Nakamura, concurring in part and dissenting in part:

We join Commissioner Cohen in vacating the Judge’s finding that the violative condition 

was the result of low negligence on the part of Newtown, and we agree that a finding of high 

negligence is required and that the violation was significant and substantial. We write separately 

because we find that the violation was due to the operator’s unwarrantable failure. 

As our colleagues correctly state, slip op. at 14, unwarrantable failure is aggravated 

conduct constituting more than ordinary negligence. Emery Mining Corp., 9 FMHRC 1997, 2001 

(Dec. 1987). It is characterized by “reckless disregard,” “intentional misconduct,” “indifference,” 

or a “serious lack of reasonable care.” Id. at 2003–04; IO Coal Co., Inc., 31 FMSHRC 1346, 

1350 (Dec. 2009). 

In this case, Robert Herndon, a mine superintendent (who was a trained electrician), in 

attempting to lock out a shuttle car cathead at a power station, intentionally left the key in the 

lock. Tr. 30–31, 104–05, 110–11. As the Judge noted, Herndon conceded that leaving the key in 

the lock on the cathead would violate federal law if electrical work was being performed because 

someone could remove the lock and re-energize the line. 35 FMSHRC 2494, 2498 n.3 (Aug. 

2013) (ALJ) (citing Tr. 119–20).1

 Adding insult to injury, he had been asked to lock out the 

cathead by an MSHA inspector who needed to inspect a trailing cable, and he told the inspector 

that he had locked and tagged out the cathead. Tr. 38, 49–50. However, by leaving the key in the 

lock, he created a hazardous condition, because another miner could have come to the power 

station, removed the key, and energized the cable.2

 Tr. 58–60. 

We find it deeply troubling that a mine superintendent could demonstrate such a 

disregard for the safety of the inspector and of the other miners. Even the Judge, who determined 

that the violation was not the result of unwarrantable failure, concluded nonetheless that: 

Herndon’s choice of means to comply with [the inspector’s] 

directive was wrong under the circumstances. Based on his 

experience and training, he could have done something different

that would have facilitated the inspection without creating a 

potential hazard. He chose a method that increased the likelihood 

of an injury-causing event. He cut corners in an attempt to 

facilitate [the] inspection. 

35 FMSHRC at 2502 (citations and footnotes omitted). 

1

 Newtown argued that electrical work was not being performed, but the Judge rejected 

this claim. 35 FMSHRC at 2496-98. 

2

 Along with Commissioner Cohen, we rely on many of these findings to support a 

determination of high negligence. Slip op. at 15-17.

38 FMSHRC Page 2058
The Commission’s admonition in Wilmot Mining Co., 9 FMSHRC 684 (Apr. 1987), bears 

repeating: 

We emphasize that managers, such as Schrock, who was 

superintendent and overall supervisor of the pit operation, must be 

held to a demanding standard of care in safety matters. Managers 

and supervisors in high positions must set an example for all 

supervisory and non-supervisory miners working under their 

direction. Such responsibility not only affirms management’s 

commitment to safety but also, because of the authority of the 

manager, discourages other personnel from exercising less than 

reasonable care. 

Id. at 688; see also Lopke Quarries, Inc., 23 FMSHRC 705, 711 (July 2001) (“Because 

supervisors are held to a high standard of care, another important factor supporting an 

unwarrantable failure determination is the involvement of a supervisor in the violation.”) (citing

REB Enters., Inc., 20 FMSHRC 203, 225 (Mar. 1998) (Commissioner Marks, dissenting)). 

Accordingly, when the mine superintendent in this case did not properly lock out and tag 

out the cathead, and then failed to inform the inspector that the cathead was not locked and 

tagged out, we determine that, pursuant to longstanding Commission precedent regarding the 

involvement of high level managers in violations, the record compels the conclusion that this 

constituted an unwarrantable failure.3

For our purposes, the analysis need go no further. However, we wish to address the 

decision of our colleagues to remand this case rather than reversing the Judge and finding 

unwarrantable failure. They remand and instruct the Judge to examine the evidence as to each of 

the unwarrantable failure factors, while recognizing that the violation was caused by the mine’s 

superintendent. Slip op. at 14–15. 

The factors to which they refer are used by the Commission and its Judges to determine 

whether conduct is aggravated in the context of unwarrantable failure. They include: (1) the 

extent of the violative condition; (2) the length of time that it has existed; (3) whether the 

violation posed a high risk of danger; (4) whether the violation was obvious; (5) the operator’s 

knowledge of the existence of the violation; (6) the operator’s efforts in abating the violative 

condition; and (7) whether the operator has been placed on notice that greater efforts are 

necessary for compliance. Manalapan Mining Co., 35 FMSHRC 289, 293 (Feb. 2013); IO Coal,

31 FMSHRC at 1351–60; Cyprus Emerald Res. Corp., 20 FMSHRC 790, 813 (Aug. 1998), rev’d 

on other grounds, 195 F.3d 42 (D.C. Cir. 1999). 

3

 Our colleagues in the majority recognize the importance that Herndon’s position as the 

mine’s superintendent should play in the unwarrantable failure analysis, emphasizing that “[w]ith 

the exception of the mine manager, every employee at the mine was under his authority.” Slip op. 

at 14 n.18. 

38 FMSHRC Page 2059
Although these factors are usually helpful in analyzing whether a violation is due to an 

unwarrantable failure, they should not operate as a rigid checklist, especially in a case such as 

this, where the mine superintendent deliberately violated the standard. 

Even applying the usual factors, however, we believe it unnecessary to remand to the 

Judge to make further findings. Nobody disputes that the potential hazard posed a high risk of 

danger—indeed, of electric shock. The Commission has often relied upon the high degree of 

danger posed by a violation to support a finding of unwarrantable failure. See, e.g., Midwest 

Material Co., 19 FMSHRC 30, 34–37 (Jan. 1997) (finding that the record compelled the 

conclusion that a foreman’s conduct reflected reckless indifference and a serious lack of 

reasonable care when it resulted in a miner working directly underneath unsecured heavy 

equipment to dismantle it); BethEnergy Mines, Inc., et al., 14 FMSHRC 1232, 1243–44 (Aug. 

1992) (finding unwarrantable failure where the unsaddled beams presented a danger to miners 

entering the area); Warren Steen Constr., Inc., 14 FMSHRC 1125, 1129 (July 1992) (finding 

violation to be aggravated and unwarrantable based upon common knowledge that power lines 

are hazardous and precautions are required when working near them with heavy equipment); 

Quinland Coals, Inc., 10 FMSHRC 705, 708–09 (June 1988) (finding unwarrantable failure 

where highly dangerous roof conditions were present). 

Moreover, the operator’s knowledge of the existence of the violation is uncontroverted, 

as it was caused by the mine superintendent.4

 In addition, the violation (caused by leaving the 

key in the lock) was obvious, as the lock was clearly being used to ensure electrical equipment 

was de-energized. Tr. 46, 110–11. 

Even assuming that the unwarrantable factors must be taken into account in this case, the 

evidence regarding these three factors alone would require a determination that the violation was 

unwarrantable. The Commission reached a similar conclusion in Capitol Cement Corp., 21 

FMSHRC 883 (Aug. 1999), aff’d, 229 F.3d 1141 (4th Cir. 2000) (unpublished). In that case, a 

foreman failed to de-energize equipment before doing mechanical work. Id. at 892. We noted 

that as a supervisor, the foreman had been entrusted with augmented safety responsibility and 

was obligated to act as a role model for a subordinate who was watching him. Id. at 893. 

In upholding the Judge’s finding of unwarrantable failure, the Commission concluded 

that the supervisor’s failure to de-energize the rail in the face of obvious and dangerous hazards 

4

 We reject the implication of the Judge’s decision that the inspector shared some fault 

for this violation. 35 FMSHRC at 2500. The majority cogently refutes this contention in its 

discussion vacating the Judge’s finding of low negligence and finding high negligence. Slip op. 

at 15–17. Moreover, the fact that the violation occurred during an MSHA inspection is irrelevant. 

Enforcement of safety standards are not checked at the door simply because an inspection is in 

progress. 

38 FMSHRC Page 2060
supported the Judge’s determination.5 Id. at 893–95. We emphasized that, consistent with 

Commission precedent on unwarrantable failure, we needed to apply only those factors relevant 

to the facts of the case. Id. at 893, n.13 (citing Lafarge Constr. Materials, 20 FMSHRC 1140, 

1147 (Oct. 1998) (holding that for violations involving high danger of which a foreman should 

have been aware, other factors may be less relevant)). 

In summary, we see no need to remand this case and require the Judge to examine 

evidence regarding each of the unwarrantable failure factors. The Commission has not hesitated 

to reverse a Judge’s finding of no unwarrantable failure when faced with compelling evidence to 

the contrary. See, e.g., Consolidation Coal Co., 22 FMSHRC 328, 334 (Mar. 2000) (reversing 

Judge’s finding that a violation of a standard requiring the operator to maintain a supply of 

supplementary roof support material was not due to unwarrantable failure); Jim Walter Res., Inc., 

19 FMSHRC 480, 487–89 (Mar. 1997) (reversing Judge’s conclusion that coal accumulation 

violations were not the result of unwarrantable failure); Midwest Material, 19 FMSHRC at 34–

37 (reversing Judge’s determination that a violation of a standard requiring that in certain 

circumstances, mechanical equipment be blocked or mechanically secured to prevent it from 

rolling or falling, was not the result of the operator’s unwarrantable failure). Similarly, remand is 

not necessary here, where the superintendent’s actions demonstrated a reckless disregard for 

safety constituting an unwarrantable failure. See American Mine Servs., Inc., 15 FMSHRC 1830, 

1834 (Sept. 1993) (remand not necessary when the record supports no other conclusion). 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner 

5

 In Midwest Material, we held that reliance on the brief duration of the violation was 

misplaced in view of the high degree of danger posed by the hazardous condition and its obvious 

nature. 19 FMSHRC at 36. We noted that: 

[g]iven the extreme hazard created by [the foreman’s] negligent

conduct, that misconduct is readily distinguishable from other

types of violations – such as those involving the accumulation of

coal dust – where the degree of danger and the operator’s

responsibility for learning of and addressing the hazard may

increase gradually over time.

The same holds true in this case. 

38 FMSHRC Page 2061
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710 

August 30, 2016 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

Docket No. LAKE 2009-35 

v. 

THE AMERICAN COAL COMPANY 

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

DECISION

This civil penalty proceeding arises under the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 801 et seq. (2012) (“Mine Act” or “Act”). Under review are rulings the 

Administrative Law Judge made in affirming two orders alleging flagrant violations of 30 C.F.R. 

§ 75.400.1 35 FMSHRC 2208 (July 2013) (ALJ).

The Commission granted cross-petitions for discretionary review from American Coal 

Company (“AmCoal”) and the Secretary of Labor. AmCoal, on multiple grounds, challenges the 

Judge’s determinations that the violations constituted “flagrant” violations, as that term is used in 

the Mine Act’s penalty provisions. The Secretary petitioned for review of the Judge’s 

determination that, in connection with the second violation, there was a lesser degree of 

negligence on the part of AmCoal, which provided a basis for the Judge’s reduction in the 

amount of the penalty he assessed for the violation relative to that proposed by the Secretary.

For the reasons that follow, we affirm the Judge’s “flagrant” determination with respect 

to the first violation. We vacate and remand certain of the Judge’s determinations with respect to 

the second violation for further proceedings consistent with this decision.2

1

 Section 75.400 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.” 

2

 A majority of the Commissioners join in each section of the unsigned opinion, and 

therefore it constitutes the Commission’s decision in this case. Those sections in which not all 

Commissioners join in either result or rationale, and thus one or more Commissioners write 

separately, include footnotes identifying a Commissioner’s departure.

38 FMSHRC Page 2062
I. 

General Factual and Procedural Background 

The two violations occurred five days apart in September 2007 at AmCoal’s Galatia 

Mine, a large underground coal mine in Saline County, Illinois. There, a complex system of

conveyor belts transports coal for many miles from mine face to portal. The mine was subject to 

five-day spot inspections by MSHA due to the amount of methane it liberated daily.3

The orders in this case were issued due to accumulations of loose coal and float coal dust 

at two separate belt transfer points. Specifically, on September 18, Steven Miller, the lead 

inspector at the mine from the Department of Labor’s Mine Safety and Health Administration 

(“MSHA”), issued Order No. 7490584 for accumulations of those materials occurring 

approximately four miles outby the working section, near the location where the Flannigan #1 

belt transferred coal to the Northwest #3 belt. Am. Ex. 5, at 3-4 (maps). The order alleged that 

the violation was both significant and substantial (“S&S”) and attributable to AmCoal’s 

unwarrantable failure to comply with section 75.400.4

On September 23, Inspector Miller issued Order No. 7490599 for accumulations of loose 

coal and float coal dust near the transfer point between a “pony” belt — a shorter, temporary belt 

at the working section in the northwest area of the mine — and the larger Flannigan Tailgate 

belt. Am Ex. 4, at 5 (map). This order also alleged that the violation was both S&S and 

attributable to AmCoal’s unwarrantable failure. 

MSHA subsequently proposed penalties for the two alleged violations. Significantly, both 

violations were assessed as “flagrant” under section 110(b)(2) of the Mine Act, 30 U.S.C. 

§ 820(b)(2), which at that time permitted penalties of up to $220,000 per violation to be imposed

for flagrant violations.5 For the first order, MSHA proposed a penalty of $179,300, while for the

second it proposed $164,700.

3 Section 103(i) of the Act provides in pertinent part that a mine liberating in excess of 

one million cubic feet of methane or other explosive gases during a 24-hour period is subject to a 

minimum of one spot inspection every five working days. 30 U.S.C. § 813(i). 

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

§ 814(d)(1), which distinguishes as more serious any violation that “could significantly and

substantially contribute to the cause and effect of a . . . mine safety or health hazard.” The

unwarrantable failure terminology is taken from the same section, and 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.”

5 Section 8(a) of the Mine Improvement and New Emergency Response (“MINER”) Act

amended section 110 of the Mine Act to create a “flagrant” violation designation and to provide 

for the assessment of an enhanced penalty. Pub. L. No. 109-236, 120 Stat. 498, 500 (2006). 

38 FMSHRC Page 2063
A. Introduction - Flagrant Violations

The MINER Act’s “flagrant” provision provides:

Violations under this section that are deemed to be flagrant may be 

assessed a civil penalty of not more than $220,000. For purposes of the 

preceding sentence, the term “flagrant” with respect to a violation 

means a reckless or repeated failure to make reasonable efforts to 

eliminate a known violation of a mandatory health or safety standard 

that substantially and proximately caused, or reasonably could have 

been expected to cause, death or serious bodily injury. 

30 U.S.C. § 820(b)(2).6

In this case, the Secretary of Labor alleges that the operator’s “failure” was of the 

“repeated” variety, not the “reckless” variety. As described in Wolf Run Mining Co., 35 

FMSHRC 536 (Mar. 2013), a “repeated” failure to make reasonable efforts to eliminate certain 

violations may be proven in two different ways.

When we first considered proof of flagrant violations, on interlocutory review in Wolf 

Run, we held that the graduated enforcement scheme of the Mine Act and other reasons allowed 

an operator’s violation history to be taken into account in determining whether its “failure to 

take reasonable steps to eliminate a” serious “known violation” was a “repeated” one. Id. at 

541-43.7 This is best described as a recurrent-type violation, and was referred to by the Judge in 

his decision as the “broad” interpretation of the flagrant provision for repeated violations.8

6 Congress divided section 110(b) into two subsections, with the new language set forth 

above included within section 110(b)(2). Pub. L. No. 109-280, 120 Stat 1108 (2006). MSHA 

subsequently added identical language to its penalty regulations. See 30 C.F.R. § 100.5(e). The 

language of section 110(b) that existed prior to the MINER Act was placed in section 110(b)(1) 

of the Mine Act. Section 110(b)(1) now provides that “[a]ny operator who fails to correct a 

violation for which a citation has been issued under section 814(a) of this title within the period 

permitted for its correction may be assessed a civil penalty of not more than $5,000 for each day 

during which such failure or violation continues.” 30 U.S.C. § 820(b)(1). These are essentially 

the penalties for failure to abate orders issued under section 104(b), 30 U.S.C. § 814. 

7 Commissioner Althen, who was not on the Commission at the time Wolf Run was 

issued, disagrees with this holding, for the reasons discussed in his separate opinion. Slip op. at 

50-55. His four colleagues have considered his arguments, and affirm the holding in Wolf Run.

8 Because of the interlocutory nature of the proceedings in Wolf Run, we found that it 

was inappropriate to address which prior violations were relevant in that instance. As a result, 

we offered no view on the reasonableness of the specific interpretation proffered by the 

Secretary’s appellate counsel in that case. Id. at 543 & n.15. On remand, the parties settled the 

case. The flagrant designation was removed and a penalty of $70,000 was assessed, which was a 

little less than half of the $142,900 penalty that the Secretary proposed. Order, Docket No. 

WEVA 2008-1265 (Apr. 14, 2014) (ALJ). 

38 FMSHRC Page 2064
We also made passing reference to a second approach to establishing a repeated failure in 

Wolf Run (35 FMSHRC at 543 n.14), which was referred to as the “narrow” interpretation of the 

flagrant provision by the Judge, who applied it to both orders in this case. The Judge held that to 

establish a “repeated failure to make reasonable efforts to eliminate” a serious, known violation 

under this approach, the Secretary would be required to show that the cited and assessed 

violation, discreetly and without reference to the operator’s past violation history, met the 

requirements for a flagrant violation. In other words, there was a single, continuing violation 

serious in nature that the operator could or should have become aware of at some point, i.e., 

known, such that it had multiple opportunities to address the condition, but did not avail itself of 

those opportunities (repeated failure to take reasonable steps to eliminate).9

B. The Proceeding Below

This case was tried below in August 2011under the first approach, with the Secretary

focusing on AmCoal’s past history of section 75.400 violations. In the two years leading up to 

September 2007, MSHA had issued the Galatia Mine a large number of citations and orders for 

accumulations violations. At the hearing, the Secretary introduced evidence in particular of 

citations and orders issued in the 12 months preceding September 2007 for accumulations of 

coal, lump coal, coal dust, float coal dust, and coal fines on or around conveyor belts. 

In his decision,10 the Judge rejected the interpretation of the flagrant provision proffered 

by the Secretary which relied upon AmCoal’s history of past violations (the “broad” approach). 

After an extensive analysis, he concluded that he could defer to the Secretary’s interpretation 

only to the extent that it had the power to persuade, and that here he was “not persuaded by the 

Secretary’s shifting and inconsistent reasoning, including the addition of requirements not 

present in the statutory language.” Id. at 2242-49, 2253-58. 

The Judge nevertheless held that both accumulations violations were flagrant under the 

second approach — the “narrow” interpretation — as the evidence established that the violations 

fell within the express terms of the statutory language. Id. at 2258-67. He assessed penalties of 

$101,475 and $77,737, respectively, for the orders. Thus, the penalty amounts exceeded the 

maximum penalties for non-flagrant violations, but were less than the Secretary’s requested 

amounts. Id. at 2266-69. 

9

In Wolf Run, the Commission intimated that such conduct may be considered as 

both “reckless” and “repeated” under the terms of the statute. 35 FMSHRC at 543 n.14. 

10 By order dated February 28, 2012, the Judge stayed this proceeding while the 

Commission considered the issue of the interpretation of the flagrant penalty provision. Upon 

issuance of the Commission’s decision in Wolf Run, the Judge lifted the stay and took further 

briefing regarding the Commission’s decision. See Order dated April 1, 2013. 

38 FMSHRC Page 2065
II. 

Order No. 7490584 

AmCoal is appealing the Judge’s determination that the violation in Order No. 7490584 

was established as “flagrant.” It argues that the Judge’s “narrow” interpretation of the term

“repeated” is incorrect, that substantial evidence does not support the Judge’s findings under a 

number of the elements of the definition,11 and that AmCoal was deprived of due process 

because it had no notice of the interpretation. 

In response, the Secretary urges that the Judge’s flagrant determination under the narrow 

interpretation of the statute be affirmed, or that if it is not, the Commission reverse the Judge on 

the question of the reasonableness of the broader interpretation and find that the violation was 

established as flagrant under that alternative interpretation of the statutory definition.

Order No. 7490584, also referred to herein as “the first violation,” states: 

Float coal dust, a distinct black in color, and loose coal were

allowed to accumulate under and around the energized tail roller of 

the Northwest Number 3 conveyor belt. The accumulations 

measured approximately 6 inches to 29 inches in depth. 

Accumulations of coal that had been removed from under this tail 

roller in the past had been stock pile[d] behind the tail roller guard 

and measured approximately 6 feet in width, 2 feet in depth, and 8 

feet in length. Loose coal and coal float dust also extended outby 

the tail roller approximately 150 feet as well as 40 feet inby the tail 

roller. This area was black and the turning tail roller was 

suspending float coal dust into the atmosphere. This condition has 

been on the books for the last four shifts. 

Gov’t Ex. 2. 35 FMSHRC at 2211-12. 

According to the terms of section 110(b)(2), to establish a “flagrant” violation, the 

Secretary must demonstrate on the operator’s part “a reckless or repeated failure to make 

reasonable efforts to eliminate a known violation of a mandatory health or safety standard that 

substantially and proximately caused, or reasonably could have been expected to cause, death or 

serious bodily injury.” Thus, for a flagrant violation, it must be established that: (1) there was a 

condition that constituted a violation of a mandatory health or safety standard, (2) the violation 

was “known” by the operator; (3) the violation either (a) substantially caused death or serious 

11 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)). 

38 FMSHRC Page 2066
bodily injury, or (b) reasonably could have been expected to cause death or serious bodily injury; 

(4) there was a failure on the part of the operator to make reasonable efforts to eliminate the

violation; and (5) that failure was either “reckless” or “repeated.” In this instance AmCoal

challenges the Judge’s determinations with respect to a number of the elements of the flagrant

standard.

A. A Known Violation of Section 75.400

The Judge found that AmCoal conceded both violations. He concluded that a violation is

considered to be “known” if the operator has actual or constructive knowledge of the violative 

condition. 35 FMSHRC at 2259-60. 

With regard to the first violation, the Judge found actual knowledge of the accumulations, 

in that there were references made in the examination books for the three previous shifts to the 

belt area at issue being “dirty” and “black.” Id. at 2212-14, 2238 (unwarrantable failure analysis), 

2264-65. 

AmCoal does not challenge the Judge’s application of “known” in this instance, nor does 

it challenge his reliance on the preshift reports with respect to the first violation. Those reports 

document the accumulations over the course of four shifts. Am. Ex. 22, 23. Consequently, 

substantial evidence supports the Judge’s conclusion that there was a known violation of section 

75.400.12

B. Reasonable Expectation of Death or Serious Bodily Injury

A violation can be found to be flagrant if it is established that there was a reasonable

expectation of death or serious bodily injury from the violation and the operator’s failure to 

eliminate it. Here, the Judge determined that the grinding of the tail roller in the loose coal was a 

potential ignition source, 35 FMSHRC at 2227, and that the known accumulation violation 

contributed to the hazard of a mine fire, which could have been expected to cause severe and 

serious injuries due to smoke inhalation. Id. at 2265. Substantial evidence supports his 

determination. 

In finding that there was a reasonable expectation of serious bodily injury from the 

violation, the Judge relied upon his determination that the violation was S&S. On review, 

AmCoal does not challenge the Judge’s finding with respect to the violation being S&S. 

As AmCoal recognizes, the fourth and final finding necessary for concluding that a 

violation is S&S under the Commission’s S&S test is similar, though not exactly identical to, the 

12

 While, as he discusses in his separate opinion, Commissioner Althen would apply a 

more stringent standard to the “knowledge” element of the flagrant provision than the Judge did 

in this case, he notes that applying that standard results in the same conclusion with respect to 

this violation. Slip op. at 40. 

38 FMSHRC Page 2067
language describing the degree of injury necessary for a flagrant violation to be established.13

While there is no legislative history addressing the flagrant violation provision (see Wolf Run, 35 

FMSHRC at 541 n.8), it nevertheless appears that Congress, when it enacted the MINER Act and 

the flagrant provision, may have been looking to established Mine Act principles, such as the 

Commission’s interpretation and application of S&S in Mathies and subsequent cases.14

On appeal, AmCoal argues that, with regard to whether the violation here qualifies as 

“flagrant,” the Judge erred, on both legal and substantial evidence grounds, in finding that the 

violation had the potential for “death or serious injury.” It first contends that the statutory 

flagrant language establishes a more stringent standard than does the fourth Mathies element, in 

that the statute requires that a reasonable expectation of death or serious bodily injury be 

established, and not just the reasonable likelihood of an injury “of a reasonably serious nature” 

that satisfies Mathies. Relying on the terms MSHA uses in its penalty proposal regulations in 

expressing degrees of gravity, AmCoal would have flagrant violations limited to those that are 

reasonably likely to result in “fatal” or “permanently disabling” injuries, and not include the next 

13 A violation is S&S if, based on the particular facts surrounding the violation, there 

exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a

reasonably serious nature. See Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 

1981). In Mathies Coal Co., 6 FMSHRC 1 (Jan. 1984), the Commission further explained: 

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

is significant and substantial under National Gypsum, the Secretary 

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

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

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

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

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

a reasonably serious nature. 

Id. at 3-4 (footnote omitted) (emphasis added); accord Buck Creek Coal, Inc. v. MSHA, 52 F.3d 

133, 135 (7th Cir. 1995); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103 (5th Cir. 1988) 

(approving Mathies criteria). 

14 As he notes in his separate opinion, Commissioner Althen finds that it is more likely 

that the phrase “reasonable expectation of serious bodily injury from the violation” was drawn 

from Commission cases interpreting the Mine Act’s imminent danger provision, 30 U.S.C. § 

817, and thus does not join his colleagues in interpreting and applying that language with 

reference to the Commission’s S&S precedent. See slip op. at 42; 30 U.S.C. § 802(j) (defining 

“imminent danger” as “the existence of any condition or practice in a . . . mine which could 

reasonably be expected to cause death or serious physical harm before such condition or practice 

can be abated”). 

38 FMSHRC Page 2068
lower level of injuries under those regulations, those resulting in “lost work days or restricted 

duty.” See 30 C.F.R. § 100.3(e).15

However, those regulations are only applicable at the start of the penalty process, and 

then are only employed by MSHA when it proposes a penalty pursuant to section 105(a) of the 

Act, 30 U.S.C. § 815(a). Section 110(i) of the Mine Act ultimately authorizes the assessment of 

penalties for violations of the Act, and it assigns that responsibility to the Commission. See 30 

U.S.C. § 820(i) (“The Commission shall have authority to assess all civil penalties provided in 

this Act.”). Included as one of the criteria the Commission is required to consider in assessing a 

penalty is “the gravity of the violation.” Id.

We thus reject AmCoal’s reliance on the Part 100 penalty regulations — with their 

division of the severity of injuries into the three categories of “lost work days or restricted duty,” 

“permanently disabling,” and “fatal,” 30 C.F.R. § 100.3(e) — to circumscribe the definition of 

“serious bodily injury.” See Mach Mining, LLC v. Sec’y of Labor, 809 F.3d 1259, 1263-64 (D.C. 

Cir. 2016); Brody Mining LLC, 37 FMSHRC 1687, 1701 (Aug. 2015)). Consequently, we 

decline to look to the Part 100 regulations in interpreting elements of the flagrant penalty 

provision. 

AmCoal also argues that the higher penalties for flagrant violations indicate that, under 

the Mine Act’s graduated enforcement scheme, something more is required than under the 

scheme as it existed prior to the MINER Act amendments, and that therefore something more 

than an S&S finding is necessary before a violation can be found to be flagrant. It submits that 

the omission in the flagrant provision of the term “reasonably” from the Mathies fourth element 

of “injuries of a reasonably serious nature” further supports this argument. 

We agree with AmCoal in part with respect to its first argument. Clearly, the maximum 

penalty that can be imposed under the MINER Act for the new classification of a “flagrant” 

violation far exceeds the penalty that can be imposed for a non-flagrant violation under the other 

provisions of the Mine Act.16 Accordingly, it is reasonable to expect that flagrant violations be of 

15 AmCoal points out that MSHA issued two Procedural Instructional Letters in the first 

two years after the enactment of the flagrant provision. See Procedures for Evaluating Flagrant 

Violations (PIL Nos. I06-III-04 and I08-III-02); Am. Ex. 27. In both, MSHA indicated that 

“serious bodily injury” meant an injury evaluated to be at least permanently disabling. However, 

the last of the effective PILs expired in 2010, and the Secretary has since disavowed them as his 

definitive interpretation of the flagrant provision. 

16

 Section 110(a)(1) of the Mine Act provides for a penalty of up to $50,000 for each 

violation of the Act. 30 U.S.C. § 820(a)(1). In 2008, the maximum was adjusted to $70,000 

through rulemaking to account for inflation, pursuant to the Federal Civil Penalties Inflation 

Adjustment Act of 1990 (Pub. L. No. 101-410, 104 Stat. 890 (28 U.S.C. § 2461 note)), as 

amended by the Debt Collection Improvement Act of 1996 (Pub. L. No. 104-134, Title III, Apr. 

26, 1996, 110 Stat. 1321) and the Federal Reports Elimination Act of 1998 (Pub. L. No. 105-362, 

Title XIII, Nov. 10, 1998, 112 Stat. 3280). See 30 C.F.R. § 100.3(a); 73 Fed. Reg. 7206, 7207-08 

(Feb. 7, 2008). 

38 FMSHRC Page 2069
a type that was not addressed in the original Mine Act. Otherwise, Congress could have simply 

increased the maximum amount at which a penalty can be assessed and avoided creating a new 

statutory classification of violation. 

However, it does not necessarily follow that a flagrant violation must have a potential for 

a greater degree of gravity than that of an S&S non-flagrant violation. Rather, the distinguishing 

characteristic of a flagrant violation is most evident in those terms of the provision that 

previously were not part of the Mine Act. Foremost, in light of the Act’s framework of escalating 

sanctions, is the language targeting a “repeated or reckless failure to make reasonable efforts to 

eliminate a known violation.” 

Under the Mine Act, section 104(d)(1) already provided for the inclusion of a special 

finding in citations and orders regarding an operator’s “unwarrantable failure” to comply with 

the mandatory health or safety standard violated. The Commission has determined that 

“unwarrantable failure” is aggravated conduct constituting more than ordinary negligence, such 

that it encompasses “reckless disregard,” “intentional misconduct,” “indifference,” or a “serious 

lack of reasonable care.” Emery Mining Corp., 9 FMSHRC 1997, 2001, 2003-04 (Dec. 1987); 

Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991); see also Buck Creek Coal, 

Inc. v. MSHA, 52 F.3d at 136 (approving Commission’s unwarrantable failure test). Under wellestablished Commission case law, facts regarding the extent of an operator’s knowledge of the 

conditions that constitute a violation, and the operator’s behavior in light of that knowledge — 

particularly what it did to address the conditions — are key components in determining whether 

a violation is attributable to an operator’s unwarrantable failure. See, e.g., Consolidation Coal 

Co., 35 FMSHRC 2326, 2331-32 (Aug. 2013); Manalapan Mining Co., 35 FMSHRC 289, 295-

97 (Feb. 2013); IO Coal Co., 31 FMSHRC 1346, 1353-55 (Dec. 2009). 

Nevertheless, with the addition of the flagrant provision, Congress in the MINER Act 

chose, in the statute itself, to expressly and more forcefully focus upon violations known by 

operators and behavior indicative of a failure to address such violations. These factors, and not 

the degree of danger posed by a violation, are what distinguish the flagrant provision from the 

previous enforcement mechanisms available to MSHA. 

As for the potential injuries from a mine fire, smoke inhalation clearly is a “serious 

bodily injury” under the terms of the flagrant provision. In Wal-Mart Stores, Inc. v. Secretary of 

Labor, 406 F.3d 731 (D.C. Cir. 2004), a case arising out of an alleged safety violation in a retail 

store stockroom, the court quoted approvingly from an Occupational Safety and Health Review 

Commission decision that “[c]learly, burns, smoke inhalation, and other potential injuries caused 

by delays in exiting the workplace during an emergency fall within the meaning of ‘serious 

physical harm.’” Id. at 735-36 (quoting Tree of Life, Inc., 19 OSH Case (BNA) 1535 (2001); see 

also Knox Creek Coal Corp., 36 FMSHRC 1128, 1141 (May 2014) (potential for smoke 

inhalation from mine fire constitutes serious injury and thus compels conclusion that violation 

was S&S), aff’d, 811 F.3d 148 (4th Cir. 2016). Due to the long distances miners may have to 

travel to escape the underground mine environment in the event of a fire, their potential exposure 

to smoke is substantial. Moreover, in this case there were extensive accumulations of coal and 

coal dust to fuel a fire, so a fire at the location in question would present a severe hazard. 

38 FMSHRC Page 2070
AmCoal nevertheless challenges on substantial evidence grounds the Judge’s finding of a 

reasonable expectation that ten or more miners would have suffered from smoke inhalation while 

exiting the mine to escape a fire fueled by the belt accumulations. AmCoal contends that there is 

insufficient evidence of the amount of smoke that would leak into the primary escapeway due to 

the two damaged stoppings that would have permitted smoke from the belt area to enter that 

escapeway. AmCoal further contends that the secondary escapeway would not have been 

contaminated by smoke from a belt-area fire, and thus miners could have used it instead of the 

primary escapeway. 

The Judge found that there was sufficient evidence that some smoke would leak into the 

primary escapeway due to damaged stoppings between the belt area and the primary escapeway. 

In making his findings, the Judge expressly credited Inspector Miller’s testimony over that of 

AmCoal mine superintendent Steve Willis. 35 FMSHRC at 2230-31. The Commission has 

recognized that a Judge’s credibility determinations are entitled to great weight and may not be 

overturned lightly. Farmer v. Island Creek Coal Co., 14 FMSHRC 1537, 1541 (Sept. 1992); 

Penn Allegh Coal Co., 3 FMSHRC 2767, 2770 (Dec. 1981). 

We see no reason to disturb the Judge’s credibility determinations here. The Judge relied 

upon Miller’s 31 years of experience in mining and mine safety. 35 FMSHRC at 2211 n.5, 2230. 

Miller had described the potential for “contaminat[ion of] the other air courses pretty quickly,” 

because of the damaged stoppings, before miners could get outby the source of the fire. He 

rejected the idea that the direction of the air flow would mitigate the hazard posed by the smoke. 

Tr. I 93-94.17

In contrast, Superintendent Willis downplayed the likelihood of smoke contaminating the 

primary escapeway, due to the air flow and air pressure in the primary escapeway being much 

greater than the air flow and pressure in the belt entry in question. He also described how, if 

miners were to encounter such smoke, they could use a secondary escapeway and utilize a 

regulator to divert any smoke in that escapeway. Tr. I 415-19, 421-23, 426; Am. Ex. 5, at 4 

(map). 

We disagree with AmCoal that to satisfy the flagrant provision the Judge was required to 

be more specific regarding the amount of smoke that would have reached the primary 

escapeway. The amount of smoke the miners would have been required to travel through in the 

event of a fire started in the belt accumulations is dependent upon a number of factors. Those 

factors include not only the intensity of the fire, but also the amount of time miners would have 

spent traveling through the compromised portion of the escapeway, a variable which itself is 

dependent upon other variable conditions. See Buck Creek, 52 F.3d at 135 (characterizing as 

“common sense” the “conclusion that a fire burning in an underground coal mine would present 

a serious risk of smoke and gas inhalation to miners who are present.”). In summary, the record 

evidence supports the Judge’s finding that an accumulations fire “reasonably could have been 

17 References to “Tr. I” are to the transcript for the first day of the hearing below, held on

August 23, 2011, while references to “Tr. II” are to the transcript for the second day of the

hearing, held the following day. 

38 FMSHRC Page 2071
expected to cause . . . serious bodily injury” in the form of smoke inhalation by escaping 

miners.18

C. Repeated Failure to Make Reasonable Efforts to Eliminate the Known Violation

With respect to this violation, the Judge correctly concluded that AmCoal had made no

efforts to eliminate the accumulations. The Judge found that the only effort that had been made 

was to remove some loose coal that had accumulated earlier around the tail roller and stockpile it 

behind the tail roller guard; this did nothing to eliminate the accumulations violation. He noted 

that not only were AmCoal’s actions contrary to the mine’s section 75.400-2 cleanup plan, but 

also that the stockpile of loose coal simply provided additional fuel in the event of an ignition 

caused by the tail roller grinding in the accumulations. 35 FMSHRC at 2240, 2264; Am. Ex. 15, 

at 1 (“[l]oose accumulations of coal along the belt lines will be shoveled onto the belt.”). These 

conclusions by the Judge have essentially gone unchallenged by AmCoal, which is instead 

challenging whether its failure to address the accumulations can be considered to have been a 

“repeated” one. 

Relying on a number of dictionary definitions, the Judge held that the term “repeated” 

means “more than one occasion.” 35 FMSHRC at 2258. Applying that definition to the facts of 

the violation, the Judge held that the evidence established that the failure to make reasonable 

efforts to eliminate the accumulations was repeated in nature. For the first violation, the Judge 

found that AmCoal failed to take steps to address the violation before and during each of the 

three shifts the accumulations existed. Id. at 2264. 

AmCoal challenges the Judge’s interpretation and application of the term “repeated.” It

takes the position that defining “repeated” to simply mean “more than once” is overbroad, is 

contrary to the term’s plain meaning, ignores the context of the flagrant provision and its 

legislative history, and is inconsistent with the graduated enforcement scheme of the Mine Act. 

AmCoal would instead have the Commission hold that the term “repeated” means “several, 

many, or again and again,” and can only be applied after taking the following into account: the 

extent of the cited conditions, or changes in the extent; the level of the operator’s knowledge and 

any changes to that knowledge between the repeated instances; the level of danger posed by the 

conditions; and the abatement efforts of the operator. 

In considering the meaning of the Mine Act, we must “give effect to the unambiguously 

expressed intent of Congress.” Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 

837, 843 (1984). If however, the statute is ambiguous or silent on a point in question, a second 

inquiry is required to determine whether an agency’s interpretation of a statute is a reasonable 

one. See Chevron, 467 U.S. 843-44; Thunder Basin Coal Co., 18 FMSHRC 582, 584 n.2 (Apr. 

18

 In light of the dangers posed by a potential underground mine fire in this instance, we 

need not decide whether the slight difference between the pertinent language of the flagrant 

provision and the fourth element of Mathies mandates that flagrant violations cover only “a 

narrower, more severe subset of hazards” than violations designated S&S. Am. Coal Br. at 35. 

We need not decide this issue here because even if the standard for flagrant violations is more 

rigorous, it is met in this case. 

38 FMSHRC Page 2072
1996). Traditional tools of construction, including examination of a statute’s text and legislative 

history, may be employed to determine whether “Congress had an intention on the precise 

question at issue.” Coal Employment Project v. Dole, 889 F. 2d 1127, 1131 (D.C. Cir. 1989) 

(citations omitted). 

We find that the term “repeated” as it is used in the flagrant violation provision of the 

Mine Act does not have a plain meaning with respect to the failure to eliminate a singular, 

continuing violation. The Judge relied on several dictionary definitions, but they were not 

consistent. See 35 FMSHRC at 2258.19“A dictionary definition of a term cannot provide plain 

meaning when reliance on a different dictionary would provide ‘different or uncertain 

outcomes.’” Am. Coal Co., 35 FMSHRC 380, 383 (Feb. 2013) (finding different dictionaries

contain different definitions of “fire”) (citing Alarm Indus. Communication Comm. v. FCC, 131 

F.3d 1066, 1069 (D.C. Cir. 1997)), aff’d, 796 F.3d 18 (D.C. Cir. 2015); see also Sec’y of Labor

v. National Cement Co. of Cal., 494 F.3d 1066, 1074 (D.C. Cir. 2007) (different dictionary

definitions of the term “private” establish that meaning of term was ambiguous as used in Mine

Act).

Other traditional tools of statutory interpretation are of little aid in ascertaining a plain 

meaning of the statute’s use of the term “repeated.” Unfortunately, there is no legislative history 

on what Congress meant by any of the terms it employed to define what constitutes a flagrant 

violation, just the general intent of the flagrant penalty provision. See Wolf Run, 35 FMSHRC at 

541 n.8. In short, we find the statutory language ambiguous.

With regard to the second step of Chevron, we do not read the Secretary’s submissions in 

this case as having articulated a definite interpretation of “repeated” that he would always apply 

in the context of cases involving a single, continuing violation. Before the Judge, the Secretary 

tried the case on a different approach to the flagrant provision, relying on AmCoal’s history of 

accumulations violations, so he likely saw no need to provide such an interpretation. 

On appeal, the Secretary still does not provide a concrete interpretation of the “narrow” 

approach to “repeated” violations applicable in all cases. Instead, he simply states that he “agrees 

with [AmCoal] that two or three failures might amount to a flagrant violation in certain 

circumstances but not in others, depending on the particular facts.” S. Resp. Br. at 17. We agree 

with the parties that, as far as it goes, this is a reasonable, albeit very general, interpretation.

Interpreting “repeated” in the context of the circumstances of the “failure” at issue is 

consistent with the term “flagrant.” While Congress provided a definition of the term “flagrant,” 

19

 Some of the dictionaries he cited indicate that “repeated” means more than once, so that

twice is sufficient to qualify as “repeated,” while other dictionary definitions use language that 

twice is insufficient to qualify as “repeated,” such as those that state it means “again and again.”

Indeed, one dictionary contains both iterations of the term. See Webster’s Third New Int’l 

Dictionary of the English Language (Unabridged) 1924 (1993) (“1: renewed or recurring again 

and again : CONSTANT, FREQUENT (~ absences) (~mistakes) (~changes of plan) 2 : said, 

done or presented again (an often ~ repeated excuse) (an eloquently ~ repeated speech) (an easily 

~ pattern)”).

38 FMSHRC Page 2073
the word bears an inherent approbation related to intolerable and obvious failure. “Flagrant” 

means “extremely . . . conspicuous; glaringly evident; notorious.” Websters Third Int’l at 862-63. 

Another dictionary definition is “shockingly noticeable or evident; obvious; glaring.” 

Dictionary.com Unabridged (Random House, Inc.), http://www.dictionary.com/browse/flagrant 

(last visited Aug. 29, 2016). We presume that Congress intended this word in its full 

significance, because it has chosen not to employ “flagrant” in an analogous context involving 

willful or repeated violations. See 29 U.S.C. § 666(a) (“Willful or repeated violation” provision 

of Occupational Safety and Health Act). Because the terms “flagrant” and “repeated” are used to 

characterize the operator’s “failure to make reasonable efforts to eliminate” a known, serious 

hazard, our determination centers on the operator’s dereliction where immediate remedial action 

was required.

In this instance, a review of the record with respect to the violation indicates that we need

not decide the minimum number of failures to address a violation before those failures can be 

considered to have been “repeated.”20 The Judge’s findings readily establish that, over several 

shifts, AmCoal knew of and had multiple opportunities to eliminate the cited accumulations but 

did not take corrective action. 

The Judge examined in detail the operator’s examination records not only for indications 

of the extent of the accumulations during each of the shifts leading up to Inspector Miller’s 

discovery of the accumulations, but also for what AmCoal’s reports documented that the 

operator did in response to those indications. When the first preshift/onshift report on September 

17 indicated accumulations around the Northwest No. 3 belt, the next such report indicated that 

the area had been cleaned. 35 FMSHRC at 2213; Am. Ex. 22, at 2-3. Thus, AmCoal clearly had 

the capability to take steps to immediately address an accumulation from the belt in question. 

After that, however, AmCoal’s reports indicate worsening accumulations, with no 

corresponding indication of subsequent corrective action by AmCoal. From the examiner’s 

report entered for the shift starting at 8:00 pm on September 17 until Miller issued his order at 

5:15 pm on September 18, four successive reports indicated accumulations around the belt. 35 

FMSHRC at 2213-14; Am. Ex. 22, at 4& 6; Am. Ex. 23, at 2 & 4. This includes notations that 

20

 The Secretary focuses on the number of shift examinations of the belt in question that 

AmCoal conducted that should have alerted it to the accumulations. However, simply counting 

the number of shift examinations over which a violation existed is not necessarily the most 

accurate indicator of whether an operator’s failure to eliminate it can be characterized as 

“repeated.” Once the existence of an accumulation becomes known to the operator, it has an 

immediate and continuing obligation to act to correct the condition. See Peabody Coal Co., 14 

FMSHRC 1258, 1262-63 (Aug. 1992); Old Ben Coal Co., 1 FMSHRC 1954, 1959 (Dec. 1979). 

The number of shifts over which accumulations were left unaddressed can provide a useful 

measurement of the duration of an accumulations violation, and the number of operator reports 

noting the violative condition may help establish the degree to which the operator was aware of 

the violation. However, counting each shift or shift examination as a single opportunity for the 

operator to clean up the accumulations tends to obscure the extent to which the operator failed to 

act once it became aware of the existence of the condition. Not acting to clean up accumulations 

over the course of a shift should not necessarily be considered a single “failure.” 

38 FMSHRC Page 2074
the tail scraper and rollers were “black,” which the Judge reasonably interpreted to mean that 

they were in contact with the accumulations. 35 FMSHRC at 2234-35. 

Evidence that AmCoal’s failure was a repeated one in this instance was also provided by 

Miller’s testimony, credited by the Judge, that the amount and extent of accumulations indicated 

that they had begun some time before, that the reddish-brown color of some of the coal dust 

indicated that it had been in contact with the belt’s rollers over a number of shifts, and that the 

black dust in the area was an indication that it had accumulated since the time the area had last 

been rock dusted. Miller also viewed the presence of float coal dust in the air to be the result of 

the turning tail roller suspending it. Id. at 2212, 2215; Tr. I 71-72, 63-65, 83-84, 206-07. The 

coal stockpiled behind the tail also demonstrates that AmCoal was aware of the accumulations, 

and acted at least at one point to move them away from the rollers (though that did nothing to 

eliminate them as “accumulations”). 35 FMSHRC at 2214; Tr. I 151. 

Lastly, there is no record evidence of anything that was preventing AmCoal from 

cleaning up the accumulations much sooner. Indeed, in a rather damning concession in its 

opening brief, AmCoal states that if it had realized the flagrant provision applied to its conduct in 

this instance, it might have responded differently, such as “dedicat[ing] more personnel to 

quickly clean-up the accumulations noted in the exam records instead of allowing them to be on 

the books for three (3) shifts without fully correcting them.” Am. Br. at 29-30 & n.11. Such an 

attitude towards accumulations by the operator clearly runs counter to the duty the Mine Act 

imposes on it to immediately act to clean up accumulations once their existence becomes known, 

and may, in part at least, explain why Congress found it necessary to include the flagrant 

violation provision in the MINER Act. 

D. Notice

AmCoal contends that, with regard to the narrow interpretation of the flagrant provision,

it did not have adequate notice of the meaning of the term “repeated failure.” It maintains “that 

its management could not and did not ‘know what [was] required of them so they [could have] 

act[ed] accordingly’ to avoid” the flagrant orders. Am. Br. at 23 (quoting FCC v. Fox Television 

Stations, Inc., 132 S. Ct. 2307, 2317 (2012)). The operator requests that the Commission 

therefore hold that the flagrant provisions are unconstitutionally vague as applied to AmCoal. 

According to the Supreme Court in Fox, “[a] fundamental principle in our legal system is that 

laws which regulate persons or entities must give fair notice of conduct that is forbidden or 

required. . . . It requires the invalidation of laws that are impermissibly vague.” 132 S. Ct. at 

2317 (citations omitted). 

We reject the argument that the term “repeated failure” did not give AmCoal sufficient 

notice of what the flagrant provision required of it. The operator’s notice argument relies on 

cases involving a defense in which a party claims a lack of notice of prohibited conduct. The 

conduct at issue here is compliance with the safety standard regarding accumulations. The 

operator makes no claim that it did not understand how to comply with this provision. Any 

ambiguity in the statutory language regarding “flagrant violations” affects the amount of penalty 

assessed. It does not affect the clarity of the standard of conduct to which AmCoal must adhere, 

as expressed in the underlying safety standard. 

38 FMSHRC Page 2075
The term “repeated” depends on the context in which it is to be applied. In this case, 

given the above-described facts, all of which are supported by substantial evidence, it is clear 

that the operator permitted a known, dangerous accumulation to persist over several shifts. Under 

the facts of this violation, it is also abundantly clear that the operator “repeatedly” failed to 

address a known violation of a mandatory safety standard. 

An operator’s history is probative of the conditions in which the alleged flagrant failure 

occurred. For example, an operator’s history of past similar violations may be used to 

demonstrate failure to address the root cause on previous occasions; to show the operator had 

notice of a general problem which included the subject violation; or to establish the operator’s 

general practices and the failure to adopt improved practices, where relevant. 

The record in this case refutes the assertion that AmCoal could not have expected the 

violations here to fall within the scope of the “repeated failure” provision. The Secretary 

submitted at the hearing 27 citations or orders, issued at the mine within the 12 months preceding

the subject orders, for violations of section 75.400 involving accumulations in belt areas of the 

same materials at issue here — coal, float coal dust, coal fines, and other combustibles. Gov’t 

Exs. 6 to 32. In addition, the Secretary submitted a history of previous violations for the mine 

showing 361 final and nonfinal orders for accumulations violations at the mine during the two 

years prior to the issuance of the orders, including five alleging violations attributable to 

AmCoal’s unwarrantable failure issued within the two months prior to the subject violations. 

Gov’t. Ex. 1. 

This history places AmCoal’s failure to address the subject accumulations in context. The 

Judge found that MSHA had “warned [AmCoal] repeatedly through meetings, training sessions, 

and prior citations/orders, about belt accumulation[s].” 35 FMSHRC at 2237; Tr. 86-90. AmCoal 

thus already knew that MSHA viewed its accumulations to be a serious general problem that the 

operator was not adequately addressing. With that as background, any reasonably prudent 

operator would have understood, by reading the “repeated failure” language of the flagrant 

provision, that its conduct with respect to accumulations — which were allowed to persist over 

several shifts, despite the agency’s specific and escalating admonishments concerning 

substantially similar violations — was subject to the flagrant penalties. 

In summary, we affirm the Judge’s determination that the violation in Order No. 7490584 

was established to be a flagrant violation of the Mine Act in and of itself. Consequently, in this 

instance we do not need to address the Secretary’s alternative request that we determine whether, 

contrary to the Judge’s decision, the Secretary also established the violation as flagrant based on 

the evidence of AmCoal’s history of accumulations violations. 

III. 

Order No. 7490599

This order, also referred to herein as “the second violation,” states that: 

Float coal dust, a distinct black in color, and loose coal were

allowed to accumulate under and around the energized tail roller of 

38 FMSHRC Page 2076
the Flannigan Tailgate conveyor belt. The accumulations measured 

approximately 6 inches to 14 inches in depth. Loose coal and coal 

float dust also extended outby the tail roller approximately 450 feet 

as well. The area was black and the turning tail roller was 

suspending float coal dust into the atmosphere. The bottom belt

and bottom rollers were in contact with these accumulations. 

Gov’t Ex. 3. 

A. The Violation of Section 75.400

As with the first violation, there is no dispute in this instance that the cited accumulations

constituted a violation of section 75.400. The Judge’s finding of a violation is well supported by 

the record evidence. See 35 FMSHRC at 2217-19, 2224 & n.8. He credited Miller’s testimony, 

which was supported by his notes, that there was “a lot” of black float coal dust, such that he 

immediately noticed it upon entering the area. Id. at 2218-19; Tr. I 108-09; Tr. II 143; Gov’t Ex. 

4. 

B. Reasonable Expectation of Death or Serious Bodily Injury

As with the first violation, the Judge relied on his S&S analysis to find that it was

reasonable to expect that the second violation, if left unabated, would cause death or serious 

bodily injury. 35 FMSHRC at 2265. He found the second violation to be even more serious than 

the earlier accumulations. He found that a fire was reasonably likely to occur as a result of 

frictional heat generated between the loose coal and the energized tail roller of the belt at issue, 

and that serious and possibly fatal injuries would result in the event of a fire to the six miners on 

the working section inby the belt, as a result of smoke inhalation, carbon monoxide poisoning, 

burns, and entrapment. Id. at 2231. 

AmCoal’s legal challenges to the Judge’s reliance on his S&S analysis were addressed, 

supra, with respect to the first violation, and the grounds for rejecting them are even stronger 

here. With regard to whether the violation was S&S, the Judge credited Inspector Miller’s 

testimony that in this instance there were two separate ignition sources in contact with mostly dry 

accumulations — the bottom belt and bottom rollers, and the energized tail roller that was 

turning in the accumulations. Id. at 2219, 2230-31; Tr. 107, 119. Moreover, the six miners on the 

section were just six crosscuts away from the accumulations, and thus would have had little time 

in which to react to the effects of a fire precipitated by the accumulations at the belt. 35 

FMSHRC at 2231; Tr. 121. 

Lastly, the Judge relied upon Miller’s testimony to conclude that, due to the miners’ 

proximity, a mine fire would expose them not only to smoke inhalation, but also to carbon 

monoxide poisoning, burns, and entrapment. 35 FMSHRC at 2231; Tr. 121. Again, it appears to 

us that in finding the violation to be S&S, the Judge supported his determination with a quantum 

of evidence exceeding that necessary to uphold an accumulations violation as S&S under 

Mathies. See, e.g., Consolidation Coal Co., 35 FMSHRC 2326, 2328-29 (Aug. 2013). 

38 FMSHRC Page 2077
While again not contesting the Judge’s determination that the second violation was S&S, 

with respect to whether the violation was also flagrant AmCoal challenges on substantial 

evidence grounds the Judge’s findings of the danger posed by a fire resulting from the cited 

accumulations. In analyzing the potential effects of a fire at the belt transfer point, the Judge 

referred to an AmCoal exhibit, a map used to illustrate witness testimony, that he interpreted as 

showing no stoppings present to isolate escaping miners from the effects of such a fire. See 35 

FMSHRC at 2231 (citing Am. Ex. 4, at 5). As a result, he considered the smoke hazard to be 

“unmitigated.” Id. 

AmCoal contends that the exhibit was not prepared to be used as evidence for such 

matters as the existence and location of stoppings isolating the escapeway, so the Judge should 

not have used it in the manner he did. Tr. II 38. At the hearing, to the extent he addressed the 

issue, Inspector Miller testified to there being no evidence of the leakage of air coming off the 

belt area into the escapeways in this instance, and no evidence of damage to stoppings. Tr. I 

347-48.

AmCoal contends that the map was not prepared for the purposes of documenting either 

the existence or location of stoppings and the Judge erred in interpreting it for that purpose. The 

Secretary concedes that the Judge misconstrued the evidence and that there were in fact 

stoppings between the primary and secondary escapeways on the Flannigan Tailgate belt. S. Br. 

at 21; Tr. II 37-46; Am. Ex. 4, at 5. 

However, the evidence demonstrates that the pony belt entry, which ran from its 

intersection with the Flannigan Tailgate to the set-up area for the long wall panel lacked 

stoppings. Tr. II 42; Am. Ex. 4 at 5.21 The Secretary notes that AmCoal’s approved ventilation 

plan only required stoppings separating intake and return air course “up to and including the 

fourth connecting crosscut outby the working faces.” Am. Ex. 18, at 7. Because the miners were 

inby the area of required stoppings, the area of entry in which they were working was not 

isolated by stoppings from the pony belt entry. Tr. II 42; Am. Ex. 4, at 5. 

Miners evacuating the working face would have to travel outby over 400 feet before there 

were any stoppings to isolate them from fire and smoke in the pony belt entry, and another 200 

or so feet in which the stoppings were not permanent and not designed to withstand fire, but were 

merely brattice and curtains. Tr. II 42, 101. It was only at that point that the miners would reach 

the belt intersection where the accumulations had ignited, and upon turning the 90-degree corner 

where the belts intersected could access any escapeway isolated by stoppings from the Flannigan 

Tailgate belt. 

Accordingly, we conclude that substantial evidence supports the Judge’s conclusion that 

the smoke hazard was serious enough to reasonably be expected to cause death or serious bodily 

21 Foreman Raney’s testimony regarding the presence of stoppings isolating the 

escapeways was specifically limited to the escapeways in the Flannigan Tailgate. Tr. II 101-02. 

38 FMSHRC Page 2078
injury.

22 Whether the Judge’s misuse of the mine map affected his further finding that, under 

the circumstances, this violation posed an even greater danger than the earlier violation, is not 

material to the disposition of the flagrant determination on appeal.23

C. Repeated Failure to Make Reasonable Efforts to Eliminate a Known Violation

With regard to whether the violation was “known” by AmCoal, the Judge credited

Miller’s estimate that the coal and dust had accumulated over more than two shifts, because in 

only a “train wreck” scenario would such extensive, black accumulations result in less than that 

amount of time. 35 FMSHRC at 2265 (citing Tr. I 108). The Judge held that while AmCoal did 

not have actual knowledge of the accumulations, in that they had not been reported in the 

operator’s examination books in this instance, it had constructive knowledge of the 

accumulations from its Production Delay (“P&D”) reports. Id. at 2239 (citing Am Ex. 21), 2259, 

2265. 

The Judge read those reports as having documented problems with the pony belt stopping 

and starting due to electrical problems over the course of several shifts, and drew upon testimony 

from AmCoal section foreman Rocky Raney that such stops and starts could cause spillage from

the belt and quickly lead to accumulations. Id. at 2219, 2239, 2265; Tr. II 66-68. Accordingly, 

the Judge found that AmCoal had the opportunity during the two shifts preceding the discovery 

of the accumulations by Inspector Miller to address the accumulations, but did not do so. 35 

FMSHRC at 2265.24

AmCoal challenges the Judge’s findings with regard to its knowledge of the 

accumulations, and thus his findings that it failed to make reasonable efforts to eliminate the 

22 For the reasons stated in his partial dissent, Commissioner Young would remand this 

issue to the Judge for him to make the necessary findings of fact in the first instance.

Commissioner Althen joins in this view. Slip op. at 32, 41 n.3. 

23

 Despite finding a greater degree of gravity for the second violation as compared to the 

first, the Judge assessed a penalty that was $23,000 less than the penalty he assessed for the first 

violation, and in so doing reduced the Secretary’s proposed penalty for the second violation 

approximately $9,000 more than he reduced the Secretary’s proposed penalty for the first 

violation. 35 FMSHRC at 2266-67. Consequently, we see no need to include in a remand of the 

case to the Judge the issue of the gravity of the second violation. 

24

 In a related holding, the Judge found that the failure of AmCoal’s examiners to report 

the violations in the two shifts preceding the discovery of the accumulations by Miller 

mitigated AmCoal’s negligence with respect to the second violation. Consequently, the Judge, 

relying on the Secretary’s penalty regulations addressing the negligence factor, reduced the 

level of AmCoal’s negligence from “high” to “moderate.” Id. at 2241. The Commission granted 

the Secretary’s petition for review on the reduction, and we address his arguments below in Part 

III.E.

38 FMSHRC Page 2079
violations. We conclude that the Judge’s analysis of the evidence of AmCoal’s knowledge of the 

accumulations was insufficient in this instance.25

At the mine, each AmCoal shift foreman would fill out P&D forms by hand each shift, 

including for the working section in question. Tr. II 31-32; see Am. Ex. 20, at 37-42 (three Sept. 

23 shifts the Judge focused upon). These reports were then summarized in the daily printout to 

which the Judge cited, which according to Raney were likely produced by “Mine Control.” 35 

FMSHRC at 2219, 2239, 2265; Tr. II 30-31, 60-61; Am. Ex. 21, at 10 (Sept. 23). The Judge’s 

reliance on the daily printout of the P&D reports is problematic, however, because the September 

23 report was not printed until the morning of September 24, the day after AmCoal was cited for 

the accumulations. Tr. II 60; see Am. Ex. 21, at 10 (notation of date of printing). 

Rather than exclusively relying on the daily printout of the P&D reports, the Judge 

should have looked to the handwritten forms prepared by those foremen, as they included 

contemporaneous information. They also included a greater amount of more specific 

information, such as the exact times that the pony belt was experiencing the problems 

summarized on the printed P&D report for that day. For instance, with regard to the first shift on 

September 23, the shift starting at midnight, the notation that “pony belt would not run for more 

than [two to three minutes]”(Am. Ex. 20, at 38), was for the 7:00 a.m. to 9:00 a.m. time period at 

the end of that shift. This is the problem to which Raney, in reviewing the daily summary, linked 

the potential for spillage at the belt transfer point. Tr. II 65-68. 

The pony belt was then not used until the next shift, when there is a notation that it was 

discovered at the arrival of that next shift, at 9:15 am, that the pony belt’s ground monitor card 

was bad, and it was repaired or replaced between 9:15 and 9:45 a.m., and again between 12:50 

and 1:20 p.m. Am. Ex. 20, at 37-38. Raney explained that a bad ground monitor card would shut 

down the electrical current to the pony belt, resulting in the belt’s stopping and starting. Tr. II 

66-67.

The time at which the belt was stopping and starting is important, because the Judge 

inferred from the interruptions in the running of the belt that shift examiners had to have seen the 

resulting accumulations, and imputed that knowledge to AmCoal. See 35 FMSHRC at 2239 (“it 

seems difficult to believe that reasonably attentive on-shift examiners would not have reported 

this condition”).26

However, the evidence is that the belt examinations took place and no reports of 

accumulations were made. Despite alleging that the violation was flagrant, in this instance 

MSHA did not issue a citation or order to AmCoal for having failed to conduct a proper 

examination of the belts during the preceding shifts, unlike what it did with respect to the first 

25

 For the reasons set forth in their partial dissent, Chairman Jordan and Commissioner 

Nakamura would affirm the Judge with regard to these elements of the flagrant provision as to 

the second violation. See slip op. at 33-36. 

26

 The belt area at issue was required to be examined once per shift pursuant to MSHA 

regulations. See 30 C.F.R. § 75.362(b). 

38 FMSHRC Page 2080
violation. While the Secretary now alleges that the AmCoal examiners should have recorded the 

accumulations, and argues that their negligence in failing to do so is attributable to AmCoal, he 

provides no explanation why “Inspector Miller did not cite American Coal for it.” See S. Resp. 

Br. at 15. 

Inferences drawn by a Judge are only permissible to the extent that “they are inherently 

reasonable and there is a logical and rational connection between the evidentiary facts and the 

ultimate fact inferred.” Mid-Continent Res., Inc., 6 FMSHRC 1132, 1138 (May 1984). Here, the 

Judge erred when he gave no consideration to the other conclusions that could have been drawn 

in this instance. 

It may have been that there was the lack of a record of accumulations on a shift report 

due to the lack of accumulations at the time. Another possibility is that Inspector Miller, 

exercising his discretion, decided not to cite AmCoal for failure to conduct a proper belt 

examination. Because the Judge did not address these alternative explanations, we cannot find 

the inference he drew to be a reasonable one. 

On remand, the Judge should review all of the record evidence, and determine at what 

point, prior to Miller’s discovery of the accumulations, AmCoal should have become aware of 

the accumulations.27 This includes not only the evidence with respect to September 23, but 

27

 While he agrees that the case should be remanded so that the Judge can consider this 

evidence, Commissioner Althen states that the question of whether a violation is “known” under 

the flagrant standard is “not [one of] what AmCoal ‘should have known,’” but rather “whether 

AmCoal knew of the violation, or whether it knew of sufficient facts from which it is reasonable 

to infer knowledge.” Slip op. at 49. While not addressing the need for actual knowledge, 

Chairman Jordan and Commissioner Nakamura conclude that actual knowledge on the part of 

AmCoal was established. Slip op. at 35. 

Commissioners Cohen and Young conclude that, in the context of this case, they do not 

need to reach the issue of whether there is a difference between implied actual knowledge and 

constructive knowledge. However, they note that supervisors cannot “‘close their eyes to 

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

ignorance.’” Matney, emp. by Knox Creek Coal Corp., 34 FMSHRC 777, 786 (Apr. 2012) 

(quoting Glenn, emp. by Climax Molybdenum Co., 6 FMSHRC 1583, 1587 (July 1984)). The 

question of the operator’s knowledge and whether it meets the standard required to show a 

flagrant violation is one for the judge to resolve in the first instance. 

Commissioners Cohen and Young further note that Commissioner Althen claims that the 

Commission has repeatedly held that constructive knowledge, i.e., a “should have known” 

standard, is indicative of only ordinary negligence. Slip op. at 43-44 n.5 (citing Emery Mining 

Corp., 9 FMSHRC 1997 (Dec. 1987)). That is a misreading of Commission case law. In Emery, 

the Commission cited the Act’s legislative history and explicitly stated that aggravated conduct 

more than ordinary negligence can be demonstrated through a “knew or should have known 

standard.” See 9 FMSHRC at 2002-04. In Eastern Associated Coal Corp., 13 FMSHRC 178, 187 

(Feb. 1991), the Commission again held that “[a] lack of actual knowledge by [] management . . . 

does not necessarily bar an unwarrantable failure finding.” This principle has been recently 

reaffirmed by the Commission in our decision in Brody Mining, 37 FMSHRC at 1699.

38 FMSHRC Page 2081
September 22 as well, as there also is record evidence of belt interruptions on that day as well. 

Am. Ex. 20, 21. In doing so, the Judge should consider what knowledge the foremen on any of 

the shifts, including Raney’s, would have had regarding the accumulations, given the evidence 

that they and their crews would have had to pass by the location where the accumulations 

were later discovered by Inspector Miller.28 Additionally, the Judge could consider that the 

day shift crew on September 23 made repairs to the pony belt so that it would run without 

interruption, and so, presumably, the crew was working near the accumulations. The Judge 

should also reexamine the evidence supporting his inference that multiple shift examiners had 

to have noticed the accumulations. 

Only after having considered all of the evidence, and found the time at which AmCoal 

should have become aware of the violation, can the Judge determine whether AmCoal then 

“repeatedly” failed to make reasonable efforts to address the accumulations. 

D. The Alternative of Establishing a Flagrant Violation Under the Broad

Interpretation of “Repeated”

In the event on remand that the Judge does not find that Order No. 7490599 was a

flagrant violation under the narrow approach, he will need to address whether a flagrant violation 

was nevertheless established by the Secretary under the broad approach, as mandated by the 

terms of the flagrant provision. Should he reach the issue of the broad interpretation, having 

previously rejected the Secretary’s proffered interpretation, the Judge will have to fashion an 

interpretation of the flagrant violation provision which permits the Secretary to establish a 

violation as flagrant by taking the operator’s history of previous accumulations violations into 

account. See Wolf Run, 35 FMSHRC at 541.29

Commissioners in their individually-signed opinions set forth below further address this 

issue.

28

 Below, the Secretary argued that Raney must have seen the accumulations at the start 

of the shift immediately prior to their being cited by Miller, but otherwise made no attempt to 

establish that AmCoal knew of the violations earlier. See S. Post-Hr’g Br. at 39-41 (citing Tr. I 

114-15). Indeed, the Secretary never explored with Raney during his testimony whether he had

noticed the accumulations. The Judge did not make a finding from other evidence that Raney

must have observed the accumulations. The intersection between the Flannigan Tailgate and

pony belts where the accumulations were discovered was in an area only six crosscuts (and thus

a little more than 600 feet) outby the working section. Tr. I 365; Tr. II 42. Inspector Miller

testified that Joe Myers, the AmCoal safety escort accompanying him on his inspection at that

time, reacted to the accumulations by getting upset with foreman Raney and his crew, because

they, upon arriving for their shift at the section, had to have passed through the area to get to the

working section, and thus should have noticed the accumulations. Tr. I 114-15.

29 All Commissioners agree, except for Commissioner Althen who dissents on the ground 

that the flagrant provision does not permit consideration of the operator’s history of previous 

violations. 

38 FMSHRC Page 2082
E. The Judge’s Reduction in the Level of AmCoal’s Negligence

The Judge modified the order as to the second violation to find it was the result of only

moderate negligence on the part of AmCoal. He did so because he found that the failure of 

AmCoal’s shift examiners to report the accumulations to mine management was a mitigating 

factor with respect to AmCoal’s negligence, and that under MSHA’s regulations, if there is even 

a single mitigating factor, a violation will not be alleged to be due to high negligence. 35 

FMSHRC at 2241 (citing 30 C.F.R. § 100.3(d)). 

In his cross-appeal, the Secretary contends that the negligence of AmCoal’s mine 

examiners in not reporting the accumulations to management is attributable to the operator for 

negligence purposes under Commission case law. According to the Secretary, the Judge’s 

erroneous discounting of the level of AmCoal’s negligence led him to reduce the Secretary’s 

proposed penalty by 53 percent, which was an abuse of discretion on the Judge’s part. He 

requests that the case be remanded for a reassessment of the penalty. AmCoal counters that the 

Judge’s lowering of the negligence found means that his finding of unwarrantable failure with 

respect to the violation must be reversed as a matter of law. 

While the Secretary is correct that the Judge should have imputed the actions of the shift 

examiners to AmCoal for negligence determination purposes, as discussed previously, our 

remand requires that he reconsider his findings on the culpability of AmCoal’s shift examiners 

with regard to the cited accumulations. Thus, we remand the Judge’s negligence determination 

and penalty assessment as well.30

As we discussed earlier with respect to the gravity of the first violation, the Commission 

and its Judges are not in any way bound by the Secretary’s penalty regulations in analyzing 

negligence issues, such as the existence and importance of any mitigating factors. Mach Mining, 

809 F.3d at 1263-64. Thus, on remand, the Judge should conduct an independent analysis of 

AmCoal’s negligence with respect to this violation, evaluating negligence from the starting point 

of a traditional negligence analysis rather than based upon the 30 C.F.R. Part 100 definitions, 

“consider[ing] the totality of the circumstances holistically.” Brody Mining, 37 FMSHRC at 

1702. 

Under such a traditional analysis, an operator is negligent if it fails to meet the requisite 

standard of care – a standard of care that is high under the Mine Act. “Negligence” is not defined 

in the Mine Act. The Commission, has, however, 

recognized that “[e]ach mandatory standard . . . carries with it an 

accompanying duty of care to avoid violations of the standard, and 

an operator’s failure to meet the appropriate duty can lead to a 

finding of negligence if a violation of the standard occurs.” A.H. 

Smith Stone Co., 5 FMSHRC 13, 15 (Jan. 1983). In determining 

30 As they explain in their separate opinion, Chairman Jordan and Commissioner 

Nakamura would reverse the Judge and reinstate a finding of high negligence with respect to the 

second violation. See slip op. at 36-38. 

38 FMSHRC Page 2083
whether an operator met its duty of care, we consider what actions 

would have been taken under the same circumstances by a 

reasonably prudent person familiar with the mining industry, the 

relevant facts, and the protective purpose of the regulation. See 

generally U.S. Steel Corp., 6 FMSHRC 1908, 1910 (Aug. 1984). 

JWR, 36 FMSHRC at 1975(citation and footnote omitted); see, e.g., id. at 1976-77 (requiring 

Secretary to show that operator failed to take specific action required by standard violated); 

Spartan Mining Co., 30 FMSHRC 699, 708 (Aug. 2008) (considering negligence inquiry to be 

circumscribed by scope of duties imposed by regulation violated). Thus, in making a negligence 

determination, the Judge is not limited to an evaluation of allegedly “mitigating” circumstances. 

Instead, the Judge may consider the totality of the circumstances. 

Because Commission Judges are not bound by the definitions in Part 100 when 

considering an operator’s negligence, they are not limited to an evaluation of potential 

mitigating circumstances.31 Therefore, a Commission Judge may find “high negligence” in spite 

of mitigating circumstances or may find “moderate” negligence without identifying mitigating 

circumstances. In this respect, the Commission has recognized that the gravamen of high 

negligence is that it “suggests an aggravated lack of care that is more than ordinary negligence.” 

Topper Coal Co., 20 FMSHRC 344, 350 (Apr. 1998) (citation omitted).32

On remand, the Judge will need to examine the violation and determine the degree of 

negligence on the part of the operator that led to it. The Judge must consider the actions that a 

reasonably prudent operator would or would not have taken, under the circumstances presented 

31

 As stated in his concurring opinion in Hidden Splendor Resources, Inc., 36 FMSHRC 

3099, 3105-08 (Dec. 2014), Commissioner Cohen urges the Commission to hold not merely that 

the definitions of the degrees of negligence contained in 30 C.F.R. § 100.3(d) and Table X 

contained therein are not binding on the Commission, but that these definitions are too 

restrictive, and should not be used by Commission Judges. In these definitions, the distinctions 

between “low” negligence, “moderate” negligence and “high” negligence are made by counting 

the number of mitigating circumstances. Thus, in this case the Judge ruled out the possibility of 

high negligence in Order No. 7490599 because Table X provides that a finding of high 

negligence can be made only if there are no mitigating circumstances. 35 FMSHRC at 2241.

Counting the number of mitigating circumstances is an appropriate approach for MSHA 

inspectors at mine sites who must make determinations regarding negligence efficiently and 

quickly. However, it is too mechanical and restrictive an approach for Commission Judges who 

have the opportunity to “evaluate all of the evidence presented to them after a full hearing and 

take a more nuanced approach to the degree of negligence.” Hidden Splendor, 36 FMSHRC at 

3108 (Cohen, Comm’r, concurring). 

32

 When a Judge finds an operator to be negligent, the Judge should take into account the 

degree of operator negligence, which would be on a scale between low negligence and reckless 

disregard, in assessing an appropriate penalty. Of course, because Judges are required to explain 

substantial divergences from the penalty proposed by the Secretary, if the Judge makes a 

substantial penalty adjustment based upon a negligence finding, the Judge must explain his/her 

determination. Brody, 37 FMSHRC at 1703 n.17. 

38 FMSHRC Page 2084
that are relevant to an operator’s obligation to comply with section 75.400. See, e.g., DQ Fire & 

Explosion Consultants, Inc., 36 FMSHRC 3090, 3095-96(Dec. 2014) (examining operator’s 

claim of mitigating circumstances in reviewing Judge’s high negligence finding), aff’d, 632 

F.App’x 622 (D.C. Cir. 2015); Wolf Run Mining Co., 35 FMSHRC 3512, 3519-20 (Dec. 2013)

(examining operator’s conduct as a whole in attempting to comply with regulation); Consol, 35

FMSHRC at 2345-46 (concluding that repeated violations of regulation merited increase in level

of negligence ascribed to operator). It is within this context that the Judge can consider the

Secretary’s arguments regarding the extent of AmCoal’s knowledge and how that impacts the

operator’s level of negligence and the penalty that it should be assessed for the violation.

Remand of the negligence issue nullifies AmCoal’s argument that the Judge’s 

unwarrantable failure determination must be reversed because it contradicts his finding of 

moderate negligence. In any event, that determination was arrived at after taking into account all 

of the unwarrantable failure factors. See 35 FMSHRC at 2233-41. 

AmCoal did not challenge the Judge’s findings on such factors as the extent of the 

accumulations (id. at 2233); that, as detailed with respect to the first violation, the operator had 

been placed on notice that greater efforts to comply with section 75.400 were necessary on its 

part (id. at 2237); and that the violative conditions were obvious when discovered by the 

inspector. Id. at 2239. In addition, we have already affirmed the Judge in large part as to the 

danger of the violation, another factor the Judge took into account in determining that the 

violation was attributable to AmCoal’s unwarrantable failure. See id. at 2238. Given the limited 

remand in this instance, we do not foresee the Judge’s findings on the scope of the operator’s 

knowledge of the violation undercutting our conclusion that substantial evidence otherwise 

supports the Judge’s unwarrantable failure determination. Consequently, we affirm that 

determination. 

V. 

Conclusion

For the foregoing reasons, we (1) affirm the violation in Order No. 7490584 as properly 

assessed as a flagrant violation; and (2) vacate in part the Judge’s determinations with respect to 

the violation in Order No. 7490599 and remand to him the questions of whether the Secretary 

established it as flagrant violation, the level of the operator’s negligence in connection with the 

violation, and, if necessary, a reassessment of the penalty in accord with his findings on remand. 

38 FMSHRC Page 2085
Commissioner Cohen, concurring: 

I agree with all parts of the foregoing majority opinion in this case. I write separately, 

together with Commissioner Young, to state our views on the issue of the broad interpretation of 

the flagrant provision as it has been advanced by the Secretary of Labor in this case, and, should 

he reach the issue on remand, how the Judge should consider the interpretation with respect to 

Order No. 7490599. There is no question that the Secretary has the right to argue this issue 

before the Commission in response to the appeal by American Coal Company (“AmCoal”) of the 

Judge’s decision.1

At the hearing, the Secretary submitted a history of 359 citations and orders for 

accumulations violations at the mine from October 1, 2005 to October 1, 2007, the two years 

roughly prior to the two orders being tried below. Gov’t Ex. 1. As of August 4, 2011, aside from 

the two violations being tried, all but 11 had been paid and become final. Id. at 9.2

1

 As the prevailing party below, the Secretary may urge in support of the decision under 

review even those arguments that the Judge considered and rejected, so long as the position 

which the Secretary seeks the Commission to adopt would not attack the judgment below or 

enlarge the Secretary’s rights thereunder. See, e.g., Sec’y on behalf of Price v. Jim Walter Res., 

Inc., 12 FMSHRC 1521, 1529 (Aug. 1990). Amcoal argues that taking into account the 

operator’s history of previous violations, or permitting remand for the Judge to further consider 

the issue with respect to either violation would enlarge the Secretary’s rights. The Secretary, 

however, is merely arguing alternative grounds for finding one or both of the violations to be 

flagrant. This is an argument we have at least acknowledged. See Wolf Run Mining Co., 35 

FMSHRC 536, 541 (Mar. 2013) (concluding that plain meaning of the flagrant provision permits 

proof of flagrant violation by use of prior violations, although “[o]ne might reasonably argue 

about the number of prior violations that should be necessary, or how similar those prior 

violations should be before conduct is appropriately considered a ‘repeated failure’ under 

110(b)(2)”). 

This case is merely one in which those arguments are being addressed, the Secretary 

having tried the case under that approach. That the case may provide a more important precedent 

if decided by taking into account AmCoal’s history of previous history of violations was thus 

evident from the case’s outset. The Judge’s rejection of the Secretary’s broader approach and 

adoption of a narrower approach to the case, also contemplated by Wolf Run, does not limit the 

Secretary’s right to vindicate his approach now, while AmCoal is challenging the Judge’s 

decision. 

2

 Seventy-five of those 359 citation or orders were alleged or found to be significant and 

substantial (“S&S”). Tr. I 125-26; Gov’t Ex. 1, at 9. According to Miller, the issuing inspectors 

had also designated 11 of those as attributable to the operator’s unwarrantable failure, including 

three issued within the two months prior to the violations here. Tr. I 126; Gov’t Ex. 1, at 8-9. 

38 FMSHRC Page 2086
The Secretary also submitted copies of 27 citations or orders, issued to AmCoal within 

the 12 months preceding the issuance of the subject order for violations of 30 C.F.R.§ 75.400.3

These involved accumulations in belt areas of the same materials at issue here – coal, float coal 

dust, coal fines, and other combustibles. Nineteen of the orders had been issued alleging that the 

violations were S&S, and five of them resulted from AmCoal’s high negligence. Gov’t Exs. 6 to 

32. 

The Secretary also presented evidence that the Department of Labor’s Mine Safety and 

Health Administration (“MSHA”) had worked with AmCoal on training and mine examinations 

that would focus the operator’s attention on its accumulations problems. Tr. I 86-90, 143-45. 

In his post-hearing brief, the Secretary drew upon court and Occupational Safety and 

Health Review Commission precedent that he argued was decided under an analogous provision, 

section 17(a) of the Occupational Safety and Health Act of 1970 (“OSH Act”), 29 U.S.C. § 

666(a). He maintained that the foregoing evidence established that both orders at issue were 

flagrant violations and that AmCoal had not acted reasonably to address the two violations of 

section 75.400 after an extensive history of substantially similar violations. 

In the hearing below, the Secretary argued that his interpretation of “repeated failure” 

was entitled to deference. The Judge declined to give the Secretary’s interpretation full deference 

under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). 35 

FMSHRC at 2253-58. On appeal before the Commission, the Secretary has again asserted an 

entitlement to Chevron deference, a position AmCoal has countered. S. Resp. Br. at 25-26; Am. 

Reply Br. at 12-14. 

We do not perceive any coherent interpretation of the “repeated failure” language by the 

Secretary to consider in terms of granting deference. As AmCoal pointed out, the Secretary did 

not state an interpretation of the language in his brief to the Commission but merely referred to 

his “position taken in the Secretary’s post-hearing brief.” S. Resp. Br. at 25; Am. Reply Br. at 13 

n.7. In his post-hearing brief to the Judge, the Secretary did nothing more than (1) analogize to

section 17(a) of the OSH Act, which provides for enhanced penalties against employers who

“repeatedly” violate Occupational Safety and Health Administration standards, and (2) cite to

several cases under the OSH Act which, according to the Secretary, indicate that a violation

following one prior violation of the same standard, or of a different standard involving similar

hazards, establishes a “repeated” violation for OSH Act purposes. S. Post-Hr’g Br. at 36-37.

We would decline to afford deference to the Secretary’s formulation, which lacks 

practical utility for Commission judges in that it does not provide a manageable standard or 

limits. Under the Secretary’s suggested approach, a single prior accumulations violation in an 

3

 The Judge found that the 27 citations and orders for belt area accumulations entered into 

evidence were not proven to be final orders of the Commission. 35 FMSHRC at 2247-48 & n.19. 

However, the Secretary points out that the finality of all 27 of those citations and orders was 

established by the printout he submitted detailing the broader array of accumulations violations 

over a greater length of time. See S. Resp. Br. at 29; Gov’t. Ex. 1. 

38 FMSHRC Page 2087
underground coal mine might be a sufficient basis for finding a subsequent violation to be 

flagrant — or not. There is no principled basis for making the determination.4

The Secretary’s analogy to section 17(a) of the OSH Act as a purported “interpretation” 

is thus not an application of reasoned judgment or expertise to which we must, or even logically 

could, defer. The Secretary has simply plucked the word “repeated” out of another statute which 

protects occupational safety and health, and made a specious argument that there’s a parallel in 

the statutory language or Congressional intent. Adopting the Secretary’s methodology would 

ignore the specific provisions Congress created for section 110(b)(2). Unlike section 17(a) of the 

OSH Act, the Mine Act’s flagrant provision (1) requires “reasonable efforts to eliminate a known

violation,” and (2) requires that the violation “proximately caused, or reasonably could have 

been expected to cause, death or serious bodily injury.” 30 U.S.C. § 820(b)(2) (emphases added). 

Most fundamentally, as we noted supra, slip op. at 13, section 17(a) of the OSH Act, does not 

contain the word “flagrant,” a word of approbation related to intolerable failure. 

We therefore would hold that the Judge did not err in declining to afford Chevron 

deference to the Secretary’s interpretation. However, we do believe that the Judge should have 

nonetheless considered, and made an independent determination on, the question of the broader 

interpretation of “repeated failure,” and the evidence of the operator’s history of violations which 

the Secretary proffered in support of a more expansive view. 

 The Judge’s determinations regarding the relevance, use, and weight of the operator’s 

history of violations in this context were complicated by a number of factors. The only 

Commission precedent did not resolve the issue, and only alluded to it in passing. The Secretary 

has not promulgated regulations delineating his interpretation of a “repeated failure,” nor did he 

provide a coherent interpretation in the context of this litigation. And the guidance materials the 

Secretary has provided to his inspectors reflect the agency’s grappling with the application of the 

statute. 

In considering this matter, we would conclude that the operator’s history may be more 

generally relevant to the determination of flagrancy than the Judge decided. The Judge rejected 

the Secretary’s attempt to use AmCoal’s history of violations to establish either violation as 

flagrant largely without examining the evidence submitted on the previous violations. The Judge 

said, “in the absence of further guidance from the Commission, long overdue rulemaking from 

MSHA, or a consistent interpretation or litigating position by the Secretary that has not been 

advanced by appellate counsel in another case, I decline to address a broader interpretation here 

or the significance of past violation history.” 35 FMSHRC at 2263. While the Judge’s frustration 

 4

 Earlier in this decision, the Commission considered the formulation by the parties that 

“two or three failures might amount to a flagrant violation in certain circumstances but not in 

others, depending on the particular facts.” Slip op. at 13 (quoting S. Resp. Br. at 17). We stated 

that this formulation “as far as it goes . . . is a reasonable, albeit very general, interpretation.” Id. 

The Commission’s earlier statement was solely in the context of the narrow approach to 

“repeated failure,” where there is a single, continuing violation rather than a history of past 

violations. It did not apply to consideration of allegedly flagrant violations under the broad 

approach to “repeated failure.” 

 

38 FMSHRC Page 2088
with the absence of clear principles governing the use of violation history is understandable, the 

language of the statute and our decision in Wolf Run nevertheless support the reasoned 

consideration of an operator’s history of substantially similar violations, where they may be 

shown to be relevant to the issues arising in the repeated failure context.5

The Secretary introduced the aforementioned evidence on AmCoal’s recent history of 

accumulations violations at the hearing. Inspector Miller, the Secretary’s only witness in the 

case, testified extensively regarding that evidence. Tr. I 124-34, 142-46, 162-71. This evidence 

could be probative of a finding of a flagrant violation under the broad approach to “repeated 

failure” flagrant violations.6

We disagree with the Judge’s conclusion that “the Secretary must establish all the 

statutory elements for each ‘repeated failure’ relied upon to establish a flagrant violation.” 35 

FMSHRC at 2255 (emphases added). The Judge would have thus required the Secretary’s 

evidence to establish that each prior violation in the operator’s history was both a “known” 

5

 Contrary to Commissioner Althen’s characterization of the liberal construction we and 

the courts of appeals afford the Act (see slip op. at 51 (the “last redoubt of losing causes”)), our 

reading in favor of the safety purposes of the statute is an entrenched canon of mine safety 

jurisprudence. See Int’l Union, United Mine Workers of Am. v. Mine Safety & Health Admin., 

823 F.2d 608, 617 (D.C. Cir.1987) (“In reviewing the Mine Act to determine congressional 

intent, we begin with the recognition that ‘[t]he primary purpose of the . . . Act was to protect 

mining’s most valuable resource — the miner,’” and in order to meet the “‘urgent need to 

provide more effective means and measures for improving the working conditions and practices 

in the Nation’s coal mines in order to prevent death and serious physical harm . . . Congress 

intended the Act to be liberally construed.’”) (quoting Int’l Union, United Mine Workers of Am. 

v. Kleppe, 532 F.2d 1403, 1405–06 (D.C. Cir.), cert. denied, 429 U.S. 858 (1976)); accord

Freeman Coal Min. Co. v. Interior Bd. of Mine Operations Appeals, 504 F.2d 741, 744 (7th Cir.

1974).

6

 While Commissioner Althen argues that a repeated violation would require a prior 

occurrence of the same violation, that is not what the statute says. As we have said, “repeated 

failure” modifies “to make reasonable efforts to eliminate.” If the subsequent violations have a 

common cause or origin known to the operator — including bad management, where better 

practices would have eliminated recurrent violative conditions — a Judge may find a repeated 

failure to take reasonable steps to eliminate those conditions. 

38 FMSHRC Page 2089
violation and involved a reasonable expectation of death or serious bodily injury to one or more 

miners. Id.

7

Reading “repeated” as narrowly as the Judge did in this case is contrary to the intent and 

language of the statute. The essence of a repeated flagrant violation is a condition which 

threatens miners with serious bodily injury or death and which has been ignored or disregarded 

often enough to demonstrate intolerable irresponsibility. Because repetition requires a 

demonstration of prior occasions, the operator’s history of substantially similar violations is 

patently relevant. 

As noted previously, supra slip op. at 15-16, the operator’s history may reveal a common 

cause or origin known to the operator, which was not addressed on previous occasions. 

Similarly, the operator’s violation history may be used to show a known pattern of neglect which 

included the subject violation. Id. Finally, while a mere listing of violations of the same standard 

may be insufficient to establish repetition, evidence of a large number of substantially similar 

violations arising from general practices or neglect, or a smaller number of violations that may 

be shown to share a common cause that was known and disregarded, may meet the statutory 

criteria. Thus, in our opinion, it is unnecessary on remand for evidence adduced by the Secretary 

to conclusively establish that the previously-established violations of section 75.400 each met the 

statutory definition of a “repeated or reckless failure,” as the Judge suggested.8 Rather, Judges 

 7

 It appears that the Judge’s analysis of the statutory language may have relied upon our 

decision in Wolf Run. 35 FMSHRC at 2247-49. In Wolf Run, however, an operator’s prior history 

of violations was considered only with respect to the “repeated” clause of the flagrant provision. 

See 35 FMSHRC at 541 (“it is difficult to conceive how one determines whether certain conduct 

represents ‘repeated’ behavior of any sort without considering whether there have been prior 

instances of similar behavior. One might reasonably argue about the number of prior violations 

that should be necessary before conduct is appropriately considered a ‘repeated failure’ under 

section 110(b)(2) . . .”). Our decision in that case did not address whether the violations in the 

operator’s prior history also need to satisfy the other elements of the flagrant provision. 

8

 The Judge’s conclusion on this point appears to flow from his opinion that final 

determinations on S&S and unwarrantable failure findings may be sufficient to establish the 

requisite findings of “known violation” and risk of serious bodily injury to miners in the earlier 

violations. It does not necessarily follow, however, that evidence on the two special findings is a 

necessary condition precedent before such violations can serve as predicate violations for a 

“flagrant” violation. There is nothing definitive in the language of the flagrant provision on that 

point, and the Judge may be imbuing S&S and unwarrantable failure findings with more 

significance than the record in those previous cases actually permits, particularly with respect to 

cases that are settled short of a Commission decision on the issues. In essence, the Judge’s 

approach would require the Secretary to establish through litigation the requisite findings in 

those previous cases before he could even later bring a flagrant case. We cannot discern in the 

flagrant provision any congressional intent to place such a burden on the Secretary or to increase 

litigation before the Commission under the Mine Act. 

38 FMSHRC Page 2090
should consider allegations of repeated failure case-by-case, and should consider the operator’s 

history of violations where it may be probative of the issue.9

In this context, we would have the Judge especially consider the evidence of the 

Secretary’s efforts prior to the violations at issue in this case to get AmCoal to improve training 

and examinations related to accumulations violations. The alleged failure of AmCoal to take 

meaningful action toward that end would be reviewed to determine whether it supports a 

showing of a repeated failure to make reasonable efforts to eliminate the problem, as the Act 

requires. 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner

9

 On remand, the Secretary of course bears the burden of demonstrating a link between 

the violation in Order No. 7490599 and previously-cited dangerous conditions that are 

substantially similar. See Wolf Run, 35 FMSHRC at 541. Such a demonstration should include an 

explanation of how the failure here was a repeated failure to make reasonable efforts to eliminate 

a known and serious violation. 

38 FMSHRC Page 2091
Commissioner Young, concurring in part and dissenting in part: 

I join in my colleague Commissioner Cohen’s opinion in all parts except Part III.B, the 

issue of whether the accumulations cited in the second violation could be reasonably expected to 

lead to serious bodily injury to miners. I would vacate the Judge’s findings on this issue and 

include the issue in the remand. 

The Judge found that the accumulations cited in the second violation could be reasonably 

expected to lead to serious bodily injury to miners, but only reached that conclusion after relying 

on a map which he read to demonstrate a lack of stoppings that would protect escaping miners 

from the effects of a fire resulting from the accumulations. 35 FMSHRC 2208, 2231 (citing Am. 

Ex. 4, at 5), 2265 (July 2013) (ALJ). 

The Secretary of Labor concedes the argument of the American Coal Company that it 

was error for the Judge to do so. S. Resp. Br. at 21. Rather than remand to the Judge, however, 

the Secretary would have the Commission examine the evidence regarding the actual location at 

issue in the mine and find here that escaping miners would be exposed to smoke from a fire 

resulting from the cited accumulations. Id. at 21-23. 

While Commissioner Cohen, joined by Chairman Jordan and Commissioner Nakamura in 

their separate opinion, make such a finding in support of their conclusion that death or serious 

injury to miners could be reasonably expected to result from the accumulations here, I cannot 

agree with this procedure. Where a Judge errs in failing to understand the evidence presented, as 

the Judge did here, our standard practice is to remand the case to him for him to make the 

necessary findings of fact in the first instance, using a correct understanding of the evidence. See, 

e.g., Wolf Run Mining Co., 32 FMSHRC 1669, 1676–77 (Dec. 2010) (vacating Judge’s

affirmance of citation and remanding for factual determination and to address operator’s

arguments erroneously unaddressed).

 Remand is especially appropriate in this instance, because the Judge’s misunderstanding 

of the evidence led him to conclude that the degree of gravity of the second violation was even 

greater than the first violation. The Judge found that the lack of stoppings was reasonably likely 

to lead not only to smoke inhalation but to carbon monoxide poisoning, burns, and entrapment of 

the six miners on the working section. See 35 FMSHRC at 2231. As this finding rests on clear 

error, remand on the issue of the gravity of the second violation is clearly necessary. 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

38 FMSHRC Page 2092
Chairman Jordan and Commissioner Nakamura, concurring and dissenting: 

We join the opinion of our colleagues affirming the Judge’s flagrant determination with 

respect to the first violation at issue in this case. However, we write separately because we would 

also affirm the Judge’s flagrant determination regarding the second violation (Order No. 

7490599). 

The statutory criteria for a flagrant violation require “a reckless or repeated failure to 

make reasonable efforts to eliminate a known violation of a mandatory health or safety standard 

that substantially and proximately caused, or reasonably could have been expected to cause, 

death or serious bodily injury.” 30 U.S.C. § 820(b)(2). For the reasons stated below, we find that 

all of these factors have been satisfied. 

The salient facts regarding this violation are: 

 Float coal dust and loose coal accumulated under and around the energized tail roller of

the belt.

 The accumulations measured approximately 6 inches to 14 inches in depth.

 Loose coal and coal float dust also extended outby the tail roller approximately 450 feet

 The area was black.

 The turning tail roller was suspending float coal dust into the atmosphere.

 The bottom belt and bottom rollers were in contact with these accumulations.

 The inspector testified that absent a “train wreck,” it would take more than two shifts for

accumulations of this type and color to develop.

 There was no reference to these conditions in the examination books.

 Based on the red-brown color of the float dust, the inspector concluded that the roller and

belt had been grinding in coal for a significant period of time.

 The Judge credited the inspector’s testimony that the float coal dust and loose coal that

was accumulating under and around the tail roller was not wet.

 The inspector designated the violation S&S based on the fact that the bottom belt and

bottom rollers were in contact with the accumulations and the energized tail roller was

turning in the accumulations, thus providing two separate potential ignition sources.

35 FMSHRC 2208, 2218-19 (July 2013) (ALJ); Gov’t Ex. 3.

A. Repeated Failure to Make Reasonable Efforts to Eliminate a Known Violation

Regarding AmCoal’s knowledge, substantial evidence supports the Judge’s decision

regarding the extent to which AmCoal was or should have been aware of the accumulations. 

Indeed, the evidence is such that it establishes actual knowledge of the accumulations on the part 

of AmCoal, and not just constructive knowledge. 

Raney testified that that the starting and stopping of a belt can lead to spillage of coal 

from the belt. Tr. II 66-68. In this instance there were electrical problems with the pony belt 

during the shifts preceding the discovery of the accumulations by Inspector Miller, which 

resulted in the belt’s shutdown a number of times during those shifts. 

38 FMSHRC Page 2093
The September 23 handwritten reports of the foremen (the production and delay, or 

“P&D” reports) on the previous two shifts amply demonstrate that the foremen were aware of the 

problems with the pony belt.1

 They clearly noted that during the first shift the pony belt was 

down four different times and, during the last time, interrupted production for 120 minutes (until 

the end of the shift). 35 FMSHRC at 2219. The handwritten reports reflect that the first shift 

crew waited to leave the section until the second shift crew had arrived. The report from the 

second shift on September 23 shows that that crew was making repairs to the belt from the very 

beginning of the shift, and they therefore were aware that the first shift had been having 

problems with the pony belt. Later in that shift, there was another delay of 30 minutes while 

maintenance was performed on the pony belt. Hence, they knew that there could have been 

violative accumulations. Am Ex. 20.2

Evidence of those shutdowns is also supplied by the daily printed production delay 

report. 35 FMSHRC at 2239, 2265. Raney explained that the daily report was likely produced by 

“Mine Control” from the handwritten shift P&D reports that foremen supplied. Tr. II 30-31, 60-

61; Am. Ex. 20 (shift P&D reports). The daily reports indicate electrical and breaker problems 

with the belt during all three shifts on September 22, which grew worse during the first two shifts 

on September 23 before repairs were made on the second shift. Tr. II 61-66; Am. Ex. 21, at 8-10. 

Further evidence that the accumulations occurred over several shifts was supplied by 

Inspector Miller, whose testimony on the nature of the accumulations the Judge credited. 35 

FMSHRC at 2265. Consistent with his contemporaneous notes, Miller attributed the presence of 

float coal dust that was red-brown in color to the grinding of coal dust by the tail roller of the belt 

over an extended period of time. Tr. I 116, 203, 206-08; Gov’t. Ex. 4, at 6. 

The Judge inferred from the foregoing that the accumulations had resulted from the 

stopping and starting of the pony belt, and that AmCoal had constructive knowledge of the 

accumulations over the course of the preceding shifts. Inferences drawn by a Judge are 

permissible to the extent that “they are inherently reasonable and there is a logical and rational 

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

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

Here the record establishes that the inferences the Judge drew were reasonable. Not only 

was there evidence of the belt stopping and starting multiple times and that coal spillage can 

result from each stop and start of the belt, but there was also evidence that the stopping and 

starting had been reported during each shift and a daily report produced for AmCoal 

management documenting the stops and starts during the three shifts the day prior to the 

discovery of the accumulations. Moreover, it was the working section foremen for the shifts who 

were reporting the stops and starts of the belt. Am. Ex. 20, 21. 

1

 These handwritten reports are prepared contemporaneously on or immediately after the 

shift. Tr. II 91. 

2

 The handwritten P&D reports also reflect that the section crew on the second September 

23 shift did not leave until the third shift crew arrived on the section (5:15 pm). Am. Ex. 20. 

38 FMSHRC Page 2094
We conclude that AmCoal had actual knowledge of the resulting accumulations. Five 

total shift P&D reports were submitted regarding the electrical problems, a daily P&D report was 

produced documenting the problems the previous day, and the inspector’s credited description of 

the accumulations was consistent with the accumulations occurring over the course of several 

shifts. 35 FMSHRC at 2265. 

This is entirely consistent with the Commission’s interpretation of the term “knowingly” 

under section 110(c) of the Mine Act, 30 U.S.C. § 820(c). We have held that “[a] knowing 

violation occurs when an individual ‘in a position to protect employee safety and health fails to 

act on the basis of information that gives him knowledge or reason to know of the existence of a 

violative condition.” Cougar Coal Co., 25 FMSHRC 513, 517 (Sept. 2003) (quoting Richardson, 

3 FMSHRC 8, 16 (Jan. 1981), aff’d on other grounds, 689 F.2d 632 (6th Cir. 1982), cert. denied, 

461 U.S. 928 (1983)). 

Here, where the belt was continually stopping and starting over the course of not only 

multiple shifts but also multiple days, a reasonable operator would have investigated whether 

accumulations were resulting. Yet there is nothing in the record indicating that AmCoal did so. 

Furthermore, given the length of time during which the problems were occurring, it was 

reasonable for the Judge to infer that AmCoal had multiple opportunities to address the 

accumulations, and thus its failure to do so constitutes a “repeated” one. As with the first 

violation, the evidence that the accumulations may have existed over the course of several shifts 

means that it is not necessary to decide in this instance what minimum number constitutes a 

“repeated failure.” 

