i

May 2014

TABLE OF CONTENTS

COMMISSION DECISIONS

05-13-2014 SEC. OF LABOR O/B/O REUBEN

SHEMWELL v. ARMSTRONG COAL

COMPANY, INC. and ARMSTRONG

FABRICATORS, INC.

KENT 2013-362-D Page 1097

05-23-2014 BIG RIDGE, INC. LAKE 2009-490 Page 1115

05-23-2014 BLACK BEAUTY COAL COMPANY LAKE 2009-565 Page 1121

05-28-2014 KNOX CREEK COAL CORPORATION VA 2010-81-R Page 1128

COMMISSION ORDERS

05-02-2014 LUMINANT MINING COMPANY, LLC CENT 2013-409 Page 1149

05-02-2014 HR WAGSTAFF COMPANY, INC. WEST 2013-619-M Page 1154

05-02-2014 NEVADA READY MIX CORP. WEST 2013-946-M Page 1157

05-05-2014 FARNHAM & PFILE CONSTRUCTION,

INC.

PENN 2013-298 Page 1160

05-16-2014 L & W QUARRIES, INC. CENT 2013-389-M Page 1163

05-16-2014 CRATER SAND & GRAVEL, INC. WEST 2013-882-M Page 1167

ADMINISTRATIVE LAW JUDGE DECISIONS

05-01-2014 SEC. OF LABOR O/B/O JOSHUA D.

BURKHART v. PEABODY MIDWEST

MINING, LLC

LAKE 2014-342-D Page 1171

05-06-2014 SEC. OF LABOR O/B/O FRED

MCKINSEY v. PRETTY GOOD SAND

COMPANY, INC.

SE 2014-223-DM Page 1177

05-11-2014 BLEDSOE COAL CORP. 2011-972-R Page 1190

05-13-2014 NORTH COUNTY SAND & GRAVEL, 

INC.

EAJ 2014-1-J Page 1214
ii

05-13-2014 SEQUOIA ENERGY, LLC KENT 2008-1059 Page 1225

05-13-2014 SEC. OF LABOR O/B/O LUCERO

ZAMBONINO v. COLONIAL MINING

MATERIALS, LLC, and INFINITY

MINING MATERIALS, LLC

SE 2014-196 DM Page 1239

05-14-2014 CONMAT, INC. LAKE 2014-9-M Page 1271

05-14-2014 ROCK N ROAD QUARRY WEST-2011-749-M X Page 1278

05-15-2014 CLINTWOOD ELKHORN MINING

COMPANY, INC. 

KENT 2011-1354 Page 1282

05-15-2014 ELK RUN COAL COMPANY, INC. WEVA 2014-485 Page 1308

05-19-2014 THE AMERICAN COAL COMPANY LAKE 2008-666 Page 1311

05-20-2014 POCAHONTAS COAL COMPANY, LLC WEVA 2014-202-R Page 1371

05-22-2014 OAK GROVE RESOURCES, LLC SE 2011-881 Page 1376

05-23-2014 CEMEX DE PUERTO RICO SE 2011-502-M Page 1386

05-23-2014 WINN MATERIALS LLC SE 2013-50-M Page 1430

05-28-2014 KIP ALLEN KEIM v. CORDERO

MINING LLC

WEST 2013-442-D Page 1458

05-29-2014 JAMES RIVER COAL SURFACE

COMPANY

KENT 2010-1284 Page 1475

ADMINISTRATIVE LAW JUDGE ORDERS

05-04-2014 FRED ESTRADA v. RUNYAN

CONSTRUCTION

CENT 2013-311-DM Page 1479

05-07-2014 CHRISTOPHER PULLIAM KENT 2013-1045 Page 1483

05-13-2014 ALDEN RESOURCES, LLC KENT 2013-959 Page 1486

05-13-2014 THE AMERICAN COAL COMPANY LAKE 2011-13 Page 1489
iii

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

Secretary of Labor, MSHA v. Big Ridge, Inc., Docket Nos. LAKE 2013-66, LAKE 2012-506, et al. 

(Judge Simonton, April 14, 2014)

No petition was filed in which review was denied during the month of May 2014.