It is even less essential to our decision to provide, as our colleagues Commissioners 

Cohen and Young attempt to do, a definitive interpretation of the “broad” meaning of “repeated,” 

in the context of an operator’s history of violations. Slip op. at 26-31. The majority in this case 

have vacated the Judge’s decision applying the “narrow” approach to repeated, and remanded the 

case to him. If he finds no liability under the narrow analysis, then the Judge should proceed to 

consider the Secretary’s alternate theory. 

Our colleagues’ instructions to the Judge on how the case should be litigated under the 

broader theory (if that becomes necessary), are, however, premature. The Judge, in the first 

instance, can interpret the statutory provision “repeated” under the historical approach, applying 

his legal definition to the facts in the record before him. If the case is appealed, we will then have 

ample opportunity to review the matter. The case would then be in a posture where our view on 

the correct interpretation of the broad application of “repeated” is squarely and properly before 

us, and we would also have the benefit of the parties’ views on the issue. 

Having argued that our colleagues’ determination to weigh in on this issue now is 

precipitous, we are nonetheless constrained to comment on the substance of their suggested 

approach. 

Commenting in the abstract, as they must, their opinion serves to illustrate why 

adjudicatory bodies generally refrain from issuing advisory opinions, preferring instead to rule 

38 FMSHRC Page 2095
within the context of the facts of a specific case. Our colleagues state that “while a mere listing 

of violations of the same standard may be insufficient to establish repetition, evidence of a large 

number of substantially similar violations arising from general practices or neglect, or a smaller 

number of violations that may be shown to share a common cause that was known and 

disregarded, may meet the statutory criteria.”3 Slip op. at 30. They also indicate that an 

operator’s history of violations may be used to show “a known pattern of neglect” which 

includes the violation at issue. Id. 

Our colleagues’ opinion raises as many questions as it strives to answer. For instance, 

must the Secretary, to prove his case, put on evidence regarding each of the prior violations he 

posits as supporting a “repeated” violation? How must the Secretary prove the existence of “a 

known pattern of neglect?” How feasible would such a requirement be if the violations occurred 

many months or even years prior to the violations deemed flagrant? What does “substantially 

similar” mean and if violations of the same standard are not “substantially similar” enough, what 

more is required? What constitutes a “link” between the prior violations and the current ones, 

slip op. at 30, and how would that be demonstrated? 

In short, in their desire to provide guidance on a statutory interpretation question that is 

neither currently before them nor necessarily headed to the Judge on remand, our colleagues, 

without benefit of briefing by the parties, announce a test that may confuse rather than clarify. 

We believe the more prudent approach is to wait until this issue is properly before us before 

weighing in on such an important matter.

B. Reasonable Expectation of Death or Serious Bodily Injury

The majority has adroitly summarized the evidence supporting the Secretary’s claim that

it was reasonable to expect that this violation would cause death or serious bodily injury. Slip 

op. at 17-18. We agree with its conclusion that substantial evidence supports the Judge’s 

determination that the smoke hazard was serious enough to meet this test. We also agree that the 

Judge’s possible misuse of the mine map is not material to the disposition of this issue (and 

believe that it constituted harmless error). 

C. The Judge’s Reduction of the Level of AmCoal’s Negligence

We would reverse the Judge’s determination that the second violation was the result of

only moderate negligence on the part of AmCoal. The Judge found that the failure of AmCoal’s 

shift examiners to report the accumulations to mine management was a mitigating factor with 

respect to AmCoal’s negligence. 35 FMSHRC at 2241 (citing 30 C.F.R. § 100.3(d)). We 

disagree. 

As a threshold matter, it is important to place this negligence determination in the proper 

perspective. The Judge held that the violation was flagrant (a holding we would affirm), finding 

that AmCoal repeatedly failed to make reasonable efforts to eliminate the violation for two shifts 

3

 We note that the operator’s history in this case includes 359 violations of section 

75.400’s prohibition against accumulations in the 24 months preceding the issuance of the 

flagrant violations at issue here. Slip op. at 26. 

38 FMSHRC Page 2096
even though the operator was alerted to the fact that potential accumulations would need 

additional attention. 35 FMSHRC at 2265. In addition, the Judge found the violation to be the 

result of AmCoal’s unwarrantable failure to comply with the safety standard, 35 FMSHRC at 

2240, thus concluding that the operator’s conduct was aggravated. He noted that unwarrantable 

failure is characterized by conduct such as “reckless disregard,” “intentional misconduct,” 

“indifference,” or a “serious lack of reasonable care.” Id. at 2231 (citing Emery Mining Corp., 9 

FMSHRC 1907, 2003-04 (Dec. 1987)).4

 Given these findings, we require no great analytical leap 

to reinstate MSHA’s high negligence determination. 

Turning now to the Judge’s analysis of the negligence level, we start with the view — 

shared by our colleagues in the majority — that an operator is negligent if it fails to meet the 

requisite standard of care — a standard of care that is high under the Mine Act. We must 

consider the actions that a reasonably prudent operator would or would not have taken, under the 

circumstances presented that are relevant to an operator’s obligation to comply with section 

75.400. See, e.g., Wolf Run Mining Co., 35 FMSHRC 3512, 3519-20 (Dec. 2013) (examining 

operator’s conduct as a whole in attempting to comply with regulation); Consol, 35 FMSHRC at 

2345-46 (repeated violations of regulation merited increase in level of negligence ascribed to 

operator).5 Thus we must examine whether the operator met the standard of care that a 

reasonably prudent mine operator would have applied. 

As we stated during our discussion affirming the Judge’s flagrant determination for this 

violation, AmCoal had actual knowledge of the violation via its own P&D reports. Slip op. at 34-

35. Management created these reports and in fact a section foreman writes such a report for each 

production shift on each section. Tr. I at 461-62. Supervisors at the mine were thus aware that 

there were electrical problems with the belts, and were aware that the stopping and starting of the 

belts was a known cause of spillage. Hence a reasonably prudent foreman at a mine with an 

extensive history of coal accumulations (such as AmCoal’s) should have investigated this 

problem. The failure to do so indicates a lack of reasonable care. 

The absence of information about the belt problems in the MSHA-mandated examination 

reports in no way reduces the level of negligence here. An operator cannot rely on a negligent 

 

 4

 The operator argued to the Commission that, given the Judge’s finding of only moderate 

negligence, the violation could not be unwarrantable because unwarrantable failure requires a 

higher level of negligence. Given our determination that the negligence level should be reinstated 

as high, we need not address this assertion. 

5

 Although the Judge recognized that negligence is conduct that falls below the requisite 

standard of care, 35 FMSHRC at 2241, he also utilized the Secretary’s Part 100 penalty 

regulations, which state that MSHA may allege a moderate level of negligence if there are 

“mitigating circumstances.” Id. (citing 30 C.F.R. § 100.3(d)). 

38 FMSHRC Page 2097
examination6

 (which could have conceivably been a violation of the MSHA examination 

standards) to mitigate the negligence for the violation of another standard. We agree with the 

Secretary that an operator may not put blinders on regarding information about a potential hazard 

simply because that information is not contained in an MSHA-mandated examination report. S. 

Reply Br. at 3 n.3 (citing Ernest Matney, emp. by Knox Creek Coal Corp., 34 FMSHRC 777, 786 

(Apr. 2012) (on-site supervisors may not close their eyes to violations and then assert lack of 

responsibility based on self-induced ignorance)). As the Secretary persuasively argues, 

permitting a defective mine examination to shield an operator from a negligence charge would 

reduce incentives for operators to ensure the effectiveness of their examination procedures.7

The Secretary proposed a penalty of $164,700, but the Judge reduced it to $77,737, 

based, we believe, on his reduction of the negligence level. Because we would reinstate the 

finding of high negligence, we would vacate and remand the penalty for reassessment in light of 

this determination.8

In conclusion, we would affirm the Judge’s finding that this violation was flagrant and 

unwarrantable, reinstate the inspector’s negligence level to “high,” and vacate and remand the 

civil penalty. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commission

6

 The Judge found it “difficult to believe that reasonably attentive on-shift examiners 

would not have reported th[e] condition,” 35 FMSHRC at 2239, and that if [AmCoal] had 

conducted thorough examinations, the conditions should have been documented.” Id. He 

emphasized that “even a casual observation would have revealed that there was an energized tail 

roller grinding through coal at the Flannigan Tailgate.” Id. 

7

 Our reinstatement of the inspector’s high negligence finding nullifies AmCoal’s 

argument that the Judge’s unwarrantable failure determination must be reversed because it 

contradicts his finding of moderate negligence. 

8

 Regarding the unwarrantable failure determination, we join our colleagues in affirming 

that determination. 

38 FMSHRC Page 2098
Commissioner Althen, concurring in part and dissenting in part:1

A. Order No. 7490854

I join in the sustaining Order No. 7490854 as a flagrant violation. I do not join with 

certain opinions expressed in the majority decision and, therefore, do not join in the decision. 

Although the issue of whether the violation created a “reasonable expectation” of death or 

serious injury is not free from doubt, I find the Judge’s decision meets the substantial evidence 

test, thereby requiring affirmance. The number of shifts the violation existed and its obviousness 

and extensiveness support the conclusion that management repeatedly ignored a known, 

extensive, and sufficiently dangerous accumulation to meet the definition of a flagrant violation. 

However, as explained in more detail below, I disagree that the Secretary may use a history of 

non-flagrant violations to support a finding that a later violation is flagrant. Therefore, I would 

disagree with any use of AmCoal’s history of violations to support upholding a flagrant 

designation for Order No. 7490854. See infra slip op. at 53-55. 

B. Order No. 7490599

I agree to a remand of Order No. 7490599 for a reconsideration of what the operator 

“actually knew” with respect to the underlying violation and the level of the operator’s 

negligence. See infra slip op. at 56. However, I respectfully disagree with my colleagues with 

respect to several aspects of their various opinions. 

An essential element of a flagrant violation is that the violation must be “known” by the 

operator. In the context of a flagrant violation, a violation is “known” only if the operator has 

actual knowledge, express or implied, of the violation. Constructive knowledge, as used by the 

Judge below, does not comport with the wording of section 110(b)(2), the purposes of the 

statutory provision, or integration of the section with other sections of the Mine Act. Therefore, 

as explained below, I would find that the Secretary must prove actual knowledge of the violation 

under the Commission’s so-called “narrow” standard of review. 

Chairman Jordan and Commissioner Nakamura conclude that the facts demonstrate 

actual knowledge. Slip op. at 34-35. However, I take no position on whether the facts 

demonstrate sufficient knowledge to sustain a flagrant finding under an actual knowledge 

standard.2 

1

 I appreciate the footnotes added to the majority decision indicating areas in which 

individual Commissioners disagree. However, given the number of issues involved, their 

complexity, and the number of different opinions, I prefer to limit my agreement to areas in 

which I expressly state agreement in this opinion. 

2

 I think the Judge must make the determination of knowledge in the first instance. In my 

opinion, the necessary determination is whether the operator had actual knowledge of the 

violation within a time frame that a failure to eliminate the violation justly may be found to be 

“repeated.” 

38 FMSHRC Page 2099
I do opine that Congress meant section 110(b)(2) to apply only where an operator has 

actual knowledge of the violation. Because the Judge used a constructive knowledge construct 

that I find inappropriate, I would remand for a finding with respect to actual knowledge.3

Separately, I disagree with my colleagues’ decision in Wolf Run Mining Co., 35 

FMSHRC 536 (Mar. 2013), that a history of non-flagrant violations not shown to have created a 

reasonable expectation of death or serious bodily injury may demonstrate the “repeated” element 

of a flagrant violation. I, therefore, disagree with use of previous violations to demonstrate a 

failure by an operator to eliminate a violation that is “known” to it. The flagrant violation section 

responds to pre-MINER Act circumstances in which an operator could know of an extremely 

dangerous violation, bordering upon if not constituting an imminent danger, but not face any 

repercussions beyond the normal penalty amounts by allowing the danger to continue unless and 

until an inspector noticed the condition. In my opinion, the plain language of section 110(b)(2) 

demonstrates it applies only to repeated failures to remedy “a known violation,” that is, the 

violation that is the subject of the flagrant designation.4

DISCUSSION 

I. Background

Section 110(b)(2) of the Mine Act, 30 U.S.C. § 820(b)(2), provides: 

Violations under this section that are deemed to be flagrant 

may be assessed a civil penalty of not more than $220,000. For 

purposes of the preceding sentence, the term “flagrant” with 

respect to a violation means a reckless or repeated failure to make 

reasonable efforts to eliminate a known violation of a mandatory 

health or safety standard that substantially and proximately caused, 

or reasonably could have been expected to cause, death or serious 

bodily injury. 

3

 I also would remand the Judge’s finding of moderate negligence. See slip op. at 23-25. I 

am not certain the Judge felt bound by the Part 100 regulations in a manner that he had no choice 

other than to reduce negligence or he found the mitigating circumstance a sufficient reason. I 

would accept a finding by the Judge that the failure of the pre-shift examiner to note any 

accumulation coupled with the inspector’s failure to cite a pre-shift violation is sufficient to 

reduce negligence to a moderate level. Separately, I agree with Commissioner Young’s opinion 

that we should remand the case for a redetermination of whether the violation was “reasonably 

expected” to cause death or serious bodily injury. Id. at 32. The seriousness of an injury if it 

should occur does not deal with the “expectation” of the occurrence. 

4

 I am bound to respect the settled law of the Commission. However, as the Commission 

decision demonstrates, the contours of the so-called broad interpretation do not appear settled. 

Therefore, I find it remains appropriate to express the view that the broad interpretation, standing 

alone and certainly without any definition or context, does not comport with the purpose and 

effect of section 110(b)(2). 

38 FMSHRC Page 2100
Congress has established a scheme of “increasingly severe sanctions for increasingly 

serious violations or operator behavior.” Emery Mining Corp., 9 FMSHRC 1997, 2000 (Dec. 

1987) (quoting Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 828 (April 1981)). At the far 

end, those progressive sanctions apply to violations resulting from highest levels of negligence 

— that is, gross negligence or reckless disregard (unwarrantable failures) and violations that 

could contribute significantly and substantially to the likelihood of serious injuries (S&S 

violations). For unwarrantable failure violations, the progressive discipline culminates in a 

difficult to break chain of withdrawal orders under section 104(d), 30 U.S.C. § 814(d). For S&S 

violations, the progressive discipline culminates in a perhaps more difficult to break chain of 

withdrawal orders under section 104(e). Such violations carry a maximum civil penalty of 

slightly less than $70,000. See supra, slip op. at 9 n.16. Certainly, Congress was aware of the 

existing sanctions under the Mine Act in passing the MINER Act. 

Congress enacted the MINER Act in response to three tragic and highly publicized mine 

disasters at the Sago, Aracoma Alma, and Darby mines, respectively. S. Rep. No. 109-365, at 2 

(Dec. 6, 2006). Each of those events spotlighted the occurrence of particularly serious dangers 

and the inability of the miners to escape those dangers. 

After the Alma mine disaster, for example, four foremen pled guilty to criminal charges 

of not conducting escapeway drills. Massey bosses get probation on Aracoma charges, 

Charleston Gazette-Mail (Dec. 9, 2010), http://www.wvgazettemail.com/News/201012091056. 

The foremen knew that mandatory safety standards required the drills and knew that awareness 

of how to react to an emergency could spell the difference between life and death. Yet, they 

repeatedly did not conduct the drills. In enacting section 110(b)(2), Congress demonstrated that it 

would not tolerate an operator that knows of a violation reasonably expected to cause death or 

serious injury to repeatedly or recklessly ignore rather than eliminate the violation. 

The majority decision notes the lack of legislative history of the flagrant provision but 

suggests that Congress may have been looking at the fourth step of the Mathies test for S&S 

violations in defining flagrant violations. Slip op. at 7. Perhaps Congress is intimately familiar 

with Commission case law. However, given that the gravity standard in the definition of a 

flagrant violation is virtually identical to the definition of an imminent danger in the Mine Act 

itself, it seems strange to stretch for a comparison to Commission case law when a statutory 

provision is far closer in wording. The gravity portion of the definition of an imminent danger is 

“reasonably could be expected to cause death or serious physical harm.” 30 U.S.C. § 802(j). 

Section 110(b)(2) covers known violations that “reasonably could have been expected to cause, 

death or serious bodily injury.” 

The gravity aspect of an S&S violation does not meet the definition of a flagrant violation 

unless the gravity goes beyond the Mathies standard of reasonably likely to result in a 

reasonably serious injury and reaches the level of “reasonably expected to result in death or 

serious bodily injury.” In other words, every flagrant violation meets the gravity requirement for 

an S&S violation but not every S&S violation meets the gravity requirement for a flagrant 

violation. To intimate otherwise is error. There is a clear and distinct difference between S&S 

violations and flagrant violations regarding the necessary level of gravity. 

38 FMSHRC Page 2101
Further, ironically, if the supposition that Congress used the fourth step of the Mathies

test were correct, the dropping of the word “reasonably” from the definition of a flagrant 

violation before “serious bodily injury” could well be taken as demonstrating that the injury itself 

must be more severe than those qualifying for S&S. If one supposes use of a model, then 

deletion of a substantive word from the model would seem to be meaningful. In sum, I do not 

think it useful to misconceive the fourth step of Mathies as a model for the gravity element of a 

flagrant violation. 

In establishing a nearly four-fold higher maximum penalty, Congress dealt with two 

essential elements to the violation: gravity and culpability. As seen, with respect to gravity, the 

violation must be one that “substantially and proximately caused, or that could reasonably be 

expected to cause, death or serious bodily injury.” 

The section is more complex regarding culpability. The circumstances must violate “a 

mandatory safety standard.” The violation must be “known” to the operator. Finally, the operator 

must fail recklessly or repeatedly to make reasonable efforts to eliminate the known violation. I 

deal first with the requirement that the violation is “known” and then with circumstances 

constituting a “repeated” failure to eliminate a known violation. 

II. For Purposes of Section 110(b)(2), a Violation Is “Known” Only if the Operator Has

Actual Knowledge of the Violation. 

To be flagrant, a violation must be “known” by the operator. The law recognizes actual 

knowledge and constructive knowledge. In reaching his decision below, the Judge found the 

term “known” embraced both actual and constructive knowledge. American Coal Co., 35 

FMSHRC 2208, 2259-60 (July 2013) (ALJ). There are, of course, distinct differences between 

actual knowledge and constructive knowledge. Black’s Law Dictionary notes the distinction in 

defining actual knowledge as “direct and clear knowledge as distinguished from constructive 

knowledge.” Knowledge, Black’s Law Dictionary 1004 (10th ed. 2014) 

38 FMSHRC Page 2102
Constructive knowledge or notice is a principle applied in negligence cases5

 to permit a 

court to make a legal inference that an actor did not meet a legal standard of care.6

 Actual 

knowledge, on the other hand, is a factual inquiry to determine whether an actor knew of the 

5

 The Commission has repeatedly held that constructive knowledge, or a “knew or should 

have known” standard, is equal to a negligence standard. In Emery Mining, 9 FMSHRC at 1999, 

2005, for example, the Commission reversed a Judge’s finding of unwarrantable failure based on 

the Judge’s conclusion only that the operator’s safety personnel “should have known of the 

condition.” Similarly, Chairman Backley, writing for the Commission in Wyoming Fuel Co., 16 

FMSHRC 1618 (Aug. 1994), stated that “[u]se of a ‘knew or should have known’ test by itself 

would make unwarrantable failure indistinguishable from ordinary negligence.” Id. at 1628 

(quoting Virginia Crews Coal Co., 15 FMSHRC 2103, 2107 (Oct. 1993)). Consequently, while 

the Commission properly applies constructive knowledge in unwarrantable failure cases, the 

Commission has stated clearly that because constructive knowledge is indicative of only ordinary 

negligence, constructive knowledge, standing alone, is insufficient to meet unwarrantable 

failure’s extreme negligence standard. Commissioners Young and Cohen misapprehend the point 

of the preceding sentences. See slip op. at 21 n.27. The sentence immediately preceding the 

former sentence, for example, merely states the obviously correct proposition that the factor of 

constructive negligence by itself — that is, “standing alone” — is insufficient to meet the 

standards for an unwarrantable failure because the Commission has repeatedly required Judges to 

explicitly consider seven separate factors in determining the existence of an unwarrantable 

failure. Indeed, as stated earlier in this footnote, in the Emery case, the operator clearly was 

constructively negligent but the Commission reversed the Judge’s finding of an unwarrantable 

failure because the totality of conduct did not constitute an unwarrantable failure. 

The source of Commissioners Young and Cohen’s disagreement is further unclear given 

that the Secretary has twice argued that by showing only that an operator “knew or should have 

known” of a violation, based on Emery, a violation can constitute an unwarrantable failure, and 

the Commission has twice, clearly and forcefully, rejected that interpretation of Emery. Thus, 

when confronted in Virginia Crews and Wyoming Fuel with the argument that a violation was 

unwarrantable solely because the operator knew or should have known of the violation, “we 

reject[ed] such an interpretation of Emery” because that would “make unwarrantable failure 

indistinguishable from ordinary negligence.” Wyoming Fuel, 16 FMSHRC at 1628 (quoting and 

citing Virginia. Crews, 15 FMSHRC at 2107)). 

Of course, the important point — a point with respect to which Commissioners Cohen 

and Young do not express any disagreement — is that constructive knowledge is directed toward 

negligence. It is not directed to the “known” violation requirement focused upon by section 

110(b)(2). 

6

 For example, in the context of negligence actions against possessors of land, 

“[p]ossessors of land owe a duty to protect invitees from foreseeable harm.” Carrender v. 

Fitterer, 503 Pa. 178, 185, 469 A.2d 120, 123 (1983). A duty is only owed, however, when the 

possessor “knows or by the exercise of reasonable care would discover the condition, and should 

realize that it involves an unreasonable risk of harm to such invitee.” Restatement (Second) of 

Torts § 343(a). Where a possessor should discover a condition through the exercise of reasonable 

(continued...) 

38 FMSHRC Page 2103
required fact or knew of facts making it reasonable to infer knowledge of the facts. Thus, actual 

knowledge may be “express” in which the evidence definitively shows the actor knew the facts 

in issue or “implied” in which an adjudicator may draw an inference the actor knew of the 

disputed facts from facts of which the actor had express knowledge. Simply stated, one cannot 

avoid an obligation by closing his eyes to facts he sees.7 Sapp v. Warner, 105 Fla. 245, 255, 141 

So. 124, 127 (1932). 

I conclude that the knowledge requirement for a flagrant violation is actual knowledge. 

This conclusion necessarily follows from the background of the enactment of the provision, the 

ordinary meaning of the terms “flagrant” and “known,” and the section’s relationship to other 

sanctions in the Mine Act’s scheme of progressively severe sanctions. 

Congress passed the Act in direct response to Sago, Aracoma, and Darby. We also know 

that those disasters involved circumstances in which operators had actual knowledge of very 

dangerous circumstances arising from violations but, despite that knowledge, the operators took 

no timely action to eliminate the violations. To qualify for the extraordinary penalty, the 

violation must be “flagrant.” 

Webster’s Third New International Dictionary defines flagrant as “extremely, flauntingly, 

or purposefully conspicuous usu[ally] because of uncommon evil, unworthiness, unpleasantness, 

or truculence: glaringly evident.” Webster’s Third New Int’l Dictionary (Unabridged) 862-63 

(1993 ed.). The American Heritage Dictionary of the English Language defines flagrant as 

6

 (...continued) 

care, it has constructive notice of the condition and breached its standard of care. See Rojas v. 

Wal-Mart Stores, Inc., 857 F. Supp. 533, 538 (N.D. Tex. 1994) (“[E]ven without actual 

knowledge, Defendant Wal-Mart would be considered to have constructive knowledge of any 

premises defects or other dangerous conditions that a reasonably careful inspection would 

reveal.”); Reid v. Kohl’s Dep’t Stores, Inc., 545 F.3d 479, 481-82 (7th Cir. 2008) (“Where 

constructive knowledge is alleged, ‘[o]f critical importance is whether the substance that caused 

the accident was there a length of time so that in the exercise of ordinary care its presence should 

have been discovered.’”) (quoting Torrez v. TGI Friday’s, Inc., 509 F.3d 808, 811 (7th Cir. 

2007). 

7

 The difference between implied actual knowledge and constructive knowledge may be 

subtle. The notion of constructive knowledge comprehends the notion of a “legal” duty to make 

an inquiry. If an actor has a duty to undertake an inspection, for example, but fails to do so, the 

actor may have constructive knowledge of an event that he should have discovered by 

performing his duty. In such instance, the actor “should have known” certain facts but did not 

know those facts because of his failure to meet a legal duty of care. He was negligent, perhaps 

grossly or unwarrantably so. The notion of implied actual knowledge, on the other hand, is a 

factual construct based upon information of which the actor actually was aware. Thus, if an actor 

performing an inspection actually detects facts (former facts) that would have led a reasonable 

actor to learn of a specific problem (latter facts), a court may infer actual knowledge of the latter 

facts due to the actor’s express knowledge of the former facts. Constructive knowledge springs 

from a legal duty to discover certain information whereas implied (or inferred) actual knowledge 

is a factual inference drawn from facts of which a person actually was aware. 

38 FMSHRC Page 2104
“conspicuously bad, offensive, or reprehensible: a flagrant miscarriage of justice.” American 

Heritage Dictionary of the English Language 667 (4th ed. 2009). Webster’s Collegiate 

Dictionary defines flagrant as “conspicuously offensive esp[ecially] so obviously inconsistent 

with what is right or proper as to appear to be a flouting of law or morality.” Webster’s 

Collegiate Dictionary 441 (10th ed. 1999). Black’s Law Dictionary uses the term “flagrant” to 

define “egregious”—that is, “egregious” means “extremely or remarkably bad; flagrant.” 

Egregious, Black’s Law Dictionary at 629. Indeed, in Black’s, “flagrant” is a sixth meaning of 

“gross”—that is, “gross” means “[b]eyond all reasonable measure; flagrant.” Gross, Black’s Law 

Dictionary at 818. Administrative Law Judge Paez correctly noted the importance of Congress’ 

use of the term “flagrant” in Stillhouse Mining, LLC, 33 FMSHRC 778 (Mar. 2011) (ALJ), 

finding “[t]he only thing that is apparent from the [limited] legislative history is that Congress 

and the President intended flagrant violations to target particularly severe violations of the mine 

safety and health regulations in order to promote regulatory compliance and miner safety.” Id. at 

801. 

Congress’ institution of a new “flagrant” violation to identify especially egregious 

conduct and its nearly quadrupling the maximum penalty for flagrant violations connotes an 

intention by Congress to penalize severely any violations where operator conduct goes 

substantially beyond violations previously established in the Mine Act. A “flagrant” violation, 

therefore, goes beyond the level of extreme negligence or reckless disregard already dealt with as 

unwarrantable failures and the requirement for a reasonable expectation of death or serious 

bodily injury essentially reaches the gravity level necessary for an imminent danger. For 

example, in upholding an administrative decision finding a “flagrant’ violation of another federal 

statute, the Ninth Circuit emphasized, “the ruling was based on the [Judicial Officer]’s finding 

that Potato Sales’s conduct was intentional, knowing, and deliberate.” Potato Sales Co. v. Dep’t 

of Agric., 92 F.3d 800, 805 (9th Cir. 1996). 

Recognizing Congress’ targeted aim at especially egregious conduct, we turn to the 

requirement that the violation must be “known.” The dictionary definitions of “know” is “1. to 

apprehend immediately with the mind or with the senses: perceive directly: have direct 

unambiguous cognition of . . . (2) to have perception, cognition, or understanding of esp[ecially] 

to an extensive or complete extent.” Webster’s Third Int’l at 1252. In turn, “known” is the past 

participle of the word “know.” Something is known when it is “familiar or recognized.” Id. at 

1253. 

Mindful of the meaning of flagrant and known, it is then necessary to consider the terms 

in the context of their function within the structure of the Mine Act. Prior to the MINER Act, the 

Mine Act recognized and penalized the most serious forms of violations or negligence (excepting 

criminal acts) as an S&S and/or “unwarrantable failure” violation. Under Commission cases, 

unwarrantable failures are characterized by “reckless disregard,” “intentional misconduct,” 

“indifference,” or a “serious lack of reasonable care.” Emery Mining Corp., 9 FMSHRC at 

2003–04; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991). In Buck Creek 

38 FMSHRC Page 2105
Coal, Inc., 52 F.3d 133 (7th Cir. 1995), the Seventh Circuit endorsed the standard established in 

Emery Mining: 

An unwarrantable failure may be established “by showing that a 

violative condition or practice was not corrected prior to the 

issuance of a citation or order because of ‘indifference, willful 

intent or serious lack of reasonable care.’” [Emery Mining, 9 

FMSHRC] at 2003. It has also been defined as an “intentional or

knowing failure to comply or reckless disregard for the health and 

safety of miners.” Secretary of Labor v. Rochester & Pittsburgh 

Coal Co., 13 FMSHRC 189, 194 (1991). See also Secretary of 

Labor v. Virginia Crews Coal Co., 15 FMSHRC 2103, 2107 

(1993). 

52 F.3d at 136. 

Thus, the Commission emphasizes that an unwarrantable failure exists when a violative 

condition results from a reckless disregard for safety. Because the basis of an unwarrantable 

violation is gross neglect or reckless disregard, MSHA issues unwarrantable failure citations on 

the legal ground of extreme negligence. 

Had Congress wished, therefore, to base a flagrant violation upon reckless disregard or 

gross neglect — that is, a negligence standard to which constructive knowledge is applicable, the 

Mine Act provided ready terminology. Congress could have defined a flagrant violation as a 

reckless or repeated failure to make reasonable efforts to eliminate an unwarrantable failure that 

substantially and proximately caused, or reasonably could have been expected to cause, death or 

serious bodily injury. It did not do so. Instead, by using a “known” violation, Congress focused 

upon fact-based knowledge rather than upon negligence-based imputed knowledge. 

I am unaware of any case in which the Commission has addressed expressly the 

distinction between actual knowledge and constructive knowledge. Of course, the Commission 

has reached decisions in which a section of the Mine Act deals with actions taken “knowingly.” 

Those cases sometimes use the terminology “knew or should have known.” However, I do not 

find those cases controlling as they apply to a different subsection using different terminology, 

enacted at a different time for a different purpose. The term “knowingly” in section 110 applies 

to violations of orders issued under the Mine Act, a false statement made in documents required 

under the Mine Act, or sales of non-compliant equipment as if it were compliant. 30 U.S.C. § 

820(c), (f), (h). Obviously, these are all very different circumstances from violating a mandatory 

safety standard during the course of mining operations. 

Even identical words within the same statute may have different meanings when they 

serve different purposes. Verizon California, Inc. v. FCC, 555 F.3d 270 (D.C. Cir. 2009). 

38 FMSHRC Page 2106
In Verizon California, the District of Columbia Circuit stated: 

[b]ecause of that possibility — different contexts dictating

different interpretations — courts addressing the meaning of a term

in one context commonly refrain from any declaration as to its

meaning elsewhere in the same statute.

Id. at 276; see also Weaver v. USIA, 87 F.3d 1429, 1437 (D.C. Cir. 1996) (“Identical words may 

have different meanings where ‘the subject-matter to which the words refer is not the same in the 

several places where they are used, or the conditions are different, or the scope of the legislative 

power exercised in one case is broader than that exercised in another’”) (quoting Atlantic

Cleaners & Dyers, Inc. v. United States, 286 U.S. 427, 433 (1932)); Dewsnup v. Timm, 502 U.S. 

410, 416 (1992). 

Here, as noted above, different Congresses enacted different provisions thirty years apart 

using different words in different contexts to address different problems. Therefore, the word 

“knowingly” used in different contexts does not guide interpretation of “known” in section 

110(b)(2). 

Moreover, even were we to look at “knowingly” cases, many of those cases apply an 

actual knowledge standard. The Commission, in fact, has written of the “knowingly” standard as 

requiring that the operator “had reason to know” of the violation. Whether an actor “has reason 

to know” is a factual and legally distinct (if easily misunderstood) concept from whether an actor 

“should have known.” “Had reason to know” involves knowledge of facts not a negligence duty 

to take specific actions. Instead, it asks whether the actor knew of sufficient facts from which a 

reasonable actor would then determine the actual facts, not whether an actor would take action in 

the first instance without knowing facts leading to a possible inference that other facts existed. 

In Richardson, 3 FMSHRC 8 (Jan. 1981), aff’d on other grounds, 689 F.2d 632 (6th Cir. 

1982), cert. denied, 461 U.S. 928 (1983)), the Commission defined the term “knowingly” as 

follows: 

“[k]nowingly,” as used in the Act, does not have any meaning of

bad faith or evil purpose or criminal intent. Its meaning is rather 

that used in contract law, where it means knowing or having reason 

to know. A person has reason to know when he has such 

information as would lead a person exercising reasonable care to 

acquire knowledge of the fact in question or to infer its existence. 

3 FMSHRC at 16 (quoting United States v. Sweet Briar, Inc., 92 F. Supp. 777, 780 (D.S.C. 

1950)). 

The Commission, therefore, stated that the meaning of “knowingly” is “that used in 

contract law.” Id. Contract law recognizes that “reason to know” and “should know” are distinct 

legal concepts. The Second Restatement of Contracts states: “Reason to know is to be 

distinguished from knowledge and from ‘should know.’” Restatement (Second) of Contracts § 

38 FMSHRC Page 2107
19 cmt. b (Am. Law Inst. 1981). The Second Restatement of Contracts cites favorably to the 

Second Restatements of Torts and Agency, which also recognize the distinction between “should 

know” and “reason to know.” Id. The Second Restatement of Torts makes clear that the two 

concepts should not be conflated: 

“reason to know” implies no duty of knowledge on the part of the 

actor whereas “should know” implies that the actor owes another 

the duty of ascertaining the fact in question. “Reason to know” 

means that the actor has knowledge of facts from which a 

reasonable man of ordinary intelligence or one of the superior 

intelligence of the actor would either infer the existence of the fact 

in question or would regard its existence as so highly probable that 

his conduct would be predicated upon the assumption that the fact 

did exist. “Should know” indicates that the actor is under a duty to 

another to use reasonable diligence to ascertain the existence or 

non-existence of the fact in question and that he would ascertain 

the existence thereof in the proper performance of that duty. 

Restatement (Second) of Torts § 12, cmt. a (Am. Law Inst. 1965). 

Thus, the question in this case is not what AmCoal “should have known.” The question is 

whether AmCoal knew of the violation, or whether it knew of sufficient facts from which it is 

reasonable to infer knowledge to AmCoal. 

In this case, the Judge found the violation was known on the basis that AmCoal “should 

have known about” the accumulations. 35 FMSHRC 2265; Am. Ex. 21, at 10. This is a lesser 

negligence standard. See, e.g., United States v. Kalu, 791 F.3d 1194, 1208 (10th Cir. 2015) 

(stating that “should have known” is “equivalent to a negligence standard” rather than 

knowledge or reckless disregard); United States v. Ladish Malting Co., 135 F.3d 484, 488 (7th 

Cir. 1998) (“No case of which we are aware treats what a person ‘should have known’ as 

knowledge or wilfulness. Unless knowledge, recklessness, criminal negligence, and civil 

negligence are to merge into a single mental state, it is essential to preserve the difference.”); 30 

C.F.R. § 100.3, tbl.X (using “should have known” standard in defining low, moderate, and high

negligence). When a statute requires actual knowledge, a finding based on constructive

knowledge must be set aside. Radiology Center, S.C. v. Stifel, Nicolaus & Co., 919 F.2d. 1216,

1222-23 (7th Cir. 1990).

III. A Flagrant Designation Requires Proof of the Reckless or Repeated Failure to

Eliminate the Specific Violation Charged — Prior Violations Are Not Relevant.

A. Section 110(b)(2) Has a Plain and Unique Meaning.

Section 110(b)(2) plainly refers to a single, specific violation—“a known violation.” This 

is a reference is to the discrete violation that is allegedly flagrant rather than a group of violations 

leading up to making a discrete violation being denominated as flagrant due to prior non-flagrant 

violations. To commit a “flagrant” violation, the operator, recklessly or repeatedly, must fail 

38 FMSHRC Page 2108
make reasonable efforts to eliminate that cited and known violation. Moreover, the definition of 

“flagrant” and the uniqueness of a flagrant violation support its application based only on a 

repeated failure to eliminate a reasonable expectation of death or serious injury resulting from 

the specifically charged violation. 

 As described above, prior to the MINER Act, the Mine Act provided a remedy and severe 

sanction for repeated significant and substantial (“S&S”) violations. Congress enacted section 

104(e) to “provide an effective enforcement tool” against repeat violators who are undeterred by 

MSHA’s standard enforcement scheme, which consists of citations and orders. S. Conf. Rep. No. 

95-181, at 32 (1977), reprinted in Senate Subcomm. on Labor, Comm. on Human Res., 95th 

Cong., Legislative History of the Federal Mine Safety and Health Act of 1977, at 620 (1978). 

There is no mention in the legislative history of the MINER Act of supplementing the pattern of 

violations section 104(e) or dissatisfaction with its usage or non-usage. There is no basis to 

believe Congress was enacting a severe penalty aimed at the very same purpose as section 

104(e). 

Under the Commission’s reasoning in Wolf Run, a violator not only would face 

withdrawal orders for unwarrantable failures or a pattern of S&S violations but also could face a 

future of quadruple-fold maximum penalty for every subsequent violation reaching the requisite 

level of gravity. It is simply impossible to reconcile such a result with the absence of any 

mention of sections 104(d) and 104(e) from the legislative history of the flagrant penalty 

provisions, any mention of such an ongoing sanction, and, in fact, Congress’ statement elsewhere 

that safety penalties should not put operators and miners out of work. 

Clearly, a uniquely violative circumstance is at the heart of a “flagrant” violation and 

an unprecedented civil penalty. That circumstance is failing repeatedly to correct a specific 

violation of which the operator has knowledge and is so serious that it creates a reasonable 

expectation of death or serious injury. 

Administrative Law Judge Feldman persuasively explained in Conshor Mining, LLC, 33 

FMSHRC 2917, 2927-28 (Nov. 2011) (ALJ), that “the plain statutory language in section 

110(b)(2) with respect to ‘repeated conduct’ refers to a single known violation, rather than a 

series of recurring violations.” Administrative Law Judge Barbour agreed with Judge Feldman’s 

interpretation stating “the Secretary must show that Wolf Run repeatedly failed to make 

reasonable efforts to eliminate the violation of section 75.400 charged in the order.” Wolf Run 

Mining Co., 34 FMSHRC 337, 346 (Jan. 2012) (ALJ), rev’d, 35 FMSHRC 536 (Mar. 2013). 

I would accept and apply their well-reasoned decisions. 

B. The Commission’s Wolf Run Decision Misinterprets Section 110(b)(2). 

 In Wolf Run, the Commission found it would allow use of prior non-flagrant violations to 

prove a flagrant violation even though knowledge of the violation and reasonable expectation of 

death were not necessary to prove such prior non-flagrant violations. Such an interpretation does 

comport with the words or purpose of section 110(b)(2) and is not reasonable. 

 

38 FMSHRC Page 2109
1. The Commission’s Reasons for Its Reading Are Insubstantial.

The arguments offered by the Commission in support of its interpretation in Wolf Run 

accentuate its erroneousness. The Commission first asserted in Wolf Run that unless prior nonflagrant violations may prove a repeated failure to remedy a known violation, section 110(b)(2) 

“would be effectively indistinguishable from the failure to abate provisions of section 104(b) of 

the Mine Act.” 35 FMSHRC at 542. That is obviously incorrect. Section 104(b) deals 

exclusively with the failure to abate a condition identified in a citation. Section 110(b)(2) is not 

aimed at enforcing abatement orders. Instead, section 110(b)(2) authorizes imposition of a severe 

penalty upon an operator that fails to remedy a known violation that is reasonably expected to 

cause death or serious injury notwithstanding the absence of a citation. The sections apply to 

completely different situations. 

The clear purpose of section 110(b)(2) is to incentivize operators strongly to eliminate 

known violations reasonably expected to cause serious injury without waiting for an inspector to 

discover the violative condition. Far from being duplicative of section 104(b), section 110(b)(2) 

plugs a perceived hole in mine safety by imposing a very stiff penalty upon an operator that 

repeatedly fails to remedy a known and very seriously dangerous violation despite the absence of 

a citation setting an abatement period.8 Operators now run a very significant financial risk if they 

wait for an inspector to catch a very dangerous known violation before eliminating it. 

The Commission also erroneously asserted that section 110(b)(2) would be duplicative of 

section 110(b)(1). Id. at 542. The Commission again failed to recognize that section 110(b)(1) 

deals with failures to correct violations for which citations have been issued. Thus, the 

Commission missed a central point of section 110(b)(2) — requiring operators to correct known 

very serious violations without the prior presence of an inspector. It is not acceptable for 

operators to allow known violations that are reasonably expected to cause death or serious injury 

to persist. Section 110(b)(2) addresses that problem — a problem not addressed by section 

104(b) or section 110(b)(1).9

The Commission’s last argument in Wolf Run is that the term “repeated” must extend to a 

history of prior violations because, if the term “repeated” does not include a history of prior 

violations then, “this might result in the elimination of any meaningful distinction between a 

‘reckless’ and a ‘repeated’ flagrant violation.” 35 FMSHRC at 543. Surely, the Commission does 

not mean that it cannot see a distinction between repeated failures to remedy and reckless 

failures to remedy. Once it does so, the makeweight argument collapses. Instead, “reckless” and 

“repeated” have distinctly different meanings and create different bases upon which the 

8

 Additionally, section 104(b) provides for withdrawal orders whereas section 110(b)(2) 

provides for monetary penalties. 

9

 In the preamble to the final flagrant violation rule, MSHA distinguished subsection 

110(b)(1) from subsection 110(b)(2) stating, “[S]ection 110(b)(1) specifically applies to failure 

to correct a ‘violation for which a citation has been issued.’ In contrast, section 110(b)(2) applies 

to failure to eliminate a ‘known violation,’ and does not specify that a ‘known violation’ must be 

a violation which has been cited.” 72 Fed. Reg. 13,592, 13,623 (Mar. 22, 2007). 

38 FMSHRC Page 2110
Secretary can establish a flagrant violation. Thus, the repeated failure is not rendered “mere 

surplusage,” as the Commission states, simply because it is restricted to the cited violation. Id.

Finally, the Wolf Run Commission stated that Judges Barbour and Feldman’s reading of

the statute ran “counter to the rest of the Act’s graduated enforcement scheme.” Id. at 541. In 

doing so, the Commission “retreat[ed] to that last redoubt of losing causes, the proposition that 

the statute at hand should be liberally construed to achieve its purposes.” Director, Office of 

Workers’ Comp. Progs., Dep’t of Labor v. Newport News Shipbuilding & Dry Dock Co., 514 

U.S. 122, 135-36 (1995) (citation omitted).10 The Commission reasoned that, because the 

Secretary could consider past violations with respect to unwarrantable failure violations, he must 

be able to do so under the flagrant provision. 35 FMSHRC at 542. Invocation of an Act’s 

purpose “may be invoked, in case of ambiguity, to find present elements that are essential to the 

operation of a legislative scheme; but it does not add features that will achieve the statutory 

‘purposes’ more effectively.” 514 U.S. at 135-36 (emphasis added). This is because “[e]very 

statute purposes, not only to achieve certain ends, but also to achieve them by particular means.” 

Id. at 136. 

Imposition of an especially severe flagrant violation penalty for a repeated or reckless 

failure to correct a known violation reasonably expected to cause death or serious bodily injury is 

the essence of the Mine Act’s scheme of increasingly enhanced enforcement. A Commission 

desire to provide the Secretary another avenue to impose flagrant penalties is not a reason to find 

two meanings where there is only one. The plain wording of section 110(b)(2), its purpose, its 

essential elements, and the failings in the Commission’s analysis wholly undercut the 

Commission’s interpretation in Wolf Run. 

2. Wolf Run Presents Due Process Concerns. 

 Apart from the Commission’s misconstruction of section 110(b)(2), there is another 

perplexing problem with the Wolf Run decision and with the decision in this case. The 

Commission acknowledged that, under its interpretation, operators could not know the number, 

 

 10 Commissioner Cohen responds with vigor to this expression by the United States 

Supreme Court. See slip op. at 29 n.5 (Cohen, Comm’r, concurring). It is, of course, simply a 

colorful way of saying that Judges and Commissioners must apply the law as written rather than 

indulge their own predilections toward the law. Of course, we interpret the Mine Act mindful of 

its fundamental purpose. However, our duty is a judicial one to apply the law as written. We are 

not empowered to make policy that we might desire under the guise of interpretation. My 

colleague casts the Mine Act so liberally as to make meetings with MSHA a factor in 

determining whether an operator has failed repeatedly to eliminate “a known violation.” See slip 

op. at 16. Indeed, he concludes his concurrence by asserting that the issue is whether the 

evidence “supports a showing of a repeated failure to make reasonable efforts to eliminate the 

problem.” Slip op. at 31 (emphasis added). At the end, therefore, he seems to think section 

110(b)(2) is aimed at curing a repeated “problem” rather than at very severely penalizing the 

repetition of “a known violation.” 

38 FMSHRC Page 2111
type, or similarity of prior violations that would be necessary for prior violations to sustain a 

flagrant penalty. The Commission made this acknowledgement, saying, 

One might reasonably argue about the number of prior violations

that should be necessary, or how similar those prior violations

should be before conduct is appropriately considered a “repeated 

failure” under 110(b)(2), but an interpretation that precludes 

consideration of any prior violations runs counter to the natural 

meaning of the language. 

35 FMSHRC at 541. 

Having acknowledged the patent ambiguity in its construction of statutory language 

providing for hundreds of thousands of dollars of penalties, the Commission wholly ignores the 

obvious issue of whether such an incomprehensible reading of the Mine Act meets basic 

principles of fair notice and due process. It is elementary that due process requires that a party 

must receive fair notice before being deprived of property. Mullane v. Central Hanover Bank & 

Trust Co., 339 U.S. 306, 314 (1950). Civil penalties are “quasi-criminal” in nature. 

Consequently, parties subject to administrative penalties and especially penalties running into the 

hundreds of thousands of dollars are entitled to clear notice of the conduct for which such 

penalties may be assessed. United States v. Hoechst Celanese Corp., 128 F.3d 216, 224 (4th Cir. 

1997); First Am. Bank of Virginia v. Dole, 763 F.2d 644, 651 n.6 (4th Cir. 1985). As the Fifth 

Circuit stated in its oft-quoted decision in Diamond Roofing Co. v. OSHRC, 528 F.2d 645, 649 

(5th Cir. 1976), 

[S]tatutes and regulations which allow monetary penalties against

those who violate them . . . must give . . . fair warning of the

conduct [they] prohibit[] or require[], and [they] must provide a

reasonably clear standard of culpability to circumscribe the

discretion of the enforcing authority and its agents.

The Fifth Circuit’s reference to a “reasonably clear standard’ is often encapsulated in 

another phrase used by the courts — namely, that the regulation must provide notice of the basis 

for liability with “ascertainable certainty.” Id.; see also, e.g., Trinity Broadcasting of Florida, 

Inc. v. FCC, 211 F.3d 618, 628 (D.C. Cir. 2000); Geo. Pac. Corp. v. OSHRC, 25 F.3d 999, 1005 

(11th Cir. 1994); Dravo Corp. v. OSHRC, 613 F.2d 1227, 1232-33 (3rd Cir. 1980). 

3. The Current Decisions

Having read the separate Chairman Jordan/Commissioner Nakamura and Commissioners 

Cohen/Young opinions, I have no idea how previous violations can or should be used to 

determine that a current known violation reasonably expected to cause death or serious bodily 

injury “repeats” a prior violation. This ambiguity is troubling in light of the obvious errors in 

Wolf Run. 

38 FMSHRC Page 2112
 Chairman Jordan and Commissioner Nakamura do not address the problem because they 

find that the violation is flagrant under the narrow interpretation of the statute.11 If the Judge 

disagrees, he is on his own with respect to application of the broad standard, even though he 

already provided his opinion of how to apply the misguided Wolf Run decision. 

 Commissioners Cohen and Young deal with the issue of use of previous violations. 

However, I cannot find any meaningful suggested guidance for Administrative Law Judges in 

their minority opinion. 

 Commissioners Cohen and Young say “the language of the statute and our decision in 

Wolf Run support the reasoned consideration of an operator’s history of substantially similar 

violations, where they may be shown to be relevant to the issues arising in the repeated failure 

context.” Slip op. at 29. Of course, as we have seen, the Wolf Run decision was based upon a 

number of remarkable misinterpretations of the Mine Act. For present purposes, however, the 

important point is that the foregoing phrases are clichés typically used by lawyers when they 

have nothing concrete to offer such as “substantially similar” violations, and “where they may be 

shown to be relevant,” and “to the issues arising in the repeated failure context.” I do not see how 

that sentence offers any meaningful guidance to Administrative Law Judges. 

 Moreover, I do not see how such suggestions comply with fundamental due process 

standards of notice to operators of the standard for a flagrant violation. Section 110(b)(2) 

establishes a standard for civil penalties into the hundreds of thousands of dollars. We have the 

same duty as any federal agency to provide fair notice of scope of the violation that may result in 

such penalties. 

 Even were we to allow previous violations to be used as my colleagues wish, I simply do 

not see how the Commission could find that a violation “repeats” a failure to eliminate “a known 

violation that . . . could have been expected to cause, death or serious bodily injury” unless that 

prior violation was “a known violation . . . that could have been expected to cause, death or 

 

 11 Because we are all human, such uncertainty unintentionally creates an insidious danger 

that I hesitate to identify but, in this real world, must acknowledge. A Judge faced with a difficult 

decision on knowledge of the charged violation under the “narrow” interpretation but complete 

uncertainty how to deal with the nonexistent or impossible to fathom standard for the “broad” 

interpretation might be pushed imperceptibly and even unknowingly toward a flagrant finding 

under the narrow interpretation thereby avoiding grappling with the broad interpretation. 

38 FMSHRC Page 2113
serious bodily injury.”12 A new violation could only “repeat” a prior violation if such prior 

violation and the new violation share the same fundamental elements. Here, that means that in 

the prior violation the operator (1) failed to eliminate a known violation that (2) could be 

reasonably expected to cause death or serious injury.13 The difficulty for my colleagues seems to 

be that they strongly desire to allow use of prior violations, but they realize the vast majority of 

prior violations do not demonstrate either that the operator had knowledge of the violation or that 

the prior violation created a reasonable expectation of death or serious bodily injury.14 

12 Commissioner Cohen, joined by Commissioner Young, claims that “repeated failure” 

modifies “to make reasonable efforts to eliminate.” See slip op. at 29 n.6. This limited parsing of 

the statutory definition of “flagrant” ignores the critical terminology of the statute by 

disregarding that the entirety of the key phrasing is “repeated failure to make reasonable efforts 

to eliminate a known violation of a mandatory health or safety standard.” (emphases added). A 

key issue of section 110(b)(2) is this: What must the operator fail to make reasonable efforts to 

eliminate? There is one, and only one, answer to that question. The statute demands the failure to 

make reasonable efforts to eliminate “a known violation.” “A known violation” is the direct 

object of the infinitive phrase “to eliminate,” which itself modifies “efforts.” The Act does not 

require efforts to eliminate bad management or to encourage “better practices” (whatever that 

means). Identifying actions such as “bad management” and an absence of “better practices” as 

demonstrating a preceding and repeated failure to make reasonable efforts to eliminate a known 

violation demonstrates compellingly the absence of any knowable or reasonable standard, let 

alone a standard for imposing hundreds of thousands of dollars in civil penalties, under the 

Commission’s Wolf Run decision or Commissioner Cohen’s opinion. Indeed, it appears use of 

the actual statutory language is so foreign that even in the last sentence of the footnote, they use 

the term “violative conditions” instead of “a known violation.”

13 The term “a known violation” must mean that the operator had knowledge of the 

specific cited condition, not that it generally knows various kinds of activities constitute 

violations. For example, operators “know” an accumulation of loose coal and coal dust 

constitutes a violation. It would be foolish to assert that an operator who commits a number of 

violations of 30 C.F.R. § 75.400 could then be on the hook for every subsequent violation as a 

“flagrant” violation because it “knows” accumulations of coal dust violate a mandatory safety 

standard. 

14 My colleagues correctly point out that the operator had a very high number of 

violations of section 75.400 during the two years preceding the flagrant citations. No one can 

defend or excuse such violations, especially in a high methane mine. At the same time, it is 

notable that, according to MSHA’s website, in the calendar years 2006 and 2007 MSHA issued 

15,301 citations to underground coal mines for violations of section 75.400. MSHA, Most 

Frequently Cited Standards by Mine Type, http://arlweb.msha.gov/stats/top20viols/ 

top20home.asp (last visited Aug. 30, 2016). Further, the operator’s mine is on a frequent 

inspection schedule with inspectors present virtually every day. Finally, my colleagues state that 

the mine has “a complex system of conveyor belts transports coal for many miles from mine face 

to portal.” Slip op. at 2. Of course, miles of belt lines with multiple exchange points create a 

particular danger of coal accumulations. None of this excuses any one violation, a large number 

of violations, or any inattention to safety, and I do not draw any such conclusion. The point is 

(continued...) 

38 FMSHRC Page 2114
Inspectors may be, and often are, the first persons to find a violation. The occurrence of a 

prior violation, standing alone, does not demonstrate that the prior violation was “known” by the 

operator. Indeed, even with respect to unwarrantable failures, Judges must evaluate and weigh 

seven distinct attributes, only one of which is knowledge. Therefore, although knowledge of the 

violation is a necessary element of proof of a flagrant violation, knowledge is rarely, if ever, an 

essential element of non-flagrant citations.15

Further, without rules for, or any understanding of, the kinds of prior violations that may 

be considered or what number are necessary, the Commission’s decisions create an unknowable, 

unworkable, abusive, and purely subjective standard for the issuance of penalties in the hundreds 

of thousands of dollars. We see that problem at work in this case. 

It seems to me the inability to explain how an interpretation should be applied should be a 

hint that the interpretation is incorrect. In any event, I conclude that Wolf Run was decided 

incorrectly and that the repeated element of a flagrant violation means situations in which an 

operator repeatedly allows a known violation to sit unabated despite “repeated” awareness of the 

violation. 

Conclusion 

The Commission has stated that “a judge’s factual findings are often colored by the legal 

standard applied,” and in such a case, remand for reconsideration of factual findings under the 

correct standard is appropriate. Dolan v. F & E Erection Co., 22 FMSHRC 171, 180 (Feb. 2000). 

I agree. Accordingly, I would vacate the Judge’s decision and remand the case for a 

determination of whether AmCoal knew or had a fact-based reason to know of the violation, not 

whether it should have known. 

In remanding, I find that the Judge failed to address much of the record evidence that 

would detract from his erroneous finding of knowledge and that the Judge misunderstood the 

record evidence regarding the stoppings. The Judge should consider all of the evidence, even that 

which conflicts with his original conclusion. Cf. Universal Camera Corp. v. NLRB, 340 U.S. 

474, 488 (1951) (“The substantiality of evidence must take into account whatever in the record 

fairly detracts from its weight.”); American Wrecking Corp. v. Sec’y of Labor, 351 F.3d 1254, 

1261 (D.C. Cir. 2003) (“The substantial evidence rule requires that the [Occupational Safety and 

14 (...continued) 

that the recitation of one raw number does not constitute a judicious review of performance. 

Such review would require a detailed analysis of all factors bearing upon the number of 

violations in a particular setting. 

15 Similarly, as noted, the culpability language of section 110(b)(2) does not track the 

language of the Commission’s S&S decisions but instead tracks the definition of an imminent 

danger — that is, a violation that is “reasonably expected” to cause death or serious physical 

harm. An S&S violation may exist without a finding of a “reasonable expectation” of death or 

serious physical harm. Therefore, standing alone, a prior S&S violation does not prove any 

element of a flagrant violation. 

38 FMSHRC Page 2115
Health Review] Commission reasonably consider material evidence on both sides, as evidence 

that is substantial when viewed in isolation may become insubstantial when contradictory 

evidence is taken into account.”). 

Although I disagree with the Commission’s decision in Wolf Run, I concur with the 

majority that the judge properly found that Order No. 7490584 was flagrant. Regarding Order 

No. 7490599, I would vacate and remand the flagrant and gravity determinations for the Judge to 

reconsider (1) whether the violation was “known” under the correct legal standard, (2) whether 

the accumulations could be reasonably expected to result in serious bodily injury, and (3) the 

operator’s level of negligence in consideration of all of the facts. I would not permit the Judge to 

take a history of prior violations into account. 

/s/ William I. Althen 

William I. Althen, Commissioner 

38 FMSHRC Page 2116
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710

August 30, 2016 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) Docket Nos. WEST 2012-760-M 

 WEST 2012-986-M 

v. 

HECLA LIMITED 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) Docket No. WEST 2014-591-M 

v. 

DOUG BAYER, employed by 

 HECLA LIMITED 

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

DECISION 

BY: Jordan, Chairman; Cohen and Nakamura, Commissioners 

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

30 U.S.C. § 801 et seq. (2012) (“Mine Act” or “Act”). They concern an order that was issued 

by the Department of Labor’s Mine Safety and Health Administration (“MSHA”) to Hecla 

Limited, pursuant to section 104(d)(1) of the Act, 30 U.S.C. § 814(d)(1). In that order, MSHA 

alleged that Hecla had failed to examine and test for loose ground1 as required by the safety 

standard at 30 C.F.R. § 57.3401.2

1

 The term “loose ground” is defined as “fragmented or weak rock in which underground 

openings cannot be held open unless artificially supported, as with timber sets.” Am. Geological 

Institute, Dictionary of Mining, Mineral, and Related Terms 320 (1997). In this case, it generally 

means material in the roof (back), face, or ribs that is not rigidly fastened or securely attached 

and thus presents some danger of falling. See Amax Chem. Co., 8 FMSHRC 1146, 1148 (Aug. 

1986). 

2

 Section 57.3401 states that “[a]ppropriate supervisors or other designated persons shall 

examine and, where applicable, test ground conditions in areas where work is to be performed, 

prior to work commencing, after blasting, and as ground conditions warrant during the work 

shift.” 30 C.F.R. § 57.3401. 

38 FMSHRC Page 2117
MSHA designated the violation of the standard as “flagrant” pursuant to section 

110(b)(2) of the Mine Act, 30 U.S.C. § 820(b)(2), and proposed that Hecla pay a civil penalty of 

$159,100. MSHA also proposed that Doug Bayer, the mine superintendent, personally pay a civil 

penalty of $4,500 pursuant to section 110(c) of the Mine Act.3

 

Hecla and Bayer contested the order and the proposed civil penalties before a 

Commission Administrative Law Judge. After a hearing on the merits, the Judge vacated the 

order; he concluded that Hecla had performed an examination as required by section 57.3401. 37 

FMSHRC 877, 889-90 (April 2015) (ALJ). The Secretary of Labor filed a petition for review of 

the Judge’s decision, which we granted.4

 

For the reasons that follow, we hold that the order must be vacated. Although we hold 

that the Secretary can reasonably construe the examination and testing requirement in section 

57.3401 to require more extensive testing in certain situations, we conclude Hecla did not have 

fair notice of this interpretation. 

I. 

Factual and Procedural Background 

Hecla operates the Lucky Friday Mine, a silver, lead, and zinc mine located in northern 

Idaho. On April 15, 2011, a large fall of ground occurred in an active mining area known as the 

15 Stope. A “stope” is where the mining of ore takes place. Larry Marek, a miner, was fatally 

injured by the ground fall. 

Hecla mined in the 15 Stope using an unusual method known as underhand cut-and-fill 

mining. Under this method, the ultimate trajectory of mining proceeds downward. Mining begins 

at the “slot,” which is the access point of the stope. Cuts are taken simultaneously to the east and 

to the west of the slot.5

 After a cut is complete and before the next cut is mined, the cut is 

3

 Section 110(c) provides that “any director, officer, or agent of [a] corporation who 

knowingly authorized, ordered, or carried out [a] violation” shall be subject to a civil penalty 

fine. 30 U.S.C. § 820(c). 

4

 As noted infra, the Judge’s decision also concerned a citation issued to Hecla for a 

violation, arising out of the same fatal accident, of 30 C.F.R. § 57.3360, which requires ground 

support to be designed, installed, and maintained to control the ground in places where miners 

work or travel. The Judge concluded that Hecla violated the standard, the violation was S&S, and 

the violation was the result of an unwarrantable failure to comply with the standard. 37 

FMSHRC at 887-88. The Judge assessed a $180,000 penalty under the flagrant violation 

provision in section 110(b) of the Mine Act after concluding that Hecla was reckless in its failure 

to make reasonable efforts to eliminate a known violation. Id. at 894-95. Hecla did not appeal 

any of the Judge’s findings with respect to this separate citation and, accordingly, it is not before 

the Commission. 

5

 One “slot” is used to access a “sublevel,” which consists of five cuts totaling 50 vertical 

feet. Jt. Stips. nos. 27-28. 

38 FMSHRC Page 2118
backfilled. This is accomplished by installing bolts vertically in the mined out area and filling 

that area with a backfill paste.6

 The bolts provide structure for and reinforce the paste fill. After 

the backfill cures, the miners begin the next cut. That cut occurs 10 feet below the last cut; the 

floor of the previous cut becomes the roof or “back” of the subsequent cut. 

The ground fall that is the subject of this proceeding occurred on the western side of the 

third cut of the sublevel. On the first cut of the sublevel on the western side of the stope, Hecla 

advanced a 20-foot wide cut for about 50 feet. Then, Hecla created two parallel entries, 

following the two diverging ore veins that were located in the stope. The rock between the veins 

was not removed. The miners only backfilled the area where the ore veins had been located. The 

unmined rock, known as “waste rock,” remained as a pillar in between the two entries. The 

second cut of the sublevel was mined in a similar manner. Solid waste rock was again left as a 

pillar between the two advancing faces. Id. at 880. On the third cut, the two ore veins merged 

into the area directly below the waste rock/pillar left above in the first and second cuts. Hecla 

directed the miners to cut all of the rock in the stope including the rock directly under the waste 

rock pillar that was left in cuts one and two. See Attached Appendix (The Cut Three Stope Map), 

Gov. Ex. 8, at 15. Bolts were installed in the bottom of the pillar.7 In total, the undercut pillar on 

the western side of the stope extended an estimated 72 feet and ranged from three to nine feet 

wide. Gov. Ex. 8, at 7. 

Prior to the ground fall, Hecla had undercut previous waste pillars for short distances of 

10 to 20 feet. The practice of undercutting a pillar for 72 feet was unprecedented at the mine. 37 

FMSHRC at 888. 

On April 13, 2011, Hecla managers conducted a weekly geology tour of the mine, which 

included a visit to the mining faces of the third cut on the 15 Stope. Bayer participated in this 

tour and observed no ground control problems. Tr. 471-72, 479-80. 

On the morning of April 15, 2011, Nicholas John Furlin, a Hecla production geologist, 

also visited the third cut and observed no indications that the ground was unstable. Tr. 619-21. 

Later that day, a massive portion of the “back” in the western side of the stope fell and fatally 

crushed Mr. Marek. MSHA estimated that the ground fall was approximately 90 feet long, 20 

feet wide, and 30 feet high. Gov. Ex. 8, at 3. 

6

 The backfill paste is pumped underground from the surface. It consists of cement, 

water, and classified mill tailings. Jt. Stips. no. 33. The intense horizontal pressure, that 

significantly exceeds the vertical pressure, which is a characteristic of the Coeur D’Alene Mining 

District where the Lucky Friday Mine is located, holds the backfill in place. The backfill paste is 

elastic and able to withstand this horizontal pressure. 

7

 Before beginning work in the stope, miners examined those bolts. Tr. 474-75. 

38 FMSHRC Page 2119
MSHA issued Hecla an order alleging a violation of 30 C.F.R. § 57.3401 for a failure to 

examine and test for loose ground.8

 MSHA also issued Hecla a citation for a failure to maintain 

ground control as required by 30 C.F.R. § 57.3360.9

After the hearing on the merits, the Judge vacated the order. He concluded that Hecla had 

adequately performed the examination required by section 57.3401. 37 FMSHRC at 889. 

The Judge considered the miners’ visual examination of the bolts and the backfill to be a 

sufficient examination under the safety standard. The Judge noted that the Secretary had not set 

forth any guidelines for another examination technique. Id. (citing Asarco, Inc., 14 FMSHRC 

941, 947 (June 1992)). 

With respect to the citation issued for a violation of section 57.3360, the Judge found that 

Hecla had failed to control the ground and, thus, he affirmed the citation.10 Hecla did not appeal 

that ruling. 

8

 The order states: 

Management failed to adequately examine and test the ground 

conditions to determine if additional measures needed to be taken. 

This was necessary due to constantly changing ground conditions, 

they were mining a wide stope and removing the support pillar. 

The operator has engaged in aggravated conduct constituting more 

than ordinary negligence . . . . 

Gov. Ex. 1, at 8. 

9

 The citation states: 

Ground support was necessary in the stope to mine safely, but the 

ground support utilized was not adequate. The ground control was 

not designed, installed, and/or maintained in a manner that was

capable of supporting the ground in such a wide stope when the 

support pillar was removed. Mine management has engaged in 

aggravated conduct constituting more than ordinary negligence by 

directing the pillar to be mined as the stope advanced and allowing 

miners to work under inadequately supported ground. 

Gov. Ex 1, at 1. 

10 The Judge concluded that Hecla had failed to provide any evidence that it was 

reasonable to believe that the ground was adequately supported when it mined under the waste 

pillar. 37 FMSHRC at 886-87. The Judge assessed a penalty of $180,000 pursuant to section 

110(b) of the Mine Act for a flagrant violation. Id. at 894-95. 

38 FMSHRC Page 2120
II. 

Disposition 

On review, the Secretary contends that in the circumstances of this case section 57.3401 

required Hecla to undertake a more rigorous examination and test than it had conducted. The 

Secretary argues that he reasonably interprets section 57.3401 to require more extensive analysis 

when the operator knows or should know that it is mining in a manner that creates ground 

control hazards beyond the risks inherent in normal mining. S. Br. at 14-15. He asserts that the 

analysis should be sufficient to pinpoint reasonably foreseeable ground control problems. The 

Secretary also alleges that this interpretation is compelled by prior Commission decisions, i.e., 

Asarco, Inc., 14 FMSHRC 941 (June 1992), and Dynatec Mining Corp., 23 FMSHRC 4 (Jan. 

2001). Finally, he maintains that, in this case, the hazardous practice of undermining a pillar for 

an extensive length required Hecla to undertake a geomechanical or engineering analysis.11 

Hecla argues that section 57.3401 does not require a geomechanical or engineering 

analysis. Hecla further maintains that it lacked notice of the Secretary’s interpretation, in that a 

reasonably prudent miner would not interpret the language of the safety standard as the Secretary 

has. 

A. The Secretary Reasonably Interprets Section 57.3401 to Require

Examinations and Testing Sufficient to Identify Reasonably Foreseeable

Ground Control Problems.

The language of section 57.3401 does not dictate or explain what is required by an 

“examination” of ground conditions. The text of the standard is silent or ambiguous as to how 

supervisors or other designated persons should “test” “as ground conditions warrant” in novel 

situations. As our dissenting colleagues identify, in the majority of mining environments, testing 

for loose ground involves physically tapping or vibrating the roof with a scaling bar. Slip op. at 

13. However, when a mine operator engages in a novel mining practice, ordinary techniques

may not be appropriate to identify dangerous ground conditions in areas where work is to be

performed. Accordingly, that ordinary technique cannot be an effective “test” for loose ground.

Here, Hecla took the previously unprecedented step of undermining a rock pillar for a 

length of 72 feet. Hecla’s chief mining engineer, Ron Krusemark, testified that undercutting a 

waste rock as was done in cut three was “way out of the norm.”12 Tr. 143-44, 153. He only knew 

of three situations where a large pillar was undercut for more than 50 feet at the mine (15 Stope 

west cut three, 15 Stope east cut three and in the 12 Stope). Id. (citing 159). Krusemark testified 

11 The American Society of Civil Engineers states that “[g]eotechnical engineering 

utilizes the disciplines of rock and soil mechanics to investigate subsurface conditions. 

Geotechnical engineering evaluations also include a review of geologic conditions.” 

Geotechnical Engineering, Am. Soc’y of Civil Eng’rs, www.asce.org/geotechnicalengineering/geotechnical-engineering/ (last visited Aug. 29, 2016). 

12 Bayer testified that in his 17 years at the mine it was not uncommon to undercut a pillar 

by 10 to 30 feet; however, it was not common to undercut a pillar by more than 70 feet. Tr. 544. 

38 FMSHRC Page 2121
that he was not aware of the plan to undercut the pillar until after the accident. Tr. 150, 152-53. 

Terry DeVoe, Hecla’s chief geologist, testified that he had only undercut a pillar for a similar 

distance on one other occasion prior to the cuts in the 15 Stope. Tr. 655. 

The Secretary maintains that the safety standard at issue was drafted broadly enough to 

require a mine operator to take all necessary steps to detect hazards when engaged in a novel 

mining technique such as the one used in this case. 

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

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

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

F.2d 1062, 1066 (9th Cir. 1987); Consolidation Coal Co., 15 FMSHRC 1555, 1557 (Aug. 1993);

Utah Power & Light Co., 11 FMSHRC 1926, 1930 (Oct. 1989). If, however, a “regulation is

silent or ambiguous with respect to [a] specific point at issue, we must defer to the agency’s

interpretation as long as it is reasonable.” Tenet HealthSystems Healthcorp. v. Thompson, 254

F.3d 238, 248 (D.C. Cir. 2001); see generally Auer v. Robbins, 519 U.S. 452 (1997).

In upholding the Secretary’s interpretation of another regulation regarding examinations, 

the D.C. Circuit stated that it is compelled to “defer to the Secretary of Labor’s interpretation of 

her own regulations unless it is plainly erroneous or inconsistent with the regulations.” Sec’y of 

Labor v. Spartan Mining Co., 415 F.3d 82, 83 (D.C. Cir. 2005). In fact, deference is appropriate 

when the agency advances a permissible interpretation even if that interpretation diverges from 

what a first-time reader of the regulation would conclude is the best interpretation of the 

regulation. Gen. Elec. Co. v. EPA, 53 F.3d 1324, 1327 (D.C. Cir. 1995) (citing Rollins Envtl. 

Servs., Inc. v. EPA, 937 F.2d 649, 652 (D.C. Cir. 1991)). 

The Secretary’s proffered interpretation is consistent with both the language and specific 

purpose of section 57.3401, as well as with the general purpose of the Mine Act: to protect the 

safety and health of miners. The drafters of the safety standard intended its language to be 

“flexible enough to accommodate the variety of situations which may arise while assuring the 

safety of persons working in the mines.” 51 Fed. Reg. 36192, 36192-93 (Oct. 8, 1986). 

It is consistent with the policy goals of the Mine Act to require in a highly unusual 

mining situation the type of examination or testing that is necessary to discover latent hazards 

that cannot readily be observed, such as rock fractures above a roof, before miners are exposed to 

the hazards in their working area. See Dolese Bros. Co., 16 FMSHRC 689, 693 (Apr. 1994) ((“A 

safety standard ‘must be interpreted so as to harmonize with and further . . . the objectives of’ the 

Mine Act.”) (alteration in original) (quoting Emery Mining Co. v. Sec’y of Labor, 744 F.2d 1411, 

1414 (10th Cir. 1984))). In addition, the Secretary’s interpretation is congruent with our decision 

in Dynatec in which we broadly held that an examination must be “designed to pinpoint the 

problems so that they can be fixed before miners are exposed to the hazards.” 23 FMSHRC at 24 

(quoting Dynatec Mining Corp., 20 FMSHRC 1058, 1086 (Sept. 1998) (ALJ) (emphasis 

omitted)). 

As demonstrated by the facts of this case, the use of novel and more hazardous mining 

techniques without prior technical analysis to pinpoint hazards puts miners’ lives at risk. 

38 FMSHRC Page 2122
Faults were common at the mine. Tim Ruff, a former production geologist at Hecla, 

testified that throughout the mine there were faults, which could cause some rocks to be “free 

hanging.” Tr. 351. As a result, Ruff testified that he thought it was “crazy” to undermine the 

pillar. Tr. 354. Ruff voiced his concerns to Bayer. Tr. 354-58. The miners working in this section 

told Ruff that they were nervous that they had mined too far under the pillar and had 

compromised its stability. Tr. 360.13 

There is also evidence in the record that ground conditions warranted additional tests 

based on the reports of miners actively mining cut number three. Dan McGillis, a retired Lucky 

Friday miner, testified that the miners working in the 15 Stope discussed with each other their 

concerns about mining underneath the pillar. Tr. 322-23. McGillis told Bayer that a miner on his 

section saw the back “dribbling,” that is, he saw little rocks fall from the roof. Tr. 325. McGillis 

understood that to be an indication that the roof was unstable. Tr. 325. Bayer reportedly 

responded to McGillis’ concerns by stating “maybe next cut we can do something different.” Tr. 

326. The Judge specifically credited McGillis’ testimony. 37 FMSHRC at 884.

The limited visual observations performed by Hecla employees were not sufficient to 

determine if the pillar was stable or if it was compromised by the rock fractures that commonly 

occur in this mine. The Secretary’s Report of Investigation states that the accident occurred 

because 

[m]anagement did not conduct an evaluation, engineering analysis,

or risk assessment to determine the structural integrity of the stope

back. The back that struck the victim was comprised of a

combination of paste fill and waste pillar. As shown on projection

maps, geologic structures in the form of joints, faults, and fractures

intersected the waste pillar at various angles. These intersecting

discontinuities cut the pillar rock mass into angular blocks and

wedges which facilitated gravity failure. The large blocks and

wedges observed in the fall rubble were not sufficiently supported

by the 6-foot long rock bolts installed in the undercut surface of the

waste pillar.

Gov. Ex. 8, at 9. Where an unusual technique is used in an area compromised by rock fractures 

13 Even Bayer acknowledged that it was possible that the pillar was affected by faults. Tr. 

537. Bayer also testified that he believed that no mining had occurred above the pillar and,

therefore, it was about 7000 feet tall. Tr. 536.

38 FMSHRC Page 2123
and faults, it is reasonable to interpret the examination and testing provisions of section 57.3401 

to require a technical analysis that is necessary to pinpoint hazards that imperil miners.14 15

 Our dissenting colleagues contend that the language of the safety standard is plain, and 

does not allow such a broad application of its requirement to “examine” and “test ground 

conditions.” Slip op. at 12. According to them, the Secretary would need to institute rulemaking 

before requiring the geomechanical and engineering analysis he claims was needed here. We 

disagree. The Secretary cannot anticipate every unusual mining technique an operator chooses to 

institute and then promulgate a rule that explains the testing and examination that is required to 

protect miners from roof falls through that mining process. Safety standards can be issued using 

general terms like “examine” and “test” and an operator is then expected to implement the 

appropriate tests and exams sufficient to detect reasonably foreseeable ground problems. 

Our colleagues also assert that we cannot “explain how this duty is triggered or how far 

outside the working place it would extend.” Id. at 11. We anticipate, however, that the specific 

parameters of the duty will be developed on a case-by-case basis. As the Secretary argues, when 

an operator adopts a “new and unusually hazardous mining technique” that departs from the 

norm, as was the case here, it is reasonable for the Secretary to require that the examination and 

testing obligations under section 57.3401 also depart from the norm. S. Br. at 14. 

Our dissenting colleagues also suggest that after the accident MSHA should have cited 

the operator only under 30 C.F.R. § 57.3360 for the failure to provide adequate ground support 

and should have refrained from also citing it for failing to examine and test for loose ground. Slip 

op. at 11. We again disagree. Enforcing section 57.3401 according to the Secretary’s proffered 

interpretation promotes the elimination of future hazards (by ensuring adequate examinations of 

14 We note that geomechanical analyses have been performed at the Lucky Friday Mine 

in the past. For example, in 2001, engineers from the National Institute for Occupational Safety 

and Health (NIOSH) and Hecla Mining collaborated on a study which included instruments 

embedded in the rock bolts to determine if the strength of the rock bolts installed in the backfill 

at the Lucky Friday Mine was being exceeded. See generally T.J. Williams et al., Nat’l Inst. For 

Occupational Safety and Health, Geomechanics of Reinforced Cemented Backfill in an 

Underground Stope at the Lucky Friday Mine, Mullan, Idaho (July 2001),

https://www.cdc.gov/niosh/mining/UserFiles/works/pdfs/2001-138.pdf 

15 Our dissenting colleagues have asserted that the safety standard’s requirement to 

examine and test the ground does not require an operator to examine or test a waste pillar roof 

above the head of miners working in a stope. Slip op. at 13, 20. In fact, the requirement of the 

safety standard is simple: When an operator sends miners to work under a waste rock pillar, the 

waste pillar then becomes an area where work is to be performed, and the operator is required to 

examine and test it for loose ground. Thus, the phrase “in areas where work is being performed” 

modifies the words “ground conditions.” The “areas where work is being performed” include all 

areas that affect working miners and are not limited just to the spots where miners are standing 

or walking. In this case, ground about 30 feet above the roof in cut three fell; this means the 

point of failure was about 10 feet above cut one (and not “several thousand feet above the 

working place”). See dissent slip op. at 13. 

38 FMSHRC Page 2124
working places with a high risk of ground failure), rather than simply reacting after the fact to 

hazards that have already occurred. 

Unlike an underground coal mine, where an operator must mine according to a roof 

control plan approved by MSHA that is suitable to the roof conditions and mining system of each 

mine, 30 U.S.C. § 862(a), the Mine Act imposes no similar obligation upon underground metal 

and non-metal mines. See Amax, 8 FMSHRC at 1149 (“[A]pproved roof control plans are not 

required in underground metal-nonmetal mining operations . . . .”).16 Because there is no planapproval process, and metal and non-metal mine operators have the latitude to depart from their 

normal mining plans, it is reasonable for the Secretary to interpret the safety standard at section 

57.3401 to require technical analyses when he believes it is necessary to safeguard miners’ lives; 

it is a check against recklessness in the pursuit of production. In short, it is necessary to ensure 

miner safety. 

B. Hecla Did Not Have Adequate Notice of the Secretary’s Interpretation.

While we have determined that the Secretary’s interpretation is reasonable, Hecla is 

entitled to due process protections prior to enforcement of that interpretation. To comport with 

due process, laws must “give the person of ordinary intelligence a reasonable opportunity to 

know what is prohibited, so that he may act accordingly.” Grayned v. City of Rockford, 408 U.S. 

104, 108 (1972); Lanham Coal Co., 13 FMSHRC 1341, 1343 (Sept. 1991). The “fair notice 

doctrine” has been incorporated into administrative law and “prevents . . . deference from 

validating the application of a regulation that fails to give fair warning of the conduct it prohibits 

or requires.” Suburban Air Freight, Inc. v. Trans. Sec. Admin., 716 F.3d 679, 683-84 (D.C. Cir. 

2013) (alteration in original) (quoting Gates & Fox Co. v. OSHRC, 790 F.2d 154, 156 (D.C. Cir. 

1986)). 

The Commission has applied an objective standard of notice, i.e., the reasonably prudent 

person test. The Commission asks “whether a reasonably prudent person familiar with the 

mining industry and the protective purposes of the standard would have recognized the specific 

prohibition or requirement of the standard.” Ideal Cement Co., 12 FMSHRC 2409, 2416 (Nov. 

1990). 

Because the standard had consistently been applied in a more limited fashion, we hold 

that a reasonably prudent person familiar with the mining industry would not have known that 

the examination and testing requirement in section 57.3401 might demand a geomechanical or 

engineering analysis. As we stated supra, we consider the Secretary’s interpretation to be a 

permissible one, although it would not be an obvious reading of the standard to a person familiar 

with the mining industry. See Gen. Elec., 53 F.3d at 1330 (finding that although the 

interpretation was permissible, fair notice was lacking where the agency’s “interpretation [was] 

so far from a reasonable person’s understanding of the regulations that they could not have fairly 

informed [regulated parties] of the agency's perspective”). In fact, the Secretary readily 

16 The Amax decision concerned a prior safety standard that governed examinations at 

metal and non-metal mines, 30 C.F.R. § 57.3-22. 

38 FMSHRC Page 2125
acknowledges that his interpretation is not obvious and advocates simply that the regulation is 

“susceptible of such reading.” S. Br. at 15. 

Contrary to the Secretary’s assertions, the broad holdings of the Asarco and Dynatec 

decisions likewise do not provide notice that a geomechanical or engineering analysis may be 

required to comply with section 57.3401. These cases are factually dissimilar to the 

circumstances of the present proceeding. Neither case involved a geomechanical or engineering 

examination, nor was there any indication that such technical examinations were required by the 

standard. 

In Asarco, a drill operator was fatally injured by a large ground fall. MSHA issued a 

citation alleging that Asarco had failed to examine and test for loose ground in the stope. 14 

FMSHRC at 944. However, MSHA never alleged that compliance with the standard required 

geomechanical or engineering analysis. The Commission ultimately vacated the citation at issue. 

Id. at 955. 

In Dynatec, the Commission again vacated a citation issued for a violation of section 

57.3401. 23 FMSHRC at 24. The Commission held that pursuant to the safety standard an 

examination must be “designed to pinpoint the problems so that they can be fixed before miners 

are exposed to the hazards.” Id. at 24 (quoting 20 FMSHRC at 1084 (emphasis omitted)). 

However, that decision also contained no mention that a mine operator may be required to 

perform a geomechanical or engineering analysis or when such an obligation is triggered. As a 

result, we reject the Secretary’s argument that Commission precedent put Hecla on notice that it 

was required to perform a geomechanical or engineering analysis. 

Hence, we rule that Hecla did not have fair notice of the Secretary’s interpretation. 

38 FMSHRC Page 2126
III. 

Conclusion 

For the aforementioned reasons, we conclude that the Secretary’s interpretation of section 

57.3401 is prospectively entitled to deference. However, we also conclude that Hecla did not 

have notice of this interpretation at the time the order in this case was issued. Therefore, we 

affirm the Judge’s decision to vacate the order and not impose civil penalties on Hecla and 

Bayer. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner 

38 FMSHRC Page 2127
Commissioners Young and Althen, concurring in part and dissenting in part: 

This case arises from a massive rock fall from a point approximately 25 feet above the 

mine roof in an extended stone pillar above the area where work was being performed. MSHA 

properly cited the operator for a flagrant violation of 30 C.F.R. § 57.3360 — that is, failure to 

provide adequate ground support.1 The Judge found the violation of section 57.3360 directly 

applicable to the fatality due to the failure to provide adequate ground support for an extensive 

overhead rock pillar. He further found the violation was flagrant and levied a fine of $180,000 — 

substantially more than the fine proposed by the Secretary. Thus, MSHA cited and the Judge 

sustained and substantially fined the failure to provide ground support related to the tragic 

event.2

Rather than prosecuting the operator only under the appropriate section of the 

regulations, MSHA chose to pursue a novel claim and additionally cited the operator for a 

flagrant violation of 30 C.F.R. § 57.3401. That section provides: 

Persons experienced in examining and testing for loose ground 

shall be designated by the mine operator. Appropriate supervisors 

or other designated persons shall examine and, where applicable, 

test ground conditions in areas where work is to be performed, 

prior to work commencing, after blasting, and as ground conditions 

warrant during the work shift. Underground haulageways and 

travelways and surface area highwalls and banks adjoining 

travelways shall be examined weekly or more often if changing 

ground conditions warrant. 

In citing a violation of section 57.3401, the Secretary proposes to layer upon the common 

and ordinary examinations routinely conducted in working places a new, undefined, and 

extraordinary duty to conduct a highly technical geomechanical analysis. Neither the Secretary 

nor the majority can explain how this duty is triggered, or how far outside the working place it 

would extend. We think it unwise to endorse an ad hoc and unclear imposition of responsibility 

in this context. 

1 30 C.F.R. § 57.3360 provides: 

Ground support shall be used where ground conditions, or mining

experience in similar ground conditions in the mine, indicate that it 

is necessary. When ground support is necessary, the support 

system shall be designed, installed, and maintained to control the 

ground in places where persons work or travel in performing their 

assigned tasks. Damaged, loosened, or dislodged timber use for 

ground support which creates a hazard to persons shall be repaired 

or replaced prior to any work or travel in the affected area. 

2

 MSHA also cited the operator for two other violations not related directly to the rock 

fall but arising from the same mining practice. The Judge sustained each violation and levied 

fines of $50,000 for each violation.

38 FMSHRC Page 2128
The upshot of the majority decision is to allow the Secretary to create a new substantive 

regulation under the guise of a new interpretation of a 30-year-old regulation despite the plain 

wording of the existing rule and the unreasonableness of the new interpretation. The majority 

agrees that no reasonably prudent person could read the section to require the type of preoperational testing demanded in this unique case. Slip op. at 9. Further, they do not dispute that 

in the 30 years since promulgation of the regulation MSHA has never proposed such an 

interpretation. They find that, because no reasonable operator could have understood the 

regulation to require this novel type of analysis, they must vacate the citation. Id. at 10. We 

concur in vacating the citation, but respectfully disagree with the majority’s reasoning. We 

would find the Secretary’s lawyers’ interpretation of section 57.3401 as presented to the 

Commission is unreasonable, non-persuasive, and invalid. 

Discussion 

I. The Plain and Unambiguous Wording of Section 57.3401 Does Not Require

Undefined Geomechanical Engineering Analyses.

Under Auer v. Robbins, 519 U.S. 452 (1997), an agency’s interpretation of its own

regulation may be entitled to deference, “[b]ut Auer deference is warranted only when the 

language of the regulation is ambiguous.” Christensen v. Harris Cty., 529 U.S. 576, 588 (2000). 

In this case, we owe no deference to the Secretary’s interpretation of section 57.3401 because the 

Secretary’s post-hoc litigation position is inconsistent with the plain words of the regulation as 

they have been understood for more than 30 years. The Secretary’s interpretation cannot be 

reconciled with the plain, obvious, and accepted meaning of section 57.3401. 

The Secretary does not define what the term “geomechanical analysis” means. More 

importantly for present purposes, whatever the Secretary may envision, the requirements of 

section 57.3401 plainly do not include an unspecified type of geomechanical analysis of an 

extended rock pillar above the working place before work occurs in the mine.3 

The Commission must give words in statutes and regulations their common, ordinary 

meaning unless they are otherwise defined. Perrin v. United States, 444 U.S. 37, 42 (1979). As 

used in the metal and nonmetal regulations, the word “examine” has an ordinary meaning. An 

operator “examines” an area by inspecting the designated area — the working place — visually 

to determine dangers or deficiencies. For example, 30 C.F.R. § 57.18002(a) requires that a 

competent person “shall examine each working place at least once each shift for conditions 

which may adversely affect safety or health.” No one would suggest that such an examination 

requires some sort of computer analysis of areas above and around the working place during 

each shift, and neither the majority nor the Secretary cites any authority supporting this 

3

 Perhaps the language of the regulation may be ambiguous with respect to the precise 

nature of its application to examinations and testing of the place where work is being performed. 

It is not ambiguous, however, with respect to the fact that its wording plainly does not require 

examinations of places in the mine that are not places where work is being performed. See 30 

C.F.R. § 57.3401(“[D]esignated persons shall examine and, where applicable, test ground

conditions in areas where work is to be performed . . . .”) (emphasis added).

38 FMSHRC Page 2129
extraordinary expansion of the scope of the term “examine.”4

 Further, section 57.3401 requires 

examination of the “area where work is to be performed.” By statutory definition this means “the 

working place.” 30 C.F.R. § 57.2. Certainly, a stone pillar extending several thousand feet above 

the place where miners are working is not “the working place.” 

Ignoring the definitions in the regulations and case law, the majority states that “areas 

where work is being performed”— that is, working places — “include all areas that affect 

working miners and are not limited just to the spots where miners are standing and walking.” 

Slip op. at 8 n.15. Thus, the majority does not even recognize the clear regulatory distinction 

between “active workings” at 30 C.F.R. § 57.2, which are “areas at, in, or around a mine or plant 

where men work or travel,” and working places at 30 C.F.R. § 57.2 which are “areas where work 

is being performed.” Not only does the majority fail to acknowledge that the final regulation was 

limited from the scope of the proposed regulation, they defy the commonsense reading of the 

English language by asserting a “working place” extends into a rock column up to 6000 feet 

above the working place. Because miners must visually examine and physically test a working 

place for loose ground in order to scale it down, the portion of the roof that could contain 

scalable ground is part of the working place. However, under section 57.3401, the working place 

does not include a pillar of rock several thousand feet above the working place. See 37 FMSHRC 

877, 879 (Apr. 2015) (ALJ).5 

4

 The Commission should construe the duty to “examine” a working place harmoniously 

with other regulations. See Rice v. Martin Marietta Corp., 13 F.3d 1563, 1568 (Fed. Cir. 1993); 

Gen. Elec. Co., Aerospace Grp. v. United States, 929 F.2d 679, 681 (Fed Cir. 1991) (“[W]e are 

mindful of the canon of statutory construction, equally applicable to regulations, ‘that, where the 

text permits, statutes dealing with similar subjects should be interpreted harmoniously.’” 

(quoting Jett v. Dall. Indep. Sch. Dist., 491 U.S. 701, 739 (1989) (Scalia, J., concurring))). 

“[R]ules of statutory construction are equally applicable to the interpretation of administrative 

regulations.” Buckley v. United States, 51 Fed. Cl. 174, 192 (2001). “In determining the meaning 

of such regulations, rules of interpretation applicable to statutes are appropriate tools of 

analysis.” Gen. Elec. Co. v. United States, 610 F.2d 730, 734 (Ct. Cl. 1979); see also Ala. Tissue 

Ctr. of Univ. of Ala. Health Serv. Found., P.C. v. Sullivan, 975 F.2d 373, 379 (7th Cir. 1992) 

(“The same rules of construction apply to administrative rules as to statutes.”(citation omitted));

accord Wronke v. Marsh, 787 F.2d 1569, 1574 (Fed. Cir. 1986) (stating that for the interpretation 

of regulations, just as in the interpretation of statutes, courts must begin with their plain 

language). 

5

 The majority seems to suggest that we imply the fall may have occurred from more than 

30 feet above the actual working place. Slip op. at 8 n.15. Of course, we do not. We simply 

reflect that the majority does not assign any vertical limit to the newly imposed duty to perform a 

geomechanical analysis of some undefined dimension under some undefined circumstances. It 

does not opine, for example, that if the break occurred at 100, 200, 500, or 1000 feet, it would 

not find a violation. As we point out in this dissent, neither the Secretary nor the majority 

provides meaningful guidance as to the actual content, meaning, or duties of this newly found 

obligation. 

38 FMSHRC Page 2130
Further, our precedents reflect the common understanding that the purpose of the 

standard is to permit scaling and removal of loose ground. The need to scale roof or ribs in the 

working place is determined by testing the roof and ribs. In Asarco, Inc., 14 FMSHRC 941 (June 

1992), the Secretary alleged a failure to examine and test a roof in violation of section 57.3401. 

See id. at 945. The Commission reviewed the plain language of the regulation and found that the 

regulation contains two requirements: “First, areas where work is to be performed must be 

examined for loose ground before work is started, after blasting, and as conditions otherwise 

warrant during the workshift. Second, where applicable, ground conditions in work areas must 

also be tested.” Id. 

Regarding the examination requirement, “the judge interpreted the examination 

requirement of the regulation to require a careful visual inspection.” Id. (citing Asarco, Inc., 12 

FMSHRC 2073, 2083-84 (Oct. 1990) (ALJ)). The Secretary did not dispute that interpretation. 

Id. The examination requirement of section 57.3401 cannot be interpreted to require an 

engineering or geomechanical analysis outside the working place when “examination” in the 

context of examining the area where work is to be performed plainly means “a careful visual 

inspection” of the working place. 

Further, inherent in Asarco is the common understanding that the phrase “testing for 

loose ground” means physically tapping or vibrating the roof to determine if there is loose 

ground that needed to be scaled down with a scaling bar.6

 Indeed, ironically, in Asarco the 

Secretary argued for a narrow interpretation of section 57.3401, alleging that the respondent 

failed to test the roof because it used a jumbo drill to vibrate the roof to reveal loose ground 

conditions, rather than thumping the roof with a scaling bar. The Judge had agreed with the 

Secretary’s witnesses, who testified that “sounding the roof with a steel bar was the only 

effective method to test a mine roof.” Id. at 944 (citing 12 FMSHRC at 2084-87). 

The Commission stated that “[t]he Secretary seems to take the position in this case that a 

scaling bar is the proven and effective means of testing for loose ground.” Id. at 948. However, 

the Commission held that the Secretary failed to provide notice that he did not consider a jumbo 

drill to be a permissible means to test a roof, so the Commission did not defer to the Secretary’s 

interpretation and found that use of a jumbo drill was allowed under section 57.3401. Id. at 947, 

948, 950. Therefore, while the Secretary now seeks to read the term “test” to require undefined 

6

 The Commission has found that 

[t]he term “loose ground” has a specific meaning within the mining

industry and is defined as “[b]roken, fragmented, or loosely

cemented bedrock material that tends to slough from sidewalls into

a borehole . . . . As used by miners, rock that must be barred down 

to make an underground workplace safe . . . .” DMMRT 658. 

Accordingly, the term loose ground, as used in this standard, refers 

generally to material in the roof (back), face, or ribs that is not 

rigidly fastened or securely attached and thus presents some danger 

of falling. 

Amax Chemical Co., 8 FMSHRC 1146, 1148 (Aug. 1986). 

38 FMSHRC Page 2131
geomechanical and engineering analyses, it is clear that “test” has always been understood by the 

Secretary, the Commission, and regulated parties to be a plain industry-specific term that refers 

to testing the immediate roof and ribs to determine if loose rock (“loose ground”) needs to be 

taken down. 

Auer deference is inappropriate because the plain meaning of the regulation clearly does 

not include the geomechanical and engineering analysis the Secretary seeks to require for the 

first time in this case. However, even under Auer, the law provides four separate reasons not to 

defer to the patently unreasonable, post-hoc interpretation offered by the Secretary in this case. 

See Christopher v. SmithKline Beecham, 132 S.Ct. 2156 (2012). 

II. Applying the Auer Standard, the Secretary’s Interpretation Is Not Entitled to

Deference.

In Christopher, the Supreme Court identified four reasons to withhold deference to an 

agency interpretation of its own regulation. Where any of these circumstances pertain, the 

Secretary is not entitled to deference. All four are present here. 

A. The Secretary’s Interpretation Does Not Reflect MSHA’s Fair and

 Considered Judgment. 

The Secretary’s current interpretation does not reflect MSHA’s fair and considered 

judgment for several reasons. There is no reason to defer if there is reason to suspect that the 

interpretation does not reflect the agency’s fair and considered judgment on the matter in 

question: 

[D]eference is . . . unwarranted when there is reason to suspect

that the agency’s interpretation “does not reflect the agency’s fair

and considered judgment on the matter in question.” Auer, supra,

at 462; see also, e.g., Chase Bank, supra, at ___ (slip op., at 14).

This might occur . . . when it appears that the interpretation is

nothing more than a “convenient litigating position,” Bowen v.

Georgetown Univ. Hospital, 488 U.S. 204, 213 (1988), or a

“‘post hoc rationalizatio[n]’ advanced by an agency seeking to

defend past agency action against attack,” Auer, supra, at 462

(quoting Bowen, supra, at 212; alteration in original).

Id. at 2166-67. 

First, the Secretary’s current interpretation of § 57.3401 is a new one inconsistent with 

his prior interpretation of the regulation. MSHA’s Program Policy Manual contains no mention 

of an obligation to conduct a geomechanical analysis when an operator departs from normal 

mining practices nor is there any evidence that the Secretary has ever, in the 30 years since 

promulgating section 57.3401, required an operator to conduct such an analysis. Furthermore, the 

Secretary has never urged his current interpretation in previous litigation before the Commission. 

38 FMSHRC Page 2132
Second, the Secretary’s interpretation in this case is only a convenient litigating position7

and post hoc rationalization of past agency action to support a citation for actions cited 

appropriately and directly by another regulation in this case. See Christopher, 132 S.Ct. at 2166. 

These two recognized exceptions are well-established principles of administrative law. See

Bowen, 488 U.S. at 212; Auer, 519 U.S. at 462 (also citing Bowen for the same two limits on 

deference). 

In his reply brief before the Commission, however, the Secretary contends that his 

“interpretation before the Commission is ‘agency action, not a post hoc rationalization of it.’” 

S. Reply Br. at 11 (quoting Akzo Nobel Salt, Inc. v. FMSHRC, 212 F.3d 1301, 1304 (D.C. Cir.

2000) (quoting Martin v. OSHRC, 499 U.S. 144, 157 (1991))).8 The Secretary may believe that

incantation of “deference” is enough to prevent meaningful review of his lawyers’ litigating

positions — regardless of whether such positions express the considered views of policy makers

rather than the tactical interests of trial attorneys — but his reliance on Martin for the proposition

that the Commission must defer to his litigating position, no matter how unreasonable the new

obligations imposed upon a regulated party, is misplaced and disregards subsequent precedent.

As the law of deference has evolved, courts have conformed their deference to 

interpretations of regulations depending on how the interpretation has been developed —

interpretive rule, policy statement, opinion letter, litigation position, etc. As part of such 

evolution, federal courts are unwilling to afford full Auer deference to agency litigating positions 

when, as here, agency lawyers offer the interpretation in litigation without review by 

policymakers and when the lawyers’ positions are a post hoc rationalization made for the first 

time before a reviewing courts or boards. Interpretations offered for the first time by appellate 

counsel during judicial review, and especially post-trial review, without any demonstrated input 

from policy makers within an agency are entitled to no deference or, if at all, deference under the 

power to persuade standard of Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). In such 

circumstances, reasons for deference to agency expertise simply do not apply. 

As the Ninth Circuit has recognized, Martin’s distinction between agency adjudications 

and court reviews of agency action has been abrogated. In Price v. Stevedoring Services of 

America, Inc., 697 F.3d 820 (9th Cir. 2012), the circuit court recognized that Martin drew a 

distinction between the Secretary’s litigating position taken before OSHRC and that taken before 

a circuit court. However, the Ninth Circuit dismissed such a distinction: 

The distinction in Martin between administrative and court 

adjudication did not survive Mead, Auer, and Auer’s progeny, 

7

 When we speak of interpretations as mere litigating positions, we mean interpretations 

of regulations announced for the first time in a brief before the Commission or a reviewing court, 

not interpretations, for example, that simply “articulate an explanation of longstanding agency 

practice.” Akzo Nobel Salt, Inc. v. FMSHRC, 212 F.3d 1301, 1304 (D.C. Cir. 2000). 

8

 The Secretary’s argument that “when embodied in a citation, the Secretary’s 

interpretation assumes a form expressly provided for by Congress,” S. Reply Br. at 11 (quoting 

Akzo Nobel, 212 F.3d at 1304), is inapposite. MSHA did not embody the Secretary’s lawyers’ 

interpretation in the citation in this case, nor was it argued before the Administrative Law Judge.

38 FMSHRC Page 2133
although the deference accorded the Secretary’s litigating position 

in Martin is fully consistent with those cases. Notably, Martin

involved interpretation of regulations, not a statute. Under Auer

and its progeny, the line Martin drew between agency 

interpretations advanced during administrative versus court 

adjudications no longer obtains when interpretation of regulations 

is at issue. 

Id. at 831 n.7. 

Moreover, Martin was decided prior to Auer. In the post-Auer era, courts are clearly in 

agreement that interpretations announced in litigation for the first time on appeal do not warrant 

Auer deference. See, e.g., Vietnam Veterans of Am. v. CIA, 811 F.3d 1068, 1077-78 (9th Cir. 

2016) (declining to defer to government’s litigating position when no court had previously had 

occasion to construe the relevant provision, there was no prior interpretation of the provision by 

the government, and the government admitted that the interpretation was developed for the 

purposes of that litigation); Rancheria v. Jewell, 776 F.3d 706, 715 (9th Cir. 2015) (“The agency 

presented its position for the first time in its brief, and it offered sparse explanation for it. We 

need not defer to an agency position when taken for purposes of litigation.”); Am. Signature, Inc. 

v. United States, 598 F.3d 816, 827 (Fed. Cir. 2010) (“Where the agency’s interpretation seeks to

advance its litigating position, deference is typically not afforded to the agency’s position

announced in a brief.”); Tex. Clinical Labs, Inc. v. Sebelius, 612 F.3d 771, 777 (5th Cir. 2010)

(“[D]eference is inappropriate, however, where the interpretation is a novel litigating

position ‘wholly unsupported by regulations, rulings, or administrative practice.’” (quoting

Bowen, 488 U.S. at 212)); Gose v. U.S. Postal Serv., 451 F.3d 831, 838 (Fed. Cir. 2006) (“[An]

interpretation must truly be one that had been applied by the agency, either prior to or, at the

latest, during the exercise of its administrative powers in the present matter. An ‘interpretation’ is

therefore not a position advanced by the agency for the first time before the [Merit Systems

Protection] Board or in a court of review. Such an ‘interpretation’ is then no more than a

litigation position to which no deference is due.”).9

Regarding the regulation at issue in this case, section 57.3401, the Secretary has never 

construed that section to be so broad as to require a geomechanical or engineering analysis in 

policy manuals, citations, or litigation before the Commission or circuit courts. The Secretary’s 

9

 To the extent courts have decided they must exercise their right to review such litigating 

positions independently for conformance with the agency regulation, we note that Commission 

Administrative Law Judges spend their careers in the study and application of the Mine Act. 

They are part of a specialized independent agency, a principal purpose of which is to adjudicate 

disputes regarding MSHA citations for violations of mandatory safety standards. Commission 

Judges, therefore, are equipped (respectfully, better equipped than courts) to interpret mandatory 

safety standards vis-à-vis legal opinions by the Department of Labor Solicitor’s Office developed 

during litigation. 

38 FMSHRC Page 2134
interpretation did not appear in the citation,10 and the Secretary did not even urge this 

interpretation before the Administrative Law Judge. In his post-hearing brief, the Secretary 

instead argued liability on the basis that “Hecla management failed to design any sort of a ground 

examination system . . . that could pinpoint problems with ground support before they became a 

hazard.” S. Post-Hrg. Br. at 19.11 

 Rather than specifying what section 57.3401 required, and what Hecla failed to do, the 

Secretary instead stated that “[i]f a full timber ground support had been installed, visual 

examination might have been sufficient.” Id. Thus, according to the Secretary at that point, if the 

operator had not violated section 57.3360, the absence of a geomechanical analysis would not 

have been a violation. That is not a sensible interpretation of regulations. If a mandatory safety 

standard requires the operator to perform the analysis before any mining, then providing 

additional ground support would not obviate the violation but rather hide it. Essentially, the 

Secretary admits his interpretation does not make sense. 

The Secretary first announced this interpretation in his petition for discretionary review. 

The Secretary argues before the Commission that the Judge failed to apply the correct standard 

even though at the time of the Judge’s decision, the Secretary had not articulated the standard 

pressed before the Commission. 

By definition, this is a post hoc rationalization of past agency action. The Secretary 

issued a section 104(d)(1) citation on August 8, 2011, charged Hecla with a flagrant violation of 

section 57.3401, proposed a penalty of $159,100, and fully litigated the case at the trial stage, all 

without raising his proposed “geomechanical and technical analysis” requirement until he filed 

his petition for discretionary review on May 28, 2015. 

The litigating position offered by counsel post-citation does not set forth the fair and 

considered judgment of any policymaking position within the MSHA but has been asserted 

before the Commission only after the hearing and after the Judge’s Order. Even before the 

Commission, the Secretary does not argue in this case that the regulation mandates his reading, 

nor that he has interpreted and enforced the regulation as if it included a “geomechanical and 

engineering” analysis requirement. See PDR at 15 (“Section 57.3401 does not explicitly require . 

. . an engineering or geomechanical analysis of the ground conditions”). Instead, the Secretary’s 

 10 The Secretary asserts that the citation embodied the interpretation now placed before 

the Commission. See S. Reply Br. at 11. However, the citation contains no mention of a 

geomechanical or engineering analysis, and merely parrots the requirement of the regulation, 

stating that “[m]anagement failed to adequately examine and test the ground conditions to 

determine if additional measures needed to be taken.” Gov. Ex. 1, at 8. 

11 While the Judge noted that the inspector testified that an examination should have been 

performed by someone “with a geomechanic background,” he rejected this suggestion, correctly 

holding that it “is not required by the safety standard.” 37 FMSHRC at 891 n.10. The Judge also 

correctly noted that the failure to perform an engineering analysis “relates directly to the 

requirement to design suitable ground control under section 57.3360,” the standard under which 

the operator was properly cited, with the Judge affirming the flagrant penalty in all respects and 

increasing the penalty requested by the Secretary. Id. at 890, 895. 

38 FMSHRC Page 2135
counsel argues that “the standard is certainly susceptible of such a reading.” Id. Furthermore, the 

Secretary’s counsel himself seemed unsure of what would be required under the new 

interpretation of the standard. See Oral Arg. Tr. 30, 34 (characterizing it as “do[ing] the math and 

crunch[ing] the numbers”). There is no indication that this interpretation reflects an MSHA 

policy judgment. In other words, the Secretary’s counsel’s argument before the Commission 

does not show any “fair and considered judgment as to what the regulation required at the time 

[the citation was issued].” Chase Bank USA, N.A. v. McCoy, 562 U.S. 195, 210 (2011). 

Accordingly, we afford deference in the same manner as would a reviewing court and 

hold that the Secretary’s litigating position does not set forth a considered judgment by MSHA.12

B. The Secretary’s Interpretation Is Plainly Inconsistent with the

Regulation.

There is no reason to defer when the interpretation is plainly erroneous or inconsistent 

with the regulation: “Deference is undoubtedly inappropriate, for example, when the agency’s 

interpretation is ‘plainly erroneous or inconsistent with the regulation.’” Christopher, 132 S. Ct. 

at 2166 (quoting Auer, 519 U.S. at 461). 

As described above, the meanings the Secretary now ascribes to the terms “examine,” 

“test,” and “area where work is performed” are far different from the Secretary’s prior 

interpretations, from other sections of the regulations, and from the Commission’s and regulated 

parties’ understanding. See discussion supra pp. 12-14. We do not need to remake those points 

here, but we must note that the new interpretation set forth in litigation is plainly inconsistent 

with the regulation. The regulation’s examination requirement has never been construed to mean 

anything beyond a visual inspection, and the regulation’s testing requirement is a specific term 

within the mining industry to denote tapping or rattling the ground to determine if any loose 

ground needs to be scaled down with a scaling bar prior to continuing work. 

1. MSHA Limited the Scope of Section 57.3401 During the Drafting

Process.

 Section 57.3401, originally proposed for public comment as section 58.3401(b), 

provided: 

A person designated by the operator, shall examine, and test where 

applicable, ground conditions in active workings prior to work or 

travel in these areas and as ground conditions warrant during the 

work day. After blasting, a designated person shall examine 

ground conditions in areas affected by the blast before any other 

work is performed. Designated person shall be experienced in 

12 Indeed, it would be an odd standard that would require one level of deference when 

introducing a new interpretation on appeal before the Commission, yet, if the Commission were 

to deny review, and the Secretary were to appeal the case to a circuit court, his new interpretation 

would be owed a different level of deference. 

38 FMSHRC Page 2136
examining and testing the ground and understand the nature of the 

hazards involved. 

Safety Standards for Ground Control at Metal and Nonmetal Mines, 49 Fed. Reg. 8368, 8374 

(March 6, 1984) (emphasis added). 

As long defined in the regulations, “active workings” means “areas at, in, or around a 

mine or plant where men work or travel.” 30 C.F.R. § 57.2. Therefore, as proposed, the 

regulation was expansive in terms of the area that would have been covered: the proposal 

required examination of all areas where men work or travel rather than just areas where work is 

to be performed. At the same time, of course, no one suggested that “in active workings” 

included a mountainous area above where miners work or travel. 

In finalizing the regulations, MSHA decided that, by requiring examinations “in active 

workings,” the proposed regulation was too broad. In the final rule notice, MSHA discussed the 

proposal’s requirement that a supervisor examine ground conditions during visit to “active 

workings.” MSHA explicitly described its action: 

[T]he agency limited the application of this standard in the

proposed rule to “working places,” which was defined as “any area

where work is being performed.”

Safety Standards for Ground Control at Metal and Nonmetal Mines, 51 Fed. Reg. 36192, 36195 

(Oct. 8, 1986). 

In response to one commenter’s worry that the language would require “‘firebossing,’ or 

examining the mine each day for all types of hazards,” MSHA stated that “the final rule clarifies 

the agency’s intent” that it “requires examination for loose ground in areas where work is to be 

performed prior to commencing work, after blasting, and as ground conditions warrant.” Id.

Further, after discussing application of the regulation to haulageways and travelways, 

MSHA clarified that “[e]xaminations may be done by appropriate supervisors or other 

designated persons experienced in examining and testing for loose ground who have been 

designated by the mine operator to perform the task” and stated that “the qualifications for such 

persons are set out in the standard.” Id. at 36196. 

Thus, whereas the Secretary contends that a specialized geomechanical engineer is an 

“appropriate supervisor or designated person,” PDR at 15, the regulation itself provides that 

“appropriate supervisors or other designated persons” are those who are “experienced in 

examining and testing for loose ground.” 30 C.F.R. § 57.3401. As explained supra, both 

“examining” and “testing for loose ground” have long-understood, specific meanings. See supra

Part I. Conspicuously absent in the final rule notice is any mention of any intent, on the part of 

38 FMSHRC Page 2137
MSHA, to require a geomechanical analysis of an extended pillar above the working place prior 

to mining activities.13

Thus, the intent of the regulation expressed in the regulatory history cuts directly against 

affording deference to the Secretary’s new interpretation. As the Federal Circuit held in Gose v. 

U.S. Postal Service, 451 F.3d 831, 838 (Fed. Cir. 2006), “[j]ust as an agency’s inconsistent 

interpretation of its regulation detracts from the deference we owe to that interpretation, so does 

evidence that the proffered interpretation runs contrary to the intent of the agency at the time of 

enactment of the regulation.” 

In finding a need to defer to the Secretary’s interpretation, the majority quotes from the 

final rule notice that section 57.3401 was intended to be “flexible enough to accommodate the 

variety of situations which may arise while assuring the safety of persons working in the mines.” 

Slip op. at 6 (quoting 51 Fed. Reg. 36192-93). The majority, however, mischaracterizes the 

context in which MSHA stated that section 57.3401 was intended to be flexible. In proposing the 

regulation, MSHA included a section 57.3402, which stated: “Supervisors shall examine ground 

conditions during each visit of a working place to determine that proper ground control practices 

are being followed.” 49 Fed. Reg. 8368, 8374 (Mar. 6, 1984). However, MSHA deleted that 

provision in the final rule: 

Commenters recommended that the portions of this standard 

proposed as 58.3402 be deleted because of redundancy with other

standards. MSHA agrees. Section 56/57.3401 in the final rule 

appropriately addresses the needed ground examinations. The final 

rule must be flexible enough to accommodate the variety of 

situations which may arise while assuring the safety of 

persons working in the mine. Circumstances may occasionally 

require the attention of a supervisor at a particular area of the mine, 

preventing a visit to a work place during a shift. Requiring 

inspection during each visit by a supervisor, as was proposed by 

MSHA in 58.3402 could actually discourage supervisory visits. 

51 Fed. Reg. 36192-93. The statement that the rule be “flexible enough” was made in the context 

of deleting a provision that would have required a supervisor to inspect a working place during 

each visit, because that could prove too onerous a burden given that circumstances may call a 

supervisor elsewhere in the mine. Properly read in context, therefore, MSHA’s statement does 

not support the majority’s reasoning. 

13 The majority contends that “[s]afety standards can be issued using general terms like 

‘examine’ and ‘test’ and an operator is then expected to implement the appropriate tests and 

exams.” Slip op. at 8. That observation is irrelevant, because the Secretary did not demonstrate 

any intent to draft section 57.3401 so broadly as to require anything resembling a geomechanical 

or engineering analysis. Where an “interpretation runs counter to the ‘intent at the time of [a] 

regulation’s promulgation,’ . . . Auer deference is unwarranted.” Gonzales v. Oregon, 546 U.S. 

243, 258 (2006) (quoting Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994)). 

38 FMSHRC Page 2138
Not only did MSHA never express any intent to require the Secretary’s new 

geomechanical engineering analysis, we again note that the Secretary never before asserted that 

interpretation even in litigation. As explained above, inherent to the Asarco decision is a 

common, shared understanding that the phrase “testing for loose ground” meant physically 

tapping or vibrating the roof to determine if there was loose ground that needed to be scaled 

down with a scaling bar. While the Secretary’s attorneys now argue the term “test” means a geomechanical engineering analysis, it is clear that “test” has always been understood by the 

Secretary, the Commission, and regulated parties to be an industry-specific term referring to 

physically hitting the roof to determine if there is loose rock that needs to be taken down. 

2. Case Law Demonstrates the Meaning of the Regulation.

The Secretary and the majority rely on Dynatec Mining Corp., 23 FMSHRC 4 (Jan. 

2001), asserting without explanation that the Commission “broadly held that an examination 

must be ‘designed to pinpoint the problems so that they can be fixed before miners are exposed 

to the hazards.’” Slip op. at 6 (quoting Dynatec, 23 FMSHRC at 23). 

In fact, Dynatec did not concern the testing requirement of section 57.3401. It concerned 

only the examination requirement. In Dynatec, the Secretary alleged, and the judge had found, 

that the respondent failed to examine sufficiently a structure that it had built and failed to 

examine the surrounding rock for issues. The Commission applied the judge’s “pinpoint the 

hazards” examination requirement, but disagreed with both the Secretary and the judge that the 

examinations were insufficient. 23 FMSHRC at 23-24. 

Regarding the examination of the structure, the respondent had found problems and 

reported them to the operator of the mine, along with recommendations for repairs, but the 

operator did not heed the respondent’s warnings. Id. at 23. Thus, because the respondent had 

found and reported the issues, the Commission held that it “pinpointed the problems that needed 

to be fixed.” Id. Regarding the examination of the surrounding rock, the Secretary argued that 

even though it “appeared stable, Dynatec did not know that because it did not attempt to examine 

the ground.” Id. The respondent argued that “a reasonably prudent person would not have 

removed timber in the raise structure to examine ground conditions absent some indicia that 

ground conditions were problematic.” Id. at 15, 24. 

The Commission agreed with the respondent, and found that, because there was no 

indication that the respondent needed to remove the timber structure to examine the surrounding 

ground, there was no failure to examine. Id. While the majority and the Secretary focus on the 

“pinpoint the hazards” requirement, they fail to either note or notice that “examination,” means a 

“careful visual inspection.” Asarco, 14 FMSHRC at 945. 

38 FMSHRC Page 2139
C. The Secretary’s Interpretation Does Not Give Fair Warning of the

Conduct Section 57.3401 Prohibits or Requires.

It is well understood that adjudicators need not defer to an interpretation that does not 

give fair warning of the conduct a regulation prohibits or requires: 

To defer to the agency’s interpretation in this circumstance would 

seriously undermine the principle that agencies should provide 

regulated parties “fair warning of the conduct [a regulation] 

prohibits or requires.” Gates & Fox Co. v. Occupational Safety and 

Health Review Comm’n, 790 F.2d 154, 156 (C.A.D.C. 1986) 

(Scalia, J.). Indeed, it would result in precisely the kind of “unfair 

surprise” against which our cases have long warned. 

Christopher, 132 S.Ct. at 2167 (footnote omitted). 

In Christopher, the Supreme Court warned that deference to an agency interpretation for 

which there was not fair notice, “would seriously undermine the principle that agencies should 

provide regulated parties ‘fair warning of the conduct [a regulation] prohibits or requires.’” 132 

S.Ct. at 2167 (alteration in original) (quoting Gates & Fox Co., 790 F.2d at 156). Because we

concur with Part II.B of the majority’s decision, we necessarily would find that the Secretary’s

new interpretation does not give Hecla fair warning of what was required under section 57.3401.

As the majority succinctly held, “a reasonably prudent person familiar with the mining industry

would not have known that the examination and testing requirement in section 57.3401 might

demand a geomechanical or engineering analysis.” Slip op. at 9. The majority, however, defies

precedent in nevertheless affording the Secretary deference even though the Supreme Court has

stated explicitly that deference is not warranted in exactly this situation.

The majority appears to glean this bifurcated, two-step consideration from General 

Electric Co. v. U.S. EPA, 53 F.3d 1324 (D.C. Cir. 1995), a pre-Auer, pre-Christopher deference 

case. In that case, the D.C. Circuit found that the EPA’s interpretation of a regulation was 

permissible, but found that the “interpretation [was] so far from a reasonable person’s 

understanding of the regulations that they could not have fairly informed [the regulated party] of 

the agency’s perspective.” Id. at 1330. In relying on General Electric, the majority effectively 

disregards 20 years of subsequent, controlling precedent without comment in order to afford 

deference where it is unwarranted. 

Coal operators are required to perform pre-shift examinations in accordance with 30 

C.F.R. § 75.360. Section 75.360(b) states that “[t]he person conducting the preshift examination

shall examine for hazardous conditions and violations of the mandatory health and safety

standards . . . . test for methane and oxygen deficiency, and determine if the air is moving in its 

proper direction.” Section 75.360(b) does not contain any requirement for, or indeed any mention 

of, a requirement to perform a geomechanical or engineering analysis. The absence of a 

comparable requirement in a comparable standard serves to illustrate that a reasonably prudent 

miner would not recognize a geomechanical analysis to be an inherent part of an “examination.” 

38 FMSHRC Page 2140
The majority states that section 57.3401 has “consistently been applied in a more limited 

fashion” than that which the Secretary seeks in this case. Slip op. at 9. This is quite the 

understatement. The preamble to the final rule contains no mention of the Secretary’s new 

requirement, nor does MSHA’s Program Policy Manual. See IV MSHA, U.S. Dep’t of Labor, 

Program Policy Manual, Part 57, at 12 (2003). In fact, we are unaware of any instance where the 

Secretary has imposed or even sought to impose such a requirement on any mine operator in the 

thirty years since the regulation was issued. Because the Secretary has never asserted his new 

interpretation in any format whatsoever, the Commission finds that no reasonably prudent person 

in the mining industry would have suspected that section 57.3401 required a geomechanical or 

engineering analysis. Under the Supreme Court’s analysis in Christopher, this is precisely a 

situation in which deference should not be given. 

D. The Secretary’s Interpretation Would Impose New Liability in a Case

Involving Fines or Damages.

Finally, in terms of the Christopher standard, courts need not defer to an agency’s 

interpretation “where doing so would impose ‘new liability . . . on individuals for past actions 

which were taken in good-faith reliance on [agency] pronouncements’ or in a case involving 

‘fines or damages.’” Christopher, 132 S.Ct. at 2167 (alterations in original) (quoting NLRB v. 

Bell Aerospace Co., Div. of Textron, Inc., 416 U.S. 267, 295 (1974)). 

“In penalty cases, courts will not accord substantial deference to an agency’s 

interpretation of an ambiguous rule in circumstances where the rule did not place the individual 

or firm on notice that the conduct at issue constituted a violation of a rule.” 1 R. Pierce, 

Administrative Law Treatise § 6.11, p. 543 (5th ed. 2010); see also Christopher, 132 S.Ct. at 

2167 n.15 (quoting Pierce for the same proposition). In Christopher, the Court found that the 

agency engaged in just such a practice: 

It is one thing to expect regulated parties to conform their conduct 

to an agency’s interpretations once the agency announces them; it 

is quite another to require regulated parties to divine the agency’s 

interpretations in advance or else be held liable when the agency 

announces its interpretations for the first time in an enforcement 

proceeding and demands deference. 

Accordingly, whatever the general merits of Auer deference, it is 

unwarranted here. 

132 S.Ct. at 2168. 

In the present penalty proceeding, we concur with the majority that Hecla and Bayer 

should not be held liable for violating section 57.3401 because they had no notice whatsoever of 

the Secretary’s current interpretation. There is no distinction between this case and the Supreme 

Court’s statements in Christopher. The Secretary is attempting to assert a new interpretation that 

no reasonable person in the mining industry could have foreseen in order to impose a duty on 

Hecla and Bayer of which they had no notice, and the Secretary has proposed penalties of 

38 FMSHRC Page 2141
$159,100 and $4,500 for Hecla and Bayer, respectively. In nevertheless deferring to the 

Secretary, the majority disregards clear precedent without comment. As the First Circuit has 

found, “deference is inappropriate where significant monetary liability would be imposed on a 

party for conduct that took place at a time when that party lacked fair notice of the interpretation 

at issue.” Sun Capital Partners III, LP v. New England Teamsters & Trucking Ind. Pension 

Fund, 724 F.3d 129, 141 (1st Cir. 2013). 

III. Under Skidmore Deference, the Secretary’s Interpretation Lacks the Power to

Persuade.

Here, there is no doubt that the position taken by the Secretary is simply a litigating 

position adopted at the late stage of review before the Commission. As the majority agrees, there 

is no hint that MSHA has ever taken such a position in the past, and the interpretation was 

crafted by the Secretary’s attorneys for presentation to the Commission itself. Though we would 

find the Secretary’s litigation opinion is not entitled to deference, it is useful to demonstrate that 

the interpretation fails to satisfy the familiar elements of a Skidmore review: “[the] thoroughness 

evident in [the agency’s] consideration, the validity of its reasoning, its consistency with earlier 

and later pronouncements, and all [other relevant] factors.” United States v. Mead Corp., 533 

U.S. 218, 228 (2001) (quoting Skidmore, 323 U.S. at 140). As set forth below, an analysis of 

these factors demonstrates the litigating position of the Secretary has no power to persuade. 

A. There Is No Evidence of a Thorough Consideration.

MSHA promulgated section 57.3401 on October 8, 1986. Since that date, MSHA has not 

proposed any amendment to the regulation or issued any formal or informal guidance suggestive 

of the interpretation offered in this litigation. Indeed, even in this litigation, the Secretary’s 

lawyers rather than MSHA propose the interpretation for the first time before the Commission. 

There is no evidence any policymaker within MSHA has ever considered the interpretation. The 

Secretary’s lawyers developed the interpretation in an effort to sustain the application of a clearly 

irrelevant regulation to a tragedy to which the appropriate standard was fully applied. Thus, there 

is no evidence that MSHA has interpreted the regulation at all, let alone thoroughly. 

B. The Secretary’s Reasoning for the Proffered Interpretation Does Not

Support His Interpretation.

The majority offers the best consideration of this factor by concluding in its decision that 

no reasonable person would have understood the section to mean the interpretation now posited 

by the Secretary. Slip op. at 9. We must be careful to understand here that this element refers to 

the reasoning for the interpretation of the standard, not whether a standard as proposed by the 

Secretary’s clearly incorrect interpretation might be useful. As demonstrated below, a post hoc 

interpretation of a long-existing standard is not a legitimate substitute for rulemaking, including 

public notice and opportunity to comment. See infra Part IV. 

38 FMSHRC Page 2142
C. The Proffered Interpretation Is Not Consistent with Prior

Interpretations.

The Secretary has not cited any prior interpretation of section 57.3401 that is consistent 

with, or that would even hint at, the interpretation taken by the Secretary before us. Indeed, as 

described above, in Asarco, the Secretary took the position that “a scaling bar is the proven and 

effective means of testing for loose ground.” Asarco, 14 FMSHRC at 948. 

D. Other Relevant Factors

Three other factors demonstrate that the Secretary’s litigating position has no power to 

persuade. We discuss them briefly. 

First, as the majority also finds, acceptance of the Secretary’s interpretation would 

deprive the operator of fair notice. Slip op. at 2, 9. Further, adoption of such interpretation would 

amount to promulgation of a new substantive requirement without public notice and comment. 

Certainly, implementation of an interpretation resulting in denial of fair notice and basic 

statutory rights is not persuasive. 

Second, the proffered interpretation is completely undefined and, as offered by the 

Secretary, still does not provide fair notice or guidance as to how mine operators should apply 

such an interpretation in the future. The Secretary never explains what the interpretation offered 

by it in this case means operators must actually do in future situations. Section 57.3360 is clear: 

operators must provide adequate ground support. But the Secretary’s “interpretation” in this case 

regarding section 57.3401 is simply that the operator did not perform an analysis that, in 

hindsight, it should have performed. There is no guidance whatsoever as to the scope of duties 

the proffered interpretation would require in ongoing operations. 

The majority simply couches the requirement in terms of “the use of novel and more 

hazardous mining techniques without prior technical analysis,” thereby incorporating three 

hopelessly ambiguous elements into a mandatory safety standard — “novel mining techniques 

and more hazardous mining techniques without prior technical analysis.” See slip op. at 6. What 

is a “novel” technique? What is a “more hazardous” technique? What is a “prior technical 

analysis?” In the absence of guidance, the interpretation offered by the Secretary amounts to a 

hopelessly vague invitation for post hoc citations. If something goes wrong, the operator should 

have done more because the activity was “novel” or “more hazardous” or required some 

previously never used sort of “prior technical analysis.” Such an interpretation is unenforceable 

as hopelessly vague. Certainly, it is not a persuasive interpretation of section 57.3401. 

IV. The Secretary’s Interpretation Is a Legislative Rule, Requiring Notice-andComment Rulemaking.

Here, the Secretary essentially seeks to issue a new legislative rule under the guise of 

interpreting an existing one. That is impermissible. The unlawfulness of an agency seeking to 

create a new legislative rule through a litigation interpretation overlaps to a certain extent with 

the absence of fair notice and the failure of a litigating position to reflect a fair and considered 

38 FMSHRC Page 2143
judgment of agency policymakers. However, this element of our review implicates the 

indispensable right to notice and opportunity for public comment before imposition of 

substantive obligations—a bedrock principle of administrative law. 

Two principles are at play: (1) the right of citizens to express their views on government 

actions imposing obligations enforced by fines before imposition of the obligations, and (2) the 

interest of rulemaking that results in clear, feasible, and enforceable standards. Here, for 

example, the “rule” resulting from the Secretary’s litigating position portends enforcement 

though large fines, but the contours of the “rule” are completely undefined. 

“Legislative rules have the ‘force and effect of law’ and may be promulgated only after 

public notice and comment.” Nat’l Mining Ass’n v. McCarthy, 758 F.3d 243, 250 (D.C. Cir. 

2014) (quoting INS v. Chadha, 462 U.S. 919, 986 n.19 (1983)). Thus, “[a]n agency action that 

purports to impose legally binding obligations or prohibitions on regulated parties — and that 

would be the basis for an enforcement action for violations of those obligations or requirements 

— is a legislative rule.” Id. at 251. Interpretive rules, on the other hand, are not required to go 

through notice and comment rulemaking. Id. at 250 (citing 5 U.S.C. § 553(b)(3)(A)). “[A]n 

agency action that merely interprets a prior statue or regulation, and does not itself purport to 

impose new obligations or prohibitions or requirements on regulated parties, is an interpretive 

rule.” Id. at 252. 

In American Mining Congress v. MSHA, 995 F.2d 1106, 1112 (D.C. Cir. 1993), the D.C. 

Circuit articulated criteria to determine whether an asserted “interpretative rule” is actually a 

legislative rule that requires notice and comment.14 The criteria for determining whether an 

interpretation of a regulation is a legislative rule, and thus subject to notice and comment, 

applicable to this case are: 

(1) Whether in the absence of the interpretive rule there would not

be an adequate legislative basis for enforcement action or other

agency action to confer benefits or ensure performance of

duties;

(2) Whether the legislative rule the agency is claiming to interpret

is too vague or open-ended to support the alleged interpretive

rule;

14 Initially, the court identified four criteria, including “whether the agency has published 

the rule in the Code of Federal Regulations.” Am. Mining Cong., 995 F.2d at 1113. However, in 

Health Ins. Ass’n of Am. v. Shalala, 23 F.3d 412, 423 (D.C. Cir. 1994), the court stated that 

publication or lack therefor has never been taken “as anything more than a snippet of evidence of 

agency intent.” Professor Pierce in Administrative Law Treatise characterizes this as having 

reduced the criteria to three. 1 Pierce, supra, § 6.4, at 453. Subsequently, in Gonzales v. Oregon, 

546 U.S. 243, 257 (2006), the Supreme Court articulated an “anti-parroting rule,” which Pierce 

explains is an application of the rule, also articulated in American Mining Congress, that an 

agency cannot use an interpretive rule to provide real content to amorphous legislative rules. 1 

Pierce, supra, § 6.4, at 453. 

38 FMSHRC Page 2144
(3) Whether the interpretive rule effectively amends a prior

legislative rule.

1 Richard J. Pierce, Jr., Administrative Law Treatise § 6.4, at 454. If the answer to any of these 

questions is affirmative, the newly proffered interpretation is a legislative rule. Id. 

First, in the absence of the Secretary’s litigating position, section 57.3401 clearly does 

not require an operator to conduct a geomechanical and engineering analysis prior to mining. As 

the majority correctly found, no reasonable person in the mining industry would have interpreted 

§ 57.3401 to include that requirement, and there is no indication that the Secretary, prior to this

litigation, would have done so either. This new interpretation is legally binding on the regulated

parties, as evidenced by the fact that the Secretary seeks to assess large penalties in this case,

even though Hecla and Bayer had no notice that section 57.3401 could be read to require a

geomechanical or engineering test.

Second, the Secretary’s interpretation would render the words of section 57.3401 so 

vague and open-ended as to mock the rationale for the Administrative Procedure Act. To 

characterize this interpretation as “interpretive” would allow the Secretary to conduct rulemaking 

while bypassing the APA’s notice and comment requirements. 

Third, because the Secretary, Commission, and any reasonable person in the mining 

industry have never considered section 57.3401 to contain the Secretary’s new requirement, the 

Secretary is, effectively, amending section 57.3401 to include the requirement of a geotechnical 

and engineering analysis. 

There can be no dispute that the Secretary’s new interpretation is a substantive 

amendment to expand the existing rule. Such an expansion of a substantive rule may issue only 

after notice-and-comment rulemaking. 

38 FMSHRC Page 2145
CONCLUSION 

For the reasons stated above, we find no reason to defer to a post-hearing litigating 

position that plainly conflicts with the words and well-understood purpose of section 57.3401 

and would impose liability without any prior notice of its interpretation. Therefore, while we 

concur with affirming the Judge’s decision, we dissent with respect to the majority’s 

interpretation of section 57.3401. 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner 

38 FMSHRC Page 2146
Appendix A

38 FMSHRC Page 2147

COMMISSION ORDERS
38 FMSHRC Page 2148
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710 

August 17, 2016 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH Docket Nos. CENT 2015-151-RM 

 ADMINISTRATION (MSHA) CENT 2015-152-RM 

 CENT 2015-185-M 

 and 

UNITED STEELWORKERS, LOCAL 235A 

 v. 

SHERWIN ALUMINA COMPANY, LLC 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2012). On October 30, 2015, the Commission granted the petition filed by

Sherwin Alumina Company, LLC (“Sherwin”) seeking review of the decision of the Judge in

38 FMSHRC Page 2149
this proceeding dated October 5, 2015. Sherwin has now moved to dismiss the pending review 

proceeding due to bankruptcy, and states that the Secretary of Labor and the United Steelworkers 

have stated that they neither support nor oppose the motion. 

The motion is granted and this case is hereby dismissed. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner 

38 FMSHRC Page 2150
ADMINISTRATIVE LAW JUDGE DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004 

TELEPHONE: (202) 434-9900 / FAX: (202) 434-9949 

August 6, 2016 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

v. 

ASH GROVE CEMENT COMPANY, 

 Respondent 

CIVIL PENALTY PROCEEDINGS: 

Docket No. WEST 2014-963 

A.C. No. 45-00359-356120

Docket No. WEST 2015-503 

A.C. No. 45-00359-375229

Docket No. WEST 2015-523 

A.C. No. 45-00359-377531

Mine: Seattle Plant 

DECISION 

Appearances: Daniel Brechbuhl, Esq., Office of the Solicitor, U.S. Department of Labor, 

Denver, Colorado, for Petitioner 

John Nelson, Esq., Ash Grove Cement Company, Overland Park, Kansas, 

for Respondent 

Before: Judge Barbour

These cases are before me upon three Petitions for the Assessment of Civil Penalty filed 

by the Secretary of Labor (“Secretary”) on behalf of his Mine Safety and Health Administration 

(“MSHA”) under section 105(d) of the Federal Mine Safety and Health Act of 1977 (“the Mine 

Act” or “the Act”). 30 U.S.C. § 815(d). Between May and August 2014, the Secretary issued 

four citations to Respondent, Ash Grove Cement Company (“Ash Grove”), for alleged violations 

of 30 C.F.R. §§ 56.18002(a), 56.14110, 50.10, and 50.12 at its cement plant (the “Seattle Plant”), 

which is located in King County, Washington. 1 Ash Grove filed an answer denying the 

violations occurred, or if they did, challenging the Secretary’s gravity and negligence findings 

and his proposed civil penalties. 

1

 Citation Nos. 8780591 (30 C.F.R. § 56.18002(a)) and 8611830 (30 C.F.R. § 56.14110) 

were assigned Civil Penalty Docket No. WEST 2014-963. Citation No. 8780422 (30 C.F.R. § 

50.10) was assigned Civil Penalty Docket No. WEST 2015-503. Citation No. 8780423 (30 

C.F.R. § 50.12) was assigned Civil Penalty Docket No. WEST 2015-523. Subsequently, the

cases were consolidated for hearing and decision.

38 FMSHRC Page 2151
Despite their good faith efforts the parties were unable to settle any of the citations and 

the cases were tried in Seattle, Washington. The parties presented testamentary and documentary 

evidence and filed post hearing briefs. 

I. Stipulations

1. During all times relevant in this matter, Ash Grove was the “operator” as defined

in Section 3(d) of the Mine Act, at the Seattle Plant.

2. Between May 22, 2014, and August 4, 2014, MSHA inspected the [plant].

3. The individuals whose signatures appear on Block 22 of the citations were acting

in their official capacities and as authorized representatives of the Secretary when

the citations were issued.

4. True copies of the citations were served on Ash Grove as required by the Mine

Act.

5. The certified copy of the MSHA Assessed Violations’ History reflects the history

of the citation issuances at the Mine for the 15 months preceding the citations at

issue and may be admitted into evidence without objection by Ash Grove.

6. Ash Grove demonstrated good faith in the abatement of the citations.

7. Payment of the proposed penalties will not affect Ash Grove’s ability to remain in

business.

Tr. 248-249, 250. 

II. The Mine and Citations

Ash Grove has nine manufacturing locations in the Midwest, West and Northwest. Tr.

106. Ash Grove’s Seattle Plant is primarily used to process limestone and other components used

to make cement. Tr. 22. Limestone is a rocky and sometimes powdery material that is milled and

mixed with other products in a kiln as part of the cement making process. Tr. 23. The plant

operates 24 hours a day, every day of the year, in two, twelve hour shifts. Tr. 22. The plant is an

extensive operation with a barge for loading and unloading, a kiln, various milling processes,

maintenance and repair shops, and roads for both vendor and company trucks to access various

parts of the plant. Tr. 23.

Citation Nos. 8780591 and 8611830 were served upon Ash Grove on May 22, 2014, and 

May 28, 2014, respectively, as a result of a regular MSHA inspection of the plant. Citation Nos. 

8780422 and 8780423 were served upon Ash Grove on August 4, 2014, as a result of MSHA’s 

investigation of an accident that injured an employee of a plant customer. The citations involve 

different standards and distinct factual circumstances and as such will be addressed in turn. 

38 FMSHRC Page 2152
III. Factual and Legal Analysis 

A. Citation No. 8780591, Docket No. WEST 2014-963 

On May 22, 2014, MSHA Inspector Michael Nelson arrived at the plant to conduct a 

regular inspection.2 Tr. 21. Nelson maintained that during the inspection he observed various 

hazardous conditions including, “unprotected openings,” unlabeled electrical panels, 

insufficiently illuminated areas, several “housekeeping issues,” and “slip/trip” hazards. Tr. 38. 

Many of the alleged hazards were located at or near elevators and hoisting equipment.3

 Tr. 38 

When Nelson asked a company representative for examination records of the areas where 

he observed the alleged hazards, he received records that he described as “extremely vague.”4 

Tr. 38-39. Also, according to Nelson, there were several days and shifts with no workplace 

examination records, which indicated to Nelson that no workplace examinations had been 

conducted on those days and shifts. Tr. 36. 

Nelson spoke to Gerry Brown, Ash Grove’s Health and Safety Manager, regarding the 

workplace examinations, or lack thereof. 5 Tr. 31. Brown indicated that there was no procedure in 

place for workplace examinations on elevators or adjacent areas because Ash Grove relied solely 

on inspections conducted by its contractor, Otis Elevator. Tr. 31. 

Because of the hazards noted and the lack of consistent workplace examinations, Nelson 

issued Citation No. 8780591 to the company for an alleged violation of 30 C.F.R. § 56.18002(a), 

                                                             2

 At the time of the hearing, Nelson had been an MSHA inspector for seven and one half 

years. Tr. 19. Nelson estimates that he has completed several hundred inspections during his 

MSHA career. Tr. 20. Prior to working for MSHA, Nelson was an Environmental Health 

Specialist for 16 years. Tr. 20. Nelson earned a bachelor’s degree in biology at Gonzaga 

University in Spokane, Washington. Tr. 20. Before college he served eight years in the United 

States Navy. Tr. 20. 

3

 Nelson testified that the plant has two types of elevators. The elevators in the 

administrative building are used to transport passengers, while the elevators in the plant serve to 

move both freight and miners. There are five elevators in total. Tr. 25-26. According to Nelson, 

the “hoisting equipment” is compromised of the mechanical parts that lift and lower the 

elevators. Tr. 26 

4

 Nelson understood that when a workplace examination is completed a written record is 

required which details the exact workplace that was examined and describes the safety defects 

that were identified. Tr. 39. These examination records must be kept for at least twelve months. 

Tr. 36. 

5

 Gerry Brown retired on May 24, 2014. Tr. 35. From that point forward, Nelson 

discussed citation and safety issues at the plant with Craig Becker, who replaced Brown as health 

and safety manager. Tr. 35. 

38 FMSHRC Page 2153
a regulation requiring the examination of a working place at least once per shift.6

 The citation 

states: 

Complete workplace exams had not been conducted and hazards 

[were] noted in several areas of the mine. The operator presented 

records of some workplace exams being conducted but there were 

many obvious hazards evident at the mine during the inspection.

Hazards identified had existed for more than one shift. Were 

miners to have accidents due to unabated hazards at the mine, 

serious injuries would occur. 

G. Ex. 3. 

 Nelson found that the alleged violation was “reasonably likely” to result in “lost 

workdays or restricted duty,” that one person was affected, and that the violation was the result 

of Ash Grove’s “high negligence.” He also found that the alleged violation was a significant and 

substantial contribution to a mine safety hazard (an “S&S” violation).7

 G. Ex. 3. 

 Inspector Richard Dreyer8 modified the citation on June 16, 2014, to add the following 

statement: 

Additionally, the operator did not have an established procedure or 

requirement for conducting workplace exams, or daily operational 

inspection and testing of hoisting equipment of the five elevators in 

use at this site. 

 

                                                             6

 30 C.F.R. § 56.18002(a) requires that, “A competent person designated by the operator 

shall examine each working place at least once each shift for conditions which may adversely 

affect safety or health. The operator shall promptly initiate appropriate action to correct such 

conditions.” 

30 C.F.R. § 56.2 defines a “competent person” as “a person having abilities and 

experience that fully qualify him to perform the duty to which he is assigned.” 

“Working place” is defined as “any place in or about a mine where work is being 

performed.” 30 C.F.R. § 56.2. 

7

 An S&S violation is a violation “of such a nature as could significantly contribute to the 

cause and effect of a . . . mine safety or health hazard.” 30 U.S.C. § 814(d). 

8

 Richard Dreyer presently is a Health Specialist in MSHA’s Dallas, Texas District 

Office, but at the time of the inspection, Dreyer was an inspector in MSHA’s Kent, Washington 

Field Office. Tr. 78. Dreyer has five years of experience working for MSHA and has completed 

hundreds of inspections. Tr. 79. Before joining MSHA, he worked at a sand and gravel operation 

in Washington state for seven or eight years. Tr. 79. 

38 FMSHRC Page 2154
The citation, as amended, further reads: 

The purpose of this modification is to include the elevator exams 

as additional areas cited for failure to complete workplace exams. 

G. Ex. 3.9

 Ash Grove terminated the citation by retraining miners and shift supervisors on 

workplace exams including elevator checks. G. Ex. 3. 

1. Fact of The Violation 

As written, Citation No. 8780591 is a two-part citation. Tr. 35-36; G. Ex. 3; R. Br. 4. The 

Secretary originally cited Ash Grove for incomplete workplace examinations, and the 

modification to the citation more specifically alleges inadequate examinations of the plant’s 

hoisting equipment. G. Ex. 3. Essentially, the citation is grounded on: 1) allegedly incomplete 

workplace exams in various parts of the mine, and 2) the failure to examine the plant elevators’ 

hoisting equipment. The citation will be analyzed accordingly. 

a. The First Prong of 8780591 

In charging Ash Grove with a violation of Section 56.18002(a), the citation alleges that 

Ash Grove failed to conduct complete workplace examinations as evidenced by the hazards that 

Nelson identified in his inspection. The citation states that although Ash Grove presented some 

examination records there were still “obvious hazards” evident. G. Ex. 3. 

Section 56.18002 requires that a competent person designated by the operator examine 

each working place once per shift for hazardous conditions and that the operator initiate 

“appropriate action” to remedy those conditions. 30 C.F.R. § 56.18002. The Commission has 

held that “[t]he pertinent requirements of 30 C.F.R. § 57.18002 are three-fold: (1) daily 

workplace examinations are mandated for the purpose of identifying workplace safety or health 

hazards; (2) the examinations must be made by a competent person; and (3) a record of the 

examinations must be kept by the operator. FMC Wyoming Corp., 11 FMSHRC 1622, 1628 

(Sept. 1989).10 Additionally, in a recent case, the court has set forth its understanding of Section 

56.18002(a) and what the Secretary must do to prove a violation. 

[A]s the court understands the standard, it applies to places where 

work is being performed during a shift, where work is assigned to 

                                                             9

 Nelson testified that he initially issued a citation to Ash Grove for its alleged failure to 

have a procedure for inspecting and testing hoisting equipment, but that citation was vacated, and 

the condition or practice cited was incorporated into Citation No. 8780591. Tr. 32-33; G. Ex. 3 p. 

6. Dreyer modified the citation because Nelson had been called to do an inspection in Alaska. Tr. 

32-34. 

10 Section 57.18002 applies to the nation’s underground metal and non-metal mines, 

whereas Section 56.18002 applies to the nation’s surface metal and non-metal mines. The 

standards are identically worded and the principals set forth by the Commission in FMC 

Wyoming pertain to both. 

38 FMSHRC Page 2155
be performed during a shift, or where work can reasonably be 

expected to be performed during a shift . . . . To prove a violation 

the Secretary must show that a designated competent person did 

not conduct any such examinations either on the shift during which 

the inspection was conducted or did not perform any such 

examinations during a specifically identified prior shift. 

Cemex Construction Materials, Atlantic, LLC, 38 FMSHRC ___, 

slip op. at 13, No. SE 2014-328-M (Apr. 29, 2016). 

Here, the court finds that the Secretary has not met his burden of proof. The Secretary’s 

allegations as to the incomplete examinations are so vague they fail for lack of specificity. 

Section 56.18002(a) requires specificity in that it applies to “each working place.” As discussed 

above, the court has held that in order to prove a violation, the Secretary much show that a 

designated competent person did not conduct a workplace examination on 1) the shift during 

which the inspection occurred, or 2) during a specifically identified prior shift. Cemex 

Construction Materials, Atlantic, LLC, 38 FMSHRC ___, slip op. at 13, No. SE 2014-328-M 

(Apr. 29, 2016). 

Nelson did not describe the hazards observed during his inspection, and he did not link a 

hazard observed in a specific area with a failure to designate a competent person to perform an 

examination of the area. Nor did the Secretary establish through direct and circumstantial 

evidence that required examinations were not done, or if they were done, that a competent person 

did not conduct them. In fact, Nelson conceded that inspections were done, albeit not well 

recorded. Tr. 36. As Ash Grove notes in its brief, Nelson himself agreed he did not give any 

specific testimony as to specific areas that were not examined. Tr. 67; R. Br. 3. Nor did Nelson 

offer testimony as to the precise hazards observed, and what should have been written in an 

examination record had Ash Grove complied with the standard. See e.g., Tr. 38-40. 

In sum, the court concludes there is insufficient evidence to prove that Ash Grove 

performed incomplete workplace examinations as alleged in the first prong of Citation No. 

8780591. This leaves the later amended portion of the citation to be addressed. 

b. The Second Prong of Citation No. 8780591 

The second prong of Citation No. 8780591 alleges that Ash Grove did not have an 

established procedure or requirement for conducting workplace exams or inspections and testing 

of the hoisting equipment on the mine’s elevators. G. Ex. 3, p. 2. The Secretary argues elevators 

are “working places,” requiring examinations, as anticipated by § 56.18002(a), and that Ash 

Grove’s admitted failure to inspect elevators constitutes a violation of the standard. G. Br. 6-11. 

The Secretary also argues that the operator had fair notice of the standard’s requirements as 

applied to elevators. G. Br. 10-11. The Respondent counters that elevators are not “working 

places,” and further that it did not have notice that regular inspections of elevators were required 

under § 56.18002(a). There are two relevant issues that must be analyzed when addressing the 

second prong of 8780591. They are whether the Secretary has proven that hoisting equipment of 

each of the five elevators is a Section 56.18002(a) “working place,” and whether Ash Grove had 

fair notice of MSHA’s interpretation of the standard. The court finds that the second prong of the 

38 FMSHRC Page 2156
citation fails because the Secretary did not prove that the hoisting equipment is a working place 

and also because affirming the citation would deprive the operator of due process. 

 A précis of the background of the Secretary’s “elevator examination” requirement is 

helpful before addressing the alleged violation. In February 2014 a fatality involving an elevator 

occurred at a cement plant located in the eastern United States. Tr. 30, 47. An employee working 

at the plant called an elevator. The doors opened, although the elevator car was not at the 

landing. Tr. 30. The employee stepped into the empty shaft and fell about 50 feet down the shaft. 

The employee died from his injuries. Tr. 30. In response, MSHA gave specific training regarding 

elevator inspections to all of MSHA’s non-metal inspectors. Tr. 30, 47. Later that month, MSHA 

also issued a “fatalgram” regarding this incident.11 Tr. 47, 109; Jt. Ex. 3. Nelson testified that 

after the incident MSHA emphasized checking elevators during inspections. Tr. 47. 

c. The Secretary Failed to Prove that the Cited Elevator Hoisting 

Equipment is a Section 18002(a) “Working Place” 

Whether § 56.18002(a) applies to elevators depends on the definition of “working place” 

in the standard, and whether the definition subsumes mine elevator hoisting equipment. Working 

place” is defined in the standard as “any place in or about a mine where work is being 

performed.” 30 C.F.R. § 56.2. MSHA’s Program Policy Manual regarding workplace 

examination states: 

The phrase “working place” is defined in 30 C.F.R. §§ 

56/57.18002(b) as: “any place in or about a mine where work is 

being performed.” As used in the standard, the phrase applies to 

those locations at a mine site where persons work during a shift in 

the mining or milling processes. 

Jt. Ex. 1 

Ash Grove contends that the elevators involved in the inspection were not “working 

places” because work was not being done at the time of the MSHA inspection. R. Br. 9-10. Ash 

Grove asserts that the plain language of “working place” as defined in § 56.2 clearly exempts the 

elevators mentioned from the standard because there was no evidence that work was being done 

on the elevators at the time the citation was issued and that the hoisting equipment mentioned by 

Nelson was in a room near the elevator, a room that is not considered a “public place.” R. Br. 10. 

The Secretary argues that the standard applies to the landing area, the inside of an 

elevator car, and in a limited capacity to the hoisting area and pit areas that are generally used 

                                                             11 A “fatalgram” is a summary of an accident by MSHA that is disseminated to the 

mining industry; it lists recommended best practices for operators to avoid similar occurrences. 

38 FMSHRC Page 2157
only by licensed contractors. G. Br. 6-7. 12 The Secretary argues that the term “working places” 

applies to Ash Grove’s elevators “because miners perform work [on the elevator] by moving 

equipment, supplies, and themselves throughout the floors of the buildings.” G. Br. 10. The 

Secretary states that his interpretation and MSHA’s application of the standard are “reasonably 

clear.” G. Br. 6. 

As the court stated in Cemex, there is no duty to “examine all elevators simply because 

they are elevators.” Cemex, 32 FMSHRC at 13 (ALJ). Here, Ash Grove was charged with failing

to examine the “hoisting equipment of the five elevators . . . at [the plant].” Gov. Exh.3. 

Therefore, the Secretary must show that the cited parts, in this case, the hoisting equipment of 

each of the five elevators, and the adjacent areas are working places, i.e., places “where “workrelated task[s]” involving the hoisting equipment “[were] being performed, [were] assigned to be 

performed but not yet started, or where such . . . task[s] reasonably could be expected to be 

performed.” Id. at 14. 

The Secretary’s evidence does not meet this test with regard to the hoisting equipment 

and the adjacent areas on any of the five elevators. Nelson did not testify as to the specific 

elevator hoisting equipment where he observed safety hazards, nor did he testify what work was 

being performed (or expected to be performed) in the areas where the equipment was housed to 

bring any of them under the ambit of a “workplace.” Since he failed to meet the first step of 

identifying a working place, Nelson’s subsequent failure to identify a specific shift where a 

failure to examine occurred is inconsequential. 

Curiously, Nelson himself vacillated in regards to which of Ash Grove’s elevators are 

working places. The narrative portion of Citation No. 8780591 alleges that “[t]he operator did 

not have an established procedure or requirement for conducting workplace exams, or daily 

operational inspection of the five elevators in use at this site.” G. Ex. 3, p. 2 (emphasis added). 

Nelson testified that he considered landings, hoisting rooms, and places that miners would travel 

or work on an elevator to be working places. Tr. 29. The court asked if there were such areas 

involved with all five of Ash Grove’s elevators. Tr. 29. Nelson testified that the passenger 

elevators in the administrative building would be an exception. Tr. 29. If so, then apparently only 

the three elevators in the plant area that transported both miners and freight should have been 

                                                             12 In support of the citation, Nelson stated that the areas immediately adjacent to work 

areas and landings and hoisting rooms that miners might work on or travel through in the 

performance of their work would be “working spaces,” because these areas directly affect the 

safety of miners in a given location. Tr. 29. Nelson testified that if “elevators are being used to 

transport persons or material then that is work being performed,” and the elevators are an integral 

part of the mining and milling process. Tr. 67, 73. He further testified that because these areas 

were “working spaces,” the workplace examination standard would require an inspection of the 

landings adjacent to the elevator, the mechanical room, inoperable lights in the hoisting room 

(adjacent to the elevator), communication devices in elevators, and call buttons. Tr. 27, 71-72. 

Nelson explained that a lay person would not have expertise in the minute, inner workings of an 

elevator, but should be able to observe broken wire, loose connections, or frayed ropes, but the 

inner workings should be inspected by whoever is contracted to maintain the elevator. Tr. 26-27. 

38 FMSHRC Page 2158
included in the citation. The court continues to be of the opinion that rather than try to make 

Section 56.18002(a) fit all elevators, the Secretary would be “well advised” to promulgate a 

mandatory standard “specifically directed to the . . . examination of . . .elevators.” Cemex Inc., 

32 FMSHRC __, slip op. at 14, n. 14. 

The court theretofore concludes the Secretary has not established a violation with regard 

to the second prong of the citation, because he has not met the burden of proving that the cited 

elevators and their hoisting equipment were “working places” as anticipated by Section 

18002(a). However, even if the court held otherwise, it would still vacate the citation on due 

process grounds. 

2. Fair Notice Analysis 

Due process considerations require that the court analyze whether Ash Grove had notice 

of MSHA’s interpretation of Section 56.18002(a). Ash Grove posits that it lacked fair notice of 

the Secretary’s interpretation of the standard as applied to elevators. R. Br. 12. The Secretary, 

anticipating a fair notice argument, states that Ash Grove had fair notice in that it should have 

known to complete basic visual inspections on elevators, that the term “working place” applies to 

the elevators because miners use them to move themselves and equipment and supplies, and that 

MSHA put the mining industry on notice by publishing a “fatalgram.” G. Br. 10-11. 

The Commission has held that “before a civil penalty may be imposed, due process 

considerations preclude the adoption of an agency's interpretation which ‘fails to give fair 

warning of the conduct it prohibits or requires.’” LaFarge North America, 35 FMSHRC 3497, 

3500 (Dec. 2013), quoting Gates & Fox Co. v. OSHRC, 790 F.2d 154, 156 (D.C. Cir. 1986). This 

fair notice requirement is deemed satisfied when a party has received actual notice of MSHA's 

interpretation of a regulation prior to enforcement of the standard. LaFarge North America, 35 

FMSHRC 3497, 3500 (Dec. 2013); Consolidation Coal Co., 18 FMSHRC 1903, 1907 (Nov. 

1996). In the absence of receiving actual notice of the Secretary’s interpretation, a respondent 

may be held to have fair notice if “a reasonably prudent person familiar with the mining industry 

and protective purposes of the standard would have recognized the specific prohibition or 

requirement of the standard.” Ideal Cement Co., 12 FMSHRC 2409, 2416 (Nov. 1990). 

A respondent has fair notice of the Secretary’s interpretation of a standard, justifying its 

enforcement, when either: (1) the plain language of the cited standard is clear and unambiguous; 

(2) the Secretary has issued guidance regarding its interpretation of the standard; (3) the 

company was given pre-enforcement warning; (4) previous citations were issued to the mine; or 

(5) a reasonably prudent person familiar with the mining industry and the protective purposes of 

the standard would have recognized the standard’s specific prohibition or requirement. Wolf Run 

Mining Co., 32 FMSHRC 1669, 1682 (2010); Lodestar Energy, Inc., 24 FMSHRC 689, 694-95 

(July 2002); Island Creek., 20 FMSHRC at 24-25; Morton Int'l, Inc., 18 FMSHRC 533, 539 

(Apr. 1996); General Elec. Co. v. EPA, 53 F.3d 1324, 129 (D.C. Cir. 1995); Ideal Cement Co., 

12 FMSHRC 2409, 2416 (Nov. 1990). These five fair notice facets will be reviewed in turn. 

a. Whether the Language of the Standard is Clear 

The fair notice analysis begins with the language of the standard, and whether this 

language is clear enough to provide the regulated entity, Ash Grove, with notice of the 

38 FMSHRC Page 2159
Secretary’s interpretation. When the plain language of a standard is clear and unambiguous, the 

Commission has held that the standard provides operators with fair notice. Dynamic Energy, 

Inc., 32 FMSHRC 1168, 1172 (Sept. 2010); Bluestone Coal Corp., 19 FMSHRC 1025, 1031 

(June 1997). 

Neither the Secretary nor Ash Grove asserts that the language of Section 56.18002(a) is 

ambiguous. However, they each offer diverging interpretations of the term “working place.” Cf. 

G. Br. 10; R. Br. 10. The Secretary asserts that Ash Grove had notice that workplace 

examinations were required on elevators, because they were “working places,” by virtue of 

miners using elevators for “moving equipment, supplies, and themselves throughout the floors of 

the building.” G. Br. 10. Conversely, Ash Grove avers that the definition of “working place in 

Section 56.2 indicates that the cited elevators were not working places, that there is no evidence 

that work was being performed in elevators at the time of the MSHA inspection, and that the 

hoisting equipment at issue was in a room that was not considered a “public place.” 

The Commission has held that competing reasonable interpretations of the plain language of a 

regulation indicate that its language may be ambiguous. Walker Stone Co. v. Secretary of Labor, 

156 F.3d 1076, 1081 (10th Cir. 1998). See also Alco Alumina & Chemicals, L.L.C., 23 FSMRHC 

911 (Sept. 2001). The court finds this to be the case. 

When the meaning of a standard is ambiguous, the Secretary's interpretation of his own 

regulation is sometimes accorded deference. See Auer v. Robbins, 519 U.S. 452 (1997); Udall v. 

Tallman, 380 U.S. 1, 16-17 (1965) (finding that reviewing body must “look to the administrative 

construction of the regulation if the meaning of the words used is in doubt”); Dynamic Energy, 

Inc., 32 FMSHRC 1168, 1171-72 (2010). However, deference is inappropriate if the agency’s 

interpretation is not reasonable or when it is “plainly erroneous or inconsistent with the 

regulation” or “when there is reason to suspect that the interpretation does not reflect the 

agency’s fair and considered judgment on the matter.” Christopher v. SmithKline Beecham 

Corp., __ U.S. __, __, 132 S. Ct. 2156, 2166 (2012) (internal quotations omitted) (citing Auer,

519 U.S at 462). This occurs when, for example, the agency's interpretation conflicts with a prior 

interpretation. See, e.g., Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 515 (1994).13

Deference to an agency’s interpretation in some circumstances is not required, if doing so could 

create “unfair surprise” or “seriously undermine the principle that agencies should provide 

regulated parties ‘fair warning of the conduct [a regulation] prohibits or requires.’” Christopher 

v. SmithKline Beecham Corp., __ U.S. __, __, 132 S. Ct. 2156, 2167 (2012) citing Gates & Fox 

Co. v. Occupational Safety and Health Review Comm'n, 790 F.2d 154, 156 (D.C. Ct. App. 1986). 

The Secretary’s interpretation that some elevators, their hoisting equipment and areas 

adjacent thereto are working places is a plausible reading of the standard, but not the only such 

reading. Moreover, an agency’s interpretation may be reasonable or permissible, but still fail to 

provide the operator fair notice. General Electric Co. v. EPA, 53 F.3d 1324, 1333-34 (D.C. Cir. 

1995); Phelps Dodge Corp. v. FMSHRC, 681 F.2d 1189, 1193 (9th Cir. 1982). Due process 

                                                             13 The parties submitted MSHA Program Policy Letter No. P15-IV-01 as Jt. Ex. 2. Tr. 68; 

Jt. Ex. 2. The Program Policy Letter (“PPL”) was issued on July 22, 2015, months after the 

citation was issued. The PPL adds that a working place “includes areas where work is performed 

on an infrequent basis.” The PPL thus expands the definition of working place to include not just 

actual working places, but potential places that may be utilized less frequently. Tr. 58-59. 

38 FMSHRC Page 2160
requires that regulations be sufficiently specific to “give the person of ordinary intelligence a 

reasonable opportunity to know what is prohibited.” Grayned v. City of Rockford, 408 U.S. 104, 

108 (1972).  

The court concludes that the language of Section 56.18002(a) did not give Ash Grove 

actual notice of the Secretary’s interpretation. Deference will not be accorded because doing so 

would result in an “unfair surprise” to Ash Grove, in an affront to due process requirements. 

b. The Agency’s Guidance Regarding Work Place Examinations 

Having found that the standard is ambiguous and that deference to the Secretary’s 

interpretation is inappropriate, another step in the fair notice analysis is necessary. An agency 

may also put a party on notice by issuing public statements and guidance regarding a regulation. 

When an agency gives no pre-enforcement warning, and instead uses a citation to announce its 

interpretation of a regulation, “[i]f, by reviewing the regulation and other public statements 

issued by the agency, a regulated party acting in good faith would be able to identify, with 

ascertainable certainty, the standards with which the agency expects parties to conform, then the 

agency has fairly notified a petitioner of the agency's interpretation.” General Electric Co. v. 

U.S. EPA, 53 F.3d 1324, 1329 (Ct. App. D.C. 1995). 

The Secretary contends in the instant case the fatalgram regarding the injury and death 

caused by a malfunctioning elevator was sufficient to charge Ash Grove with actual notice of the 

Secretary’s interpretation of the workplace examination standard. G. Br. 10; Jt. Ex. 3. According 

to Nelson, fatalgrams are “disseminated to the public” when MSHA posts them on its website, 

and they put operators on notice of a standard. Tr. 48. The onus is on an operator to monitor 

fatalgrams and incorporate proposed changes applicable to its mining operation. Tr. 48. The 

fatalgram issued shortly after the elevator fatality at another cement operation, lists the following 

“Best Practices:” 

Immediately report any elevator problems to management. 

Ensure that any problems affecting the safety of an elevator are 

repaired promptly. 

Ensure that elevator door interlocks, that prevent the door from 

being opened unless the elevator car is present, are functional. 

Ensure the elevator doors will not open unless an elevator car is at 

the floor landing. 

Install audible signals that sound when the elevator car is at the 

landing prior to the doors opening. 

Train all persons to be aware of their surroundings when entering 

or exiting an elevator car. 

Jt. Ex. 3. 

38 FMSHRC Page 2161
In the court’s opinion the fatalgram does not fairly notify the non-metal industry of 

workplace examination requirements because it does not describe elevators or their hoisting 

equipment as “working places,” nor does it discuss § 56.18002(a)’s requirements, and it fails to 

set out a best practice for systematic examinations of elevators and hoisting equipment. The 

fatalgram is laudable for bringing attention to a safety concern, but standing alone does not 

constitute adequate notice of the Secretary’s interpretation of elevators and associated areas as 

“working places” under the relevant standard. 

MSHA’s Program Policy Manual (“PPM”) regarding 30 C.F.R. §§ 56/57.18002 

addresses working place examination requirements. Jt. Ex. 1. The PPM states that MSHA 

intends to use the definition of “working place” found in Section 56.2 to define the “working 

place” in Section 56.18002(a). Id. The PPM further explains, “[a]s used in the standard, the 

phrase applies to those locations at a mine site where persons work during a shift in the mining 

or milling process.” Id. This implies that to be considered a working place, actual work is being 

performed at that location, not that the area is simply used as a travelway, or could be a potential 

working place. Ash Grove’s position that the cited hoisting equipment was not a working place 

actually comports with the PPM’s description of a “working place,” and the court finds it 

reasonable that Ash Grove would consider elevators and associated areas generally exempt under 

the standard unless work was being performed on them at a given time. The court concludes that 

the PPM, like the fatalgram, did not put Ash Grove on notice of the Secretary’s interpretation of 

the standard. 

c. The Agency’s Pre-Enforcement Warning, or Lack Thereof 

In the absence of a clear standard or official guidance regarding a standard, an agency's 

“pre-enforcement efforts” or “pre-violation” contact to achieve regulatory compliance may 

provide adequate notice. Gen. Elec. Co. v. U.S. E.P.A., 53 F.3d 1324, 1329 (D.C. Cir. 1995). The 

Secretary presented no evidence that he notified Ash Grove that examinations of elevators and 

hoisting equipment would be required or that a citation would be issued for the failure to perform 

them. 

d. Prior Citations Issued to Ash Grove 

The lack of actual notice is compounded by the fact that Ash Grove was never before cited 

for a failure to examine any of its elevators and/or the elevators’ hoisting equipment. Tr. 103-

104; G. Ex. 1. The emphasis on applying Section 56.18002(a) to elevators was a relatively new 

phenomenon, borne out of the agency’s response to a recent fatal elevator accident. 

e. The Commission’s Reasonably Prudent Person Test 

Having found that the company did not have actual notice of MSHA’s interpretation of 

the workplace examination standard based on the plain language of the standard, or guidance 

from the agency, the next question is whether a reasonably prudent person, familiar with the 

Mine Act and its protective purposes would have considered elevators and their hoisting 

equipment “working places” subject to Section 56.18002(a)’s inspection requirements. 

As stated, the Commission does not require that the operator be given actual notice of the 

Secretary’s interpretation of a standard in every circumstance, but rather uses an objective test, 

which asks, “whether a reasonably prudent person familiar with the mining industry and the 

38 FMSHRC Page 2162
protective purposes of the standard would have recognized the specific prohibition or 

requirement of the standard.” DQ Fire & Explosion Consultants, Inc., 36 FMSHRC 3083, 3087-

88 (Dec. 2014) (citing Ideal Cement Co., 12 FMSHRC 2409, 2416 (Nov. 1990).) 

Steve Minshall, Ash Grove’s Corporate Director of Safety and Health, testified that he is 

involved in setting company policy and giving guidance on conducting workplace 

examinations.14 Tr. 92. Minshall conducts plant-wide training on workplace examinations. Tr. 

93. He bases his training largely on the Program Policy Manual, the regulations, and related 

standards. Tr. 93-94. Minshall testified that his understanding of the workplace examination 

standard is that it requires a record of the examination, the name of the person doing the 

examination, a list of the areas inspected, and the date of the exam. Tr. 94. He understands a 

working place to be one where individuals are conducting work, not necessarily the plant’s 

elevators. Tr. 94. Minshall testified that Ash Grove has a systemic elevator maintenance 

program. The company’s elevator contractors are licensed and perform state inspections and 

maintenance that conforms to the state’s requirements. Minshall believes the contractor’s 

inspections and maintenance keep the plant in compliance with the Mine Act examination 

standard. Tr. 104. 

As evidenced by his position and experience, Minshall is familiar with the mining 

industry and the Act, as he often trains employees on the Act’s regulations. He gives no 

indication that he is anything other than reasonable. His belief that examinations by elevator 

contractors is in compliance with the Mine Act supports the contention that a reasonably prudent 

person in the mining industry would not think § 56.18002(a)’s requirements are applicable to all 

elevators. 

In addition, the testimony reveals that operators are not the only concerned entity that 

considers elevators to be something other than “working places.” Around the time the citation 

was issued, Minshall had a conversation with Harvey Kirk, a Health and Safety specialist at 

MSHA’s Headquarters in Arlington, Virginia, regarding the workplace examination 

requirements in light of the February 2014 elevator fatality. Tr. 102-103. Minshall credibly 

testified that Kirk has a background in the cement industry and that at the time Kirk was 

MSHA’s de facto “liaison” to the cement industry. Operators often consulted Kirk for guidance. 

Tr. 107. Kirk told Minshall that elevators were not considered “working places” under the 

standard requiring examinations every shift. Tr. 102-103. Ash Grove does not argue that it relied 

on Kirk’s guidance in shaping its workplace examination policy, and Minshall could not pinpoint 

an exact date of his conversation with Kirk. However, the court finds it telling that even an 

MSHA employee believed that the term “working places” did not include elevators. The opinion 

of these two individuals with vast experience in the non-metal industry, that elevators do not 

constitute “working places,” suggests that a reasonably prudent person familiar with the industry 

                                                             14 Steve Minshall has been the Corporate Director of Health and Safety for Ash Grove 

since 2008. Tr. 90. Before 2008 he was Ash Grove’s Corporate Health and Safety Manager. Tr. 

90. In total, Minshall has been involved in industrial safety for 37 years. Tr. 90. Presently he 

serves as the co-chair of the Portland Cement Association’s Occupational Health and Safety 

Committee. Tr. 91. Minshall has an undergraduate degree in biology and master’s degrees in 

public health, industrial hygiene, and communication studies. Tr. 91. Minshall earned a Certified 

Safety Professional Designation and is a Certified Industrial Hygienist. Tr. 91. 

38 FMSHRC Page 2163
and purposes of the Act would not have considered an elevator and its associated hoisting 

equipment to be a “working place.” 

Additionally, hoisting equipment examinations are governed by § 56.19120. 15 30 C.F.R. 

§ 56.19120; R. Br. 10. In fact, Nelson initially cited Ash Grove for a violation of this standard. 16

Tr. 32; G. Ex. 3, p.6. This standard requires a systematic procedure to inspect, test and maintain 

hoisting equipment and shafts. 30 C.F.R. § 56.19120. Ash Grove had a system in place whereby 

its elevator contractor, Otis, inspected and maintained the elevators, and was called to repair any 

defects. Tr. 43, 51-52. Nelson testified that he reviewed the records and Ash Grove was up to 

date and in compliance with state and local elevator inspections. Tr. 52. The court finds it 

reasonable for an operator to believe elevator hoisting equipment examinations fell under the 

purview of Section 56.19120, specifically aimed at hoisting equipment and shafts, rather than the 

broader workplace examination standard. 

For all of these reasons it is evident to the court that it was not at all clear to a 

“reasonably prudent person” that Section 56.18002(a) applied to a cement plant’s elevators and 

areas adjacent thereto, including the elevators’ hoisting equipment. Therefore, the court 

concludes that Ash Grove did not receive fair notice of the Secretary’s interpretation of § 

56.18002(a) and that enforcing the citation would be an affront to due process. Accordingly, 

Citation Number 8780591 will be VACATED. 

B. Citation No. 8611830, Docket No. WEST 2014-963 

On May 28, 2014, MSHA Inspector Richard Dreyer issued Citation No. 8611830 to Ash 

Grove for an alleged violation of 30 § 56.14110.17 The citation states: 

Material falling during the operation of the conveyor exposed 

persons in the passageway below to hazards that would be 

expected to result in serious injury. The typical feed material on 

this conveyor is a 4” minus limestone product. The distance of the 

fall from the 331-190 conveyor to the travelway below was 

                                                             15 30 C.F.R. § 56.19120 requires: 

[a] systematic procedure of inspection, testing, and 

maintenance of shafts and hoisting equipment shall be developed

and followed. If it is found or suspected that any part is not 

functioning properly, the hoist shall not be used until the 

malfunction has been located and repaired or adjustments have 

been made. 

16 As discussed previously, Nelson issued Citation Number 8780586 to Ash Grove for 

failing to inspect and test hoisting equipment on the five mine elevators, in violation of 30 C.F.R. 

§ 56.19120. G. Ex. 3 p. 6. This citation was terminated and incorporated in the modified Citation 

Number 8780591. G. Ex. 3 p. 2; Tr. 32. 

17 As discussed above, Dreyer took over the regular inspection of the Seattle Plant after 

Nelson was called to another assignment. Tr. 112. 

38 FMSHRC Page 2164
approximately 45’. This falling material presented a hazard to 

persons working in and around the raw mill lube room regardless

of point of entry. No guards, shields, or other mechanisms were

provided to protect persons from this hazard. The condition existed 

for more than one shift and the operator failed to identify or correct 

it. 

G. Ex. 5. 

Dreyer found the alleged violation was S&S, “reasonably likely” to fatally injure one 

person, and the result of Ash Grove’s moderate negligence. G. Ex. 5. 

1. The Background and Testimony 

On May 28, 2014, as he traveled the stairs and approached the top of Ash Grove’s 331-

190 conveyor, Dreyer observed a buildup of four inch minus crushed rock material on the 

conveyor’s I-beams.18 Dreyer did not see material falling from the conveyor during his 

inspection, but he testified that the material would have been carried by the conveyor belt and 

that, “[i]t was pretty evident that material had been falling off this conveyor.” 19 Tr. 113-14. 

Dreyer also testified that impact damage on a vertical beam indicated that a skid steer was put in 

place near the raw mill lube room doors, presumably to clean up falling material from the 

conveyor. 20 Tr. 163, 165-66. The floor in the area was dirty, indicating that material had fallen 

from the conveyor to the ground. Tr. 165. There were tire tread marks near the accumulations. 

Tr. 166. 

Dreyer did not take a sample, but stated that the four inch minus material included 

limestone, which usually is powdery. Tr. 114, 129. However, limestone can harden over time 

into solid rock if, for example, the powder is introduced to moisture (likely from ambient 

humidity). Tr. 114. Dreyer testified that the solid rock formed from the normally fine material 

can do significant damage. He has seen such hardened rock dent a vehicle after falling from a 

conveyor. Tr. 114-15. 

                                                             18 “Four inch minus” designates the approximate size of the material based on how it 

would fall through a screen. Tr. 113. If rocks fall through a screen with holes that are four inches 

in diameter, the rocks are classified as four inch. Tr. 113. The “minus” indicates that there is 

additional smaller material included with the four inch rock, including powdery material, like 

limestone. Tr. 114. I-beams are structural supports, in this case structural supports beneath the 

conveyor. Tr. 122. 

19 The conveyor was not running at the time Dreyer observed the material, but would 

have been running during continued normal mining operations. Tr. 131. 

20 A skid steer is a four wheeled small machine with a bucket on the front to “move earth 

or crushed rock.” Tr. 163. The machine steers by skidding. Tr. 163. It is akin to a front end 

loader, but smaller in size. It is used to clean up more restricted areas. Tr. 163. 

38 FMSHRC Page 2165
Dreyer described the conveyor belt as one that ran over trough rollers, idler rollers, head 

pulleys, and tail pulleys. Tr. 169. Dreyer explained that: 

“[e]very time that conveyor goes over a trough roller it flexes the 

belt and de-flexes the belt and that’s going to cause movements to 

the material being transported. Any conveyor can have a tracking 

issue. I mean, there’s a number of maintenance things that would 

also contribute to movement and material being transported.” 

Tr. 170. 

Dreyer maintained that the material built up on the conveyor’s I-beams at an angle. Tr. 

171. As more material fell on the beams the material would continue to build up or it would fall 

off the beams to the floor below. Tr. 171. Material on the I-beams could consolidate and be 

impacted. Tr. 171. Dreyer said that on the day of the inspection the beams could not hold any 

more material. Additional material would simply fall. Tr. 171. The beams did not negate the 

hazard of falling materials; in fact, Dreyer noted that material could hit a beam and be deflected 

or redirected, enlarging the area of concern. Tr. 172-173 

Dreyer measured the conveyer or belt’s height at around 45 feet. Tr. 115-16. At the 

bottom of the conveyor there is a travelway leading into the raw mill lube room.21 Tr. 116. 

Dreyer testified that material falling from the conveyor could fall down and hit a miner on the 

travelway below. Tr. 116-17. The material could fall directly from the conveyor to the travelway 

in some spots, and in other spots it could fall onto the roof of the raw mill lube room. Tr. 118-

119. One area of particular concern below the conveyor was the area in front of the lube room 

mandoors. Tr. 121. The material had built up on the roof, and this buildup was in line with the 

mandoors. Tr. 118. 

Dreyer testified that the company terminated the citation by fabricating and installing 

protective structures over areas below the conveyor where miners were in danger of being hit by 

falling material. Tr. 134; G. Ex. 5 p. 3. 

2. The Violation 

To establish a violation of Section 56.14110, the Secretary must prove, by a 

preponderance of the credible evidence, that a guard or shield was not installed in an area or in 

areas where material falling from or flying from screens, crushers or conveyors, presented a 

                                                             21 A raw mill is the equipment used to grind raw materials in the cement manufacturing 

process. TEXAS COMPTROLLER, AUDIT PROCEDURES FOR CEMENT PRODUCTION TAX, (2005), 

http://comptroller.texas.gov/taxinfo/audit/cement/ch1.htm; PHILIP ALSOP ET AL., THE CEMENT 

PLANT OPERATIONS HANDBOOK 31, (5th Ed. 2007). The raw mill’s lube room is an area that can 

be accessed to store the lubricants necessary to maintain components such as gears and bearings, 

and other supplies and equipment. Tr. 121. See generally Lube Room Best Practices, 

MACHINERY LUBRICATION, http://www.machinerylubrication.com/Read/29008/lube-roomessentials. Dreyer testified that the travelway leading to the lube room’s mandoors is used 

multiple times per shift. Tr. 116-117. 

38 FMSHRC Page 2166
hazard.22 In re: Contest of Respirable Dust Sample Citations, 17 FMSHRC 1819, 1838 (Nov. 

1995). See generally Northern Aggregate, Inc., 37 FMSHRC 562, 579 (Mar. 2015)(ALJ) 

(holding that Section 56.14110 requires actual protection against the danger of falling rocks, “by 

use of a guard, shield or other device.”). 

Ash Grove maintains that the material Dreyer observed did not fall from the overhead 

conveyor, as the conveyor belt was not operating at the time of the inspection. R. Br. 15. Craig 

Becker, presently the maintenance supervisor for Ash Grove, testified that the material that 

Dreyer observed on the ground was actually rejected material from the cleanup process, rather 

than material that fell from the conveyor belt.23 Tr. 141. The rejected rock area, where Becker 

believes the material originated, is on the north side of the raw mill, in the same area of the 

conveyor belt.24 Tr. 141. Becker testified that the transfer point where rock material may have 

shifted and fallen is too far from the area where the fallen rock material was found to be the 

source of the observed material. Tr. 150-51. Further, Ash Grove emphasizes that Dreyer did not 

test the material’s composition to confirm that it matched the material on the conveyor. Id. 

The court finds the lack of testing to be inconsequential. Dreyer testified that in his 

opinion the material found on the belt was consistent with the observed fallen material. Tr. 174-

75. Violations of accumulations standards have been established by inspector observations, 

particularly where the standard does not require testing. See, e.g., Amax Coal Co., 19 FMSHRC 

846, 847, 849 (May 1997); Jim Walter Resources, Inc., 19 FMSHRC 480, 483 (Mar. 1997); 

Enlow Fork Mining Co., 19 FMSHRC 5, 20 & n.2, 21 (Jan. 1997). The Commission has held

that an inspector’s testimony regarding the composition of an accumulated material by 

observation alone may be credited, especially in the absence of rebuttal evidence. Harlan 

Cumberland Coal Co., 20 FMSHRC 1275, 1290 (Dec. 1998) (upholding a coal accumulation

violation based on an inspector’s observation when the operator did not present any evidence to 

rebut the inspector's testimony that float coal dust was present or establish that float coal dust 

could not be identified by observation). Dreyer’s testimony, given his experience in the industry, 

was creditable. Further, Ash Grove did not offer any evidence that the fallen material was not the 

same as the limestone on the conveyor belt. 

                                                             22 The cited standard requires that, “[i]n areas where flying or falling materials generated 

from the operation of screens, crushers, or conveyors present a hazard, guards, shields, or other 

devices that provide protection against such flying or falling materials shall be provided to 

protect persons.” 30 C.F.R. § 56.14110. 

23 Craig Becker was first hired at Ash Grove as a Manufacturing Development Engineer. 

Tr. 139. On the day of the inspection he acted as a safety manager because the previous safety 

manager had just retired. Tr. 139. 

24 Becker explained that the rejected rock areas are locations where the rocks accumulate 

that are not properly ground and are rejected by the raw mill. Tr. 142. There are two such areas, 

one on the north side, and one on the south side of the mill. Tr. 142. Once the rejected material 

accumulates to a certain extent, it is cleaned up with a Bobcat or skid steer and reentered into the 

limestone pile used in the manufacturing process. Tr. 142. 

38 FMSHRC Page 2167
The court concludes that the Secretary proved by a preponderance of evidence that Ash 

Grove violated Section 56.14110. Dreyer credibly testified that the floor under the conveyor was 

dirty, consistent with material falling from the conveyor. Tr. 165. Dreyer also credibly testified 

that a skid steer appeared to have been placed in the area to clean up flying or falling material.25

Tr. 165-166. The material that accumulated on the beams of the platforms used to access the 

conveyor, indicates that material regularly fell from the conveyor. R. Ex. 9, p. 6. Finally, 

Dreyer’s credible explanation that incline conveyors, like the one used by Ash Grove, would 

move and shift limestone causing it to fall, supports the allegation. Tr. 169-70. Dwyer’s 

testimony that falling material could have hit a miner on the travelway below was not refuted. 

Tr.16-17 Further, as both sides agree, a guard or shield was not installed in the area. 

Ash Grove argues alternatively, that there was no violation because the language of the 

standard “states that not all flying or falling material is a violation. Instead this standard states 

that only flying or falling material that presents a hazard is a violation.” R. Br. 16. The company 

asserts that the anticipated falling material from a conveyor would be soft like a puff of snow, 

and thus not capable of causing injury or damage, and thus not hazardous. R. Br. 17. The court 

rejects this argument, as Dreyer testified that while some material could fall in this form, other 

material could fall in the form of solid rock, which would obviously injure a miner. Tr. 173. 

For the reasons discussed, the court finds that Ash Grove violated Section 56.14110.

3. The Gravity of the Violation and its S&S Nature 

The Secretary contends that Citation Number 8611830 was properly designated S&S. G. 

Br. 19. Ash Grove argues that the testimony “establishes any hazard to be insignificant and 

unlikely.” R. Br. 17. 

Under the Mine Act a violation may be designated S&S if the issuing inspector finds that 

the alleged violation is “of such nature as could significantly and substantially contribute to the 

cause and effect of a . . . mine safety or health hazard.” 30 U.S.C. § 814(d). The Commission has 

held that an S&S categorization is proper “if, based upon the particular facts surrounding the 

violation, there exists a reasonable likelihood that the hazard contributed to will result in an 

injury or illness of a reasonably serious nature.” Cement Div., Nat'l Gypsum Co. 3 FMSHRC 

822, 825 (Apr. 1981). 

To establish the S&S nature of a violation, the Secretary must prove: “(1) the underlying 

violation of a mandatory safety standard; (2) a discrete safety hazard - that is a measure of 

danger to safety - contributed to by the violation; (3) a reasonable likelihood that the hazard 

 

                                                             25 Ash Grove states that a Bobcat or skid steer used in the cleanup process accesses this 

particular area to turn around, so the tire tracks could have been caused by that vehicle for 

another reason. Tr. 141-42. The court finds this assertion unsupported by evidence or testimony, 

and instead credits Dreyer’s assertion that a skid steer was in place under an impacted area to 

clean up falling material. 

38 FMSHRC Page 2168
contributed to will result in an injury;26 and (4) a reasonable likelihood that the injury will be of a 

reasonably serious nature.” Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984); accord Buck 

Creek Coal Co., Inc. 52 F.3d 133, 135 (7th Cir. 1995); Austin Power Co., Inc., 861 F.2d 99, 103 

(5th Cir. 1988) (approving the Mathies criteria). This four part analysis, otherwise referred to as 

the Mathies test, will be discussed in seriatim. 

As a threshold matter, the court has found that the Secretary established a violation of 30 

C.F.R. § 56.14110, thus satisfying the first prong of the Mathies analysis. 

The next step in the S&S inquiry requires that the Secretary identify a safety hazard 

caused by the alleged violative condition(s). Highland Mining Co., 34 FMSHRC 3434, n. 5 (Dec. 

2012) (“For each violation alleged to be ‘significant and substantial,’ the relevant hazard 

associated with the violation must be identified). A safety hazard, as defined by the Commission 

is “the dangerous situation that the mandatory safety standard anticipates.” Black Beauty Coal 

Co., 34 FMSHRC 1733, 1741 (Aug. 2012) (citing Cumberland Coal Res., LP, 33 FMSHRC 

2357, 2366 (Oct. 2011), aff'd717 F.3d 1020 (D.C. Cir. 2013). 

Here, the Secretary alleges that the violative condition was the lack of a shield or guard 

on the conveyor to prevent injury from falling material, in contravention of the standard. G. Br. 

19; Tr. 125. The particular hazard identified by the Secretary is falling or flying rock that could 

hit and injure a miner traveling or standing below the conveyor. Tr. 116-117, 118, 119. The 

standard anticipates this hazard, as evidenced by its express language. Section 56.14110 requires 

a guard or shield where falling materials are generated, to protect individuals from materials 

falling from a conveyor. See 30 C.F.R. § 56.14110. 

Ash Grove argues that material was not falling from the conveyor, but if it fell, the falling 

material would be powdery and soft and would be incapable of injuring anyone. R. Br. 16; Tr. 

158-160. Dreyer credibly testified while some material may be powdery and soft limestone, 

some can also accumulate and consolidate into solid rock, and fall 45 feet, hitting a miner below 

the unprotected conveyor.27 The Secretary thus identified a discrete hazard (falling rock) caused 

by the violative condition (the failure to install a shield or guard as required by the standard) in 

satisfaction of the second Mathies requirement. 

                                                             26 With respect to the “reasonable likelihood of injury” element, the analysis must be 

made assuming “continued normal mining operations.” U.S. Steel Mining Co. (U.S. Steel III), 7 

FMSHRC 1125, 1130 (Aug. 1985) (quoting U.S. Steel Mining Co. (U.S. Steel I), 6 FMSHRC 

1573, 1574 (July 1984). A proper S&S inquiry considers “the violative conditions as they existed 

both prior to and at the time of the violation and as they would have existed had normal 

operations continued.” Mach Mining, LLC v. Sec'y of Labor, 809 F.3d 1259, 1267 (D.C. Cir. 

2016), quoting Knox Creek Coal Corp., 36 FMSHRC 1128, 1132 (2014); McCoy Elkhorn Coal 

Corp., 36 FMSHRC 1987, 1991 (2014). 

27 The Commission has held that an inspector's judgment is an important element in an 

S&S determination and may be relied upon as part of the analysis. Harlan Cumberland Coal Co., 

20 FMSHRC 1275, 1278 (Dec. 1998). 

38 FMSHRC Page 2169
As applied to the present case, the appropriate test under the third step of the Mathies 

analysis, is whether there was a reasonable likelihood that the hazard (i.e., the danger of a rock 

falling 45 feet from the conveyor and hitting a miner below) contributed to by the violation (i.e., 

absence of a shield on the conveyor) would cause an injury. Musser Eng’g., Inc., 32 FMSHRC 

1257, 1281. The Secretary is not required to prove that the cited violation itself would cause an 

injury, but that the hazard would be reasonably likely to cause an injury. Black Beauty Coal Co., 

34 FMSHRC 1733, 1742-43 (Aug. 2012), aff’d sub nom. Peabody Midwest Mining, LLC, 762 

F.3d 611 (7th Cir. 2014). The Commission has explained that “reasonable likelihood” is less 

stringent than “more probable than not.” Amax Coal Co.,19 FMSHRC 846, 848 (May 1997);

U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug. 1985). Again, the likelihood must be 

examined in the context of continued normal mining operations. U.S. Steel Mining Co., 7 

FMSHRC 1125, 1130 (Aug. 1985). 

Dreyer reasoned that an injury was reasonably likely because significant material had 

built up above a travelway, and had accumulated “for a while.” Tr. 122. Fallen material was 

present on the conveyor’s support structure, as well as on the floor below the conveyor. Tr. 122. 

Dreyer credibly testified that on the conveyor structure the material had accumulated to the point 

where additional material was likely to sluff off and fall. Id. The material was exposed to 

ambient moisture and it could consolidate and form solid rock. Tr. 114-115. The resulting rock 

was capable of producing significant damage if it fell and hit a miner. Tr. 115. There was a 

travelway 45 feet under the conveyor that was accessed multiple times per shift by several 

individuals; Dreyer estimated 10 to 12 exposures per day. Tr. 116-117, 118. Moreover, material 

also had built up on the roof of the raw mill lube room, directly in line with the entrance to the 

room. Tr. 118. 

Ash Grove claims that the hazard of a rock fall is mitigated because Ash Grove’s miners 

are required to wear hard hats, and the evidence shows that they were doing so. 28 R. Br. 17, Tr. 

                                                             28 When asked whether the hard hat policy at Ash Grove, which requires all miners to 

wear hard hats, would change his fatal designation, Dreyer stated: 

Not at all. You know, if you consider the impact that a rock 

or any hard object falling that distance is going to have, by the time 

it gets to the ground it’s likely moving—in that 45-foot span it’s 

likely moving in excess of 30 miles an hour. So picture a rock or 

something hitting you at the speed. Imagine the force and ask 

yourself, what’s that hard hat going to do[?] If the shell of the hard 

hat actually keeps its integrity and does its job then it’s going to 

distribute that load to the suspension, and that suspension delivers 

the load to your neck. So even if the hard hat is not physically 

destroyed and that rock is pushed in to you, it’s going to take all of 

that pressure, all of that load and all that velocity coming down and 

it’s going to destroy your neck. You’re still going to reasonably 

have a fatal injury. 

Tr. 131. 

38 FMSHRC Page 2170
126. While commendable, this safety measure will not be considered by the court in its 

“reasonable likelihood” evaluation. The Commission has held that miners’ exercise of caution 

should not be considered in an S&S analysis, because the alleged “hazard continues to exist 

regardless of whether caution is exercised.” Eagle Nest, Inc., 14 FMSHRC 1119, 1123 (July 

1992). 

Ash Grove also maintains that the likelihood of injury is reduced because accumulated 

material would be air lanced to prevent build up.29 R. Br. 17, Tr. 181-183. The court finds that 

the assertion has no bearing on its S&S determination. Commission judges may not infer that a 

violative condition will cease. Gatliff Coal Company, 14 FMSHRC 1982, 1986 (Dec. 1992).

Dreyer testified that he observed significant buildup during his inspection. Tr. 113, 167. In the 

Commission’s S&S paradigm, violative conditions prior to and at the time of the violation are 

relevant (Mach Mining, LLC v. SOL, 809 F.3d 1259 (D.C. Cir. 2016)) and assumptions as to 

abatement measures are not considered. Id.; Paramont Coal Co. VA LLC, 37 FMSHRC 981, 985 

(May 2015). 

Minshall testified that there had never been an injury at Ash Grove caused by falling 

material in the cited area (Tr. 161), but it is well settled that the absence of an injury-producing 

event when a cited condition has existed for some time does not preclude a finding of S&S. See 

Elk Run Coal Co., 27 FMSHRC 899, 906 (Dec. 2005); Blue Bayou Sand & Gravel, Inc., 18 

FMSHRC 853, 857 (June 1996). 

 Based on the foregoing, the court finds that it is reasonably likely that without a guard or 

shield in place, a falling rock (made up of consolidated accumulated material) could fall from the 

conveyor, its structure or the lube room roof and strike and injure one of the several miners who 

accessed the areas under the accumulated material a dozen or so times a shift. 

 The fourth and final prong of the Mathies test requires the Secretary to prove there is a 

reasonable likelihood that the injury in question will be reasonably serious. The Secretary has 

satisfied this element of the S&S test because the evidence supports a finding that the injury 

would be fatal, or at the very least would result in lost workdays. In support of the fatal 

designation, Dreyer testified that rock falling 45 feet could “have serious negative consequences 

on anybody impacted.” Tr. 122-23. The record fully supports finding that the impact of a rock 

falling and hitting a miner would likely result in death or in significant neck or spinal injuries. 

Tr. 123, 131, 160-61. 

For the reasons set forth above, the court affirms the inspector’s S&S finding. 

Next, the gravity, or seriousness, of the violation must be addressed. Sellersburg Stone 

Co., 5 FMSHRC 287, 294-95 (March 1983), aff'd, 736 F.2d 1147 (7th Cir. 1984)( “The gravity 

penalty criterion under section 110(i) of the Mine Act, 30 U.S.C. § 820(i), is often viewed in 

terms of the seriousness of the violation.”). The gravity of a violation is distinct from the S&S 

nature of a violation, as “the focus of the seriousness of the violation is not necessarily on the 

                                                             29 An air lance is a wand with a pipe that is attached by a hose to a high pressure air 

compressor. When engaged, the wand directs compressed air to a particular area. An air lance 

can be used to blow accumulated material away and clean a particular area. The process is akin 

to a power washer, but uses air instead of water. Tr. 182-83. 

38 FMSHRC Page 2171
reasonable likelihood of serious injury, which is the focus of the S&S inquiry, but rather on the 

effect of the hazard if it occurs.” Consolidation Coal Co., 18 FMSHRC 1541, 1550 (Sept. 1996). 

Thus, the gravity analysis focuses on factors such as the likelihood of an injury, the severity of 

an injury, and the number of miners potentially injured. American Coal Co., 36 FMSHRC 2456, 

2460 (Sept. 2014)(ALJ). The two concepts are often discussed in close succession because, 

“[a]lthough the gravity penalty criterion and a finding of S&S are not identical, they are 

frequently based upon the same factual circumstances.” Enlow Fork Mining Co., 19 FMSHRC 5, 

10-11 (Jan. 1997) citing Quinland Coals, Inc., 9 FMSHRC 1614, 1622 n.11 (Sept. 1987). See 

also Elk Run Coal Co., Inc., 27 FMSHRC 899, 907 (Dec. 2005). 

It is clear the area affected by the violation was regularly visited by miners. Mike Begley, 

Ash Grove’s maintenance manager, informed Dreyer that the area below the conveyor was used 

at least twice daily by several different miners. Tr. 121. Dreyer estimated that only one person at 

a time would be injured if a rock fell from above, and indeed this is the most likely scenario. 

Therefore, there is no reason to disturb Dreyer’s designation that one person would be affected 

by the cited hazard. G. Ex. 5. Tr. 123. Based on the fatal or very serious injury that could result 

to a miner as discussed previously, and the reasonable likelihood that a rock could fall from an 

unguarded conveyor and strike a miner, the court finds the violation was serious. 

4. Ash Grove’s Negligence 

Section 110(i) of the Mine Act requires that in assessing penalties, the court also 

considers “whether the operator was negligent.” 30 U.S.C. § 820(i). The Commission has held 

that each mandatory standard “carries with it an accompanying duty of care to avoid violations 

of the standard,” and the failure to meet this duty will result in a finding of negligence. A.H. 

Smith Stone Co., 5 FMSHRC 13, 15 (Jan. 1983). In determining whether the operator met its 

requisite duty of care imposed by a particular standard, the court must take account of the 

relevant facts, the protective purposes of the cited regulation, and what actions a “reasonably 

prudent person familiar with the mining industry,” would take under the circumstances. Jim 

Walter Resources, Inc., 36 FMSHRC 1972, 1975 (Aug. 2014). An operator is negligent if it 

should have known that its actions (or failure to act) would cause a violation. Brody Mining, 

LLC, 37 FMSHRC 1687, 1703-04 (Aug. 2015). In addition, the Secretary must describe the 

specific action an operator did not take to meet the requisite standard of care. Jim Walter 

Resources, Inc., 36 FMSHRC 1972, 1976-1977 (Aug. 2014). 

 Initially, Dreyer determined that the violation occurred as a result of Ash Grove’s 

“moderate” negligence. G. Ex. 5; Tr. 123-24. Dreyer noted that he did so because at the time he 

did not find anyone in management had specific knowledge of the condition. Tr. 124. However, 

Dreyer also testified that “high” might have been more appropriate, as the company had 

extensive discussions with MSHA regarding falling material during a previous inspection. 30 Tr. 

124. After the hearing, the Secretary urged the court to consider modifying the level of 

negligence to “high.” G. Br. 21. 

                                                             30 Dreyer testified that before starting his inspection he reviewed the report for the prior 

inspection at the plant and discussed the report and findings with Mike Nelson, the MSHA 

inspector who conducted it. Tr. 124. 

38 FMSHRC Page 2172
The Commission has described ordinary negligence as characterized by “inadvertent,” 

“thoughtless,” or “inattentive” conduct. Emery Mining Corp., 9 FMSHRC 1997, 2001, 2004 

(Dec. 1987) citing Black's Law Dictionary 930–31 (5th ed. 1979). A finding of high negligence, 

however, “suggests an aggravated lack of care that is more than ordinary negligence.” Topper 

Coal Co., Inc., 20 FMSHRC 344, 350 (1998); Eastern Associated Coal Corp., 13 FMSHRC 178, 

187 (Feb. 1991). In particular, the Commission has held that an operator's intentional violation 

constitutes high negligence for penalty purposes. Consolidation Coal Co., 14 FMSHRC 956, 

969-70 (June 1992). 

There is sufficient evidence to conclude that Ash Grove was inattentive regarding the 

accumulation conditions and the attendant hazard of falling material. Dreyer testified that there 

was significant material build up on the roof, indicating the falling material had accumulated for 

some time. This indicates that Ash Grove should have been on notice that material had reached a 

point where it was falling or was in danger of falling from the conveyor. Further, Ash Grove’s 

use of a skid steer to presumably clean up falling material indicates that Ash Grove was aware 

that material was falling from the conveyor, but neglected to adopt a permanent solution. While 

Ash Grove’s inattention to a solution did not meet the standard of care required, there is no 

indication the resulting violation was intentional. Therefore, the court agrees with Inspector 

Dreyer’s original conclusion and finds that moderate negligence is the appropriate designation 

and declines the Secretary’s invitation to increase the negligence attribution to “high.” 

C. Citation Numbers 8780422 and 8780423, Docket Nos. WEST 2015-503 and 

WEST 2015-523 

The citations were issued to Ash Grove as a result of its response to an August 4, 2014, 

accident at the plant. The accident occurred when a person (a trainee truck driver) riding in a 

customer’s truck got out of the truck’s cab while the truck was parked and fell while climbing a 

ladder on the side of the truck. Inspector Thomas Rasmussen was assigned by MSHA to 

investigate the accident.31 As a result of his investigation, including interviews with witnesses, 

Rasmussen issued Citation Numbers 8780422 and 8780423 to Ash Grove for its response to the 

accident. Citation No. 8780422 concerns Ash Grove’s reporting of the accident to MSHA, and 

Citation No. 8780423 concerns the treatment of the accident scene. 

 

                                                             31 Inspector Rasmussen works at MSHA’s Kent, Washington Field Office. At the time of 

the hearing he had worked for MSHA for three and a half years. Tr. 185. Rasmussen completed 

required MSHA training. He also completed an advanced accident investigation course. Tr. 185. 

Rasmussen testified that he has conducted hundreds of accident investigations on behalf of 

MSHA. Tr. 185. Prior to working for MSHA, Rasmussen was a contractor at OSHA and MSHA 

regulated sites, where he was primarily responsible for supervising crews and for training 

employees in safety and health standards. Tr. 186. Rasmussen spent ten years in this capacity. He 

also served in the United States Marine Corps. Tr. 186-87. 

38 FMSHRC Page 2173
Citation No. 8780422 charges Ash Grove with a violation of 30 C.F.R. § 50.10(b).32 The 

citation states: 

The mine operator did not notify MSHA within 15 minutes after 

becoming aware of a serious injury of an individual. On July 23, 

2014 [,] one truck driver fell while climbing a ladder on a bulk 

trailer in the Group 2 Loadout and landed on an uneven steel 

platform at the base of the ladder. The individual was transported 

to the Hospital with serious and life threatening injuries. The mine 

[o]perator was aware of the immediate notification requirements, 

was informed of the accident at approximately 14:00 hours and did 

not notify MSHA until 14:43 hours on July 23, 2014. 

G. Ex. 8. 

 Rasmussen found that the alleged violation was unlikely to cause an injury, but if an 

injury occurred, that it was likely to result in a fatality. He also found that the violation was the 

result of Ash Grove’s high negligence. G. Ex. 8. 

 

                                                            

32 30 C.F.R. § 50.10, titled “Immediate Notification,” states: 

 The operator shall immediately contact MSHA at once 

without delay and within 15 minutes at the toll-free number, 1–

800–746–1553, once the operator knows or should know that an 

accident has occurred involving: 

(a) A death of an individual at the mine; 

(b) An injury of an individual at the mine which has 

a reasonable potential to cause death; 

(c) An entrapment of an individual at the mine 

which has a reasonable potential to cause death; or 

(d) Any other accident. 