COMMISSION DECISIONS

1

 30 U.S.C. § 815(c)(2) provides in pertinent part:

Any miner . . . who believes that he has been discharged, interfered with,

or otherwise discriminated against by any person in violation of this subsection

may, within 60 days after such violation occurs, file a complaint with the

Secretary alleging such discrimination. Upon receipt of such complaint, the

Secretary shall forward a copy of the complaint to the respondent and shall cause

such investigation to be made as he deems appropriate. Such investigation shall

commence within 15 days of the Secretary’s receipt of the complaint, and if 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.

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

May 13, 2014

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA) :

 on behalf of REUBEN SHEMWELL :

 :

v. : Docket No. KENT 2013-362-D

 :

ARMSTRONG COAL COMPANY, INC. :

 and ARMSTRONG FABRICATORS, INC. :

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

DECISION

BY: Jordan, Chairman; Nakamura and Althen, Commissioners

This discrimination proceeding, arising under section 105(c)(2) of the Federal Mine

Safety and Health Act of 1977, 30 U.S.C. § 815(c)(2) (2012),1 involves a Commission

Administrative Law Judge’s denial of a motion to approve settlement filed by Armstrong Coal

Company, Inc. and Armstrong Fabricators, Inc. (collectively referred to as “Armstrong”), the

Secretary of Labor, and Reuben Shemwell. For the reasons that follow, we vacate the Judge’s

decision and approve the parties’ proposed settlement.

36 FMSHRC Page 1097
2

 30 U.S.C. § 815(c)(3) provides in part:

Within 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. If

the Secretary, upon investigation, determines that the provisions of

this subsection have not been violated, the complainant shall have

the right, within 30 days notice of the Secretary’s determination, to

file an action in his own behalf before the Commission, charging

discrimination. . . . 

I.

Factual and Procedural Background

Reuben Shemwell’s employment as a welder with Armstrong was terminated on

September 14, 2011. 35 FMSHRC 1865, 1865 (June 2013) (ALJ). On January 23, 2012, Mr.

Shemwell filed a discrimination complaint with the Department of Labor’s Mine Safety and

Health Administration (“MSHA”). Id. Shemwell subsequently was temporarily reinstated based

upon the Commission’s determination that a non-frivolous issue existed as to whether Shemwell

had been terminated for engaging in protected activity. 34 FMSHRC 1580, 1582-83 (July 2012). 

After MSHA’s investigation into the matter, the Secretary declined to pursue a discrimination

proceeding on Shemwell’s behalf. Shemwell subsequently filed a section 105(c)(3)2 proceeding

in Docket No. KENT 2012-1497-D against Armstrong on his own behalf. On September 4,

2013, the Judge issued a decision approving settlement in KENT 2012-1497-D. 

In August 2012, following the Secretary’s decision not to pursue Shemwell’s

discrimination complaint, Armstrong filed a civil suit in a Kentucky state court alleging that

Shemwell’s discrimination complaint constituted a wrongful use of proceedings (referred to as

the “Muhlenberg suit”).

The Secretary subsequently filed a discrimination complaint in this proceeding pursuant

to section 105(c)(2) of the Mine Act, alleging that the Muhlenberg suit interfered with

Shemwell’s right to file a discrimination complaint in violation of section 105(c)(1) of the Act. 

The Secretary proposed a civil penalty of $70,000 against Armstrong.

On June 19, 2013, the Judge issued in this proceeding a Decision on Liability and Cease

and Desist Order. In the decision, the Judge concluded that the Muhlenberg suit violated section

105(c)(1) because it interfered with Shemwell’s right to file a discrimination complaint. The

Judge ordered Armstrong to cease and desist prosecution of the Muhlenberg suit “by filing an

36 FMSHRC Page 1098
3

 Shemwell was represented by private counsel. Jt. Mot. at 4.

appropriate motion to dismiss” within 40 days of the decision (by July 29, 2013). 35 FMSHRC

at 1886. The Judge noted that “withdrawal of Armstrong’s suit can be without prejudice,

permitting Armstrong to once again bring its civil proceeding in the unlikely event Armstrong is

ultimately successful on appeal.” Id.

On July 29, 2013, Armstrong took three actions. First, it filed with the Commission a

petition for interlocutory review. In the petition, Armstrong stated that on July 25, 2013, the

parties verbally agreed to the terms of a settlement agreement that will resolve the case,

including a term requiring Armstrong to dismiss the Muhlenberg suit. Second, Armstrong filed

with the Commission an application for a temporary stay pending the Commission’s review of

the petition. Third, Armstrong dismissed, with prejudice, the Muhlenberg suit.