38 FMSHRC Page 2174
Further, Rasmussen issued Citation No. 8780423 to Ash Grove for a violation of 30 

C.F.R. § 50.12.33 Citation No. 8780423 states: 

The mine operator failed to preserve the accident scene where one 

truck driver fell while climbing a ladder on a bulk trailer in the 

Group 2 Loadout and landed on an uneven metal platform at the 

base of the ladder at approximately 14:00 hours on July 23, 2014. 

Upon arrival at the mine site, at approximately 17:00 hours on July 

23, 2014, it was found that the accident scene was altered. After 

the injured individual was removed, the truck and trailer were 

taken from the scene, washed then parked in the Group 2 Rail Side 

Loadout. Removal of evidence from the accident scene hinders the 

investigation into the cause of the accident. The Mine Operator

was aware the accident had occurred and did not preserve the 

accident scene. 

G. Ex. 12. 

 Rasmussen found that although the violation was neither serious nor S&S it was the 

result of Ash Grove’s “high” negligence. G. Ex. 12. 

1. The Background and Testimony 

On July 23, 2014, Ronald Cory, an employee of Gresham Transfer (“Gresham”), a 

customer that bought product from Ash Grove, was injured at the Seattle Plant. Tr. 194.34 Cory, a 

Gresham trainee, was being trained by Jamie Goad, who was driving Gresham’s truck. Tr. 198. 

Goad had pulled up to the Group 2 Loadout and parked the truck while it was loaded. Id. During 

the loading process Cory left the truck, but as the process neared its end, Cory returned to the 

cab. At around 2:00 p.m., after the truck was loaded, Cory could not find his cell phone. He 

thought he might have left it on the roof of the cab. Tr. 193, 210. Cory again left the truck and 

climbed up the ladder of the outside of the truck to retrieve his phone. Tr. 210. When Cory 

                                                             33 Section 50.12 states: 

Unless granted permission by a MSHA District 

Manager, no operator may alter an accident site 

or an accident related area until completion of 

all investigations pertaining to the accident 

except to the extent necessary to rescue or recover 

an individual, prevent or eliminate an imminent 

danger, or prevent destruction of mining 

equipment. 

34 Gresham Transfer (“Gresham”) purchases bulk product from Ash Grove. Gresham’s 

trucks come to the plant to pick up the material and then haul it off site. Tr. 194. Gresham’s 

trucks park at one of several “loadouts,” in this case Loadout Number 2, where the product is 

loaded. Tr. 255. 

38 FMSHRC Page 2175
approached the top of the ladder he struck his head on the cement loading spout of Loadout 

Number 2. He lost his grip on the ladder, and he fell about eight feet. Tr. 193,197. Cory hit his 

head on the way down and landed on the steel tongue of the truck’s trailer and on an uneven 

concrete platform. Tr. 193. Cory was not wearing fall protection. Tr. 223. Paramedics were 

called to the scene and arrived around five minutes after the fall. Tr. 256-57. Subsequently, Cory 

was transported to the trauma ICU center at Seattle’s Harborview Hospital. Tr. 209. MSHA was 

called, and Rasmussen arrived at the plant and interviewed numerous people. Tr. 224, 227. 

Rasmussen also went to the hospital, but he was unable to speak to Cory on the day of the 

incident because Corey was incoherent. Tr. 209. However, Rasmussen spoke to a trauma center 

nurse about Cory’s injuries, and she emphasized that Cory was lucky to be alive. Tr. 209. Cory 

suffered blunt force trauma to the head, a cut on the head requiring three staples, broken 

vertebrae, and a broken sternum and clavicle. Tr. 193, 209; G. Ex. 13. When Cory was finally 

able to speak to Rasmussen several days later, Cory indicated that he did not remember many 

details about what happened, other than waking up in a “bunch of blood” and that during the fall 

he thought he was going to die. Tr. 210-11. 

Witnesses to the accident and those who observed the scene immediately after the fall 

painted a gruesome picture. Goad, the truck driver and a Gresham supervisor described how 

Cory had left the cab of the truck and how Goad then heard a thump after which the loader 

operator who worked for Ash Grove yelled that Cory had fallen. Tr. 200-01. Goad got out of the 

cab. He told Rasmussen that he saw Cory lying motionless face up after the fall. Tr. 203-04. The 

paramedics soon arrived to help Cory and after they removed him from where he was lying and 

took him to the hospital, Goad told Rasmussen he saw blood everywhere. Goad took pictures of 

the blood on the steel tongue and concrete before moving his truck. He later sent the photographs 

to Rasmussen. Tr. 201. 

Romeo Semo, an Ash Grove employee, was working at the loadout and witnessed Cory’s 

fall. He told Rasmussen he thought Cory was dead. Tr. 205. A customer present at the time of the 

accident, Reggie Soloman, told Rasmussen that he too believed Cory was dead, and that Corey 

was lucky that he survived the fall. Tr. 205-07. 

 Ash Grove’s witnesses described a less grim scene. Carey Austell, the plant manager, 

was at the plant when the injury occurred.35 Tr. 252-254. Austell was informed of the injury and 

arrived at the scene of the accident after the paramedics had been called and were enroute. Tr. 

255. Austell testified that when he got to the scene Cory was conscious, alert, and moaning. Tr. 

256. Austell opined that once they arrived, the paramedics were methodical, but not acting with 

great urgency. Tr. 258. Austell testified that he did not believe that Cory had a reasonable chance 

of dying since his breathing and bleeding were controlled, and he was alert. Tr. 259-260. Austell 

decided not to call MSHA to report the accident based on this belief. Tr. 261. 

                                                             35 Carey Austell has been the plant manager since September 2013. Tr. 253. Before 

working at the Seattle Plant Austell was a foreman at Ash Grove’s Arkansas Facility for three 

years. Tr. 253. Austell has worked in the cement industry since 1992. Tr. 253. He also served in 

the United States Marine Corps for 26 years as an infantryman in which capacity he received a 

significant amount of first aid training. Tr. 253-54. 

38 FMSHRC Page 2176
Craig Becker, who was filling in for the safety manager on July 23, arrived at the scene 

within five minutes of being notified of the accident. Tr. 263-64. Becker said the paramedics 

arrived about two or three minutes after he did. Tr. 264. Becker testified that when he first saw 

Cory, Cory was alert and responsive to pain. Tr. 265. The paramedics, according to Becker, were 

not administering CPR; rather they were checking for broken bones and injuries and they were 

reassuring Corey. Tr. 265-66. Becker discussed with Austell whether to call MSHA. Becker 

believed that there was not a reasonable chance of death requiring MSHA’s immediate 

notification. As it turned out, Ash Grove called to notify MSHA of the event at approximately 

2:43 p.m. Tr. 193-94; G. Ex. 5. 

Later that day, when Rasmussen arrived at the scene of the accident, Rasmussen 

discovered that Goad had moved the truck and washed it. Tr. 202, 304. Ash Grove never asked 

Rasmussen or any other MSHA official for permission to move the truck. Tr. 191-92. Goad told 

Rasmussen that he moved the truck because he wanted to wash away the blood. Tr. 200. Goad 

took pictures of the blood before washing the truck. He sent the photographs to Rasmussen to 

use in the investigation. Tr. 201. After the truck was cleaned, it was moved back to where the 

accident occurred, and it was taped off to prevent future use. Tr. 312-15. 

2. The Immediate Notification Violation, Citation Number 8780422 

Rasmussen testified that he issued Citation No. 8780422 because, in accordance with 30 

C.F.R. § 50.10(b), an operator is required to call MSHA within 15 minutes of becoming aware 

that an accident has occurred resulting in an injury which has a reasonable potential to cause 

death, and that Ash Grove waited longer than the allotted time to notify MSHA of the accident. 

Tr. 194. Ash Grove’s safety director was aware of the accident at around 2:05 p.m.36 and called 

MSHA’s notification hotline to notify MSHA of the event at 2:43 p.m. Tr. 193-94; G. Ex. 8, p.5. 

The Commission has explained that the immediate notification standard requires a mine 

operator to report to MSHA, within 15 minutes, an accident that has resulted in an injury which 

has a reasonable potential to cause death. Rex Coal Co., 38 FMSHRC 208, 212 (Feb. 2016) 

(“Section 50.10 imposes an affirmative duty on the operator to report accidents immediately 

within 15 minutes.”); Mainline Rock & Ballast v. Sec’y of Labor, 693 F.3d 1181, 1188 (10th Cir. 

2012). Essentially, to prove a violation of 50.10(b) the Secretary must show that an accident 

occurred, that the accident resulted in an injury or injuries having the reasonable potential to 

cause death, and that the mine operator failed to notify MSHA within the 15 minute time frame 

anticipated by the standard. 

Here, it is undisputed that an accident occurred when Cory fell from the truck. R. Br. 17; 

G. Br. 23; Tr. 193. It is also undisputed that the call to MSHA was made after the allotted 15 

                                                             36 According to Ash Grove’s accident report, an Ash Grove employee reported Cory’s 

fall to the plant control room at 2:01 p.m. R. Ex. 1. The control room operator immediately 

dialed 911. R. Ex. 1. Becker, the acting safety manager, found out about the accident and arrived 

on the scene at 2:05 p.m. R. Ex. 1; Tr. 192-93. Austell, the production manager who had the final 

authority whether to make the call to MSHA, arrived to the scene of the accident at 2:07 p.m. R. 

Ex. 1; Tr. 261. Regardless of whether Becker and Austell knew about the accident at 2:01, 2:05, 

or 2:07 p.m., there was still a more than 15 minute delay in calling the MSHA hotline. 

38 FMSHRC Page 2177
minutes, as the operator made the call 38 minutes or more after being notified of the incident. R. 

Ex. 1; G. Ex. 8; Tr. 196, 201. The disputed aspect of this case is whether the accident resulted in 

an injury or injuries having the reasonable potential to cause death, relieving Ash Grove of its 

duty to report the accident immediately. Ash Grove defends its 38 minute or more delay in 

calling the MSHA accident hotline by stating that mine officials did not believe Cory’s injuries 

were likely to result in death. R. Br. 19. The Secretary states that numerous circumstances were 

present that “would lead a reasonably prudent mine operator to conclude that Cory’s life may 

have been in jeopardy.” G. Br. 24. To determine whether the accident triggered an affirmative 

duty for Ash Grove to notify MSHA in 15 minutes the court must analyze whether, based on the 

evidence presented, the Secretary is right. 

Rasmussen concluded the accident resulted in injuries that had a reasonable potential to 

cause death after considering the extent of the injuries Cory sustained, including his head injury, 

his fall onto a hard surface, Cory’s period of unconsciousness after the fall, his trouble breathing 

when the ambulance arrived, and various eye witness statements. Tr. 193-94, 237. Rasmussen 

testified that “people die frequently from falls from a height.” Tr. 237. The Commission has held 

an MSHA inspector’s opinion as to the seriousness of an injury, alone, may be relied upon, 

absent any other evidence of the record. Cougar Coal Co., 25 FMSHRC 513, 521 (Sept. 2003); 

Power Operating, 18 FMSHRC 303, 306-07 (Mar. 1996); Zeigler Coal Co., 15 FMSHRC 949, 

954 (June 1993). Based on the eight foot fall onto an uneven and hard surface, the fact that 

Cory’s head was injured, and Rasmussen’s opinion as to the trauma and injuries Cory suffered, 

the court finds that Rasmussen’s decision to cite Ash Grove was correct. 

Ash Grove emphasizes that Becker overheard paramedics stating that Cory would be 

“okay,” and as such the injuries did not have the potential to cause death. R. Br. 20. The court 

rejects this argument, as the opinions of first responders as to a victim’s present condition do not 

render an accident any less serious. In fact, the Commission has held that requiring a medical or 

clinical opinion of the potential of death before an accident is determined to be reportable under 

Section 50.10 would frustrate the immediate reporting of near fatal accidents and thwart the 

purpose of the standard. Consolidation Coal Co., 15 FMSHRC 1555, 1557 (Aug. 1993). 

Moreover, Cory’s good fortune in surviving the fall does not negate the seriousness of the 

accident. 

The severity of Cory’s injuries, coupled with the circumstances of the fall, and the 

majority of the witnesses’ opinions that Cory seemed dead and was lucky to be alive, indicate to 

the court that there was a reasonable likelihood the injuries could have resulted in death, 

triggering the affirmative duty to alert MSHA within 15 minutes of the accident. Ash Grove 

personnel had the opportunity to make a call within the allotted time, and they did not. Ash 

Grove violated section 50.10(b) as alleged. 

3. Ash Grove’s Negligence 

Ash Grove contends that its “reasonable belief that there was no immediately reportable 

accident lowers its negligence.” R. Br. 19. Ash Grove asserts that management personnel 

reasonably deemed Cory’s injuries to be nonlife-threatening and that the plant’s proximity to a 

hospital and the paramedics’ rapid response make it unlikely that any injury would have been 

fatal. 

38 FMSHRC Page 2178
The focus of the operator’s reasonableness in notifying MSHA of an accident is made 

considering a totality of the circumstances. Signal Peak Energy, LLC, 37 FMSHRC 470, 474 

(Mar. 2015). The operator must err on the side of caution and “in determining whether it is 

required to notify MSHA under 30 C.F.R. § 50.10, must resolve any reasonable doubt in favor of 

notification.” Signal Peak Energy, LLC, 37 FMSHRC 470, 476 (Mar. 2015). Additionally, while 

Section 50.10 accords operators a reasonable opportunity to investigate an incident, the 

investigation “must be carried out by operators in good faith without delay and in light of the 

regulation's command of prompt, vigorous action.” Consolidation Coal Co., 11 FMSHRC 1935, 

1938 (Oct. 1989). In sum, Ash Grove had the duty to make a good faith, but prompt, examination 

of the incident to determine whether it warranted a Section 50.10(b) call to MSHA, and was 

required to err in favor of notification. 

Austell testified that he did not believe Cory had a reasonable chance of dying because 

when Austell arrived at the scene of the fall Cory was alert, breathing, and not bleeding 

uncontrollably. Tr. 259-260. Becker testified that he believed that although Cory indicated he 

was in pain, Cory’s symptoms would not be associated with a fatal injury because Cory was alert 

and responding to pain. Tr. 267-68. An individual’s consciousness when paramedics are present 

is an inadequate basis to assume an accident is not potentially deadly. In Cougar Coal, the 

Commission rejected an operator’s assertion that because an accident victim was conscious and 

alert when management arrived at the scene, they reasonably surmised that his injuries lacked the 

potential to cause death. Cougar Coal Company, 25 FMSHRC 513, 520 (Sept. 2003). 

Ash Grove also emphasizes Becker’s testimony that he overheard paramedics make a 

reassuring statement regarding Cory’s condition to support the contention that management 

reasonably believed the accident was not serious enough to fall under the Section 50.10(b) 

notification timeframe. R. Br. 19-20. Relying on a reassuring statement made by a first responder 

does not make an operator any less culpable in failing to call the MSHA hotline in a timely 

manner. The statement made to Cory that he would be “okay” cannot be presumed to be an 

assurance to Cory that he would survive and recover. It is equally likely to be a statement made 

to all victims, whatever the extent of their injuries, to lessen their anxieties and fear. Becker 

should have erred on the side of caution and reported the incident more expeditiously. The 

Commission has held that, “[i]n the field, the decision to call MSHA cannot be made upon the 

basis of clinical or hypertechnical opinions as to a miner's chance of survival. The decision to 

call MSHA must be made in a matter of minutes after a serious accident.” Cougar Coal Co., 25 

FMSHRC 513, 521 (Sept. 2003). 

Austell and Becker arrived minutes after the incident, and based their opinions regarding 

the severity of Cory’s injuries largely on the paramedics’ responses and demeanors. R. Br. 19-

20; Tr. 267-68. The paramedics’ calm dispositions are an inadequate basis to conclude an injury 

is not serious enough to report an accident to MSHA within the fifteen minute timeframe. The 

Court assumes paramedics are trained to exhibit such an appearance. Relying on a lack of 

urgency on the part of medical personnel and the absence of any express indication that Cory’s 

injuries were life threatening was unreasonable. Ignorance of the severity of an accident, whether 

willful or careless, does not excuse an operator’s failure to timely report an accident. Mainline 

Rock & Ballast, Inc. v. Sec'y of Labor, 693 F.3d 1181, 1189 (10th Cir. 2012). 

38 FMSHRC Page 2179
Ash Grove further asserts that paramedics were on scene within minutes of Cory’s fall, 

and that a hospital is nearby, presumably to indicate that Becker and Austell did not believe 

Cory’s injuries would be life threatening. R. Br. 19; Tr. 256-57. The promptness of first 

responders and the proximity to a hospital do not weigh in favor of reducing Ash Grove’s 

negligence. If anything, the circumstances indicate that Becker and/or Austell were not needed to 

administer first aid and could have made a call to MSHA. 

Finally, Ash Grove contends that it was not aware of the accident until 2:05 p.m. Tr. 192-

193; R. Br. 17; cf. discussion supra note 36. However, even if this time frame is accurate, the 

five minutes do not bring Ash Grove into compliance with the 15 minute requirement and will 

not be considered a mitigating factor in determining negligence. As discussed, management 

personnel were not needed to administer first aid, and either Austell or Becker could have placed 

a timely call to MSHA. Rasmussen asked Austell why Ash Grove did not call within the fifteen 

minute time frame, and instead waited until 38 minutes after the accident occurred, to which 

Austell responded, “no reason” (Tr. 216), and Craig Becker testified that the only reason MSHA 

was called was as a “courtesy” to inform them of the accident. Tr. 270-71. 

Ash Grove’s negligence is compounded by the fact that it had constant notice of the 

reporting requirement, as shown by evidence that establishes the presence at the time of at least 

two posters at the mine displaying MSHA’s telephone number for reporting accidents. 

Rasmussen photographed a poster showing the number that was posted on the wall of the control 

room, the location from where Ash Grove called 911. Tr. 195; G. Ex. 8, p. 3. He also 

photographed a similar poster that was posted in the break room of the main office. Tr. 195; G. 

Ex. 8 p. 4. 

 For the reasons set forth above, and especially for the purposeful nature of the violation, 

the inspector’s high negligence finding is affirmed. 

4. Gravity 

The failure to notify MSHA in a timely manner when a miner suffers an accident 

reasonably likely to result in his or her death is a serious violation. Contacting MSHA without 

delay and within fifteen minutes is one of the critical keys to an effective investigation and an 

effective investigation is a vital element of the agency’s mission to prevent replication. 

5. Failure to Preserve Accident Scene, Citation No. 8780423 

Section 50.12 requires that after an accident, an operator refrain from altering the site 

where the incident occurred and preserve the evidence until MSHA’s accident investigation is 

complete. When an injury occurs at a mine with the reasonable potential to cause death, the site 

of the incident is an “accident site,” and the requirements of Section 50.12 are triggered. Black 

Beauty Coal Co., 37 FMSHRC 687, 691 (April 2015). To establish a violation of Section 50.12, 

the Secretary must demonstrate that an accident occurred and that the operator altered the site or 

evidence in some way, without MSHA’s permission, and with no compelling justification (as 

anticipated by the standard). It is undisputed that Gresham’s employee moved the truck from the 

scene of Cory’s fall and washed it and that this was done before Rasmussen completed his 

investigation. G. Br. 28; R. Br. 19; Tr. 304. The Secretary asserts that none of the acceptable 

 

38 FMSHRC Page 2180
reasons to alter the accident scene existed. The Secretary argues that:

1) MSHA’s Western District Manager did not grant express 

consent, 2) the truck did not need to be moved in order to recover 

or rescue a person, 3) there was no immediate danger present, 

[and] 4) the truck did not need to be moved in order to prevent the 

destruction of mining equipment. 

G. Br. 28; Tr. 304-306. 

Ash Grove relies on its assertions that Cory’s injuries did not have the “reasonable 

potential to cause death,” as contended in its challenge to Citation Number 8780423. R. Br.19 

Because Cory’s injuries do not rise to the level of seriousness to be categorized “an accident,” 

the prohibitions under Section 50.12 were not triggered. Id. Ash Grove does not contend that an 

exception to 50.12 existed justifying the move of Gresham’s truck, or that it sought MSHA’s 

permission to move the truck. Therefore, the sole issue is whether the truck qualified as an 

“accident site,” which in turn hinges on whether Cory’s injuries had the “reasonable potential to 

cause death.” As discussed above, Cory’s eight foot fall and the resulting injuries had a 

reasonable potential to cause death.37 The event was an accident, and the situs (i.e., the truck 

parked at the loadout) became the “accident site.” Ash Grove had an affirmative duty to preserve 

the site so MSHA could investigate. When Goad moved and washed the vehicle, the site was 

fundamentally altered in violation of Section 50.12. 

Goad, an Ash Grove customer, rather than its employee, was never told to wash the truck; 

he did it on his own. Tr. 304. With that said, the accident site was still within Ash Grove’s 

control and a mine operator is held strictly liable for violations that occur at its mine. Spartan 

Mining Co., 30 FMSHRC 699, 706 (Aug. 2008). The strict liability regime may be relaxed in 

limited situations, such as when something occurs outside of an operator’s control. See Sec’y of 

Labor v. Nat’l Cement of Cal., Inc., 573 F. 3d 788, 795 (D.C. Cir. 2009) (stating that strict 

liability means liability without fault, but does not necessarily mean liability for things that occur 

outside one’s control or supervision.). In this case, Ash Grove had control of the situation, as the 

truck was washed on its property, using its wash bay. Goad was never told by Ash Grove 

management to keep the truck at the loadout. Tr. 304, 323. Ash Grove had the ability to 

intervene and direct its customer to leave the truck at the accident site. It did not do so. 

For the reasons set forth, the court finds the company violated Section 50.12 as charged. 

6. Gravity 

The failure to ensure preservation of an accident scene is a serious violation. 

Investigation of the unaltered scene with its evidence of an accident’s cause and consequences is 

critical to the agency if it is to prevent similar accidents. Here, where Ash Grove failed to 

prevent its customers from significantly changing “the facts on the ground” following the 

                                                             37 When an injury occurs at a mine with the reasonable potential to cause death, the site 

of the incident is an “accident site” and the requirements of Section 50.12 are triggered. Black 

Beauty Coal Co., 37 FMSHRC 687, 691 (April 2015) 

38 FMSHRC Page 2181
accident, the company potentially undermined the effectiveness of the agency’s preventative 

efforts and this in and of itself was a serious failure on the company’s part. 

7. Ash Grove’s Negligence 

Rasmussen testified that he charged Ash Grove with “high” negligence because the 

operator did not offer any mitigating factors or explain its actions in allowing Goad to wash his 

truck before the MSHA investigation was complete. Tr. 318-19. Rasmussen reasoned that the 

mine operator has the ultimate responsibility for what happens on its site, and should have 

directed Goad not to move the truck. Tr. 319. 

Because the alteration of the accident scene was the result of a customer’s independent 

action, the court finds the negligence attributable to Ash Grove for the violation of § 50.12 to be 

moderate, rather than high. Tr. 304, 323. Ash Grove could and should have been more diligent in 

notifying its customer that the truck needed to remain unchanged and at the loadout pending 

MSHA’s investigation. Ash Grove’s later action of taping off the vehicle evidences the ability to 

control the movement of the truck on its property. Tr. 314. However, Ash Grove had no reason 

to anticipate Goad’s intentional decision to alter the scene. 

IV. Other Civil Penalty Criteria and the Assessment of Penalties 

The court’s assessment of civil penalties must reflect consideration of the six penalty 

criteria listed in the Mine Act. 30 U.S.C. § 820(i); Rex Coal Co., 38 FMSHRC 208, 214 (Feb. 

2016). The criteria are: (1) the operator’s history of previous violations; (2) the appropriateness 

of the penalty to the size of the business; (3) the operator’s negligence; (4) the operator’s ability 

to stay in business; (5) the gravity of the violation; and (6) any good-faith compliance after 

notice of the violation. 30 U.S.C. § 820(i); Douglas R. Rushford Trucking, 22 FMSHRC 598, 

600 (May 2000). 

As a preface to the analysis, it is important to emphasize that when conducting a penalty 

assessment, weighing one factor more heavily than others is not an abuse of discretion, provided 

that all six are considered. Jim Walter Res., Inc., 36 FMSHRC 1972, 1979-80 (Aug. 2014); 

Thunder Basin Coal. Co., 19 FMSHRC 1495, 1503 (Sept. 1997). Any substantial divergence of 

the court from a penalty proposed by the Secretary must be explained in light of the criteria. 

Spartan Mining Co., 30 FMSHRC 699, 723 (Aug. 2008). 

A significant portion of the evidence presented is common to the operation as a whole, 

and relevant to the civil penalty discussion for all of the violations. Four of the criteria will be 

approached comprehensively, save for gravity and negligence, because the facts relevant to those 

components are distinct to each citation. The seriousness of each violation, and the operator’s 

culpability were discussed in the analysis of each violation, and in this case, the gravity and 

negligence of the violations are the crux of the court’s civil penalty determinations. See Lopke 

Quarries, Inc., 23 FMSHRC 705, 713 (July 2001) (holding that a Commission judge did not 

abuse his discretion by weighing the factors of negligence and gravity more heavily than the 

other four statutory criteria); Musser Eng’g Inc., 32 FMSHRC 1257, 1289 (Oct. 2010). 

 

38 FMSHRC Page 2182
A. History of Previous Violations 

Generally, the operator’s past violations of all safety and health standards are considered 

for this criteria. Jim Walter Res., Inc., 28 FMSHRC 983, 995 (Dec. 2006); Peabody Coal Co., 14 

FMSHRC 1258, 1264 (Aug. 1992). One way of gauging all past violations is to consider an 

operator’s rate of violations per inspection day. At the time of the inspection Ash Grove’s 

violation per inspection date rate was .91, lower than the non-metal industry average of 1.11 to 

1.14. G. Ex. 1; Tr. 101. There were also no lost time injuries or accidents reported in the fifteen 

month period at the time of the inspection. Tr. 101. Generally bare information, such as the 

number of violations, would not be relevant, but when coupled with a qualitative assessment, the 

violation history becomes more important. Cantera Green, 22 FMSHRC 616, 624 (May 2000); 

Secretary of Labor on behalf of Hannah v. Consolidation Coal Co., 20 FMSHRC 1293, 1305 

n.14 (Dec. 1998). Inspector Nelson conceded that “[o]verall Ash Grove runs a pretty good 

operation.” Tr. 62. Nelson’s concession that Ash Grove is not a prolific violator, coupled with 

the relatively lower violation rate than comparable mines, militates in favor of lowering the 

proposed penalties. 

B. Size 

 The court must determine whether the proposed penalties are appropriate in relation to 

Ash Grove’s size. Ash Grove runs a large operation, including numerous mines in various areas 

of the country. Tr. 106. No testimony or evidence to the contrary was introduced. Ash Grove’s 

size does not warrant a reduction in the proposed penalties. 

C. Ability to Continue in Business 

Ash Grove did not aver that the Secretary’s proposed penalties, if assessed, will affect its ability 

to remain in operation. The ability to pay is not in dispute. The Commission has held that, “[i]n 

the absence of proof that the imposition of authorized penalties would adversely affect [an 

operator's] ability to continue in business, it is presumed that no such adverse [e]ffect would 

occur.” Sellersburg, 5 FMSHRC at 294 (citing Buffalo Mining Co., 2 IBMA 226, 247-48 

(September 1973)); accord Spurlock Mining Co., 16 FMSHRC 697, 700 (April 1994). See also 

Broken Hill Mining Co., 19 FMSHRC 673, 677 (1997). Ash Grove’s ability to pay the proposed 

penalties does not warrant their reduction. 

D. Good Faith 

 The operator’s good-faith compliance after receiving notice of the violation must also be 

considered. The parties stipulated that Ash Grove abated the citations in good faith. Tr. 248-250. 

Good faith is assumed, and Ash Grove’s timely compliance does not warrant reduced penalties. 

 

38 FMSHRC Page 2183
WEST 2014-963 

CITATION NO. DATE 30 C.F.R. § PROPOSED PENALTY ASSESSMENT 

8780591 05/22/2014 18002(a) $1,530.00 $0.00 

(VACATED) 

 The court will vacate Citation Number 8780591. As such, no civil penalty is assessed. 

CITATION NO. DATE 30 C.F.R. § PROPOSED PENALTY ASSESSMENT 

8611830 05/28/2014 14110 $1,530.00 $1,250.00 

 The court finds that the violation was serious, and attributable to the company’s moderate 

negligence. Given these findings, and the other civil penalty criteria, the court assesses a civil 

penalty of $1,250 for the violation. The reduction is based on Ash Grove’s commendable overall 

history of previous violations. 

WEST 2015-503 

CITATION NO. DATE 30 C.F.R. § PROPOSED PENALTY ASSESSMENT 

8780422 08/04/2014 50.10(b) $5,000.00 $5,000.00 

The Secretary proposed a $5,000 civil penalty for Citation No. 8780422. G. Ex. 8. This 

civil penalty represents the statutory minimum that the Secretary must assess for a violation of an 

immediate notification violation. 30 C.F.R. § 100.4(c). 

Although section 110(a)(2) of the Act, 30 U.S.C. § 820(a)(2), speaks to the Secretary, not 

to the Commission, the Commission has held that assessment of a non-flagrant violation of 

Section 50.10(b) is governed by Section 110(a)(2) of the Act and that the Commission’s judges 

must adhere to the minimum and maximum statutory penalties set forth therein. Signal Peak 

Energy, LLC, 37 FMSHRC 470, 483-84 (Mar. 2015). Accordingly, the court has no choice but to 

assess the $5,000.00 penalty proposed by the Secretary. 

WEST 2015-523 

CITATION NO. DATE 30 C.F.R. § PROPOSED PENALTY ASSESSMENT 

8780423 08/04/2014 50.12 $2,000.00 $1,250.00 

The court finds that the violation was serious and attributable to the company’s moderate 

negligence. The Secretary proposed a $2,000.00 special assessment for Citation No. 8780423. G. 

Ex. 9; G. Ex. 10. The court finds that a penalty of $1,250 is appropriate. The reduction is based 

on Ash Grove’s commendable overall history or previous violations. 

 

38 FMSHRC Page 2184
ORDER 

 For the reasons set forth above, Citation No. 8780591 is VACATED. Citation No. 

8611830 and 8780422 are AFFIRMED as written. Citation No. 8780423 is MODIFIED to 

reduce the level of negligence from “high” to “moderate.” Within 30 days of the date of this 

decision, Ash Grove SHALL PAY a civil penalty of $7,500.38

/s/ David F. Barbour 

 David F. Barbour 

 Administrative Law Judge 

Distribution: (Certified Mail) 

Daniel Brechbuhl, Esq., U.S. Department of Labor, Office of the Solicitor, 1244 Speer Blvd., 

Suite 216, Denver, Colorado 80204 

John Nelson, Esq., Ash Grove Cement Company, 11011 Cody Street, Overland Park, Kansas 

6210 

/md 

                                                             38 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. 

38 FMSHRC Page 2185
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9950 / FAX: 202-434-9949 

August 9, 2016 

AMENDED DECISION AND ORDER

Appearances: Daniel T. Brechbuhl, Esq., U.S. Department of Labor, Office of the 

Solicitor, Denver, CO for Petitioner; 

Nicholas W. Scala, Esq., Conn Maciel Carey PLLC, Washington, D.C. for 

Respondent.1

Before: Judge L. Zane Gill

1

 At the time of this hearing, Mr. Scala was employed by the Law Offices of Adele 

Abrams, LLC, as reflected in the transcript dated February 18, 2015. 

RBS, INC., 

 Contestant, 

v. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Respondent 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

v. 

RBS, INC., 

 Respondent 

CONTEST PROCEEDINGS 

Docket No. WEVA 2014-0691-RM 

Citation No. 8718116; 02/25/2014 

Docket No. WEVA 2014-0693-RM 

Citation No. 8718118; 02/25/2014 

Docket No. WEVA 2014-0694-RM 

Citation No. 8718119; 02/25/2014 

Mine: Greystone Quarry and Plant 

Mine ID: 46-00018 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 2014-0817 

A.C. No. 46-00018-346526

Mine: Greystone Quarry and Plant 

38 FMSHRC Page 2186
This proceeding, under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 

et seq. (1994), involves six section 104(a) citations, 30 U.S.C. § 814(a), issued by the 

Department of Labor's Mine Safety and Health Administration (“MSHA”) to RBS, Inc., at its 

Greystone Quarry and Plant. RBS was assessed a total penalty of $24,886.00 for the six 

violations. The Secretary and the Respondent settled one citation prior to trial: No. 8718115. The 

parties presented testimony regarding the remaining five citations in South Charleston, West 

Virginia. 

Greystone Quarry is a small limestone quarry near Lewisburg, West Virginia, with a pit 

area and crushing and screening plants. (Tr. 193:23 – 194:24; 275:2-3) The pit contains a large 

natural formation of “Greenbrier Limestone,” approximately 800 feet deep in some locations. (Tr. 

275: 3-6) In the pit area, the operator strips a thin layer of overburden, consisting principally of 

mud and shale, off of the limestone and then drills and shoots the limestone with explosives 

leaving behind a “muck pile,” also called “shot rock,” on the face of the highwall where the 

material was found. (Tr. 275:7-11) The operator then uses a haul truck to transport the muck pile 

from the highwall to the crushing plant where it is crushed and classified into numerous different 

products. (Tr. 275:22 – 276:2) 

Inspector Brett Chiccarello was on site for two days in February, 2014, to perform a 

regular inspection. (Tr. 10:6-8; 118:9-11) Chiccarello had been an inspector for four and a half 

years and had conducted roughly 250 inspections. (Tr. 27:24-28:11) However, this was his first 

time at this particular mine, as he was filling in for another inspector from his district field office. 

(Tr. 10:15 - 11:1; 118:14-16) Chiccarello did not believe that his lack of familiarity with the 

mine would pose any problem, since he normally inspected other limestone mines as a part of his 

job. (Tr. 31:4-14) He also had prior experience as a superintendent at a surface coal mine, which 

Chiccarello testified had similar equipment and highwalls as the Greystone Quarry. (Tr. 28:12 - 

29:15; 31:14-17) 

Chiccarello issued seven citations and orders during his inspection, four of which he 

initially designated as unwarrantable failures to correct a health or safety hazard and the result of 

reckless disregard. (Tr. 118:17 - 119:2) After meeting with his supervisor, Chiccarello vacated 

one of those four citations entirely and deleted the unwarrantable failure designations for the 

three remaining 104(d) orders. (Tr. 119:6-21) The level of negligence on those three citations 

and orders was also reduced from “reckless disregard” to “high.” (Tr. 119:12-15). 

 In summary, and for the following reasons, I conclude that: 

• For Citation No. 8718116, RBS violated Section 56.14101(a)(2), injury was unlikely, the 

injury could reasonably be expected to be a fatality, the violation was not significant and 

substantial, one person was affected, and there was low negligence. I assess a penalty of 

$460.00 for the violation. 

• For Citation Nos. 8718118 and 8718119, the Secretary failed to prove a violation of 

Section 56.9314 and Section 56.320. 

• For Citation No. 8718120, RBS violated Section 56.14101(a)(2), injury was unlikely, the 

injury could reasonably be expected to be fatal, the violation was not significant and 

38 FMSHRC Page 2187
substantial, one person was affected, and there was low negligence. I assess a penalty of 

$207.00 for the violation. 

• For Citation No. 8718121, RBS violated Section 56.14100(a), injury was unlikely, the 

injury could reasonably be expected to be fatal, the violation was not significant and 

substantial, one person was affected, and there was moderate negligence. I assess a 

penalty of $460.00 for the violation. 

Stipulations 

The following stipulations were submitted in a joint prehearing report: 

1. RBS was at all times relevant to these proceedings engaged in mining 

activities at the Greystone Quarry and Plant in or near Maxwelton, West 

Virginia. 

2. RBS’s mining operations affect interstate commerce. 

3. RBS is subject to the jurisdiction of the Federal Mine Safety and Health 

Act of 1977, 30 U.S.C. § 801 et. seq. (the “Mine Act”). 

4. RBS is an “operator” as that word is defined in §3(d) of the Mine Act, 30 

U.S.C. §803(d), at the Greystone Quarry and Plant (Federal Mine I.D. No. 

46-00018) where the contested citations in these proceedings were issued. 

5. The Administrative Law Judge has jurisdiction over these proceedings 

pursuant to §105 of the Act. 

6. MSHA Inspector Brett Chiccarello was acting as a duly authorized 

representative of the United States Secretary of Labor, assigned to MSHA, 

and was acting in his official capacity when conducting the inspection and 

issuing the citations from docket at issue in these proceedings. 

7. The citations at issue in these proceedings were properly served upon RBS 

as required by the Act, and were properly contested by RBS. 

8. The citations at issue in these proceedings may be admitted into evidence 

by stipulation for the purpose of establishing their issuance. The 

truthfulness or relevancy of any statements asserted therein is not 

stipulated to by the parties. 

9. RBS demonstrated good faith in abating the violations. 

10. Without RBS admitting the propriety or reasonableness of the penalties 

proposed herein, the penalties proposed by the Secretary in this case will 

not affect the ability of RBS, Inc., to continue in business. 

Jt. Pre-Hearing Report at 2. 

Basic Legal Principles

 

Significant and Substantial

 

The citations in dispute and discussed below have been designated by the Secretary as 

significant and substantial (“S&S”). A violation is properly designated S&S “if, based upon the 

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

38 FMSHRC Page 2188
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 question of whether a particular 

violation is S&S must be based on the particular facts surrounding the violation. Texasgulf, Inc., 

10 FMSHRC 498 (Apr. 1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987). 

S&S enhanced enforcement is applicable only to violations of mandatory health and safety 

standards. Cyprus Emerald Res. Corp. v. FMSHRC, 195 F.3d 42, 45 (D.C. Cir. 1999). The 

Secretary bears the burden of proving all elements of a citation by a preponderance of the 

evidence. In re: Contests of Respirable Dust Sample Alteration Citations: Keystone Mining 

Corp., 17 FMSHRC 1819, 1838 (Nov. 1995), aff'd 151 F.3d 1096 (D.C. Cir. 1998); Jim Walter

Resources, Inc., 30 FMSHRC 872, 878 (Aug. 2008) (ALJ Zielinski) (“The Secretary's burden is 

to prove the violations and related allegations, e.g., gravity and negligence, by a preponderance 

of the evidence.”) 

In Mathies Coal Co., the Commission established the standard for determining whether a 

violation was S&S: 

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

is significant and substantial under National Gypsum, the Secretary 

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

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

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

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

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

a reasonably serious nature. 

6 FMSHRC 1, 3-4 (Jan. 1984). 

The third element of the Mathies test presents the most difficulty when 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: [T] he 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.” (citing U.S. Steel Mining Co., Inc., 6 FMSHRC 

1834, 1836 (Aug. 1984)). The Secretary, however, “need not prove a reasonable likelihood that 

the violation itself will cause injury.” Cumberland Coal Res., 33 FMSHRC 2357, 2365 (Oct. 

2011) (citing Musser Engineering, Inc. and PBS Coals, Inc., 32 FMSHRC 1257, 1281 (Oct. 

2010)). Further, the Commission has found that “the absence of an injury-producing event when 

a cited practice has occurred does not preclude a determination of S&S.” Id. (citing Elk Run Coal 

Co., 27 FMSHRC 899, 906 (Dec. 2005)); and Blue Bayou Sand & Gravel, Inc., 18 FMSHRC 

853, 857 (June 1996)). This evaluation is also made in consideration of the length of time that 

the violative condition existed prior to the citation and the time it would have existed if normal 

mining operations had continued. Elk Run Coal Co., 27 FMSHRC at 905;U.S. Steel Mining Co., 

Inc., 6 FMSHRC 1573, 1574 (July 1984). 

 

38 FMSHRC Page 2189
Negligence

 

“Negligence” is not defined in the Mine Act. The Commission, has, however, 

recognized that “[e]ach mandatory standard ... carries with it an

accompanying duty of care to avoid violations of the standard, and 

an operator's failure to meet the appropriate duty can lead to a 

finding of negligence if a violation of the standard occurs.” A.H. 

Smith Stone Co., 5 FMSHRC 13, 15 (Jan. 1983). In determining 

whether an operator met its duty of care, we consider what actions 

would have been taken under the same circumstances by a 

reasonably prudent person familiar with the mining industry, the 

relevant facts, and the protective purpose of the regulation. See 

generally U.S. Steel Corp., 6 FMSHRC 1908, 1910 (Aug. 1984). 

Jim Walter Res. Inc., 36 FMSHRC 1972, 1975 (Aug. 2014); Brody Mining, LLC, 37 FMSHRC 

1687, 1702. (Aug. 2015); Spartan Mining Co., 30 FMSHRC 699, 708 (Aug. 2008). “Thus in 

making a negligence determination, a Judge is not limited to an evaluation of allegedly 

‘mitigating’ circumstances. Instead, the Judge may consider the totality of the circumstances 

holistically.” Brody Mining, LLC, 37 FMSHRC at 1702. 

Part 100 regulations “apply only to the proposal of penalties by MSHA and the Secretary 

of Labor; under both Commission and court precedent, the regulations do not extend to the 

independent Commission, and thus the MSHA regulations are not binding in any way in 

Commission proceedings.” Id. at 1701-02 (citing Jim Walter Res. Inc., 36 FMSHRC at 1975 

n.4; Sellersburg Stone Co. v. FMSHRC, 736 F.2d 1147, 1151-52 (7th Cir. 1984), aff'g 5 

FMSHRC 287 (Mar. 1983) (“[N]either the ALJ nor the Commission is bound by the Secretary's 

proposed penalties ... we find no basis upon which to conclude that [MSHA's Part 100 penalty 

regulations] also govern the Commission.”)).

Although the Secretary's part 100 regulations are not binding on the Commission, the 

Secretary's definitions of negligence in those provisions are illustrative. According to the 

Secretary, negligence is “conduct, either by commission or omission, which falls below a 

standard of care established under the Mine Act to protect miners against the risks of harm.” 30 

C.F.R. § 100.3(d). “A mine operator is required [...] to take steps necessary to correct or prevent 

hazardous conditions or practices.” Id. “Reckless negligence is present when “[t]he operator

displayed conduct which exhibits the absence of the slightest degree of care.” Id. High 

negligence is when “[t]he operator knew or should have known of the violative condition or 

practice, and there are no mitigating circumstances.” Id. Moderate negligence is when “[t]he 

operator knew or should have known of the violative condition or practice, but there are 

mitigating circumstances.” Id. Low negligence is when “[t]he operator knew or should have 

known of the violative condition or practice, but there are considerable mitigating 

circumstances.” Id. No negligence is when “[t]he operator exercised diligence and could not 

have known of the violative condition or practice.” Id.

38 FMSHRC Page 2190
Mitigation is something the operator does affirmatively, with knowledge of the potential 

hazard being mitigated, that tends to reduce the likelihood of an injury to a miner. This includes 

actions taken by the operator to prevent or correct hazardous conditions. 

 

Gravity

 

The gravity penalty criterion under section 110(i) of the Mine Act, 30 U.S.C. § 820(i), “is 

often viewed in terms of the seriousness of the violation.” Consolidation Coal Co., 18 FMSHRC 

1541, 1549 (Sept. 1996) (citing Sellersburg Stone Co., 5 FMSHRC 287, 294-95 (March 

1983), aff'd, 736 F.2d 1147 (7th Cir. 1984) and Youghiogheny & Ohio Coal Co., 9 FMSHRC 

673, 681 (Apr. 1987)). The seriousness of a violation can be examined by looking at the 

importance of the standard which was violated and the operator's conduct with respect to that 

standard, in the context of the Mine Act's purpose of limiting violations and protecting the safety 

and health of miners. See Harlan Cumberland Coal Co., 12 FMSHRC 134, 140 (Jan. 1990) (ALJ 

Fauver). The gravity analysis focuses on factors such as the likelihood of an injury, the severity 

of an injury, and the number of miners potentially injured. The Commission has recognized that 

the likelihood of injury is to be made assuming continued normal mining operations without 

abatement of the violation. U.S. Steel Mining Co., 7 FMSHRC at 1130. 

 

Penalty

 

The principles governing the authority of Commission administrative law judges to 

assess civil penalties de novo for violations of the Mine Act are well established. Section 110(i) 

of the Mine Act delegates to the Commission and its judges the “authority to assess all civil 

penalties provided in [the] Act.” 30 U.S.C. § 820(i). The Act delegates the duty of proposing 

penalties to the Secretary. 30 U.S.C. §§ 815(a), 820(a). Thus, when an operator notifies the 

Secretary that it intends to challenge a penalty, the Secretary petitions the Commission to assess 

said penalty. 29 C.F.R. § 2700.28. 

Under Section 110(i) of the Mine Act, the Commission is to consider the following when 

assessing a civil penalty: (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 in abatement of the violative condition. 30 U.S.C 

§ 820(i). Thus, the Commission alone is responsible for assessing final penalties. See Sellersburg 

Stone Co. v. FMSHRC, 736 F.2d at 1151-52 (“[N]either the ALJ nor the Commission is bound 

by the Secretary's proposed penalties ... we find no basis upon which to conclude that [MSHA's 

Part 100 penalty regulations] also govern the Commission.”); See American Coal Co., 35 

FMSHRC 1774, 1819 (July 2013)(ALJ Zielinski). 

The Commission has repeatedly held that substantial deviations from the Secretary's 

proposed assessments must be adequately explained using the Section 110(i) criteria. E.g., 

Sellersburg Stone Co., 5 FMSHRC at 293; Hubb Corp., 22 FMSHRC 606, 612 (May 

2000); Cantera Green, 22 FMSHRC 616, 620-21 (May 2000) (citations omitted). A judge need 

not make exhaustive findings but must provide an adequate explanation of how the findings 

contributed to his or her penalty assessments. Cantera Green, 22 FMSHRC at 622. 

38 FMSHRC Page 2191
Although all of the statutory penalty criteria must be considered, they need not be 

assigned equal weight. Thunder Basin Coal Co., 19 FMSHRC 1495, 1503 (Sept. 1997). 

Generally speaking, the magnitude of the gravity of a violation and the degree of operator 

negligence are important factors, especially for more serious violations for which substantial 

penalties may be imposed. Musser Engineering, 32 FMSHRC at 1289 (judge justified in relying 

on utmost gravity and gross negligence in imposing substantial penalty); Spartan Mining Co., 30 

FMSHRC at 725 (appropriate for judge to raise a penalty significantly based upon findings of 

extreme gravity and unwarrantable failure); Lopke Quarries, Inc., 23 FMSHRC at 713 (judge did 

not abuse discretion by weighing the factors of negligence and gravity more heavily than the 

other four statutory criteria). For example, violations involving “extreme gravity” and/or “gross 

negligence,” or, as stated in the former section of 105(a), “an extraordinarily high degree of 

negligence or gravity, or other unique aggravating circumstances,” may dictate higher penalty 

assessments. See 30 C.F.R. Part 100 Final Rule, 72 Fed. Reg. 13592-01, 13,621.

In addition, Commission ALJs are obligated to explain any substantial divergence 

between a penalty imposed and that proposed by the Secretary. As explained in Sellersburg 

Stone Co., 5 FMSHRC at 293: 

When ... it is determined that penalties are appropriate which 

substantially diverge from those originally proposed, it behooves 

that Commission and its judges to provide a sufficient explanation 

of the bases underlying the penalties assessed by the Commission. 

If a sufficient explanation for the divergence is not provided, the 

credibility of the administrative scheme providing for the increase 

or lowering of penalties after contest may be jeopardized by an 

appearance of arbitrariness. 

Citation No. 8718116

Inspector Chiccarello issued Citation No. 8718116 on August 14, 2012. It alleges a 

violation of 30 C.F.R. § 56.14101(a)(2) pursuant to Section 104(a) of the Mine Act. The 

regulation states, “If equipped on self-propelled mobile equipment, parking brakes shall be 

capable of holding the equipment with its typical load on the maximum grade it travels.” 30 

C.F.R. § 56.14101(a)(2). Section 56.14101 is a mandatory safety standard. The citation alleges: 

The parking brake on the Chevy 2500 pickup truck . . . did not work 

when tested on a grade (7 degrees measured by an abney level). The 

parking brake did not hold while going up the grade but did hold 

while facing down the grade. The truck is a standard and exposes 

miners working in the area to [the hazard of being] struck by [the 

truck] that has the potential of being fatal. The truck is operated by 

the superintendent daily on the mine site and he was aware the 

 

38 FMSHRC Page 2192
parking brake did not function properly when parked on a grade 

facing uphill. 

Ex. S-4 at 1. The citation further alleges that an injury was reasonably likely, the injury could 

reasonably be expected to result in a fatality, the violation was significant and substantial, one 

person could be affected, and there was a high level of negligence. Ex. S-4 at 1-2. 

Violation 

Citation No. 8718116 was issued during a “manager run” in superintendent Jim Harless’s 

pickup truck. On a typical “manager run” a foreman or superintendent provides the inspector 

with a guided overview of the mine in a company vehicle at the start of the regular inspection. 

(Tr. 32: 5-8) Chiccarello issued the citation after asking Harless to check the parking brake in his 

pickup truck and subsequently discovering that the brake did not “hold” while the vehicle was 

facing uphill. (Tr. 33:24 – 34:4) 

According to Chiccarello, upon being asked to test the brakes, Harless immediately 

responded that they did not work. (Tr. 32:9-11) Harless then tested the parking brake for the 

inspector while the vehicle was facing uphill and downhill, on a grade of seven degrees. The 

brake worked when the vehicle was facing downhill, but did not work in the opposite direction. 

(Tr. 33:24 – 34:16; Ex. S-4 at 1) Chiccarello and Harless then took the vehicle to a garage at the 

mine, and a mechanic promptly fixed the brake within 15 minutes. (Tr. 34:23 – 35:3; 263:1-2) 

After ensuring that the brake now worked both uphill and downhill, Chiccarello terminated the 

citation at 9:10 in the morning. (Tr. 35:4-12) 

The Respondent argues that it did not violate section 56.14101(a)(2) because: (1) the 

“standard does not state how the parking brakes . . . should be tested” to ensure compliance; and, 

(2) the Secretary “did not show that the parking brake ‘did not hold’ when the vehicle was 

parked in the manner in which the vehicle is parked during actual, day-to-day operations at the 

mine.” Resp’t Br. 3, 5. According to the Respondent, its employees normally park the vehicle 

with its transmission in a low gear, consistent with the guidance in the vehicle owner’s manual, 

and, as a general policy at the mine, with the vehicle facing downhill and into a berm. Resp’t Br. 

3, 5 (citing Tr. 197:15-22; 303:4-16). According to Harless, the brakes worked properly under 

these conditions. (Tr. 198:7-22) 

Section 56.14101(a)(2) is silent as to the question of whether a vehicle’s parking brakes 

must be capable of holding the equipment both uphill and downhill, and regardless of whether or 

not the equipment is placed in a low gear prior to testing. The standard is similarly silent as to 

whether the parking brakes need only hold the equipment when the vehicle is parked in a manner 

consistent with normal company policy. However, I find that the Secretary’s construction of 

section 56.14101(a)(2) is more “consistent with Commission case law construing regulations to 

further the protective purposes of the Mine Act.” Sunbelt Rentals, Inc., 38 FMSHRC ___, slip op. 

at 7 n.16, No. VA 2013-275-M, (Jul. 12, 2016). 

The standard is undoubtedly directed at the hazard of a vehicle rolling uncontrollably 

down a grade, which can just as easily occur with a vehicle facing uphill instead of downhill. 

Therefore, parking brakes must be capable of holding the vehicle in both directions. The 

38 FMSHRC Page 2193
presence of a policy encouraging miners to park the vehicle in only one direction does not alter 

that requirement, as there is no guarantee that this policy will be followed. (See Tr. 41:23 – 42:1) 

Indeed, Chiccarello credibly testified that miners typically park their vehicles in the direction that 

they are heading. (Tr. 40:2-6). As to RBS’s other parking practice, the fact that the vehicle could 

remain parked while the transmission was in a low gear does not mean that the defective parking 

brake complied with the standard’s requirement of being able to hold the vehicle by itself. 

Chiccarello credibly testified that placing the transmission in a low gear could temporarily hold 

the vehicle in place while masking problems with the parking brake. (Tr. 321:12-24) Since the 

standard is aimed at the proper functioning of the parking brake, independent of other 

mechanisms that may also hold the vehicle, the parking brake must be capable of holding the 

vehicle whether or not it is in a low gear. 

For these reasons, I find that the Secretary has established a violation of section 

56.14101(a)(2). 

 

Negligence 

Chiccarello designated the citation as high negligence because, as a superintendent, 

Harless was considered a part of mine management, and thus Harless’s acknowledgment that the 

brake was not working meant that management was aware of the violation. Additionally, RBS 

had been “cited on the exact pickup truck in a previous inspection for the same park[ing] brake.” 

(Tr. 37:8-14) The Respondent argues that Chiccarello incorrectly recalled Harless’s statements. 

Resp’t Br. 6. Harless testified that he only told Chiccarello that the brakes were not working after

Harless had already tested them for him during the inspection and learned of the defective 

condition himself. (Tr. 196:7-15) Harless claimed that he was not aware of the defective brake 

prior to that, because he had previously tested it under normal parking conditions at the mine, 

and the brake functioned properly. (Tr. 197:4-14) The Respondent also argues that the Secretary 

never introduced the prior alleged citation into evidence and that Chiccarello himself could not 

remember the precise date or substance of the previous citation. Resp’t Br. 6-7 (citing Tr. 139:3-

7; 140:13-21). 

I find the level of negligence to be lower than alleged. I credit Harless’s testimony that he 

was unaware of the defective parking brake before testing it for Chiccarello and that 

Chiccarello’s belief that Harless acknowledged the defect even before testing it was mistaken. 

The company’s normal testing procedure for the brake would not have alerted Harless to the 

condition. RBS, as a policy, parked its vehicles downhill into a berm because management 

believed that to be a much safer practice than parking the vehicle uphill and chocking it. (Tr. 

197:15-22; 303:4-16) Harless also typically placed the transmission in a low gear before parking 

the vehicle, which would have obscured the defective parking brake. (Tr. 198:14-22) While 

Harless is held to a high standard of care as a superintendent at the mine, there are considerable 

mitigating factors to explain why he was not aware of the violation. The fact that RBS had 

violated the same standard with the same pickup truck before is relevant to my negligence 

evaluation, but the single past violation alone does not establish the “aggravated lack of care” 

associated with a “high negligence” finding. Brody Mining, LLC, 37 FMSHRC 1687, 1703 (Aug. 

2015) (quoting Topper Coal Co., 20 FMSHRC 344, 350 (Apr. 1998)). 

38 FMSHRC Page 2194
Therefore, I find that the level of negligence was “moderate” instead of “high.” 

 

Significant and Substantial and Gravity

 The first prong of the Mathies test has been met. The defective brake also created a 

discrete safety hazard that the vehicle could fail to remain parked on a grade and roll dangerously 

toward a miner standing behind it, leading to a fatal injury. (Tr. 37:15-22) Thus, both the “fatal” 

and “1 person affected” designations were appropriate, and the second and fourth Mathies prongs 

have been satisfied. The remaining question is whether there was a reasonable likelihood that the 

hazard would result in an injury. I find that there was not. 

Because the parking brake worked when the vehicle was facing downhill (and 

presumably on level ground as well), the brake would hold the vehicle in most circumstances, 

even without the additional steps that the company took to prevent an accident. The company’s 

policy of always parking vehicles downhill into a berm, with the transmission in a low gear, 

further decreased the likelihood of injury, since the parking brake held the vehicle in each of 

those scenarios. 

The Secretary argues that any parking policy at the mine was not communicated to 

Chiccarello and not implemented consistently during the inspection. Sec’y Br. 7. However, 

Chiccarello did testify that Harless told him “he parks in a berm when he stops and never parks 

uphill.” (Tr. 132:14-22) I conclude that Harless parked in this manner because of the company’s 

policy, which was credibly described in detail by the company’s vice-president, William Snyder, 

at the hearing. (Tr. 302:11 – 303:16) To the extent that Harless was inconsistent in following that 

policy during the inspection, I conclude that he only violated that policy during the inspection in 

order to comply with Chiccarello’s directions during the inspection. (Tr. 196:1-6) 

Given these findings, the S&S designation will be deleted. 

Penalty 

The Secretary assessed the penalty for this citation at $7,578.00. Exhibit A of the 

Secretary’s penalty petition credits RBS with 27,807 hours worked annually at the Greystone 

Quarry. Ex. S-1. Based on this information, I consider RBS to be a relatively small operator. 

Additionally, this was the first time that RBS was cited under this standard within the 15 months 

prior to the inspection, although RBS had committed 37 violations in the prior 5 inspection days. 

Ex. S-1. As I found above, RBS was moderately negligent. I find that the company demonstrated 

good faith in the abatement of the violative condition. The parties stipulated to the fact that the 

assessed penalty will not significantly affect RBS’s ability to stay in business. Jt. Pre-Hearing 

Report. As to the gravity of the violation, I found the violation was not S&S, as it was unlikely 

that the hazard contributed to by the violation would lead to injury. However, I found that if an 

injury did occur, it could be reasonably expected to be fatal to one miner. 

The Secretary failed to prove that the gravity of the violation or the degree of operator 

negligence was as high as alleged. Therefore, I assess a penalty in the amount of $460.00. 

38 FMSHRC Page 2195
Citations Nos. 8718118 and 8718119 

On February 25, 2014, Inspector Chiccarello observed what he believed to be a 

hazardous muckpile on a highwall in the pit area, which prompted him to issue three citations 

alleging violations of the Secretary’s mandatory safety standards. One of the three citations (No. 

8718117) was subsequently vacated for being duplicative of Citation No. 8718118. (Tr. 142:4-

10) 

Citation 8718118 alleges a violation of Section 56.9314, which requires that “muckpile 

faces shall be trimmed to prevent hazards to persons.” 30 C.F.R. § 56.9314. The citation states: 

Upon an inspection of the second level mine pit it was observed

that unconsolidated material had not been trimmed back and/or 

sloped to the ang[le] of repose on the 50 foot high muck pile. 

Employees working in and around this area were exposed to the 

possibility of injury from the fall-of-material hazard. The mine 

regularly operates a 9888 front-end loader in this area. The frontend loader was not working in the area at the time of the 

inspection. I was informed the loader was working against the pile 

earlier in the day and yesterday February 24th 2014. Mine 

management indicated they do work out of the pile and he did not 

consider it a hazard. 

Ex. S-6 at 1. The citation further alleges that an injury was reasonably likely, the injury could 

reasonably be expected to result in a fatality, the violation was significant and substantial, one 

person could be affected, and there was a high level of negligence. Ex. S-6 at 1, 3. The citation 

was terminated on March 12, 2014. The termination order states:

Upon inspection the muck pile in the 2nd level pit was knocked 

down and no longer has material overhanging the pile. The 

material is now sloped for easy access for the front end loader to 

dig from the pile. Mine management has brought in a Hitachi 

UH261 excavator and CAT OSK bull dozer to maintain the piles. 

This order is terminated. 

Ex. S-6 at 2. 

Chiccarello also issued Citation No. 8718119 for an alleged violation of Section 56.3200. 

The standard states: 

Ground conditions that create a hazard to persons shall be taken 

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

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

 

38 FMSHRC Page 2196
posted with a warning against entry and, when left unattended, a 

barrier shall be installed to impede unauthorized entry. 

30 C.F.R. § 56.3200. The citation alleges: 

Upon an inspection of the of the pit's 50 foot high wall (Muck Pile), 

ground conditions were observed that created a hazard to mine 

employees. Several large boulders had not been scaled down at the 

southwest corner of the working face of the high wall. No warning 

signs or barriers were provided to prevent entry in this area, until 

this condition could be corrected. This hazard exposed the front 

end loader operator and other haulage equipment in the area to the 

possibility of fatal injury should the rocks fall. This area is where 

active mining is being conducted. I was informed work was 

conducted at the toe of the wall earlier in the day and yesterday 

February 24, 2014. Mine management was aware of the condition 

and did not think [it] was a hazard. He also stated they were 

finished in the area and were going to shoot the high wall next to it 

to bring down the remaining loose material that was hanging up 

high on the muck pile. There was no catch berm or signs to warn

or prevent entry to the area. 

Ex. S-8 at 1-2. The citation was terminated the same day, once a “sign and a berm were put in 

place to warn and prevent miners from entering the affected area.” Ex. S-8 at 3. The citation 

further alleges that an injury was reasonably likely, the injury could reasonably be expected to 

result in a fatality, the violation was significant and substantial, one person could be affected, and 

there was a high level of negligence. Ex. S-8 at 1-2, 4. 

Violation 

 Chiccarello issued Citation Nos. 8718118 and 8718119 after observing a muckpile 

consisting of several large rocks and boulders on the face of a highwall, hanging roughly 50 feet 

overhead. (Tr. 49:4-9) Chiccarello felt that the condition posed a hazard due to the size of the 

boulders and because they were not at an angle of repose. (Tr. 49:6-9; 55:12-24) He worried that 

miners digging at the toe of the highwall could be crushed if mining activities or thawing caused 

by fluctuating weather loosened the rocks. (Tr. 50:18-24) Citation No. 8718118 was issued for 

the failure to trim the muck pile on the highwall, while Citation No. 8718119 was issued for the 

failure to block off the area below and post a sign to prevent miners from entering the area, 

where they could be struck by falling rocks. Exs. S-6 at 1; S-8 at 1-2. 

 Sections 56.3200 and 56.9314 require the Secretary to first prove that the cited ground 

conditions and failure to trim the muckpile created a hazard to persons. I find that the Secretary 

failed to meet this burden for both citations. Harless credibly testified that the Respondent had 

previously scaled the highwall and tried to dislodge the cited rocks with an excavator in the 

course of its normal mining operations, but that the rocks were tied to the highwall and did not 

budge. (Tr. 201:19 – 202) Eventually, the rocks were blasted loose from the highwall in order to 

38 FMSHRC Page 2197
abate one of the citations. (Tr. 205:24 – 206:1) Given the difficulty in removing the muck pile, I 

do not find that the rocks posed a hazard of coming loose and falling on miners below. Cf. 

Springfield Underground, Inc., 17 FMSHRC 613 (Apr. 1995) (ALJ Maurer) (finding that ground 

conditions do not create a “hazard to persons” for the purpose of section 57.3200 if the allegedly 

hazardous “material has to be pried off the rib with thousands of pounds of material force”). 

 It is understandable that the inspector may have believed there was a hazard from his 

perspective, as the boulders do appear dangerously large, unstable, and capable of falling from 

the highwall in the photographs he took prior to the citations’ abatement. See Ex. S-7 at 4-5. 

Even Snyder, the company’s vice-president, believed that the rocks posed a hazard when he 

viewed them from the bottom of the highwall. (Tr. 296:13-18) However, a closer vantage point 

and further information about the company’s prior unsuccessful attempts to dislodge the rocks 

convinced Snyder that there was no hazard, and I agree with his later assessment. (Tr. 296:19 – 

298:24) 

 The Secretary argues that the Respondent admitted to Chiccarello during the inspection 

that it did not have any way of reaching the muck pile with the equipment on site, and that there 

was no excavator or bulldozer on site during the inspection which could have created a path to 

the muckpile and trimmed it. Sec’y Br. 13. According to the Secretary’s theory, these facts led to 

RBS failing to address the hazard, instead of any genuine belief that there was no hazard. Id. I 

find that that the inspector simply misconstrued a comment from an RBS agent in reaching this 

conclusion. 

Harless denied ever telling Chiccarello or believing that it was unsafe to travel to the 

muck pile. (Tr. 210:11-15) However, Chiccarello testified that when he sought an explanation for 

why RBS had not trimmed the muck pile prior to the citation, he was told that the only way the 

company could remove the rocks was by blasting them, as the company had no other way of 

getting them down. (Tr. 159:1-3) It appears that the inspector interpreted this statement to mean 

that the company had no way of safely reaching the muckpile without further blasting, when in 

fact it meant that the company had no way of dislodging the rocks without blasting them. 

Additionally, both Harless and Mark Drennen, the mine mechanic, credibly testified that there 

was an excavator and bulldozer on site on the day of the inspection. (Tr. 204:9-12; 266:21 – 

267:1) 

 To summarize, I find that RBS did have an excavator and bulldozer on site that could 

safely access the muckpile and that the company did attempt to trim the muckpile with the 

excavator prior to being cited, but that the rocks that Chiccarello identified as hazardous could 

not be dislodged in this manner. Instead, the company had to blast the rocks to trim the muckpile 

successfully. I cannot find the cited rocks to be hazardous given that they could only be pried 

loose with explosive material instead of an excavator. 

 For these reasons, I find that the Secretary has failed to establish the fact of violation for 

Citation Nos. 8718118 and 8718119. 

 

38 FMSHRC Page 2198
Citation Nos. 8718120 and 8718121 

On February 26, 2014, Chiccarello issued Citation Nos. 8718120 and 8718121 for 

violations of Sections 56.14101(a)(2) and 56.14100(a), pursuant to Section 104(a) of the Mine 

Act. 

Sections 56.14101(a)(2) states, “If equipped on self-propelled mobile equipment, parking 

brakes shall be capable of holding the equipment with its typical load on the maximum grade it 

travels.” 30 C.F.R. § 56.14101(a)(2). Citation No. 8718120 alleges: 

 

The Komatsu WA500, company #L-34, was put into use to load a 

truck while the loader operator knew the park brake did not work. 

He stated the park brake has not worked since 2/11/2014. The 

preoperational checks showed the park brake was not functional on 

seven different dates from 2/11/2014 through 2/19/2014. The 

preoperational check list was never turned into mine management.

2

This hazard exposes miners to injuries that have the potential of 

being fatal. The loader is used throughout the mining operation to 

load customer trucks. 

Ex. S-10 at 1. The citation further alleges that an injury was reasonably likely, the injury could 

reasonably be expected to result in a fatality, the violation was significant and substantial, one 

person could be affected, and there was a low level of negligence. Ex. S-10 at 1. 

Chiccarello also issued Citation No. 8718121 for an alleged violation of Section 

56.14100(a), which states “Self-propelled mobile equipment to be used during a shift shall be 

inspected by the equipment operator before being placed in operation on that shift.” 30 C.F.R. § 

56.14100(a). The citation alleges: 

The pre-operational check was not conducted for the Komatsu 

WASOO, company #L-34, as stated by the loader operator. The 

last preoperational check was conducted on 2/19/2014. That preop 

check indicated the park brake did not work. The loader operator 

[k]new this and said he had to load a truck and needed a loader and 

used it. The loader operator knew he is required to do a preop 

check but neglected to do so. Miners were exposed to a higher 

                                                             2

 Although a loader operator had apparently conducted pre-op exams on the defective 

vehicle for nearly two weeks without turning in the documentation for those exams to 

management, none of the post-hearing briefs reference this fact or explain its relevance to the 

citation. Chiccarello suggested that this fact mitigates RBS’s negligence because management 

would not have been aware of the defect if they never received the pre-op forms. (Tr. 96:12-19) 

However, they were aware that the equipment was tagged out for a defect, and the 

superintendent learned of the specific defect shortly before the company was cited. (Tr. 108:8-9; 

109:5-11) The more pertinent issue is RBS’s negligence in allowing the defective vehicle to be 

returned into service. 

38 FMSHRC Page 2199
degree of hazards and injuries due to the failure to observe, report, 

and correct potential defects and hazards on the equipment. 

Ex. S-12 at 1. The citation further alleges that an injury was reasonably likely, the injury could 

reasonably be expected to result in a fatality, the violation was significant and substantial, one person 

could be affected, and there was a low level of negligence. Ex. S-12 at 1. 

Violation 

 These citations both concern a front-end loader that was improperly put back into service 

by an RBS employee after being tagged out for repairs due to a defective parking brake. Citation 

No. 8718120 was issued for the defect itself, while Citation No. 8718121 related to the loader 

operator’s failure to conduct a pre-operation (“pre-op”) exam prior to using the loader. Exs. S-10 

at 1, S-12 at 1. 

 The loader had been tagged out due to the defect for at least a few days – possibly up to 

two weeks prior to the citations – and was sitting unused at the mine during that period.3 (Tr. 

214:3-8) It was not fixed immediately upon being tagged out because it was merely a spare 

loader, and the mine mechanic, Mark Drennen, was attending to higher priority concerns on 

other equipment. (Tr. 266:1-3) However, on the day of the inspection, one of the primary loaders 

at the mine broke down, and a loader operator subsequently informed the mine superintendent, 

Jim Harless, of the need to fix the parking brake on the spare loader so that he could continue 

production. (Tr. 214:9-12) Harless told the operator that he would fetch the mechanic and return 

within about five minutes, and he explicitly instructed the operator not to move the defective 

loader until he returned. (Tr. 214:12-18) 

Before Harless and Drennen returned, Chiccarello observed the loader operator parking 

the spare loader in defiance of Harless’s instructions. (Tr. 87:4-8). Chiccarello questioned the 

employee and discovered that the parking brake did not work and that he had not conducted a 

pre-op check on the equipment before using it. (Tr. 87:9-13) When Chiccarello asked him why 

he would do this, the loader operator responded, “[T]hat’s how we do it around here[;] I had to 

get that customer truck out of here.” (Tr. 87:14-17) Chiccarello cited the company for the 

defective brake and a failure to conduct a pre-op exam, and the citations were abated that day 

once Drennen repaired the defect and the loader operator was task trained on how to fill out and 

turn in pre-op exam sheets. Ex. S-10 at 1; S-12 at 1. 

 

 The Respondent argues that it complied with both standards because the loader was 

tagged out. Since “equipment that has been ‘removed from service’ is not required to be defectfree” for the purposes of 56.14101(a)(2) and the pre-op exam requirements in 56.14100(a) only 

                                                             3

 The record is unclear about the amount of time that the defective vehicle spent tagged 

out of service. Harless suggested that it had been sitting out in the tag out area for a few days. (Tr. 

214:4-8) Chiccarello speculated that the vehicle had been tagged out for a week or two. (Tr. 

108:11-15) Chiccarello noted in passing that the fact that pre-ops were being documented 

regularly on that vehicle during that timeframe raised his suspicion that an operator may have 

been putting the defective vehicle back into service on other occasions. (Tr. 109:21 – 110:2) But, 

the Secretary did not develop this argument any further at hearing or in his post-hearing brief. 

38 FMSHRC Page 2200
apply to “equipment to be used during a shift,” the Respondent argues that its removal of the 

loader from service with no intention to use it during a shift negates the fact of the violation for 

both citations. Resp’t Br. 12-17. I disagree. The vehicle may have been removed from service 

when it was tagged out, but it was very much in service for the purpose of section 56.14101(a)(2) 

when the inspector observed it and issued a citation. I also find that the phrase “to be used during 

a shift” in section 54.14100(a) encompasses situations in which the equipment is actually used 

during a shift. 

 Since there is no dispute that the parking brake did not hold the vehicle and that the 

loader operator failed to conduct a pre-op inspection prior to use of the vehicle, I find a violation 

for both citations. 

Negligence 

 Chiccarello designated the negligence for both citations as “low” because the mine 

superintendent had instructed the loader operator not to use the defective vehicle, miners were 

trained to perform pre-op exams and not to use defective or tagged out equipment, and mine 

management was not aware of the defect on the vehicle prior to the day of the inspection. (Tr. 

95:4-13; 105:4-17; 177:1 – 178:12) The vehicle was parked in the designated tag-out area during 

that period, so mine management would have known that the vehicle was defective in some way, 

but they would not have expected the defective equipment to be used or to cause any problems. 

(Tr. 109:5-11; 117:1-6) 

 The Respondent argues that the level of negligence should be lowered to “none” for both 

citations in effect because the violations reflected the willful misconduct of a rogue employee 

rather than any failure to exercise diligence on the part of the company. Resp’t Br. 15, 17. 

However, the Commission has stated that “[t]he fact that a violation was committed by a nonsupervisory employee does not necessarily shield an operator from being deemed negligent.” 

A.H. Smith Stone, Co. 5 FMSHRC 13, 15 (Jan. 1983). In assessing an operator’s negligence in 

such cases, the Commission takes into account “such considerations as . . . the operator's 

supervising, training, and disciplining of its employees to prevent violations of the standard in 

issue.” Id. I find the employee’s statement, “That’s how we do it around here[;] I had to get that 

customer truck out of here,” to be relevant to this analysis. (Tr. 87:15-17) Even if the employee 

was entirely mistaken about the mine’s tendency to value production over safety, greater efforts 

in training and supervision were required to make that clear to him. 

Additionally, there is some indication that the failure to conduct a pre-op in Citation No. 

8718121 was not an isolated incident, but instead indicated larger problems with the pre-op 

practices at the mine. Multiple weeks’ worth of pre-op documentation, including for the pre-op 

that originally identified the parking brake defect, was not turned in to management and was 

instead left inside the spare loader. (Tr. 96:13-22) MSHA requires miners to notify management 

when they identify a hazardous defect in a pre-op. (Tr. 178:20-23) The same breakdown in 

training and supervision that presumably led to those repeated failures likely contributed to the 

loader operator failing to conduct a pre-op before returning the vehicle into service. 

38 FMSHRC Page 2201
I find that the “low negligence” designation was appropriate for Citation No 8718120. 

However, I find that the level of negligence for Citation No. 8718120 was even greater than 

originally designated, that is “moderate” instead of “low.” 

Gravity and Significant and Substantial 

 Chiccarello found both violations to be significant and substantial and reasonably likely 

to lead to a fatal injury to one miner. Ex. S-10, S-12. The defective parking brake for Citation No. 

8718120 posed a discrete safety hazard of a large front-end loader striking or crushing a single 

miner in its path, and such injury could reasonably be expected to be fatal to one person. (Tr. 

92:19 – 93:4) Citation No. 8718121 presented the additional discrete safety hazard of the loader 

operator failing to detect further defects on the vehicle without a pre-op inspection. (Tr. 104:19 – 

105:3) Operating the vehicle with unidentified defects could likewise prove fatal to a single 

miner. Therefore I agree with the “fatal” and “one person affected” designations for both 

citations and find that three of the four Mathies prongs have been satisfied. The remaining 

question is whether there was a reasonable likelihood of injury. I find there was not. 

 The primary consideration for this finding is the very limited amount of time that miners 

were exposed to the vehicle’s hazard, even assuming continued mining operation. The defective 

vehicle had been tagged out of service and was not used prior to the inspection in that defective 

state, and the mine’s mechanic was already on his way to repair the vehicle when the inspector 

cited it. (Tr. 214:9-18; 264:21 – 265:8) I do not find that an accident or injury was reasonably 

likely in that small window of time between when the vehicle was put back into service and 

when the mechanic arrived. I find that an injury resulting from this hazard was unlikely. 

 The S&S designations for Citation Nos. 8718120 and 8718121 will be deleted. 

 Penalty 

 The Secretary assessed the penalties for these two citation at $1,026.00 each. I have 

found RBS to be a relatively small operator. Exhibit A of the Secretary’s penalty petition 

indicates that RBS had an insignificant history of violating the cited mandatory safety standards 

for these two citations, but a more considerable number of violations generally in the prior seven 

inspection days. Ex. S-1. I found a low level of negligence for Citation No. 8718120, but a 

“moderate” amount of negligence for Citation No. 8718121. I find that the company 

demonstrated good faith in the abatement of the violative condition. The parties stipulated to the 

fact that the assessed penalties will not significantly affect RBS’s ability to stay in business.4

 Jt. 

Pre-Hearing Report. As to the gravity of the violations, I found the violations were not S&S, as it 

was unlikely that the hazards contributed to by the violations would lead to injury. However, I 

found that if an injury did occur, it could be reasonably expected to be fatal to one miner. 

                                                             4

 The parties argued extensively at hearing and in their post-hearing briefs about whether 

an increased penalty would affect the operator’s ability to remain in business. Since I have not 

increased the penalties on any of the citations and the parties have already stipulated to the 

operator’s ability to pay the assessed penalties, there is no need to resolve this dispute. 

38 FMSHRC Page 2202
The Secretary failed to prove that the gravity of the violations was as high as alleged. 

However, the level of negligence for Citation No. 8718121 was higher than alleged. Therefore, I 

assess a penalty in the amount of $207.00 for Citation No. 8718120 and $460.00 for Citation No. 

8718121. 

Citation No. 8718115 

 At the hearing, the parties agreed to settle Citation No. 8718115 for the originally 

assessed amount of $100.00, without any modifications. I conclude that the proffered settlement 

is appropriate under the criteria set forth in section 110(i) of the Act. 

ORDER 

In view of the above findings, conclusions, and settlement approval, within 30 days of the 

date of this decision the Secretary IS ORDERED to: 

 Modify Citation No. 8718116 to reduce the level of negligence from “high” to 

“moderate,” to delete the “significant and substantial” designation, and to reduce the 

likelihood of injury or illness from “reasonably likely” to “unlikely;” 

 Vacate Citation Nos. 8718118 and 8718119; 

 Modify Citation No. 8718120 to delete the “significant and substantial” designations and 

to reduce the likelihood of injury from “reasonably likely” to “unlikely.” 

 Modify Citation No. 8718121 to delete the “significant and substantial” designations, to 

reduce the likelihood of injury from “reasonably likely” to “unlikely,” and to raise the 

level of negligence from “low” to “moderate.” 

WHEREFORE, it is ORDERED that RBS pay a penalty of $1,227.00 within thirty (30) 

days of the filing of this decision.5

/s/ L. Zane Gill 

L. Zane Gill 

 Administrative Law Judge 

 

                                                             5 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.

38 FMSHRC Page 2203
Distribution: 

 

Daniel T. Brechbuhl, Esq., U.S. Department of Labor, Office of the Solicitor, 1244 Speer Blvd., 

Suite 216, Denver, CO 80204 

Nicholas W. Scala, Esq., Conn Marciel Carey PLLC, 5335 Wisconsin Avenue NW, Suite 660, 

Washington, D.C. 20015 

Adele L. Abrams, Esq., Law Office of Adele L. Abrams, P.C., 4740 Corridor Place, Suite D, 

Beltsville, MD 20705 

38 FMSHRC Page 2204
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

721 19TH STREET, SUITE 443 

DENVER, CO 80202-2536 

303-844-3577 FAX 303-844-5268 

August 18, 2016 

 

DECISION

Appearances: Alicia A.W. Truman, Esq., Office of the Solicitor, U.S. Department of 

Labor, Denver, Colorado, for the Secretary; 

R. Henry Moore, Esq., Jackson Kelly, Pittsburgh, PA, for the Respondent. 

Before: Judge Manning 

These cases are before me upon notices of contest filed by Canyon Fuel Company, LLC 

(“Canyon Fuel”) and petitions for assessment of civil penalty filed by the Secretary of Labor, 

acting through the Mine Safety and Health Administration (“MSHA”), against Canyon Fuel 

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

§§ 815 and 820 (the “Mine Act”). The parties presented testimony and documentary evidence at 

a hearing held in Salt Lake City, Utah, and filed post-hearing briefs. Three section 104(a) 

citations were adjudicated at the hearing. Canyon Fuel operates the Sufco Mine, a large 

underground coal mine in Sevier County, Utah. For the reasons set forth below, I vacate Citation 

No. 8483666, modify Citation No. 8480766, and affirm Citation No. 8483766.

CANYON FUEL COMPANY, LLC, 

 Contestant 

 v. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Respondent 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

 v. 

CANYON FUEL COMPANY, LLC, 

 Respondent

 CONTEST PROCEEDINGS 

Docket No. WEST 2015-676-R 

Citation No. 8480766; 05/26/2015 

Docket No. WEST 2015-677-R 

Citation No. 8483666; 05/22/2015 

Sufco Mine 

Mine ID 42-00089 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEST 2015-635 

A.C. No. 42-00089-380386 

Docket No. WEST 2016-214 

A.C. No. 42-00089-385868 

Sufco Mine 

38 FMSHRC Page 2205
My findings of fact in this decision are based on the record as a whole and my 

observation of the witnesses. This decision includes a detailed summary of the testimony because 

this case raises rather unique issues and an understanding of the evidence presented is necessary 

to appreciate the legal issues raised. 

I. DISCUSSION WITH FINDINGS OF FACT 

AND CONCLUSIONS OF LAW 

Citation Nos. 8480766 and 8483766 both involve the surface termination point of the 

mine’s alternate escapeway. Many of the key facts are the same with regard to both citations. I 

discuss Citation No. 8483766 first, but the evidence for that citation is also relevant to Citation 

No. 8480766. 

A. Citation No. 8483766 

Citation No. 8483766 alleges a violation of section 75.380(d)(5) of the Secretary’s safety 

standards and asserts that, in the event of an emergency, the surface termination point of the 

mine’s designated alternate/secondary escapeway was not accessible via a roadway for landtraveling vehicles. Section 75.380(d)(5) requires that each escapeway be “[l]ocated to follow the 

most direct, safe and practical route to the nearest mine opening suitable for the safe evacuation 

of miners[.]” 30 C.F.R. § 75.380(d)(5). 

This citation was issued to Canyon Fuel on March 16, 2015. The citation alleges that an 

injury was unlikely to be sustained and that the violation was not of a significant and substantial 

nature (“S&S), but that if any injury did occur it would reasonably be expected to result in lost 

workdays or restricted duty. The citation further alleges that 20 persons were affected by the 

cited conditions and that Canyon Fuel’s negligence was moderate. The Secretary has proposed a 

penalty of $425.00 for this alleged violation. 

Summary of the Evidence Presented by the Secretary 

 In June of 2014, Russell Riley,1

 the District Manager for Coal District 9, visited Canyon 

Fuel’s Sufco Mine. (Tr. 16, 20). Canyon Fuel operates the Sufco Mine, an underground coal 

mine with both longwall and conventional mining sections. (Tr. 20). The mine liberates very 

little methane. (Tr. 100). About 80 to 90 miners work at the mine per shift, with roughly 20 of 

those miners in the two working sections at the mine. (Tr. 21, 48, 90). 

 1

 Riley has been in the mining industry since 1975, with MSHA for 16 years, and has 

been the District Manager for Coal District 9 for two and a half years. (Tr. 16, 18). As District 

Manager he is involved in plan reviews, over which he has ultimate authority, and oversees the 

technical division, enforcement division, as well as other divisions. (Tr. 16-17). Prior to his time 

as District Manager he worked at MSHA headquarters, as well as in MSHA offices in 

Pennsylvania, West Virginia, and Washington state. (Tr. 17). He has been on mine rescue teams, 

been a mine rescue instructor, and has taught mine foremen how to read and develop mine maps. 

(Tr. 19). 

38 FMSHRC Page 2206
 During his visit, Riley met with the mine’s safety department and asked to see an 

escapeway map. (Tr. 21-22). He observed that the primary escapeway designated on the map 

exited the mine through the West Lease Portal, while the alternate escapeway, which was 

significantly shorter, exited through the 4 East Fan Portal.2

 (Tr. 22-23; GX-2). He noted that 

other portals existed close to the working sections and asked why those portals were not used for 

escapeways if they were intakes. (Tr. 22). According to Riley, mine personnel explained that 

there were no roads to those portals. (Tr. 23). In addition, mine personnel told him that there was 

no road to the 4 East Fan Portal, which served as the termination point of the mine’s alternate 

escapeway. (Tr. 23-24). When Riley asked how the operator would take away people from that 

portal in an emergency, mine personnel told him that they did not know and had never been 

asked. (Tr. 24-25). Although Riley visited other portals in the mine that day, he did not travel to 

the 4 East Fan Portal. (Tr. 30). It was his understanding that the geography of the 4 East Fan 

Portal was similar to that of the 3 East Portal, which he did visit. He also understood that the 4 

East Fan Portal exited into a steep canyon and onto a 200 foot long, by 50 foot wide ledge. 

Several structures were present on the ledge including fan structures and an air discharge fan that 

pointed up into the air to avoid contamination with intake air. (Tr. 28-31). The power for the fan 

comes from cables that travel through the mine. 

 Riley testified that he told mine personnel that he was concerned that it would be difficult 

to evacuate miners from the alternate escapeway’s termination point at the 4 East Fan Portal. (Tr. 

32). Mine management told him that the alternate escapeway had been that way for at least 20 

years and it was the most direct way out of the mine. (Tr. 33). Riley did not cite the mine for a 

violation of any safety standard because he wanted to get more details. (Tr. 37). He told 

management that he would look into why the escapeway was allowed to exist that way for so 

long, but assumed it was an MSHA oversight. (Tr. 33). On cross-examination he acknowledged 

that inspectors would have performed quarterly inspections at the mine and travelled the air 

courses and the mine would have submitted ventilation maps, which identified the escapeways 

and air courses, for annual review by MSHA. (Tr. 93-95). When Riley left the mine that day it 

was his understanding that the mine was going to take action to correct what he believed was a 

deficiency and relocate the alternate escapeway to run parallel to the primary escapeway that 

terminated at the West Lease Portal. (Tr. 38). 

 On March 16, 2015, about nine months after his earlier visit to the mine, Riley made the 

decision to issue Citation No. 8483766 following a discussion with mine personnel in which he 

learned that the mine was not going to change the alternate escapeway route. (Tr. 36, 39). At 

hearing, Riley explained that, once miners exited the mine at the 4 East Fan Portal, there was “no 

reasonable means to get the miners, including disabled miners, off of the canyon edge” and, as a 

result, that mine portal was not suitable for the safe evacuation of miners. (Tr. 40-41). Riley 

understands the word “evacuation,” as used in the standard, to mean “move out of the danger, 

move out of harm’s way to a safe place.” (Tr. 40). It was his opinion that the area outside the 

mine opening presented the potential for hazards, including contamination by gases and smoke in 

the event of a fire or explosion. (Tr. 41). Riley acknowledged that the standard does not require 

 2

 Riley testified regarding the primary and alternate escapeways while referring to GX-2, 

a mine map dated March of 2015. (Tr. 26). The primary escapeway was marked with a blue line 

on the map, while the alternate was marked with a red line. (Tr. 27-28) 

38 FMSHRC Page 2207
that the portal be accessible by a road but opined that, when there is a disaster and miners get CO 

poisoning, burns, or are in shock, they need to get to medical assistance or transport immediately. 

(Tr. 42). 

 Riley explained that MSHA looked at potential alternatives to the mine’s 4 East Fan 

Portal alternate escape route. After looking at other potential alternate escapeways, MSHA 

determined that an alternate escapeway which paralleled the primary escapeway out the West 

Lease Portal would satisfy the standard’s requirements and make the primary and alternate 

escapeways separate and distinct for the full length.3

 (Tr. 42-44; GX-2). Riley stated that, in 

evaluating the best route, MSHA considers all three factors in the standard, i.e., whether the 

proposed route is the most direct, safe, and practical. (Tr. 50-51). He also pointed to MSHA’s 

Program Policy Manual, which states that the chosen route does not have to be the shortest and 

that other considerations are important. (Tr. 58-59; GX-4). Finally, he noted that the decision 

should be made while taking into account all of the standards that apply to escapeways and 

evacuations and not just section 75.380(d)(5). (Tr. 59). 

Riley acknowledged that the 4 East Fan Portal route was more direct than MSHA’s 

proposed alternate route out the West Lease Portal and it would be easier for miners to carry 

someone on a stretcher out to the 4 East Fan Portal. (Tr. 52, 98-100). However, he explained that 

distance is not the primary factor of concern in every situation and, in this case, the proposed 

West Lease alternate escapeway route was approximately the same distance as the primary 

escapeway that also exited out the West Lease Portal. (Tr. 56, 133). Moreover, roughly two thirds 

of the proposed West Lease alternate escapeway could be driven if the mine staged vehicles in 

the escapeway. (Tr. 133-134). 

Riley agreed that the number of overcasts in an escapeway is something that a mine 

operator must consider but did not believe that overcasts make a route much more difficult 

because going over them only takes a few seconds. (Tr. 53-54). He conceded, however, that if 

injured miners have to be carried over overcasts, it could take more than a matter of seconds. (Tr. 

109). Evacuating out the proposed West Lease route would require crossing over twelve 

overcasts using stairs. (Tr. 111). While he acknowledged that the number of SCSR caches needed 

along a route should be taken into consideration, he did not believe that a difference in that 

number makes one route safer than another route and stated that, since the proposed West Lease 

route was ventilated with intake air, it was unlikely that miners traveling out that way would 

need SCSRs. (Tr. 54, 132-133). He agreed, however, that miners carrying an injured miner on a 

stretcher would use up the oxygen from the SCSRs faster, thereby requiring them to change 

SCSRs more often. (Tr. 101). Riley acknowledged that there were a number of seals along the 

proposed West Lease route. (Tr. 106). 

Riley concluded that the proposed West Lease alternate route was safe, direct, and took 

miners out a portal where medical transportation could be waiting for them. (Tr. 43, 132). This 

alternate escapeway would be in return air from the working sections south to the 4 East turnout, 

but would then be in a separate fresh air intake all the way out of the mine. (Tr. 44). Riley opined 

 3

 Riley testified that the alternate escapeway route proposed by MSHA is marked with a 

green line on GX-2. (Tr. 43). 

38 FMSHRC Page 2208
that, in order for the proposed West Lease alternate escapeway to be compliant, the mine would 

need to rehabilitate the entries and put in signs, reflectors, a lifeline and some SCSR caches. (Tr. 

70, 106, 108). 

Riley testified that Canyon Fuel offered to make changes to the 4 East Fan Portal 

termination point in an effort to satisfy the standard, but he did not think the proposed changes 

were sufficient. (Tr. 59). Mine personnel said they would develop a safe house and provide 

additional medical supplies and food in line with what was required for a refuge alternative in the 

mine. (Tr. 59, 129). Riley acknowledged that the area would probably have power since there 

was a generator outside the portal. (Tr. 129-130). Because some escaping miners may well need 

immediate medical transportation, the use of a refuge at the 4 East Fan Portal would not meet the 

requirements of the safety standard. (Tr. 60, 134-135). Although Canyon Fuel officials said they 

would look into the possibility of retrieving miners from the 4 East Fan Portal using a helicopter, 

they had not taken those steps prior to the issuance of the Citation No. 8483766. (Tr. 60). 

Canyon Fuel looked into the availability of helicopter rescue services from Intermountain 

Life Flight and communicated its findings to MSHA. Riley learned the helicopter service cannot 

land the helicopter on the fan pad at the portal and would be required to drop a basket from the 

helicopter in order to retrieve miners. (Tr. 62, 65-66; GX-5 and 6). These helicopters cannot fly 

in winds greater than 45 mph, with less than three miles of visibility, nor in “rain, ice, sleet, fog, 

snow, heavy cloud cover, and could not drop a basket [in winds] over 10 [mph.]” (Tr. 62-65, 67-

68, 118; GX-5 and 6). In addition, rescue operations cannot be performed at night. Moreover, 

this helicopter service is the only civil helicopter operator in the area capable of basket rescues, 

which presents the possibility that its helicopters could be on another job. Given that the mine 

operates in the winter months when the helicopter service experienced the most “non-flying 

weather days,” as well as during the night, Riley felt that helicopter rescues are too unreliable 

and cannot provide the 24 hour a day, 7 day a week coverage required under the Secretary’s 

regulations. (Tr. 63-65, 68, 118). 

Sydel Yeager,4

 a Supervisory Coal Mine Inspector for MSHA, traveled to the mine prior 

to the hearing and marked a map of the proposed West Lease alternate escapeway while walking 

the route with an inspection party. (Tr. 174-175; GX-16). It took Yeager and her inspection party 

five to six hours to travel the proposed alternate escapeway while conducting an inspection along 

the way. (Tr. 199-201, 208). They walked from crosscut 212 to 176, which was not drivable and 

required them to make their way over three banks of overcasts, then took a vehicle from crosscut 

176 to crosscut 4. (Tr. 181, 182, 198-199, 212). She stated that, while a miner could walk all the 

way out, she would hope that the mine would stage enough vehicles for miners to drive out. (Tr. 

200-202, 208). Yeager noted that, with the exception of the first eight blocks outby crosscut 212 

in the North Mains, the proposed alternate escapeway was in intake air and the risk of smoke 

inhalation was unlikely. (Tr. 177, 180). According to Yeager, the proposed alternate escapeway 

out to the West Lease Portal would not be affected by a fire in the working section or in the belt 

 4

 Yeager has been with MSHA for four years, during which she has been a ventilation 

specialist, mining engineer, and part of MSHA’s Mine Emergency Operations Division of 

Technical Support. (Tr. 170-172). Prior to working for MSHA she worked in the mining industry 

as a ventilation engineer and industrial hygienist. (Tr. 173). 

38 FMSHRC Page 2209
entry. (Tr. 180). While the proposed route did make a number of turns, the route was easy to 

identify because it was bolted, meshed, and had been cleaned up fairly well. (Tr. 181). Yeager 

acknowledged that there were a few areas where the route would need to be widened, including 

some of the overcast stairs and that some rehabilitation, supplemental support, extra SCSRs and 

other changes would be needed. (Tr. 182-186, 203). Yeager also acknowledged that, although 

there were seals along the route that were outgassing at the time, it was unlikely that the 

outgassing would render the route unsafe. (Tr. 346-347). 

 Subsequent to the issuance of the citation, James Preece,5

 the Assistant District Manager 

for Coal District 9, traveled to the mine to examine the alternate escapeway and the 4 East Fan 

Portal. (Tr. 149). Preece confirmed Riley’s estimated measurements of the ledge area and 

described it as being on the side of a canyon. (Tr. 150). He noted that the multiple structures on 

the ledge took up 50-70% of the available area leaving two open areas, both roughly 25 feet by 

25 feet. (Tr. 150-151). He testified that the mine is in a remote, mountainous area, with the portal 

on the side of a canyon. (Tr. 151-154; GX-10, 11, 13). Like Riley, he believed that, given these 

factors, the 4 East Fan Portal was not a suitable area from which to transport an injured miner off 

the mine site. (Tr. 150, 154-155). 

Summary of the Evidence Presented by the Canyon Fuel 

 

 Gary Leaming,6

 the mine’s safety manager, was involved in developing the 4 East Fan 

Portal when the fan was installed around 1991. (Tr. 223-224). He accompanied multiple MSHA 

inspectors during mine inspections of escapeways and airways. (Tr. 238). Both he and Jacob 

Smith,7 the mine’s engineering manager, testified that, prior to Riley, MSHA officials had never 

questioned whether the 4 East Fan Portal was an appropriate place to terminate an escapeway. 

(Tr. 224-225, 239, 296). The area was first designated as an escapeway in 1992, at which time it 

was the primary escapeway before later being changed to the alternate escapeway. (Tr. 296-297). 

Canyon Fuel contends that the 4 East Fan Portal is the best alternate escapeway because it is the 

 5

 Preece has been with MSHA for 16 years, and the Assistant District Manager of Coal 

District 9 since October of 2015. (Tr. 146-147). As the Assistant District Manager he is 

responsible for managing and overseeing the inspection program. (Tr. 147). Prior to his time with 

MSHA, he worked for coal companies and contractors in positions ranging from mine foreman 

and superintendent, to coal engineer. (Tr. 148-149). 

 

6

 Leaming has worked at Canyon Fuel for 42 years and has been the safety manager since 

1995. (Tr. 215-216). As safety manager he is responsible for mine rescue efforts. (Tr. 219-220). 

He is a certified professional, holds fire boss and foreman papers, and was a member of a mine 

rescue team in the 1970s and 1980s, during which he responded to multiple events, including 

underground fires and roof falls at other mines. (Tr. 219-223).

 

7

 Jacob Smith has worked at the mine since March of 2013. (Tr. 295). As the mine’s 

engineering manager he is responsible for overseeing the engineering in the mine, which 

includes the ventilation, belt systems, water systems, roof control and surface facilities. (Tr. 293-

294). Prior to this he was the mine’s ventilation engineer and was responsible for preparing and 

submitting the ventilation plan, which included escapeways. (Tr. 294). 

38 FMSHRC Page 2210
most direct, safe, and practical way out of the mine to fresh air. (Tr. 226, 240, 262, 268, 297-

298). The term “evacuation” in the standard requires miners to exit the mine. (Tr. 262). 

 Leaming does not consider the area of the 4 East Fan Portal to be a ledge but described it 

as a flattened pad containing multiple structures. (Tr. 232). There was no surface road that led to 

the portal, so an ambulance could not drive there. (Tr. 264, 281-282). The fan house outside the 

portal included the fan and motor, first aid and communication equipment, and an internal area 

that was warm year round as long as the fan was running. (Tr. 227, 315). A backup diesel 

generator was in another building on the pad and the generator would operate in the event the 

power went out. (Tr. 229). Leaming testified that, in the event of an evacuation, there was 

enough room in the generator building and fan building for 20 miners. (Tr. 230). Smith also 

testified that 20 miners could fit in the fan house. (Tr. 316). A storage shed in the area housed fan 

blades and other parts. (Tr. 230). Leaming believed that there was enough room for a helicopter 

to lower a basket onto the pad. (Tr. 230-231). 

Leaming, Smith, and John Byars,8

 the operations manager at the mine, described the 4 

East Fan Portal in relation to the canyon. The slope to a dry creek bed at the bottom of the 

canyon from the 4 East Fan Portal was gradual and miners could easily angle themselves down. 

(Tr. 232). Leaming and Smith acknowledged that they had never walked out along the creek bed, 

nor had the mine tested the route and there was no way to get an ambulance down into the creek 

bed area. (Tr. 234, 274-275, 317). Smith testified that he was familiar with the area and there was 

a game trail that paralleled the creek at the bottom of the canyon and could be used to walk out to 

a road. (Tr. 303, 317-318). Byars, who grew up in the area and ran cattle in the canyons when he 

was younger, has walked the four to five miles from the 4 East Fan Portal to the bottom of the 

canyon and out to the gravel road. (Tr. 335). It took him approximately two hours to travel from 

the portal to the gravel road without any snow on the ground. (Tr. 340). Byars described the 

cattle trail as unpaved, approximately two feet wide and free of trees. (Tr. 335, 341). He stated 

that the area could have eight inches to a foot of snowpack in the winter, but it never stopped him 

from taking a horse or walking the area on foot. (Tr. 338). A Forest Service road was located at 

the top of the canyon on the plateau above the 4 East Fan Portal. (Tr. 234, 299-300; GX-11; 

CFX-17) (Forest Service road marked in red). The plateau has a large, open, flat area. (Tr. 299-

300). Miners who exited the mine at the 4 East Fan Portal would have to travel 400 to 500 yards 

up a drainage area to get to the top and then walk a short way to the Forest Service road where 

Leaming and Byars believed a helicopter could land. (Tr. 235-237, 200, 339, 343; CFX-17). 

However, Leaming acknowledged that the Forest Service road was not plowed during the winter 

months. (Tr. 276-277). While it would be difficult for miners to carry someone on a stretcher to 

the top, he believed it could be done. (Tr. 237). Neither Leaming nor Smith had tried to walk 

from the 4 East Fan Portal to the top of the canyon and they did not believe that this route had 

ever been tested. (Tr. 235-236, 276, 317). 

 8

 John Byars has worked at the mine for eleven years. (Tr. 329). As operations manager 

he is responsible for safety, maintenance, and production at the mine. (Tr. 330). Prior to his 

current position, Byars was the engineering manager for ten years. (Tr. 330). Byars has also 

worked as a ventilation engineer and is certified as a professional mining and mechanical 

engineer, fire boss, and mine foreman. (Tr. 331-334). 