On that same day, the Commission issued an order granting a temporary stay.

On August 8, 2013, the Secretary, Shemwell, and Armstrong filed a joint motion to

approve settlement with the Judge.3

 Under the terms of the proposed settlement, Armstrong

would: (1) pay MSHA a civil penalty of $35,000; (2) provide a copy of the MSHA publication

entitled “A Guide to Miners’ Rights and Responsibilities” to all employees; (3) post a copy of

the Joint Motion to Approve Settlement at each mine that is operated by Armstrong for 60 days;

(4) provide two hours of training on miners’ rights at each mine operated by Armstrong and,

following the training, employees would watch the MSHA video entitled “A Voice in the

Workplace: Miners’ Rights and Responsibilities;” and (5) post a miners’ rights poster about

section 105(c) at each mine that is operated by Armstrong for a period of two years. 

The motion further stated that Armstrong had dismissed with prejudice the Muhlenberg

suit. In addition, the motion included the following exculpatory language:

Respondents assert that except for proceedings under the Act,

nothing contained herein shall be deemed to constitute an

admission of a violation of the Act or its regulations. Further,

Respondents assert that except for proceedings under the Act,

nothing contained herein is intended to constitute an admission of

civil liability under any local, state or federal statute or any

principle of common law.

Jt. Mot. at 3.

On August 19, 2013, the Judge issued an Order Denying Joint Motion to Approve

Settlement Decision on Civil Penalty and Supplemental Decision on Relief. 35 FMSHRC 2680

(Aug. 2013) (ALJ). The Judge concluded that he lacked jurisdiction to consider the settlement

motion after he had issued his decision on liability. Id. at 2682-83. He reasoned that his

36 FMSHRC Page 1099
4

 Commission Procedural Rule 69(b) provides, “Except to the extend otherwise provided

herein, the jurisdiction of the Judge terminates when his decision has been issued.” 29 C.F.R. 

§ 2700.69(b).

decision on liability was a final decision on the merits as contemplated by Commission

Procedural Rule 69, 29 C.F.R § 2700.69. Id. at 2682. The Judge determined, as such, that his

decision on liability was the binding law of the case and is not subject to modification through a

settlement agreement of the parties. Id.

The Judge further concluded that even if the proposed settlement agreement were not

procedurally defective, he would dismiss it on a substantive basis as contrary to the public

interest. Id. at 2683. He stated that the exculpatory language would not dissuade Armstrong or

other operators from filing similar civil actions in violation of section 105(c)(1). Id. at 2686. 

The Judge also determined that there were no mitigating circumstances to justify the reduction in

penalty. Id. He noted that Armstrong was required to dismiss the action under the terms of his

prior decision and that the other settlement remedies, such as postings and training, are “routine”

actions required of operators as a consequence of discriminatory conduct. Id. The Judge noted

that the legality of civil suits such as the Muhlenberg suit, which are capable of repetition, must

not evade review. Id. at 2687-88.

Finally, in determining appropriate remedial measures, the Judge required Armstrong to

take the remedial actions specified in the settlement motion. Id. at 2689. The Judge further

assessed a civil penalty of $70,000 against Armstrong, taking into account the “deterrent role

civil penalties play in discouraging mine operators from engaging in future similar violative

conduct.” Id. at 2690-92.

The Secretary and Armstrong each filed petitions for discretionary review challenging

the Judge’s denial of the motion to approve settlement. The parties request that the Commission

vacate the Judge’s decision and approve the proposed settlement agreement. The Commission

granted both petitions.

II.

Disposition

A. The Judge’s Procedural Dismissal

We conclude that the Judge erred in holding that his June 19 decision on liability was a

final decision on the merits as contemplated by Commission Procedural Rule 694 and that he

lacked jurisdiction to consider the settlement motion. In an order dated July 26, 2013, we held

that the Judge’s June 19 decision on liability was “not a final decision ending the judge’s

36 FMSHRC Page 1100
jurisdiction over this matter.” 35 FMSHRC 2056, 2057 (July 2013). We explained that “a

Judge’s decision finding a violation under the Mine Act is not final until the judge issues a

penalty against the operator.” Id. Thus, the Judge clearly had jurisdiction to consider the

parties’ settlement motion, which was submitted after the June 19 decision on liability but before

the Judge’s August 19 decision assessing a penalty. 

B. The Judge’s Substantive Denial of the Proposed Settlement

Section 110(k) of the Mine Act, 30 U.S.C. § 820(k), “directs the Commission and its

judges to protect the public interest by ensuring that all settlements of contested penalties are

consistent with the Mine Act’s objectives.” Knox County Stone Co., 3 FMSHRC 2478, 2479

(Nov. 1981). As the Commission has previously observed, “‘[t]he judges’ front line oversight

of the settlement process is an adjudicative function that necessarily involves wide discretion.’” 

Black Beauty Coal Co., 34 FMSHRC 1856, 1864 (Aug. 2012) (quoting Knox, 3 FMSHRC at

2479). 

A Judge’s approval or rejection of a proposed settlement must be based on principled

reasons. Black Beauty, 34 FMSHRC at 1864. If a “Judge’s approval or rejection of a settlement

is ‘fully supported’ by the record, consistent with the statutory penalty criteria, and not otherwise

improper, it will not be disturbed, but . . . abuses of discretion or plain errors are subject to

reversal.” Id. (quoting Knox, 3 FMSHRC at 2480). An 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.” Akzo Nobel Salt, Inc., 19 FMSHRC 1254, 1258 n.3 (July 1997).

As explained below, we conclude in this case that the key legal rulings of the Judge were

erroneous and that certain assertions he made were not supported in the record. Accordingly, his

denial of the proposed settlement under such circumstances constituted an abuse of discretion.

1. The exculpatory language

The Judge in part rejected the settlement because he believed that the exculpatory

language would not dissuade Armstrong or other operators from filing similar civil actions in

violation of section 105(c)(1). We conclude that the Judge’s rejection of the exculpatory

language set forth in the proposed settlement agreement was “based on an improper

understanding of the law.” Id.

The Commission has recognized that the Mine Act requires the Commission “to oversee

penalty settlements as a means of encouraging compliance.” Sewell Coal Co., 5 FMSHRC 2026,

2030 (Dec. 1983). Recognizing that “[i]nherent in the concept of settlement is that parties find

and agree upon a mutually acceptable position that resolves the dispute and that obviates the

need for further proceedings,” the Commission has held that parties are free to admit or deny the

fact of violation in settlement agreements. Amax Lead Co., 4 FMSHRC 975, 977-78 (June

1982). The Commission has explained, however, that the goal of encouraging compliance is not

met when a settlement agreement requires the payment of a penalty although the parties have

36 FMSHRC Page 1101
stipulated facts that do not show a violation. Sewell, 5 FMSHRC at 2030 (citing Co-op Mining

Co., 2 FMSHRC 3475, 3475-76 (Dec.1980) (other citations omitted)). 

Commission case law establishes that the type of exculpatory language contained in the

proposed settlement here – language which would not apply to Mine Act proceedings – is

acceptable in settlement agreements. The Commission has rejected a settlement agreement

where it contained extremely broad exculpatory language that factual admissions by the operator

would not be deemed an admission for any subsequent proceeding brought in any judicial or

administrative forum by any party. Amax, 4 FMSHRC at 975. The Commission explained that,

because the operator could attempt to use that language to shield future key enforcement

provisions of the Mine Act, such language was inconsistent with the enforcement scheme of the

Mine Act. Id. at 978. The Commission noted, however, that it had “no difficulty with the

exculpatory language as it relates to proceedings arising outside the scope of the Mine Act’s

coverage,” and that the “effect of such exculpatory language is properly left to the appropriate

forum.” Id. at n.4. The Commission found acceptable amended exculpatory language offered by

the operator that the citations would not be used against the operator in forums other than in

actions under the Mine Act. Id. at 978-79. The Commission reasoned that for purposes of any

proceedings under the Mine Act, the violations were to be treated as if established. Id.

The exculpatory language at issue concedes Armstrong’s violation of the Act for

purposes of Mine Act proceedings. See S. PDR at 10 n.2; A. Br. at 21; Jt. Mot. at 3. The

exculpatory language denies civil liability under “any local, state or federal statute or any

principle of common law” other than Mine Act proceedings. Jt. Mot. at 3. Thus, the subject

exculpatory language falls within the type of exculpatory language that the Commission has

found to be within the public interest. See Amax, 4 FMSHRC at 977-78 & n.4. Moreover, we

find no record support for the Judge’s conclusion that the exculpatory language will not dissuade

other operators from filing actions similar to the Muhlenberg suit. 