38 FMSHRC Page 2211
Leaming described the mine’s access to medical services. The closest hospital to the mine 

is approximately 50 miles away. (Tr. 256). While the mine has its own EMTs and ambulance 

service, it only provides basic services. (Tr. 256, 274). The mine has an agreement with an EMS 

service to provide ambulance transportation from the mine. (Tr. 256-258; CFX-10). Leaming 

acknowledged that there are restrictions on when a helicopter can be used and recognized that a 

letter from the helicopter service stated that the service was bound by “a set of very conservative 

weather criteria.” (Tr. 258, 265-266; GX-5). Leaming agreed that the mine operated at night as 

well as during the winter months, when the helicopter service is restricted, and that miners could 

be stuck at the portal until daylight or the weather improved. (Tr. 266-267, 280-281). He 

acknowledged that Intermountain Life Flight was the only provider identified by the mine as 

being capable of conducting hoist removal operations from the surface at the 4 East Fan Portal. 

(Tr. 264-265). The mine did not make initial contact with Intermountain Life Flight until after 

Citation No. 8483766 was issued and has never conducted a test using the helicopter service 

during an escapeway drill. (Tr. 267-268). 

Leaming explained that, at MSHA’s request after Riley’s 2014 visit, Canyon Fuel 

considered other alternate escapeways. Mine personnel sent MSHA a letter examining four 

alternate escapeway possibilities: (1) the cited route out the 4 East Fan Portal, (2) the proposed 

route out the West Lease Fan Portal, (3) a route out the Link Canyon Portal, and (4) a route out 

the 3 East Breakout Portal. (Tr. 240-241; CFX-2). Mine personnel determined that the distance 

from the deepest point of penetration in the working sections to the 4 East Fan Portal was 2.34 

miles, which was the shortest distance of the four possibilities. The distance from that same point 

using the route suggested by MSHA to the West Lease Fan Portal was 5.88 miles, which was the 

second longest route. (Tr. 242-243). Further, mine personnel determined that the 4 East Fan 

Portal route was the least difficult route to travel because it was the shortest, had the fewest 

overcasts, and fewer SCSR change-out stations would be required. The West Lease Fan Portal 

route was the most difficult route to travel because it had the most overcasts and some of the 

route was particularly difficult to travel compared to the other options. (Tr. 242-245). It would 

also require the second most SCSR change-out stations. Leaming explained that overcasts are 

obstacles which cannot be driven over and make travel more difficult, especially when carrying a 

miner on a stretcher. (Tr. 247-248, 251). 

Leaming acknowledged that MSHA’s proposed West Lease alternate escapeway route 

largely parallels the current primary escapeway route and is similar in length. (Tr. 269). He 

agreed that the proposed route could be partially driven, but stated that miners cannot count on 

vehicles being there when they need them. (Tr. 249). The first people who come to the vehicles 

are going to take them. (Tr. 249-250). There would be sufficient vehicles in the primary 

escapeway because the miners would have used these same vehicles to get into the mine. (Tr. 

269-270). It took Leaming just under three hours to walk the proposed alternate escapeway out 

from where the 4 East entries intersect the North Mains. (Tr. 252-253, 280). He opined that an 

injured miner, a miner wearing a SCSR, or a miner carrying another miner on a stretcher would 

take much longer, and there is a chance that they might not have transportation to take them out. 

(Tr. 253-255, 280). 

Smith testified that the seals along the proposed West Lease alternate escapeway could 

create issues. (GX-16). The seals along the proposed alternate escapeway are used to seal out 

38 FMSHRC Page 2212
mined areas. (Tr. 313). According to Smith, there are times when the seals outgas and harmful 

gases travel through the seals from the mined out areas and into MSHA’s proposed route. (Tr. 

314-315). Byars testified that there are approximately 90 to 100 seals along the route. (Tr. 339). 

Brief Summary of the Parties’ Arguments 

The key facts are not disputed. The Secretary argues that, because there was “no 

reasonable and reliable means to evacuate miners, including disabled miners,” from the ledge 

outside 4 East Fan Portal, the mine opening was not suitable for the safe evacuation of miners, 

and the operator violated section 75.380(d)(5) of the Secretary’s regulations. Sec’y Br. 7. Canyon 

Fuel contends that the 4 East Fan Portal meets the requirements of the safety standard because 

miners, including injured miners, can easily and quickly escape from the dangerous conditions 

within the mine using that route. 

In making his arguments, the Secretary stresses the fact that the 4 East Fan Portal is in a 

remote, mountainous area with no road access. The use of a helicopter to evacuate miners is 

unreliable and this evacuation method would not be available at night or in inclement weather. 

The Secretary avers that the operator, in selecting the 4 East Fan Portal as the termination point 

of its alternate escapeway, focused almost entirely on the safety standard’s “direct” element and 

not the element in the standard that requires that the route lead to a mine opening “suitable for 

the safe evacuation of miners.” Requiring miners to stay in a structure at the portal for an 

unknown length of time cannot be considered safe evacuation nor can asking miners to hike up a 

steep canyon to a forest road or to hike four miles down the canyon to another gravel road. 

Rather, the Secretary argues that an alternate escapeway running “largely parallel to the Mine’s 

current primary escapeway” was the only acceptable route. Sec’y Br. 15. Even though the route 

is “not the most direct way out of the mine, it is safe and practical[.]” Id. 

The Secretary further argues that the plain meaning of the standard requires that 

escapeways lead to a mine opening suitable for the safe evacuation of miners. “Evacuate” is 

defined as to “[r]emove (someone) from a place of danger to a safer place.” Sec’y Br. 19 

(citation to dictionary definition omitted). As a result, the plain language of the standard demands 

that the escapeway route “lead to a mine opening that is suitable for removing miners from 

places of danger.” Sec’y Br. 19-20. The 4 East Fan Portal is not such a place. The standard does 

“not allow use of the shortest escapeway route in all cases, but instead requires first determining 

if a route leads to a mine opening suitable for the safe evacuation of miners and then weighing 

the remaining factors.” Sec’y Br. 19. 

In the event the judge determines that section 75.380(d)(5) is ambiguous, the Secretary 

argues that he should defer to the Secretary’s interpretation that an alternate escapeway that ends 

at a location where miners cannot be reliably rescued does not constitute safe evacuation. Sec’y 

Br. 20. This interpretation gives effect to the clause “suitable for the safe evacuation of miners” 

and advances the Act’s goal of protecting the safety of miners. Further, while this condition may 

have existed for some time, the fact that MSHA had not previously cited it does not preclude the 

agency from finding a violation in this instance. 

38 FMSHRC Page 2213
Canyon Fuel argues that the plain language of the cited standard supports vacating the 

citation. It asserts that, while the Secretary understands the phrase “for the safe evacuation of 

miners” to mean evacuation from the mine site once the miners are outside, Canyon Fuel 

contends that the phrase refers to the “evacuation out of the mine.” CF Br. 7. “Evacuation” 

means “the removal of persons or things from an endangered area.” CF Br. 8 (citation to 

dictionary definition omitted). Here, the endangered area is the underground area of the mine. 

Arrival at the portal eliminates the potential for injury from events in the mine. Because the 

Secretary’s proposed alternate escapeway out the West Lease Portal is longer and more difficult 

to travel than the cited route to the 4 East Fan Portal, he has not met his burden under 

Commission case law to establish a violation of the standard. 

Canyon Fuel argues that, even if the plain language is not conclusive, the standard, when 

viewed in the context of the regulatory history, as well as MSHA’s own PPM, clearly is focused 

on evacuation from the mine, not the mine site. Further, given that MSHA had accepted the 

mine’s escapeway to the 4 East Fan Portal since 1992, it is clear that the agency’s interpretation 

was in line with that of Canyon Fuel until Riley became District Manager. Canyon Fuel argues 

that the enforcement history of the safety standard demonstrates that MSHA agreed with Canyon 

Fuel’s interpretation of the standard until Riley became District Manager. 

Finally, Canyon Fuel argues that no deference should be afforded to the Secretary since 

the plain language of the standard controls and the enforcement history of the standard is 

inconsistent, conflicts with his prior position and, as a result, does not reflect the agency’s fair 

and considered judgement on the matter. CF Br. at 18. 

 Analysis 

I find that the Secretary has established a violation of the cited safety standard. The 

Commission and courts have stated that where the language of a standard is clear, the “terms of 

that provision must be enforced as they are written unless the regulator clearly intended the 

words to have a different meaning or unless a meaning would lead to absurd results.” Northern 

Illinois Service Co., 37 FMSHRC 1514, 1520 (citing Dyer v. United States, 832 F.2d 1062, 1066 

(9th Cir. 1987) and Utah Power & Light Co., 11 FMSHRC 1926, 1930 (Oct. 1989)). If however, 

a standard is silent or ambiguous with respect to the specific point at issue, the Commission 

defers to the Secretary’s interpretation as long as it is reasonable. Small Mine Development, 37 

FMSHRC 1892, 1894 (Sept. 2015) (citing Tenet HealthSystems Healthcorp. v. Thompson, 254 

F.3d 238, 248 (D.C. Cir. 2001) and Auer v. Robins, 519 U.S. 452 (1997)). 

I find that the standard is ambiguous. In reaching this conclusion I find that the standard, 

and in particular the phrase “suitable for the safe evacuation miners,” can be reasonably 

interpreted several ways. I accept the Secretary’s definition of the term “evacuate,” i.e., to 

remove someone from a place of danger to a safer place, which is also consistent with the 

definition used by the operator. With that definition in mind, I find that there are two reasonable 

readings of the plain language of the standard. 

The standard can be read to require that escapeways follow the safest, direct and practical 

route to the surface. The standard can also be read to require that escapeways follow the safest, 

38 FMSHRC Page 2214
direct and practical route to a surface portal where miners can be easily rescued, i.e., removed 

from the mine site. The 4 East Fan Portal meets the first interpretation of the standard while the 

route proposed by the Secretary to the West Lease Portal fits the second interpretation. 

Until 1996, this safety standard required each escapeway be “[l]ocated to follow the most 

direct, safe and practical route to the surface[.]” The “suitable for the safe evacuation of miners” 

language was added that year. Safety Standards for Underground Coal Mine Ventilation, 61 Fed. 

Reg. 9764, 9812-9813 (Mar. 11, 1996). The preamble to the final rule is instructive but it does 

not resolve the issue. The preamble states as follows: 

A question arose during an informational meeting as to whether 

MSHA intended that the existing rule eliminate the requirement 

that escapeways be routed to the “nearest mine opening.” It was

not MSHA's intent to change this requirement from the previous 

standard. The existing requirement that the escapeway follow the 

most direct route to the surface would, in fact, require the route to 

go to the nearest mine opening. However, to eliminate any 

confusion that may exist, the final rule revises paragraph (d)(5) . . . 

[to require] that the escapeway must follow the most direct, safe 

and practical route to the nearest mine opening suitable for the safe 

evacuation of miners. 

Id. at 9812. The preamble further provides: 

MSHA acknowledges that the nearest mine opening may not 

always be the safest route to the surface. A number of factors 

affect whether or not the safest, most direct, practical route has 

been selected. These factors include roof conditions, travel height, 

fan location, physical dimensions of the mine opening, and similar 

considerations. For example, if bad roof conditions are present 

along the shortest direct route and those roof conditions are beyond 

reasonable control, then an alternate “safe” route designated by the 

mine operator may be appropriate. However, the presence of roof 

falls does not necessarily indicate that the passageway would not 

be suitable for evacuation if it is reasonable to rehabilitate the area. 

By way of another example, where coal seam thickness varies to 

the extreme, the shortest route may be through lower coal, making 

travel relatively slow and difficult. An alternate route through a 

high passageway may permit easier travel. Such an alternate route, 

although longer, may be more practical and therefore may be more 

appropriate. Similarly, there can be other instances where the 

“nearest mine opening” may not be suitable for safe evacuation of 

miners. For example, an old mine shaft may not be safe for travel 

because of badly deteriorated conditions, such as a deteriorated 

 

38 FMSHRC Page 2215
shaft lining or deteriorated timbers, even though the shaft is still 

suitable for mine ventilation purposes. 

Id. at 9812-13. Each of the examples provided concern conditions within the mine and the 

preamble suggests that MSHA was interpreting the safety standard to require miners to follow 

the “safest route to the surface.” Id. Nothing in the preamble suggests that MSHA was concerned 

about conditions that might exist once miners reach the surface. Based on this discussion in the 

preamble, one could interpret the safety standard to require that each escapeway be located to 

follow the most direct, safe and practical route suitable for the safe evacuation of miners to the 

nearest mine opening. Under this reading, the phase “suitable for the safe evacuation of miners” 

modifies the phrase “most direct, safe, and practical route” rather than the phrase “to the nearest 

mine opening.” 

 I conclude that deference is owed the Secretary’s position that the safety standard should 

be interpreted to take into consideration surface conditions as well as underground conditions. I 

believe that the drafters of the safety standard quite naturally assumed that once miners reach the 

surface, they would be safe. When MSHA promulgated and revised the safety standard, it is 

unlikely that the drafters of the standard thought that a situation would arise in which miners 

escaping from a mine might be required, after arriving at the mine opening, to hike four to five 

miles along a wildlife/cattle trail over rough terrain or hike up to the top of a canyon. Likewise, it 

is unlikely MSHA contemplated that injured miners would require rescue via baskets suspended 

from a helicopter. As a consequence, conditions at the surface were not specifically addressed in 

the standard or in the preamble. In addition, each standard in Part 75 should be interpreted in a 

manner that is in harmony with other related safety standards to protect the safety and health of 

miners. As discussed below, section 75.1713-1(b) requires, in part, that mine operators “provide 

for 24-hour emergency transportation for any person injured at the mine.” 30 C.F.R. § 75.1713-

1(b). 

 When a safety standard is ambiguous, the Commission gives deference to the Secretary’s 

interpretation of the standard as long as it is not plainly erroneous or inconsistent with the 

language or the purpose of the standard. Lodestar Energy, Inc., 24 FMSHRC 689, 692 (2002). 

The Secretary’s interpretation of a safety standard is reasonable where it is “logically consistent 

with the language of the regulation and ... serves a permissible regulatory function.” Daanen & 

Janssen, Inc., 20 FMSHRC 189, 192 (1998) (citations omitted). I find that the Secretary’s 

interpretation is logically consistent with the language of section 75.380(d)(5). Canyon Fuel 

argues that the language of the standard and the regulatory history make clear that the purpose of 

the standard is “to get miners out of the mine, not to address what happens afterward.” CF Br. 

10. I agree that the focus of the standard is to get miners out of the mine, but typically that is all 

that is necessary to get them to a safe place. That is not the case here. The evidence demonstrates 

than miners who evacuate through the 4 East Fan Portal would not necessarily be safe once they 

reach the surface. The Secretary’s interpretation reasonably applies the phrase “for the safe 

evacuation of miners” to the entire standard. “[A] fundamental rule of construction is that effect 

must be given to every part of a statute or regulation, so that no part will be meaningless.” 

Daanen & Janssen, Inc., 20 FMSHRC at 194 (citations omitted). 

38 FMSHRC Page 2216
 Canyon Fuel argues that deference should not be granted to the Secretary’s interpretation 

of the safety standard because his interpretation has not been consistent and the fact that his 

present interpretation conflicts with his prior position, “evidences that the Secretary’s current 

position “does not reflect the agency’s fair and considered judgment on the matter in question’” 

CF Br. 18 (quoting Christopher v. SmithKline Beecham Corp., 132 S. Ct. 2156, 2166-67 (2012)). 

 

 Although the Secretary’s interpretation of the Mine Act or a standard adopted during 

litigation “is not a formalized statement of statutory interpretation of the sort that usual[ly] 

invokes Chevron deference,” it may still be entitled to deference under the Mine Act. Twentymile 

Coal, 411 F.3d 256, 261 (D.C. Cir. 2005) (“But because ‘in the statutory scheme of the Mine 

Act, the Secretary's litigating position before [the Commission] is as much an exercise of 

delegated lawmaking powers as is the Secretary's promulgation of a ... health and safety 

standard, [it] is therefore deserving of deference.’” Id. (quoting Sec'y of Labor v. Excel Mining, 

LLC, 334 F.3d 1, 6 (D.C. Cir. 2003) (citations omitted)). 

 In any event, I find that the evidence does not establish that the Secretary’s interpretation 

of the safety standard has changed. Rather, the record shows that MSHA had not seriously 

considered the ramifications of the use of the 4 East Fan Portal as an escapeway termination 

point prior to District Manager Riley’s visit to the mine. It appears that no MSHA official had 

previously focused on the issue of how miners would be evacuated from the 4 East Fan Portal 

during an emergency once they leave the mine. Indeed, mine personnel told Riley that they did 

not know how miners would be evacuated from that portal and had never been asked that 

question. (Tr. 24-25). The Secretary’s failure to enforce the safety standard at the Sufco Mine 

until District Manager Riley’s visit is more accurately attributed to a lack of attention by MSHA 

than to a change in the interpretation of the standard. The parties agree that this case is one of 

first impression before the Commission. 

 The next issue is whether the Secretary established a violation of section 75.380(d)(5). In 

Southern Ohio Coal Co., the Commission interpreted a safety standard containing similar 

language, as follows: 

[I]t is the Secretary's burden to prove that, as compared to the 

[operator’s] designated route, there is at least one other escapeway 

route that she has determined more closely complies with the 

standard's requirement of "the safest direct practical route.” Thus, 

in order for the Secretary to establish a prima facie case of 

violation, she must show that the operator's designated escapeway 

is deficient because it is not “the safest direct practical route.” It is 

insufficient for the Secretary to merely cite the designated route as 

being out of compliance with the regulation. She must present a

specific escapeway alternative that she believes is more 

appropriate. 

14 FMSHRC 1781, 1785 (Nov. 1992). I find that the Secretary established that Canyon Fuel’s 

route was deficient. The escapeway to the 4 East Fan Portal did not account for the fact that 

miners would be stranded there once they exited the mine. This fact would create a hazard to 

38 FMSHRC Page 2217
escaping miners particularly in cold or snowy weather and more especially if any miners are 

seriously injured. The Secretary presented a specific escapeway alternative he believes provides 

for a safer, direct, practical route for escaping miners. The Secretary took into consideration a 

number of factors, including those discussed above. MSHA’s proposed escapeway is drivable for 

most of its length and is mostly in a separate intake air course. This air course would not be 

affected by a fire in the working section or the belt. Although the alternate escapeway favored by 

the Secretary is longer than Canyon Fuel’s, it is similar in length to the primary escapeway. 

Yeager traveled the Secretary’s proposed route and testified that the overcasts are not difficult to 

negotiate, noting that there were well-built stairs. (Tr. 182). The Secretary acknowledges that if 

SCSRs are needed, miners will need to change them out more frequently using the West Lease 

Portal escape route. Finally, any escaping miners who must remain at the 4 East Fan Portal for a 

period of time before they can be rescued, could be overcome by smoke and toxic fumes. The 

Secretary maintains that in considering all the factors set forth in the safety standard, his 

designated alternate escapeway is the safest direct practical route. 

 I affirm the citation as written. I have considered the evidence presented in this case and I 

conclude that an injury was unlikely, the violation was not S&S, and Canyon Fuel’s negligence 

was moderate.9

 I find that the Secretary’s proposed penalty of $425.00 takes into consideration 

the penalty criteria set forth in section 110(i) of the Act. 

B. Citation No. 8480766 

Citation No. 8480766 alleges a violation of section 75.1713-1(b) of the Secretary’s safety 

standards and asserts that the mine failed to make arrangements for 24-hour ambulance service at 

the surface termination point of the mine’s alternate escapeway. Specifically, the Secretary 

asserts that because helicopter service is not reliable, Canyon Fuel failed to make arrangements 

for 24-hour emergency transportation of injured miners. Section 75.1713-1(b) requires that the 

operator “make arrangements with an ambulance service, or otherwise provide, for 24-hour 

emergency transportation for any person injured at the mine.” 30 C.F.R. § 75.1713-1(b). 

The citation was issued on May 26, 2015, a little more than two months after Citation No. 

8483766 was issued. MSHA determined that the alleged violation was reasonably likely to result 

 

 9

 This citation is similar to a technical citation MSHA issues when a mine operator 

wishes to contest a provision that MSHA seeks to include in a roof control or ventilation plan in 

that the parties did not focus on the gravity and negligence criteria at all. As a consequence, I 

accept the Secretary’s proposals on the gravity and negligence criteria and the penalty. 

38 FMSHRC Page 2218
in a permanently disabling injury, was S&S,10 affected 20 persons, and was the result of Canyon 

Fuel’s moderate negligence. The Secretary proposed a penalty of $3,143.00 for this alleged 

violation. 

Summary of the Evidence 

Riley testified that, based on the information he learned about the helicopter service’s 

limited capabilities, discussed above, he determined that Citation No. 8480766 should be issued 

to the mine for its failure to arrange for 24 hour emergency medical transportation. (Tr. 72-73, 

74). Although the mine had an agreement for 24 hour ambulance service by land, it was not 

sufficient since that service could only be provided at the West Lease Portal, which was 

accessible by road, and not at the 4 East Fan Portal, which was not accessible by road. (Tr. 73-

74). The cited standard requires that that 24 hour emergency transportation arrangement be made 

for any person injured at the mine. (Tr. 75). 

Brief Summary of the Parties’ Arguments 

The Secretary argues that, given the lack of road access to the 4 East Fan Portal, as well 

as the inability of the helicopter service to provide 24-hour service, the operator violated section 

75.1713-1(b). The 4 East Fan Portal was an established exit point from the mine in the event of 

an emergency. The Secretary avers that “[t]he only logical interpretation that satisfies the purpose 

of the regulation is that 24-hour emergency transportation must be provided to wherever miners 

are instructed they should leave the mine.” Sec’y Br. 26. 

Canyon Fuel argues that it has made emergency transportation arrangements from the 

mine. Specifically the operator argues that it has its own ambulance which it can use to provide 

initial transport from the mine before handing off a patient to an EMS service. The standard does 

not require that emergency transportation be required at every portal. The Secretary’s 

interpretation that separate arrangements need to be made for each portal that miners might use 

in an emergency has never been put forth and assumes an event that has never occurred, i.e., one 

that requires the use of the 4 East Fan Portal escapeway by injured persons. No notice of this 

new interpretation was provided. MSHA had never discussed the cited standard until Riley raised 

issues concerning the termination point of the 4 East Fan Portal escapeway. 

 10 An S&S violation is a violation “of such nature as could significantly and substantially 

contribute to the cause and effect of a . . . mine safety or health hazard.” 30 U.S.C. § 814(d). In 

order to establish the S&S nature of a violation, the Secretary must prove: “( 1) the underlying 

violation of a mandatory safety standard; (2) a discrete safety hazard - that is, a measure of 

danger to safety - contributed to by the violation; (3) a reasonable likelihood that the hazard 

contributed to will result in an injury; and ( 4) a reasonable likelihood that the injury will be of a 

reasonably serious nature.” Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984); accord Buck Creek 

Coal Co., Inc., 52 F.3d 133, 135 (7th Cir. 1995); Austin Power Co., Inc., 861 F.2d 99, 103 (5th 

Cir. 1988) (approving Mathies criteria). An experienced MSHA inspector's opinion that a 

violation is S&S is entitled to substantial weight. Harlan Cumberland Coal Co., 20 FMSHRC 

1275, 1278-79 (Dec. 1998). 

38 FMSHRC Page 2219
 Analysis 

The cited standard requires that underground coal operators make arrangements with an 

ambulance service or otherwise provide for 24-hour emergency transportation for any person 

injured at the mine. Neither the Commission nor its judges have addressed this standard. 

However, the plain language of the standard makes clear that the operator is responsible for 

arranging or providing for round the clock emergency transportation of injured miners. 

Therefore, a violation will be found when a mine operator fails to arrange or provide for any type 

of emergency transportation. Likewise, a violation is established if, as in this case, an operator 

has arranged for emergency transportation, but that transportation is not available 24 hours a day 

at the alternate escapeway. 

I find that Canyon Fuel did not make arrangements with an ambulance service, or 

otherwise provide, for 24-hour emergency transportation for any person injured at the mine. It 

only provided for such service for injured miners who are able to use the primary escapeway to 

exit the mine. The area outside the termination point of the alternate escapeway was inaccessible 

by land ambulance. In addition, as discussed in detail above, the helicopter service the operator 

investigated could not provide 24-hour service at this termination point. Consequently, I find that 

Canyon Fuel did not make arrangements with an ambulance service or otherwise provide, for 24-

hour emergency transportation, from the 4 East Fan Portal. 

There is no dispute Canyon Fuel met the requirements of section 75.1713-1(b) at the 

West Lease Portal. Canyon Fuel argues that, as a consequence, it fully complied with the safety 

standard. It points to the fact that the plain language of the standard does not require ambulance 

services to be available at the portal of each escapeway. This interpretation is illogical and 

ignores the language that transportation must be arranged for “any injured person at the mine.”11

In order to provide transportation to “any injured person at the mine,” reliable emergency 

transportation must be available at both designated escapeways. The primary escapeway is 

unavailable during the emergency. Based on the above findings, Canyon Fuel did not comply 

with the standard and a violation has been proven. My findings are limited to the facts of this 

case and the provision of transportation from the 4 East Fan Portal when it is the termination 

point of a designated escapeway. 

Gravity and S&S 

The issuing inspector designated the violation as reasonably like to result in a 

permanently disabling injury. (Tr. 75). Riley agreed with that assessment and stated that, in 

general, when an ambulance or helicopter is summoned, someone is in serious need who requires 

 11 While Canyon Fuel argues that it was not provided with notice of the Secretary’s 

interpretation of the standard to require arrangements be made for transportation from the 4 East 

Fan Portal, I disagree. “[I]f the language of a regulation provides clear and unambiguous notice 

of its coverage and requirements, no further notice is necessary.” DQ Fire & Explosion 

Consultants, Inc., 36 FMSHRC 3083, 3088 (Dec. 2014) (citing Bluestone Coal. Co., 19 

FMSHRC 1025, 1029 (June 1997) and Nolichuckey Sand Co., 22 FMSHRC 1057, 1061 (Sept. 

2000)). I find that the language of the standard is clear and that no further notice was required. 

38 FMSHRC Page 2220
medical attention immediately. (Tr. 75). He explained that the types of injuries that could require 

an ambulance or helicopter would include smoke inhalation, burns, shock, and CO poisoning, 

which can lead to heart attacks. (Tr. 76). 

The Secretary argues that the violation was S&S. Specifically the Secretary argues that, 

as a result of the violation, a discrete safety hazard was created because injured miners at the 4 

East Fan Portal would be delayed in attempting to obtain “prompt, critical medical treatment.” 

Sec’y Br. 27. Assuming the presence of a mine emergency in which miners use the alternate 

escapeway, it is reasonably likely that the delay in obtaining necessary care would result in a 

permanently disabling injury. 

Canyon Fuel argues that the violation was not S&S. It asserts that there has never been an 

event at the mine requiring evacuation out the 4 East Fan Portal. Further, in the Secretary’s 

scenario miners would not be exposed to burns because the fire would have to be in the alternate 

escapeway thousands of feet away from the working sections where miners would be. In 

addition, miners would likely be able to evacuate out the primary escapeway ahead of any smoke 

from a fire in the alternate escapeway. Miners who do exit the 4 East Fan Portal would no longer 

be exposed to underground mine hazards and would have the option of walking up to the plateau 

or out the bottom of the canyon and, subject to certain weather conditions, would be able to be 

transported via helicopter during daylight hours. CF Br. 40. 

I find that the violation was S&S. When evaluating the S&S nature of a violation 

involving escapeways, judges must assume the occurrence of an emergency necessitating an 

evacuation of the mine. Cumberland Coal Resources, 33 FMSHRC 2357, 2367 (Oct. 2011). I 

hold that the logic behind that decision also necessitates that, when evaluating the S&S nature of 

the current violation, I must assume an emergency that requires miners to exit the alternate 

escapeway. I find that a discrete safety hazard certainly existed. The purpose of the standard is to 

promptly provide injured miners with emergency medical transportation. As a result, the safety 

hazard that exists when 24-hour emergency medical transportation is not provided is the inability 

of miners to obtain needed treatment. Here, the delay in obtaining care once a miner exited the 

mine via the alternate escapeway through the 4 East Fan Portal was reasonably likely to result in 

a serious injury. I reject the operator’s argument that miners would not be exposed to possible 

burns. Contrary to the statement in Canyon Fuel’s brief, a fire, explosion, or other underground 

emergency requiring the use of the 4 East Fan Portal route need not occur in the alternate 

escapeway to trigger the use of that escapeway. The emergency event could occur on the working 

section, or in the primary escapeway. I also reject the operator’s argument that miners who exited 

the 4 East Fan Portal could walk up or down the canyon to reach emergency medical 

transportation. If miners are in need of emergency medical transportation, the additional time and 

effort required to travel up or down the canyon could reasonably be expected to exacerbate their 

injuries. Accordingly, I find that the violation was S&S. 

Negligence 

Riley testified that the violation was the result of the operator’s moderate negligence 

because the mine had not made arrangements for medical evacuations at the termination point of 

38 FMSHRC Page 2221
the alternate escapeway. (Tr. 77). It had contacted a helicopter service and learned that it could 

not provide medical evacuation services unless the atmospheric conditions were good. 

The Secretary notes that because MSHA previously discussed this issue with Canyon 

Fuel months earlier, it was on notice that it was not in compliance with the cited standard. 

Because the operator knew or should have known that it was failing to provide 24-hour 

emergency transportation for injured miners exiting the mine at the 4 East Fan Portal, 

Respondent was at least moderately negligent. 

 I reduce the negligence designation from that proposed by the Secretary to low. The 

operator had arranged for reliable emergency transportation from the portal at its primary 

escapeway and it investigated the use of a helicopter to provide transportation from the 4 East 

Fan Portal. It was impossible for Canyon Fuel to arrange for reliable medical transportation from 

that portal, however, and it did not believe it was required to do so. The operator’s notice 

argument, although unconvincing, indicates that the operator believed it was in compliance with 

the standard. I find that a penalty of $2,000 is appropriate taking into consideration the penalty 

criteria set forth in section 110(i) of the Act. 

 C. Citation No. 8483666 

Citation No. 8483666 alleges a violation of section 75.380(c) of the Secretary’s safety 

standards and states that the operator failed to maintain a separate and distinct alternate 

escapeway. Specifically, the citation asserts that the alternate escapeway from the 4 East Fan 

Portal to crosscut 6 of the 4 East entries, which is ventilated with intake air, was not being 

maintained separate and distinct up to the junction of the 4 East intake and the North Mains 

intake from crosscut 220.12 A fire in the alternate escapeway of the 4 East intake from crosscut 6 

to the 4 East Fan Portal would contaminate both the alternate and primary escapeway with 

smoke and other contaminates for all miners working inby that location. Section 75.380(c) 

requires that “[t]he two separate and distinct escapeways required by this section shall not end at 

a common shaft, slope, or drift opening, except that multiple compartment shafts or slopes 

separated by walls constructed of noncombustible material may be used as separate and distinct 

passageways.” 30 C.F.R. § 75.380(c). 

MSHA Inspector James J. Pruitt issued the citation on May 22, 2015, and determined that 

an injury resulting in lost workdays or restricted duty was reasonably likely to be sustained, that 

the alleged violation was S&S, affected 20 persons, and was a result of Canyon Fuel’s moderate 

negligence. The Secretary proposed a penalty of $2,106.00 for this alleged violation. 

 Summary of the Evidence 

District Manager Riley testified that, while reviewing a map of the mine, he observed that 

the designated primary and secondary escapeways were not separate and distinct. (Tr. 79). Riley 

 12 This is the same alternate escapeway that the Secretary determined did not meet the 

requirements of section 75.380(d)(5) as set forth Citation No. 8483766, discussed above. 

 

38 FMSHRC Page 2222
explained that, in order for the escapeways to be separate and distinct, both the travelways and 

air courses must be separate and distinct and cannot “intermix.” (Tr. 81, 83). Here, the intake air 

that came in the 4 East entries and traveled along part of the alternate escapeway eventually 

merged with the intake air in the primary escapeway in the North Mains. (Tr. 122). At hearing, 

Riley, referring to GX-2 p. 2, testified that, based on the mine’s designated primary and alternate 

escapeways,13 if miners were inby crosscut 220 and traveling out the primary escapeway through 

the North Mains, they would encounter smoke or other contamination from a fire anywhere in 

the alternate escapeway outby crosscut 6 of the 4 East entries. (Tr. 81-82).14 Riley testified that 

the mine had diesel pickup trucks that it used underground and a vehicle fire in the alternate 

escapeway outby crosscut 6 of the 4 East entries would “immediately pollute or contaminate 

both escapeways . . . [w]ithin minutes[.]” (Tr. 82). 

Riley explained that there are situations where the primary and alternate escapeways in 

mines can share air from the same intake air source, but in those situations the shaft or slope that 

provides the air has to be separated by a non-combustible divider. (Tr. 84). Here, the routes were 

not physically separated by walls constructed of non-combustible materials and a miner could 

travel from one escapeway to the other without passing through any doors or running into 

anything that would stop their travel. (Tr. 83-84). Specifically, he noted that a miner inby 

crosscut 220 and traveling in the primary escapeway in the North Mains could walk right into the 

alternate escapeway without traveling through a mandoor. (Tr. 83, 124). 

On cross-examination Riley was presented with a hypothetical and agreed that, when 

developing a three entry longwall section, you generally have an intake entry that is usually the 

primary escapeway, a return entry that is sometimes the alternate escapeway, and a belt entry. 

(Tr. 125-126). He further agreed that, except for the air that goes up the belt, all of the air that 

comes through the intake will go into the return. (Tr. 126). Finally, he agreed that, in that 

scenario, if there were a fire in the intake escapeway, once the air travels through the face area it 

would contaminate both the primary and alternate escapeways. (Tr. 126-127). However, he 

explained that, unlike the hypothetical situation presented to him, escapeways are designed for 

each working section and are defined by the section loading point. (Tr. 139). It is at that loading 

point that the separate and distinct requirement starts and then continues for the entire length of 

the escapeways out of the mine. (Tr. 139). Here it was unacceptable because the loading point 

was inby where air from the 4 East intake alternate escapeway mixed with the air from the North 

Mains intake primary escapeway. (Tr. 139-140). On cross-examination Riley agreed that a fire in 

the North Mains primary intake escapeway would contaminate that escapeway inby the fire and 

then the air would travel through the sections and out the return, which would contaminate the 

alternate escapeway. (Tr. 127-128). 

 13 In GX-2 p. 2 the primary escapeway is indicated by a solid blue printed line, while the 

alternate escapeway is indicated by a dashed red line. At hearing, Riley drew a solid blue line 

with a marker which indicated the intake air course from the 4 East Fan Portal. (Tr. 82). 

14 Riley explained that miners using the alternate escapeway would not enter intake air 

from the 4 East fans until they went through the doors at the 4 East “dogleg,” which he indicated 

by circling with a red marker on GX-9 p. 1. (Tr. 123-124). 

38 FMSHRC Page 2223
Based on his review of the of the mine map, and after consulting with his office’s 

ventilation supervisor, Riley instructed Inspector Pruitt to issue Citation No. 8483666. (Tr. 79, 

85). Riley acknowledged that the condition had probably existed for several years and, as a 

result, he allowed the mine to continue to use the escapeway as long as a certified examiner 

traveled the area every two hours until the mine could change the route to comply with the 

standard. (Tr. 86-87). 

Yeager, who has worked as a ventilation engineer, also did not believe that the primary 

and alternate escapeways were separate and distinct. (Tr. 190). She based her opinion on a 1992 

MSHA publication that states that “physical separation is required[,]” which means the air 

courses cannot intermix. (Tr. 190-192; GX-17). Her review of the mine maps revealed that the 

air was able to intermix because due to the lack of physical separation. (Tr. 192). Specifically, the 

ventilation from the alternate escapeway coming from the 4 East went directly into the primary 

escapeway. (Tr. 193). Accordingly, the escapeways were not physically separate and distinct as 

explained in the MSHA publication. (Tr. 193; GX-17). She believed that the exception for 

ventilation from a common intake air shaft was not applicable here. (Tr. 194). 

Leaming and Smith testified for Canyon Fuel about the mine’s escapeways. Referring to 

a mine map, CFX-1B, Leaming explained that the alternate escapeway route had followed the 

green line since 2008. (Tr. 260-261). Both Leaming and Smith agreed that MSHA inspectors 

never questioned whether the 4 East alternate escapeway and the primary escapeway were 

separate and distinct. (Tr. 239-240, 261, 304). 

Smith, explained that the mine map, CFX-1B, showed where the alternate escapeway was 

located both prior to and after the citation was issued, as well as the primary escapeway, and the 

air courses in the subject area. (Tr. 305). He described the dogleg in the alternate escapeway and 

the two doors that isolated the intake air coming down the 4 East from the rest of the alternate 

escapeway in North Mains return. (Tr. 305-307). Both equipment and men can travel through the 

doors in the dogleg from the North Mains into the 4 East. (Tr. 306). Intake air coming down the 4 

East empties out into the North Mains and heads north after passing the dogleg and under a 

series of overcasts. (Tr. 307-308). The intake air from the 4 East that comes into the North 

Mains, 144,000 cubic feet, is separated from the intake air in the primary escapeway, 

approximately 360,000 cubic feet, by a beltline until the two air courses join at crosscut 220 in 

the primary escapeway in the North Mains. (Tr. 308, 311, 322). Smith acknowledged that no 

stoppings or doors would prevent the intake air in the alternate escapeway from going into the 

intake air in the primary escapeway and that, in the event of a fire outby the dogleg in the 

alternate escapeway, smoke from the alternate escapeway would go into the primary escapeway. 

(Tr. 322-323). Smith explained that the alternate escapeway and primary escapeway are 

separated from each other for the entire length that they parallel each other in the North Mains. 

(Tr. 308). However, he agreed that a miner could walk from the alternate escapeway into the 

primary escapeway at crosscut 220 of the North Mains without anything stopping him. (Tr. 323). 

He believed that the two escapeways were separate and distinct because they were fed from two 

separate air sources and were not parallel entries within an air courses. (Tr. 308-309). He 

explained that the intake air from the primary escapeway went into the working sections and the 

return air in the alternate escapeway, up until the dogleg, came from the working sections. (Tr. 

309). 

38 FMSHRC Page 2224
Smith further testified that, during longwall development you have three entries, with the 

first being the beltline, the second being the primary travelway with intake air, and the third 

being the return air and alternate escapeway. (Tr. 309-310). He explained that, in that scenario, 

you can walk from the intake escapeway to the alternate without passing through a stopping by 

going to the face or last open crosscut which does not have a stopping. (Tr. 310). 

Brief Summary of the Parties’ Arguments 

The Secretary argues that the travelways and air courses involved in the primary and 

alternate escapeways were not separate and distinct, as required by the cited standard. The 

Secretary asserts that a fire in the 4 East entries would have caused smoke to pollute the alternate 

escapeway in the 4 East entries and this smoke would travel into the North Mains where it would 

contaminate the primary escapeway. In the event of a fire, miners leaving the working section 

would encounter smoke in the primary escapeway and, if they switched over to the alternate 

escapeway, would also encounter smoke there. Further, the Secretary asserts that physical 

separation of the escapeways is required and, in this instance, a miner could walk from one 

escapeway into the other without passing through a stopping or other barrier. 

 Canyon Fuel argues, first, that the Secretary did not establish a violation of the safety 

standard cited. Contrary to the Secretary’s argument, section 75.380(c) does not actually require 

two separate and distinct escapeways, but rather only requires that the escapeways not end at a 

common shaft, slope or drift opening unless certain conditions are met. Here, the two 

escapeways do not end a common shaft, slope, or drift opening, so there can be no violation. 

 Canyon Fuel next argues that the two escapeways are in fact separate and distinct 

travelable passageways. The two escapeways are “physically/geographically separate and in the 

area where they are parallel, they are separated by ventilation controls.” CF Br. 23. The 

Secretary’s interpretation that the air in the passageways has to be “separate and distinct is not 

supported by the language of the standard or the common sense of mine ventilation.” Id. The 

ordinary meanings of the terms “separate” and “distinct” do not suggest that separation of the 

escapeways by ventilation controls is necessary. Here, the two escapeways are in separate and 

different entries. 

 Analysis 

I find that the Secretary has failed to prove a violation of the cited standard. Section 

75.380(c) provides that the “two separate and distinct escapeways required by this section shall 

not end at a common shaft, slope, or drift opening, except that multiple compartment shafts or 

slopes separated by walls constructed of noncombustible material may be used as separate and 

distinct passageways.” 30 C.F.R. § 75.380(c). The Secretary’s case is premised on the argument 

that the mine failed to maintain “separate and distinct escapeways.” 

Nothing in section 75.380(c) regulates the separation of air courses between the primary 

and alternate escapeways. It is possible that other safety standards prohibit the mixing of intake 

air as alleged in the citation. Section 75.380(a) provides that “at least two separate and distinct 

travelable passageways shall be designated as escapeways and shall meet the requirements of 

38 FMSHRC Page 2225
this section.” 30 C.F.R. § 75.380(a). Section 75.380(h), entitled, “Alternate Escapeway,” 

provides that “[o]ne escapeway shall be designated as the alternate escapeway. The alternate 

escapeway shall be separated from the primary escapeway for its entire length, except that the 

alternate and primary escapeways may be ventilated from a common intake airshaft or slope 

opening.” 30 C.F.R. § 75.380(h). Sections 75.380(a) and (h) appear to have some relevance to 

the alleged violation, but at no point during the prosecution of this case did the Secretary seek to 

amend the citation to plead a violation of either of those sections in the alternative.15 The 

Secretary had multiple opportunities to do so. As a consequence, I limit my analysis to what is 

before me, i.e., an alleged violation of section 75.380(c). 

I find that, in order for the Secretary to prove a violation of the cited standard he must 

show that the two escapeways ended at a common shaft, slope or drift.16 Here, the Secretary has 

not met his burden of proof. The standard is clearly concerned with the “ends” of the respective 

escapeways and that they not be “common.” There is no dispute that the primary escapeway 

exited out the West Lease Portal while the alternate escapeway exited out the 4 East Fan Portal. 

Indeed, the Secretary issued Citation No. 8483766, discussed above, because the alternate 

escapeway ended at the 4 East Fan Portal, which is in a remote, inaccessible area. These two 

portals, which were the termination points of the escapeways, were miles apart from each other 

and did not end at a common shaft, slope or drift. To hold otherwise would ignore the plain 

meaning of the standard. 

 I agree with the operator that section 75.380(c) does not govern the issues raised by the 

Secretary in Citation No. 8483666. In Marco Crane, 36 FMSHRC 1610, 1614 (June 2014) 

(ALJ), Judge Zane Gill, when addressing a similar issue, explained that “[i]t would be 

inappropriate to stretch and twist the plain meaning of a regulatory provision so that the 

Secretary can prove a citation that was issued under the wrong standard, but that is what the 

Secretary is asking me to do. This request is especially problematic in light of the availability of 

a much more appropriate provision[.]” Although pleadings in these proceedings are, in general, 

easily amended by the Secretary, he chose not do so in this instance and it appears that the 

 15 I allowed the parties to file sequential briefs. In her reply brief filed August 12, 2016, 

counsel for the Secretary noted that “Respondent has been well aware of the nature of the 

violation since issuance, tried the issue noted in the standard, and would not be prejudiced by 

amending the citation to a violation of the other standard.” Sec’y Reply Br. 6-7 n. 4. The 

Secretary did not move to amend the citation, however. In addition, District Manager Riley noted 

at the hearing that section 75.380(h) has additional language concerning the requirement to 

separate escapeways. (Tr. 84) (due to a transcription error the reference to 75.380(h) was 

incorrectly reported as 75.388). 

16 The exception set forth at the end of section 75.380(c) concerns situations where, due 

to constraints in mine design, an operator is permitted to comply with the safety standard by 

building noncombustible walls to create two “separate and distinct passageways” so that they can 

terminate at what otherwise would have been “a common shaft, slope, or drift opening.” 30 

C.F.R. § 75.380(c). 

38 FMSHRC Page 2226
Secretary believes that he established a violation of section 75.380(c).17 The Secretary has failed 

to prove a violation under section 75.380(c) and the citation is VACATED.

18

II. APPROPRIATE CIVIL PENALTY

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

appropriate civil penalty. 30 U.S.C. § 820(i). Canyon Fuel had a history of 117 violations during 

the 15 months preceding the issuance of the subject citations, 17 of which were S&S. Canyon 

Fuel is a large operator that produced over 6,000,000 tons of coal in both 2014 and 2015. The 

Petitions for the Assessment of Penalty in the civil penalty dockets indicate that the Secretary 

credited Canyon Fuel with good faith abatement. The proposed penalties will not have an 

adverse effect upon Canyon Fuel’s ability to continue in business. 

III. ORDER

For the reasons set forth above, Citation No. 8483766 is AFFIRMED, Citation No. 

8480766 is MODIFIED to reduce the level of negligence, and Citation No. 8483666 is

VACATED. Based on the penalty criteria, I assess a total civil penalty of $2,425.00. Canyon 

Fuel Company, LLC is ORDERED TO PAY the Secretary of Labor the sum of $2,425.00 within

40 days of the date of this decision. 

/s/ Richard W. Manning 

Richard W. Manning 

Administrative Law Judge 

17 In Faith Coal Co., 19 FMSHRC 1357, 1361-1362 (Aug. 1997), the Commission 

reversed a judge’s decision vacating a citation where he found that the Secretary had alleged a 

violation of the wrong standard and had failed to prove a violation of that standard. There the 

Secretary mistakenly cited a standard which had been amended and renumbered prior to the 

filing of the Secretary’s brief. The Commission, in remanding the case back to the judge, 

instructed the judge to determine whether a violation had occurred under the proper standard. 

Unlike the situation in Faith Coal, it appears that the Secretary believes that he correctly cited 

section 75.380(c) 

18 Because I upheld the Secretary’s interpretation of section 75.380(d)(5) in Citation No. 

8483766 with the result that the 4 East Fan Portal can no longer be used as the endpoint of the 

alternate escapeway, as discussed above, the issues raised in the present citation are moot for all 

practical purposes. If a road is built and maintained to that portal, the parties would need to 

revisit the issues adjudicated in these cases. 

38 FMSHRC Page 2227
Distribution: 

Alicia A.W. Truman, Esq., Office of the Solicitor, U.S. Department of Labor, 1244 Speer Blvd., 

Suite 515, Denver, CO 80204-3516 (Certified Mail) 

R. Henry Moore, Esq., Jackson Kelly, 3 Gateway Center, Suite 1500, 401 Liberty Ave., 

Pittsburgh, PA 15222 (Certified Mail) 

RWM 

38 FMSHRC Page 2228
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004 

Telephone No.: (202) 434-9900 / Fax No.: (202) 434-9949 

August 24, 2016 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

v. 

MACH MINING, LLC, 

 Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 2014-0746 

A.C. No. 11-03141-360105

Mine: Mach No. 1 Mine 

DECISION AND ORDER 

Appearances: Daniel McIntyre, Esq., Office of the Solicitor, U.S. Department of Labor, 

Denver, Colorado, for Petitioner 

Chris Pence, Esq., Hardy Pence, PLLC, Charleston, West Virginia, for 

Respondent 

Before: Judge McCarthy 

I. STATEMENT OF THE CASE

This case is before me upon a petition for the assessment of civil penalty under section 

105(d) of the Federal Mine Safety and Health Act of 1977, as amended, (“the Mine Act”), 

30 U.S.C. § 815(d). Docket No. LAKE 2014-0746 involves thirteen section 104(a) citations 

issued by the Secretary of Labor (“the Secretary”) between July 14 and 28, 2014, charging Mach 

Mining, LLC (“Mach”) with violations of mandatory health and safety regulations. On October 

29, 2015, the Secretary submitted a motion to approve settlement for 11 citations, which I 

approve below. 

A hearing was held in St. Louis, Missouri on November 2, 2015 on Citations Nos. 

8450924 and 8450926. During the hearing, the parties offered testimony and documentary 

evidence.1

 Witnesses were sequestered. 

1

 In this decision, “Tr.” refers to the hearing transcript, “ALJ Ex. #” refers to the 

ALJ’s exhibits, “P. Ex. # refer to the Petitioner’s exhibits, and “R. Ex. #” refers to the 

Respondent’s exhibits. ALJ Exs. 1 and 2; P. Exs. 1, 2, 4, and 5; and R. Exs. 1 and 2 were 

received into evidence at the hearing. R. Ex. 4 (Longwall Production Reports for July 

12-14, 2014) and R. Ex. 5 (Continuous Miner Production Reports for July 12-14, 2014)

were submitted after the hearing, and I now admit them into the record.

38 FMSHRC Page 2229
Citation No. 8450924 charges Mach with violating 30 C.F.R. § 75.400 for failing to 

prevent and clean up accumulations of coal dust, loose coal, and other combustible material. The 

Secretary alleges that the violation was significant and substantial (S&S)2

 and the result of 

Mach’s high negligence. Citation No. 8450926 charges Mach with violating 

30 C.F.R. 75.363(b) for failing to properly record the accumulation hazard alleged in Citation 

No. 8450924. The Secretary alleges that this violation was also S&S and the result of Mach’s 

high negligence. The issues presented in the case are whether Mach violated the standards cited 

by the Secretary; if so, whether the Secretary properly assessed the gravity of the violations and 

the level of negligence attributed to Mach; and what penalties, if any, should be assessed against 

the Respondent. For the reasons set forth below, I affirm Citation No. 8450924, as written, and 

assess a civil penalty of $15,570. I also affirm Citation No. 8459026, as written, and assess a 

civil penalty of $6,996. 

Based on a careful review of the record, including the parties’ post-hearing briefs and my 

observation of the demeanor of the witnesses,3 I make the following findings of fact and 

conclusions of law: 

II. STIPULATIONS AND GENERAL FACTUAL BACKGROUND

A. Stipulations of Fact and Law

At hearing the parties stipulated to the following: 

1. Mach was at all times relevant to these proceedings engaged in mining activities

at the Mach Number One Mine located in or near Johnson City, Illinois.

2. Mach’s mining operations affect interstate commerce.

3. Mach is subject to the jurisdiction of the Federal Mine Safety and Health Act of

1977, 30 U .S.C. § 801 et seq.

4. Mach is an “operator” as the word is defined in section 3(d) of the Mine Act,

30 U.S.C. § 803(d), at the Mach Number One Mine (Federal Mine I.D. No. 11-03

141) where the contested citations in these proceedings were issued.

5. The Administrative Law Judge has jurisdiction over these proceedings

pursuant to section 105 of the Act.

2

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

814 (d)(1), which distinguishes as more serious any violation that “could significantly 

and substantially contribute to the cause and effect of a . . . mine safety or health hazard.” 

3

 In resolving conflicts in testimony, I have taken into consideration the demeanor 

of the witnesses, their interests in this matter, the inherent probability of their testimony 

in light of other events, corroboration or lack of corroboration for testimony given, 

experience and credentials, and consistency, or lack thereof, within the testimony of 

witnesses and between the testimony of witnesses. 

38 FMSHRC Page 2230
6. On the dates the citations in these dockets were issued, the issuing MSHA 

coal mine inspectors were acting as duly authorized representatives of the 

United States Secretary of Labor, assigned to MSHA, and were acting in their 

official capacity when conducting the inspections and issuing the MSHA 

citations.

7. The MSHA citations at issue in these proceedings were properly served 

upon Mach as required by the Mine Act.

8. The citations at issue in these proceedings may be admitted into 

evidence by stipulation for the purpose of establishing their issuance.

9. Mach demonstrated good faith in abating the violations. 

10. In 2013, the Mach Number One Mine produced 6,694,630 tons of coal and its 

controlling entity produced 18,772,988 tons of coal.

11. The penalties proposed by the Secretary in this case will not affect the ability of 

Mach to continue in business. 

Resp’t’s Pre-Hrg. Rpt. 1-2; Pet’r’s Br. 2-3. 

B. General Factual Background 

 1. Mine Examiner Adams’ Shift Examination 

On July 14, 2014, mine examiner David Adams conducted a midnight shift examination 

of the slope belt at approximately 6:00 a.m.4 Tr. 116. The slope belt is located in the mine travel 

way, which slopes downward from the surface to the underground sections of the mine. Tr. 54-

55. The ceiling is approximately ten feet high, and is supported by a steel, arch-supported line 

opening. Tr. 55. The travel way is divided into two parts: a 12-foot-wide road for vehicles on 

the left-hand side and a seven-foot-wide slope belt flanked by a four-foot-wide walkway on the 

right-hand side. Tr. 55, 68, 222. The travel way and the slope belt are separated by steel beams 

placed at five foot intervals. Tr. 197. There are four carbon monoxide (“CO”) detectors and a 

fire suppression system present along the slope. Tr. 346-47. 

Adams conducted his examination by driving along the 3,600-foot slope belt and 

checking for accumulations of coal, structural damage, and hazards on both the driving side and 

 4

 David Adams worked full time for Respondent from 2007 until March of 2015. 

Tr. 212. At the time of the inspection, Adams was a mine examiner, who was required to 

check all working sections, belt lines, and air courses for hazardous conditions or 

violations. Tr. 214. At the time of the hearing, Adams had retired and was working for 

Respondent as a part-time contractor. Tr. 212. Adams began mining in 1972, and held 

mine examiner, mine manager, EMT and electrical certifications. He has thirty years of 

experience in the mining industry. Tr. 213-15. 

38 FMSHRC Page 2231
back side of the slope belt. Tr. 215, 222, 239. At the end of his examination, Adams filled out 

the examination book for each belt line and travel way, which takes about 20 minutes. Tr. 231. 

He observed spillage on the slope belt due to washback, but denied observing any accumulations 

in contact with the belt. Tr. 227, 229. 

At the time of the inspection, Respondent was mining a new panel, which resulted in 

water coming off the longwall face, and spillage onto the slope belt. Tr. 283. Although some of 

this water was discharged through water pumps and pipes, some was transported with coal and 

rock via the belt. As the material was transferred from one belt to another, the weight of the 

water and other material made it difficult for the belt to force the material uphill and out of the 

mine. Tr. 98. As a result, the material washed back downhill, flooding the area below. Tr. 98. 

Mine manager Rorer described this as “washback,” which happens when water builds up to a 

certain peak on the belt, and rolls back on the belt instead of exiting the slope.5 Tr. 334. 

Adams testified that accumulations can occur very quickly on a slope belt due to spillage 

resulting from “washback,” which consists of water, coal, and other materials sliding down the 

slope belt as a result of efforts to remove the water discharged from longwall mining operations. 

Tr. 253. Mach has a 44-46 percent recovery rate, meaning that 44 to 46 percent of what is mined 

by weight is coal. The rest is rock or other rejected material. Tr. 390. 

Respondent had previously investigated the washback phenomenon, and mine manager 

Parker Phipps visited other mines to view their dewatering systems.6

 Tr. 389. After these visits, 

Phipps ordered a new dewatering system to address the washback issue. Tr. 337, 389. It took 

about three months to purchase and install the system. Tr. 339. The dewatering system was 

installed at the mine nearly two months after the issuance of Citation No. 8450294. Tr. 389. 

In the interim, Phipps testified that additional miners were hired to shovel as needed each 

shift, and company foremen patrolled the belt for rollers contacting accumulations. Tr. 227, 383, 

399. The number of shovelers varied from day to day, but more miners were needed early in the 

week because the longwall was idled on Saturdays and Sundays, and then started again on 

Sunday, causing washback. Tr. 391. Rorer testified that in order to combat the water, the mine 

would set pumps over the weekends. On Sunday night, before the long wall began production, 

the gates on the tail would be opened to run water off the long wall before coal was produced. 

Tr. 333. 

 5

 Rorer has worked at Mach for over seven years. Tr. 321. He spent one year 

running a scoop, three years as a belt foreman, and the three years before the inspection 

as a certified mine manager. Tr. 321, 323-24. Prior to working at Mach, Rorer worked at 

the Eagle Valley mine for five years as a roof bolter, and then at the Willow Lake mine as 

a roof bolter and a scoop operator. Tr. 322. 

6

 Phipps has a Bachelor of Science in Mining Engineering. Tr. 382. He holds 

underground mining foreman papers from Colorado, and a mine manager certification for 

Illinois. Tr. 382. Phipps has seven years of underground mining experience. Tr. 382. 

He began working for Mach Mining in 2013, and was promoted to general manager in 

July of 2014. Tr. 383. 

38 FMSHRC Page 2232
After his examination, Adams spoke to mine manager Rorer to relay the results of his 

examination and the progress that the shoveling miners had made at that point. Tr. 232; 236. 

Adams noted in the slope belt examination book that the “slope belt needs cleaned—work in 

progress.” Tr. 116, 229; R. Ex. 1. This July 14, 2014 entry was standard practice at the mine. 

Adams testified that Rorer would “know what [his notation] meant.” Tr. 264. Adams testified 

that he would verbally have told Rorer any additional or more specific information. Tr. 264. 

2. The Instant Inspection 

MSHA Inspector Bernard Reynolds arrived at the mine at 7 a.m. on July 14, 2014 to 

conduct a regular E01 inspection.7 Tr. 51, 186. During that inspection, miner Guy Webster 

drove Reynolds into the mine.8 Tr. 54, 56, 301. As they proceeded down the travel way, an 

unidentified miner stopped their vehicle to inform Webster that a set of rails on the slope was 

broken, and that the belt was running in contact with coal accumulations. Tr. 56.9

 Hearing this, 

Reynolds decided to inspect the broken rail on foot. The broken rail was located approximately 

300-500 feet from the top of the slope. Tr. 57-58. 

When Reynolds set out on foot, there were five to seven miners at the top of the slope 

cleaning the belt. Tr. 69. Reynolds observed coal accumulations up to 30 inches deep and six 

feet wide. Tr. 60. In some places, rollers touched the accumulations. Tr. 60. Based on the 

extent of the accumulations, Reynolds estimated that the accumulations had existed for several 

shifts. Tr. 63-64. 

As Reynolds walked the belt, he found accumulations 12 inches deep on the back side of 

the belt approximately 100 feet from the slope collar. Tr. 65. At 200 feet, he found 

accumulations approximately 14 inches deep. Tr. 66. The accumulations increased to about 16 

inches at 250 feet. Tr. 66. At 570 feet down the belt, Reynolds observed that the belt and three 

of the bottom idler rollers were running in approximately ten feet of coal dust accumulations that 

were 24-30 inches deep. Tr. 69-70, 72. 

 At 650 feet, Reynolds found that three bottom roller brackets were hot from contact with 

the moving belt. Tr. 78. Further, the belt had cut into the I-beam approximately one-eighth of an 

 7

 Reynolds has been an inspector with MSHA for 7 years. Tr. 33. He is a ventilation 

specialist and has a Bachelor’s of Science degree in Mining Engineering. Tr. 33. Reynolds had 

22 years of experience in underground mining. Before becoming an inspector, most of this 

experience involved long-wall mining. Tr. 34, 37. 

8

 Webster has twenty years of experience in underground mining. Prior to the 

hearing, Webster worked for Mach for ten years, the last six as an out-by boss. Tr. 278. 

As an out-by foreman, Webster led a team performing various jobs and projects, other 

than producing coal. Tr. 279-80. Webster has mine examiner and mine manager papers. 

Tr. 279. At the time of the inspection, Webster supervised underground miners, who 

were performing tasks other than extracting coal, such as shoveling the belt. Tr. 277. 

9

 The rail is part of the belt structure’s framework and supports the rollers on the 

belt. Tr. 57-58. 

38 FMSHRC Page 2233
inch. Tr. 78. Reynolds estimated that the rubber belt had rubbed into the steel I-beam for at least 

24 hours. Tr. 79.10

 Approximately 1,100 feet down the belt, near the slope tripper drive, Reynolds observed 

another area of significant accumulation, where five rotating rollers were rubbing the belt, 

creating a frictional heat source. Tr. 80.11 Reynolds testified that dust was visible in the air near 

the slope tripper drive, which led Reynolds to conclude that the coal in that area was fairly dry. 

Tr. 83, 131. Although Reynolds did not observe any miners in the immediate area, Reynolds 

noted that the air would take the suspended dust up the slope, toward the location where the five 

to seven miners were cleaning the belt at the top of the slope. Tr. 81, 83-84. Water sprays were 

installed near the slope tripper drive to suppress the dust, but they were non-functional on the 

day of the inspection because the water from the main pipe had been shut off. Tr. 86-87. 

 Approximately 1,600 and 2,000 feet down the belt, Reynolds observed even more 

significant accumulations in contact with roughly fifteen feet of the moving belt and two rotating 

belt rollers. Tr. 87-88. Further down the belt, at 2,000 to 2,200 feet, Reynolds observed varying 

amounts of accumulations, up to 30 inches deep, in contact with two rollers and ten feet of the 

belt. Tr. 88. At 2,200 feet, Reynolds observed 24-inch-deep accumulations in contact with one 

bottom belt roller. Tr. 89. At 2,300 feet, Reynolds observed accumulations between four and 24 

inches deep along half the width of the belt, but no potential heat sources were present. Tr. 90. 

In sum, Reynolds observed six discrete locations where bottom rollers contacted 

accumulations. In total, 14 bottom rollers and 105 feet of belt were in contact with coal. 

Tr. 100; P. Ex. 4, at 14. 

Initially, Reynolds thought it would be necessary to shut the belt down to clean up the 

accumulations, but thereafter he determined that the accumulations could be cleaned while the 

belt was running. Tr. 91. Reynolds declined to issue a closure order because he determined that 

shutting the belt down would cause a buildup of water. Tr. 93-94. 

Based on his observations, Reynolds issued Citation No. 8450924, alleging a violation of 

30 C.F.R. § 75.400. Section 75.400 provides that “coal dust, including float coal dust deposited 

on rock dusted surfaces, loose coal, and other combustible materials, shall be cleaned up and not 

 

 10 This estimate is in dispute. Webster testified that this result would have 

occurred after a “long time.” Tr. 301-302. Adams testified that it would not take very 

long, possibly four hours. Tr. 268-269. In light of their substantial combined experience, 

I credit the testimony of Reynolds and Webster indicating that the friction between the 

belt and I-beam likely existed for a significant period of at least 24 hours, and I reject 

Adams’ contrary testimony. 

11 The slope tripper drive provides increased power to the belt to keep it moving 

and transporting coal. Tr. 81. The slope tripper drive is a transfer point, where coal 

travels from one belt to another. When coal is dumped onto another belt, it travels 

through the air before landing on the next belt. This transfer often generates coal dust as 

the coal being transferred breaks and creates dust. Tr. 82. 

38 FMSHRC Page 2234
be permitted to accumulate in active workings, or on diesel powered and electric equipment 

therein.” 30 C.F.R. § 75.400. The condition alleged in Section 8 states: 

Loose coal was allowed to accumulate in excessive amounts along

the slope belt, from approximately 100 feet below the slope collar 

to the bottom. These accumulations were in continuous windrows

along both sides of the belt (the majority of the instances were 

along the back side of the belt), which ranged from 4” to 30” deep 

& from 16” to 72” wide, and occasionally up to the full width of 

the belt. Additionally, the accumulations were in contact with the 

moving belt and bottom rollers at the following approximate 

locations: 570’ station; 1100’ station; 1900’ station; 2100’ station; 

2200’ station; 2300’ station. 

P. Ex. 2. Reynolds designated the violation as significant and substantial, and determined that, 

as a result of Respondent’s high negligence, the alleged violation was reasonably likely to result 

in lost workdays or restricted duty for six miners. Id. The Secretary initially proposed a penalty 

of $15,570. 

After his underground inspection, Reynolds inspected the Respondent’s record books for 

the previous month. Tr. 119. The belt inspection examination entries are kept in a separate 

book. A review of the belt examination book indicates that each of the eleven belts at the mine is 

inspected every shift, and the results are recorded on a separate page for each morning, evening, 

and midnight shift. Thus, each page represents one shift, and contains eleven entries, one for 

each belt examined during the shift. The pages include spaces to designate the mine name, the 

date of the examination, and the shift, and contain the following instruction: 

List all belts checked and make notation of any corrections needed 

or made in the following spaces. Include violations of designated 

regulations. If belt inspected is OK, so state. Indicate all 

corrections by action taken, date, and signature. 

R. Ex. 2. 

 As noted, slope belt examination book entry at issue that Adams made for July 14, 2014 

states that the “slope belt needs cleaned—work in progress.” Tr. 116, 229; R. Ex. 1. 

All of the slope belt exam notations for each shift from July 9 to July 13, 2014 (the five 

days and fifteen shifts preceding the issuance of Citation No. 8450924 on July 14) stated either 

“needs cleaned—work in progress” or “needs cleaned—cleaning in progress,” except for the 

July 9 evening shift, which stated “none.” Id. Some of the entries for other belts were more 

specific, such as the July 9 day shift entry for the east belt (“Need to clean under rollers from 3 to 

8”) or the July 10 day shift entry for the SM3 belt (“Need to clean 7A flowthrough”). These 

more specific entries were followed by the additional notation “done,” and initials, presumably 

from the miner or supervisor, who took the corrective action. Id. 

 The slope belt exam book entry for the July 15 midnight shift (the first shift examination 

following the issuance of Citation No. 8450942) states: “Needs cleaned 100 foot inby tripper to 

tailpeace [sic] on back side tripper to travel road side 300 foot from tripper to top travel road 

38 FMSHRC Page 2235
side.” The July 15 day shift entry states: “Need to clean from 1800 to 2300 and 1000 to 1100 

need to clean tail of take up.” The July 15 evening shift entry reads: “Need to clean tail on 

backside and under tail roller, need to clean from 300 ft marker to tripper backside and from 

tripper to tail backside. Need to clean from tripper to tail travel road side. Need to clean take-up 

under belt.” Id. 

Reynolds testified that the accumulations that he observed on the morning of July 14, 

2014 were too extensive for an examiner to miss. He found that the examination record simply 

stated “slope belt needs cleaned, work in progress.” R. Ex. 1; Tr. 121-124. Reynolds described 

this as “non-specific, non-critical” language which did not mention “coal accumulation” or 

“washback.” Tr. 116-17, 124. According to Reynolds, if the examiner had, in fact, noticed the 

extent of the accumulations on the slope belt, then the language “needs cleaned” failed to 

indicate the extent of the accumulations or that they needed to be removed immediately. Tr. 

117-18. 

Since the notation made by Adams did not reflect the conditions Reynolds observed in 

the mine just two hours after Adams’ examination, Reynolds issued Citation No. 8450926 for an 

alleged violation of 30 C.F.R. § 75.363(b), which states in pertinent part: 

(b) A record shall be made of any hazardous condition and any 

violation of the nine mandatory health or safety standards found by 

the mine examiner. This record shall be kept in a book maintained 

for this purpose on the surface at the mine. The record shall be 

made by the completion of the shift on which the hazardous 

condition or violation of the nine mandatory health or safety 

standards is found and shall include the nature and location of the 

hazardous condition or violation and the corrective action taken.

This record shall not be required for shifts when no hazardous 

conditions or violations of the nine mandatory health or safety

standards are found. (italics added) 

The citation alleged: 

The mine examiner has not properly recorded hazardous conditions 

in the examination record as were found to exist along the slope 

belt. Six individual areas were observed which posted distinct

safety hazards in that accumulations of combustible material in the 

form of loose coal was in contact with the moving belt and bottom 

belt rollers. The exam record for the last examination of this area, 

which was completed just prior to the MSHA inspection, only 

indicated that the slope belt “needs cleaned.” This language does 

not indicate the hazard that was found to exist. 

Ex. P-3. Reynolds designated the violation as significant and substantial, and determined that 

the alleged violation was reasonably likely to result in lost workdays or restricted duty for six 

miners, as a result of Respondent’s high negligence,. Id. The Secretary proposed a penalty of 

$6,996. 

38 FMSHRC Page 2236
Two weeks later, on July 28, 2014, MSHA inspector Brittain Belford issued Citation No. 

8451307, alleging another violation of 30 C.F.R. § 75.400 based on slope belt accumulations 

“extend[ing] from the bottom of the slope to the top and rang[ing] from approximately 1 ft-4 ft in 

depth and 1 ft-3ft in width.” P. Ex. 5. Inspector Belford also observed rollers touching the 

accumulations. Id. Respondent agreed to settle Citation No. 8451307, as issued, with no 

modifications or changes in penalty, as part of the partial settlement in this docket. ALJ Ex. 1. 

III. PRINCIPLES OF LAW 

A. Establishing a Violation 

 To prevail on a penalty petition, the Secretary bears the burden of proving by a 

preponderance of the evidence that a violation of the Mine Act occurred. RAG Cumberland Res. 

Corp., 22 FMSHRC 1066, 1070 (Sept. 2000), aff’d, 272 F.3d 590 (D.C. Cir. 2001). A mine 

operator is held strictly liable for violations that occur at its mine. Spartan Mining Co., 

30 FMSHRC 699, 706 (Aug. 2008). The operator may avoid liability only by showing that it 

was not properly on notice of the violative nature of its conduct. Even in the absence of actual 

notice, the Secretary may properly charge the operator with a violation when a reasonably 

prudent person familiar with the protective purposes of the cited standard and the factual 

circumstances surrounding the allegedly hazardous condition, including any facts peculiar to the 

mining industry, would have recognized a hazard warranting corrective action within the 

purview of the applicable regulation. LaFarge North America, 35 FMSHRC 3497, 3500-01 

(Dec. 2013); Ideal Cement Co., 12 FMSHRC 2409, 2415-16 (Nov. 1990); Alabama By-Products 

Corp., 4 FMSHRC 2128, 2129 (Dec. 1982). 

B. Gravity and Significant and Substantial (S&S) 

The Mine Act describes a S&S violation as one “of such nature as could significantly and 

substantially contribute to the cause and effect of a coal or other mine safety or health hazard.” 

30 U.S.C. § 814(d)(1). By contrast, the gravity of a violation “is often viewed in terms of the 

seriousness of the violation.” Consolidation Coal Co., 18 FMSHRC 1541, 1549 (Sept. 1996). 

)). The seriousness of a violation can be examined by looking at the importance of the standard 

violated and the operator’s conduct with respect to that standard, in the context of the Mine Act’s 

purpose of limiting violations and protecting the safety and health of miners. See, e.g., Harlan 

Cumberland Coal Co., 12 FMSHRC 134, 140 (Jan. 1990) (ALJ). 

As the Commission has noted, the gravity component of the penalty assessment is not 

synonymous with finding that a violation is S&S, but may be based on the same evidence. The 

gravity inquiry is concerned with the effects of a hazard, while the S&S analysis focuses on the 

reasonable likelihood of serious injury. See Consolidation Coal Co., 18 FMSHRC at 1550 

(explaining that “the focus of the [gravity inquiry] is not necessarily on the reasonable likelihood 

of serious injury... but rather on the effect of the hazard if it occurs”). Alternatively, a violation 

is S&S if, “based on the particular facts surrounding the violation, there exists a reasonable 

likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious 

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

To establish an S&S violation, the Secretary must prove: (1) the underlying violation of a 

mandatory safety standard; (2) a discrete safety hazard–that is, a measure of danger to safety–

38 FMSHRC Page 2237
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.12 Mathies Coal Co., 6 FMSHRC 1, 3-4. (Jan. 1984). The S&S 

determination should be made assuming “continued normal mining operations.” U.S. Steel

Mining Co., 7 FMSHRC 1125, 1130 (Aug. 1985). This evaluation is also made in consideration 

of the length of time that the violative condition existed prior to the citation and the time it would 

have existed if normal mining operations had continued, without any assumptions regarding 

abatement. Elk Run Coal Co., 27 FMSHRC 899, 905 (Dec. 2005); U.S. Steel Mining Co., Inc., 

6 FMSHRC 1573, 1574 (July 1984); see also Black Beauty Coal Co., 34 FMSHRC 1733, 1740 

(Aug. 2012), aff’d sub nom. Peabody Midwest Mining, LLC v. FMSHRC, 762 F.3d 611 

(7th Cir. 2014); Rushton Mining Co., 11 FMSHRC 1432, 1435 (Aug. 1989); Knox Creek, 811 

F.3d at 165-66 (upholding Commission’s rejection of “snapshot” approach to evaluating S&S for 

accumulations violation); Mach Mining, 809 F.3d at 1267-68 (discussing the operative 

timeframe for violations in the context of S&S analyses). 

The Commission has explained that “the reference to ‘hazard’ in the second element [of 

the test] is simply a recognition that the violation must be more than a mere technical violation – 

i.e., that the violation presents a measure of danger.” U.S. Steel Mining Co., 6 FMSHRC 1834, 

1836 (Aug.1984) (internal citation omitted). “There is no requirement of ‘reasonable 

likelihood’” encompassed in this element. Musser Engineering, Inc. & PBS Coals, Inc., 

32 FMSHRC 1257, 1280 (Oct. 2010). Rather, longstanding Commission precedent indicates that 

the likelihood of harm should be accounted for in the third Mathies element, which “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, 6 FMSHRC at 1836 (quoted by the Commission 

on numerous occasions over the next two decades, including in Elk Run Coal Co., 27 FMSHRC 

899, 906 (Dec. 2005); Bellefonte Lime Co., 20 FMSHRC 1250, 1254-55 (Nov. 1998); Zeigler 

Coal Co., 15 FMSHRC 949, 953 (June 1993); and Texasgulf, 10 FMSHRC 498, 500 

(Apr. 1988). The Secretary, however, “need not prove a reasonable likelihood that the violation 

itself will cause injury.” Cumberland Coal Res., LP, 33 FMSHRC 2357, 2365 (Oct. 2011) 

(citing Musser Engineering, Inc., 32 FMSHRC at 1281). Further, the Commission has found 

that “the absence of an injury-producing event when a cited practice has occurred does not 

preclude a determination of S&S.” Musser Engineering, Inc., 32 FMSHRC at 1281 (citing Elk 

Run Coal Co., 27 FMSHRC at 906); Blue Bayou Sand & Gravel, Inc., 18 FMSHRC 853, 857 

(June 1996). 

 12 The Secretary, mine operators, and the federal appellate courts have accepted the

Mathies test as authoritative. See Knox Creek Coal Corp. v. Sec’y of Labor, 811 F.3d 148, 160 

(4th Cir. 2016) (noting federal appellate courts’ uniform adoption of Mathies test and parties’ 

recognition of authority of the test); Mach Mining, LLC v. Sec’y of Labor, 809 F.3d 1259, 1267 

(D.C. Cir. 2016) (applying Mathies criteria); Buck Creek Coal, Inc. v. Fed. Mine Safety & Health 

Admin., 52 F.3d 133, 135 (7th Cir. 1995) (recognizing wide acceptance of Mathies criteria); 

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

criteria). 

38 FMSHRC Page 2238
In a decision issued on January 21, 2016, the Fourth Circuit shifted the focus of the 

traditional S&S analysis from the third to the second Mathies prong, restricting the consideration 

of the facts bearing on the reasonable likelihood of injury under the third prong. See Knox 

Creek, 811 F.3d at 162. The Fourth Circuit interpreted the second Mathies prong to entail an 

inquiry into the likelihood of harm, stating: 

In our view, the second prong of the test . . . primarily accounts for 

the Commission’s concern with the likelihood that a given 

violation may cause harm. This follows because, for a violation to 

contribute to a discrete safety hazard, it must be at least somewhat 

likely to result in harm. 

Id. Under the Fourth Circuit’s application of Mathies, the occurrence of the hazard must be 

assumed under the third prong of the test. Id. at 161-65. Evidence of the likelihood that the 

hazard will occur is not considered at this prong. Rather, the inquiry is whether the hazard, 

assuming it occurred, would likely result in serious injury. Id. at 162. The Seventh Circuit has 

previously adopted a similar interpretation of the Mathies test, stating that the question in 

applying the third prong of Mathies “is not whether it is likely that the hazard . . . would have 

occurred[,]” but “whether, if the hazard occurred (regardless of likelihood), it was reasonably 

likely that a reasonably serious injury would result.” Peabody Midwest, 762 F.3d at 616. 

For violations that contribute to the hazard of an ignition, fire, or explosion, the 

Commission has held that the third Mathies element is satisfied when a “confluence of factors” is 

present that could have triggered an ignition, fire, or explosion, under continued normal mining 

operations. Zeigler Coal Co., 15 FMSHRC at 943; Texasgulf, 10 FMSHRC at 501; see, e.g., 

Paramont Coal Co. Va., LLC, 37 FMSHRC 981, 984 (May 2015). In particular, “the confluence 

of factors analysis requires consideration of the particular circumstances in the mine, including 

the possible ignition sources, the presence of methane, and the type of equipment in the area.” 

Excel Mining, LLC, 37 FMSHRC 459, 465 (Mar. 2015). 

The fourth Mathies factor requires the Secretary to show, by a preponderance of the 

evidence, a reasonable likelihood that the injury in question will be of a reasonably serious 

nature. Mathies, 6 FMSHRC at 3. The Commission noted in Mathies itself that, “as a practical 

matter, the last two elements will often be combined in a single showing.” Id. Consistent with 

this approach, MSHA inspectors determine whether a violation meets the criteria for S&S by the 

likelihood of injury and the expected severity of injury, which correspond to the third and fourth 

Mathies elements.13 

C. Negligence 

Negligence is not defined in the Mine Act. The Commission has found that “[e]ach 

mandatory standard thus carries with it an accompanying duty of care to avoid violations of the 

 13 Inspectors are trained not to designate a violation as S&S, unless item 10.A on 

the citation form is marked “reasonably likely,” “highly likely,” or “occurred,” and item 

10.B is marked “lost workdays or restricted duty,” “permanently disabling,” or “fatal.” 

See MSHA, PROGRAM POLICY MANUAL, Vol. I, § 104 (2003). 

38 FMSHRC Page 2239
standard, and an operator’s failure to satisfy the appropriate duty can lead to a finding of 

negligence if a violation of the standard occurred.” A.H. Smith Stone Co., 5 FMSHRC 13, 15 

(Jan. 1983) (citations omitted). In determining whether an operator meets its duty of care under 

the cited standard, the Commission considers what actions would have been taken under the 

same or similar circumstances by a reasonably prudent person familiar with the mining industry, 

the relevant facts, and the protective purpose of the regulation. See generally U.S. Steel Corp., 

6 FMSHRC 1908, 1910 (Aug. 1984); see also Jim Walter Res., Inc., 36 FMSHRC 1972, 1975-77 

(Aug. 2014) (requiring Secretary to show that operator failed to take specific action required by 

standard violated); Spartan Mining, 30 FMSHRC at 708 (negligence inquiry circumscribed by 

scope of duties imposed by regulation violated). In this regard, the gravamen of high negligence 

is “an aggravated lack of care that is more than ordinary negligence.” Brody Mining, 

37 FMSHRC 1687, 1701 (Aug. 2015) (citing Topper Coal Co., 20 FMSHRC 344, 350 

(Apr. 1998)). 

Commission judges are not required to apply the level-of-negligence definitions in Part 

100 penalty regulations and may evaluate negligence from the starting point of a traditional 

negligence analysis rather than from the Part 100 definitions. Brody Mining, LLC, 37 FMSHRC 

at 1701; accord Mach Mining, 809 F.3d at 1263-64. Thus, in making a negligence 

determination, a Commission judge is not limited to an evaluation of allegedly mitigating 

circumstances, but may consider the totality of the circumstances holistically. Under such an 

analysis, an operator is negligent if it fails to meet the requisite high standard of care under the 

Mine Act. Brody, 37 FMSHRC at 1701. 

Although MSHA’s regulations regarding negligence are not binding on the Commission, 

see Wade Sand & Gravel Co., 37 FMSHRC 1874, 1878 n.5 (Sept. 2015), as noted, MSHA has 

defined negligence by regulation in the civil penalty context as follows: 

Negligence is conduct, either by commission or omission, which 

falls below a standard of care established under the Mine Act to 

protect miners against the risks of harm. Under the Mine Act, an 

operator is held to a high standard of care. A mine operator is 

required to be on the alert for conditions and practices in the mine 

that affect the safety or health of miners and to take steps necessary 

to correct or prevent hazardous conditions or practices. The failure 

to exercise a high standard of care constitutes negligence. The 

negligence criterion assigns penalty points based on the degree to 

which the operator failed to exercise a high standard of care. 

30 C.F.R. § 100.3, Table X. 

I note that the Commission generally gives deference to MSHA’s regulations. See Auer 

v. Robbins, 519 U.S. 452, 461 (1997) (an agency’s interpretation of its own regulation is 

controlling unless “erroneous or inconsistent with the regulation”); cf. Hidden Splendor Res., 

Inc., 36 FMSHRC 3099, 3101-02 (Dec. 2014) (holding that the ALJ was not bound by the 

Secretary’s definition of “high negligence” set forth in 30 C.F.R. § 100.3(d)). Under MSHA’s 

standard, high negligence is properly designated when “[t]he operator knew or should have 

known of the violative condition or practice, and there are no mitigating circumstances.” Id. 

This analysis considers mitigating circumstances which may include, but are not limited to, 

38 FMSHRC Page 2240
actions taken by the operator to prevent or correct hazardous conditions or practices. 

30 C.F.R. § 100.3(d). MSHA’s negligence regulation further provides that mitigation is an 

affirmative action by the operator with knowledge of the potential hazard being mitigated, and 

that tends to reduce the likelihood of an injury to a miner. This includes actions taken by the 

operator to prevent or correct hazardous conditions. Id. 

D. Penalty Criteria 

 The Act requires that the Commission consider the following statutory criteria when 

assessing a civil penalty: (1) the operator’s history of previous violations; (2) the appropriateness 

of the penalty to the size of the business; (3) the operator’s negligence; (4) the operator’s ability 

to stay in business; (5) the gravity of the violation; and (6) any good-faith compliance after 

notice of the violation. Douglas R. Rushford Trucking, 22 FMSHRC 598, 600 (May 2000); 

30 U.S.C. § 820(i). The Commission is not required to give equal weight to each of the criteria, 

but must provide an explanation for any substantial divergence from the proposed penalty based 

on such criteria. Spartan Mining, 30 FMSHRC at 723. 

 I look to the Secretary’s penalty regulations and assessment formula as a reference point 

that provides useful guidance when assessing a civil penalty. Big Ridge Inc., 36 FMSHRC 1677, 

1681-82 (July 2014) (ALJ); see also Wade Sand & Gravel, 37 FMSHRC at 1880 n.1 (Jordan, 

Chairman and Nakamura, Comm’r concurring); Bowles v. Seminole Rock & Sand Co., 

325 U.S. 410, 414 (1945) (holding that an agency’s interpretation of its own regulation should be 

given controlling weight unless it is plainly erroneous or inconsistent with the regulation). The 

Secretary’s assessment is not binding, but operates as a lodestar, since the factors involved in a 

violation, such as the level of negligence, may fall on a continuum rather than fit neatly into one 

of five gradations. Unique aggravating or mitigating circumstances will be taken into account 

and may call for higher or lower penalties that diverge from this paradigm. My independent 

penalty assessment analysis applies to each of the two citations at issue in this case. 

IV. FURTHER FINDINGS OF FACT, ANALYSIS, AND CONCLUSIONS OF LAW 

A. Accumulation Violation, Citation No. 8450924 

As discussed above, on July 14, 2014, Reynolds found that the accumulations which ran 

the length of the slope belt constituted a violation of 30 C.F.R. § 75.400, a mandatory safety 

standard. P. Ex. 2. Reynolds designated the violation as S&S, and reasonably likely to result in 

lost workdays or restricted duty for six miners. P. Ex. 1. He found that the violation was 

attributable to Respondent’s high negligence. 

The Secretary requests that I affirm the citation as written. Sec’y Br. 32. The 

Respondent requests reduction of the negligence designation, deletion of the S&S designation, 

and reduction of the number of persons affected. Resp’t’s Br. 3, 30. Although Respondent does 

not contest the fact of the violation, it argues that the Secretary has not met his burden to support 

the second, third, and fourth prongs of the Mathies test. Resp’t’s Br. 15. Respondent argues 

that the coal was wet and mixed with other material, that the accumulations were being shoveled, 

and that safety measures were in place to negate any risks of ignition or explosion. Accordingly, 

Respondent argues that ignition was unlikely, and even if an ignition were to occur, injuries 

would be minimal. Resp’t’s Br. 16. 

38 FMSHRC Page 2241
 1. Citation No. 8450924 was Appropriately Written as S&S. 

I find that the large amount of coal accumulations in continuous contact with the belt 

rollers created the possibility of a belt fire, which constitutes a discrete safety hazard under the 

second element of the Mathies test. I find unpersuasive the Respondent’s argument that the 

dampness of the accumulations and the absence of any ignition sources negate the existence of a 

hazard. See Resp’t’s Br.16. Although Reynolds conceded that he did not measure the heat of the 

belt parts that were in contact with the coal, and did not issue an imminent danger withdrawal 

order because he did not observe a visible flame or any smoldering or smoke, I do not find these 

facts fatal to the Secretary’s assertions that the accumulations created a discrete safety hazard. 

Tr. 100-101, 178. The Commission has long held that “wet coal accumulations pose a 

significant danger in underground coal mines.” Consolidation Coal Co., 35 FMSHRC 2326, 

2329-30 (Aug. 2013); Black Diamond, 7 FMSHRC at 1120-21 (rejecting the argument that wet 

coal does not pose a dangerous combustible risk because wet coal can dry out and fuel or 

propagate a fire or explosion); see also Continent Res. Inc., 16 FMSHRC 1226, 1230-32 (June 

1994) (affirming S&S determination and holding that “accumulations of damp or wet coal, if not 

cleaned up, can dry out and ignite”). 

I also find that the discrete safety hazard created by the accumulations was reasonably 

likely to cause harm, satisfying the second prong of the Fourth Circuit’s application of Mathies. 

Knox Creek, 811 F.3d at 162. In other words, the accumulations were reasonably likely to ignite, 

and such an ignition would likely case cause harm. Respondent argues that the wetness of the 

coal and the 45% recovery rate reduce the likelihood of an ignition. Resp’t’s Br. 16. Reynolds’ 

testimony, however, establishes that the frictional heat from the belt would dry the coal under 

continued normal mining conditions, and the accumulations touching the belt therefore 

constituted a potential ignition source. Tr. 70. In fact, Reynolds testified that three of the bottom 

roller brackets that he observed were hot from contact with the moving belt. Tr. 78. Phipps 

conceded that if heat is applied to wet material, the water would eventually evaporate, drying the 

material. Tr. 410. 

Respondent also argues that the likelihood of ignition was reduced due to the smaller 

percentage of combustible material being transported by the belt. Resp’t’s Br.16-18. Phipps 

testified that 44 to 46 percent of what is mined by weight is coal, and the rest is rock or other 

rejected material. Tr. 390. Although Reynolds conceded the possibility that only 45 percent of 

the material transported by the belt was coal, this fact did not change his opinion that the 

accumulation constituted an S&S violation. Tr. 178, 179, 180, 200. Reynolds’ determination is 

consistent with Commission precedent holding that “even wet coal accumulations are prohibited 

by section 75.400 because they can dry out in a mine fire and ignite.” Manalapan Mining Co., 

Inc., 32 FMSHRC 690, 698 (June 2010) (citing Utah Power & Light Co., 12 FMSHRC 965, 

968-69 (May 1990) (internal citations omitted). Reynolds explained that if coal is present, it is 

combustible, and any ignition will spread through both the combustible and noncombustible 

material. Tr. 200. Therefore, due to the frictional heat sources present, I find that the coal 

accumulations presented an ignition hazard that would likely result in an injury under the Fourth 

Circuit’s application of the Mathies test. See Knox Creek, 811 F.3d at 162 (“[F]or a violation to 

contribute to a discrete safety hazard, it must be at least somewhat likely to result in harm.”). 

Regarding the third Mathies factor, Respondent argues that the reasonable likelihood of 

an injury was so low that Reynolds allowed the belt to continue operating, and therefore the S&S 

38 FMSHRC Page 2242
designation should be deleted. Resp’t’s Br. 12. Reynolds permitted the belt to continue 

operating because, after consultation with Webster, he determined that the accumulations could 

be cleaned up without immediate danger. Tr. 292. The Fourth Circuit and Seventh Circuit’s 

Mathies application requires an assumption that the hazard occurred, and the third prong of the 

test focuses on whether the hazard is likely to result in a serious injury. Knox Creek, 811 F.3d at 

162; Peabody Midwest, 762 F.3d at 616. Based on the extent of the accumulations and the 

presence of ignition sources, I credit Reynolds’ testimony that if the accumulations were left 

unabated, then an ignition would likely result. Tr. 105. Circuit Court precedent indicates that 

equipment operating in coal accumulations constitutes an ignition source for S&S purposes, even 

absent any defects in the equipment. See Buck Creek, 52 F.3d at 135 (affirming S&S designation 

where the frictional heat from a roller turning in coal dust could easily cause a fire, despite no 

evidence that the roller was either hot or defective). Additionally, Commission judges have 

found accumulation violations to be S&S based solely on contact between accumulated coal dust 

and non-defective equipment that could constitute an ignition source. See, e.g., American Coal, 

36 FMSHRC 1311, 1343 (May 2014). High levels of methane may also increase the risk of 

ignition and are appropriately considered in a confluence-of-factors analysis. Excel Mining, 

LLC, 37 FMSHRC at 462. The mine was on a 5-day spot inspection because the mining process 

liberated an excessive amount of methane. Tr. 188. In short, the gassiness of the mine, coupled 

with the extent of accumulations touching hot rollers, created a dangerous combination that was 

reasonably likely to cause an ignition. 

Regarding the fourth Mathies factor and the likelihood that any injury caused by the 

hazard would be of a reasonably serious nature, Respondent argues that the violation is not S&S 

because the CO detectors on the belt would alert miners to fire, and the slope’s fire suppression 

equipment would prevent any serious injury. Resp’t’s Br. 18. Redundant safety measures do not 

constitute a defense to an S&S allegation. The Commission has held that extra precautions may 

reduce risks, but do not make a violation non-S&S. Consolidation Coal Co., 35 FMSHRC at 

2330. The Seventh Circuit has specifically rejected the contention that fire prevention and safety 

measures mitigate the S&S status of an accumulation violation. Buck Creek, 52 F.3d at 135; see 

also Cumberland Coal Res., LP, 33 FMSHRC at 2369 (treating redundant mandatory safety 

protections as a defense to S&S findings would lead to the anomalous result that every protection 

would have to be nonfunctional before a S&S finding could be made), aff'd sub 

nom., Cumberland Coal Res., LP v. Fed. Mine Safety & Health Review Comm’n, 717 F.3d 1020, 

1029 (D.C. Cir. 2013). Even Rorer testified that an extinguished fire would still generate 

smoke, which could be inhaled by a miner downwind. Tr. 354. In addition, Reynolds testified 

that in the event of an ignition, not only would miners in the immediate area be affected by 

flames, smoke inhalation, or carbon monoxide exposure, but miners downwind of the vent would 

also be exposed to smoke and carbon monoxide. Tr. 106. Furthermore, the slope is next one of 

two designated escapeways, potentially exposing miners to burns and smoke inhalation as they 

attempt to exit a mine during an emergency. Tr. 191. Smoke inhalation and burns constitute 

serious injuries for purposes of the Mathies analysis. Amax Coal, 19 FMSHRC 846, 847 (May 

1997) (upholding judge’s finding of S&S based on evidence of smoke inhalation and burns as 

serious injuries) . Accordingly, I reject the Respondent’s argument that the presence of CO 

detectors or the fire suppression system justifies deleting the S&S designation. 

In conclusion, I find that even if the accumulations were wet and the belt primarily 

transported non-combustible material, the reasonable likelihood of an ignition risk remained. 

38 FMSHRC Page 2243
Frictional heat was likely to dry the coal accumulations, and high methane concentrations 

compounded the risk of ignition. Any injury from an ignition would likely result in smoke 

inhalation and burns, which constitute serious injuries likely to result in lost work days or 

restricted duty. In these circumstances, I find that the citation was properly designated as S&S. 

2. Citation No. 8450924 was the Result of Respondent’s High Negligence. 

As noted above, in determining whether an operator meets its duty of care under the cited 

standard, the Commission considers what actions would have been taken under the same or 

similar circumstances by a reasonably prudent person familiar with the mining industry, the 

relevant facts, and the protective purpose of the regulation. See generally U.S. Steel Corp., 

6 FMSHRC at 1910. Reynolds testified that, based on the extent of the accumulations observed, 

mine managers or examiners, who traveled the slope numerous times every day, should have 

recognized and dealt with the accumulations. Tr. 109. Accordingly, Reynolds designated 

Respondent’s negligence as “high.” P. Ex. 2. 

Respondent argues that its actions regarding the accumulations were consistent with what 

a reasonably prudent operator familiar with the mining industry, the relevant facts, and the 

protective purpose of the regulation would have done in the circumstances. Resp’t’s Br. 14. The 

Respondent argues that Mach’s mitigation efforts weigh in favor of a lower negligence 

designation. Resp’t’s Br. 5-8. Respondent argues that the accumulations increased significantly 

between Adams’ initial examination and Reynolds’ inspection about two hours later. In light of 

that alleged rapid build-up, Respondent argues that the actions it took were sufficient to mitigate 

Reynolds’ high negligence designation. Resp’t 13. 

Respondent also argues that while it awaited the arrival of the new dewatering system, 

conditions on the slope belt were being monitored and abated. As noted, the dewatering system 

was installed at the mine nearly two months after the issuance of Citation No. 8450294. Webster 

testified that ten miners were shoveling the belt around the clock. Tr. 283, 304; Resp’t’s Br. 13. 

Phipps testified that additional miners were hired to shovel as needed, and company foremen 

patrolled the belt for rollers contacting accumulation. Tr. 383, 389, 399. I note, however, that 

only five to seven miners were shoveling at the time of the inspection, and they were located at 

the top of the slope belt where the accumulations were less significant. 

While installing a dewatering system was a prudent long-term decision, Respondent’s 

belated reaction to the recurring washback issue fails to mitigate its negligence. Rorer conceded 

that it would have been possible to shut the long wall down and install a dewatering system 

before mining the longwall panel, but Respondent declined to do so. Tr. 367. As indicated by 

the receipt of another accumulation citation just two weeks after the instant citation, 

Respondent’s mitigation efforts were inadequate to address the accumulation hazards. P. Ex. 5. 

Reynolds testified that the washback phenomenon was a predictable consequence of 

Respondent’s decision to use the belt conveyor to transport water out of the mine, and opined 

that since the Respondent was using the belt conveyor to discharge water, its pumping system 

was inadequate to handle the amount of water encountered. Tr. 97-99. Although Respondent 

argues that the severity and timing of the washback was unpredictable, it also admits that the 

phenomenon itself was an inevitable consequence of using the slope belt to remove water. 

Tr. 385; Resp’t’s Br. 14. As the Secretary argues, the development of accumulations is therefore 

38 FMSHRC Page 2244
directly attributable to Respondent’s choice to expel water using the slope belt. Sec’y’s Br. 19; 

see also Tr. 99, 199. 

I find that despite the foreseeability of the washback accumulations and the assignment of 

miners to shovel the belt each shift, Respondent did not implement adequate measures to keep 

the belt clear of accumulations. In fact, Respondent was only able to keep the slope clear an 

estimated ten percent of the time in the month prior to the issuance of Citation No. 8450294. Tr. 

403; R. Ex. 1; Sec’y’s Br. 20. Given the high methane concentrations within the mine, 

Respondent should have been particularly attentive to recurring accumulations with possible 

ignition hazards present. Tr. 334. 

Both the Secretary and Respondent have directed my attention to a prior case involving a 

section 75.400 citation issued to Respondent at Mach No. 1 Mine for slope belt accumulations. 

See Mach Mining, LLC, 33 FMSHRC 763 (March 2011) (ALJ). In that case, Judge Manning 

deleted the Secretary’s S&S designation due to the wetness of the accumulations and the 

redundant fire-suppression safety measures. Id. at 773. The accumulations at issue in that case, 

however, were significantly less extensive than those at issue here. Id. at 770. Furthermore, as 

discussed above, precautionary safety measures do not make a violation non-S&S. 

Consolidation Coal Co., 35 FMSHRC at 2330; see also Buck Creek Coal, Inc., 52 F.3d at 135; 

Cumberland Coal Res., LP, 33 FMSHRC at 2369. Judge Manning’s decision was not appealed

and is not binding here. I find it particularly significant, however, because it indicates that 

Respondent was aware of the issues caused by the washback phenomenon for at least five years 

prior to the installation of the dewatering system. 

In sum, I conclude that Respondent failed to address serious and largely self-imposed 

accumulation hazards that developed over the course of several shifts in a particularly gassy 

mine. I do not find persuasive Respondent’s contention that its actions were consistent with 

what a reasonably prudent operator familiar with the mining industry, the relevant facts, and the 

protective purpose of the regulation would have done in the circumstances, particularly since 

Respondent knew of the washback problem as early as 2011. Resp’t’s Br. 14. Furthermore, in 

the 15 months preceding Citation No. 8450294, Respondent received 58 citations for violating 

section 75.400. P. Ex. 2. Respondent was aware of the frequent and extensive accumulations 

caused by using the slope belt to transport water and the consequent washback accumulations. 

Respondent’s failure to timely assign sufficient miners to correct the recurring problem 

demonstrated more than an ordinary lack of care. The totality of circumstances warrants a 

finding of high negligence. 

B. Recordkeeping Violation, Citation No. 8540926 

The Respondent requests that Citation No. 8540926 be vacated, the negligence 

designation be reduced, and the S&S designation be deleted. In support of its request to vacate, 

Respondent argues that the accumulations at the time of Adams’ examination were not in contact 

with the slope belt, that Adams’ notations satisfied 30 C.F.R. § 75.363(b), and that Respondent 

did not have fair notice that MSHA required more detail in recordkeeping notations. Resp’t’s 

Br. 20. 

Adams testified that at the time of his shift examination two hours before Reynolds’ 

inspection, Adams observed spillage on the belt due to washback, but did not observe 

38 FMSHRC Page 2245
accumulations touching the belt. Tr. 228-29. Adams’ testimony is corroborated by Webster, 

who stated that accumulations were not touching the belt at 6:00 a.m., and by Rorer, who passed 

by the belt at 7:15 a.m. Tr. 299; Tr. 342, 344. 

While it is possible that the accumulations occurred rapidly as a result of the washback, 

considering all the circumstances of this case, I credit Reynolds’ testimony that accumulations 

had existed for several shifts. Tr. 64. Adams conducted his slope belt examination as he drove 

out of the mine. Reynolds conducted his inspection on foot by walking the length of the belt 

from top to bottom. Tr. 56, 196, 239. Reynolds testified that the majority of the accumulations 

were on the back side of the belt, opposite the travel way, and partially obstructed from view by 

the steel I-beams and the belt itself. Tr. 56, 196-98. Reynolds opined that it would be difficult to 

conduct a thorough examination of the belt from a moving vehicle, as Adams had done, due to 

these obstructions. Tr. 197-98. Reynolds also testified that there were fewer accumulations on 

the side of the belt facing the road, and it appeared that those accumulations had been cleaned. 

Tr. 68. 

In addition, at 650 feet down the slope, Reynolds observed that the slope belt had cut into 

the I-beam for approximately one-eighth of an inch. He estimated that this would have taken at 

least 24 hours for the rubber belt to cut into the steel I-beam. Tr. 78-79. Webster confirmed that 

it would have taken some time for the rubber belt to cut one-eighth of an inch into a three-eighths 

of an inch-thick, steel I-beam. Tr. 301-02. As noted above at note 10, I have credited the 

testimony of Reynolds and Webster that the friction between the belt and I-beam likely existed 

for a significant period of at least 24 hours. As such, it should have been noted by Adams. The 

frictional damage to the I-beam undercuts Respondent’s claim that it was actively monitoring 

belt conditions because Adams or other shift examiners should have noticed and documented 

such belt damage, and they did not. Based on the facts outlined above, I find that the Secretary 

proved by a preponderance of the evidence that the accumulations existed at the time of Adams’ 

inspection and were in contact with the belt rollers. 

1. Citation No. 8450926 was Properly Issued for Respondent’s Failure to Record 

the Nature and Location of Hazardous Conditions as Required by 

30 C.F.R. § 75.363(b). 

Respondent argues that section 75.363(b) requires five elements: 

[1] A record shall be made of any hazardous condition and any violation of the 

mine mandatory health or safety standards found by the mine examiner. [2] This 

record shall be kept in a book maintained for this purpose on the surface of the 

mine. [3] The record shall be made by the completion of the shift on which the 

hazardous condition or violation of the mine mandatory health or safety standards 

is found and [4] shall include the nature and location of the hazardous condition 

of the violations and [5] the nature of the corrective action taken. 

30 C.F.R. § 75.363(b); Resp’t’s Br. 23. Based on these elements, Respondent argues that 

Adams’ notation of “slope belt needs cleaned—work in progress” satisfied the first four 

requirements, and was insufficient only in that it did not specifically refer to precise locations 

along the belt where accumulations had occurred. Id. The Secretary argues that the notation was 

38 FMSHRC Page 2246
inadequate because it failed to identify the specific hazard of accumulations touching the running 

belt in six locations. Sec’y Br. 24; Tr. 113. 

Although my research reveals that the Commission has not addressed section 75.363(b), 

the Secretary points out that prior Commission ALJ decisions have recognized three discrete 

elements pertaining to records kept under the requirements of section 75.363(b): the nature of the 

hazard, the location of the hazard, and the corrective action taken. Drummond Company, Inc., 

25 FMSHRC 644, 646 (Oct. 2003) (ALJ). The Secretary contends that Adam’s notation is 

deficient in that it fails to document the extent of the accumulations and the locations where the 

rollers and the moving belt were in contact with the accumulations. Tr. 116-17; Sec’y’s Br. 23. 

Respondent argues that Adams’ notation regarding the accumulations was sufficient to meet the 

requirements of section 75.363(b) because the notation of “slope belt needs cleaned” would have 

been understood by a reasonable person familiar with the mining industry to mean that the entire 

belt needed cleaning from top to bottom. Resp’t’s Br. 9, 20, 22-23. 

The purpose of section 75.363(b) is to create a history of conditions in the mine that 

“mine management can use . . . to determine if the same hazardous conditions are occurring and 

if the corrective action taken is effective.” Safety Standards for Underground Coal Mine 

Ventilation, 61 Fed. Reg. 9764, 9803 (March 11, 1996) (codified at 30 C.F.R. § 75.363). The 

adequacy of records is analyzed from the perspective of a miner reading the record for requisite 

information. Twentymile Coal Co., 34 FMSHRC 2138, 2156 n. 22 (ALJ 2012). 

Reynolds testified that the “slope belt needs cleaned—work in progress” notation was 

inadequate because slope belts generally need cleaning every shift. Tr. 117. While the notation 

may have been generally understood by a reasonable miner to indicate that the entire slope belt 

needed cleaning, the notation failed to give notice as to the specific hazards posed by the slope 

belt accumulations, as evidenced by the fact that six miners cleaning the belt during Reynolds’ 

inspection were working at the top of the belt where there were fewer accumulations, rather than 

farther down the belt where there were greater accumulations near possible ignition sources. Tr. 

126. 

In addition, the nearly identical previous entries for the slope belt examinations and 

Respondent’s long history of slope belt accumulation citations indicate that the entries were not 

sufficiently specific to serve the regulation’s purpose of demonstrating to mine management 

whether its corrective actions were effective. I therefore find that Adams’ “slope belt needs 

cleaned—cleaning in progress” notation did not identify the nature or location of the hazard, nor 

the nature of the corrective action, i.e. that the slope belt was actually cleaned at the locations of 

the numerous accumulation hazards. 

2. Respondent had Fair Notice Regarding the Requirements of Section 75.363(b). 

The Respondent also argues that it did not have fair notice that its recording practices 

violated 30 C.F.R. § 75.363(b). Resp’t’s Br. 7. Fair notice provides a defense when the standard 

at issue is “so incomplete, vague, indefinite, or uncertain that [persons] of common intelligence 

must necessarily guess at its meaning and differ as to its application.” Ideal Cement Co., 

4 FMSHRC 2128, 2129 (Dec. 1982). On the other hand, where a regulation is clear, “the terms 

of the provision must be enforced as they are written unless the regulator clearly intended the 

38 FMSHRC Page 2247
words to have a different meaning or unless such a meaning would lead to absurd results.” Lode 

Star Energy, Inc., 24 FMSHRC 689, 692 (July 2002). 

Regulatory interpretation is a two-step analysis. Walker Stone, 19 FMSHRC 48, 51 (Jan 

1997), aff’d, 156 F.3d 1076, 1081 (10th Cir. 1998). The first step is to determine whether the 

regulation is clear and unambiguous. Northshore Mining Co. v. Sec’y of Labor, 709 F.3d 706, 

709 (8th Cir. 2013). The regulation must be applied as written where the regulatory language is 

clear and unambiguous. Id. If the regulation is ambiguous, the second step is to determine 

whether the agency’s interpretation is reasonable. Plateau Mining Corp. v. Fed. Mine Safety & 

Health Review Comm’n, 519 F.3d 1176, 1192 (10th Cir. 2008) (citing Auer v. Robbins, 519 U.S. 

451, 461 (1997)). An interpretation is reasonable unless it is plainly erroneous or inconsistent 

with the regulation. Id. In making this reasonableness determination, the Commission considers 

the regulatory language and history. Twentymile Coal, 36 FMSHRC 2009, 2012-13 (Aug. 2014). 

Even absent actual notice, the Secretary may charge an operator with a violation when a 

reasonably prudent person familiar with the protective purposes of the cited standard and the 

factual circumstances surrounding the allegedly hazardous condition, including any facts 

peculiar to the mining industry, would have recognized a hazard warranting corrective action 

within the purview of the applicable regulation. LaFarge North America, 35 FMSHRC at 3500-

01; Ideal Cement Co., 12 FMSHRC at 2415-16; Alabama By-Products Corp., 4 FMSHRC at 

2129. The Secretary argues that the requirements of section 75.363(b) are explicit: the record of 

the hazard must contain the nature of the hazard, the location of the hazard, and the correction 

action taken. Sec’y’s Br. 23. As discussed above, Respondent argues that the plain language of 

the statute contains five requirements: a record maintained in a book on the surface of the mine 

that identifies the nature and location of hazards during shift inspections and the corrective action 

taken to alleviate those hazards. 

A review of the record book itself indicates that notations for other belt examinations 

contained the elements that the notations for the slope belt lacked. For example, the July 9 day 

shift entry for the east belt states: “Need to clean under rollers from 3 to 8.” The July 10 day 

shift entry for the SM3 belt states: “Need to clean 7A flowthrough.” Both of these entries were 

followed by the additional notation “done,” and initials. R. Ex. 2. As demonstrated by these 

notations, Respondent recognized the essential elements of the regulation and properly recorded 

at least some of the hazards identified during its examinations prior to the issuance of Citation 

No. 8450962. Accordingly, I find that Respondent had fair notice regarding the plain language 

of the requirements of section 75.363(b). The regulation at issue is clear and unambiguous, and 

thus should be interpreted in accordance with its plain language. 

Even assuming that the regulation is ambiguous, the Secretary’s interpretation is 

reasonable and should be accorded deference. See Auer v. Robbins, 519 U.S. 452, 461 (1997). 

As noted above, the purpose of section 75.363(b) is to create a history of conditions in the mine 

that “mine management can use . . . to determine if the same hazardous conditions are occurring 

and if the corrective action taken is effective.” Safety Standards for Underground Coal Mine 

Ventilation, 61 Fed. Reg. 9764, 9803 (March 11, 1996) (codified at 30 C.F.R. § 75.363). I find 

that the Secretary’s interpretation of the regulation is consistent with this purpose. To allow 

generalized notations like Adams made to satisfy this standard would nullify the regulation’s 

requirements to identify the nature and location of the hazard, and the specific identification of 

the corrective action taken for such hazard, thereby undermining the purpose of the regulation. 

38 FMSHRC Page 2248
Accordingly, I find that Adams’ notation of “slope belt needs cleaned—cleaning in progress” 

does not satisfy the requirements of 30 C.F.R. § 75.363(b). 

3. Citation No. 8540926 Was Appropriately Written as S&S. 

Recording hazardous conditions discovered in a shift examination is crucial to the health 

and safety of miners. See, e.g., American Coal Co., 34 FMSHRC 2058, 2082 (ALJ 2012). In 

the context of an S&S designation, the Commission must determine whether the failure to record 

contributed to a hazard that is reasonably likely to result in a serious injury. Id. Reynolds issued 

Citation No. 8540926 because, in his opinion, Adams’ notation did not identify the nature and 

location of the accumulations hazards that were prevalent at numerous locations along the slope 

belt. As discussed above, accumulations touching the belt and rollers constituted an S&S 

violation that contributed to the discrete safety hazard of an ignition that was reasonably likely to 

result in a serious injury. Accordingly, I turn to the issue of whether the failure to properly 

record the nature and location of the slope belt accumulations contributed to the discrete safety 

hazard that management and miners would be unaware of the nature and location of the ignition 

hazards and any corrective actions taken, thereby enhancing the likelihood of reasonably serious 

injuries resulting in lost work days or restricted duty. 

Reynolds designated Citation No. 8540926 as reasonably likely to result in a lost 

workdays or restricted duty injury because the location and nature of the accumulation hazards 

were not detailed in the examination report. Consequently, management and miners would not 

be able to immediately address the accumulations most likely to result in ignitions. Tr. 130. In 

fact, at the time of the inspection, miners were shoveling where ignition hazards were not 

present. Adams’ poor and deficient documentation of the accumulation and ignition hazards 

present were reasonably likely to enhance an actual ignition during continued mining operations, 

and the ignition itself was reasonably likely to result in serious injuries of smoke inhalation and 

burns. 

Respondent argues that Adams’ notation “slope belt needs cleaned—work in progress” 

served the purpose of notifying miners and management of specific hazards in the mine because 

six workers were assigned to shovel the accumulations on the slope belt, potentially abating the 

discrete hazards that might arise from inadequate reporting. Tr. 242, 317; Resp’t’s Br. 29. I 

disagree. I reject this argument. The belt was running. No specific hazards were mentioned, 

nor was the specific location of such hazards mentioned. Further, as Adams testified, the six or 

so miners were shoveling at the top of the slope, rather than addressing those areas of the belt 

where the accumulations were touching the rollers or the belt itself. Tr. 126. 

 In addition, 27 miners were assigned to clean the belt after the issuance of Citation 

No. 8450924. Tr. 132. It took the 27 miners between two and three days to abate the hazards. 

P. Ex. 2. It is therefore unlikely that the six miners assigned to shovel the belt on the morning of 

July 14 had any significant effect on abating the hazards, even had they been shoveling in 

locations were the accumulations touched the belt and rollers. Without noting the specific 

location of the hazards observed, Adams’ notation did little to enable miners or management to 

abate hazards within the mine, and thus rendered the examination reporting ineffective in 

carrying out the purpose of the regulation. Accordingly, I uphold the S&S designation and find 

that Adams’ notations failed to properly record the location and nature of the accumulations, 

38 FMSHRC Page 2249
thereby contributing to the reasonable likelihood of an ignition that would result in serious 

injuries. 

4. Citation No. 8540926 Was Appropriately Written as High Negligence 

Respondent argues that examiner Adams’ notations accurately reflected slope conditions 

at the time of his inspection, and accordingly his recordkeeping was not negligent. Resp’t’s 

Br. 27. Although Reynolds conceded that Adams may have observed a “minimally less 

extensive” amount of accumulations during his examination, I have found that the Secretary 

established that the accumulations had accrued over more than one shift, and that Adams’ 

examination from a moving vehicle precluded him from observing the accumulations and 

ignition sources on the far side of the belt. Tr. 139-141. 

Respondent also argues that Adams’ notation provided an opportunity for the examiner 

and the foreman to discuss accumulation issues. According to Adams, his July 14, 2014 entry 

was standard practice at the mine, and the mine foreman Rorer “would know what [his entry] 

meant.” Tr. 264. Adams testified that when he spoke to Rorer after the examination at 7 a.m., 

Adams told Rorer that the entire belt needed to be cleaned. Tr. 262. Adams further testified that 

after his examinations, he usually would verbally convey to Rorer where shoveling was needed, 

rather than indicating such locations in the record book. Tr. 264, 357. However, miners going 

underground after the examination are entitled to review the examination book to determine the 

nature and location of hazardous conditions and violations found, and the corrective actions 

taken. Allowing verbal communications between examiners and supervisors to substitute for the 

written record required by section 75.363(b) would deprive miners of this right. The plain 

language of section 75.363(b) does not allow verbal communication to substitute for its written 

recording requirements. Furthermore, despite his discussion with Rorer, Adams’ notation did 

not result in any significant action regarding the abatement or mitigation of the accumulations 

hazards until after the citation was issued. In addition, Respondent’s belt examination book 

entries for July 9 and 10 indicate that Respondent attempted to at least comply with the 

standard’s specific location requirements when it wanted to do so. In these circumstances, I find 

that Respondent’s examiner was highly negligent in failing to properly document the nature and 

location of the numerous accumulation hazards, and the corrective action taken. 

V. Civil Penalty 

The Secretary initially proposed a penalty of $15,570 for Citation No. 8450924 and a 

penalty of $6,996 for Citation No. 8450926. In his post-hearing brief, the Secretary requested 

that the proposed penalty be increased to a total of $45,000 for both citations, but provided no 

supporting rationale. Pet’r’s Br. 32. At trial, the Secretary did not move to amend its Petition for 

the Assessment of Civil Penalty to increase the proposed penalty. 

The parties stipulated that in 2013, the Mach Number One Mine produced 6,694,630 tons 

of coal and its controlling entity produced 18,772,988 tons of coal. The parties also stipulated 

that the penalties proposed by the Secretary in this case will not affect the ability of Mach to 

continue in business, and that Mach demonstrated good faith in abating the violations. 

Respondent was cited 58 times for violations of section 75.400 in the fifteen months prior to the 

issuance of Citation No. 8450924. Given this history of violations, my confirmation of inspector 

Reynolds’ gravity, negligence, and S&S determinations, and Respondent’s good-faith abatement 

38 FMSHRC Page 2250
of the violation, I assess a penalty of $15,570 for Citation No. 8450924 under the penalty criteria 

set forth in Section 110(i) of the Act. 

Citation No. 8450926 was the first time Respondent was cited under 

30 C.F.R. § 75.363(b). Given the absence of any history of violations, my confirmation of 

Reynolds’ gravity, negligence, and S&S determinations, and Respondent’s good-faith abatement 

of the violation, I assess a penalty of $6,996 for Citation No. 8450926 under the penalty criteria 

set forth in Section 110(i) of the Act. 

VI. Approval of Partial Settlement 

On October 29, 2015, the Secretary submitted a motion to approve settlement for 11 

citations, and proposed a reduction in penalties from $34,317 to $25,461. The Solicitor states 

that Citation No. 8439597 has been vacated. The Secretary’s discretion to vacate a citation or 

order is not subject to review. See, e.g., RBK Constr., Inc., 15 FMSHRC 2099 (Oct. 1993). The 

Solicitor also requests that: 

Citation No. 8439593 be modified to reduce the likelihood of injury or illness 

from “reasonably likely” to “unlikely,” and to delete the significant and 

substantial designation; 

Citation No. 8439594 be modified to reduce the likelihood of injury or illness 

from “reasonably likely” to “unlikely,” and to delete the significant and 

substantial designation; 

Citation No. 8439599 be modified to reduce the level of negligence from “high” 

to “moderate;” and 

Citation No. 8451307 be modified to reduce the number of persons affected from 

“ten persons” to “five persons.” 

The remaining citations and penalties are unchanged. 

 Pursuant to 29 C.F.R. § 2700.1(b) and Federal Rule of Civil Procedure 12(f), I strike 

paragraph four from the Secretary’s Motion to Approve Settlement as immaterial and 

impertinent to the issues legitimately before the Commission. The paragraph incorrectly cites 

and interprets the case law and misrepresents the statute, regulations, and Congressional intent 

regarding settlements under the Mine Act. Instead, I have evaluated the proposed settlement in 

accordance with sections 110(i) and 110(k) of the Act. 

 I have considered the representations and documentation submitted in this case, and I 

conclude that the proffered settlement is appropriate under the criteria set forth in section 110(i) 

of the Act. The settlement amounts are as follows: 

Citation No. Assessment Settlement 

8439592 $334 $334 

8450925 $745 $745 

8439593 $2,282 $2,282 

8439594 $1,944 $1,944 

38 FMSHRC Page 2251
8451302 $108 $108 

8439595 $460 $460 

8451306 $11,306 $11,306 

8439598 $2,282 $2,282 

8439599 $5,503 $2,000 

8451307 $8,893 $4,000 

TOTAL $33,857 $25,461 

VII. ORDER

Citation Nos. 8450924 and 8450926 are AFFIRMED, AS WRITTEN. 

It is ORDERED that Citation No. 8439593 be MODIFIED to reduce the likelihood of 

injury or illness from “reasonably likely” to “unlikely,” and to delete the significant and 

substantial designation. 

It is ORDERED that Citation No. 8439594 be MODIFIED to reduce the likelihood of 

injury or illness from “reasonably likely” to “unlikely,” and to delete the significant and 

substantial designation. 

It is ORDERED that Citation No. 8439599 be MODIFIED to reduce the level of 

negligence from “high” to “moderate.” 

It is ORDERED that Citation No. 8451307 be MODIFIED to reduce the number of 

persons affected from “ten persons” to “five persons.” 

To the extent it has not already done so, Mach Mining is ORDERED to pay a total civil 

penalty of $48,027 for the litigated and settled citations within thirty (30) days of the date of this 

Decision and Order.14

/s/ Thomas P. McCarthy 

Thomas P. McCarthy 

Administrative Law Judge 

 

 14 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. 

38 FMSHRC Page 2252
Distribution: (Certified Mail) 

Daniel McIntyre, Esq., U.S. Department of Labor, Office of the Solicitor, 1244 Speer Blvd., 

Suite 216, Denver, CO 80204 

Christopher D. Pence, Esq., Hardy Pence, PLLC, 500 Lee Street East, Suite 701, P.O. Box 2548, 

Charleston, WV 25329 

38 FMSHRC Page 2253
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

7 PARKWAY CENTER, SUITE 290 

875 GREENTREE ROAD 

PITTSBURGH, PA 15220 

TELEPHONE: 412-920-7240 / FAX: 412-928-8689 

August 24, 2016 

DECISION AND ORDER

Appearances: Matthew R. Epstein, Esq., U.S. Department of Labor, Office of the Solicitor, 

Philadelphia, Pennsylvania, for Petitioner 

Stephen B. Harris, Esq., Eureka Stone Quarry, Inc., Warrington, Pennsylvania, for 

Respondent 

Before: Judge John Kent Lewis 

Statement of the Case 

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

U.S.C. §801, et seq., (“Mine Act”). On August 12, 2014, an MSHA inspector issued a §103(j) 

order, and on August 14, 2014, the inspector issued a § 104(d)(1) citation, and two § 104(d)(1) 

orders to the Respondent arising out of a non-fatal accident that took place at Respondent’s 

quarry. 

A hearing was held in Scranton, Pennsylvania on April 19, 2016. After careful review of 

the parties’ post-hearing briefs and reply briefs, the Court issues the following decision. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner, 

v. 

EUREKA STONE QUARRY, INC., 

 Respondent. 

CIVIL PENALTY PROCEEDINGS 

Docket No. PENN 2015-12-M 

A.C. No. 36-05527-363760

Docket No. PENN 2015-176-M 

A.C. No. 36-05527-375186

Mine: Eureka Stone Quarry, Inc. 

38 FMSHRC Page 2254
Stipulations 

At hearing, the parties stipulated to the following facts: 

1. Respondent was an “operator” as defined in Section 3(d) of the Act, 30 U.S.C §802(d) at 

the Eureka Stone Quarry, MSHA Mine I.D. No. 36-05527 (hereinafter the “mine”) at 

which the citation and orders in this matter were issued.

2. The operations of the Respondent at the mine are subject to the Act.

3. The above-captioned proceeding is subject to the jurisdiction of the Federal Mine Safety 

and Health Review Commission and its assigned Administrative Law Judge, pursuant to 

Sections 105 and 113 of the Act.

4. The citation and orders in this matter were served by a duly authorized representative of 

the Secretary upon an agent of the Respondent at the date, time, and place stated therein 

as required by the Act.

5. True copies of the citation and orders in this matter were served on the Respondent 

and/or its agents as required by the Act.

6. The citation and orders contained in “Exhibit A,” attached to the Secretary’s Petition in 

the cases docketed as PENN 2015-0012 and PENN 2015-0176 are authentic copies of the 

subject citation and orders.

7. Robert Carr was superintendent of the mine on August 12, 2014.

8. Robert Carr was the person responsible for blasting at the mine on August 12, 2014.

9. Robert Carr was at the mine and supervising work on August 12, 2014.

10. There was a blockage in the impact crusher at the mine on August 12, 2014.

11. Robert Carr was supervising work to clear the impact crusher on August 12, 2014.

12. As part of the work to clear the impact crusher, blasting was conducted.

13. As part of the work to clear the impact crusher, Robert Carr went inside the impact 

crusher.

14. At approximately 3:40 p.m., on August 12, 2014, Robert Carr was injured when rocks 

fell from above him inside the impact crusher.

Resp’t’s Br., 2-3. 

38 FMSHRC Page 2255
In addition the parties have stipulated that the proposed penalties in this matter will not 

affect the Respondent’s ability to remain in business. Tr. 7. 

LAW AND REGULATIONS 

Burden of Proof and Standard of Proof 

The burden of persuasion is upon the Secretary to prove the gravamen of a violation by a 

preponderance of the evidence. Jim Walter Resources, Inc., 28 FMSHRC 983, 992 (Dec. 2006), 

RAG Cumberland Resources, Corp., 22 FMSHRC 1066, 1070 (Sept. 2000), Jim Walter Res., 

Inc., 9 FMSHRC 903, 907 (May 1987). This includes every element of the citation. In re: 

Contests of Respirable Dust Sample Alteration Citations: Keystone Mining Corp., 17 FMSHRC 

872, 878 (Aug. 2008). 

Commission precedents have held that “[t]he burden of showing something by a 

‘preponderance of the evidence’ the most common standard in the civil law, simply requires the 

trier of fact ‘to believe that the existence of a fact is more probable than its nonexistence.’” RAG 

Cumberland Resources Corp., 22 FMSHRC 1066, 1070 (Sept. 2000), quoting Concrete Pipe & 

Products of California, Inc. v. Constr. Laborers Pension Trust for S. California, 508 U.S. 602, 

622 (1993). 

The United States Supreme Court has held that “[b]efore any such burden can be satisfied 

in the first instance, the factfinder must evaluate the raw evidence, finding it to be sufficiently 

reliable and sufficiently probative to demonstrate the truth of the asserted proposition with the 

requisite degree of certainty.” Concrete Pipe & Products of California, Inc. v. Constr. Laborers 

Pension Trust for S. California, 508 U.S. 602, 622 (1993). The assessment of evidence is a 

process of weighing, rather than mere counting: “[T]here is a distinction between civil and 

criminal cases in respect to the degree or quantum of evidence necessary to justify the [trier of 

fact] in finding their verdict. In civil cases their duty is to weigh the evidence carefully, and to 

find for the party in whose favor it preponderates.” Lilienthal's Tobacco v. United States, 97 U.S. 

237, 266 (1877).1

 

 1

 “What is the most acceptable meaning of the phrase, proof by a preponderance, or 

greater weight, of the evidence? Certainly the phrase does not mean simple volume of evidence 

or number of witnesses. One definition is that evidence preponderates when it is more 

convincing to the trier than the opposing evidence. This is a simple commonsense explanation 

which will be understood by jurors and could hardly be misleading in the ordinary case.” 2 

McCormick On Evid. §339 (7th ed.), emphasis mine. Indeed the notion of justice being an 

assessment by weighing has ancient roots, extending at least as far back as the Iliad’s Book 

XXII: “Then, at last, as they were nearing the fountains for the fourth time, the father of all 

balanced his golden scales and placed a doom in each of them, one for Achilles and the other for 

Hektor.” HOMER, THE ILIAD, BOOK XXII, trans. Samuel Butler, 1898. 

38 FMSHRC Page 2256
Assessment of Credibility 

As trier of fact, this Court is free to accept or reject, in whole or in part, the testimony of 

any witness. In resolving any conflicts in testimony, this Court has taken into consideration the 

demeanor of witnesses, their interests in the case’s outcome, or lack thereof, consistencies or 

inconsistencies in each witness’s testimony, and any other corroborative or conflicting evidence 

of record. Any failure to provide detail as to each witness’s testimony is not to be deemed a 

failure on the Court’s part to have fully considered it. The fact that some evidence is not 

discussed does not indicate that it was not considered. See Craig v. Apfel, 212 F.3d 433, 436 (8th 

Cir. 2000) (administrative law judge is not required to discuss all evidence and failure to cite 

specific evidence does not mean it was not considered). 

Statutory Construction 

The first inquiry in statutory construction is, “whether Congress has directly spoken to 

the precise question at issue.” Chevron U.S.A. Inc. v. Natural Res. Defense Council, Inc., 467 

U.S. 837, 842 (1984); Thunder Basin Coal Co., 18 FMSHRC 582, 584 (Apr. 1996). If a statute is 

clear and unambiguous, effect must be given to its language. Chevron, 467 U.S. at 842-

43. Accord Local Union No. 1261, UMWA v. FMSHRC, 917 F.2d 42, 44 (D.C. Cir. 1990). If, 

however, the statute is ambiguous or silent on a point in question, a second inquiry, commonly 

referred to as a “Chevron II” analysis, is required to determine whether an agency’s 

interpretation of a statute is a reasonable one. See Chevron, 467 U.S. at 843-44; Thunder Basin, 

18 FMSHRC at 584 n.2. Deference is accorded to “an agency’s interpretation of the statute it is 

charged with administering when that interpretation is reasonable.” Energy West Mining Co. v. 

FMSHRC, 40 F.3d 457, 460 (D.C. Cir. 1994) (citing Chevron, 467 U.S. at 844). The agency’s 

interpretation of the statute is entitled to affirmance as long as that interpretation is one of the 

permissible interpretations the agency could have selected. Chevron, 467 U.S. at 843; Joy 

Technologies, Inc. v. Sec’y of Labor, 99 F.3d 991, 995 (10th Cir. 1996), cert. denied, 520 U.S. 

1209 (1997). 

 

Turning to the first inquiry, “in ascertaining the plain meaning of the statute, the court 

must look at the particular statutory language at issue, as well as the language and design of the 

statute as a whole.” K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (citations omitted). 

Traditional tools of construction, including examination of a statute’s text and legislative history, 

may be employed to determine whether “Congress had an intention on the precise question at 

issue,” which must be given effect. Coal Employment Project v. Dole, 889 F.2d 1127, 1131 

(D.C. Cir. 1989) (citations omitted). 

Significant and Substantial Violations 

 A violation is S&S if, based upon the particular facts surrounding the violation, there 

exists a reasonable likelihood that the hazard contributed to by the violation will result in an 

injury or illness of a reasonably serious nature. See Cement Div., Nat’l Gypsum Co., 3 FMSHRC 

 

38 FMSHRC Page 2257
822, 825 (Apr. 1981). In Mathies Coal Co., 6 FMSHRC at 3-4 (Jan. 1984), the Commission 

further explained: 

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

and substantial under National Gypsum, the Secretary of Labor must prove: (1) 

the underlying violation of a mandatory safety standard; (2) a discrete safety 

hazard--that is, a measure of danger to safety--contributed to by the violation; (3) 

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

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

serious nature. 

Oak Grove Resources, 37 FMSHRC at 2691-92 (citing Buck Creek Coal, Inc. v. FMSHRC, 52 

F.3d 133, 135 (7th Cir. 1995)); Austin Power, Inc. v. Secretary of Labor, 861 F.2d 99, 103-04 

(5th Cir. 1988) (approving Mathies criteria.)) 

The Mathies test has long been accepted as authoritative. See Knox Creek Coal Corp. v. 

Sec’y of Labor, 811 F.3d 148, 160 (4th Cir. 2016) (noting federal appellate courts’ uniform 

adoption of Mathies test and parties’ recognition of authority of test); Mach Mining, LLC v. 

Sec’y of Labor, 890 F.3d 1259, 1267 (D.C. Cir. 2016) (applying Mathies criteria); Austin Power, 

Inc., v. Sec’y of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving use of Mathies criteria). 

A recent decision by my esteemed colleague Judge McCarthy summarizes recent 

developments in S&S case law aptly: 

The Commission has held that the S&S determination should be made 

assuming “continued normal mining operations.” McCoy Elkhorn Coal Corp., 36 

FMSHRC 1987, 1990-91 (Aug. 2014) (citing U.S. Steel Mining Co., 7 FMSHRC 

1125, 1130 (Aug. 1985)). The assumption of continued normal mining operations 

considers “the length of time the violative condition existed prior to the citation 

and the time it would have existed if normal mining operations had continued,” 

without any assumptions as to abatement. Black Beauty Coal Co., 34 FMSHRC 

1733, 1740 (Aug. 2012), aff’d sub nom. Peabody Midwest Mining, LLC, v. 

FMSHRC, 762 F.3d 611 (7th Cir. 2014); Rushton Mining Co., 11 FMSHRC 1432, 

1435 (Aug. 1989); see also Knox Creek, 811 F.3d at 165-6 (upholding 

Commission’s rejection of “snapshot” approach to evaluating S&S for 

accumulations violation); Mach Mining, 809 F.3d at 1267-8 (citing with approval 

McCoy Elkhorn’s discussion of operative timeframe for S&S). The Commission 

has repeatedly stated that the S&S determination must be based on the particular 

facts surrounding the violation. See, e.g., Wolf Run Mining Co., 36 FMSHRC 

1951, 1957-59 (Aug. 2014) (remanding S&S finding for further consideration of 

relevant circumstances); Black Beauty, 34 FMSHRC at 1740; Peabody Coal Co., 

17 FMSHRC 508, 511-12 (Apr. 1995); Texasgulf, Inc., 10 FMSHRC 498, 500 

(Apr. 1998). 

A line of cases beginning with the Seventh Circuit’s decision in Buck 

Creek, supra, has established that an operator cannot rely on redundant safety 

38 FMSHRC Page 2258
measures to mitigate the likelihood of injury for S&S purposes. See, e.g., Brody 

Mining, LLC, 37 FMSHRC 1687, 1691 (Aug. 2015). Commission precedent 

indicates that the likelihood of injury is the key consideration in determining 

whether a violation is S&S. Consolidation Coal Co., 18 FMSHRC 1541, 1550 

(Sept. 1996) (comparing S&S inquiry, which focuses on the “reasonable 

likelihood of serious injury,” with gravity inquiry, which focuses on “the effect of 

the hazard if it occurs”).2

 

Mach Mining, Inc., LAKE 2014-0077, LAKE 2014-0132, 2016 WL 3226147 (May 2016) (ALJ 

McCarthy). 

Following established precedent Commission judges have generally evaluated the 

reasonable likelihood of injury at the third Mathies prong rather than at the second Mathies

prong. “There is no requirement of ‘reasonable likelihood’” encompassed in this [second prong] 

element. Musser Engineering, Inc., 32 FMSHRC 1257, 1280 (Sept. 2010). The likelihood of 

harm should be accounted for in the third Mathies element which 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, 1836.3

 

 2

 Commission precedent has established special rules for applying the Mathies test in two 

situations: 

First, for violations that contribute to the hazard of an ignition, fire, or 

explosion, the Commission has held that the third Mathies element is satisfied 

only when a “confluence of factors” is present that could have triggered an 

ignition, fire, or explosion, under continued normal mining operations. Zeigler 

Coal Co., 15 FMSHRC at 953; Texasgulf, 10 FMSHRC at 501; see, e.g., 

Paramount Coal Co. Va., LLC, 37 FMSHRC 981, 984 (May 2015). Second for 

violations of emergency safety standards, the Commission assumes the 

emergency when making the S&S evaluation. See, e.g., Cumberland Coal Res., 

LP v. FMSHRC, 717 F.3d 1020, 1027-8 (D.C. Cir. 2013); Mill Branch Coal 

Corp., 37 FMSHRC 1383, 1394 (July 2015). 

Mach Mining, Inc., LAKE 2014-0077, LAKE 2014-0132, 2016 WL 3226147(May 2016) (ALJ 

McCarthy). 

3

 See, however, the recent holding in Knox Creek Coal Corp v. Secretary of Labor, 811 

F.3d 148 (4th Cir. 2016), in which the Fourth Circuit held that “for a violation to contribute to a 

discrete safety hazard, it must be at least somewhat likely to result in harm.” See also the recent 

and perceptive decisions of my esteemed colleagues, ALJs McCarthy and Moran, discussing a 

possible shift of focus from the third to second element of Mathies in determining the likelihood 

of injury. Northshore Mining Company, No. LAKE 2015-0340-M, slip op at 1 (April 11, 2016) 

(ALJ McCarthy); Oak Grove Resources, LLC, SE 2009-261-R (April 2016) (ALJ Moran) at 4. 

38 FMSHRC Page 2259
Negligence 

 Section 110(i) of the Mine Act authorizes the Commission to assess penalties for 

violations of the Act, and includes the operator’s negligence as one of the criteria the 

Commission is required to consider in assessing a penalty. To start the process, MSHA proposes 

a penalty pursuant to section 105(a) of the Act, 30 U.S.C. §815(a). MSHA has published 

regulations explaining its role in the penalty process, including how it arrives at proposed penalty 

amounts. See 30 C.F.R. Part 100. 

 

The Part 100 regulations address how MSHA calculates most proposed penalties in light 

of the statutory criteria the Commission must consider, and explains how MSHA views each of 

the criteria. See 30 C.F.R. §100.3. With regards to the negligence criteria, MSHA has adopted a 

formulaic approach, categorizing negligence into five different levels, from “no” negligence to 

“reckless disregard,” based on the existence of a mitigating circumstance, or multiple such 

circumstances, for the violation. 30 C.F.R. §100.3 (d); see generally Hidden Splendor Res., Inc., 

36 FMSHRC 3099, 3106 (Dec. 2014) (Comm’r Cohen, concurring.)4

The Commission has recently explained that judges are not required to apply the level of 

negligence definitions in Part 100 and may evaluate negligence from the starting point of a 

traditional negligence analysis5 rather than the Part 100 definitions. Brody Mining, LLC, 37 

FMSHRC 1687, 1701 (Aug. 2015); accord Mach Mining, LLC v. Sec’y of Labor, 804 F.3d 1259, 

1263-4 (D.C. Cir. 2016). 

Moreover, the Commission in Brody held that judges in making their negligence 

determinations were not to be limited to an evaluation of potential mitigating circumstances but 

should instead consider “the totality of the circumstances holistically.” Brody, 37 FMSHRC at 

1702. 

 

In determining the existence and degree of negligence associated with an alleged 

violation, a Commission judge must consider the duty of care accompanying the mandatory 

standard at issue. 

 

 4

 See also §100.3, Table X- Negligence, which provides for 0 penalty points where there 

is “no negligence” (the operator exercised diligence and could not have known of the violative 

condition or practice); 10 penalty points for “low negligence” (the operator knew or should have 

known of the violative condition or practice, but there are considerable mitigating 

circumstances); 20 penalty points for “moderate negligence,” (the operator knew or should have 

known of the violative condition or practice but there are mitigating circumstances); 35 penalty 

points for “high negligence” (the operator knew or should have known of the violative condition 

or practice and there are no mitigating circumstances); 50 points for “reckless disregard” (the 

operator displayed conduct which exhibits the absence of the slightest degree of care). 

5

 Under a traditional negligence analysis the operator is negligent if it fails to meet the 

requisite standard of care – a standard of care that is high under the Mine Act. Brody, at 1702. 

38 FMSHRC Page 2260
Negligence is not defined in the Mine Act. The Commission has, however held: 

“[e]ach mandatory standard . . . carries with it an accompanying duty of care to 

avoid violations of the standard, and an operator’s failure to meet the appropriate 

duty can lead to a finding of negligence if a violation of the standard occurs.” 

A.H. Smith Stone Co., 5 FMSHRC 13, 15 (Jan. 1983). In determining whether an 

operator met its duty of care, we consider what actions would have been taken 

under the same circumstances by a reasonably prudent person familiar with the 

mining industry, the relevant facts, and the protective purpose of the regulation.

See generally U.S. Steel Corp., 6 FMSHRC 1908, 1910 (Aug. 1984). 

 

JWR, 36 FMSHRC at 1975; see, e.g., id. at 1976-77 (requiring 

Secretary to show that operator failed to take specific action 

required by standard violated); Spartan Mining Co., 30 FMSHRC 

699, 708 (Aug. 2008) (negligence inquiry circumscribed by scope

of duties imposed by regulation violated.) 

Brody, 37 FMSHRC at 1702. 

Unwarrantable Failure 

 In Sec’y of Labor v. Manalapan Mining Co., 35 FMSHRC 289 (Feb. 2013), the 

Commission reviewed the factors to be evaluated in determining unwarrantable failure: 

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); see also Buck Creek Coal, Inc. v. MSHA, 

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

test). 

Whether conduct is “aggravated” in the context of unwarrantable failure is 

determined by looking at all the facts and circumstances of each case to see if any 

aggravating factors exist, including (1) the extent of the violative condition, (2) 

the length of time that the violative condition existed, (3) whether the violation 

posed a high degree of danger, (4) whether the violation was obvious, (5) the 

operator's knowledge of the existence of the violation, (6) the operator's efforts in 

abating the violative condition, and (7) whether the operator had been placed on 

notice that greater efforts were necessary for compliance. See IO Coal Co., 31 

FMSHRC 1346, 1351-57 (Dec. 2009); Cyprus Emerald Res. Corp., 20 FMSHRC 

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

These seven factors need to be viewed in the context of the factual circumstances 

of a particular case, and some factors may be irrelevant to a particular factual 

scenario. Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000). 

38 FMSHRC Page 2261
Nevertheless, all of the relevant facts and circumstances of each case must be 

examined to determine if an operator's conduct is aggravated, or whether 

mitigating circumstances exist. Id.; IO Coal, 31 FMSHRC at 1351. 

Manalapan Mining Co., 35 FMSHRC at 293. 

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); Warren Steen Constr., Inc., 14 FMSHRC 1125, 1129 (July 1992) (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 

equipment”); Quinland Coals, 10 FMSHRC at 709 (finding unwarrantable failure where roof 

conditions were “highly dangerous”). The Commission has specifically noted that the factor of 

dangerousness, by itself, may warrant a finding of unwarrantable failure, though the absence of 

significant danger does not necessarily preclude a finding of unwarrantable failure. Manalapan 

Mining, 35 FMSHRC at 294. 

While an 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 by the 

judge. IO Coal Co., Inc., 31 FMSHRC 1346, 1351 (Dec. 2009). 

 

Penalty 

The Act requires that the Commission consider the following statutory criteria when 

assessing a civil penalty: (1) the operator’s history of previous violations; (2) the appropriateness 

of the penalty to the size of the business; (3) the operator’s negligence; (4) the operator’s ability 

to stay in business; (5) the gravity of the violation; and (6) any good-faith compliance after 

notice of the violation. Douglas R. Rushford Trucking, 22 FMSHRC 598, 600 (May 2000); 30 

U.S.C. §820(i). The Commission is not required to give equal weight to each of the criteria, but 

must provide an explanation for any substantial divergence from the proposed penalty based on 

such criteria. Spartan Mining Co., 30 FMSHRC 699, 723 (Aug. 2008). 

 

38 FMSHRC Page 2262
SUMMARY OF TESTIMONY

Ralph Bennett 

At hearing, MSHA Inspector Ralph Bennett testified on behalf of the Secretary.6

Bennett had been an accident investigator for 5 to 6 years, having received formal training for 

such at the National Mine Academy. Tr. 19. He had worked with jaw crushers/impact crushers. 

His job duties included operation, maintenance, blockage, clearance, and rebuilding. Tr. 19-20. 

Bennett had used dynamite to clear blockages, noting that dynamiting was an accepted practice 

but a “last resort” to clear blockages. Tr. 20. 

 Bennett described the operation of an impact crusher. Material is fed into the crusher 

from the top and “gravity fall[s] into any number of rollers.”7 Tr. 20. In the instant case, there 

was a pair of rollers running in opposite directions. The material would fall between the rollers, 

with the smaller chunks falling through the gap between the rollers. Tr. 20-1. A jam would occur 

in the crusher when material was too large to actually fall down and get gripped by the crusher 

teeth so as to be pulled into the system to be ground. The chunks that were too large would 

bridge above the rollers and jam the crusher. Tr. 21. 

On August 12, 2014, Bennett’s supervisor, Gary Merwine, had phoned Bennett, advising 

him that a miner was trapped at Eureka Stone and to proceed to the scene. Merwine subsequently 

called Bennett to notify him that the miner had been rescued and that Merwine had issued a 

103(j) Order.8 Tr. 23. Upon arriving at the mine site, Bennett changed the 103(j) Order to a 

103(k) Order.9 Tr. 23; see also Government Exhibit S-1. 

 6

 Bennett had worked as an MSHA inspector since October 2006. He had previously 

worked in mining operations, both surface and underground, metal and non-metal, for 33 years. 

Tr. 17. His past positions included common laborer, shovel cleaning under conveyor belts and 

licensed blaster, blasting for nearly ten years. Tr. 18. As an MSHA Inspector Bennett had taken 

courses at the National Mine Academy. He had served an apprenticeship for 2 years, working 

with senior veteran inspectors, and had attained his MSHA inspector certification. Tr. 19. 

7

 “Gravity fall,” meaning the material rolls down the crusher chute before free-falling into 

rollers, its descent made possible by the “natural law” of gravity. 

8

 Section 103(j) provides, in pertinent part, that in the event of an accident the operator 

must notify the Secretary and take appropriate measures to prevent the destruction of evidence: 

“In the event of any accident occurring in a coal or other mine, where rescue and recovery work 

is necessary, the Secretary or an authorized representative . . . shall take whatever action he 

deems appropriate to protect the life of any person, and he may, if he deems it appropriate, 

supervise and direct the rescue and recovery activities in such mine.” 30 U.S.C. §813(j). 

9

 Section 103(k) provides, in pertinent part, that in the event of an accident an authorized 

representative of the Secretary, when present, may issue such orders as he deems appropriate to 

insure the safety of any person in the mine: “In the event of an accident . . . an authorized 

representative of the Secretary, when present, may issue such orders as he deems appropriate to 

insure the safety of any person in the coal or other mine[.]” 30 U.S.C. §813(k). 

38 FMSHRC Page 2263
Bennett opined that the Respondent had done a “very good job” of preserving the 

accident scene. Tr. 25. Bennett met with James Furey, the Respondent’s Environmental Safety 

Director, and advised Furey of the modification of the (j) order to a (k) order. Tr. 25-6. The 

victim of the accident was Robert Carr, who was also the superintendent of Eureka Stone 

Quarry. Tr. 26. 

Bennett went to the crusher accident site and had taken photographs of the scene, sending 

the pictures to MSHA’s nearby district office. Tr. 27. Bennett ensured that the crusher had been 

locked out and that the integrity of the accident site had been preserved. Tr. 27. The crusher had 

been locked out to prevent inadvertent starting and further injury. Tr. 27-8. 

Locking out the crusher only controlled the crusher’s rollers. Although nothing could be 

started mechanically, boulders already in the hopper could still fall because of gravitational 

energy. Tr. 28. Boulders on the edge of the feeders could fall at any time. Tr. 29. If someone 

wanted to stop the material from falling, he would need to clean the feeder of excess rock and 

pull the stones from the edge so that material could not fall down to something below. Tr. 29. 

The Respondent’s crusher was located immediately at the end of the feeder with a 

connecting chute. Tr. 29. Anything coming off the feeder would fall down the chute and drop 

into the crusher. Tr. 29. It was not possible to run the crusher without operating the feeder; both 

were interconnected to work as one complete system. Tr. 29-30. 

The photograph in Government Exhibit S-6 depicted the side entrance to the impact 

crusher. Tr. 30; S-610. The impact crusher was totally enclosed inside the structure. Tr. 30. On 

the left hand side at the top of the crusher was an opening for the material to come off the feeder, 

slide down the chute and drop five or six feet down into the impact rolls. The side and feeder 

openings were the only openings into (and out of) the crusher. Tr. 30. 

Government Exhibit S-7 depicted the flow chart of how material came off the feeder, slid 

down the chute, dropped into the crusher, and was processed between two crusher rolls, the 

smaller pieces dropping between the rollers, going out the discharge, and ultimately going for 

further processing or storage. Tr. 30-1. 

The photograph in Government Exhibit S-8 depicted a photograph of the feeder hopper 

taken on August 13, 2014, the center of the photograph showing the discharge end of the 

conveyor feeder where material dropped into the chute and into the impact crusher. Tr. 31. 

Multiple stones could be seen at the very edge of the feeder. Tr. 31. The size of the stones 

observed in the feeder hopper could be estimated by comparing them to the two miners standing 

on the catwalk. Tr. 32. Bennett estimated the boulders’ sizes to be between 2 1⁄2 feet to 3 feet 

wide and 3 feet long with unknown thickness. Tr. 33. Given that limestone weighs roughly about 

150 lbs. per cubic foot, the stones probably weighed more than several hundred pounds. Tr. 33. 

 

 10 The identifying exhibits in this case will be referred to, in evidence proffered by the 

Secretary, as S-X, by the Respondent, R-X, and by the Court, C-X, respectively. 

38 FMSHRC Page 2264
The photograph in Government Exhibit S-9 depicted a view taken by Bennett from the 

walkway directly above the chute where the two miners in Government Exhibit S-8 were 

standing. Tr. 33. The photograph showed rocks piled, not just at the edge, but heaped up to a 

height of several feet above the edge. Tr. 33. Once any of these rocks fell, they would go down 

the sloped chute (which was 8 feet long) and drop 5 feet vertically into the impact crusher. Tr. 

34. 

Bennett opined that it would be “absolutely” unsafe to work inside the crusher while 

rocks were lodged in the hopper as depicted in the photographs. Tr. 34. Given that the stones 

could fall at any time, were several hundred pounds in weight, and would gain gravitational 

momentum coming down the chute, dropping vertically for five feet, an individual, even with a 

hard hat, couldn’t “take a couple of hundred pounds of rock on [his] head.” Tr. 34. 

After various discussions between Bennett and Respondent’s employees as to how to 

make the crusher safe for access, it was ultimately decided that an on-site excavator would be 

utilized. Tr. 36. The excavator would clean materials from the edge and place it in such a way so 

as to block the hopper, preventing any materials from inadvertently falling or being pushed 

downward. Tr. 36-7. Because the excavator could both clean the hopper out and block the chute, 

allowing for the safe removal of rocks and tools, the violation was terminated. Tr. 37-8. 

 The photograph in Government Exhibit S-10 depicted the actual throat of the impact 

crusher, showing the boulders that had trapped Mr. Carr still in place. Tr. 35. 

 The photograph in Government Exhibit S-11 depicted where Mr. Carr had been seated 

inside the crusher at the time of the accident. Tr. 37. 

 Bennett had learned from miners’ testimony that blockages would occur “several times a 

month.” Tr. 40. Depending upon where the “feed stock” came from, materials broke in different 

ways, sometimes not falling into the crusher rollers, but bridging instead.11 Tr. 40. According to 

miners’ and management statements, the instant blockage was the worst they had ever seen. Tr. 

40. There was a new operator on the day of the accident who failed to recognize that a blockage 

was going to happen until it was too late. Tr. 40. Routinely when blockages occur – “a couple of 

times a month” – one or two blasts could dislodge the obstructed materials before they could 

build up “so full.” Tr. 41. 

 On the date of the accident the crusher operator, after recognizing how severe the 

blockage had become, shut down the crusher and notified Carr of such. Carr, along with other 

employees of the Respondent, determined they should attempt a “mud cap”: putting an explosive 

charge on top of the rock to try to shatter it and shake the pile loose so that material could fall 

down onto the rollers and be crushed. Tr. 42. Before detonating the first shot, miners unlock the 

crusher and start it. This activates the crusher’s rollers. Tr. 43. The intention is that the initial 

blast will shake or break material up enough to unclog the blockage and that the crusher will 

clear itself. Tr. 43. 

 11 Bridging occurs when materials discharge into the crusher do not fall into the rollers, 

but accumulate on top of such. 

38 FMSHRC Page 2265
 However, the initial blast did not work; material fell and the rollers “jammed tight” with 

rock. Tr. 43. The miners realized that they would need to blast and dig their way down to the 

bottom, continuing to blast and then clear. Tr. 44. Miners went into the crusher, handpicked 

material, and handed it out the window. Tr. 44. 16 blasts were necessary to finally get through 

the buildup. Tr. 44. After a blast, miners would go into the crusher and hand pick materials to 

hand out. Tr. 44. Because the crusher was jammed, miners had to clear their way in, all the way 

through the crusher, clear the crusher rolls and then start up again. Tr. 44-5. 

 The rocks were being handed out through the 22” by 29” side door. A miner inside the 

crusher would hand out the rocks to miners on the deck and pass the rocks via a human chain. Tr. 

44. Bennett was unsure if miners went in every time after a blast, but several miners had related 

that they themselves had gone into the crusher multiple times. Tr. 44-5. One to three miners were 

inside the crusher at any given time. Tr. 45. 

 The trapping and injuring of Mr. Carr had taken place at around 10:00 A.M., after the 

miners had been blasting and cleaning all day long. Tr. 46. Carr announced that he would 

perform the final clean out. Tr. 46. 

 Carr advised Bennett that, once inside the crusher, he could hear rocks coming but did 

not have time to do anything to protect himself. The rocks knocked him down. Fortunately, they 

did not hit his head, but trapped, and pinned his legs. Tr. 46. 

 Alerted by Carr’s screams, miners jumped into the crusher to help him. Medical 

assistance was called for. Tr. 46. Pursuant to Carr’s instructions, miners obtained a “portapower,” a handheld hydraulics kit, and hoist, to free his legs from the two boulders that had come 

down. One of the boulders weighed approximately 400 pounds and the other weighed 

approximately 1,000 pounds. Tr. 47. 

 Other than looking upward through the chute, the miners did not conduct any post-blast 

examination. Tr. 48. Unless a miner enters the crusher at either end, he cannot see into the 

hopper. Tr. 48. A miner would need to walk around on the elevated walkway and look down the 

throat or go to the main dump station where the excavator had been eventually placed and look 

over into the hopper. Tr. 49. 

 Bennett visited Carr at the hospital on August 14, 2014. Carr was lucid, but sedated, 

having sustained 19 fractures in his lower legs. Tr. 50. Carr related that the crusher had been 

blasted 16 times. He heard the rocks tumbling, but did not have time to react. Tr. 51. 

 Based upon his observations and investigation, Bennett determined there were three 

violations. Tr. 52. 

 Citation No. 8801650 was issued based upon Respondent’s failure to ensure that the flow 

of materials had stopped at the crusher throat prior to entering the unit for cleaning. Tr. 52, see 

also Government Exhibit S-2. Before miners entered the crusher and were exposed to rock falls, 

they should have ensured that the boulders (depicted in Government Exhibit S-9) sitting on the 

edge of the feeder had not been loosened or dislodged by the blasts. Tr. 52. If the Respondent 

38 FMSHRC Page 2266
had cleaned the rock back ten feet with push rods so that any dislodged material near the edge 

could not have fallen down the chute, the citation would not have been issued. Tr. 53. 

Considering that the violation involved hundred-pound rocks falling five feet onto miners below, 

the violation was evaluated as reasonably likely to result in a fatal injury and graded to be 

Significant and Substantial (S&S) in nature. Tr. 53-4. Given that there were two other people 

inside the crusher in addition to Carr, the number of people affected was actually three and not 

one individual as initially designated. Tr. 53, see also Government Exhibit S-2 at Section 10 D. 

Because Carr, who was a member of management, performed the unsafe operation and had 

actual knowledge of such, the level of negligence was rated as high. Tr. 55. 

 The violative conduct was found to constitute an unwarrantable failure: the hazardous 

condition was extensive and existed on a recurring basis during the 16 blasts; a member of 

management, a licensed blaster, had knowledge of the unsafe operation and hazardous condition; 

miners had been exposed to possible fatal injuries multiple times; rocks could have come down 

after any one of the 16 blasts. Tr. 56-8. 

 Order No. 8801651 alleged a violation of §56.16002(a)(1) based upon the Respondent’s 

failure to ensure there was a mechanical means or device in place to protect miners below in the 

event that the lock was pulled out and the feeder started. Tr. 58; see also Government Exhibit S3. Bennett testified that locking and tagging out the controller would have decreased the 

likelihood of restarting the feeder – although it would not alone have prevented additional 

material from falling. Tr. 58-9. The violation actually occurred in the hopper; anything that came 

out of the hopper must go through the crusher. Tr. 58. Respondent should have installed a gate or 

used a bucket to block materials from falling into the crusher so that no miner would be exposed 

to the hazard. Tr. 59. Even if the hopper had been cleaned back so as not to violate section 

56.16002(c), there would still have been a violation of section 56.16002(a)(1). Someone could 

still go in and start up the crusher operator causing movement of material still present in the 

hopper. Tr. 60. The mechanical device would have to be placed somewhere between the material 

that was in the hopper and where it would discharge from the hopper so that nobody could be 

exposed to a falling rock hazard. Tr. 60. 

 The section 56.16002(a)(1) violation was assessed similar to the section 56.16002(c) 

violation for the same reasons described previously. Tr. 61. The same miners and management 

personnel were involved during the same time period, engaging in the same unsafe activities. 

The violations arose out of the same event. 

 Bennett opined that the cleaning out of crushers constituted “normal operations” within 

the framework of section 56.16002(a)(1). Tr. 61-2. According to Respondent’s history such rock 

jamming conditions as occurred in the instant case had occurred “numerous times” before. Tr. 

62. The fact that the Respondent may not have been cited previously would not affect Bennett’s 

judgment: there may have been different circumstances involving past crusher jams including the 

number of blasts and methods of detonation. Tr. 62. 

 Order No. 8801652 was issued based upon the Respondent’s failure to conduct “postblasting” examinations after each of the secondary blasts inside the crusher in violation of 

section 56.6306(g). . Tr. 63, see also Government Exhibit S-4. Somebody down in the crusher 

38 FMSHRC Page 2267
could not observe what was going on in the hopper. Tr. 63. According to their own statements, 

the miners and victim had not gone up to the feeder to assess whether there had been any change 

in conditions due to the blasts. Tr. 63-4. During a post-blast examination, Respondent should 

have gone to the top of the crusher to ensure that material hadn’t become loose and that the roof 

wasn’t going to fall on those entering the crusher. Tr. 64. After a blast, one would not know what 

might have been changed, damaged, repositioned, or what may have been structurally 

“sacrificed.” Tr. 64. 

 Although there is no set check list for post blast examinations, an individual who has 

passed the blaster’s examination and who has the knowledge to assess the surroundings must go 

out and check the post-blast surroundings. Tr. 63-4. 

 This violation was also assessed as reasonably likely to be fatal in nature for the same 

reasons discussed previously.12 Tr. 66. Given the high degree of care imposed upon a person 

directing the workforce, who was both a superintendent and licensed blaster, and the high degree 

of risk to miners who were repeatedly exposed to hazards during the three and one half hour 

blast time period, high negligence and unwarrantable failure were also found. Tr. 66-7. 

 On cross-examination, Bennett confirmed that when the feeder is shut off, the supply of 

materials to the crusher is shut off. Tr. 70. When he had arrived at the mine site, the system had 

been locked out. Tr. 70. 

 Carr had advised Bennett that his post blast examination consisted of looking up the 

chute – which Bennett found to be inadequate. Tr. 71. 

 Nobody had suggested to Carr that, of the blockages which occurred “every month or 

two,” any had been like this instant blockage. Tr. 71. Bennett denied that Carr had stated that the 

crusher had filled with material blockage only three or four times in the past. Tr. 71. 

 The violation of 30 C.F.R. §56.16002(a)(1) had become apparent to Bennett after 

discussions with the District office. Tr. 73. Respondent could have violated section 

56.16002(a)(1) without having violated section 56.16002(c). One citation involved material still 

laying on the top of the feeder at the edge where the material could free fall at any time; the other 

citation required that something be done to ensure that, if the feeder were cleaned half way back, 

somebody could not start the crusher and run material through the rear. Tr. 74-5. 

 

 12 Bennett again erred in finding one individual affected rather than three individuals 

being affected. 

38 FMSHRC Page 2268
Robert Carr 

At the hearing Robert Carr appeared on behalf of the Respondent.13 On the date of the 

accident, Carr had been called by the feeder operator and told that the crusher had been “blocked 

all the way up.” Tr. 78. Carr characterized the blockage as not being “normal,” or “routine,” 

stating that it had happened only 3 or 4 times since he has become quarry superintendent. Tr. 78. 

 Carr disagreed with the inspector’s assertion that blockages happened a couple of times a 

month. While one single rock might go across the “impellers” or get jammed inside, blockages 

would not fill up all the way as here. Tr. 79. When such more routine blockages occurred where 

a rock would bridge the impeller, Carr would customarily shut everything down, shut the 

impellers and feeder off, lock them out, open the crusher door, reach in, set the blast, get 

everybody out of the way, start everything back up and blast the rock. Tr. 79. Generally, this 

would clear the blockage. Tr. 79. 

 On the date in question, Carr went to the site and saw that stone was blocked all the way 

up the chute. Tr. 79. Everything was locked out.14 The levers in the electric rooms were 

padlocked so that nobody could turn them on. Tr. 79-80. Both the feeder and crusher were 

locked out. Carr went back to the crusher and started to blast the bigger stones so miners could 

reach in and start a chain to empty the crusher out. Tr. 80. Prior to starting to remove rock, Carr 

concluded a full inspection of the area, including looking at the hopper from above. Tr. 81. 

During the first six to eight blasts, nobody would climb into the crusher because the stone was 

still flowing slowly down the chute. Tr. 81. Miners would just reach in and take all the stones out 

that they could handle. Tr. 81. After a blast, miners would wait “a couple of minutes” before 

entering the crusher to allow gas from the blast(s) to ventilate.15 Tr. 82. 

Before miners entered the crusher after a blast, someone would look up the chute to 

ensure it was empty: one could look through the chute to the “throat of the hopper” to see if there 

were any stones likely to fall into the crusher. Tr. 83. This process was repeated 16 times. Tr. 83. 

 After the 16th blast, the door of the crusher was opened to allow gases to escape. Carr 

looked inside the feeder and then looked upward through the chute. Tr. 84. Carr reported that “it 

seemed like nothing had moved.”Tr. 84. Carr also made an inspection from above, looking 

through the feeder before he entered after the 16th blast.16 Tr. 84. 

 13 Carr had been employed by the Respondent for 31 years. Tr. 76. He started out a 

laborer and in 1999 became foreman of Chalfont Quarry. Tr. 76. He became a licensed blaster 

after taking a three day course through the Commonwealth of Pennsylvania and having passed 

testing. (Tr. 77.) 

14 The feeder could run even if the motors go off. The feeder and two impeller motors 

were locked out. Tr. 79. 

15 Carr later amended the waiting period to 3 to 4 minutes. Tr. 82. 

16 Carr testified that he had gone above to have a Gatorade. Tr. 84. 

38 FMSHRC Page 2269
 Because miners had been working all day removing rocks from the crusher, Carr 

volunteered to go into the crusher to remove the last rock. Tr. 84. Two rocks were remaining, 

which Carr handed out. He then requested poles to clean out between the walls, as well as the 

impellers themselves, which were jammed with small material. Tr. 84. 

Carr heard something in the feeder “lurch forward,” and he tried to jump out of the way. 

Tr. 85. A rock hit the chute, coming down and catching his left leg. Tr. 85. Another rock came 

down and crushed his right leg. Tr. 85. 

Carr instructed his miners to call 9-1-1. First responders and Mr. Furey arrived shortly 

thereafter. Tr. 85. After assessing the situation, Carr sent for a “porta-power” and “come-alongs” 

with slings. The rocks were removed and first responders transported Carr to the hospital. Tr. 86. 

Carr denied that he had thought it unsafe to enter the crusher – either for himself or for 

other employees. Tr. 86. 

There was a previous blockage during which an MSHA inspector was on site and that 

inspector did question the safety of the procedures used to remove stone from the crusher. Tr. 85. 

When Carr looked down the hopper before going into the crusher after 16th blast, the 

rocks did not appear to have been as close to the edge as they are depicted in Government 

Exhibits S-8 and S-9. Tr. 87. 

Although the excavator used to block the feeder had been on site, a narrower bucket had 

to be brought in the next day to fit into the feeder. Tr. 87-8. 

Carr had returned to his foreman position at Chalfont Quarry last fall. Tr. 88. 

On cross examination, Carr testified there were blockages in the past, but only three or 

four that had been from the impellors to the feeder itself. Tr. 88. It was not an uncommon 

occurrence for rocks not to fit into the mouth of the crusher or to bridge across the impellors. Tr. 

89. Since the accident, rocks had bridged across probably two or three times. Tr. 89. Miners are 

very routinely sent into the crusher to weld. Tr. 89. It is necessary to ensure the hopper and 

crusher are empty before the welding work was performed. Tr. 90. 

The crusher chamber was approximately four feet across. Tr. 90. 

Carr testified that he had checked the hopper from above after each blast because he had 

to go up to the trailer to secure dynamite. Tr. 93. He was, however, shown a statement from a 

prior deposition in which he reportedly stated that he “didn’t go up every time . . . but every 

other time because we (he) had to go to the trailer to get more dynamite.” Tr. 93, emphasis mine. 

After the last blast, Carr did not go up for more dynamite but he went to get a Gatorade 

while the crusher was ventilating. Tr. 95. 

 

38 FMSHRC Page 2270
James Furey 

 At the hearing James Furey appeared on behalf of the Respondent. Furey had been 

employed by Eureka Stone Quarry for 16 years and was its environmental safety director. Tr. 95-

6. 

On the day of the accident, Furey was called by a labor foreman who indicated that Carr 

had an accident in the crusher. Tr. 96. Furey – who was also a volunteer firefighter – 

immediately contacted MSHA and was advised that a (j) order would be issued. Tr. 97. When 

Furey arrived at the site, Carr was still trapped. Tr. 98. Carr’s rescue instructions were in the 

process of being carried out. Tr. 98. Once Carr was evacuated, the site was secured pursuant to 

MSHA directives. Tr. 99. 

 Furey did not consider the site as depicted in Government Exhibit S-9 to be safe to work 

underneath. Tr. 101. 

FINDINGS OF FACT AND CONCLUSIONS OF LAW 

Citation No. 8801650 

I. Contentions of the Parties 

 Given that miners had entered the crusher chamber before the discharge of materials from 

the hopper had completely ceased and given that two rocks actually fell onto Carr on August 12, 

2014, the Secretary contends that this standard had been clearly violated. Sec’y’s Reply Br., at 3. 

 Respondent, however, maintains that the feeder and crusher had been locked out and that, 

“although two rocks subsequently fell into the crusher . . . supply and discharge had ceased.” 

Resp’t’s Br., at 9. Further, the Respondent maintains that because an MSHA inspector had 

observed “the very same conduct previously and did not state it was unsafe,” no citations for a 

violation should have been issued. Id. Respondent finally argues that no Chevron II analysis is 

necessary, given the clear statutory language. Resp’t’s Br., at 9, n. 1. 

II. The Secretary has carried his burden of proof by the preponderance of the evidence 

that the Respondent violated 30 C.F.R. §56.16002(c) 

30 C.F.R. §56.16002 provides as follows: 

(c) Where persons are required to enter any facility listed in this standard for 

maintenance or inspection purposes, ladders, platforms, or staging shall be 

provided. No person shall enter the facility until the supply and discharge of 

materials have ceased and the supply and discharge equipment is locked out. 

Persons entering the facility shall wear a safety belt or harness equipped with a 

lifeline suitably fastened. A second person, similarly equipped, shall be stationed 

 

38 FMSHRC Page 2271
near where the lifeline is fastened and shall constantly adjust it or keep it tight as 

needed, with minimum slack. 

30 C.F.R. §56.16002(c), emphasis added. 

 This Court is constrained to reject the Respondent’s arguments on multiple grounds. 

 The plain language of the regulation provides that “no person shall enter the facility until 

the supply and discharge of materials have ceased.” 30 C.F.R. §56.16002(c). It is undisputed that 

moments after Carr entered the crusher chamber, large rocks came tumbling down the hopper 

chute, almost killing him. Obviously, the discharge of materials into the crusher had not ceased. 

 

 In ascertaining the plain meaning of a statute, the Court must look at the particular 

statutory language at issue as well as the language and design of the statute as a whole.17 K Mart 

Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988). 

 The Administrative Law Judge finds that the “specific clear and unambiguous language” 

of §56.16002(c) prohibits entry into a ‘facility’ (crusher chamber) until the supply and discharge 

of ‘materials’ (rock) has ceased. Although the crushing apparatus and feed conveyor had been 

locked and had been tagged out of service at the main control panel, there was indisputably an 

ongoing supply and discharge of materials in the crusher chamber as starkly evidenced by the 

fall of boulders into the chamber. 

 Neither party has cited specific Commission case precedent as to the proper interpretation 

of §56.16002(c). Further, as noted by the Respondent, neither party initially contended that a 

Chevron II analysis would be necessary in the case sub judice. Resp’t’s Br., at 9, n. 1. 

 

 17 The Commission has observed in the past that “[i]t is well established that regulations 

should be read as a whole, giving comprehensive, harmonious meaning to all provisions.” 

Morton International, Inc., Morton Salt, 18 FMSHRC 533 at 536 (Apr. 1996). In Morton Salt the 

Commission quoted approvingly the Supreme Court’s language in Smith v. United States, 508 

U.S. 223, that “[j]ust as a single word cannot be read in isolation, nor can a single provision of a 

statute.’” Morton Salt, 18 FMSHRC 533 at 537, citing Smith v. United States, 508 U.S. 223, 233 

(1993). 

The Commission has consistently held that a mandatory safety standard should be 

interpreted with an eye toward the plain meaning of the standard, “unless such a meaning would 

lead to absurd results.” Wolf Run Mining Co., 32 FMSHRC 1669, at 1679 (Dec. 2010.); see also

Rock of Ages Corp., 20 FMSHRC 106, 122 (Feb. 1998), aff’d, 170 F.3d 148, 161 (2d Cir. 1999). 

38 FMSHRC Page 2272
To the extent that the regulatory language is deemed to be ambiguous, this Court finds 

that the Secretary’s interpretation of such is reasonable and should be afforded Auer deference.18

Sec’y’s Reply Br., at 2. 

The Administrate Law Judge also must observe that throughout its brief the Respondent 

appears to misapprehend the strict liability nature of the regulations.19 When a near fatal accident 

as within takes place, the Mine Act imposes strict liability on mine operators regardless of 

whether they acted in good faith or had actual knowledge of the hazards.20 This Court has no 

18 This Court notes the Supreme Court ruling in Christen v. Harris County, 529 U.S. 576, 

588 (2000) in which the Court refused to give deference to an agency’s interpretation of an 

“unambiguous regulation,” observing that to defer in such a case would allow the agency to 

“create de facto a new regulation.” Id. In this case, however, it is the Respondent who is 

attempting to create de facto a new regulatory meaning for the unambiguous phrase “until . . . 

discharge of materials has ceased.” The self-serving Humpty-Dumpty nature of such 

construction is apparent: 

“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it 

means just what I choose it to mean—neither more nor less.” “The question is,” 

said Alice, “whether you can make words mean so many different things.” “The 

question is,” said Humpty Dumpty, “which is to be master – that’s all.” 

Lewis Carroll, Through the Looking Glass, 205 (1872). 

19 See Respondent’s argument: “It’s easy for the Secretary to say after the fact that 

someone was injured, therefore, there must have been a violation.” Resp’t’s Br., at 9. 

20 See Stillwater Mining Co v. FMSHRC, 142 F.3d 1179, 1184 (9th Cir. 1998): 

“Knowledge and culpability, however, are not relevant to the determination of whether there was 

a violation.” 

To illustrate this point another way, consider the case of Musser Engineering, Inc., 

concerning the failure of the operator of the Quecreek No. 1 Mine to discover the precise layout 

of the nearby abandoned Harrison No. 2 Mine – a mine that the operator had no real opportunity 

to survey. Musser Engineering, Inc., and PBS Coals, Inc., 32 FMSHRC 1257, 1259 (Oct. 2010). 

The Harrison No.2 Mine closed in 1963 and flooded sometime after it was sealed, thus 

rendering the mine too hazardous for survey. Id. The Pennsylvania Department of Environmental 

Protection had misplaced the final mine map for Harrison No. 2, making it nigh-impossible for 

the operator to know with any certainty the architecture of the abandoned mine. Id. An 

exhaustive multi-year search by the operator required visits to numerous state and federal offices 

before an undated Department of the Interior (DOI) map was discovered in Greentree, 

Pennsylvania. Id., at 1260. Ultimately Consol Energy, Inc., provided the current operator with an 

undated and uncertified map that was deemed more recent that the DOI map. Id. 

(continued...) 

38 FMSHRC Page 2273
doubt that Carr had a good faith belief that the discharge of materials had ceased before he 

entered the crusher chamber. 

However, §56.16002(c) does not provide that a miner may enter a facility if he has a 

good faith or reasonable belief that the supply and discharge of material has ceased or no actual 

or constructive knowledge of an existent hazard involving the supply and discharge of materials. 

It simply prohibits the entry into a facility until the supply and discharge of materials has ceased 

– a safety standard that Carr violated to his clear detriment.

The Administrative Law Judge is also compelled to reject another supporting argument 

advanced by the Respondent in its brief: “given the fact that an MSHA inspector watched the 

very same conduct and did not state that it was unsafe or that it was a violation of any regulation 

and did not issue any citations for violations of the mining regulations, a citation should not have 

been issued this time.” Resp’t’s Br., at 9. This argument ignores clear Commission precedent that 

MSHA’s lack of prior enforcement of safety standards at a mine does not demonstrate an 

absence of violations or hazardous conditions. See Austin Power Co., 29 FMSHRC 909, 920 

20 (...continued) 

Despite this wealth of effort, miners at the Quecreek No. 1 Mine accidentally broke into 

the flooded ruins of the Harrison No. 2 Mine on July 24, 2002. Id., at 1258. Nine endured a 

harrowing escape while another nine trapped below ground wrote letters to loved ones and 

prepared to drown as the water rose around them. Id, at 1259. Eventually the nine miners trapped 

below were rescued and survived. Id.

In judging the operator’s conduct in that case, the Commission reasoned: 

In any event, PBS's argument that the citation in this case required it to do 

the ‘impossible’ because the precise location of the Harrison No. 2 Mine 

workings was unknown ignores the precept that ‘operators may be held liable for 

violations of mandatory safety [standards] under the Mine Act even if they did not 

have knowledge of facts giving rise to the violation.’ S. Br. at 20, citing Rock of 

Ages Corp. v. Sec'y of Labor, 170 F.3d 148, 156 (2nd Cir. 1999); see 

also Stillwater Mining Co. v. FMSHRC, 142 F.3d 1179, 1183-84 (9th Cir. 1998). 

As noted by the Second Circuit, this is consistent with the purpose of the Mine 

Act because it encourages ‘greater vigilance’ and avoids creating an incentive for 

operators ‘to avoid gaining knowledge.’ Rock of Ages, 170 F.3d at 155. 

Musser Engineering, Inc., and PBS Coals, Inc., 32 FMSHRC at 1272 (Oct. 2010). 

38 FMSHRC Page 2274
(Nov. 2007) (a past, inconsistent enforcement pattern by MSHA inspectors does not prevent 

MSHA from proceeding to apply the correct interpretation of a standard.)21

In assessing the Secretary’s photographic evidence, Respondent argues that there may 

have been post-accident shifting of rocks in the crusher prior to the Secretary’s photographs 

being taken and that therefore the Secretary’s photographs “are not reliable evidence of the 

situation as it existed at the time of the accident.” Resp’t’s Reply Br., at 3, see also

Government’s Exhibit S-9. 

This Court disagrees. 

The Secretary need only prove the existence of a fact by the preponderance of the 

evidence. There may have been some post-accident shifting of materials. However, this Court is 

persuaded that it was “more likely than not” that the accident site pre- and post-accident was 

essentially the same as depicted in the Secretary’s photographs. In reaching this finding the 

Administrative Law Judge again observes that large boulders, weighing hundreds of pounds, fell 

upon Carr.22 These rocks did not magically move. Either they were perilously close to the chute 

opening, as shown in the Secretary’s photographs, or lodged inside the chute (which would 

contradict Carr’s testimony as to what he observed looking upward from the crusher chamber). 

Given the total circumstances and plain meaning of the statutory language, §56.16002(c) 

was clearly violated. 

III. The violation of 30 C.F.R. § 56.16002(c) was reasonably likely to result in fatal 

injury and was significant and substantial in nature 

A violation is significant and substantial (S&S) if “based upon the particular facts 

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

result in injury or illness of a reasonably serious nature.” Cement Div., National Gypsum Co., 3 

FMSHRC 822, 825 (April 1981). Given that Mr. Carr was nearly killed by large rocks falling 

downward through a chute, one need not go through an exhaustive Mathies analysis to determine 

that the instant violation was S&S in nature. 

 21 When he was a young and callow attorney, the undersigned had a case which illustrates 

the meritlessness of the Respondent’s argument as to the issue of violation. My client had been 

cited by a code enforcement officer for driving his overweight truck over a municipal bridge. An 

even larger truck had passed over the bridge just before my client’s truck, but had not been cited. 

I passionately argued how “unfair” it was for my client to have been cited and not the previous 

offender. The magistrate crankily but properly pointed out: “Counsel, just what does that have to 

do with your case? The code enforcement officer may have been daydreaming earlier. The issue 

is whether or not your client’s truck exceeded the weight limit.” 

22 This Court heard testimony that Carr suffered 19 individual fractures in his lower legs 

following the accident. Tr. 50. 

38 FMSHRC Page 2275
A violation is significant and substantial (S&S) if “based upon the particular facts 

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

result in injury or illness of a reasonably serious nature.” Cement Div., National Gypsum Co., 3 

FMSHRC 822, 825 (April 1981). Though the occurrence or non-occurrence of accidents or 

injuries is not dispositive of the S&S analysis, it should be noted that in this instance Carr was 

nearly killed by large rocks falling downward through a chute. 

The first element of the Mathies test has been met, as there was a clear violation of 30 

C.F.R. §56.16002(c). Second, as was persuasively argued by the Secretary, this violation 

contributed to a discrete safety hazard: the danger that unimpeded materials would fall from the 

hopper onto miners working in the crusher below. See also Sec’y’s Br., 15-6, 20-1, as to hazards 

presented by the Respondent’s violations of §56.16002(a)(1) and §56.16002(c). 

Even if no accident had in fact taken place, the surrounding circumstances almost 

guaranteed that an injury would inevitably occur. One need not engage in sophisticated Pascalian 

risk analysis to determine such: there was a lack of a mechanical device or means to prevent the 

fall of materials; there was a large volume of materials, including huge rocks in the hopper; there 

were numerous blasts and vibrations from quarry operations and quarry traffic that could 

dislodge materials in the hopper and chute; there was a crusher which was designed so as to 

enable gravitational forces to pull materials downward from the hopper through the chute into 

the crusher chamber; there was a lack of speedy or safe egress for exposed miners attempting to 

flee materials that might fall into the enclosed crusher chamber. Arguably the grim reality of 

Carr’s accident itself is an example of the reasonable likelihood that the hazard contributed to 

would result in an injury, satisfying Mathies’ third element. 

Materials, including large boulders weighing hundreds of pounds, falling in on a miner, 

inarguably create a reasonable likelihood of serious, if not fatal, injury. And the terrible injuries 

sustained by Mr. Carr, while not establishing Mathies’ fourth element in and of themselves, 

support the Court’s finding that there was a reasonable likelihood that the injury in question 

would be of a reasonably serious nature. 

Order No. 8801651 

I. Contentions of the Parties 

The Respondent does not dispute that there was not a mechanical device or other 

effective means in place on August 12, 2014. Rather, Respondent contends that at the time of the 

accident, the quarry was not engaged in “normal operations.” Resp’t’s Br. at 10, Resp’t’s Reply 

Br., at 4-6. Inter alia, the Respondent argues that the crusher had been taken out of operation 

when the impeller jammed. Id. Because the crusher and feeder were locked out and could not be 

restarted, neither could be “put in normal operation.” Id. at 10-11. The Respondent further argues 

that the blockage which filled up the crusher on August 12, 2014 was not routine or “normal.” Id.

at 11. Unlike blockages that could be cleared with one or two blasts without requiring miners to 

enter the crusher chamber to clear it before resuming operations, the blockage at issue 

necessitated 16 blasts, required miners to enter the crusher chamber, and was in fact the worst 

blockage in the quarry’s history. Resp’t’s Br. at 11. 

38 FMSHRC Page 2276
 The Secretary contends that the miners on August 12, 2014 were in fact engaged in 

“normal operations” when they entered the crusher chamber to clean and clear the severe rock 

jam. Sec’y’s Br. 14. Further, the Secretary contends that the term “normal operations” is not 

ambiguous. Sec’y’s Reply Br., 5. The fact that the blockage was far worse than usual did not 

remove the acts of cleaning and clearing from the rubric of “normal operations.” 

II. The Secretary has carried his burden of proof by the preponderance of the evidence 

that the Respondent violated 30 C.F.R. §56.16002(a)(1) 

§56.16002 provides, in pertinent part, the following: 

(a) Bins, hoppers, silos, tanks, and surge piles, where loose 

unconsolidated materials are stored, handled or transferred shall be— 

(1) Equipped with mechanical devices or other effective means of 

handling materials so that during normal operations persons are not 

required to enter or work where they are exposed to entrapment by the 

caving or sliding of materials; 

30 C.F.R. §56.16002(a)(1). 

When Carr and other miners entered the crusher chamber on August 12, 2014, they were 

engaged in “normal operations” of cleaning and clearing a blockage. The phrase “normal 

operations” does not appear to be explicitly defined in the Act or regulations. As discussed infra, 

this Court finds that the plain meaning of “normal operations” would encompass the 

Respondent’s violative conduct. To the extent that this phrase is ambiguous, Auer deference 

should be given to the Secretary’s interpretation of §56.16002(a)(1) so that the operator’s 

cleaning and clearing of the occasional blockages, including the instant blockage, would be 

considered part of “normal operations.” 23 

The ALJ observes that the Respondent has muddled the within statutory interpretation 

controversy by conflating and confusing the essential issue of whether the clearing of blockages

is part of “normal” operations at the quarry with the questions of whether blockages are 

“normal” occurrences at the quarry, and whether the instant blockage was “abnormal” in 

severity. 

The Respondent has offered no case law that supports its contentions. The Secretary, 

however, has cited pertinent precedent in support of his position. Sec’y’s Br., at 14. In Secretary 

v. LaFarge Construction Materials, 20 FMSHRC 1140, 1144 (1998) the Commission held that 

the mine operator’s failure to remove loose materials before allowing a miner to enter a bin 

violated §56.16002(a)(1), that the violation was S&S and that the violation was the result of an 

 23 See Auer v. Robinson, 519 U.S. 452 (1997) wherein the Supreme Court reaffirmed that

deference should be afforded to an agency’s interpretation of ambiguous regulatory language 

pursuant to its earlier holding in Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945). 

38 FMSHRC Page 2277
unwarrantable failure. In LaFarge, a miner climbed inside a “surge bin” to weld a metal patch. 

During his repair, rocks began falling down on the miner, entrapping him in the bin. The 

Commission specifically rejected the operator’s argument that the standard was inapplicable 

because the acts of patching a hole in the surge bin did not constitute “normal operations.” 

LaFarge, 20 FMSHRC at 1144, see also W.S. Frey v. Secretary 57 F.3d 1068, 1995 WL 356494 

at *3 (4th Cir. 1995) (approving the Commission’s finding that clearing blockages is part of 

normal operations). 

The Secretary argues that if the provision in question is ambiguous, he is entitled to 

interpretive deference under Auer. And the Secretary observes, “[i]t is well established that a 

standard must be interpreted in a manner that furthers the purposes of the standard and the 

underlying statute, not in a manner that thwarts those purposes. Secretary of Labor v. Western 

Fuels-Utah, Inc., 900 F.2d 318, 320 (D.C. Cir. 1990).” Sec’y’s Reply Br., at 2, further citations 

omitted. 

 While there is some controversy in the record as to how often blockages occurred, it is 

evident that blockages did occur throughout the work year.24 Certainly it was reasonably 

foreseeable that, during the course of business through the year, miners would be required to 

clean out blockages. 

Inter alia, the Respondent argues that because the blockage in question was 

uncommonly severe in nature, its clearing should not have been considered “normal operations.” 

This argument is patently specious. The statutory purpose of §56.16002(a)(1) is to protect miners 

in situations – whether common or not – where “unconsolidated materials” might cave in or slide 

upon them.25 Even conceding that the blockage at issue was the worst in the quarry’s history, the 

cleaning and clearing of blockages was part of the quarry’s “normal operations” during a 

business year. The meaning of this term is plainly unambiguous. Removing blasted rock from a 

crusher is within the ambit of “normal operations.” 

 The Respondent’s arguments are painfully reminiscent of the sophistic defenses raised by 

responsible parties at the time of the Katrina disaster.26 Government authorities were charged 

with maintaining levees in New Orleans in a safe condition as part of “normal [flood control] 

 24 See, e.g., Tr. 40, 41, 78-9, 88. 

25 Indeed, the primary purpose of the Mine Act is to protect miners from unsafe 

conditions and practices which – hopefully due to the enlightened passage of health and safety 

regulations and vigorous enforcement of such – have become an increasingly uncommon 

phenomenon. 

26 To further extend this analogy, hurricanes, like blockages do not have a set schedule. 

38 FMSHRC Page 2278
operations.” Because Katrina was one of the worst hurricanes in the City’s history, authorities 

shamefully claimed they bore no responsibility for the levee’s failures.27 

 To accept the Respondent’s arguments would lead to the absurd result of allowing miners 

to be placed in harm’s way every time there is a blockage and an operator fails to have a 

mechanical device or effective means to prevent entrapment. This the Undersigned will not do. 

 

 Therefore – notwithstanding the infrequent and irregular nature of blockages and the 

uncommon severity of the blockage in question – the Respondent plainly violated 

§56.16002(a)(1). 

III. The violation of 30 C.F.R. §56.16002(a)(1) was significant and substantial in nature, 

reasonably likely to result in a fatal injury, was the result of high negligence on the 

part of the operator and was the result of an unwarrantable failure. 

As noted in Consolidation Coal Co., supra, the “likelihood of injury” is the key 

consideration in determining whether a violation is S&S. Addressing the above Mathies criteria 

seriatim, there was a clear violation of the mandatory safety standard. Mathies’s second step is 

also patently met: there was a discrete safety hazard contributed to by the operator’s violation of 

§56.16002(a)(1). “Loose, unconsolidated material” could fall from the hopper onto a miner 

entering the crusher chamber with no mechanical device or other effective means to prevent 

such. The ALJ notes that the Commission has held that the Secretary “need not prove a 

reasonable likelihood that the violation itself will cause injury” and that “the absence of an injury 

producing-event when a cited practice has occurred does not preclude a determination of S&S.” 

Cumberland Coal Resources, LP, 33 FMSHRC 2357, 2365 (Oct. 2011). The fact that an accident 

occurred in this case does not therefore prove that an accident was made more likely. However, 

given the within accident, the existence of a reasonable likelihood that the hazard contributed to 

would result in injury – Mathies’s third step – is supported by the actual events in this case. Two 

large dislodged boulders in fact fell upon Carr. The actual injuries sustained by Carr, including 

19 fractures, may establish that the fourth step of Mathies is satisfied on their own, but this Court 

finds that an injury contemplated in this case is likely to be reasonably serious. That the injuries 

could have easily been fatal in nature is beyond dispute: only good fortune saved Carr from 

having his skull crushed in. 

 

IV. The Respondent was highly negligent in its violation of §56.16002(a)(1). 

The Respondent’s conduct in this case rose to the aggravated level of high negligence 

when it violated §56.16002(a)(1). The operator knew or should have known that blasting rocks in 

the hopper/crusher might loosen dislodged materials which, if unimpeded, could slide on or cave 

in on miners who entered the chamber below. Only after Carr was nearly killed did the mine 

operator put an excavator and bucket in place to ensure that rocks dislodged by blasting would 

 27 This Court is reminded of the old theologically bankrupt “Act of God” defenses raised 

by mine operators and coal company insurers any time there was a catastrophe caused by blatant 

safety violations. 

38 FMSHRC Page 2279
not fall down upon miners entering the crusher. §100.3(d) expressly provides that a mine 

operator is held to a high standard of care: he must be alert for conditions and practices that 

might affect miners’ safety and must “take steps necessary” to prevent hazardous conditions. 

Using the formulaic approach utilized by MSHA in assessing the degree of negligence 

displayed by the Respondent, the Administrative Law Judge can find no mitigating circumstance 

to vitiate a finding of high negligence.28

In also considering “the totality of the circumstances holistically” under Brody, this Court 

finds that the Respondent violated the high statutory standard of care demanded. 

 

V. The Respondent’s failure to have a mechanical device in place or other effective 

means of handling materials was unwarrantable in nature. 

This Court also finds the Respondent’s failure to have a mechanical device in place or 

other effective means of handling materials was unwarrantable in nature. Considering the totality 

of the circumstances and specifically taking into account the Manalapan factors cited supra, the 

Respondent’s failure to comply with §56.16002(a)(1) was aggravated conduct constituting an 

unwarrantable failure. 

A. Length of time 

The violation of not having a mechanical device in place or other effective means of 

handling materials had existed at least throughout the four hour period during which 16 blasts 

were shot. Given the inherent dangers associated with blasting, including the obvious danger 

posed by possibly dislodged large rocks, the violation lasted for clearly an unreasonable length 

of time. See also the Secretary’s arguments in Sec’y’s Br., at 16-7, with which this Court 

concurs. 

B. Extent of violation 

The violation extended throughout the hopper/crusher which operated as one unit. As 

noted by the Secretary, “the hazardous condition that resulted from the lack of a device was 

large, dangerous, and extensive.” Sec’y’s Br., at 18. 

C. The violation was obvious 

It is undisputed that a mechanical device or other effective means of handling materials 

was not in place when the boulders fell upon Carr. Without engaging in flagellum equus mortus, 

this Court finds that the obviousness of the violation was and should have been readily apparent. 

 

 28 30 C.F.R. §100.3(d), Table X, provides there is high negligence when the operator 

“knew or should have known of the violative condition or practice, and there are no mitigating 

circumstances.” 

38 FMSHRC Page 2280
D. The operator knew or should have known of the existence of the violation 

Regardless of an MSHA inspector’s alleged prior failure, to have cited the Respondent in 

a similar situation, this Court agrees with the Secretary’s contentions that Respondent and its 

agent had notice of the hazard. Sec’y’s Br., at 18. As pointed out by the Secretary, the 

Respondent’s own safety director, Furey, who arrived on the scene after the accident, admitted 

that miners should not have worked in such an unsafe environment. See also Sec’y’s Br., at 18. 

One need not be an expert in Newtonian or Einsteinian gravitational physics to recognize 

that large objects, possibly dislodged by explosives, will, unless somehow impeded, fall 

downward. A reasonably prudent person familiar with the mining industry and the protective 

purpose of the standard would have recognized the safety hazard posed in entering a crusher 

chamber post-blasting with no effective means in place to prevent dislodged materials from 

falling onto miners below. 

E. The operator’s efforts in abating the violative condition 

The operator eventually abated the violative condition after the accident by putting an 

excavator with proper sized bucket in place. However, as the Secretary properly points out, the 

Respondent had made no attempt to comply with the standard during the entire pre-accident time 

period: miners worked repeatedly underneath an unimpeded load in the hopper without any 

device in place to protect them from rocks caving or sliding upon them. See also Sec’y’s Br., at 

18-9. 

F. Whether the operator had been placed on notice that greater effects were 

necessary for compliance 

As discussed infra the fact that MSHA did not enforce this safety standard in the past 

does not vitiate a finding of violation. Notwithstanding such, even if technically the operator had 

not been placed upon notice that greater efforts were necessary, this factor, standing alone, does 

not lessen the aggravated nature of the Respondent’s conduct under the total circumstances. 

G. The violation posed a high degree of danger 

As noted supra, the Commission has specifically held that the factor of dangerousness, 

by itself, may warrant a finding of unwarrantable failure. This Court can envision few situations 

posing a higher degree of danger to miners than the instant violation: boulders looming 

overhead, possibly dislodged by dynamiting, and no device or means to prevent their sudden fall 

onto miners below. Based upon this factor alone, this Court could be persuaded that a finding of 

unwarrantable failure is justified. 

Citations No. 8801650 and Order No. 8801651 Are Not Duplicative

This Court essentially concurs with the arguments of the Secretary that Citation No. 

8801650 and Order No. 8801651 are not duplicative. Sec’y’s Br., at 22-3. 

38 FMSHRC Page 2281
The Commission has recently reviewed the test for determining whether citations or 

orders are duplicative: 

The Commission has held that citations or orders are not duplicative as long as the 

standards allegedly violated impose separate and distinct duties. Western FuelsUtah, Inc., 19 FMSHRC 994, 1003, (June 1997); see also Sumpter v. Sec’y of 

Labor, 763 F.3d 1292, 1301 (11th Cir. 2014); Spartan Mining Co., 30 FMSHRC 

699, 716 (Aug. 2008); Cyprus Tonopah Mining Corp., 15 FMSHRC 367, 378 

(Mar. 1993) (violations are not duplicative merely because they emanate from the 

same events); El Paso Rock Quarries, Inc., 3 FMSHRC 35, 40 (Jan. 1981) (hole 

in fence around electrical power transformer and leaving fence grate unlocked 

constituted separate offenses). In reviewing whether standards impose separate 

duties, the Commission does not view standards in a vacuum. Rather, because the 

question is whether citations are duplicative, the standards are examined as they 

are being applied to the operator through the citations in question. See Western 

Fuels-Utah, 19 FMSHRC at 1004 & n. 12. 

Kentucky Fuel Corporation, 38 FMSHRC ____, slip op. at 3, Nos. KENT 2011-1557, KENT 

2011-1558 (July 2016). 

 The duty imposed by §56.16002(a)(1), as cited in Order No. 8801651, is to require 

operators, where loose unconsolidated material is present, to have mechanical devices or other 

effective means of handling materials in place so that miners are not exposed to entrapment. This 

duty is clearly separate and distinct from the duty imposed by §56.16002(c), as referenced in 

Citation No. 8801650, that requires operators to disallow entry into a facility until the supply and 

discharge of materials have ceased. 

Order No. 8801652 

I. Contentions of the Parties 

The Secretary contends the Respondent violated 30 C.F.R. §56.6306(g) because postblast inspections were not conducted before work resumed in the blast area on August 12, 2014. 

Sec’y’s Br., 23. The Secretary further contends that the violation was S&S and reasonably likely 

to cause a fatality to one miner and was the result of high negligence on the part of the operator. 

Id. at 24. The Secretary finally asserts this violation constituted an unwarrantable failure of a 

mandatory safety standard, as Carr was a blaster and member of management on scene. Id. at 25. 

The Respondent contends that the Secretary failed to prove that Eureka Stone had 

violated 30 C.F.R. §56.6306(g) by allowing work to resume in a blast area before a post-blast 

examination addressing potential blast related hazards had been conducted. Resp’t’s Br., at 13. 

The Respondent argues also that, as Mr. Carr had no reason to believe that any materials would 

fall into the crusher, his actions were entirely reasonable. Resp’t’s Br., at 16. 

 

38 FMSHRC Page 2282
II. The Secretary has carried his burden of proof by the preponderance of the evidence 

that the Respondent violated 30 C.F.R. §56.6306(g) 

30 C.F.R. §56.6306(g) provides that: 

(g) Work shall not resume in the blast area until a post-blast examination 

addressing potential blast-related hazards has been conducted by a person with the 

ability and experience to perform the examination. 

There is some controversy in the record as to whether a post-blast examination was 

conducted after each of the 16 blasts at the accident site. At hearing, Inspector Bennett testified 

that “by their own statements, the miners and the victim stated that they did not go up to the 

feeder to see what had changed, to see what else may or may not have occurred as a result of 

their blasting.” Tr. 63. However, at hearing, Carr testified that “after each blast . . . I would go up 

the steps, walk by the feeder, look in, get another stick of dynamite.” Tr. 62. Carr further testified 

that in addition to walking above the crusher and looking down in, he also looked up through the 

chute to the opening, the throat of the hopper and he conducted his examination thusly every 

time anybody went into the crusher. Tr. 83. 

Carr however, was confronted at hearing with prior conflicting depositional testimony in 

which under oath he testified that “I didn’t go up every time but I went up, like, every other time 

because we had to go to the trailer to get more dynamite.” Tr. 92-3. 

The Administrative Law Judge is uncertain as to which of Carr’s hearing or depositional 

recollections was the more accurate. Obviously, a failure to have conducted a post-blast 

examination after each of the 16 dynamitings, would have been a per se violation of §56.6306. 

However, even accepting that there was in fact an inspection conducted after each blast, the 

Administrative Law Judge finds, as the Secretary argues, that the inspections were inadequate. 

That an accident had, in fact, taken place following the 16th blast in itself raises questions 

as to whether the Respondent’s inspection addressed all potential blast-related hazards. 

There is no dispute that the integrity of the accident scene had been preserved by the 

Respondent prior to Inspector Bennett’s arrival. Both his observations and the Secretary’s 

photographs of the crusher convincingly establish that there was a build-up of large rocks 

perilously close to the edge of the hopper chute – which posed a clear and present danger to any 

miner entering the crusher below. Tr. 30-4, Government Exhibits S-8, S-9. 

Carr’s testimony that the rocks did not appear close to the edge when he looked down to 

the hopper before going into the crusher after the 16th blast was not convincing to this Court. See 

also Tr. 86-7. 

Applying the reasonably prudent person test in light of this case’s factual circumstances, 

this Court finds that a reasonably prudent blaster would not enter the crusher until a proper postblast examination had been conducted. The Court finds that the Respondent violated 30 C.F.R. 

§56.6306(g). 

38 FMSHRC Page 2283
III. Respondent’s post-blast examinations were as a matter of fact and law 

demonstrably “inadequate” 

In a recent decision, the Commission has essentially held that there is an implied 

“adequacy” requirement in safety standards involving work place examinations. 

In Sunbelt Rentals, Inc., falling material had knocked a miner unconscious while he was 

working in a preheat tower. Sunbelt Rentals, Inc., et al., 38 FMSHRC ____, slip op. at 2, Nos. 

VA 2013-275-M, VA 2013-276-, VA 2013-291-M (July 2016). In inspecting the accident site, 

an MSHA inspector observed a build-up of materials which could have fallen through a six-foot 

long hole between the 6th and 7th levels above where the injured miner was working. Id. The 

inspector found that the Respondent had violated §56.18002(a) due to its failure to “adequately” 

inspect the area above where employees where working. 29 

The Administrative Law Judge dismissed the proceedings based, inter alia, upon findings 

that a competent and qualified person had in fact examined the work place and that there was no 

specific statutory language or notice that work place examinations were required to be adequate. 

35 FMSHRC 3208, 3214-15 (Sept. 2013) (ALJ McCarthy). 

Upon review, the Commission remanded the ALJ’s decision, disagreeing that an 

“operator must only examine the workplace to a standard of care slightly surpassing not 

conducting the examination at all.” Sunbelt, slip op., at 7. The Commission further held that a 

proper construction of §56.18002 should be consistent with Commission case law construing 

regulations to further the protective policy of the Act and to avoid an absurd result. Id., at 7, n. 

16. 

The Commission accordingly held that a proper construction of §56.18002(a) requires 

that a workplace examination “be adequate in the sense that it identify conditions which may 

adversely affect health and safety that a reasonably prudent competent examiner would 

recognize.” Sunbelt, at 9. 

 

 29 30 C.F.R. §56.18002(a) provides that “[a] competent person designated by the operator 

shall examine each working place at least once each shift for conditions which may adversely 

affect safety or health. The operator shall promptly initiate appropriate action to correct such 

actions.” 

38 FMSHRC Page 2284
 In determining “adequacy”30 in instances where there is a “broadly worded” standard 

(such as here) the Commission observed that the reasonably prudent person test is consistently 

applied: 

The reasonably prudent person test provides that an alleged violation is 

appropriately measured against whether a reasonably prudent person, familiar 

with the factual circumstances surrounding the allegedly hazardous condition, 

including any facts peculiar to the mining industry, would recognize a hazard 

warranting correction within the purview of the applicable standard. Spartan 

Mining Co., Inc., 30 FMSHRC 699, 711 (Aug. 2008); see also Asarco, Inc., 14 

FMSHRC 941, 948 (June 1992); Alabama By-Products Corp., 4 FMSHRC 2128, 

2129 (Dec. 1982). 

Sunbelt, at 8. 

 The fact pattern and issues presented in Sunbelt are remarkably similar to the case sub 

judice. There are mandatory examinations which in fact had been performed at the mine sites by 

qualified personnel. There were build-ups of materials overhead that posed direct dangers to 

miners working below. The build-ups were either not detected or not recognized as potential 

hazards. The material build-ups actually led to accidents. The Respondent contested the correct 

statutory construction of the safety standards in question. 

 In reaching its within conclusion, this Court is guided by the Commission’s admonitions 

in Sunbelt that mandatory safety standards should be construed in such a way as to promote 

miner’s health and safety and avoid absurdist interpretation. Given such and considering the 

totality of the circumstances, this Court is constrained to find that Carr’s post blast examinations 

were demonstrably inadequate. 

 In reaching this conclusion, this Court emphasizes that it found Carr to have been a 

competent, qualified, and experienced examiner who was indeed courageous, albeit reckless, in 

entering the crusher chamber. The Court further finds that, based upon his post-blast 

examinations, Carr had no doubt entered the crusher chamber with a good faith belief that there 

was no existent hazards overhead. 

 However, a good faith belief, standing alone, does not transmutate a deficient 

examination into an adequate one. 

 This Court well recognizes that there must be a mixed subjective/objective analysis in 

assessing the conduct of parties. See Robinette v. United Coal Co., 3 FMSHRC 803 (Apr. 1981) 

(wherein the Commission held that a miner’s honest perception of a potentially hazardous 

condition must be one made in good faith and be reasonable under the circumstances); see also

 30 The Commission has noted that the requirement of “adequacy” is “not a novel theory 

of regulatory interpretation” but a consistent concept in Commission case law “repeatedly 

applied to broadly worded mandatory safety standards.” Sunbelt, at 8 n. 17. 

38 FMSHRC Page 2285
Newmont USA, Ltd.,, 37 FMSHRC 499 (Mar. 2015) (wherein this Court’s decision was 

remanded precisely because it had failed to determine whether, under the total circumstances, the 

operator’s good faith belief that it was in compliance with the regulations was also objectively 

reasonable). 

 This Court finds that prior to the within accident there was a large buildup of materials in 

the hopper with large rocks bordering on the chute’s edge. This Court found Bennett’s testimony 

credible that he had observed such at the accident scene – a scene whose integrity had been 

preserved after the accident. The Secretary’s photographic exhibit 9 corroborates Bennett’s 

testimony on this point and in part contradicts Carr’s testimony. Further, that an accident had in 

fact taken place confirms the existence of hazardous materials overhead which were unimpeded 

by any mechanical device or means. 