2. Consideration of the non-monetary portions of the proposed settlement

The Judge’s conclusion that “there are no mitigating circumstances” to justify the penalty

reduction from $70,000 to $35,000 is not “fully supported by the record.” See Black Beauty, 34

FMSHRC at 1864. Contrary to the Judge’s finding that Armstrong was required to dismiss the

Muhlenberg suit under the terms of the Judge’s June 19 decision, Armstrong dismissed the

Muhlenberg suit with prejudice, rather than without prejudice as permitted by the Judge. In

addition, there is no support in the record for the Judge’s statement that “[t]he other settlement

remedies [besides payment], such as relevant postings and training, are routine actions required

of mine operators as a consequence of discriminatory conduct.” 35 FMSHRC at 2686. Indeed,

the Secretary represents that such actions are not routine. S. PDR at 11. 

36 FMSHRC Page 1102
5

 We note that Shemwell was reinstated and Armstrong paid monetary remedial relief in

settlement of Docket No. KENT 2012-1497-D. See slip op. at 2, supra; Unpublished Order at 2

(Sept. 4, 2013).

3. The question of mootness

The Judge also erred in his application of mootness principles. The Commission has

recognized that a case is moot when the issues presented no longer exist or the parties no longer

have a legally cognizable interest in the outcome. North American Drillers, LLC, 34 FMSHRC

352, 358 (Feb. 2012) (citations omitted). 

The Judge stated that “[b]y submitting their settlement agreement for approval, the

parties, in essence, rely on the dismissal of the [Muhlenberg suit] to support the proposition that

all matters in issue have been resolved, and that further proceedings have essentially been

rendered moot.” 35 FMSHRC at 2687. We see no contention by the parties that further

proceedings have essentially been rendered moot, or any other basis for applying mootness

principles in reviewing the parties’ proposed settlement agreement.

4. Consideration of the proposed settlement as a whole

Finally, we conclude that the Judge erred by considering the proposed settlement in a

piecemeal fashion, focusing on the monetary aspects of the settlement. “The ‘affirmative duty’

that section 110(k) places on the Commission and its judges to ‘oversee settlements,’ . . . 

necessarily requires the judge to accord due consideration to the entirety of the proposed

settlement package, including both its monetary and non-monetary aspects.” Madison Branch

Mgmt, 17 FMSHRC 859, 867-68 (June 1995) (Chairman Jordan and Comm’r Marks) (citations

omitted); see also Aracoma Coal Co., 32 FMSHRC 1639, 1644 (Dec. 2010) (separate opinion of

Chairman Jordan). The Judge was required to consider the settlement agreement as a whole,

giving due consideration to the non-monetary aspects of the decision as well as to the monetary

aspects. The payment of a reduced penalty was balanced by other non-monetary aspects of the

settlement, such as the dismissal of the Muhlenberg suit with prejudice, and the posting and

training requirements. We observe that the Secretary’s action in filing the instant section

105(c)(2) proceeding can be expected to have a deterrent effect against the filing of Muhlenbergtype suits.5

Although it is possible, as the Judge stated, that payment of a higher penalty could

achieve greater deterrence, our role in reviewing a settlement agreement is to ensure that the

public interest is adequately protected before a penalty is reduced. In considering the public

interest standard applied by the Antitrust Procedures and Penalties Act, courts have stated:

The court should . . . bear in mind the flexibility of the public

interest inquiry: the court’s function is not to determine whether

the resulting array of rights and liabilities “is the one that will best

36 FMSHRC Page 1103
serve society,” but only to confirm that the resulting “settlement is

‘within the reaches of public interest.’” 

United States v. Western Elec. Co., 900 F.2d 283, 309 (D.C. Cir. 1990) (citations omitted)

(emphasis in the original). 

Here the Judge did not consider the different elements of the proposed settlement as a

whole in determining whether the proposed settlement fell “within the reaches of public

interest.” Indeed, because of his erroneous rulings with regard to the non-monetary elements of

the proposed settlement, an appropriate analysis of the proposed settlement as a whole was not

possible.

We conclude that the settlement agreement proposed by the Secretary, Shemwell, and

Armstrong contains sufficient consideration and deterrent effect to protect the public interest. 

Accordingly, we vacate the Judge’s denial of the motion to approve settlement and approve the

settlement agreement.

III.

Conclusion

For the reasons discussed above, we vacate the Judge’s decision denying the Joint

Motion to Approve Settlement submitted by the Secretary, Shemwell, and Armstrong, and we

approve the settlement. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner

/s/ William I. Althen 

William I. Althen, Commissioner

36 FMSHRC Page 1104
Commissioners Young and Cohen, dissenting:

We dissent from the majority and conclude that the Judge did not abuse his discretion

when he denied the parties’ motion to approve settlement. On the contrary, substantial evidence

supports the Judge’s determination that the proposed settlement terms are inadequate to address

the nature of the violation at issue: the filing of a baseless civil action with the intent to retaliate

against Shemwell’s exercise of his rights under the Mine Act and to chill other miners’ exercise

of those rights at Armstrong’s mines. 

Rueben Shemwell filed a complaint with MSHA alleging that he was unlawfully

discharged from his position as a welder with Armstrong Coal. Thereafter, the Secretary of

Labor filed an application for temporary reinstatement on his behalf. After a temporary

reinstatement hearing, a Commission Judge concluded that Shemwell’s complaint was not

frivolously brought. 34 FMSHRC 1464, 1475 (June 2012) (ALJ), aff’d, 34 FMSHRC 1580,

1582-83 (July 2012). Thus, the Judge ordered Armstrong to temporarily reinstate Shemwell. Id.

at 75-76. Before a hearing on the merits of the unlawful discharge complaint occurred, the

Secretary dropped his representation of Shemwell. Shemwell then filed a complaint with the

Commission on his own behalf pursuant to section 105(c)(3) of the Mine Act.

 

After the Secretary discontinued his representation of Shemwell, Armstrong filed a civil

action in Kentucky’s Muhlenberg Circuit Court, alleging that Shemwell’s original filing of a

discrimination complaint with MSHA amounted to “Wrongful Use of Civil Proceedings.” 

Circuit Court Complaint at 7-8, No. 12-CI-00897 (hereinafter “Muhlenberg suit”). Armstrong

sought an award of punitive damages as well as alleged compensatory damages from Shemwell. 

Id. at 9. 

The matter currently before us concerns a second complaint of discrimination that was

filed with the Commission by the Secretary on behalf of Shemwell under section 105(c)(2) of the

Mine Act. In bringing this complaint, the Secretary alleged that Armstrong filed the Muhlenberg

suit as retaliation for Shemwell’s previous exercise of his statutory right to file a discrimination

complaint. Complaint of Discrimination at 5 (Jan. 8, 2013). The Secretary further alleged that

the lawsuit was an attempt by Armstrong to intimidate its workforce and discourage participation

by other miners in enforcement proceedings under the Mine Act. Id. 

Remarkably, at the time the Secretary filed the second complaint on behalf of Shemwell,

there were discrimination cases pending before an Administrative Law Judge that involved ten

other miners who were discharged by Armstrong in February 2012. Mot to Exp. at 2 (Jan. 8,

2013); Sec’y, et al. v. Armstrong Coal Co., Docket Nos. Kent 2012-1370/1371/1372/1373-D. 

Three of the miners had been temporarily reinstated to their former positions with Armstrong. 

34 FMSHRC 1658, 1667 (July 2012) (ALJ). These miners were laid off following MSHA’s

attempted inspection of Armstrong’s fabrication shop (which Armstrong resisted), and the filing 

36 FMSHRC Page 1105
1

 Special MSHA Investigator Kirby Smith testified in the temporary reinstatement

proceeding that MSHA’s attempt to inspect the facility was prompted by Shemwell’s health and

safety complaint. Id. at 1664. Armstrong’s reaction to the attempted inspection was to shut off

the power and send the employees home for the day. Id. 

2

 Indeed, in the Decision and Order of Temporary Reinstatement, the Judge observed, “I

can think of nothing more chilling on an employee’s inclination to report possible health and

safety issues than the threat imposed by [Armstrong’s vice president of operations] Allen at that

meeting . . . .” 34 FMSHRC at 1664.