Given such and given the clear dangers of dislodgement or sudden movement of 

unimpeded materials due to blasting, surrounding vibrations, and gravitational forces – this Court 

concludes that Carr conducted post blast examinations that were manifestly inadequate. Pursuant 

to the Commission’s above cited holdings in Newmont and Sunbelt, Carr’s good faith belief that 

no post blast conditions existed which could “adversely affect safety and health” was objectively 

unreasonable. Carr’s post-blast examinations as a matter of fact and law failed to identify 

hazards that a reasonably prudent competent examiner would have recognized. 

IV. The violation of 30 C.F.R. §56.6306 was significant and substantial in nature, 

reasonably likely to result in a fatal injury and was the result of high negligence on 

the part of the operator and was the result of unwarrantable failure. 

Much of the above analysis regarding the gravity assessment of §§56.16002(c) and 

56.16002(a)(1) is applicable to the instant violation and is hereby adopted without full recitation 

thereof. The failure to conduct adequate post-blast examinations created a discrete safety hazard: 

miners could be exposed to uncontrolled rocks which, in the instant matter, could tumble down 

an 8 foot chute and then fall 5 feet vertically directly upon them or as here, indirectly, after 

bouncing off the crusher chamber walls. Tr. 33-4. 

Given the accident that occurred and the injuries sustained by Carr, the reasonable 

likelihood of serious and fatal injury is clearly proven. 

V. The Respondent was highly negligent and its failure to comply with the standard 

was unwarrantable.

Given that Carr was both a licensed blaster and quarry superintendent he violated his high 

duty of care in conducting inadequate post blast examinations. Brody, at 1702. 

The very high degree of danger posed by the violation of §56.6306 instantly in and of 

itself arguably justifies a finding of unwarrantable failure. Given inter alia the extent and 

obviousness of the violative condition discussed supra, the Respondent’s failure to conduct 

adequate post-blast inspections was aggravated in the extreme. Even if the factor of 

38 FMSHRC Page 2286
dangerousness does not by itself establish unwarrantable failure, the other Manalapan factors in 

combination certainly establish such. 

A. Length of time 

The violation of not resuming work until a post-blast examination had been conducted 

existed at least for the period wherein Carr entered the crusher before conducting an adequate 

post-blasting examination. It is possible, however, the violation had existed for the entire four 

hour blasting period. As stated supra, given the inherent dangers associated with blasting, 

including the obvious danger of dislodged large rocks, the violation clearly lasted for an 

unreasonable length of time. 

B. Extent of violation 

The violation extended throughout the hopper/crusher which operated as one unit, as 

mentioned supra. 

C. The violation was obvious 

Given, inter alia, the size and volume of materials in the hopper, the danger of sudden 

shifting or dislodgement due to 16 blasts, the fact that an accident had in fact happened, Carr’s 

failure to conduct an adequate post-blast examination was obvious. The testimonial and 

photographic evidence presented by the Secretary outweigh the Respondent’s protestations to the 

contrary. Patently, potential post-blast hazards had not been detected by Carr so as to ensure the 

safety of the crusher chamber. 

D. The operator knew or should have known of the existence of the violation 

The victim of the accident was a certified blaster and a senior member of management. 

With his years of experience in the field, as well as the safety of the miners under his authority to 

consider, Carr knew, or should have known, that the post-blast accident site in question required 

more adequate examination than that which was performed. 

E. The operator’s efforts in abating the violative condition 

The operator did not abate this violation until after the accident took place. I therefore 

find this factor weighs against the operator. 

F. Whether the operator had been placed on notice that greater effects were 

necessary for compliance 

In his discussion of the Manalapan factors supportive of a finding of unwarrantable 

failure, the Secretary did not present evidence that the Respondent had been cited for the same or 

similar violations in the past. See also Government Exhibit S-15. This factor however standing 

alone does not vitiate a finding of unwarrantable failure. 

38 FMSHRC Page 2287
G. The violation posed a high degree of danger 

The degree of danger in this case was unquestionably high. Judging from either the 

severe injuries actually inflicted on Carr or the potential fatal injures he could have endured, the 

danger here is likely death. As noted supra, the Commission has specifically held that the factor 

of dangerousness, by itself, may warrant a finding of unwarrantable failure. This was neither a 

trivial nor technical violation. A miner was nearly killed as a result of the failure to conduct 

adequate post-blast examinations. The violation posed an unwarrantably high degree of danger. 

Penalty

In reference to the special and regular assessments proposed by the Secretary for each of 

the within violations, the Administrative Law Judge can find no reason for any substantial 

divergence therefrom. The Secretary correctly calculated and properly took into account the 

Section 110(i) criteria in assessing the proposed penalties. 31 Inter alia, the Respondent has 

stipulated that the proposed penalties would not affect its ability to remain in business. It is also 

worth noting the Respondent’s representations that “if it is determined that the Citations were 

properly issued and that Eureka violated the regulations cited, Eureka does not contest the 

reasonableness of the proposed civil penalties assessed for Citations No. 8801650 and 8801652.” 

Resp’t’s Br., at 2. Instead, the Respondent challenges the “proposed civil penalty assessed 

pursuant to Citation No. 8801651,” contending it is “not fair and equitable and should be 

reduced.” Id. 

The Secretary’s penalty regulations and assessment formula, though not binding, serve as 

useful reference points in helping this Court navigate to its own independent decision regarding 

proper, just, and fair penalty amounts. 

In Brody Mining, LLC, the Commission has reiterated that: 

the Part 100 regulations apply only to the proposal of penalties by MSHA and the 

Secretary of Labor; under both Commission and court precedent, the regulations 

do not extend to the independent Commission, and thus the MSHA regulations 

are not binding in any way in Commission proceedings. JWR Res. Inc., 36 

FMSHRC 1972, 1975 n.4 (Aug. 2014); Sellersburg Stone Co. v. FMSHRC, 736 

F.2d 1147, 1151-52 (7th Cir. 1984), aff'g 5 FMSHRC 287 (Mar. 1983) (“[N]either 

the ALJ nor the Commission is bound by the Secretary's proposed penalties ... we 

 

 31 The six statutory factors the Commission must take into account in assessing a penalty 

are (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 operator charged in attempting to achieve rapid compliance after 

notification of a violation. 30 U.S.C. §820(i). 

38 FMSHRC Page 2288
find no basis upon which to conclude that [MSHA's Part 100 penalty regulations] 

also govern the Commission.”) 

Brody, at 1701-2. 

Given the totality of the circumstances, including the high degree of danger posed by the 

violations, the high negligence of the operator, and the operator’s unwarrantable failure to 

observe mandatory safety standards at the quarry, the Administrative Law Judge finds that the 

proposed penalties of the Secretary were proper, fair, and just. 

The Administrative Law Judge agrees with the Secretary’s arguments that he reasonably 

exercised his discretion to specially assess penalties in this case because the conditions warranted 

such pursuant to 30 C.F.R. §100.5. See also Sec’y’s Br., at 25-9. 

The Administrative Law Judge specifically rejects the Respondent’s argument that the 

specially assessed penalty for Order No. 8801657, alleging a violation of §56.16002(a)(1), was 

“neither fair nor equitable.” Resp’t’s Br., at 17-8. Having a backhoe with its bucket in place was 

a simple means to prevent the caving and sliding of rocks which could entrap, injure, or kill 

miners. Government Exhibit S-12. The Respondent’s failure to provide such was akin to playing 

Russian Roulette with miners’ lives. That no prior accidents had occurred is not a mitigating 

factor but just “dumb luck” that there was no bullet in the chamber when the trigger was pulled 

previously. 

Given, inter alia, essentially the same gravity and negligence assessments associated with 

all three violations, the Respondent also argues there was no rational basis for the Secretary to 

propose a civil penalty of $2,000 for two of the violations and $52,500 on the third violation. See 

Sec’y’s Br., at 18. This argument is of course a double-edged sword, as it could just as easily be 

argued that the same $52,500 special assessment should be applied on all 3 violations. That the 

Secretary declined to do so is supportive of a fair and equitable penalty assessment. 

 

38 FMSHRC Page 2289
ORDER 

Order No. 8801651 is affirmed as issued. Citation No. 8801650 is affirmed as issued. 

Order No. 8801652 is affirmed as issued. 

Accordingly, it is hereby ORDERED that the operator pay a penalty of $56,500.00 

within 30 days of the issuance of this order.32 

/s/ John Kent Lewis 

 John Kent Lewis 

 Administrative Law Judge 

Distribution: 

Matthew R. Epstein, Office of the Solicitor, U.S. Department of Labor, Suite 630 East, The 

Curtis Center, 170 South Independence Mall West, Philadelphia, PA 19106 

Stephen B. Harris, Esq., Attorney for Eureka Stone Quarry, Inc., 1760 Bristol Road, P.O. Box 

160, Warrington, PA 18976 

 32 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 

38 FMSHRC Page 2290
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVENUE NW, SUITE 520N 

WASHINGTON, D.C. 20004 

August 24, 2016 

CORRECTED DECISION

Appearances: Jeremy K. Fisher, Esq., U.S. Dept. of Labor, Office of the Solicitor, Atlanta, 

Georgia, for Petitioner; 

 

John W. Hargrove, Esq., Bradley Arant Boult Cummings, LLP, Birmingham, 

Alabama, for Respondent. 

Before: Judge Bulluck 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

 Petitioner 

 v. 

SAIIA CONSTRUCTION, LLC, 

 Respondent 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

 Petitioner 

v. 

DARRELL RAGLAND, employed by 

SAIIA CONSTRUCTION, LLC, 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

 Petitioner 

v. 

FREDERICK LOONEY, employed by 

SAIIA CONSTRUCTION, LLC, 

Respondent 

 CIVIL PENALTY PROCEEDINGS 

Docket No. SE 2011-127-M 

A.C. No. 01-02985-235903 IKJ 

Mine: Omya Alabama Plant 

Docket No. SE 2012-206-M 

A.C. No. 01-02985-276234 A 

Mine: Omya Alabama Plant 

Docket No. SE 2012-207-M 

A.C. No. 01-02985-276235 A 

Mine: Omya Alabama Plant 

38 FMSHRC Page 2291
This Decision CORRECTS typographical errors in the case caption and body, and adds 

a footnote regarding penalty payment. 

 

 These cases are before me upon Petitions for Assessment of Civil Penalty filed by the 

Secretary of Labor (“Secretary”) on behalf of his Mine Safety and Health Administration 

(“MSHA”), against Saiia Construction, LLC (“Saiia”), Darrell Ragland, and Frederick Looney, 

pursuant to sections 105(d) and 110(c) of the Federal Mine Safety and Health Act of 1977 

(“Act”), 30 U.S.C. §§ 815(d) and 820(c). The Secretary seeks a civil penalty of $42,600.00 

against Saiia for a violation of his mandatory safety standard found at 30 C.F.R. § 56.6311(b); a 

civil penalty of $3,000.00 against Darrell Ragland, individually; and a civil penalty of $3,300.00 

against Frederick Looney, individually, for knowingly authorizing, ordering, or carrying out the 

violation. 

 

 A hearing was held in Birmingham, Alabama. The following issues are before me: (1) 

whether Saiia violated the standard; (2) whether the violation was significant and substantial; (3) 

whether the violation was an unwarrantable failure to comply with the Secretary’s mandatory 

safety standard; (4) whether Darrell Ragland is individually liable for the violation; (5) whether 

Frederick Looney is individually liable for the violation and, if so; (6) the appropriate penalty for 

each violation. The parties’ Post-hearing Briefs are of record. 

 For the reasons set forth below, I AFFIRM the Order, as issued, and assess penalties 

against Respondents Saiia, Ragland, and Looney. 

I. Stipulations 

 The parties stipulated as follows: 

1. Respondent, Saiia Construction, LLC, is engaged in a business which affects 

commerce. 

2. Respondent, Saiia Construction, LLC, is subject to the Federal Mine Safety and 

Health Act of 1977, as amended. 

3. The Administrative Law Judge and the Federal Mine Safety and Health Review 

Commission have jurisdiction to hear and decide this case pursuant to section 105 of 

the Act of 1977. 

4. MSHA Inspector Mitchell Smallwood was acting in his official capacity when he 

issued Respondent Order No. 6517482 on May 19, 2010. 

5. True copies of the Order referenced in the previous stipulation, together with all 

appropriate modifications and abatements, were served on Respondent or its 

authorized agents, as required by the Act. 

6. Copies of the subject Order and notes of alleged violation at issue in this proceeding 

are authentic and may be admitted into evidence for purposes of establishing their 

38 FMSHRC Page 2292
issuance, but not for the purpose of establishing the truthfulness or relevancy of any 

statements asserted therein. 

7. The Administrative Law Judge has the authority to assess the appropriate civil

penalty under section 110(i) of the Act, if she also finds that the Order at issue states a

violation of the Act and the Regulations.

8. The proposed civil penalties related to the MSHA enforcement action at issue in this

proceeding would not adversely affect Respondent Saiia Construction, LLC’s ability

to remain in business.

9. Respondents Darrell Ragland and Frederick Looney were at all relevant times agents

of Saiia within the meaning of section 110(c) of the Act.

Sec’y Br. at 2; Tr. 16-18. 

II. Factual Background

 Omya, Incorporated, Alabama Division (“Omya”), owns the Omya Alabama Plant, a 

surface marble mine in Sylacauga, Alabama. At all times relevant to this case, Saiia, an 

independent contractor, conducted all mining operations at the Brown and Omya quarries, both 

located within the Plant. Another contractor, Apache Construction (“Apache”), performed and 

oversaw all blasting activities at the quarries. Resp’t Br. at 2; Sec’y Br. at 3; Tr. 52-53, 235. The 

blasting operations involved separate, but interrelated, activities on the part of Saiia and Apache 

employees. Saiia was responsible for blocking and guarding the quarry entrances and, after 

blasting was completed, Apache would give the “all clear” signal. Tr. 236. The stripping crew, 

Saiia employees, would then haul away the blasted material. Tr. 53-55, 153. Quality overburden, 

usually marble, was transported to a stockpile, while other material of little value, such as dirt, 

mud and dolomite, was hauled to an area called “the dump.” Tr. 54-55. Lead operator Darrell 

Ragland supervised the day-to-day activities at the Brown quarry, and superintendent Frederick 

Looney supervised the Omya quarry, had oversight responsibility for both quarries, and was 

Ragland’s supervisor. Tr. 56, 233-34, 260, 262-64. 

On Friday, April 9, 2010, Apache conducted a blast at the Brown quarry at 11:28 a.m.1

Ex. P-7 at 1. According to Saiia’s time sheets, the following employees, among others, were 

working at the Brown quarry that day: Looney; Ragland; excavator operator Steve Harbin; truck 

driver Rayford Cheatham; truck driver Ricky Cheatham; truck driver Derrick Miller; truck driver 

Steve Littleton; truck driver Jeromy Watkins; Michael Bradberry; Tommy Smith; Matt 

Honeycutt; Philip Gardner; Thomas Catchings; and Chris Vaughn. Ex. R-10; Tr. 240-41. At 

some point after the blast, Harbin discovered a misfire. Resp’t Br. at 3, 7; Sec’y Br. at 16. While 

the parties agree that the blast occurred on Friday, the Secretary contends that the misfire was 

discovered on the same day, and Respondents argue that Harbin found it on the following 

Monday. Sec’y Br. at 13; Resp’t Br. at 3; Ex. R-26. 

1

 Despite some erroneous references to the Omya quarry during the course of the hearing, 

the events at issue in this case took place at the Brown quarry. 

38 FMSHRC Page 2293
 On Monday, April 12, Harbin notified Omya’s quarry manager, Oscar Crawley, of the 

misfire, although, like the date that the misfire was discovered, the time of Harbin’s conversation 

with Crawley is unclear. Tr. 222-23. Crawley ordered Harbin to berm-off the area, and informed 

Apache employee Robert Barton of the misfire. Tr. 222-24; Ex. P-1 at 5, 9, 12. According to 

Saiia’s time sheets, the following employees, among others, were working at the Brown quarry 

that Monday: Looney; Harbin; Bradberry; Rayford Cheatham; Ricky Cheatham; Watkins; Smith; 

Littleton; Miller; Honeycutt; Gardner; Vaughn; and Catchings. Ex. R-11; Tr. 240-41. Ragland 

had a medical appointment that day, and was listed as being on vacation. Ex. R-11; Tr. 241. 

 The next day, on Tuesday, April 13, Apache tied the misfire into its regularly scheduled 

blast between 11:45 a.m. and 12:40 p.m. Exs. P-1 at 4, 5, 9-10, R-7 at 5; Tr. 243, 265. 

Thereafter, Harbin discovered a second misfire from Friday’s blast. Ex. P-1 at 5, 10; Tr. 78, 254-

55. Barton later disposed of the misfire by tying it into a blast occurring the following week on 

Monday, April 19. Ex. P-1 at 5, 6. The following Saiia employees were working at the Brown 

quarry on that Tuesday: Looney; Ragland; Harbin; Bradberry; Littleton; Watkins; Honeycutt; 

Smith; Gardner; Vaughn; Catchings; and others. Ex. R-12; Tr. 240-41. According to the Daily 

Log for April 13, Rayford Cheatham, Ricky Cheatham, and Miller were absent that day. Ex. R-7 

at 5; Tr. 244-45. 

 On Wednesday, April 14, Crawley held a contractors’ meeting with Looney and Ragland, 

and Apache employees Mark Ray and blasting manager Glenn Barton, and discussed safe 

blasting procedures. Exs. P-1 at 12, R-29 at 3; Tr. 226, 229. 

 Monday, April 19, Steve Harbin terminated his employment with Saiia, and returned to 

Illinois to work for a former employer. Ex. P-1 at 4, 10; Tr. 79-80, 82, 84-85. 

A. The Smallwood Investigation 

 Almost a month later, on May 11, MSHA’s Birmingham field office received an 

anonymous hazard complaint, alleging that employees at the Omya Alabama Plant were not 

following safe blasting procedures. Tr. 182. MSHA Inspector Michael Smallwood conducted an 

on-site investigation on May 12, 13, and 18, interviewing Omya, Saiia, Apache, and contractor 

Dixie Drilling (“Dixie”) employees. Tr. 183-84; Ex. P-1; Sec’y Br. at 3. 

 Smallwood first met with management-level Omya employees, supervisory-level Saiia 

employees, then lower-level Saiia, Apache and Dixie employees. Tr. 184-89; Ex. P-1 at 1-6. He 

found no physical evidence of any recent blasting violations, and several interviewees told him 

that they were unaware or had no direct knowledge of problems or unsafe practices at the quarry. 

Ex. P-1 at 3 (Daniel Massey-Dixie); P-1 at 6 (Donald Churchwell-Apache); P-1 at 8 

(Thomas Catchings-Saiia); P-1 at 8 (Chris Vaughn-Saiia); P-1 at 16 (Matt Honeycutt-Saiia); P1 at 17 (Phillip Gardner-Saiia). Ragland was the only supervisory employee who told Smallwood 

that he was not aware of any problems or misfires at the quarry. P-1 at 2; Tr. 188. Several others, 

however, including Crawley and Looney, specifically mentioned that there had been a misfire 

earlier in April. Tr. 184-89; Ex. P-1 at 2, 4, 5-7, 9, 13-16. 

38 FMSHRC Page 2294
 In an initial and follow-up interview on May 18, Oscar Crawley stated that, as a result of 

observing an unfired shot brought to his attention by Harbin on Monday, April 12, he had 

instructed Harbin to berm-off the area, and he reported the misfire to Apache blaster Robert 

Barton, who arranged to have it reshot during the blast scheduled for the following morning.2

Crawley also stated that he had discussed his concerns and reviewed blasting procedures with, 

among others, Looney and Glenn Barton at the next regularly scheduled Wednesday contractors’ 

meeting on April 14, and that the blasting crew was retrained on safe blasting procedures the 

following week. Ex. P-1 at 2, 12; Tr. 196-97. 

 Frederick Looney told Smallwood that, on Monday, April 12, as a result of Harbin 

discovering and reporting to Darrell Ragland an unfired hole from the Friday, April 9 blast, the 

area was barricaded and personnel were removed from the site. By his account, Apache was 

informed of the misfire on Monday, and the hole was reshot the next day. Looney also stated that 

Harbin resigned from Saiia on April 19, and took an out-of-state job. Ex. P-1 at 4; Tr. 189. 

 Apache employee Robert Alex Barton told Smallwood that he had conducted a clean 

post-blast examination on Friday, April 9, but that an unfired shot was found on Monday, April 

12 that Apache tied into its blast and reshot on Tuesday, April 13. He noted that another unfired 

shot was discovered an hour later, and that it “was placed in the magazine and destroyed by 

placing [it] in a shot hole on April 19th .” Ex. P-1 at 5-6. Barton also told Smallwood, during the 

follow-up interview on May 18, that Apache employees were retrained on all phases of blasting a 

week after the misfire events, with special emphasis on post-blast examinations. Ex. P-1 at 13. 

 Saiia employee Tommy Smith told Smallwood that he heard the excavator operator 

notify Ragland that he had uncovered a misfire, and that Ragland told him to “keep on loading.” 

Ex. P-1 at 6; see Tr. 190-91. 

 Saiia employee Steve Littleton told Smallwood that on Friday or Saturday, he, himself, 

saw the evidence of the misfire that the excavator operator had discovered, i.e., blasting wires 

and ANFO. Ex. P-1 at 6. According to Littleton, he heard Harbin report the misfire to site 

supervisor Ragland over the CB radio, and Ragland responded that “sometimes they looked like 

that and to just keep on digging.” Ex. P-1 at 6-7; see Tr. 191-92. He stated that he did not believe 

that Ragland ever came to the site to investigate the misfire when it was reported to him, and that 

on Monday, Omya superintendent Oscar Crawley barricaded the area and removed all personnel 

from the site. Ex. P-1 at 7; see Tr. 192. 

 Saiia employee Derrick Miller told Smallwood that sometime in early April, while he 

was driving a haul truck, after observing the exposed wiring and ANFO of a misfire in the area 

being mined, he had volunteered to move to another location and operate another piece of 

equipment. He stated that mining in the area had continued for about an hour after the misfire 

was discovered, and that he had no knowledge of it being reported to management. He also 

stated that he noticed that the area had been barricaded at the end of the shift. Ex. P-1 at 7-8. 

 2

 Apache blaster Robert Barton is also referred to in the record by his middle name, Alex. 

See Ex. R-3. Smallwood’s interviews of May 13 and 18 are both presumed to be of Robert 

Barton, rather than Apache blasting manager, Richard Barton. See Ex. P-1 at 5, 13, 18-19. 

38 FMSHRC Page 2295
 After interviewing several hourly Saiia employees, Smallwood interviewed Steve Harbin 

by telephone. Harbin told the inspector that upon discovering a misfire on Friday, April 9 after a 

blast earlier that day, and reporting it to Darrell Ragland over the CB radio, Ragland told him to 

“keep on digging.” Harbin stated that he moved away from the misfire and continued working at 

a different location. According to him, on the following Monday, when Omya supervisor Oscar 

Crawley had come on-site, he showed him the misfire, and Crawley had him berm-off the area. 

He said that the blasters tied the misfire into the blast that was conducted the next day and that, 

after the blast when he began loading, he found another misfire. This time, he stated, he reported 

the unfired shot to both Ragland and Looney. Harbin alleged that he was told that “if he found a 

booster, to send it to the dump and not stop digging,” although he did not specify who had given 

this order. At the conclusion of the interview, Harbin told Smallwood that he had resigned on the 

following Monday, April 19, and informed his co-workers that he was resigning because Saiia 

did not address his safety concerns when he encountered misfires, and because of the follow-up 

instructions that he was given to send boosters to the dump if he encountered them. Ex. P-1 at 9-

10. 

 Smallwood also interviewed several Saiia employees on May 18. Haul truck driver 

Michael Bradberry expressed uncertainty of the misfire discovery date, but stated that he heard 

Steve Harbin report a misfire to Darrell Ragland over the CB radio, and that Ragland replied that 

“this happens all the time . . . keep on digging.” Ex. P-1 at 13. 

 He also interviewed the Cheatham brothers, both Saiia haul truck drivers. Ex. P-1 at 14-

15. Rayford Cheatham stated that Harbin reported a misfire to Ragland, and that he witnessed 

Harbin show it to Ragland on-site. According to Cheatham, he heard Ragland tell Harbin that it 

was “ok and go back to work.” He also stated that Crawley had Harbin barricade the area after he 

found out about the misfire. He asserted that the area was mined after the blasters gave the “all 

clear” signal. Cheatham did not know the circumstances under which the blasters removed the 

misfire, and he did not specify when any of these events had occurred. Ex. P-1 at 14. 

 Ricky Cheatham told Smallwood that he heard Harbin report to Ragland over the CB 

radio that he had found a misfire, and that Ragland’s reply was that “the shot had already been 

fired and . . . keep digging.” He also stated that Harbin found a second misfire and, again, 

reported it to Ragland over the CB radio. According to Cheatham, Harbin asked Ragland to 

contact someone else about the misfire, but Cheatham did not identify to whom he was referring. 

Cheatham also stated that Harbin talked to Oscar Crawley on-site later in the shift, and that 

Crawley had Harbin barricade the area against entry. Ex. P-1 at 15. 

 Saiia haul truck driver Jeromy Watkins stated that he heard Harbin tell Ragland over the 

CB radio that he had found a misfire, and that Ragland told him to “keep on digging.” Ex. P-1 at 

16. 

 Smallwood returned to the mine and had a close-out meeting with management 

representatives of the companies on May 19. Ex P-1 at 18-19. Based on his investigation, 

Smallwood issued 104(d)(1) Order No. 6517482 to Darrell Ragland the same day. Ex. P-1 at 18-

19; Ex. P-2. 

38 FMSHRC Page 2296
 B. The Saiia Investigation 

Following issuance of the Order, in late May Saiia also took statements from several 

employees concerning their knowledge of the handling of the misfires. Some of the latter 

statements were essentially consistent with the statements given during Smallwood’s 

investigation. Exs. R-13 (Robert Alex Barton); R-18 (Bradberry); R-20 (Gardner). Others 

provided additional information. Jeromy Watkins added that on Tuesday, after the blast and 

Harbin’s discovery of another misfire, Harbin called Looney, who told him to “load the trucks 

and take everything to the dump.” Ex. R-21. Rayford Cheatham remembered both misfires 

discovered by Harbin to have occurred on Monday. Ex. R-19. Some accounts of events, 

however, changed. For example, Steve Littleton stated that he did not think that there was any 

problem on April 9, and that he did not recall hearing Ragland direct Harbin over the CB radio to 

keep working. Ex. R-14. Derrick Miller placed Harbin’s discovery of the misfire on Friday, and 

the tie-in reblast on Monday. Ex. R-16. 

 Darrell Ragland provided considerably more information than he had given Smallwood. 

He noted that he was off from work on Monday, April 12 due to a doctor’s appointment, that he 

was told on Tuesday of a misfire being found on Monday and Crawley clearing the area of 

workers and equipment. On Tuesday, he stated, after the “all-clear” was given and stripping 

resumed after the blast, Harbin discovered another misfire and moved his excavator from the 

immediate area. Then, according to him, Alex Barton removed the misfire from the area as a 

result of a call from Looney. Ragland also maintained that he told Harbin, “if you find another 

booster, call me.” Ex. R-5. 

 C. The Daniels Investigation 

 In late January and early February of 2011, MSHA Special Investigator Don Daniels 

conducted a 110(c) special investigation to determine whether Ragland and Looney should be 

charged with individual liability in connection with the misfire violation. Sec’y Br. at 4; Tr. 205-

07. He interviewed Ragland, Looney, Littleton, Miller, and Smith in the Omya conference room, 

in the presence of Saiia’s attorney; Crawley in the Omya conference room, alone; and Harbin by 

telephone. See Exs. R-6 (Ragland); R-8 (Looney); R-15 (Littleton); R-17 (Miller); R-22 (Smith); 

R-23 (Harbin); R-29 (Crawley). It was during Daniels’ interview that Harbin specifically stated 

that it was Looney who had told him to take misfires to the dump. Ex. R-23 at 2. On the other 

hand, Smith told Daniels that Harbin spoke to Looney about the first misfire, and that Looney 

told him to stop working so that he, Looney, could investigate. Ex. R-22 at 3. Looney told 

Daniels that he had “never seen a danger” in “digging and loading material in an area where a 

misfire has occurred.” Ex. R-8 at 4. He also stated that he had no knowledge of a second misfire. 

Ex. R-8 at 4. Thereafter, based on Daniels’ findings, MSHA filed 110(c) charges against both 

Ragland and Looney. Sec’y Br. at 4; 205-07. 

 

38 FMSHRC Page 2297
III. Findings of Fact and Conclusions of Law 

 

 A. Saiia

 1. Fact of Violation

 

 Inspector Smallwood issued 104(d)(1) Order No. 6517482 on May 19, 2010, alleging a 

“significant and substantial” violation of section 56.6311(b) that was “reasonably likely” to 

result in an injury that could reasonably be expected to be “fatal,” and was caused by Saiia’s 

“reckless disregard” and unwarrantable failure to comply with the standard.3 The “Condition or 

Practice” is described as follows: 

A misfire was detected during the mining process in the area that 

was shot on April 9th 2010 and was reported to Darrell Ragland/

site supervisor. Mr. Ragland failed to ensure that only work 

necessary to remove the misfire and to protect the safety of the 

miners was performed. The area was not barricaded against entry. 

Mr. Ragland engaged in aggravated conduct constituting more than 

ordinary negligence in that when he was notified of this condition 

he instructed the excavator operator to continue mining operations. 

This violation is an unwarrantable failure to comply with the 

standard. 

Ex. R-1. The Order had been terminated prior to Smallwood’s investigation when Apache tied 

the misfire into the regularly scheduled blast on Tuesday, April 13, 2010. 

 In order to establish a violation of one of his mandatory safety standards, the Secretary 

must prove that the violation occurred “by a preponderance of the credible evidence.” Keystone 

Coal Mining Corp., 17 FMSHRC 1819, 1838 (Nov. 1995) (citing Garden Creek Pocahontas 

Co., 11 FMSHRC 2148, 2152 (Nov. 1989)). 

 The Secretary asserts that the misfire triggering the violation was found and reported by 

Harbin to Ragland on Friday, April 9. Sec’y Br. at 13. It is further contended that Ragland 

ordered the miners to work in the face of the misfire, which continued until Monday, April 12, 

when the hazard was reported to Crawley, who, consequently, cleared the area and had it 

barricaded. Sec’y Br. at 19. The Secretary also contends that when Harbin discovered and 

reported the second misfire, Looney told him to dispose of it improperly and continue working. 

Sec’y Br. at 13. 

 Respondents characterize the Secretary’s investigations as products of misunderstanding, 

mistake, or exaggeration. Resp’t Br. at 9. They argue that Harbin discovered the first misfired 

 

 3 30 C.F.R. § 56.6311(b) provides that “[o]nly work necessary to remove a misfire and 

protect the safety of miners engaged in the removal shall be permitted in the affected area until 

the misfire is disposed of in a safe manner.” 

38 FMSHRC Page 2298
shot on Monday. That day, they contend, Harbin could not have informed either supervisor of the 

misfire because Ragland had a doctor’s appointment and was not at work, and Looney was 

working at the Omya quarry. Resp’t Br. at 3, 6-7. According to Respondents, Crawley was 

informed of the misfire in the afternoon that Monday, he had the area barricaded, and Apache 

called in to recheck it. Resp’t Br. 3, 7. They also posit that Looney was only at the Brown quarry 

on Tuesday after Harbin had discovered the second misfire and, therefore, that he could not have 

told Harbin to take misfires to the dump. Resp’t Br. at 9. Furthermore, Respondents contend that 

no work had been performed between Crawley’s intervention and the Tuesday blast, and they 

theorize that what Harbin and others actually heard over the CB radio was Ragland’s “return to 

work” order after Apache’s “all clear” signal. Alternatively, they contend that someone other 

than Ragland or Looney told Harbin to keep digging when he found the misfire. Resp’t Br. at 8-

9. 

a. Testimony 

Steve Harbin’s overall testimony was credible and consistent with his statement given to 

Smallwood. He stated that his experience with blasting has taught him that if a blast produced a 

misfire, it likely produced others, and that he found two misfires in the same area as a result of 

the Friday blast. Tr. 77-78. Harbin did acknowledge that when the equipment is operating at the 

quarry, it can be difficult to hear who is speaking and what is being said over the CB radio. Tr. 

74, 95-6. However, he maintained that he could clearly hear that it was Ragland to whom he was 

speaking because the equipment was not operating while they were talking. Tr. 93-94. He stated 

that, in an effort to distance themselves from the hazard, he moved the excavator 75 yards away 

from the area where he had been digging, and the truck drivers moved “a couple hundred yards” 

away, where they all continued working. Tr. 70-71. Harbin also testified that he confronted both 

Ragland and Looney, in person, after he discovered the second misfire. Tr. 78. According to him, 

Looney “[l]ooked [him] square in the eyes,” and said, “we can’t get no production this way if 

you keep digging these up.” Tr. 78. He was so incensed by this order, he contended, that he made 

up his mind to quit his job. Tr. 79-90. 

 Derrick Miller drove a 50-ton rock truck for Saiia from February 2010 until February 

2012. Tr. 112-13. He testified that he was aware of the misfire in early April, although he was 

unsure of the date on which it was discovered. Tr. 115-16. Initially, he stated that he had heard 

someone report the misfire over the CB radio and someone instruct the miner to haul it to the 

dump, then explained that the CB radio “didn’t work that good in that truck at the time,” and that 

he was unable to hear beyond 200 yards. Tr. 116-19. However, upon further questioning, Miller 

stated that he did not actually hear the exchange over the CB radio, but that Ricky Cheatham had 

told him that Steve Harbin had reported the misfire and was told to haul it to the dump. Tr. 120-

21, 124. He addressed the contradictions in his testimony by noting that “it’s been three years . . 

. . I can’t recall. I don’t know what happened yesterday.” Tr. 125. Miller reviewed his statement 

to Smallwood, and confirmed that mining had continued for an hour after the misfire was found, 

and that the area was barricaded. Tr. 129-30. 

 Steve Littleton began working for Saiia as a rock truck driver in March of 2010, and was 

a current employee of the company when he testified. Tr. 132-33. Contrary to his earlier detailed 

account of events surrounding the April 2010 misfires, Littleton testified that he did not 

38 FMSHRC Page 2299
remember much about the subject, nor what he had said during his interview with Smallwood. 

Tr. 135-36; see Tr. 137-42, 144-45. In addressing his drastic departure from his earlier 

statements, Littleton suggested the possibility that, at the time Smallwood conducted his 

interviews, a discussion with “Steve or somebody, you know, on the ground, parking lot, 

whatever,” may have occurred and influenced his statement. Tr. 140-41. When reminded that 

Harbin was not in the state of Alabama when Smallwood conducted his interviews, Littleton 

switched gears, stating that the parking lot exchange possibly occurred “immediately after the 

incident, before he quit.” Tr. 143. When asked a question on direct-examination designed to 

highlight his sudden lapse of memory, Littleton responded that “[t]hat was then. This is now. I 

mean, I don’t hardly remember what happened last week, if you want to know the honest truth.” 

Tr. 145. 

 Ricky Cheatham was employed by Saiia as a haul truck driver from June 2005 until 

August 2010; in April 2010, he was either stockpiling marble in the Brown quarry or hauling dirt 

to the dump. Tr. 152-54. He recalled Harbin calling in a misfire over the CB radio, and Looney 

telling him to “go down and pick it up and haul it to the dump.” Tr. 155-56. According to him, 

the other supervisor, Ragland, told the stripping crew to go back to work over the CB radio, and 

these events occurred on Tuesday or Wednesday. Tr. 156-57. Cheatham also stated that “Steve 

[Harbin] told everybody, no, we’re not going back down there and loading none of that rock until 

they come down there and do something about it.” Tr. 157-58. That same day, he testified, 

Crawley flagged the area and removed the workers, and he recalled only one misfire. Tr. 158, 

159-60. 

 Rayford Cheatham, Ricky’s brother, also worked five years for Saiia until 2010, and was 

driving a haul truck in the Brown quarry in April of 2010. Tr. 163. He testified that the stripping 

crew was given the “all clear” signal by Apache after the shot, that Harbin was digging in the 

highwall and came across a misfire, and that everyone in the pit that day also saw the “pink stuff 

running out of the highwall . . . . all over the rocks.” Tr. 164, 168. According to him, Harbin 

reported it over the CB radio, and “they came down there and looked, and Fred Looney told him 

to go ahead and load it, take it to the dump and hide it,” over the CB radio. Tr. 164-65, 168. 

Cheatham averred that he heard Looney make the statement, and that “everybody joked about it. 

Every time - - they came over the radio to say something like that and knowing that [Omya] 

monitored the radio.” Tr. 167-69. By his account, Harbin refused to keep digging and moved the 

crew to another spot, after which Crawley was made aware of the situation, had the area 

barricaded, and moved the crew out of the area. Tr. 166, 178-79. On cross-examination, 

Cheatham placed Ragland at the quarry on the day of the misfire discovery, blocking traffic on 

the road to prevent entry or exit until Apache had completed the blast. Tr. 176-78. Finally, he 

had no recollection of Harbin showing Ragland the misfire, and stated that all events about 

which he testified had occurred on the same day, although he could not pinpoint which day. Tr. 

178-79. 

 Mitchell Smallwood, an MSHA inspector of almost six years with 23 years of mining 

experience, including certification as a mine foreman and an underground shot blaster, testified 

largely based on his interview notes, verifying the statements made to him during the hazard 

complaint investigation. Tr. 180-81. He stated that the non-management employees were 

sequestered for questioning. Tr. 189-90. Steve Harbin was not the first person to bring up the CB 

38 FMSHRC Page 2300
radio conversation in which Harbin allegedly reported the misfire to Ragland and was told to 

keep digging; it was, in fact, the first non-management employees interviewed, Tommy Smith 

and Steve Littleton. Tr. 190-92. Smallwood explained why, based on the interviews, he 

determined that Saiia had permitted its miners to continue working in the area after a misfire had 

been discovered, that the hazard was reasonably likely to result in a fatality, and that 

management had directly ordered its miners to work in the face of grave danger. Tr. 200-04. 

 Quarry manager Oscar Crawley had worked for Omya just shy of eight years when he 

testified for Saiia. Tr. 221. Crawley stated that during his drive through the Brown quarry on the 

afternoon of Monday, April 12, he was summoned by Harbin, who advised him of a misfire; he 

had the area barricaded with rocks, and notified the blaster and Saiia’s mining manager of the 

misfire. Tr. 222-23. He testified that he had not been present at the Brown quarry the previous 

Friday, and that he did not recall talking to Looney or Ragland about his handling of the misfire. 

Tr. 225. Crawley verified his earlier statement that Harbin had told him that he had reported the 

misfire to his supervisor over the CB radio, but had not specified the day on which that had 

occurred. Tr. 228-29. Finally, he stated that retraining blasters was recommended to Apache 

during the April 14 contractors meeting, as an extra safety precaution to remind them of the 

proper procedures. Tr. 229-30. 

 Darrell Ragland, employed by Saiia for over 15 years at the time of hearing, had been 

lead operator overseeing the daily mining operations at the Brown quarry since the project had 

begun in late February or early April of 2010. Tr. 233-34. He testified that in April of 2010, 

Saiia’s practice was to guard entrances to the quarry and monitor CB radio communications from 

Apache during blasting, and Apache was responsible for post-blast examinations and relaying 

the “all clear” signal for Saiia workers to begin excavation. Tr. 235-36. Ragland remembered 

Friday, April 9 as uneventful and, according to the daily log, he drove the water truck that day. 

Tr. 237-38; Ex. R-7 at 1. He also stated that he took a vacation day the following Monday for a 

doctor’s appointment. Tr. 239; Ex. 7 at 2, 11. Ragland testified that on Tuesday, the miners 

informed him that a misfire had been found on Monday, that Crawley had already barricaded the 

area, and that the misfire was reshot that Tuesday. Tr. 242-43; Ex. R-7 at 5. He denied ever 

sending anyone into a blasting area before receiving an “all clear” signal, as well as directing 

anyone over the CB radio to keep digging in the face of a misfire. Tr. 245-46; see Tr. 256-258. 

Ragland stated that he did not remember having any conversation with Harbin on Friday or 

Tuesday, nor since the misfire incident. Tr. 247. When given the opportunity on crossexamination to review his statement given during Saiia’s internal investigation, Ragland 

acknowledged that Harbin had found a second misfire and removed the excavator from the area, 

and that Looney had Alex Barton remove the misfire; he also admitted that he had spoken to 

Harbin after he had found the second misfire, telling him “if you find another booster, call me.” 

Tr. 254-55. Ragland also testified that he was replaced as quarry supervisor after the April 

misfires by a person with “more experience with just the overall mining plan and [who would] 

help Omya get the work going in the direction they needed to.” Tr. 258. 

 Frederick Looney had worked for Saiia for over 25 years, had operated equipment for 10 

years, and had been quarry superintendent for five or six years. Tr. 259-60. Looney testified that 

both quarries were operating on Friday, April 9, that he was at the Omya quarry most of the day, 

and that he remembered nothing unusual about blasting activities. Tr. 261-62. He stated that the 

38 FMSHRC Page 2301
following Monday evening, when he arrived at the Brown quarry, Crawley was closing down 

and had earlier barricaded the area of the misfire. Tr. 262-63. Looney acknowledged moving 

back and forth between Omya and Brown during the course of the day and, after initially 

testifying that he had not gone to the Brown quarry on Tuesday, he stated that he had, in fact, 

visited the quarry in the evening. Tr. 265-67. However, upon further questioning, he stated that 

he did not remember whether he was at Brown in the morning or evening, or whether the blast 

had already taken place; then he supposed that it “might have been mid-morning, maybe 

somewhere right around 12:00, 11:30, 12:00, something like that.” Tr. 267-68. He did state that 

the barricade had been taken down and the quarry was operating normally. Tr. 268-69. Looney 

denied having a conversation with Harbin, or a conversation over the CB radio on Friday or 

Tuesday; he also denied ordering anyone to work around a misfire or in a blast area before an 

“all clear” signal was given, or ordering anyone to haul a misfire to the dump. Tr. 269-70, 272-

73. In reference to his interview with Daniels, in which he appeared to minimize the danger of 

working in an area around a misfire, Looney asserted that he would not put someone in that 

position, but then added that he had never seen a danger in it. Tr. 275-77. 

b. Analysis 

 Resolution of the issues in this case is entirely fact-based and requires credibility 

determinations and reconciliation of inconsistent statements and testimony. As a preliminary 

matter, I find the miners’ statements taken during Smallwood’s investigation in May to be the 

most credible source of evidence in determining the course of events that triggered the hazard 

complaint. These statements were made closest in time to the incidents in question and even 

then, memories had already begun to fade as to exact dates and times; this is especially true 

given that there had been two separate, but interrelated, misfires, and discrete details of the first 

were often commingled with the second and vice-versa. Furthermore, unlike the statements taken 

later in May during Saiia’s internal investigation, statements to Smallwood were made without 

the involvement of any management personnel. While it is abundantly clear that with each 

subsequent investigation, the passage of time progressively eroded the miners’ ability to 

compartmentalize the two incidents, to make matters worse, the reliability of Daniels’ 

investigation the following November was further compromised by the presence of Saiia’s 

attorney in the Omya conference room when the miners’ statements were being taken. The 

hearing was held almost two years after that. Most discrepancies in the witnesses’ accounts were, 

understandably, products of the passage of time. This is evident by the fact that witnesses, such 

as the Cheatham brothers, testified to events that, by most other accounts, occurred on days 

during which they were absent from work. The most noteworthy lapse of memory and extreme 

about-face in testimony came from a miner still employed by Saiia, who obviously had concerns 

about jeopardizing his job. However, despite the passage of time and the tedious task of making 

the investigation statements jibe, then squaring them with the testimony at hearing, common 

threads of evidence emerge that weave the probable tapestry of events. Moreover, any 

allegations that Harbin called in the hazard complaint to MSHA, had an axe to grind with Saiia, 

or influenced any witnesses’ statements or testimony is without support in the record. See Resp’t 

Br. at 7-8. As will be explained, I fully credit Harbin’s testimony as to the days on which he 

discovered the misfires, to whom he reported them, and what instructions he was given as a 

result. I also find his reason for ending his employment at Saiia, that he was required to work 

38 FMSHRC Page 2302
around live, undetonated explosives, in line with his overall testimony, supported by the record, 

and wholly credible. 

 Smallwood’s visit to the mine was unannounced and the miners were sequestered. Smith 

(Ex. P-1 at 6) and Littleton (Ex. P-1 at 6-7) were the first two of five hourly miners to tell 

Smallwood that they heard Harbin call in a misfire to Ragland over the CB radio, and Littleton 

thought that it had happened on Friday or Saturday. Bradberry (Ex. P-1 at 13), Ricky Cheatham 

(Ex. P-1 at 15), and Watkins (Ex. P-1 at 16), likewise, gave strikingly similar statements. 

Rayford Cheatham’s statement, while similar, was lacking in detail that the report was made over 

the CB radio. Ex. P-1 at 14. Even before their statements, Looney had told Smallwood that 

Harbin had notified Ragland of the misfire. Ex. P-1 at 4. Smith, Bradberry, Ricky Cheatham and 

Watkins told Smallwood that they heard Ragland tell Harbin to “keep digging” or “keep 

loading.” Littleton said that Ragland told Harbin that “sometimes they looked like that and to just 

keep digging.” Rayford Cheatham said that Ragland told Harbin that “it was ok and go back to 

work.” Steve Harbin, then, whose statement was taken later by phone, corroborated the on-site 

hourly employees’ accounts of his report of the misfire to Ragland, rather than the other way 

around, and his rendition of Ragland’s response, “sometimes they [look] like that and to keep on 

digging,” was nearly the same as Littleton’s, verbatim. Ex. P-1 at 9. 

 For Ragland to have directed Harbin to keep working in the face of an unfired shot, that 

incident would have had to have occurred on Friday, April 9, as the Secretary contends, since 

Ragland was not at the quarry the following Monday. Fortuitously, Crawley provides the key to 

establishing when the misfire was discovered. Crawley, clearly referring to the first misfire, told 

Daniels that “Harbin said he reported the misfire to his supervisor over the radio.” Ex. R-29 at 2; 

see Tr. 228-29. Clearly, Harbin summoned Crawley to the site of the unfired shot to get 

something done about it -- something that he had not been able to accomplish by reporting it to 

his supervisor three days earlier. 

 Harbin also told Smallwood that after the Tuesday blast, he found another unfired shot 

near the first misfire and reported it to Ragland and Looney, who were both at the quarry; he was 

told that if he found a booster to send it to the dump and not stop digging. Ex. P-1 at 10. Harbin’s 

subsequent statement to Daniels was consistent with that statement. Ex. R-23 at 2. Watkins 

stated during Saiia’s investigation that Harbin called Looney on Tuesday when he found the 

second misfire, and Looney told Harbin to take everything to the dump. Ex. R-21. Although 

Looney told Daniels that he had not been at the Brown quarry when the first misfire was found 

and that he had no knowledge of the second misfire (Ex. R-8 at 5), Ragland told Daniels that he 

and Looney were notified of the misfire at the same time on Tuesday. Ex. R-6 at 4-5. During 

Saiia’s investigation, Ragland stated that it was Looney who had called Alex Barton to have the 

misfire removed from the area. Ex. R-5. Barton, on the other hand, told Saiia that Ragland had 

called him to report that another unfired booster had been found. Ex. R-13. Smith, recanting his 

earlier statements to Smallwood in the presence of Saiia’s attorney, told Daniels that he heard 

Harbin reporting a misfire to Looney, and that Looney directed him to “cease work and he would 

investigate it.” Ex. R-22 at 3. 

 In addition to Harbin, too many workers reported Looney to have directed Harbin to dig 

up the misfire and dispose of it in the dump to be disbelieved. Additionally, Looney’s blanket 

38 FMSHRC Page 2303
denial of ever ordering work to continue following discovery of a misfire is belied by his lack of 

appreciation of the seriousness of the hazard. When asked by Daniels whether it is dangerous to 

dig and load in an area where a misfire has occurred, his response was “I have never seen a 

danger in it.” Ex. R-8 at 4. His opportunity at hearing to soften the negative import of his 

statement missed the mark, as his testimony essentially reiterated his position that in all his years 

of experience, he had never seen an unfired booster actually explode. See Tr. 276-77. 

 Although the hourly workers’ accounts of the two misfires arising out of the Friday blast 

vary in many respects, they place Ragland at the Brown quarry on Friday, Ragland and Looney 

both at the quarry on Tuesday, and have both supervisors verbally responding to one or the other 

of Harbin’s reports of the misfires. The overwhelming weight of the evidence establishes that 

Harbin discovered the first misfire on Friday, April 9, that he reported it to Ragland over the CB 

radio, that Ragland instructed him to keep operating despite the obvious danger, and that mining 

continued until Crawley intervened the following Monday. Likewise, the record also establishes 

that on Tuesday, April 13, Harbin discovered the second misfire in the vicinity of the first, that 

he reported it to Looney and, perhaps, Ragland, that Looney directed him to haul it to the dump 

to hide it, and that mining continued before it was removed by Apache. It is equally clear that 

Harbin’s motivation in quitting his job and securing employment out of state, away from his 

family, was squarely rooted in his desire to remove himself from the hazardous work 

environment. Because work was permitted, in addition to that which was necessary for safe 

removal and disposal of the misfires from the affected area, I find that section 56.6311(b) was 

violated. 

 2. Significant and Substantial 

 In Mathies Coal Company, the Commission set forth four criteria that the Secretary must 

establish in order to prove that a violation is S&S under National Gypsum, 3 FMSHRC 822 (Apr. 

1981): 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. 6 FMSHRC 1, 3-4 (Jan. 1984) 

(footnote omitted); see also Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 135 (7th Cir. 

1995); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103-04 (5th Cir. 1988), aff'g 9 

FMSHRC 2015, 2021 (Dec. 1987) (approving Mathies criteria). 

 In U.S. Steel Mining Company, 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.” 

6 FMSHRC 1834, 1836 (Aug. 1984). We have emphasized that, in 

accordance with the language of section 104(d)(1), it is the contribution of a 

violation to the cause and effect of a hazard that must be significant and 

substantial. U. S. Steel Mining Co., Inc., 6 FMSHRC 1866, 1868 (Aug. 1984); 

U. S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574-75 (July 1984). 

38 FMSHRC Page 2304
 Evaluation of the third criterion, the reasonable likelihood of injury, should be made in 

the context of ‘“continued normal mining operations.’” U.S. Steel Mining Co., 6 FMSHRC 1573, 

1574 (July 1984). Moreover, resolution of whether a violation is S&S must be based “on the 

particular facts surrounding that violation.” Texasgulf, Inc., 10 FMSHRC 498, 501 (Apr. 1988); 

Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2011-12 (Dec. 1987). The Commission 

clarified that “[t]he Secretary need not prove a reasonable likelihood that the violation itself will 

cause injury.” Musser Eng’g, Inc., 32 FMSHRC 1257, 1281 (Oct. 2010). The Commission also 

emphasized the well-established precedent that “the absence of an injury-producing event when a 

cited practice has occurred does not preclude a determination of S&S.” Id. (citing Elk Run Coal 

Co., 27 FMSHRC 899, 906 (Dec. 2005); and Blue Bayou Sand & Gravel, Inc., 18 FMSHRC 853, 

857 (June 1996)). 

 

 The underlying violation has been established. The second criterion of the Mathies test 

has been met, in that allowing mining to continue in an area where there are live boosters 

heightened the risk of exposing miners to an unintended, unexpected detonation. The focus of the 

S&S analysis, then, is the third and fourth Mathies criteria, i.e., whether the hazard contributed to 

was reasonably likely to result in an injury, and whether the injury would be serious. Smallwood 

testified that working around an unfired shot endangered the lives of the excavator operator and 

truck drivers, whose only protection was the windshields in their equipment, that the unfired shot 

was located near material that had been “broken” from a prior shot, and that there would be 

“nothing there to prevent that material from traveling in any direction.” Tr. 202-03. Harbin, also 

experienced in mining around explosives, testified that the explosives were powerful enough to 

have killed two or three truck drivers in the immediate area, and that even workers hundreds of 

yards away would be endangered by flying rocks. Tr. 62-64, 71. Even Ragland acknowledged 

that a booster could go off and “possibly ignite any other explosives” nearby. Tr. 249. Clearly, 

excavating and loading in an area containing a misfire is reasonably likely to result in the shot 

detonating, and can reasonably be expected to result in very serious, if not fatal, injuries. 

Therefore, I find that the violation was S&S. 

 3. Negligence and Unwarrantable Failure 

Unwarrantable failure is aggravated conduct constituting more than ordinary negligence. 

Emery Mining Corp., 9 FMSHRC 1997, 2001 (Dec. 1987). Unwarrantable failure is 

characterized by such conduct as “reckless disregard,” “intentional misconduct,” indifference,” 

or a “serious lack of reasonable care.” Id. at 2001-04; Rochester & Pittsburgh Coal Co., 13 

FMSHRC 189, 194 (Feb. 1991); see also Buck Creek Coal, 52 F.3d at 136. The Commission has 

recognized the relevance of several factors in determining whether conduct is “aggravated” in the 

context of unwarrantable failure, such as the extensiveness of the violation, the length of time 

that the violation has existed, whether the violation posed a high risk of danger, whether the 

violation was obvious, the operator’s knowledge of the existence of the violation, the operator’s 

efforts in eliminating the violative condition, and whether the operator has been put on notice 

that greater efforts are necessary for compliance. See McCoy Elkhorn Coal Corp., 36 FMSHRC 

1987, 1993 (Aug. 2014) (citing Manalapan Mining Co., 35 FMSHRC 289, 293 (Feb. 2013); IO 

Coal Co., 31 FMSHRC 1346, 1350-57 (Dec. 2009); Cyprus Emerald Res. Corp., 20 FMSHRC 

790, 813 (Aug. 1998), rev’d on other grounds, 195 F.3d 42 (D.C. Cir. 1999)). Each case must be 

examined on its own facts to determine whether an actor’s conduct is aggravated, or whether 

38 FMSHRC Page 2305
mitigating circumstances exist. Eagle Energy, Inc., 23 FMSHRC 829, 834 (Aug. 2001) (citing 

Consolidation Coal, 22 FMSHRC at 353). Although some factors may be irrelevant to a 

particular scenario, all relevant factors must be examined. ICG Hazard LLC, 36 FMSHRC 2635, 

2637-38 (Oct. 2014) (citing IO Coal, 31 FMSHRC at 1351). 

The Secretary charges that Saiia’s conduct was a reckless disregard of the dangers posed 

by permitting mining to continue in the face of misfires, that constituted an unwarrantable failure 

to comply with the standard. The negligence of an operator’s agent is imputable to the operator 

for penalty assessment and unwarrantable failure purposes. Nelson Quarries, Inc., 31 FMSHRC 

318, 328 (Mar. 2009) (citations omitted). The parties have stipulated to Ragland’s and Looney’s 

status as agents of Saiia. Stip. 9. Ragland’s very public order to Harbin to “keep on digging,” 

where one misfire had been found, and Looney’s equally public order that Harbin haul any 

unearthed misfires to the dump under circumstances where, indeed, not one but two unfired shots 

had been discovered as a result of the Friday blast, demonstrated a pattern of aggravated conduct 

that rose to the level of indicia of unwarrantable failure - - intentional misconduct, indifference, 

and a serious lack of reasonable care. Crawley’s handling of the first misfire put Saiia on notice 

that greater efforts for compliance were necessary when the second misfire was encountered. The 

violation was obvious, significant, and extensive, affecting several miners within a broad radius 

of where they were working. The message was loud and clear: production over human life. 

Furthermore, after the Friday blast, the miners worked unprotected in the hazardous environment 

until Monday; likewise, they worked unprotected near the second misfire until Apache removed 

it some 30 minutes later. No credible accounts of the circumstances surrounding the April 9 blast 

attribute any timely precautionary behavior on the part of Saiia and, therefore, I find no 

mitigating factors. Indeed, Omya’s intervention on Monday was a godsend and, given the 

reckless conduct of Saiia’s supervisory personnel running the quarries, it is not surprising that 

Harbin chose to seek employment elsewhere. Therefore, I impute Ragland’s and Looney’s 

reckless disregard of the violative condition to Saiia, and find that the Secretary has met his 

burden of establishing a serious lack of reasonable care by the operator that constituted an 

unwarrantable failure to comply with the standard. 

 B. Ragland and Looney

 Section 110(c) of the Act provides that, whenever a corporate operator violates a 

mandatory health or safety standard, an agent of the operator who knowingly authorized, 

ordered, or carried out such violation shall be subject to an individual civil penalty. 30 U.S.C. § 

820(c). In determining liability under section 110(c), the proper legal inquiry is whether the 

corporate agent knew or had reason to know of a violative condition. Lafarge Constr. Materials, 

20 FMSHRC 1140, 1148 (Oct. 1998) (citing Kenny Richardson, 3 FMSHRC 8, 16 (Jan. 1981), 

aff’d on other grounds, 689 F.2d 632 (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 section 110(c) liability, the Secretary need only prove that an individual acted 

knowingly, not that the individual knowingly violated the law. Id. (citing Warren Steen Constr. 

Inc., 14 FMSHRC 1125, 1131 (July 1992)). An individual acts knowingly where he is “‘in a 

position to protect employee safety and health [and] fails to act on the basis of information that 

gives him knowledge or reason to know of the existence of the violative condition.’” Id. (quoting 

Kenny Richardson, 3 FMSHRC at 16). The Commission has explained that a person has reason 

38 FMSHRC Page 2306
to know ‘“when he has such information as would lead a person exercising reasonable care to 

acquire knowledge of the fact in question or to infer its existence.”’ Id. at 1149 (citation 

omitted). In addition, section 110(c) liability is generally predicated on aggravated conduct 

constituting more than ordinary negligence. Id. at 1148 (citing BethEneregy Mines, Inc., 14 

FMSHRC 1232, 1245 (Aug. 1992)). 

 The overwhelming weight of the evidence establishes that Ragland, in his supervisory 

position over the Brown quarry, and Looney, his superior, were responsible for protecting the 

safety of Saiia employees who were removing and hauling material after the Friday, April 9 

blast. On two separate occasions post-blast, in the face of one, then a second reported misfire, 

Ragland, then Looney, in earshot of several miners, knowingly ordered work to continue, despite 

the obvious hazard. Even more egregious was Looney’s instruction to Harbin that he dispose of 

the misfire in an unsafe manner. To say that their collective behavior was callous fails to decry 

the environment in which they obviously deemed their conduct to have been acceptable. In light 

of the fatal consequences of working around live explosives, the agents’ failure to take 

immediate corrective measures to eliminate the hazards amounted to an aggravated lack of care 

far exceeding ordinary negligence. Therefore, I find both Ragland and Looney, individually, 

liable under section 110(c) of the Act. 

IV. Penalty

 

 While the Secretary has proposed a civil penalty of $42,600.00 against Saiia, $3,000.00 

against Ragland, and $3,300.00 against Looney, the Judge must independently determine the 

appropriate assessment by proper consideration of the six penalty criteria set forth in section 

110(i) of the Act, 30 U.S.C. § 820(i). See Sellersburg Co., 5 FMSHRC 287, 291-92 (Mar. 1983), 

aff’d 736 F.2d 1147 (7th Cir. 1984). The penalty criteria are: the operator’s history of previous 

violations; the appropriateness of the penalty to the size of the operator’s business; whether the 

operator was negligent; the effect of the penalty on the operator’s ability to continue in business; 

the gravity of the violation; and the demonstrated good faith efforts in achieving rapid 

compliance after notification of the violation. 30 U.S.C. § 820(i). 

 The Secretary’s arguments address the Sellersburg penalty criteria respecting Saiia, but 

are limited to only the gravity, negligence and good faith abatement criteria respecting Ragland 

and Looney. Saiia focused its arguments solely on the fact of violation, and failed to address the 

Sellersburg penalty criteria respecting any Respondent. Furthermore, the Secretary presented no 

evidence of Ragland’s and Looney’s income and net worth, and Ragland and Looney produced 

no evidence of their income, net worth and family support obligations, which bear upon the 

criteria upon which individual penalties are set. 

 

 A. Saiia

 Applying the penalty criteria, I find that Saiia is a small- to medium-sized operator, with 

no history of similar violations and an overall record that is not an aggravating factor in assessing 

an appropriate penalty. As stipulated by the parties, the proposed penalty will not affect Saiia’s 

ability to continue in business. Stip. 8. I also find Saiia’s demonstration of good faith in 

38 FMSHRC Page 2307
achieving rapid compliance totally lacking, given its failure to timely address discovery of the 

two misfires in any reasonable manner. 

 The remaining criteria involve consideration of the gravity of the violation and Saiia’s 

negligence in causing it. I find subjecting workers to the adverse consequences of working 

around unfired boosters for any amount of time to constitute a very serious violation. I also find 

the conduct of its agents to be so highly negligent as to be indefensible. 

 

 Therefore, having considered Saiia’s small to medium size, its insignificant history of 

violations, the seriousness of the violation, its high degree of negligence in committing the 

violation, its lack of good faith compliance, and lack of any mitigating factors, I find that a 

penalty of $42,600.00, as proposed by the Secretary, is appropriate. 

 

 B. Darrell Ragland 

 ‘“[J]udges must make findings on each of the [statutory penalty] criteria [of section 

110(i)] as they apply to individuals.”’ Wayne R. Steen, 20 FMSHRC 381, 382 (Apr. 1998) 

(quoting Sunny Ridge Mining Co., 19 FMSHRC 254, 272 (Feb. 1997)). Gravity and good faith 

abatement may be assessed by using “the same record evidence that is used in assessing an 

operator’s penalty for the violation underlying the section 110(c) liability.” Sunny Ridge, 19 

FMSHRC at 272. On the other hand, judges must assess the size and effect criteria by way of 

analogy by considering an individual’s income, family support obligations, the appropriateness 

of the penalty in light of the individual’s job responsibility, and ability to pay. Id. In 110(c) 

cases, penalties must be appropriate “in light of an individual’s income and net worth.” Ambrosia 

Coal & Constr. Co., 19 FMSHRC 819, 824 (May 1997). The proper inquiry for the effect of a 

penalty on an individual is “whether the penalty will affect the individual’s ability to meet his 

financial obligations.” Id. 

 It is presumed, based on Saiia’s clear record, that Ragland has no history of previous 

violations. It is also presumed, based on the Secretary’s failure to present evidence regarding 

Ragland’s income and net worth, that Ragland’s net worth is small. On the other hand, since 

Ragland has produced no evidence of his income, net worth, and family support obligations, it is 

presumed that the penalty will not affect his ability to meet his financial obligations. See 

Sellersburg, 5 FMSHRC at 294 (stating that, absent proof that the imposition of penalties would 

adversely affect an operator’s ability to continue in business, it is presumed that no such adverse 

effect would occur). The seriousness of the violation has been fully discussed, as has Ragland’s 

rank and reckless disregard of the hazard in committing it, and his failure to abate the violation in 

good faith. Therefore, I find that a penalty of $3,000.00, as proposed by the Secretary, is 

appropriate. 

 C. Frederick Looney 

 Based on the same lack of evidence, I find, by presumption, that Looney has no history of 

previous violations, that his net worth is small, and that the penalty will not affect his ability to 

meet his financial obligations. The violation was very serious, Looney supervised both quarries 

and displayed a reckless disregard of the hazard in committing it, and failed to abate the violation 

38 FMSHRC Page 2308
in good faith. Therefore, I find that a penalty of $3,300.00, as proposed by the Secretary, is 

appropriate. 

ORDER 

 WHEREFORE, it is ORDERED that Order No. 6517482 is AFFIRMED, as issued, 

and that Saiia Construction, LLC, PAY a civil penalty of $42,600.00 within thirty (30) days of 

the date of this Decision. 

 Further it is ORDERED that Respondent Darrell Ragland PAY a civil penalty of 

$3,000.00 within thirty (30) days of the date of this Decision. 

 Further, it is ORDERED that Respondent Frederick Looney PAY a civil penalty of 

$3,300.00 within thirty (30) days of the date of this Decision.4

 

 ACCORDINGLY, these cases are DISMISSED. 

 /s/ Jacqueline R. Bulluck 

 Jacqueline R. Bulluck 

 Administrative Law Judge 

Distribution: (Certified Mail) 

Jeremy K. Fisher, U.S. Department of Labor, Office of the Solicitor, 61 Forsyth Street, 

S.W., Room 7T10, Atlanta, GA 30303 

John W. Hargrove, Esq., Bradley Arant Boult Cummings, LLP, One Federal Place, 1819 

Fifth Avenue North, Birmingham, AL 35203 

 4

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

Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390. Please include Docket 

number and A.C. number. 

38 FMSHRC Page 2309
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVENUE NW, SUITE 520N 

WASHINGTON, D.C. 20004 

August 30, 2016 

DECISION ON REMAND 

Appearances: Evan B. Smith, Esq., Wes Addington, Esq., Appalachian Citizens’ Law Center, 

Whitesburg, Kentucky, on behalf of the Complainant, 

 Tony Oppegard, Esq., Lexington, Kentucky, on behalf of the Complainant, 

 David J. Hardy, Esq., Wm. Scott Wickline, Esq., Hardy Pence, PLLC, 

Charleston, West Virginia, on behalf of the Respondent. 

Before: Judge Feldman 

 This matter is before me based on a Complaint of Discrimination brought by Scott D. 

McGlothlin against Dominion Coal Corporation (“Dominion”), pursuant to section 105(c)(3) of 

the Federal Mine Safety and Health Act of 1977, as amended, 30 U.S.C. § 815(c)(3) (2006) 

(“Mine Act” or “the Act”). The Commission has awarded McGlothlin $88,975.48 in attorney 

fees. McGlothlin v. Dominion Coal Corp., 38 FMSHRC 401 (Mar. 2016). McGlothlin now seeks 

reimbursement for additional attorney fees in the amount of $41,525.00. The Commission has 

remanded this matter for my consideration of McGlothlin’s request for reimbursement of the 

additional fees. 38 FMSHRC __, slip op. at 2 (July 15, 2016). 

I. Background 

 In order to evaluate McGlothlin’s current claim for $41,525.00 in additional attorney 

fees, it is helpful to review the chronology of events in this proceeding. A June 11, 2015, 

Decision on Liability resolved the liability at issue without the need for an evidentiary hearing. 

37 FMSHRC 1256 (June 2015) (ALJ). The summary decision on liability, based on an 

undisputed chronology of events, held that Dominion violated the anti-discrimination provisions 

of section 105(c) by interfering with McGlothlin’s right to pay protection under 30 C.F.R. Part 

90 when Dominion reduced McGlothlin’s pay after McGlothlin sought a determination 

concerning his eligibility for Part 90 protection.1 Id. at 1264-1266. 

 1

 Under 30 C.F.R. Part 90, a miner determined to have evidence of the development of 

pneumoconiosis must be given the opportunity to work in a less dusty area of a mine without a 

reduction in pay. 

SCOTT D. MCGLOTHLIN, 

 Complainant, 

 v. 

DOMINION COAL CORPORATION, 

 Respondent. 

 DISCRIMINATION PROCEEDING 

Docket No. VA 2014-233-D 

NORT-CD-2013-04 

Mine: Dominion No. 7 

Mine ID: 44-06499 

38 FMSHRC Page 2310
 Consistent with longstanding Commission procedure, the Decision on Liability ordered 

the parties to file either individual or joint petitions for relief. 37 FMSHRC at 1265-66. Despite 

my order, on September 2, 2015, the parties filed a Joint Motion to Dismiss McGlothlin’s 

complaint based on the parties’ proposed settlement. The parties’ Joint Motion to Dismiss was 

predicated upon McGlothlin’s agreement that “the parties jointly move the Court to dismiss all 

claims in this action with prejudice” in exchange for Dominion’s agreement to pay the relief 

sought by McGlothlin, including his request for reimbursement of $88,975.48 in attorney fees. 

Jt. Mot. to Dismiss, at 2 (Sept. 2, 2015). 

 The propriety of the proposed $88,975.48 in attorney fees in the parties’ Joint Motion to 

Dismiss was problematical as it was based on a mutual agreement to vitiate the previously-issued 

Decision on Liability through a proposed agreement that would have both insulated Dominion 

from the adverse history of its 105(c) violation, and released Dominion from the resultant civil 

penalty liability that was to be imposed by the Secretary as a consequence of its violation.2

 See 

37 FMSHRC at 1266; 30 U.S.C. §§ 814(a), 815(a); 29 C.F.R. § 2700.44(b). In other words, I 

was concerned that the proposed attorney fees may have been inflated in exchange for the 

parties’ attempt to unilaterally absolve Dominion of a Commission finding of liability.3 37 

FMSHRC 2511, 2513 (Oct. 2015) (ALJ). Consequently, the parties’ Joint Motion to Dismiss was 

denied, as it goes without saying that Commission decisions on liability cannot be undone in 

exchange for preferable settlement terms. Id. 

 The parties submitted a revised Joint Motion to Approve Settlement on November 11, 

2015. In an attempt to rectify the rejection of their September 2, 2015, Joint Motion to Dismiss, 

the parties replaced the term concerning the absolution of Dominion’s liability with a term 

reflecting that “Dominion[] waive[s] its right to appeal this Court’s Decision on Liability.” Jt. 

Mot. to Approve Settlement, at 2 (Nov. 11, 2015) (hereinafter “November 11 Proposed 

Settlement”). The parties’ November 11 Proposed Settlement retained the claim for 

reimbursement for $88,975.48 in attorney fees. Confidential Settlement Agmt., at 2 (Nov. 11, 

2015). 

 Granting the proposed settlement terms regarding attorney fees in the November 11 

Proposed Settlement would have, in effect, credited the terms of the parties’ previously 

 2

 Dominion has now paid a civil penalty of $12,500.00 based on an approved settlement 

agreement with the Secretary in satisfaction of its discriminatory conduct against McGlothlin. 38 

FMSHRC 1256 (May 2016) (ALJ). 

3

 The fact that attorney agreements with respect to fees should be scrutinized in instances 

where they may be motivated by an agreement to contravene the purpose of the litigation is not a 

matter of first impression. Such agreements between opposing counsel in fee shifting cases are 

known as “sweetheart settlements.” Sweetheart agreements involve defendants “buying out” 

plaintiff’s lawyers by agreeing to pay them unusually high legal fees in an effort to defeat the 

deterrent effect of the illegal activity that gave rise to the lawsuit. See Charles W. Wolfram, The 

Second Set of Players: Lawyers, Fee Shifting, and the Limits of Professional Discipline, 47 

LAW AND CONTEMPORARY PROBLEMS 293, 301 (1984). 

38 FMSHRC Page 2311
discredited Joint Motion to Dismiss. Consequently, on February 8, 2016, I issued a Decision on 

Relief awarding the full $45,942.61 in monetary relief sought by McGlothlin, but reduced the 

attorney fees claimed by McGlothlin’s counsel from $88,975.48 to $57,229.82, based on a 

finding that the total attorney fees sought were excessive, in that they were duplicative, 

unnecessary, and/or unreasonable, and thus not awardable under section 105(c)(3).4 38 

FMSHRC 255, 268 (Feb. 2016) (ALJ). 

On March 10, 2016, McGlothlin filed a petition for discretionary review (“PDR”) with 

the Commission, challenging only the reduction in attorney fees. Dominion did not oppose 

McGlothlin’s PDR. On March 30, 2016, the Commission issued a decision that did not disturb 

the Decision on Liability or the monetary relief awarded to McGlothlin. 38 FMSHRC 401 (Mar.

2016). However, the Commission vacated the reduction of attorney fees awarded to McGlothlin 

and approved the parties’ November 11 Proposed Settlement “based upon the agreed upon 

amount of attorneys’ fees.” Id. at 402. The Commission’s Decision did not reach the question of

attorney fees incurred after submission of the revised settlement agreement. Id. at 403 n.2. 

Thereafter, on June 20, 2016, McGlothlin filed a motion seeking an award of $41,525.00 

in additional attorney fees for reported legal services rendered during the period July 1, 2015, 

through June 20, 2016. This period represents work performed by McGlothlin’s counsel to 

recover the total $88,975.48 in attorney fees sought in the November 11 Proposed Settlement. 

This case now has been remanded “for a determination of any further award of attorneys’ fees.” 

38 FMSHRC __, slip op. at 2 (July 15, 2016). 

II. Analysis

a. Reported Settlement Agreement

As stated by McGlothlin: 

[t]he threshold question in this fee petition is whether Mr. McGlothlin’s counsel

are entitled to additional fees for the necessary time incurred to get the parties’

settlement approved and to get Dominion Coal to actually pay the agreed upon

amounts.

Mot. for Award of Attorneys’ Fees, at 10 (June 20, 2016) (emphasis added). However, the rub is 

that it is now apparent, based on the parties’ representations, that McGlothlin’s current claim for 

4

 Section 105(c)(3) provides: 

. . . [in] granting such relief as [the Commission] deems appropriate, [the 

Commission shall award] . . . a sum equal to the aggregate amount of all costs and 

expenses (including attorney’s fees) as determined by the Commission to have 

been reasonably incurred by the miner. . . . 

30 U.S.C. § 815(c)(3) (emphasis added). 

38 FMSHRC Page 2312
additional attorney fees is borne out of a conflict between the parties that arose following the 

issuance of the Decision on Relief. Specifically, despite the $57,229.82 in attorney fees awarded 

in the February 8, 2016, Decision on Relief, the following day, on February 9, McGlothlin’s 

counsel requested of Dominion via email: 

I want to minimize the impact this [decision] has on both of our clients though 

and propose that Dominion go ahead and cut checks as contemplated in the 

settlement. If Dominion will do that, then we won’t pursue any further fees 

against Dominion and our clients could consider their roles in this to be over. 

Id. at 7.5 Dominion declined this offer, insisting on paying only the $57,229.82 in attorney fees 

awarded in the Decision on Relief. Id. at 7-8; Dominion Resp., at 3. 

 Thus, while Dominion did not oppose McGlothlin’s PDR, it now appears that, as of the 

February 8, 2016, Decision on Relief, Dominion was no longer inclined to unilaterally pay 

McGlothlin $88,975.48 in attorney fees. Ultimately, Dominion paid the additional $31,745.66 

following the Commission’s March 30 decision approving the parties’ November 11 Proposed 

Settlement. Mot. for Award of Attorneys’ Fees, at 9. Nevertheless, as discussed below, Dominion 

now asserts that the $88,975.48 in attorney fees awarded to McGlothlin’s counsel by the 

Commission was excessive and, as such, $31,745.66 should be applied to offset the additional 

attorney fees currently sought. Dominion Reply, at 3 (July 29, 2016). 

b. Parties’ Positions 

 As a threshold matter, McGlothlin asserts that Dominion was required to abide by the 

terms of the November 11 Proposed Settlement. Thus, McGlothlin argues that the additional 

$41,525.00 in fees now sought could have been avoided if Dominion had paid the $88,975.48 in 

legal fees without the need for Commission approval. Mot. for Award of Attorneys’ Fees, at 12-

13. In this regard, McGlothlin seeks to justify the additional fees currently sought based on the 

 5

 In fact, McGlothlin had attempted to elicit payment of the full $88,975.48 in attorney 

fees prior to the issuance of the Decision on Relief, thus attempting to circumvent the 

Commission’s processes. In this regard, Dominion states: 

During the three-month interim between the submission of the [November 11 

Proposed Settlement] and the [February 8, 2016, Decision on Relief], the parties 

both were concerned about potential adverse rulings, primarily because of the 

Court’s unexpected rejection of their initial settlement proposal. The parties held 

multiple discussions on how to insulate their agreement against a potentially 

adverse ruling (to either party) by the Court. . . . [T]he parties discussed the 

possibility of a side-agreement that would hold the parties to the settlement terms, 

regardless of the Court’s ruling. 

Dominion Resp., at 3 (June 30, 2016). 

38 FMSHRC Page 2313
fact that Dominion “went back on its word” when it refused to pay the full $88,975.48 without a 

Commission decision requiring it to do so. Id. at 16. Accordingly, McGlothlin argues that 

Dominion is “directly responsible” for the accrual of the additional $41,525.00 in fees now being 

sought. Id. at 12. 

McGlothlin’s assertion that Dominion’s refusal to abide by the proposed settlement terms 

is material is based on a fundamental misconception. Proposed terms are just that—proposed 

terms. It is axiomatic that proposed settlement terms in Commission proceedings are not binding 

on the parties until approved by the Commission. Notwithstanding the immateriality of 

unapproved proposed terms, reimbursement of attorney fees under section 105(c)(3) does not 

depend upon blameworthiness. Rather, it is dependent upon whether the legal fees were 

“reasonably incurred.” 

Dominion contends that McGlothlin is precluded from recovering additional attorney fees 

based on three paragraphs (Paragraphs 5.1, 5.2, and 8.6) of the November 11 Proposed 

Settlement that insulate Dominion from liability for additional attorney fees upon its payment of 

the total $88,975.48 originally sought. Dominion Resp., at 8-9. Consequently, Dominion argues 

that its payment of the $88,975.48 in fees following the Commission’s March 30 Decision 

relieves it from any liability for additional attorney fees. Id. 

However, Paragraphs 5.1, 5.2, and 8.6 are proposed settlement terms that were not 

adopted by the Commission. Specifically, the Commission’s March 30 Decision held that “the 

Judge erred in rejecting the settlement based upon the [$88,975.48] agreed upon amount of 

attorneys’ fees.” 38 FMSHRC at 402 (emphasis added). 

It is clear that the Commission’s approval was limited to the “agreed upon amount of 

attorneys’ fees” and was not an adoption of any other provision in the November 11 Proposed 

Settlement. Id. Thus, the Commission’s holding only binds the parties in this discrimination 

matter with respect to the approval of the reimbursement of $88,975.48. The enforceability of 

any other terms of the November 11 Proposed Settlement not approved by the Commission goes 

beyond the scope of this proceeding. As such, the November 11 Proposed Settlement does not 

preclude McGlothlin from seeking additional attorney fees. 

Having determined that the terms of the November 11 Proposed Settlement do not 

preclude reimbursement, the focus shifts to whether the additional attorney fees now sought were 

reasonably incurred by McGlothlin’s counsel.6

 Consequently, consistent with the Commission’s 

remand, the parties were requested to file additional briefs addressing the reasonableness issue. 

38 FMSRHC __, slip op. at 2 (July 19, 2016). 

6

 Dominion’s procedural argument that McGlothlin’s request for additional attorney fees 

was untimely was, in essence, rejected by the Commission by virtue of their remand directing 

further analysis. 38 FMSHRC __, slip op. at 2 (July 15, 2016). 

38 FMSHRC Page 2314
 Dominion addressed the reasonableness issue on July 29, 2016. As previously noted, 

Dominion did not oppose McGlothlin’s March 10 PDR. However, in its current July 29 

response, Dominion now argues, albeit belatedly, that “[t]he [ALJ’s] prior reasonableness 

analysis still applies to the request for attorney fees.” For example, Dominion asserts: 

In its Decision on Relief and Final Order, this Court conducted a thorough 

reasonableness evaluation of Respondent’s attorney fees sought in the proposed 

settlement. The Court concluded that the requested fees were “demonstrably 

duplicative and excessive” and reduced the requested fees by $31,745.66. 

Decision on Relief and Final Order at 2. In granting the Respondent relief on 

appeal, the Commission did not reject this Court’s reasonableness analysis, and 

did not vacate the entirety of the Decision on Relief and Final Order. Instead, the 

Commission carefully limited its ruling to “vacate those portions of the Judge’s 

decision rejecting the revised settlement agreement as to attorneys’ fees, and 

[approving] the settlement agreement as to those provisions.” Decision entered 

March 30, 2016, at 3. In other words, while the Commission found that the Court 

erred in applying its reasonableness analysis in the presence of stipulated attorney 

fees, the Commission did not find substantive error in the Court’s reasonableness 

analysis. 

 

Dominion Br. in Opp., at 2 (July 29, 2016) (emphasis in original). In view of Dominion’s current 

posture that the $88,975.48 was “demonstrably duplicative and excessive,” Dominion now 

pleads that for “any additional fee . . . considered by the Court, the requested hourly rate should 

be reduced, [and] the billing entries should be assessed for duplication, and any award should be 

offset by the $31,745.66 that Respondent’s counsel received under the guise of a settlement, in 

excess of this Court’s reasonableness assessment.”7 Id. at 2, 4-5 (emphasis added). 

 On August 5, 2016, McGlothlin replied to Dominion’s assertion that the attorney fees 

currently sought are duplicative and excessive because they are based on the identical dual 

representation that was rejected in the Decision on Relief. McGlothlin reiterates his arguments 

previously made in this proceeding in support of the reasonableness and necessity of the legal 

fees sought. McGlothlin Reply, at 2-6 (Aug. 5, 2016). In so doing, McGlothlin asserts that my 

previous fee analysis, which rejected the November 11 Proposed Settlement, is inextricably 

intertwined with the Commission’s approval of the proposed settlement terms. Id. at 5 n.1. 

 7

 In his March 10, 2016, PDR, McGlothlin urged the Commission to approve the parties’ 

November 11 Proposed Settlement. McGlothlin now represents that Dominion backed out of the 

agreement regarding attorney fees as of February 9, 2016, following the issuance of the Decision 

on Relief. Mot. for Award of Attorneys’ Fees, at 7, 16. As a consequence of Dominion’s failure 

to oppose McGlothlin’s PDR, the Commission was unaware of Dominion’s decision to no longer 

be bound by the entirety of the proposed settlement. While it is clear that the Commission was 

misinformed, McGlothlin had no affirmative duty to convey to the Commission Dominion’s 

disinclination to adhere to the November 11 Proposed Settlement. 

38 FMSHRC Page 2315
Simply put, McGlothlin argues, in essence, that the reasonableness of its dual representation and 

fee structure are no longer in issue, having previously been approved by the Commission. 

c. Discussion and Evaluation

As previously noted, McGlothlin is seeking attorney fees for services rendered between 

July 1, 2015, through June 20, 2016. As a threshold matter, it cannot be said that the current 

request for attorney fees associated with the PDR is frivolous, as McGlothlin prevailed on 

appeal. In such circumstances, I find that fees-on-fees are compensable. See, e.g., Contractor’s 

Sand and Gravel, Inc., 18 FMSHRC 1820, 1832-33 (Oct. 1996) (ALJ) (holding that fees-on-fees 

are compensable in a Commission Equal Access to Justice proceeding); Noxell Corp. v. 

Firehouse No. 1 Bar-B-Que Rest., 771 F.2d 521, 528 (D.C. Cir. 1985) (holding that “[h]ours 

devoted to a request for fees are compensable” under a federal trademark fee-shifting statute). 

I do, however, find it regrettable that, in an attempt to circumvent the Commission’s 

oversight,8

 a significant portion of the fees currently requested were accrued by McGlothlin’s 

counsel despite my repeated orders, consistent with long-standing Commission practice, that the 

parties file petitions for relief, rather than motions for approval of settlement.9 38 FMSHRC at 

257 (citing to the procedural history of Commission decisions bifurcating the liability and relief 

phases of discrimination proceedings). However, as discussed below, I am constrained to award 

attorney fees for such endeavors given the Commission’s rejection of my rejection of the parties’ 

motions to approve settlement. Consequently, additional attorney fees now sought by 

McGlothlin are compensable. 

Having determined that reimbursement is permissible, the focus shifts to the 

reasonableness and necessity of the fees sought. Dominion asserts that the Commission’s 

approval of the November 11 Proposed Settlement did not constitute a finding that the attorney 

8

 Despite the Commission’s holding in Leeco, Inc. that “oversight of proposed 

settlements in discrimination cases is committed to the Commission’s sound discretion,” 

McGlothlin’s counsel have previously opined: “We believe the Commission lacks the authority 

to review the attorneys’ fees portion of the settlement.” 38 FMSHRC at 259; Sec’y of Labor 

o/b/o Maxey v. Leeco, Inc., 20 FMSHRC 707, 707 (July 1998); see also Am. Coal Co., et al., 38 

FMSHRC __, slip op. at 5 (Aug. 25, 2016) (affirming that Commission approval of settlement 

terms requires a finding that they are “fair, reasonable, [and] appropriate under the facts”). 

“Sweetheart agreements” in fee shifting cases are not immune from judicial scrutiny. 

9

 There is a substantive difference between petitions for relief and motions to approve 

settlement in discrimination matters. 38 FMSHRC at 258. 

38 FMSHRC Page 2316
fees sought by McGlothlin were reasonable. Rather, Dominion relies on the rationale in the 

Decision on Relief that the fees currently sought are duplicative and excessive.10 

However, the Commission’s approval of the settlement does not—and could not—

constitute an approval of the stipulated attorney fees without a determination, as required by the 

Mine Act, that the approved fees were reasonably incurred. See supra note 4. Consequently, 

implicit in the Commission’s decision is that reimbursement of multiple legal fees for the 

reported collaborative efforts of two attorneys, each of whom specializes in Commission 

discrimination cases, is neither duplicative nor unreasonably excessive. It is similar collaborative 

legal services for which McGlothlin now seeks additional reimbursement. In the final analysis, 

the Commission’s approval of the parties’ November 11 Proposed Settlement is, a fortiori, a 

controlling appellate determination that the additional total $41,525.00 sought for the services 

reportedly provided by both of McGlothlin’s counsel is reasonable. 

ORDER 

In view of the above, IT IS ORDERED that Dominion Coal Corporation pay, within 45 

days of this Decision, Scott D. McGlothlin’s attorneys, Appalachian Citizens’ Law Center, Inc. 

and Tony Oppegard, a total of $41,525.00 as reimbursement for attorney fees.

11 

IT IS FURTHER ORDERED that upon timely payment, the captioned discrimination 

proceeding in Docket No. VA 2014-233 IS DISMISSED. 

/s/ Jerold Feldman 

Jerold Feldman 

Administrative Law Judge 

10 Succinctly put, the Decision on Relief held that the legal fees sought by two attorneys 

each eminently qualified to represent 105(c)(3) complainants before this Commission, based in 

significant part on their claimed collaborative efforts billed at a combined rate of $750.00 per 

hour, were duplicative and excessive. 38 FMSHRC at 263-268. In addition, the Decision on 

Relief noted that the dispositive issue in this matter was not complex in that it was undisputed 

that Dominion interfered with McGlothlin’s right to seek medical evaluation by lowering his pay 

during the pendency of his evaluation for Part 90 status. Id. at 264; see 30 U.S.C. § 815(c)(1). 

11 As a result of this Decision, McGlothlin will have been awarded reimbursement of a 

total of $130,500.48 for representation in this proceeding, the disposition of which was resolved 

via summary decision. 

38 FMSHRC Page 2317
Distribution: 

Evan B. Smith, Esq., Wes Addington, Esq., Appalachian Citizens Law Center, Inc., 317 Main 

Street, Whiteburg, KY 41858 

Tony Oppegard, Esq., P.O. Box 22446, Lexington, KY 40522 

David Hardy, Esq., Scott Wickline, Esq., Hardy Pence PLLC, 500 Lee Street East, Suite 701, 

P.O. Box 2548, Charleston, WV 25329 

/acp 

38 FMSHRC Page 2318
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

721 19TH STREET, SUITE 443 

DENVER, CO 80202-2536 

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

August 30, 2016 

DECISION 

Appearances: Jessica M. Flores, Esq., and Joseph Lake, Esq., Office of the Solicitor, 

 U. S. Department of Labor, San Francisco, California, for Complainant; 

Donna V. Pryor, Esq., and Erik M. Dullea, Esq., Husch Blackwell LLP, 

Denver, Colorado, for Respondent.1

Before: Judge Manning 

 

This case is before me upon a complaint of discrimination brought by the Secretary of 

Labor on behalf of Jacob Hamilton under section 105(c) of the Federal Mine Safety and Health 

Act of 1977, 30 U.S.C. § 815(c) (the “Mine Act”) and on an amended complaint seeking the 

assessment of a civil penalty filed by the Secretary against American Mining and Tunneling, 

LLC (“AMT”) pursuant to sections 105 and 110 of the Mine Act. 30 U.S.C. §§ 815 and 820. A 

hearing in the case was held in Elko, Nevada. The parties presented testimony and documentary 

evidence and filed post-hearing briefs. 

I. STATEMENT OF THE CASE 

 On January 4, 2016, Hamilton filed a complaint of discrimination under section 105(c) of 

the Mine Act. The Department of Labor’s Mine Safety and Health Administration (“MSHA”) 

conducted an investigation and, following that investigation, the Secretary filed a complaint 

before the Commission on Hamilton’s behalf. This case was assigned to me on March 23, 2016, 

after AMT filed an answer to the complaint. 

 On February 5, 2016, the Secretary filed an application for temporary reinstatement on 

Hamilton’s behalf pursuant to section 105(c)(2) of the Mine Act. On March 1, 2016, I granted the 

parties’ joint motion to approve the settlement in that case and ordered AMT to provide 

 1

 At the time of the hearing, Ms. Pryor and Mr. Dullea were with the Denver office of 

Jackson Lewis P.C. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 on behalf of JACOB HAMILTON, 

 Complainant 

 v. 

AMERICAN MINING AND 

TUNNELING, LLC 

 Respondent 

 DISCRIMINATION PROCEEDING 

Docket No. WEST 2016-326-DM 

MSHA No. WE MD 2016-04 

Fire Creek Mine 

Mine ID 26-02691 A4880 

38 FMSHRC Page 2319
temporary economic reinstatement in Docket No. WEST 2016-259-DM. As of this date, my order 

of temporary reinstatement is still in effect. 

 Hamilton alleges that AMT discriminated against him on November 4, 2015, when he was 

terminated from his employment at the Fire Creek Mine after he engaged in protected activity by 

“reporting unsafe conditions at the Mine including missed holes in Spiral #2, attempting to correct 

unsafe conditions including bolting to secure the roof to safely reignite the missed holes, 

objecting to supervisor Darrin Quimby’s instruction to work under unsupported roof, and 

objecting to supervisor Darrin Quimby’s instruction to use a mucker bucket to load explosives.” 

Discrimination Complaint at 3. AMT denies that Hamilton engaged in protected activity and, in 

any event, Hamilton’s termination was motivated by his unprotected activity and it would have 

taken this adverse action for the unprotected activity alone. 

For the reasons below, I find that AMT did not discriminate against Hamilton under the 

section 105(c) of the Mine Act when it terminated his employment and, as a consequence, the 

discrimination complaint is dismissed. 

II. DISCUSSION OF EVIDENCE WITH FINDINGS OF FACT 

AND CONCLUSIONS OF LAW

A. Background 

 At the start of the hearing, counsel for Complainant read the following stipulations into 

the record, which were admitted into evidence. 

 

 1. Pursuant to Section 113 of the Mine Safety and Health Act, 30 USC 823, which we 

will refer to as the Act, the Federal Mine Safety and Health Review Commission has jurisdiction 

over the subject matter of this case. 

 2. American Mining & Tunneling, LLC hereinafter Respondent, a Nevada limited 

liability company, has a place of business located in or near Crescent Valley, Nevada, and has a 

principal place of business in Spokane, Washington. 

 3. Respondent at all relevant times had a contract with Klondex Gold and Silver Mining 

Company, whereby Respondent performed services at Fire Creek Mine, hereinafter the Mine, in 

Crescent Valley, Nevada. 

 4. At all relevant times, Respondent had an MSHA contract I.D. number and was an 

operator at the mine as this term is defined by Section 3(d) of the Act, 30 USC 802(d), because it 

was an independent contractor performing work or construction at the mine. 

 5. The products of the Fire Creek Mine enter commerce or the operations or products 

thereof affect commerce. 

 6. At all relevant times Respondent has been a covered entity subject to the jurisdiction of 

the Act. 

38 FMSHRC Page 2320
 7. Jacob Hamilton was employed by Respondent as an underground miner. Hamilton was 

a miner as the term is defined in Section 3 (g) of the Act, 30 USC 802 (g). 

 8. Hamilton was hired by Respondent on or about April 26, 2015. 

 9. Hamilton began working for Respondent at Fire Creek Mine on or about October 19, 

2015. 

 10. On or about January 4th, 2016, Hamilton filed a complaint with the Secretary 

charging discrimination pursuant to Section 105(c) of the Act. 

Tr. 8-9. 

 The Fire Creek Mine is an active, underground gold and silver mine operated by Klondex 

Gold and Silver Mining Company (“Klondex”) in Lander County, Nevada. AMT was a 

contractor at the mine and Hamilton’s crew was working in Spiral #2 on November 3, 2015. The 

miners on Hamilton’s shift were supervised by Darrin Quimby, who was a leadman for AMT. 

 The mine uses a traditional mining cycle. At the start of each shift, miners muck out rock 

that was blasted at the end of the previous shift. This rock is either hauled out of the mine or 

temporarily stored in a muck bay to be transported out later. A mucker (load, haul, dump 

equipment) is used for this purpose. Next, rock bolts are installed with a plate to place mesh 

panels on the roof as support. A roof bolting machine is used to install the roof support. 

Sometimes, miners must scale the roof as they add roof support to remove any loose rock or 

uneven surfaces.2

 Next, the crew will drill blast holes into the face using the jumbo drill after the 

pattern to be used is designated. After the holes have been drilled, they will be loaded with 

explosives. Typically, “sausage powder” is used along with a blasting cap. Tr. 22. The 

explosives are detonated at the end of the shift. Frequently, the crew is unable to complete all 

these steps in a single shift. 

 Hamilton began his nightshift on November 3, 2015 in Spiral #2. He began mucking out 

the blasted rock. At some point, he observed three un-shot holes along the rib. Tr. 47. The blast 

performed at the end of the previous shift did not completely detonate all the explosives. If, 

while mucking, a miner sees holes that were drilled for purposes of blasting, he should assume 

that they are misfires and contain undetonated explosives. Tr. 155, 270. Hamilton recognized 

that he had to do something to remove or detonate any explosives that were present. 

 AMT’s stated reason for terminating Hamilton’s employment is because of the manner in 

which he attempted to remove undetonated explosives during that shift. Rather than re-shooting 

the holes to clear out any undetonated explosives, Hamilton chose to use his roof bolting 

 2

 Hamilton used the term “moiling” to describe the work that he performed. He defined 

moiling as “hammering, scaling rock off, any loose rock or uneven corners, edges.” Tr. 19. He 

used the drill steel on the roof bolter to provide “sheer percussion to hammer it out or ... drilling 

holes and breaking that rock out.” Tr. 20. He testified that the difference between scaling and 

moiling is that with moiling “you actually drill, you cut holes this way, cut holes [that] way, cut 

hole this way, break the rock out.” Tr. 75. 

38 FMSHRC Page 2321
equipment to drill into the rock to dislodge the explosives from the rib. By drilling in and around 

the un-shot holes, the undetonated explosives were revealed. After the explosive material was 

clearly visible, Hamilton continued to use drill steel to drill around and very close to these holes 

in an attempt to remove more rock. Tr. 53-56. Hamilton admitted that he drilled numerous holes 

in the area. Tr. 79. When he was unable to remove sufficient rock to cause the explosive material 

to fall out, he began using his roof bolting machine to install additional ground support so he 

could reshoot the holes. Tr. 251-52. The leadman on the crew, Darrin Quimby, was becoming 

impatient with Hamilton and ordered him to re-shoot the holes. Tr. 255. Because Hamilton’s drill 

steel broke, he was not able to install additional roof support or blast out the misfires by the end 

of the shift. Tr. 64-65. His shift ended early because of a planned power outage. 

 At the end of the shift, Quimby called his supervisor, AMT Superintendent Heinz 

Woelki, to tell him that Hamilton had used drill steel to drill close to and perhaps into holes that 

contained undetonated explosives. Tr. 269. Woelki was not at the mine at that time but was on 

the way to AMT’s Nevada office in Winnemucca, Nevada. When he arrived in Winnemucca, 

Woelki discussed this matter with AMT Operations Manager Mark Carlson. Arrangements were 

made to have miners on the next shift take photographs around the misfired holes before any 

work was done. These photos were emailed to Carlson. Upon review of the photos, both Woelki 

and Carlson agreed that “the incident was a serious safety infraction and violation of MSHA 

regulations, which posed a grave risk to safety and well-being of the miners.” AMT Br. 3-4; Tr. 

435-36, 386-87. They concluded that Hamilton should be terminated and they advised Cassandra 

Elloway, AMT’s chief financial officer, who agreed with the decision. Tr. 393. Hamilton was 

terminated later that day. 

 The Secretary3

 contends that AMT’s proffered reason for Hamilton’s termination is 

pretext. The Secretary presented evidence to show that Hamilton engaged in protected activity 

during this same shift and that his termination was a direct result of the protected activity.4 

 B. Alleged Protected Activity 

 

 The Secretary presented evidence of Hamilton’s protected activity in the context of what 

he considered to be AMT’s shoddy operations at the Fire Creek Mine. AMT entered into a 

contract to provide underground development mining services to Klondex at the Fire Creek 

Mine. On or about October 19, 2015, Hamilton and other miners started working at Fire Creek at 

the start of this new contract. Woelki was designated as the superintendent at the outset, but it is 

 3

 I use the terms “Secretary” and “Complainant” interchangeably in this decision. The 

Secretary presented evidence at the hearing on behalf of Hamilton, the complainant. 

4

 I have not discussed all the evidence presented by the parties in this decision. Some of 

this evidence was introduced to raise questions concerning the credibility of opposing witnesses 

and to show inconsistencies in the case of the opposing side. Nevertheless, I considered the 

record as a whole in reaching my findings and conclusions. Evidence that is inconsistent with my 

findings and conclusions is hereby rejected. 

38 FMSHRC Page 2322
not clear that he would remain in this position beyond the initial startup. Hamilton’s crew, 

included Carl Roeller and Schuyler McCune, was supervised by leadman Quimby. 

 

 Hamilton, Roeller, and McCune testified that conditions at the mine were hectic and 

disorganized. The equipment they had to use was described as “garbage.” Tr. 150-51. Hamilton 

testified that AMT had not yet mobilized the proper “tools, gear, or equipment” at the mine for 

the crew to efficiently perform their work. Tr. 34. The equipment that was present broke down 

frequently. Tr. 167-68. As a consequence, the crew often was unable to blast at the end of their 

shift, which slowed down development of the mine. Hamilton testified that Woelki put pressure 

on the crew to increase production and he threatened to fire them if production did not pick up. 

Hamilton testified that Quimby repeatedly directed the crew to take unsafe shortcuts, such as 

asking them not to bolt the roof to standard, so they could blast a round at the end of the shift. Tr. 

35-36, 153. Hamilton testified that during his first week of work, he was setting up ground 

support when Quimby ordered the crew to stop. Tr. 37. Quimby told the crew that the support 

they installed was good enough and ordered them to blast. Id. Hamilton testified about other 

unsafe shortcuts he was ordered to take. Tr. 129-30, 179-80. 

 AMT denies these allegations. It argues that AMT was not behind schedule and did not 

push miners to prioritize production over safety. Christopher Corley, AMT’s operations 

manager, stated that AMT was not under pressure to push production during the first few weeks 

of its contract at the mine. He testified that the initial challenges AMT faced at Fire Creek Mine 

were no different from the challenges it faces during startup at other mines and that Klondex 

understood these challenges. Tr. 363. Robert Crommelin, Klondex’s Senior Safety Coordinator, 

testified that neither AMT nor its miners were penalized if production goals were not met. Tr. 