3

 We agree with the Judge. It is well established that objectively baseless retaliatory

lawsuits fall outside of the protection of the First Amendment. See BE & K Const. Co. v. NLRB,

536 U.S. 516, 530-31 (2002).

of an anonymous complaint to MSHA about a safety issue.1 Id. at 1660-62, 1664, 1667. In fact,

Armstrong closed its shop and laid off a total of eleven miners following the anonymous safety

complaint. Id. at 1664-67. Armstrong, as shown by these actions, obviously has a problem with

the requirements of the Mine Act and specifically the requirements of section 105(c).2

On June 19, 2013, the Judge issued a decision on the Secretary’s second complaint on

behalf of Shemwell, ruling consistent with the Secretary’s allegations, that by filing the

Muhlenberg suit Armstrong violated section 105(c)(1) of the Act “with impunity” and

intentionally interfered with Shemwell’s statutory rights. 35 FMSHRC 1865, 1883 (June 2013)

(ALJ). The Judge concluded that the First Amendment did not protect Armstrong’s filing of the

retaliatory civil action, as the operator contended.3

 Id. He ordered Armstrong to dismiss the

civil action and further ordered the parties to attempt to reach an agreement on the specific relief

to be awarded. Id. at 1886-87.

Shortly thereafter, the parties filed a joint motion for approval of settlement with the

Judge. 35 FMSHRC 2680, 2682 (Aug. 2013) (ALJ). The Judge rejected the motion. In a

decision issued on August 19, 2013, he concluded that he lacked jurisdiction at this stage in the

proceedings. Id. at 2682-83. He also stated that regardless of the jurisdiction issue, he would

deny the motion because the terms of the settlement were contrary to the public interest and

inconsistent with the enforcement scheme of the Mine Act. Id. at 2683-88. The Judge was

concerned that the parties’ agreement contained exculpatory language that limited the finding of

a violation exclusively to proceedings under the Mine Act. Id. at 2685. Specifically, the Judge

stated that he was “unconvinced that [the] broad exculpatory language that seeks to shield

Armstrong from responsibility for discriminatory conduct in virtually any statutory or common

law matter that may arise outside of a Mine Act proceeding, can reasonably be construed as a

means of dissuading Armstrong . . . from filing similar civil actions.” Id. at 2686. Furthermore,

he concluded that the joint motion failed to articulate mitigating circumstances that justified

reducing the proposed penalty from $70,000 to $35,000. Id. The Judge stated that neither the

cited posting and training requirements, nor Armstrong’s filing of a motion to dismiss the

36 FMSHRC Page 1106
4

 The Secretary’s contention that its settlement agreements are essentially unreviewable

by the Commission is contradicted by the plain language of the Mine Act. See S. PDR at 11. 

The Mine Act states that “[n]o proposed penalty which has been contested before the

Commission shall be compromised, mitigated, or settled except with the approval of the

Commission.” 30 U.S.C. § 820(k).

5

 We agree with the majority that the Judge erred regarding his lack of jurisdiction to

consider the motion, as well as in his application of mootness principles. However, since these

matters are not essential to the Judge’s decision, they are a distraction from the pertinent

question before the Commission: Did the Judge abuse his discretion when he denied the motion

to approve settlement? 

Muhlenberg suit subsequent to the July 19, 2013 decision, represented mitigating circumstances

to justify the proposed reduction in penalty. Id.

Analysis

A. The Judge did not abuse his discretion when he denied the joint motion to

approve settlement.

The Mine Act and its Procedural Rules require an Administrative Law Judge to approve

the settlement of a contested civil penalty.4

 30 U.S.C. § 820(k); 29 C.F.R. § 2700.31. A Judge is 

afforded discretion when considering whether to approve a settlement agreement. See Black

Beauty, 34 FMSHRC 1856, 1864-69 (Aug. 2012) (holding that the Mine Act and its procedural

rules provide Judges the discretion to consider whether a proposed settlement of a civil penalty

constitutes a sufficient deterrent); see also Knox County Stone Co., 3 FMSHRC 2478, 2479

(Nov. 1981) (stating that “[t]he Judges’ front line oversight of the settlement process is an

adjudicative function that necessarily involves wide discretion.”). 