470. On cross-examination, Hamilton admitted he had never been on a startup job before, AMT 

had accepted the job at Fire Creek at the last minute, and the project started the same week he 

began his employment at the mine. Tr. 35, 151. He also admitted that Woelki had been trying to 

acquire better mining equipment. Tr. 80. 

 The above history is background to the two specific safety complaints Hamilton made 

during the night shift of November 3, as set forth in the Secretary’s discrimination complaint. I 

find that the first few weeks of AMT’s operations at the Fire Creek Mine were a shakedown 

period for AMT. Everything was not in place for a smooth, efficient operation, which frustrated 

the miners. I also find that although Hamilton believed he was required to take shortcuts that 

compromised safety, his belief that he was under a risk of termination and that AMT was 

favoring production over safety is not correct. For purposes of this decision, however, I will 

assume that Hamilton complained to Quimby about safety conditions at least once between 

October 19, 2015 and November 2, 2015. Specific events before November 3, 2015, are not part 

of this case, however, because they were not included in MSHA’s investigation of Hamilton’s 

 

38 FMSHRC Page 2323
complaint and are not mentioned in the Secretary’s Discrimination Complaint or the First 

Amended Discrimination Complaint.5

 

 In the discrimination complaint Hamilton filed with MSHA, Hamilton described two 

events that occurred on the night shift of November 3 that he contends constituted protected 

activities. Ex. R-2. The specific circumstances surrounding these activities are as follows: 

 1. When Hamilton arrived at the heading of Spiral #2 on November 3, he found a forklift 

with a dead battery. He drove a jumbo drill to the surface to find a mechanic who could fix the 

forklift. A jumbo drill takes 15-20 minutes to drive to the surface while a mucker takes about 5-

10 minutes to drive the same distance. Tr. 184-85. When he reached the surface with the jumbo 

drill, he told Quimby about the forklift and that it was blocking an escapeway. Tr. 41, 250. 

Quimby wanted Hamilton to park the jumbo drill underground at a muck bay. Hamilton told 

Quimby that it would not fit there because another piece of equipment was parked there. 

Hamilton testified that Quimby became irritated and told Hamilton to park the jumbo at a sump 

underground. Hamilton told Quimby he could not park there because he would not be able to put 

the boom down. Tr. 42. Hamilton said that Quimby became more irritated and told him to stop 

talking and do what he was told. Id. Woelki had previously instructed the crew to refrain from 

bringing equipment out from underground because cold temperatures could freeze water lines in 

the equipment. Tr. 284-85. 

 This issue must have resolved itself because the jumbo drill was parked somewhere 

underground and Hamilton did not mention anything about not being able to lower the boom to 

anyone and did not record it on the equipment card or another document. Tr. 102. The problem 

with the forklift was corrected and Quimby drove Hamilton back to his work place. Quimby 

testified that he was not irritated because Hamilton raised a safety issue but because he believed 

Hamilton was taking too much time to perform preliminary tasks and making excuses. Tr. 251. 

 5

 The Secretary, in his brief, relies on several instances of alleged protected activity prior 

to November 3, 2015. Sec’y Br. 11-12. These instances are not mentioned in the complaint 

Hamilton filed with the Secretary, in the discrimination complaint the Secretary filed with the 

Commission, or in the declaration of MSHA Special Investigator Diane Watson dated February 

4, 2016. Ex. R-2 (Watson’s declaration was not filed with the Secretary’s complaint in this case 

but was attached as Exhibit B to the Secretary’s Application for Temporary Reinstatement in 

WEST 2016-259-DM). In Sec'y of Labor on behalf of Charles H. Dixon et. al. v. Pontiki Coal 

Corp., 19 FMSHRC 1009, 1016-18 (June 1997), the Commission explained that the scope of a 

discrimination proceeding is determined not by the original complaint filed with MSHA by the 

alleged discriminatee but, rather, by the subject matter of the investigation conducted by the 

Secretary in response to the complaint filed by the alleged discriminatee. Watson’s Investigation 

Report, dated February 4, 2016, focuses on the events of November 3-4, 2015. Ex. R-20. There 

is only one brief reference to Quimby’s alleged conduct prior to November 3. Id. at 5. Although 

MSHA’s investigation was limited to events of November 3-4, I have considered the evidence 

about working conditions at the mine prior to November 3 in reaching my conclusions. 

38 FMSHRC Page 2324
 2. Upon returning to the heading, Hamilton began examining his workplace. He 

examined the ground conditions and looked for potential hazards. Tr. 45. He did not find any 

issues, recorded his inspection on his 5-Point Safety Card, and proceeded to wet down the muck 

pile so he could muck out the area. Tr. 45-46; Ex. C-1 (Complainant’s Exhibit 1). While he was 

mucking he noticed three drill holes along the spring line.6 Tr. 47. He was unable to determine 

whether there was explosive material in these holes. He began to remove the rock from around 

these holes by moiling with his bolter. Tr. 50-53. Hamilton testified that, after doing so, he 

exposed enough rock to see what appeared to be explosives in at least one of the unblasted 

holes.7 Tr. 53-54. 

 Hamilton testified that he tried to wash out the explosives with the water spray on the 

bolter. Tr. 54-56. When that failed, Hamilton testified that he began to install ground support and 

bolt up to the misfire to blast it. Id. He further testified that while scaling prior to installing 

ground support he discovered another misfire. He updated his 5-Point Safety Card to note the 

misfires. Sec’y Ex 1. Quimby came by at that time so Hamilton brought him up to speed as to 

what was going on. Hamilton testified that Quimby told him to use the mucker bucket to load the 

misfires and blast them in that manner. Tr. 60-61. Hamilton objected to loading and blasting 

under unsupported ground and to using the mucker bucket to load the misfires because the 

mucker bucket was not designed to hold people and did not have railings or fall protection. Tr. 

60-61, 68. Hamilton testified that he had time to install ground support and blast the misfires 

safely, but while he was in the process of installing additional ground support his drill bit broke. 

Tr. 64-65. As a result, he was not able to install the ground support or blast the misfires by the 

end of his shift. Id. According to Hamilton, when Quimby found out that he had not blasted out 

the misfires by the end of the shift, Quimby told Hamilton he was required to do what he is told 

to do and that he was “writing [him] up for drilling on miss-holes.” Tr. 64. 

 Quimby testified that Hamilton could have reached and re-blasted at least one of the 

misfires while remaining under pre-existing ground support. Tr. 254. Instead of reshooting the 

holes, Hamilton chose to use equipment to drill holes into the rock. This drilling on, in, and near 

the un-shot holes revealed the undetonated explosives, yet Hamilton continued to drill near and 

perhaps into these holes after the explosive material became visible to him. Tr. 53-56. Quimby 

testified that when he visited Hamilton during the shift he saw 50-60 drill holes in the vicinity of 

the undetonated holes. Tr. 270. Hamilton admitted that he drilled “50, 200 [a] lot” around the 

subject holes. Tr. 79. Quimby told Hamilton to reshoot the holes. Quimby testified that at the end 

 

 6

 The “spring line” is the area where the back meets the back (top) meets the rib. Tr. 73. 

7

 Holes that were drilled during the previous shift and were filled with explosives that 

failed to detonate when the face was detonated were referred to as “misfires” or “miss-holes” by 

the witnesses. 

38 FMSHRC Page 2325
of the shift, he called Woelki to tell him that Hamilton had drilled in and around undetonated 

blast holes, as discussed above.8

 

 C. Analysis of the Issues 

Section 105(c) of the Mine Act prohibits discrimination against a miner for exercising a 

right established under the Mine Act. Pursuant to Commission case law, a prima facie case for a 

violation of section 105(c) is established if the complainant proves by a preponderance of the 

evidence that (1) he was engaged in a protected activity and (2) that the adverse action was 

motivated in any part by the protected activity. Sec’y of Labor on behalf of Pasula v. 

Consolidation Coal. Co., 2 FMSHRC 2786, 2799 (Oct. 1980), rev’d on other grounds, sub nom. 

Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 1981); Sec’y of Labor on behalf of 

Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 (Apr. 1981). 

 

The Commission will consider the following factors in determining whether the 

complainant has established a causal connection between the protected activity and the 

adverse action: (1) knowledge of the protected activity; (2) hostility or animus towards 

the protected activity; (3) coincidence in time between the protected activity and the 

adverse action; and (4) disparate treatment. Sec’y of Labor on behalf of Chacon v. Phelps 

Dodge Corp., 3 FMSHRC 2508, 2516-17 (Nov. 1981) rev’d on other grounds, 709 F.2d 

86 (D.C. Cir. 1983). 

 

It is rare for a section 105(c) case to be proven solely on direct evidence. Rather, it is 

more typical for such a case to be made by relying on indirect or circumstantial evidence. 

Therefore, it is of no surprise that the Commission has held that “an operator’s knowledge of the 

miner’s protected activity is probably the single most important aspect of a circumstantial case.” 

Sec’y of Labor on behalf of Baier v. Durango Gravel, 21 FMSHRC 953, 957 (Sept. 1999) 

(quoting Chacon, 3 FMSHRC at 2510). 

 

 Once a prima facie case is established, the mine operator is given an opportunity to rebut 

by showing that either there was no protected activity or the adverse action was not motivated in 

any way by the protected activity. Robinette, 3 FMSHRC at 818 n. 20. If the operator is unable to 

successfully rebut, it may still establish an affirmative defense by proving that the adverse action 

was motivated by unprotected activity, and it would have taken the action based solely on the 

unprotected activity. Id. at 817; Pasula, 2 FMSHRC at 2799-2800. 

 

 8

 It is not entirely clear whether Hamilton drilled into the undetonated blast holes or 

drilled very close to the holes. Woelki and Carlson reviewed the cell phone photographs that 

were taken during the following shift before the area was blasted to remove the misfires. Ex. R1. In this exhibit, the explosive material in the photographs is yellow in color and the holes that 

Hamilton drilled are the black circles. Whether Hamilton actually drilled into a blast hole is not 

critical because the exhibit clearly shows that he drilled extremely close to the undetonated 

explosive material in the holes. I credit Woelki’s testimony that a miner cannot be very accurate 

in the placement of holes when using a roof bolter for this purpose. Tr. 440. 

38 FMSHRC Page 2326
Did Hamilton Engage in Protected Activity? 

 I find that Hamilton engaged in protected activity. First, he raised concerns about the 

location of the forklift in a designated escapeway and the appropriate place to safely park the 

jumbo drill. Second, and more importantly, he raised concerns about loading and blasting under 

unsupported ground and to using the mucker bucket to load the misfires because the bucket was 

not designed to safely hold people and did not have railings or fall protection. 

 AMT described the interactions between Hamilton and Quimby on the night shift of 

November 3 as ordinary differences of opinion on work methods arising during the normal 

course of work. AMT Br. 5. Quimby testified that he believed the Hamilton was taking too much 

time to perform preliminary tasks, such as when he took the slowest piece of equipment to the 

surface to report that the battery was dead on the forklift.9 Tr. 251, 184-85. AMT also argues that 

Hamilton’s testimony that he objected to Quimby’s suggestion that they use the mucker bucket 

to reach the misfired holes should not be credited because it contradicts the testimony of 

McCune. Tr. 183. 

 I find that AMT’s arguments miss the point. These arguments are more generally directed 

to the question whether he was terminated as a result of these protected activities. I find that 

Complainant established that he engaged in protected activity. 

 Was Hamilton’s Termination Motivated in any Part by the Protected Activity? 

 Complainant has the burden of establishing a prima facie case on this issue. The 

Commission has held that to establish a prima facie case of discrimination, “the complainant 

need only ‘present[] evidence sufficient to support a conclusion that the individual engaged in 

protected activity and that the adverse action complained of was motivated in any part by the 

activity’” Jayson Turner v. Nat’l Cement Co. of California, 33 FMSHRC 1059, 1065 (May 

2011) (emphasis in original) (citation omitted). The Commission made clear that this burden is 

lower than the ultimate burden of persuasion that the complainant must sustain as to the overall 

question of whether section 105(c)(1) has been violated. Id. 

 A complainant often must rely on indirect or circumstantial evidence to establish a prima 

facie case. As stated above, an operator’s knowledge of the miner’s protected activity is probably 

the single most important aspect of a circumstantial case. Baier, 21 FMSHRC at 957. The 

Commission has stated that “[a]n operator may not escape responsibility by pleading ignorance 

due the division of company personnel functions.” Metric Constructors, Inc., 6 FMSHRC 226, 

230 n. 4 (Feb. 1984). Thus, the fact that Woelki and Carlson were not aware of Hamilton’s safety 

complaints does not necessarily mean that Complainant failed to establish a prima facie case of 

knowledge of the protected activity. If Quimby’s made a recommendation that Hamilton should 

be terminated and if the recommendation influenced Woelki’s and Carlson’s decision to 

terminate Hamilton, then Quimby’s knowledge and retaliatory animus may be attributed to the 

decision maker. Turner, 33 FMSHRC at 1068. 

 9

 Apparently, there were no two-way radios available at that time. 

38 FMSHRC Page 2327
 Evidence and Credibility 

 A close review of the evidence is critical in resolving the issues in this case. A judge’s 

credibility determinations can be critical in analyzing the evidence in discrimination cases. 

Witnesses frequently provide different accounts of the same events and their perceptions can 

differ even if their accounts do not differ in a substantial degree. The Commission has long held 

that because the Judge “has an opportunity to hear the testimony and view the witnesses[,] he is 

ordinarily in the best position to make a credibility determination.” In re: Contests of Respirable 

Dust Sample Alteration Citations, 17 FMSHRC 1819, 1878 (Nov. 1995) (quoting Ona Corp. v. 

NLRB, 729 F.2d 713, 719 (11th Cir. 1984)), aff’d sub nom. Sec’y of Labor v. Keystone Coal 

Mining Corp., 151 F.3d 1096 (D.C. Cir. 1998). A recent Commission decision illustrates both in 

the majority decision and in the dissenting opinion, the pivotal role that a judge’s credibility 

determinations often have in discrimination cases. Sec’y of Labor on behalf of Charles Riordan 

v. Knox Creek Coal Corp., 38 FMSHRC _____, No. VA 2014-343-D (Aug. 23, 2016). 

 Although I am not completely discrediting the testimony of any witness, I found that their 

credibility varied greatly.10 I especially credit the testimony of Heinz Woelki for a number of 

reasons. He had a calm bearing and a credible demeanor. Ordinarily, he functions as a master 

mechanic for AMT but he was given the task of supervising AMT’s project at the Fire Creek 

Mine during the start-up period. He was the superintendent for the project for about two months 

after which he again became a master mechanic. Tr. 187-88. He has about 46 years of experience 

in underground metal mining including time on mine rescue teams. Tr. 433, 439-40. He has 

worked in many positions during his career including ones involving the use of explosives. Tr. 

442. His testimony was internally consistent and I found it to be especially trustworthy. He was 

quite candid in describing the mistakes he made in the manner in which Hamilton was 

terminated. I find that he honestly testified about the events that occurred and his reasons for 

terminating Hamilton’s employment. I do not believe that he tailored his testimony to reflect 

what AMT management wanted him to say. 

 Quimby testified there was a spot underground where the jumbo drill could be safely 

parked and told Hamilton to park it there. Tr. 250. Woelki had told the crew earlier that the drill 

could not be brought outside because the water in the spray system would freeze. Tr. 285. 

Quimby told Hamilton that he was wasting time on this issue. Apparently, the drill was safely 

parked and the issue was not raised again. I find that this issue was resolved and it played no part 

in AMT’s decision to terminate Hamilton or in Quimby’s decision to discuss Hamilton’s conduct 

with Woelki. 

 10 In assessing the credibility of witnesses, I have taken into consideration the demeanor 

of the witnesses, their interests in this matter, the inherent probability of their testimony in 

light of other events, corroboration or lack of corroboration for testimony given, experience

and credentials, and consistency, or lack thereof, within the testimony of witnesses and 

between the testimony of witnesses. The witnesses were sequestered. 

38 FMSHRC Page 2328
 After the drill issue was resolved, Quimby dropped Hamilton off at the heading of the 

Spiral #2 and Quimby returned to his work area.11 Later in the shift, Quimby returned to 

Hamilton’s work area and saw that Hamilton was bolting up roof and rib support. Quimby 

observed the misfires at that time. Tr. 252. Hamilton gave Quimby his 5-Point Safety Card to 

sign. Ex. G-1. The card noted the misfires. Quimby told Hamilton to finish installing the roof 

bolt he was working on and get the misfires blasted. Quimby testified that Hamilton could insert 

blasting material into the misfires while standing on the muck pile while under supported roof. 

Tr. 254-55. Because Hamilton was an experienced miner, Quimby did not believe he had to 

babysit him. Tr. 256-57. I find that the evidence does not support a finding that Quimby required 

Hamilton to stand in the bucket of the mucker. Rather, because Hamilton was an experienced 

miner, Quimby expected Hamilton to work safely and efficiently to get the hazardous misfires 

down. 

 During his visit to Hamilton’s work area, Quimby observed 50 or 60 holes drilled around 

and very close to the misfired holes. Tr. 270. Quimby testified that he was surprised that 

Hamilton had tried to drill out the misfires. Tr. 255. He said that he had never seen an 

experienced miner engage in such a negligent act. Tr. 255-56. Such an act is both illegal and very 

dangerous. Tr. 270. Because Hamilton had stopped trying to drill out the rock surrounding the 

misfires when Quimby arrived, he did not escort Hamilton out of the mine for his actions. Tr. 

256. Quimby testified that he did not immediately remove Hamilton from the mine because 

Hamilton was pinning the roof and had stopped drilling into the misfires. 

 Before Hamilton was able to blast out the misfires, the drill steel on his roof bolter broke. 

As a consequence, he did not complete installing roof support and blasting out the misfires 

before the end of the shift. He advised Quimby about this on the surface after the end of the 

shift.12 Tr. 268. Quimby told the leadman for the oncoming shift about the misfires. Tr. 285. The 

misfires were shot down after a few more roof bolts were installed during the following shift. 

 At the end of the shift, after he was on the surface, Quimby called Woelki to tell him that 

Hamilton had drilled into misfires. Quimby testified that, although he would not have told the 

oncoming crew about the misfires if Hamilton had shot them down, he would have told Woelki 

that Hamilton had drilled into the misfires in any event. Tr. 269-70. 

 Knowledge of Protected Activity

 The parties disagree as to whether AMT had knowledge of Hamilton’s protected activity. 

The Secretary asserts that Hamilton raised multiple safety concerns to Quimby with the result 

that AMT had knowledge of the protected activities. Sec’y Br. 15-16. The Secretary contends 

that AMT relied exclusively on Quimby’s statements in deciding to terminate Hamilton. Further, 

 11 Because Quimby was a leadman and not a foreman, he spent most of his time 

performing hourly production work. In addition, the miners on his crew were experienced, so he 

did not believe that they should require close supervision. Hamilton had about eight years of 

experience as an underground metal miner. Tr. 16. 

12 The shift ended early that day because of a scheduled power shutdown. Tr. 64. 

38 FMSHRC Page 2329
Quimby was the only individual who gave a statement in AMT’s post-termination investigation, 

was the individual who notified Hamilton of his termination, and filled out part of AMT’s Notice 

of Employee Separation. Id. 16; Ex. C-3. Given Quimby’s knowledge and the animus he 

harbored toward Hamilton’s safety complaints, the retaliatory motive of Quimby should be 

imputed to AMT even if the ultimate decision makers did not have knowledge. 

 AMT argues that the individuals who made the decision to terminate Hamilton, i.e., 

Woelki, Carlson and Elloway, had no knowledge of Hamilton’s alleged protected activity, could 

not have been motived by such, and made the decision to terminate Hamilton based only on 

information that Hamilton had drilled into misfires. AMT Br. 7-10. The decision to terminate 

was made only after they reviewed the photographs that were taken of the heading the following 

shift. Ex. R-1. These photographs clearly show that Hamilton had drilled very close to the 

undetonated explosives. Further, any knowledge Quimby may have had regarding Hamilton’s 

alleged protected activities is not imputable to AMT since Quimby did not participate in any 

decision making, did not make any disciplinary recommendation, and only reported to Woelki 

that Hamilton had drilled into un-shot holes. Although AMT acknowledges that Quimby’s 

delivery of the termination decision to Hamilton was a deviation from company procedure, 

Quimby did so only because Woelki instructed him to do so since Woelki could not get to the 

mine in time to notify Hamilton of the termination. 

The Commission has explained that, if an immediate supervisor’s recommendation to 

terminate an alleged discriminatee is at least partially a result of retaliatory animus and that 

recommendation influenced management to take the adverse action, then the immediate 

supervisor’s knowledge and retaliatory animus may be attributed to the decision maker. Turner, 

33 FMSHRC at 1068. The Secretary cites two Commission cases for the proposition that 

Quimby’s knowledge is imputable to AMT, Bergene v. Salt River Project Agric. Improvement & 

Power Dist., 272 F. 3d 1136 (9th Cir. 2001) and the concurring opinion of Chairman Jordan in 

Sec’y of Labor on behalf of Andrew Garcia v. Colorado Lava, 24 FMSHRC 350 (Apr. 2002). In 

both instances, as well as in Turner, the imputation of knowledge of the protected activity hinged 

on the level of a supervisor’s involvement in the decision which resulted in the adverse action. In 

Bergene, while the manager was not ultimately responsible for the decision that resulted in the 

adverse action, he was found to have played an “influential role” in that decision. Likewise, in 

Garcia, Commissioner Jordan’s statement regarding imputation requires the supervisor to have 

“influenced” or “participated” in the decision that adversely affected the employee. 

I find that Quimby’s knowledge is not imputable to Woelki and Carlson, who made the 

decision to terminate Hamilton. I especially credit Woelki’s testimony on this issue. Woelki, 

with the consent of Carlson, made the decision to terminate Hamilton. They had no knowledge 

of safety complaints. Tr. 436-437. Quimby did not make any recommendation to them about 

Hamilton’s termination. Id. Rather, Quimby only told Woelki that Hamilton had drilled into the 

area of the misfires. Woelki made the decision based in large part on photographs. See Tr. 435-

437 and Ex. R-1. Without the photographs to corroborate Quimby’s statements to him, it is 

doubtful that Woelki would have determined that Hamilton should be immediately terminated. 

Woelki explained that Hamilton’s act “was extremely dangerous, against our company policy, 

Klondex company policy and the Code of Federal Regulations[.]” Tr. 436, 440-442. The 

testimony of Carlson and Elloway support Woelki’s decision. Tr. 386, 390, 392-94, 446-47. 

38 FMSHRC Page 2330
Leadman Quimby was the only person with some management responsibility who had 

knowledge of Hamilton’s protected activity and he simply advised Woelki that Hamilton had 

drilled in the vicinity of misfires. The relaying of this information to the ultimate decision maker 

did not rise to the level of involvement that would trigger imputation of Quimby’s knowledge to 

AMT.13 In addition, although Quimby was the person who told Hamilton he had been 

terminated, the decision had already been made and Woelki was unable to do it because he was 

not at the mine. 

 Hostility or Animus Toward the Protected Activity

 The Secretary argues that AMT, through Quimby, demonstrated hostility or animus 

toward Hamilton’s protected activity and safety in general at the mine. Specifically, he argues 

that AMT was under pressure to produce and AMT management threatened miners with the loss 

of jobs and bonuses if production goals were not met. Sec’y Br. 14. In addition, the Secretary 

contends that Quimby accused Hamilton of using safety concerns as an excuse for not producing 

and told Hamilton to shoot down the misfires whether he was able to get the roof bolted up or 

not. Sec’y Br. 5; Tr. 61. 

 AMT argues that production was not the focus at the expense of safety and there was no 

evidence of any hostility or animus towards protected activity. The mine was in startup phase, 

which involved normal initial challenges and difficulties and AMT was not under pressure from 

Klondex to step up production. AMT Br. 11-13. AMT’s safety record is evidence that it does not 

focus on production at the expense of safety. 

 I find that there is evidence in the record to support a finding that Quimby was tired of 

Hamilton’s delays and that he wanted him to blast down the misfires by the end of the shift. By 

pressuring Hamilton in such a manner, Quimby, whether intentional or not, displayed hostility 

toward Hamilton’s protected activities. Quimby displayed hostility to any type of delay and his 

hostility was not specifically directed at safety complaints. Nevertheless, the record supports a 

finding that Quimby was hostile toward Hamilton’s safety complaints. Those in management 

who made the decision to terminate Hamilton, on the other hand, did not demonstrate hostility or 

animus toward Hamilton’s protected activity or to safety complaints in general at the mine. I do 

not credit evidence to the contrary. 

 I have already found that Quimby’s knowledge of protected activity should not be 

imputed to AMT and that Woelki, Carlson and Elloway were unaware of any protected activity. 

Moreover, I credit the testimonies of both AMT Operations Manager Corley and Klondex Senior 

 13 An argument could be made that, but for Hamilton’s protected activity, Quimby would 

not have called Woelki to tell him that Hamilton drilled into the misfires. Once the misfires were 

blasted at the beginning of the next shift, any evidence of Hamilton’s actions would have been 

destroyed. The Secretary called Quimby as an adverse witness. Quimby testified that he was 

surprised that Hamilton moiled (i.e. drilled) near the misfires, he had never observed an 

experienced miner do that before, and that he considered Hamilton’s actions to be hazardous. Tr. 

255-56. I credit this portion of Quimby’s testimony and find that he would have called Woelki 

even if Hamilton had not engaged in protected activity. 

38 FMSHRC Page 2331
Safety Coordinator Crommelin that AMT was not under pressure to push production and that it 

would not be penalized if production goals were not met. Tr. 363, 470. Roeller testified that 

miners were getting pushed to shoot rounds, but they often could not blast at the end of their 

shifts because the equipment provided by AMT was substandard. Tr. 150-51. I do not dispute 

that everyone was frustrated with the slow pace at the outset of AMT’s project at the Fire Creek 

Mine or that miners were sometimes pushed to do more. AMT was in the midst of an initial 

shakedown period following the commencement of work and smooth operation had not yet been 

achieved. Nevertheless, I do not credit testimony that miners were threatened with their jobs as a 

result of the conditions at the mine and that they had to endure unsafe conditions as a 

consequence. 

 Coincidence in Time

The Secretary asserts that the temporal proximity between Hamilton’s protected activities 

and his termination by AMT, without an investigation, “strongly indicates” AMT’s 

discriminatory motive. Sec’y Br. 14. AMT argues that, given the short period of time Hamilton 

had worked at the Fire Creek Mine, no reasonable inference can be drawn from the timing of 

events. However, if any inference can be drawn, it is one in favor of AMT since it terminated 

Hamilton for his unprotected act the same day it was reported to management. AMT Br. 16. 

It is self-evident that Hamilton’s termination occurred very soon after his protected 

activity. I find that, while the temporal proximity of Hamilton’s protected activity the night of 

November 3rd to his termination the following day would normally be indicia of discriminatory 

intent, here, the issue is not so clear. Even where a coincidence in time exists, “‘[s]urrounding 

factors and circumstances may influence the effect to be given to such coincidence in time.’” 

Turner, 33 FMSHRC at 1070 (citations omitted). The timing of Hamilton’s termination, while 

close in time to his protected activity, was just as close in time to his unprotected hazardous 

activity. Consequently, although there can be no dispute regarding the temporal proximity of the 

protected activity and adverse action, I find that not much weight should be given to this issue. 

 Disparate Treatment

The Secretary argues that Hamilton was the subject of disparate treatment given that he 

violated no clear company policy and, unlike miner Richard Dahl, who was terminated for 

throwing an explosive down a drift, was not afforded an opportunity to explain himself or be 

suspended pending an investigation. Sec’y Br. 17-18. AMT argues that its treatment of Hamilton 

following his unprotected act was consistent with its company policy as well as its record of 

terminating employees for violations of company safety policies. AMT Br. 14. AMT has 

terminated multiple employees for violations of company safety policies. Although AMT may 

not have interviewed Hamilton before terminating him, as it did when it terminated Dahl under 

different circumstances involving explosives, there was photographic evidence of Hamilton’s 

misconduct, a different superintendent made this decision, and Dahl was terminated after 

Hamilton. AMT Br. 14 n. 2. 

 There is no question that the manner in which AMT terminated Hamilton suffered from a 

number of irregularities. Some of these irregularities were due to the fact that Woelki was not 

38 FMSHRC Page 2332
normally the superintendent of a mine. He did not follow the typical protocol for terminating an 

employee because it was not something that was a normal part of his job duties. In addition, he 

was on the way to Winnemucca when Quimby called him. 

 Normally, when an employer seeks to terminate an employee for an infraction of rules or 

safety procedures, the employee would be suspended with pay pending an investigation. That is 

what AMT did when it terminated Dahl. Tr. 370-75. He was suspended with pay while AMT 

conducted an investigation. During this investigation, AMT interviewed Dahl and other 

employees with knowledge of the facts. At the conclusion of the investigation, AMT terminated 

Dahl. In the present case, on the other hand, Hamilton was terminated soon after Woelki and 

Carlson reviewed the photographs of the heading where Hamilton had been drilling. AMT 

conducted the investigation of the events after Hamilton was terminated. Ex. C-15. 

I find that, although Hamilton’s termination differed from AMT’s normal procedure, 

AMT provided adequate reasons for the difference. It should be self-evident to any experienced 

miner that Hamilton’s actions were extremely dangerous and would be prohibited by any mine 

operator. Hamilton’s actions were so inherently hazardous and unusual that one cannot compare 

it to other disciplinary actions taken at the mine. I agree with AMT that the circumstances of 

Dahl’s termination are not sufficiently analogous Hamilton’s situation. The drill holes created by 

Hamilton’s actions were observed first hand by Quimby and documented in photographs that 

were reviewed by Woelki and Carlson. Tr. 270; Ex. R-1. The Secretary did not seriously dispute 

the authenticity or accuracy of the photos. I find that these photographs accurately depict the 

holes Hamilton drilled near the explosives. Dahl was terminated for throwing an explosive down 

a drift. Tr. 374. Although Dahl’s conduct was certainly dangerous, it does not appear that such 

clear and convincing evidence of his conduct existed in the immediate aftermath so a pretermination investigation was necessary. Here, the evidence of dangerous conduct was 

overwhelming. As noted by AMT, its employee handbook states that it retains discretion to 

terminate an employee immediately. Tr. 342; Ex. R-10. 

Another anomaly in this case arises from the fact that Quimby filled out part of 

Hamilton’s “Notice of Separation.” Ex. C-3. It was highly unusual for a leadman to fill out or 

sign this form. Under the section of the form where management sets forth the reason for the 

termination, Woelki wrote “[d]rilling marks around the miss hole indicate the bolter operator was 

trying to use the bolter steel to remove powder.” Id. Quimby wrote: “No communication. Was 

told to shoot miss hole. Did not shoot.” Id. Although the reasons set forth by Woelki and Quimby 

are not entirely consistent, they both center on Hamilton’s conduct with respect to the misfires. I 

credit AMT’s argument that Quimby did not have the authority to terminate Hamilton. Quimby 

filled out part of the form because (1) Woelki was not at the mine at the time and he wanted the 

termination to be effective immediately and (2) Woelki was an inexperienced mine 

superintendent and was not aware that Quimby did not have authority to fill out or sign the 

separation notice. 

 Establishment of a Prima Facie Case and its Rebuttal

 As stated above, I find that Hamilton engaged in protected activity. Hamilton’s 

termination was the adverse action. The next issue is whether Complainant established a prima 

38 FMSHRC Page 2333
facie case by presenting evidence sufficient to support a conclusion that his termination was 

motivated in any part by his protected activity. This burden is lower than the ultimate burden of 

persuasion that Complainant must sustain as to the overall question of whether section 105(c)(1) 

has been violated. As discussed above, although Woelki did not have knowledge of the protected 

activity, Quimby certainly did. Quimby displayed some degree of animus or hostility toward the 

protected activity, as discussed above, but Woelki did not. Quimby was impatient with 

Hamilton’s desire to completely support the roof but it is noteworthy that on the following shift 

the miners were permitted to complete the task of supporting the roof before the misfires were 

shot. There was a coincidence in time between the adverse action and the protected activity but 

also between the adverse action and the unprotected activity. Finally, although other miners have 

been terminated for serious safety infractions, the procedure used in the present case was not the 

norm. I find that Complainant established a prima face case. 

 I find that AMT rebutted Complainant’s case by establishing that the adverse action was 

not motivated in any way by the protected activity. As stated above, I found the testimony of 

Heinz Woelki to be especially credible. Although he did not handle the situation in the manner 

that a human resources professional would have recommended, his motivation was pure. He did 

not want Hamilton returning to the mine because he considered his actions to be extremely 

hazardous to himself and the other miners. AMT could not afford to take the risk that Hamilton 

would take such actions in the future. Moreover, as discussed below, even if I assume that 

Hamilton’s protected activity played a part in the decision to terminate him, AMT established 

that it would have taken that action based solely on the unprotected activity. 

 AMT’s Affirmative Defenses 

 AMT alleges, as an affirmative defense, that it would have terminated Hamilton for his 

unprotected activity alone. AMT Br. 26. It maintains that the uncontroverted testimony shows 

that the impetus for Hamilton’s termination was his “gross safety violation.” Id. AMT 

management considered Hamilton’s actions to be unnecessarily hazardous because the misfires 

could have been removed in a safe manner. In addition, Klondex Safety Coordinator Crommelin 

testified that Hamilton’s actions were an “unacceptable practice” that was unsafe and in violation 

of Klondex’s policies and MSHA regulations. Tr. 463-64; Ex. R-22. As a result of his actions, 

Klondex prohibited Hamilton from working at any of its mines in the future. 

 I find that even if I assume that part of the reason Hamilton was terminated was because 

of his protected activities, AMT would have terminated him for his unprotected act of drilling 

close to the misfires alone. As discussed above, Woelki believed that Hamilton was trying to 

drill the misfires out to save time, but such conduct was “extremely hazardous.” Tr. 190. I credit 

Woelki’s statement that “when someone attempts to remove explosives with a drill steel by 

moiling[,] there is a high chance of setting off the explosive and [these actions could] result in 

injury or death.” Tr. 438. The “main hazard is the percussion; the impact on the explosive will 

set it off.” Tr. 441. The same is true with respect to the blasting cap and the shock cord; an 

impact can set them off. Id. Woelki decided to terminate Hamilton only after he saw the 

photographs demonstrating that Hamilton had drilled many holes very close to the blasting 

material. Tr. 191. Woelki reviewed the photographs after he arrived in the Winnemucca office 

later on November 4. Tr. 436. I credit Woelki’s testimony that he was unaware of any safety 

38 FMSHRC Page 2334
complaints made by Hamilton and that Quimby did not recommend to Woelki that Hamilton be 

terminated. Tr. 436-37. 

 I find that AMT’s stated reason for terminating Hamilton was not pretext to cover up the 

real discriminatory reason. In reviewing an operator’s affirmative defenses, the judge must 

“determine whether they are credible and, if so, whether they would have motivated the 

particular operator as claimed.” Bradley v. Belva Coal Co., 4 FMSHRC 982, 993 (June 1982). 

The Commission has explained that “pretext may be found, for example, where the asserted 

justification is weak, implausible, or out of line with the operator's normal business practices.” 

Sec'y of Labor on behalf of Price v. Jim Walter Res., Inc., 12 FMSHRC 1521, 1534 (Aug. 1990). 

On the other hand, the Commission also held that “judges should not substitute for the operator's 

business judgment [their] views of ‘good’ business practice[.]” Chacon, 3 FMSHRC at 2516-17. 

“[O]nce it is determined that a business justification is not pretextual, then the judge should 

determine whether ‘the reason was enough to have legitimately moved the operator’ to take 

adverse action.” William H. Haro v. Magma Copper Co., 4 FMSHRC 1935, 1938 (Nov. 1982) 

(citation omitted). 

 The Secretary argues that AMT’s characterization of Hamilton’s conduct should not be 

credited. He maintains that the actions that AMT accuses Hamilton of committing “is the sort of 

unbelievable conduct that when alleged by an employer, indicates pretext.” Sec’y Br. 19 (citation 

omitted). Although a mine operator’s accusations concerning unsafe conduct must be closely 

examined for the reasons suggested by the Secretary, Hamilton readily admitted that he drilled 

many holes around the explosive materials using the roof bolting machine. He was not simply 

using the bolter to scale down loose rock; he admits to drilling “plenty” of holes, “50, 200. A 

lot.” Tr. 79. Hamilton’s own testimony supports the “unbelievable conduct” that AMT accuses 

Hamilton of committing. 

 I find that the business justification offered by AMT was not pretextual. It was not 

“weak, implausible, or out of line with the operator’s normal business practices.” Price, 12 

FMSHRC at 1534. I credit the testimony of Woelki that AMT terminated Hamilton solely for 

drilling in and around the misfires. The Secretary argues that AMT did not have a specific rule 

prohibiting a miner from using a drill in such a manner, which helps demonstrate that the 

company failed to follow its own procedures when terminating Hamilton. AMT did not need to 

have a rule telling experienced miners not to drill into or near undetonated explosives; such an 

obligation is self-evident. Experienced miners do not usually take such hazardous steps to 

remove undetonated explosives. Tr. 439. Hamilton’s conduct in drilling close to explosive 

material was reason enough for a mine operator to terminate his employment. As Woelki stated, 

when a miner is using a machine to drill from ten feet away, he cannot be very accurate with the 

placement or direction of the drill. Tr. 440. Using drill steel to try to dislodge explosive material 

from the host rock was extremely dangerous and foolhardy. Woelki testified that when he was on 

mine rescue teams he retrieved the bodies of several miners who did something similar. Tr. 439-

40. Hamilton is lucky to be alive. 

 

 

38 FMSHRC Page 2335
III. ORDER

 For the reasons set forth above, the complaint of discrimination brought by the Secretary 

of Labor on behalf of Jacob Hamilton is DENIED and this proceeding is DISMISSED. By order 

also issued today, my order of temporary reinstatement entered in WEST 2015-259-DM is 

dissolved. 

/s/ Richard W. Manning 

 Richard W. Manning 

 Administrative Law Judge 

Distribution: 

Jessica M. Flores, Esq., and Joseph Lake, Esq., Office of the Solicitor, U.S. Department of 

Labor, 90 7th Street, Suite 3-700, San Francisco, CA 94103-6704 (Certified Mail) 

Donna V. Pryor, Esq., and Erik Dullea, Esq., Husch Blackwell LLP, 1700 Lincoln Street, Suite 

4700, Denver, CO 80203-4547 (Certified Mail) 

RWM 

38 FMSHRC Page 2336
ADMINISTRATIVE LAW JUDGE ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

721 19TH STREET, SUITE 443 

DENVER, CO 80202-2536 

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

August 4, 2016 

 

ORDER DENYING REQUEST FOR PRODUCTION OF DOCUMENTS 

This discrimination case was brought by the Secretary of Labor on behalf of Curtis 

Logsdon against the government of Park County, Colorado (“Park County”) under section 105(c) 

of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (“Mine Act”) and 29 

C.F.R. § 2700.40 et seq. The case is set for hearing on September 13, 2016. On April 19, 2016, 

Respondent served its First Set of Written Interrogatories, Requests for Production of 

Documents, and Requests for Admission on the Secretary. The Secretary served his response on 

May 17, 2016. On July 15, 2016, Respondent filed a motion to compel discovery. I issued an 

unpublished order disposing of most of the issues raised by the motion to compel on August 1, 

2016. 

Two of the discovery requests included in the motion to compel sought the production of 

documents. Park County asked the Secretary to produce (1) the “written notification from the 

Secretary to Logsdon of his determination that a violation has occurred as described in Section 

105(c)(3) of the Mine Act” and (2) the “written determination of the Secretary that a violation 

has occurred in this matter as described in 29 CFR §2700.40(a) and 29 CFR §2700.41(a).” The 

Secretary objected to these requests as subject to the work product privilege, the attorney-client 

privilege, the deliberative process privilege, and the common interest privilege. Resp. Mot. 9. 

In my August 1 order, I stated that I was unable to rule on Respondent’s motion to 

compel with respect to these documents because I was not sure what information was contained 

within them. I ordered the Secretary to provide the documents to me for my in camera review. 

The documents have now been provided and I hold that they are subject to the work product rule, 

as set forth below. As a consequence, the Secretary is not required to produce them. 

In its motion to compel, Park County argued that both documents are “discoverable since 

they are both relevant and admissible and required by law to be prepared and maintained by the 

Secretary.” Resp. Mot. 9. In response, the Secretary stated that “these documents . . . were 

clearly prepared within the Solicitor’s Office and in anticipation of litigation and, thus, [are] not 

only protected from disclosure by the work product doctrine, but by the deliberative [process] 

privilege as well.” Sec’y Opposition 4. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 on behalf of CURTIS LOGSDON, 

 Complainant 

 v. 

PARK COUNTY GOVERNMENT, 

 Respondent 

 DISCRIMINATION PROCEEDING 

Docket No. WEST 2016-380-DM 

MSHA No. RM MD 2016-07 

Nine Pit 

Mine ID 05-04600 

38 FMSHRC Page 2337
The first document requested by Park County is required under the first sentence in 

section 105(c)(3) of the Mine Act. That sentence states that “[w]ithin 90 days of the receipt of a 

complaint filed under paragraph (2), the Secretary shall notify, in writing, the miner . . . of his 

determination whether a violation has occurred.” 30 U.S.C. § 815(c)(3) (emphasis added). 

The second document is “the written determination of the Secretary that a violation has 

occurred” in this matter as described in 29 C.F.R. § 2700.40(a) and 29 C.F.R. § 2700.41(a). 

Resp. Mot. 9. Commission Procedural Rule 40(a) provides that a discrimination complaint shall 

be filed by the Secretary if, after an investigation, “the Secretary determines that a violation of 

section 105(c)(1), 30 U.S.C. 815(c)(1), has occurred.” 29 C.F.R. § 2700.41(a). The procedural 

rule does not require that a document be prepared by the Secretary other than the complaint of 

discrimination that is filed with the Commission and served on the mine operator. Commission 

Procedural Rule 41(a) provides that a “discrimination complaint shall be filed by the Secretary 

within 30 days after his written determination that a violation has occurred.” 29 C.F.R. § 

2700.41(a) (emphasis added). 

THE WORK PRODUCT RULE 

 Although the Commission’s Procedural Rules do not specifically set forth a work product 

rule, the Federal Rules of Civil Procedure guide Commission judges “as far as practicable” on 

procedural questions “not regulated by the [Mine] Act, [the Commission’s] Procedural Rules, or 

the Administrative Procedure Act.” 29 C.F.R. § 2700.1(b). Federal Rule 26(b)(3)(A) allows a 

party to withhold otherwise discoverable materials under the work product rule if they are (1) 

documents or tangible things; (2) prepared in anticipation of litigation or for trial; and (3) by or 

for another party or its representative. Fed. R. Civ. P. 26(b)(3)(A); see also ASARCO, Inc., 12 

FMSHRC 2548, 2558 (Dec. 1990) (“ASARCO I”). 

 Commission Judge Alan G. Paez recently summarized the test to be used when analyzing 

the work product doctrine, as follows: 

 Courts apply a “but-for” test to determine whether a 

substantially similar document would have been created if not for 

the prospect of particular litigation. See ASARCO I, 12 FMSHRC 

at 2558 (“If . . . [a] document can fairly be said to have been

prepared because of the prospect of litigation, then the document is 

covered by the privilege. . . . In addition, particular litigation must 

be contemplated at the time the document is prepared.”) (emphasis 

added); see also U.S. v. Richey, 632 F.3d 559, 568 (9th Cir. 2011); 

U.S. v. Deloitte LLP, 610 F.3d 129, 137 (D.C. Cir. 2010). The 

Commission and its Judges have determined that documents 

prepared as a result of an MSHA investigation are prepared in 

anticipation of litigation. Consolidation Coal Co., 19 FMSHRC 

1239, 1243 (July 1997)[.] 

Sec’y on behalf of Villa v. Molycorp Minerals, LLC, 36 FMSHRC 1076, 1078 (April 2014). The 

work product rule is qualified and documents that otherwise may be withheld under the rule may 

38 FMSHRC Page 2338
be subject to disclosure upon a showing that the requesting party has substantial need for the 

material to prepare its case and cannot, without undue hardship, obtain the substantial equivalent 

by other means. Consolidation Coal Co., 19 FMSHRC at 1242-43; Fed. R. Civ. P. 

26(b)(3)(A)(ii). 

1. Notification to Miner Required by Section 105(c)(3) 

This document is a letter, dated March 14, 2016, from Michelle A. Horn, counsel for 

Complainant, to Curtis Logsdon. It states that the Secretary of Labor will be filing a complaint of 

discrimination against Park County on his behalf. The remainder of the letter is equivalent to an 

engagement letter telling Logsdon what to expect as the case proceeds and that he has the right to 

obtain outside representation or the advice of a private attorney if he so choses. The letter 

contains no factual information about this particular discrimination case and a large part of the 

letter appears to be boilerplate. 

I find that the Secretary is not required to produce this letter because it is subject to the 

work produce rule. But for the commencement of the present case, the document would not have 

been written. In addition, there is no information in the document that Park County needs in the 

preparation of its defense in this matter. 

2. The Secretary’s Written Determination that a Violation of Section 105(c) Occurred 

This document is a legal memorandum entitled “Merits Analysis,” dated February 26, 

2016, from Michelle A. Horn to the Regional Solicitor and the Associate Regional Solicitor of 

the Department of Labor. In this memo, Ms. Horn sets forth the reasoning behind her 

recommendation that the Secretary file a complaint of discrimination on behalf of Curtis 

Logsdon. Printed across the top of the first page of the memo are the words: “FOR INTERNAL 

USE ONLY. This document may contain information that is privileged or otherwise exempt 

from disclosure under applicable law.” This document was clearly prepared in anticipation of 

litigation by the Secretary’s attorney. It was only prepared because of the prospect of this 

particular litigation. See ASARCO I, 12 FMSHRC at 2558. 

The purpose of the memo is to convince Ms. Horn’s supervisors in the Office of the 

Solicitor to support her conclusion that the Secretary should proceed with this litigation. The 

memo briefly presents some basic facts, presumably gathered by MSHA’s special investigator, 

but most of the memo consists of a recitation of Commission case law followed by Ms. Horn’s 

analysis of the issues applying this case law. The memo is infused with the “mental impressions, 

conclusions, opinions, [and] legal theories of [Ms. Horn] concerning the litigation.” Fed. R. Civ. 

P. 26(b)(3)(B). It would be difficult to parse out those portions of the memo that discuss the facts 

from her legal analysis, in part because revealing the facts that are emphasized in the memo 

would disclose the mental impressions and legal theories of Ms. Horn. 

Commission Procedural Rule 56(b) provides that “[p]arties may obtain discovery of any 

relevant, non-privileged matter that is admissible evidence or appears likely to lead to the 

discovery of admissible evidence.” 29 C.F.R. § 2700.56(b). The memo is certainly relevant to the 

issues in this case and the facts contained therein would be admissible at hearing. Nevertheless, I 

38 FMSHRC Page 2339
am not willing to require the disclosure of any part of an internal memo prepared by an attorney 

in the Office of the Solicitor directed to her supervisors for the purpose of convincing them that a 

case should be filed before the Commission, including those portions of the memo that set forth 

the facts that she relied upon. That Commission Procedural Rule 41(a) requires the Secretary to 

file his discrimination complaint within 30 days after this written determination is prepared is 

irrelevant to the disclosure issue. Id. at 2700.41(a). I find that the memo is protected by the work 

product rule. In addition, my review of the memo convinces me that Park County would not be 

able to demonstrate that it has a substantial need for any part of the memo to prepare its case or 

that it cannot, without undue hardship, obtain by other means the facts that it does not already 

possess. 

My analysis on this issue incorporates some of the principles of the deliberative process 

privilege. The Commission has held that “public officials are entitled to the private advice of 

their subordinates and to confer among them themselves privately and frankly, without fear of 

disclosure[.]” In Re: Contests of Respirable Dust Sample Alteration Citations, 14 FMSHRC 987, 

991 (June 1992) (citation omitted). I find that disclosure of any part of the subject memo would 

not only reveal the Secretary’s work product, as that concept is set forth in the Federal Rules of 

Civil Procedure, but it would also violate the Secretary’s reasonable expectation that the advice 

and recommendations of its counsel will be kept confidential. 

ORDER

 For the reasons set forth above, Respondent’s motion to compel the disclosure of the two 

documents sought by Park County in Requests for Production Nos. 4 and 5 is DENIED. 

/s/ Richard W. Manning 

 Richard W. Manning 

 Administrative Law Judge 

 

Distribution: 

Michelle A. Horn, Esq., Office of the Solicitor, U.S. Department of Labor, 1244 Speer Blvd., 

Suite 216, Denver, CO 80204-3518 

Herbert C. Phillips, Esq., PO Box 1046, Fairplay, CO 80440 

Timothy P. Schimberg, Esq., and Joel J. Fulton, Esq., Fowler, Schimberg & Flanagan, 1640 

Grant St., Suite 150, Denver, CO 80205 

RWM 

38 FMSHRC Page 2340
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

721 19TH STREET, SUITE 443 

DENVER, CO 80202-2500 

TELEPHONE: 303-844-5266 / FAX: 303-844-5268 

August 11, 2016 

 

ORDER

Before: Judge Simonton 

 This case is before me upon a complaint of discrimination under Section 105(c) of the 

Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c). Complainant Marshall Justice 

filed a complaint of discrimination with MSHA in May 2015 against his employer, Gateway 

Eagle Coal Company. The Secretary issued a determination on July 9, 2015, finding insufficient 

evidence of discrimination. Complainant filed the instant action with the Commission on August 

10, 2015. When Gateway failed to file a response to the complaint within 30 days, the Chief 

Administrative Law Judge issued an Order to Show Cause on October 20, 2015, giving Gateway 

another 30 days to respond. Gateway did not file a response. On February 4, 2016, Complainant 

filed a Motion for Default Judgment. The case was assigned to me on February 10, 2016. 

 In his Motion for Default Judgment, Complainant asked that judgment be entered against 

not only Gateway, but also against Rockwell Mining, LLC, which Complainant alleged is a 

successor-in-interest to Gateway. Compl.’s Mem. Supp. Mot. Default J. 2-4. At the request of the 

Court, Rockwell filed a memorandum of law opposing Complainant’s motion to add it as a party. 

Rockwell argued that Complainant had failed to set out a claim upon which relief could be 

granted, because Rockwell had obtained the Gateway Eagle Mine in a bankruptcy sale, and the 

bankruptcy court’s sale order barred successor liability claims against Rockwell based on actions 

of Gateway. Rockwell’s 1st Mem. Law 14-19. After considering Rockwell’s filing, I ordered the 

parties to submit additional briefs on the issue of Rockwell’s status as a successor. On the basis 

of those briefs and the prior submissions of the parties, I make the following findings and order. 

 

MARSHALL JUSTICE, 

 Complainant, 

 v. 

GATEWAY EAGLE COAL CO., LLC, 

 Respondent. 

 DISCRIMINATION PROCEEDING 

Docket No. WEVA 2015-924-D 

PINE-CD 2015-03 

Gateway Eagle Mine 

Mine ID: 46-06618 

38 FMSHRC Page 2341
I. BACKGROUND 

Marshall Justice began his employment with Gateway Eagle Coal Company in 2012, 

when Gateway took ownership of the mine where he was an employee. Compl. 2. Justice alleges 

that Gateway took disciplinary action against him in February and May 2015 in retaliation for a 

safety complaint Justice made to MSHA on February 6, 2015. He seeks compensation for work 

days missed, injunctive relief, and attorneys’ fees. 

The parent company of Gateway Eagle Coal Company, Patriot Coal Corp., filed a 

petition for relief under Chapter 11 on May 12, 2015. Complainant filed a proof of claim with 

the bankruptcy court on July 27, 2015, regarding the discriminatory discipline alleged in this 

case. Compl.’s Suppl. Br., Ex. 4. As part of the bankruptcy proceeding, arrangements were made 

to sell the assets of Patriot Coal. After a bidding process, Blackhawk Mining, LLC, won the right 

to purchase Patriot’s assets, and the bankruptcy court approved the sale on October 9, 2015. In re 

Patriot Coal Corp., Ch. 11 Case No. 15-32450 (Bankr. E.D. Va. Oct. 9, 2015) (order confirming 

plan of reorganization) (“Confirmation Order”). Blackhawk’s subsidiary Rockwell Mining, LLC, 

registered with MSHA as the operator of the Gateway Eagle Mine as of October 26, 2015. 

Compl.’s Suppl. Br., Ex. 9.

The bankruptcy court’s confirmation order states that the sale of Patriot’s assets to 

Blackhawk was “free and clear of all Liens, Claims and interests.” Confirmation Order ¶ 114. 

The order further states that: 

Blackhawk is not and shall not be deemed ... to: 1) be a successor 

(or other such similarly situated party) to any of the Debtors . . . . 

Blackhawk ... is not, and shall not be, a successor to the Debtors 

by reason of any theory of law or equity . . . . 

[Blackhawk and its affiliates] shall have no successor or vicarious 

liabilities of any kind or character, including, but not limited to, 

any theory of ... successor or transferee liability [or] labor, 

employment or benefits law ... with respect to the Debtors or their 

affiliates . . . . 

Confirmation Order ¶¶ 76, 116, 120. 

II. DISCUSSION 

A. Default Judgment Against Gateway 

Complainant argues that default judgment should be entered against Gateway because it 

did not file an answer in this case and did not respond to the Order to Show Cause. Compl.’s 

Mot. Default J. 1-2. 

38 FMSHRC Page 2342
The Commission’s procedural rules provide that an order of default may be entered 

against a party who fails to respond to an order to show cause. 29 C.F.R. § 2700.66. Here, the 

initial complaint was served on Gateway on August 10, 2015. Compl.’s Mot. Default J., Ex. 1. 

Gateway then had 30 days to respond to the complaint, 29 C.F.R. § 2700.43, but failed to file an 

answer. An Order to Show Cause was issued on October 20, 2015. Gateway did not file an 

answer or otherwise respond to the order to show cause. Accordingly, I find that it is appropriate 

to enter an order of default against Gateway. 

B. Default Judgment Against Rockwell 

Complainant also seeks entry of a default judgment against Rockwell Mining, LLC. 

Rockwell was not a named party in Complainant’s original complaint, but Complainant alleges 

in his motion that Rockwell is a successor-in-interest to Gateway. Accordingly, I interpret 

Complainant’s motion as seeking to amend the complaint to join Rockwell as a respondent on a 

theory of successor liability. 

Amendment of a complaint in Commission cases is governed by Federal Rule of Civil 

Procedure 15(a). See Cyprus Empire Corp., 12 FMSHRC 911, 916 (May 1990); 29 C.F.R. § 

2700.1(b) (stating that Federal Rules are applicable where no Commission rule on point). Under 

Rule 15, a court should “freely give leave [to amend] when justice so requires.” Fed. R. Civ. P. 

15(a)(2). However, a court may properly deny leave to amend where amendment would be futile. 

Foman v. Davis, 371 U.S. 178, 182 (1962); Steinburg v. Chesterfield, 527 F.3d 377, 390 (4th Cir. 

2008). 

The Commission has held that a corporate successor may be held liable for its 

predecessor’s violations of the Mine Act. Sec’y of Labor on behalf of Corbin v. Sugartree Corp., 

9 FMSHRC 394, 397 (Mar. 1987), aff’d sub nom. Terco, Inc. v. Fed. Coal Mine Safety & Health 

Review Comm’n, 839 F.2d 236 (6th Cir. 1987); see also Munsey v. Smitty Baker Coal Co., 2 

FMSHRC 3463, 3465 (Dec. 1980) (applying successorship doctrine in a Coal Act case). 

However, Rockwell argues that successor liability is not available in a case where the alleged 

successor company acquired the predecessor’s assets “free and clear” as part of a bankruptcy 

proceeding. Rockwell’s 1st Mem. Law 5. The Commission has not decided the issue of the effect 

of a free-and-clear asset sale on successor liability under the Mine Act. 

Rockwell acquired the Gateway Eagle Mine when Rockwell’s parent company, 

Blackhawk, purchased the assets of Patriot Coal in a sale authorized by the bankruptcy court. 

Section 363(f) of the Bankruptcy Code permits a trustee in bankruptcy to “sell property under 

subsection (b) or (c) free and clear of any interest in such property of an entity other than the 

estate.” 11 U.S.C. § 363(f). Courts have generally held that this language empowers the trustee to 

sell assets free and clear of successor liability claims. See, e.g., In re Motors Liquidation Co., No. 

15-2844-BK(L), 2016 WL 3766237, at *12 (2d Cir. July 13, 2016); In re Chrysler LLC, 576 F.3d 

108, 126 (2d Cir. 2009), vacated as moot sub nom. Ind. State Police Pension Tr. v. Chrysler 

LLC, 558 U.S. 1087 (2009); In re Trans World Airlines, 322 F.3d 283, 288-90 (3d Cir. 2003) 

(“TWA”); In re Leckie Smokeless Coal Co., 99 F.3d 573, 582 (4th Cir. 1996); but see ZerandBernal Grp., Inc. v. Cox, 23 F.3d 159, 163 (7th Cir. 1994). These courts have interpreted the 

“interests in property” language to refer not only to in rem interests, but also to interests that 

38 FMSHRC Page 2343
“arise from the property being sold.” Chrysler, 576 F.3d at 126; TWA, 322 F.3d at 290; see also 

Motors Liquidation, 2016 WL 3766237, at *12. Thus, the Fourth Circuit, where the Gateway 

Eagle Mine is located, has held that a pension fund’s right to collect premium payments from a 

successor under the Coal Act is an “interest in property” that may be extinguished in a §363 sale 

because 

[t]hose rights are grounded, at least in part, in the fact that those 

very assets have been employed for coal-mining purposes: if [the 

debtors] had never elected to put their assets to use in the coalmining industry, and had taken up business in an altogether 

different area, the Plan and Fund would have no right to seek 

premium payments from them. 

Leckie, 99 F.3d at 582. 

Additionally, these courts have observed that allowing a claimant to assert a successor 

liability claim against a §363 asset purchaser would “subvert the Bankruptcy Code’s priority 

scheme, by allowing a low-priority, unsecured claim to leapfrog over other creditors in the 

bankruptcy.” In re Grumman Olson Indus., Inc., 467 B.R. 694, 703 (S.D.N.Y. 2012); see also

Chrysler, 576 F.3d at 126; TWA, 322 F.3d at 292; New Eng. Fish Co., 19 B.R. 323, 329 (Bankr. 

W.D. Wash. 1982). Moreover, courts have noted that allowing the bankruptcy trustee to sell 

assets free and clear of successor liability claims enables the trustee to maximize the sale price of 

the assets. See Douglas v. Stamco, 363 F. App’x 100, 103 (2d Cir. 2010); TWA, 322 F.3d at 292-

93; Leckie, 99 F.3d at 586-87. While this may be at the expense of successor liability claimants, 

it is consistent with the Bankruptcy Code’s goal of preserving jobs. See TWA, 322 F.3d at 293. 

Complainant argues that a bankruptcy court does not have the power to extinguish claims 

for successor liability under the Mine Act, citing International Technical Products Corp., 249 

N.L.R.B. 1301 (1980) (“ITP”). Compl.’s Suppl. Br. 5. In that case, the NLRB held that a 

bankruptcy court’s free and clear sale order did not extinguish a successor’s liability for back pay 

under an NLRB order against the debtor. 249 N.L.R.B. 1301, 1303 (1980) (“ITP”). The Board 

stated that 

 

[W]hile a bankruptcy court may have the authority to assign a 

certain priority to the Board’s claim for backpay, the authority to 

modify or set aside the order upon which the claim is based rests 

exclusively with the Board and the appropriate reviewing Federal 

courts, and not the bankruptcy courts. 

ITP, 249 N.L.R.B. at 1303. A FMSHRC ALJ recently cited ITP in an order suggesting that a 

§363 sale order does not preclude a finding of successor liability under the Mine Act. Varady v. 

Veris Gold USA, Inc., 38 FMSHRC __, slip op. at 14, No. WEST 2014-307-DM (Mar. 4, 2016) 

(ALJ); but see Bailey v. Osborne, 38 FMSHRC __, slip op. at 5-6, No. WEVA 2016-241-D (July 

14, 2016) (ALJ) (order denying motion to dismiss) (noting “questionable” status of ITP). 

However, ITP was decided under the previous Bankruptcy Act, and it is unclear whether it is 

38 FMSHRC Page 2344
applicable under the current Code. The decision was not appealed, and it appears to be contrary 

to the decisions of the courts of appeals cited above. Accordingly, I decline to apply it here. 

In this case, the bankruptcy court ordered the sale of Patriot’s assets to Blackhawk “free 

and clear of all Liens, Claims and interests,” and stated that Blackhawk would not be liable as a 

successor to Patriot. Confirmation Order ¶¶ 114, 116. This was within the bankruptcy court’s 

power under §363. Accordingly, Rockwell cannot be held liable under a theory of successor 

liability for acts of discrimination by Gateway. Complainant’s proposed amendment to his 

complaint adding Rockwell as a respondent would be futile. 

III. ORDER 

Upon review of the complaint and the entire record in this case, Complainant’s motion 

for a default judgment against Gateway Eagle Coal Company, LLC, is hereby GRANTED. 

Should Complainant wish to obtain an order of payment against Gateway, he is directed to 

submit a claim for personal relief no later than August 26, 2016. Complainant’s motion to amend 

his complaint to add Rockwell Mining, LLC, as a party to this action under a theory of successor 

liability is DENIED, and his motion for a default judgment against Rockwell is DENIED. 

/s/ David P. Simonton 

 David P. Simonton 

 Administrative Law Judge 

Distribution: (U.S. First Class Mail) 

 

Samuel B. Petsonk, Mountain State Justice, Inc., 1031 Quarrier Street, Suite 200, Charleston, 

WV 25301 

Jonathan R. Ellis, Steptoe & Johnson, PLLC, P.O. Box 1588, Charleston, WV 25326 

Gateway Eagle Coal Company, 54912 Pond Fork Road, Wharton, WV 25208 

38 FMSHRC Page 2345
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

721 19TH STREET, SUITE 443 

DENVER, CO 80202-2500 

TELEPHONE: 303-844-5266 / FAX: 303-844-5268 

August 24, 2016 

 

DECISION AND ORDER

Appearances: Shawn Hirt, pro se, Atchison, Kansas, Complainant; 

 Allen A. Ternent, Ternent Law Office, Atchison, Kansas, for Respondent. 

Before: Judge Miller 

This case is before me on a complaint of discrimination brought by Shawn Hirt against 

Gary Servaes Enterprises pursuant to Section 105(c) of the Federal Mine Safety and Health Act 

of 1977, as amended, 30 U.S.C. § 815(c). The parties presented testimony and documentary 

evidence at a hearing on July 6, 2016, in Kansas City, Missouri. 

I. FINDINGS OF FACT

The findings of fact detailed below are based on the record as a whole and my careful 

observation of the witnesses during their testimony. My credibility determinations are based in 

part on my close observation of the witnesses’ demeanors and voice intonations. In this case the 

witnesses on both sides were neither totally truthful nor presented the entire picture. In resolving 

any conflicts in testimony, I have taken into consideration the interests of the witnesses, 

corroboration or the lack thereof, and consistencies and inconsistencies in each witness’s 

testimony and among the testimonies of the various witnesses. Any failure to provide detail on 

each witness’s testimony in this decision should not be deemed a failure on my part to have fully 

considered it. The fact that some evidence is not discussed does not indicate that it was not 

considered. See Craig v. Apfel, 212 F.3d 433, 436 (8th Cir. 2000). 

Gary Servaes Enterprises operates the Atchison Quarry Mine in Atchison, Kansas. The 

quarry mines limestone both underground and on the surface using explosives. Servaes 

Enterprises is owned by Gary Servaes and is considered a small operator. At the time of Hirt’s 

employment, the company had about ten employees at Atchison. The company is subject to the 

jurisdiction of the Act. 

SHAWN HIRT, 

 Complainant, 

 v. 

GARY SERVAES ENTERPRISES, 

 Respondent. 

 DISCRIMINATION PROCEEDING 

Docket No. CENT 2015-0598-DM 

RM MD 15-13 

Atchison Quarry Mine 

Mine ID: 14-01710 

38 FMSHRC Page 2346
 Shawn Hirt was hired at the mine in November 2014 as a blaster assistant. He primarily 

worked underground assisting the lead blaster, Josh Tull, in loading holes and blasting. He was 

also assigned other jobs as needed. Hirt began working for Servaes as a part-time employee 

while he was doing other independent contract work. He believes he was later given a full-time 

position, although the mine’s records indicate that he did not normally work a 40-hour week. 

Resp. Ex. E. The records show that he worked overtime hours on five occasions. Id. He was paid 

$11.00 per hour with no benefits. Hirt last worked for Servaes Enterprises on April 9, 2015. 

In January 2015, the mine was inspected by MSHA, ATF, and the Kansas Fire Marshal. 

According to Hirt, management was aware of the upcoming inspection and gathered miners 

together before the inspection, telling them not to speak to the inspectors or to cooperate in the 

investigation. However, when the inspectors arrived, management told Hirt to speak with the 

MSHA inspector. Hirt told the inspector that his job was to help load explosives. According to 

Hirt, the information he provided to the inspector resulted in a $5,000.00 citation being issued to 

the mine. He alleges that the mine did not call him back to work in April 2015 because the 

owners were angry that he had spoken with MSHA. 

I take judicial notice that the MSHA data retrieval system confirms that a large number of 

MSHA citations were issued to the mine on January 12, 2015, and again on January 13, 2015, 

including a number of Section 104(d) citations and orders and a failure-to-abate order. Although 

many were assessed $4,000.00 penalties, one flagrant violation involving an explosives 

magazine that was not locked was assessed a penalty of $96,300.00. Additionally, the MSHA 

website shows that several more 104(d) orders were issued on January 29, 2015. Two violations 

involved a vehicle containing explosive material and were assessed penalties of $56,900.00 and 

$12,563.00. All of these citations and orders are in contest. Hirt did not describe the violation 

that he allegedly caused to be issued, but vaguely stated that it was related to a truck he was 

driving. Although Hirt did not say when the citation was issued, the record indicates that the 

mine received a number of serious, high-penalty citations as a result of the January inspections, 

at least two of which involved a vehicle, and five of which were unwarrantable violations related 

to explosives. 

In addition, an order was issued to Gary Servaes Enterprises on February 3, 2015, for 

failing to provide task training for three employees who were handling explosives. One of the 

listed miners was Shawn Hirt, and the order withdrew him from working with explosives in any 

way. The order also referenced Mike Tull, presumably the blaster who worked with Hirt, and 

Patrick Miranda, a miner for whom Hirt filled in during an absence in April. It appears that 

Miranda did not return to work, though the mine operator claimed not to remember the details at 

hearing. Darryl Servaes, son of Gary Servaes and superintendent of the mine, testified that all 

persons at the mine who handled explosives were task trained. Darryl later indicated that the 

mine had received a citation for failing to provide task training, but that it was vacated ten 

months after it was received. MSHA records show that the mine did receive a citation involving 

task training, for both Hirt and Tull, and contrary to Servaes’ testimony, the citation has not been 

vacated. ATF and the Kansas Fire Marshal also found problems with the mine’s training. Gary 

Servaes stated that the law had changed and under previous law MSHA task training satisfied 

ATF and Kansas requirements. However, there is no evidence that ATF or the Kansas fire 

marshal had changed their requirements for blasters and blasting assistants. 

38 FMSHRC Page 2347
 The testimony was confusing and incomplete, but it appears that the three persons who 

were blasting at the mine had not been trained, did not have ATF or fire marshal certifications, 

and are no longer working at the mine. A separate 104(g) order was issued to withdraw Michael 

Hinson from handling explosives because he was not task trained, but the citation indicates that 

Hinson was no longer working at the mine in February. By April, when Hirt was not called back 

and Miranda did not come back to work, all of the persons who were withdrawn for violations of 

task-training requirements in handling explosives were no longer working at the mine. 

Darryl Servaes stated that the mine fully cooperated with the inspections and provided 

records as requested. However, two failure-to-abate orders were issued to the mine in April and 

May, about the time Hirt was let go. These allege that the mine would not allow MSHA to 

conduct an inspection without law enforcement present. One of the failure-to-abate orders related 

to a truck, which may have been the citation Hirt referred to as the one in which the mine held 

him responsible. 

As a result of the inspection by the three agencies, the mine lost its Kansas state blasting 

license. It also “voluntarily” gave up its ATF license. Subsequently, the mine suspended blasting 

on the underground level and hired a contractor to conduct blasting work on the surface only. 

Prior to January 2015, the primary production of limestone was based upon the underground 

supply. But after the inspections, production was from the surface only. This resulted in a 

reduction in production and the need for fewer workers. However, the mine continued to have 

work for its full-time employees. The reduced production status lasted approximately a year until 

January 2016, when the mine had its permits restored and was able to resume its own blasting 

work. Darryl Servaes testified that several employees quit during 2015. Tull, the lead blaster, 

was terminated in April 2015 about the same time that Hirt was not called back to work. 

According to the mine’s payroll records, Hirt continued to work regularly at the mine 

after the inspection in January through February 2015, including some overtime hours. Although 

Darryl Servaes claims Hirt did not work with explosives after the January inspection, Hirt 

testified that he worked on bringing the explosive boxes, signs, and other items used for blasting 

out of the mine. He then believes he was laid off, though Darryl Servaes claims he was still on 

call as needed. In March 2015, the payroll records show that Hirt worked only four days, with 

none in the second two weeks of March. He then worked six days during the first two weeks of 

April. Servaes claims that there was no work for Hirt during March, but that he called him in to 

fill in for a full-time employee, Patrick Miranda, in April. This likely corresponds to Hirt’s 

description of being called back to work as a truck driver for a few weeks. 

Hirt’s last day of work was April 9, 2015. On that day, Darryl Servaes told Hirt that he 

would call him if Miranda did not return the following Monday. However, at hearing, Servaes 

could not remember whether Miranda ever returned to work. Servaes did not call Hirt the 

following Monday, and so Hirt sent him a text message. Hirt believed Servaes had hired 

someone to replace him, and conveyed this in his text message to Servaes. Servaes testified that a 

person was hired that day, but the person was a crusher operator who had specialized experience. 

No one was hired to replace Hirt. Hirt believes that he was not called back to work because 

Servaes was angry at him for providing information to MSHA that led to a citation. 

38 FMSHRC Page 2348
I note that much of the testimony of both Darryl and Gary Servaes amounted to yes or no 

responses and so provides little direct information. The testimony of each is incomplete and 

contradictory, and I did not find either witness to be credible. When asked if Hirt was terminated 

because of his involvement with the ATF and MSHA inspections, Darryl Servaes responded 

“no” to the question, but offered no further explanation. While he admitted that he was aware 

that Hirt spoke to MSHA during the inspection, he indicated that all of the employees at the mine 

spoke to MSHA and ATF at some point during the inspections. He acknowledged that the mine 

received ten or twelve citations during the first day or two of the inspections in January, but 

claimed that none were related to anything Hirt did. He stated that he was unaware that Hirt had 

said anything to MSHA that led to a citation. Gary Servaes admitted that he viewed the MSHA 

file after the January inspection, but said he did not see anything that would have led him to 

blame Hirt for the company getting cited. However, nearly every citation issued in January and 

February by MSHA was related to blasting and explosives, work that involved Hirt. 

Darryl Servaes gave several reasons for why he did not call Hirt back. First, he described 

the text message he received from Hirt on the Monday Hirt was to return to work as “abrasive” 

and “agitated.” He said he got the impression that Hirt did not want to come back to work, and 

also thought the message was a sign that Hirt would not be a good person to bring back. 

Although Servaes at first mentioned messages and conversations in the plural, he later stated that 

he received just one text message from Hirt the week he was not called back. In addition to the 

text message, Servaes later learned that Hirt had filed a discrimination complaint. The complaint 

stated that Hirt was not seeking to return to work.1

 However, Servaes did not find out about 

Hirt’s complaint until July, several months after Hirt was not called back to work. Servaes also 

indicated that he had no work for Hirt after the mine stopped underground blasting. Finally, 

Servaes indicated that he could not bring Hirt back to work because during the course of having 

the mine’s blasting license reissued, the fire marshal required that the company not have anyone 

with a felony record working at the mine. It is unclear when Servaes came to understand the 

requirement, as the company continued to employ Hirt until April, then without any explanation 

failed to call him back to work. 

Hirt decided to make a discrimination complaint to MSHA on the advice of Tull, who 

also made a complaint. The mine argues that Hirt falsified his MSHA forms by marking them 

with the incorrect date. Hirt dated the MSHA documents for April 2, 2015, the day he believed 

he was terminated. Resp. Exs. A-D. However, he did not submit the documents by fax until July 

2015. Hirt explained that he did not understand at the time that he should have returned the 

documents within 60 days. He also was uncertain about what dates to put on the documents. Hirt 

indicated on the documents that he worked 40 hours a week, when in fact he typically did not. 

When questioned repeatedly by the mine operator, Hirt tried to explain that he thought he was a 

full-time employee and listed 40 hours per week because that is what he expected to work, as 

well as some overtime. I do not believe he intentionally misled anyone with his statements on the 

forms, but rather tried to provide the information he thought was necessary to move forward with 

his MSHA complaint. 

 1

 Hirt claims he said in his complaint that he did not wish to return to work with Servaes 

based upon advice from MSHA. I do not find that argument credible and disregard it. 

38 FMSHRC Page 2349
II. DISCUSSION 

A. Late Filing 

As a preliminary matter, Respondent argues that Hirt’s complaint should be dismissed 

because it was not timely filed. Section 105(c)(2) of the Act provides that a miner who believes 

he has been discriminated against must file a complaint with the Secretary “within 60 days after 

such violation occurs.” 30 U.S.C § 815(c)(2). However, the Commission has held that a miner’s 

late filing may be excused on the basis of “justifiable circumstances.” Hollis v. Consol. Coal Co., 

6 FMSHRC 21, 24 (Jan.1984); Herman v. Imco Servs., 4 FMSHRC 2135, 2137 (Dec. 1982). The 

Commission’s interpretation is based on the legislative history of the Mine Act, which states that 

While this time-limit is necessary to avoid stale claims being 

brought, it should not be construed strictly where the filing of a 

complaint is delayed under justifiable circumstances. 

Circumstances which could warrant the extension of the time-limit 

would include a case where the miner within the 60–day period 

brings the complaint to the attention of another agency or to his 

employer, or the miner fails to meet the time limit because he is 

misled as to or misunderstands his rights under the Act. 

S. Rep. No. 95-181, at 36 (1977). In Hollis, the Commission upheld a judge’s dismissal of a latefiled claim where the miner’s assertion that he did not know about his rights under the Mine Act 

until after the filing deadline was not credible. 6 FMSHRC at 24. In Herman, the Commission 

upheld a dismissal where the miner’s reason for filing late was that he spent several months 

deciding whether to file a complaint. 4 FMSHRC at 2138. 

In this case, I find first, that Hirt did bring his complaint to MSHA within the filing 

deadline by making a verbal complaint. He did not return the forms he received from MSHA 

within 60 days, however. I find that Hirt misunderstood his rights under the Act and genuinely 

did not know there was a 60-day time limit for filing the written forms. Although he dated his 

complaint for April, he did not intend to deceive anyone in doing so. Rather, he believed he was 

supposed to date the complaint for the day he believed he was discriminated against. When he 

faxed the document to MSHA, he was not aware that it should have been done within 60 days of 

the date he learned of his termination. Further, the complaint would have been due in mid-June 

but was filed in early July. Because the delay in filing was relatively small, the staleness of the 

claim is not a serious concern. Accordingly, I find that dismissal of Hirt’s complaint on the basis 

of late filing of the forms he received from MSHA is not warranted. 

B. Discrimination Claim 

 Section 105(c)(1) of the Mine Act provides that a miner cannot be discharged, 

discriminated against, or otherwise interfered with in the exercise of his statutory rights because 

he “has filed or made a complaint under or related to this Act, including a complaint notifying 

the operator ... of an alleged danger or safety or health violation” or “because of the exercise by 

such miner ... of any statutory right afforded by this Act.” 30 U.S.C. § 815(c)(1). 

38 FMSHRC Page 2350
In order to establish a prima facie case of discrimination under Section 105(c)(1), a 

complaining miner must produce evidence sufficient to support a conclusion that (1) he engaged 

in protected activity, (2) he suffered an adverse action, and (3) the adverse action was motivated 

at least partially by that activity. Driessen v. Nev. Goldfields, Inc., 20 FMSHRC 324, 328 (Apr. 

1998); Sec’y of Labor on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 817-18 

(Apr. 1981); Sec’y of Labor on behalf of Pasula v. Consol. Coal Co., 2 FMSHRC 2786, 2799 

(Oct. 1980), rev'd on other grounds sub nom. Consol. Coal Co. v. Marshall, 663 F.2d 1211 (3d 

Cir. 1981). The burden of proof for a prima facie case is “lower than the ultimate burden of 

persuasion, which the complainant must sustain as to the overall question of whether section 

105(c)(1) has been violated.” Turner v. Nat’l Cement Co. of Cal., 33 FMSHRC 1059, 1065 (May 

2011). 

The 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. Driessen, 

20 FMSHRC at 328-29; Robinette, 3 FMSHRC at 818 n.20. The operator may also defend 

affirmatively by proving that the adverse action was in part motivated by unprotected activity of 

the miner, and that it would have taken the adverse action based on the unprotected activity 

alone. Driessen, 20 FMSHRC at 328-29 (citing Robinette, 3 FMSHRC at 817; Pasula, 2 

FMSHRC at 2799-2800). The operator bears the burden of persuasion for the affirmative 

defense. Pasula, 2 FMSHRC at 2800. 

i. Protected Activity 

The Act’s discrimination provisions provide miners with protections against reprisal for 

certain protected activities in the hope that miners will be willing to aid in the enforcement of the 

Act and, in turn, improve overall safety. Section 105(c)(1) enumerates four protected activities: 

(1) filing or making a complaint under or related to the Act, including a complaint of an alleged 

danger or safety or health violation; (2) being the subject of medical evaluations and potential 

transfer under a standard published pursuant to Section 101; (3) instituting a proceeding under or 

related to the Act or testifying in such a proceeding; or (4) exercising “on behalf of himself or 

others . . . any statutory right afforded by this Act.” 30 U.S.C. § 815(c)(1). 

The legislative history of the Mine Act states that Congress intended that “the scope of 

the protected activities be broadly interpreted.” S. Rep. No. 95-181 at 35 (1977). The Senate 

Report notes that “the listing of protected rights contained in [Section 105(c)(1)] is intended to 

be illustrative and not exclusive” and that the section should be “construed expansively to assure 

that miners will not be inhibited in any way in exercising any rights afforded by the legislation.” 

Id. at 36. 

Hirt claims he spoke with an MSHA inspector during the course of an inspection at the 

mine in January 2015 and discussed various safety issues that resulted in the mine receiving 

citations. Conversations between a miner and an inspector are considered protected activity if 

they contain discussions about unsafe conditions at the mine. Sec’y of Labor on behalf of Knotts 

v. Tanglewood Energy, Inc., 19 FMSHRC 833, 837 (May 1997). The mine does not deny that 

Hirt spoke to an MSHA inspector. Therefore, I find that Hirt engaged in activity protected by the 

Mine Act. 

38 FMSHRC Page 2351
ii. Adverse Action 

Hirt’s last day of employment with the mine was April 9, 2015. Respondent claims that 

there was no adverse action because Hirt was an intermittent employee and was simply not 

called back to work because he was no longer needed. I find that the decision not to call Hirt 

back to work amounts to a discharge from employment and therefore is an adverse action. 

iii. Discriminatory Motive 

 

 Hirt must next demonstrate that the protected activity, speaking with an MSHA inspector, 

is connected to the adverse action. A complainant is not required to produce direct evidence of 

an operator’s motive. Sec’y on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510 

(Nov. 1981). More often, the complainant proves motive using circumstantial evidence. Id. Facts 

that may be relevant to establishing motive include the operator’s knowledge of the protected 

activity, the operator’s hostility or animus towards the protected activity, the timing of the 

adverse action in relation to the protected activity, and disparate treatment. Id. at 2510-13. 

 Gary and Darryl Servaes denied knowing that Hirt provided information to MSHA that 

resulted in a citation. Gary Servaes testified that he reviewed materials from MSHA received 

through a FOIA request and found no mention of Hirt being involved in a citation. However, 

Darryl Servaes stated that every employee of the mine spoke with MSHA. Additionally, the fact 

that the mine received citations relating to Hirt’s training and work suggests that the operator had 

knowledge of Hirt’s protected conversations with the inspectors. Hirt worked as a blasting 

assistant, and the majority of the high-penalty citations dealt with blasting and explosives. The 

mine also received a high-dollar citation for failing to task-train three miners, including Hirt and 

Tull. The citation was not vacated as Servaes claimed. 

 There is also evidence of the operator’s hostility or animus towards the protected activity 

of providing safety-related information to MSHA. I credit Hirt’s statement that management told 

the employees not to cooperate with the MSHA and ATF investigations or provide information 

to the inspectors. The mine’s animus toward MSHA is also seen in the failure-to-abate orders 

issued in April, which indicate that the mine would not allow inspectors onto the mine site 

without law enforcement agents. Finally, the timing of the MSHA citations and Hirt’s discharge 

supports an inference that Hirt was discriminated against. Hirt believed that management was 

most upset about a citation regarding a truck that had been driven by Hirt. A failure-to-abate 

order relating to a citation involving a truck was issued in April, around the time Hirt was 

discharged.2

 

 The mine asserts that it did not fire Hirt based on his participation in the MSHA 

investigation, and instead presents several reasons why he was not called back to work. First, 

Darryl Servaes testified that Hirt sent him an inappropriate text message on the first day he was 

not called back. However, it is my interpretation of the evidence that the one text message 

 2

 All references to citations and orders issued to Servaes are from documents found at the 

MSHA website, and its data retrieval system. I have taken judicial notice of all of the citations 

and orders discussed in this decision. 

38 FMSHRC Page 2352
received by Servaes was not adequate cause to discharge Hirt and Servaes had already decided 

not to call him back to work. Similarly, I am not persuaded by Respondent’s argument that the 

mine declined to hire Hirt back because of statements in his discrimination complaint saying he 

was not seeking to return to employment at the mine. Hirt did not file the complaint until July, so 

it could not have affected Servaes’s decision in April not to call him back. The mine also asserts 

that it had no more work for Hirt to do once it lost its blasting certification. However, the mine 

hired two new employees after Hirt and Tull were let go, which suggests the mine did have work 

available. Finally, the mine claims that it could not have anyone with a felony conviction 

working at the mine because of the fire marshal’s rules. However, the witnesses were unclear on 

when they learned of that requirement. 

 I find that there is circumstantial evidence of a connection between Hirt’s discharge and 

his protected activity. I am not persuaded by the mine’s attempts to refute the allegation that they 

received a high-dollar citation involving a truck that caused them to terminate Hirt’s 

employment. Thus, Hirt has proven a prima facie case of discrimination. 

iv. Affirmative Defenses 

Even if Servaes terminated Hirt on the basis of his protected activity, the company may 

still avoid liability by proving that Hirt was discharged in part because of unprotected activity, 

and it would have fired him based on the unprotected activity alone. The Commission has 

articulated several indicia of legitimate non-discriminatory reasons for an employer’s adverse 

action. These include evidence of the miner’s unsatisfactory past work record, prior warnings to 

the miner, past discipline consistent with that meted out to the complainant, and personnel rules 

or practices forbidding the conduct in question. Bradley v. Belva Coal Co., 4 FMSHRC 982, 993 

(June 1982). The Commission has explained that an affirmative defense should not be “examined 

superficially or be approved automatically once offered.” Haro v. Magma Copper Co., 4 

FMSHRC 1935, 1938 (Nov. 1982). In reviewing affirmative defenses, the judge must “determine 

whether they are credible and, if so, whether they would have motivated the particular operator 

as claimed.” Bradley, 4 FMSHRC at 993. The Commission has stated that “pretext may be found 

. . . where the asserted justification is weak, implausible, or out of line with the operator’s normal 

business practices.” Sec’y on behalf of Price v. Jim Walter Res., Inc., 12 FMSHRC 1521, 1534 

(Aug. 1990). 

The mine first argues that Hirt was not called back to work because the mine had no work 

for him after it lost its blasting license. The mine was not working underground, which was a 

large part of their production, and blasting at the surface had to be done by a contractor. 

However, the mine was able to keep its full-time employees working, although a few employees 

quit. The mine also hired at least two new workers after Hirt was let go. The mine asserts that 

one of the people hired was an experienced crusher operator for a position that Hirt could not fill. 

The witnesses did not explain the duties of the others hired. Given that the full-time employees 

were kept busy and the mine hired at least two employees, I find that the mine’s defense of lack 

of work is pretextual. 

The mine next asserts that it could no longer employ Hirt at the mine because he has a 

felony conviction and has not applied for a waiver to work around explosives. Darryl Servaes 

38 FMSHRC Page 2353
explained that in the course of attempting to get the company’s blasting license back from the 

Kansas Fire Marshal, the fire marshal told them that they could not have anyone employed at the 

mine who had a felony record. Servaes’s testimony was unclear as to when he learned of this 

rule. However, he discussed the rule as a reason for why he could not hire Hirt back rather than 

as a reason for why Hirt was discharged. Thus, I find that the mine did not know about the felony 

rule when Hirt was fired in April. While it may be the case now that Hirt cannot return, the mine 

has not shown that it fired Hirt in April for that reason. 

The only plausible defense raised by the mine is that after seeing a text message from 

Hirt, Darryl Servaes did not believe that he had the attitude of a good employee or that he really 

wanted to come back to work. However, Hirt sent the text message when he was not called back 

to work on Monday, after Servaes had decided on Thursday or Friday April 9 or 10 to fire him 

based on the MSHA citation. NLRB case law indicates that “when a company wrongfully fires 

an employee, . . . there is ‘some leeway for impulsive behavior.’” Precision Window Mfg., Inc. v. 

NLRB, 963 F.2d 1105, 1108 (8th Cir. 1992) (quoting Trustees of Boston Univ. v. NLRB, 548 F.2d 

391, 393 (1st Cir. 1977)). Hirt’s single angry text message to his boss was within the bounds of 

reasonable behavior in response to a wrongful discharge, and should not cause him to lose his 

remedial rights. Nevertheless, by the time the mine saw the discrimination complaint in July, it 

was clear that Hirt did not wish to return. Although the timing is not clear, the mine would have 

learned shortly after this time that Hirt could not return to work because of his felony conviction. 

Accordingly, I find that the mine had no plausible business reason to fire Hirt in April, but that 

by July, the mine had a legitimate business reason not to hire Hirt back. 

III. PENALTY 

 Hirt has brought this case individually without the assistance of the Secretary and thus no 

penalty has been proposed by the Secretary. Pursuant to Commission Procedural Rule 44(b), 29 

C.F.R. § 2700.44(b), a copy of this decision is being sent to the Secretary for the assessment of a 

civil penalty against Gary Servaes Enterprises. 

IV. DAMAGES 

 Hirt earned $11.00 per hour and worked an average of 29 hours per week while employed 

with Servaes. I find that he is due back pay from April 10 through the end of July. By the time 

Hirt submitted his claim for discrimination in July, the company had a legitimate reason not to 

re-hire him, since the complaint stated that Hirt was not seeking reinstatement. Additionally, 

Hirt made little effort to find other employment after he was discharged. “[A] discriminatee is 

not entitled to back pay to the extent that he fails to remain in the labor market, refuses to accept 

substantially equivalent employment, fails diligently to search for alternative work, or 

voluntarily quits without good reason.” Sec’y of Labor on behalf of Jackson v. Mountain Top 

Trucking Co., 21 FMSHRC 1207, 1212 (Nov. 1999) (emphasis omitted) (quoting NLRB v. 

Madison Courier, Inc., 472 F.2d 1307, 1317 (D.C. Cir. 1972)). The burden of proof is on the 

operator to show that the complainant failed to seek employment. Id. at 1214. Hirt could recall 

only two places where he submitted job applications after he was fired. I find that had Hirt been 

diligent in searching for work, he would have obtained a new position by July of 2015. 

38 FMSHRC Page 2354
 Consistent with these findings, Hirt is due back pay in the amount of $319.00 per week 

for 16 weeks, a total of $5,104.00. Given that Hirt has resumed working at his own business and 

has a felony that prevents him from working at the mine, I do not find reinstatement or front pay 

to be appropriate remedies in this case. 

 The Commission has held that awards of back pay should include interest from the date 

the amount should have been paid through when it is actually paid. See Local Union 2274, Dist. 

28, United Mine Workers of Am. v. Clinchfield Coal Co., 10 FMSHRC 1493, 1503 (Nov. 1988). 

Interest is to be assessed on a quarterly basis at the short-term Federal underpayment rate 

established by the IRS. Id. at 1505. 

V. ORDER 

Gary Servaes Enterprises is ORDERED to pay back pay to Shawn Hirt in the amount of 

$5,104.00 plus quarterly interest at the Federal underpayment rate through the date of payment, 

to be calculated by the parties. See Sec’y of Labor on behalf of Bailey v. Ark.-Carbona Co., 5 

FMSHRC 2042, 2053 n.15 (Dec. 1983). Such payments shall be made within forty days of the 

date of this order. The case is referred to MSHA for assessment of a civil penalty. 

 /s/ Margaret A. Miller 

 Margaret A. Miller 

 Administrative Law Judge 

Distribution: (U.S. First Class Certified Mail) 

Shawn Hirt, 590 Rawlins Road, Atchison, KS 66002 

Allen A. Ternent, Ternent Law Office, P.O. Box 396, Atchison, KS 66002 

Gary Servaes, Gary Servaes Enterprises, 4756 254th Road, Atchison, KS 66002 

38 FMSHRC Page 2355
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

WASHINGTON, DC 20004-1710 

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

August 29, 2016 

 

ORDER OF TEMPORARY REINSTATEMENT 

Before: Judge Rae 

I. STATEMENT OF THE CASE 

This matter is before me upon an Application for Temporary Reinstatement filed by the 

Secretary of Labor (“the Secretary”) on behalf of Steve Glosson (“the Complainant”) pursuant to 

section 105(c)(2) of the Federal Mine Safety and Health Act of 1977 (“the Mine Act”), 30 U.S.C. 

§ 815(c)(2), and Commission Procedural Rule 45, 29 C.F.R. § 2700.45. 

The application seeks reinstatement of the Complainant to his former position as a loader 

operator at the Dunn Construction limestone quarry (“the mine”) operated by Lopke Quarries, 

Inc. (“the Respondent”) pending final disposition of a discrimination complaint the Complainant 

has filed against the Respondent. Alternatively, the application requests that the Respondent 

provide temporary economic reinstatement to the Complainant. 

The application was filed with the Commission on August 16, 2016. The Respondent has 

not submitted a response or requested a hearing. The Commission’s procedural rules provide that 

if a hearing is not requested within ten calendar days following receipt of a temporary 

reinstatement application, the presiding administrative law judge shall immediately review the 

application and issue a written order of temporary reinstatement if he or she determines that the 

miner’s underlying discrimination complaint “was not frivolously brought.” 29 C.F.R. § 

2700.45(c). Accordingly, I now review the Secretary’s application pursuant to Rule 45(c). 

SECRETARY OF LABOR, U.S. 

DEPARTMENT OF LABOR, on behalf of 

STEVE GLOSSON, 

 Complainant, 

 v. 

LOPKE QUARRIES, INC., 

 Respondents. 

 TEMPORARY REINSTATEMENT 

PROCEEDING 

Docket No. SE 2016-299-DM 

MSHA Case No. SE-MD-16-09 

Mine: Dunn Construction 

Mine ID: 01-03411 

38 FMSHRC Page 2356
 II. FACTUAL BACKGROUND1

 The Complainant began working for the Respondent as a loader operator at the Dunn 

Construction mine on February 15, 2016. He operated a Kawasaki loader and two Dresser 

loaders, which were used to move limestone from a stockpile to a hopper, under the supervision 

of plant supervisor Timmie Decker. During his time at the mine, the Complainant allegedly 

reported a number of safety-related problems with the loaders on pre-operation paperwork and 

lodged multiple safety complaints with Decker. The complaints concerned problems with the 

loaders’ brakes, lights, windows, windshield wipers, and heating and air conditioning systems, as 

well as oil leaks. In addition, after Decker allegedly instructed the Complainant to allow the 

Dresser loaders to coast to a stop at the hopper rather than engaging the brakes, the Complainant 

complained to Decker that this procedure was unsafe. 

 The Respondent terminated the Complainant’s employment on April 1, 2016. On April 

22, 2016, the Complainant filed a discrimination complaint with MSHA under section 105(c) of 

the Mine Act claiming that he was terminated because he had reported safety hazards. MSHA 

investigated the complaint and interviewed Decker, who allegedly admitted telling the 

Complainant to coast to a stop when approaching the hopper and agreed that the Complainant 

had reported problems with the loaders. Decker also told the MSHA special investigator that the 

Complainant took 40 to 45 minutes to perform preshift examinations on the equipment. Based on 

the information gathered during the investigation, the Secretary concluded that the 

Complainant’s discrimination complaint was not frivolously brought and initiated this temporary 

reinstatement proceeding. 

III. LEGAL FRAMEWORK AND ANALYSIS 

Section 105(c) of the Mine Act, 30 U.S.C. § 815(c), prohibits discrimination against 

miners for exercising any right that is protected under the Act. “[I]f the Secretary finds that such 

complaint was not frivolously brought, the Commission, on an expedited basis upon application 

of the Secretary, shall order the immediate reinstatement of the miner pending final order on the 

complaint.” 30 U.S.C. § 815(c)(2). Thus, unlike a trial on the merits of a discrimination 

complaint, where the complainant bears the burden of proof by a preponderance of the evidence, 

the scope of this temporary reinstatement proceeding is limited by statute to the narrow question 

of whether the underlying discrimination complaint was “not frivolously brought.” Id.; see 29 

C.F.R. § 2700.45(d); Sec’y of Labor o/b/o Deck v. FTS Int’l Proppants, LLC, 34 FMSHRC 2388, 

2390 (Sept. 2012); Sec’y of Labor o/b/o Price v. Jim Walter Res., Inc., 9 FMSHRC 1305, 1306 

(Aug. 1987), aff’d sub nom. Jim Walter Res., Inc. v. FMSHRC, 920 F.2d 738 (11th Cir. 1990). 

This standard reflects Congressional intent that “employers should bear a proportionately greater 

burden of the risk of an erroneous decision in a temporary reinstatement proceeding.” Jim Walter 

Res., Inc. v. FMSHRC, 920 F.2d 738, 747-48 (11th Cir. 1990). 

 1

 Because the Respondent has not responded to the application for temporary 

reinstatement, this section is premised entirely on the facts alleged in the Secretary’s application 

as well as in the Complainant’s underlying discrimination complaint and the declaration of 

MSHA special investigator Robert Ashley, both of which are appended to the application. 

38 FMSHRC Page 2357
In accordance with the narrow scope of a temporary reinstatement proceeding, it is not 

the judge’s duty at this stage to make credibility determinations or resolve conflicting evidence. 

Deck, 34 FMSHRC at 2390; Sec’y of Labor o/b/o Williamson v. CAM Mining, LLC, 31 

FMSHRC 1085, 1088 (Oct. 2009); Sec’y of Labor o/b/o Albu v. Chicopee Coal Co., 21 

FMSHRC 717, 719 (July 1999). The judge must decide only whether the complaint “appears to 

have merit.” Deck, 34 FMSHRC at 2390 (citing legislative history of Act). Although the 

complainant is not required to make out a prima facie case of discrimination, it is useful to 

analyze the complaint in terms of the elements of a prima facie case, which include: 1) that the 

miner engaged in protected activity, and 2) that he suffered an adverse employment action that 

was motivated at least in part by the protected activity. Williamson, 31 FMSHRC at 1088. 

Motivation can be established by showing the employer’s knowledge of the protected activity, 

hostility or animus towards the protected activity, and coincidence in time between the protected 

activity and the adverse action. Sec’y of Labor o/b/o Baier v. Durango Gravel, 21 FMSHRC 953, 

957 (Sept. 1999). 

 Without making any credibility determinations, after reviewing the partial written 

statement of the Complainant2

 and the initial report from the MSHA special investigator, I find 

that the complaint appears to have merit. The Complainant alleges that he made multiple safety 

complaints to the operator between February 15 and April 1, 2016. This constitutes protected 

activity under section 105(c)(1) of the Act, 30 U.S.C. § 815(c)(1). The Complainant suffered an 

adverse action when his employment was terminated on April 1. His supervisor allegedly 

admitted knowledge of the protected activity to the MSHA special investigator and further stated 

that the Complainant took 40 to 45 minutes to perform preshift examinations. This statement 

could be construed to show hostility toward the protected activity of checking equipment for 

safety defects. The coincidence in time between the adverse action and the alleged protected 

activities, which occurred over the six-week period immediately preceding the Complainant’s 

termination, could support a finding that the termination was motivated at least in part by intent 

to discriminate against the Complainant because of his protected activities. Accordingly, I find 

that his complaint was not frivolously brought and that he is entitled to temporary reinstatement. 

 

 2

 At least one page is missing from the complaint he filed with MSHA. 

38 FMSHRC Page 2358
ORDER 

 The Application for Temporary Reinstatement is hereby GRANTED. The Respondent is 

ORDERED to immediately begin providing the Complainant with economic reinstatement at his 

usual rate of pay and overtime3 plus any benefits to which the Complainant would be entitled if 

he retained his former position as a loader operator. 

/s/ Priscilla M. Rae 

 Priscilla M. Rae 

 Administrative Law Judge 

Distribution: 

Melanie A. Stratton, Esq., Office of the Solicitor, U.S. Department of Labor, 61 Forsyth Street 

SW, Room 7T10, Atlanta, GA 30303 

Steve Glosson, 226 Creel Loop, Brierfield, AL 35035 

Mike Lindhorst, General Superintendent, 3430 State Route 434, Apalachin, NY 13732 

 3

 The complaint indicates that he worked 40 hours per week at the mine at a rate of 

$17.50 per hour plus 20 to 30 hours of overtime each week at a rate of $26.25 per hour. 

38 FMSHRC Page 2359
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVENUE NW, SUITE 520N 

WASHINGTON, D.C. 20004

August 30, 2016 

ORDER CORRECTING TYPOGRAPHICAL ERROR

Before: Judge Feldman 

 This Order corrects typographical errors in the Decision on Remand issued on this date, 

reflecting that the citation on Page 3 for the Decision on Relief in this matter should read “38 

FMSHRC 255, 268 (Feb. 2016)(ALJ)” and the citation on Page 7, Footnote 9, for the Decision 

on Relief should read “38 FMSHRC at 258”. 

/s/ Jerold Feldman 

 Jerold Feldman 

 Administrative Law Judge 

Distribution: 

Evan B. Smith, Esq., Wes Addington, Esq., Appalachian Citizens Law Center, Inc., 317 Main 

Street, Whiteburg, KY 41858 

Tony Oppegard, Esq., P.O. Box 22446, Lexington, KY 40522 

David Hardy, Esq., Scott Wickline, Esq., Hardy Pence PLLC, 500 Lee Street East, Suite 701, 

P.O. Box 2548, Charleston, WV 25329 

/acp 

SCOTT D. MCGLOTHLIN, 

 Complainant, 

 v. 

DOMINION COAL CORPORATION, 

 Respondent. 

 DISCRIMINATION PROCEEDING 

Docket No. VA 2014-233-D 

NORT-CD-2013-04 

Mine: Dominion No. 7 

Mine ID: 44-06499 

38 FMSHRC Page 2360