For the reasons that follow, we dissent from our colleagues and conclude that the Judge

did not abuse his discretion when he denied the parties’ motion to approve settlement.5

1. The Muhlenberg suit is a SLAPP.

The safety of miners is directly dependent on their ability to voice relevant concerns to

management as well as to the representatives of MSHA. We agree with the Judge that the filing

of the Muhlenberg suit was an assault on the fundamental operation of the Mine Act. Any action

that serves to intimidate miners with potential legal or financial consequences because of their

exercise of statutory rights is anathema to the cooperative culture of safety and the Mine Act.

See 30 U.S.C. § 801(e) (declaring that “the operators of [] mines with the assistance of the

miners have the primary responsibility to prevent the existence of [unsafe and unhealthful]

conditions and practices”) (emphasis added).

36 FMSHRC Page 1107
6

 The elements of this cause of action are: (1) the institution or continuation of original 

. . . administrative . . . proceedings, (2) by, or at the instance, of the plaintiff, (3) the termination

of such proceedings in defendant’s favor, (4) malice in the institution of such proceeding, (5)

want or lack of probable cause for the proceeding, and (6) the suffering of damage as a result of

the proceeding. D’Angelo v. Mussler, 290 S.W.3d 75, 79 (KY App. 2009).

When enacting the Mine Act, the Senate recognized that if miners are to be encouraged

to take an active role in voicing safety concerns, they must be assured that they will be protected

from any form of discrimination that they may face as a consequence for their protected

activities. See S. Rep. No. 95-181, at 35-36, reprinted in Senate Subcomm. on Labor, Comm. on

Human Res., Legislative History of the Federal Mine Safety and Health Act of 1977, at 623-624

(1978). “[M]ining often takes place in remote sections of the country, and in places where work

in the mines offers the only real employment opportunity” and as a result the loss of employment

is a particularly devastating repercussion for a miner. See id. at 623.

The Muhlenberg suit objectively lacked a legal basis. The basic elements of a cause of

action for “Wrongful Use of Civil Proceedings”6

 were plainly missing because there had yet to

be a final decision issued on the merits of Shemwell’s complaint. See 35 FMSHRC at 1868; See

n.6, supra. Armstrong filed the suit regardless. 

Armstrong, by virtue of its resources and access to representation, attempted to use state

law as a weapon to discourage miners from exercising statutory rights. Similar abuses of the

legal process are commonly referred to as SLAPPs (“Strategic Lawsuit Against Public

Participation”). SLAPPs like the Muhlenberg suit function by

. . . forcing the target into the judicial arena where the SLAPP filer

foists upon the target the expenses of a defense. The longer the

litigation can be stretched out, the more litigation that can be

churned, the greater the expense that is inflicted and the closer the

SLAPP filer moves to success. The purpose of such gamesmanship

ranges from simple retribution for past activism to discouraging

future activism. Needless to say, an ultimate disposition in favor of

the target often amounts merely to a pyrrhic victory. Those who

lack the financial resources and emotional stamina to play out the

“game” face the difficult choice of defaulting despite meritorious

defenses or being brought to their knees to settle. The ripple effect

of such suits in our society is enormous. Persons who have been

outspoken on issues of public importance targeted in such suits or

who have witnessed such suits will often choose in the future to

stay silent.

Gordon v. Marone, 590 N.Y.S.2d 649, 656 (N.Y. 1992). 

36 FMSHRC Page 1108
7

 The Commonwealth of Kentucky does not have a similar precedent or procedure and,

accordingly, Shemwell was left without recourse under state law. 

It is thus not surprising that 28 states as well as the District of Columbia and Guam have

responded to the SLAPP threat with either legislative or judicial proscription. Bruce E. H.

Johnson, Sarah K. Duran, A View from the First Amendment Trenches: Washington State’s New

Protections for Public Discourse and Democracy, 87 Wash. L. Rev. 495 (2012); see, e.g.,

Cal CCP Code § 425.16(b)(1) (providing for a special motion to strike a complaint that involves

a cause of action against a person that arises from any act of that person in furtherance of the

person’s right to petition the government). 

The West Virginia Supreme Court recognized the need for a judicial proscription in the

absence of relevant legislation. In Webb v. Fury, 167 W.Va 434, 460 (W.Va. 1981), the court

granted a petitioner’s request for a writ of prohibition to prevent a coal company from

proceeding with a defamation action filed in a Circuit Court. The defamation suit was filed in

response to a series of communications made by Webb and his non-profit corporation to the

Environmental Protection Agency and the Office of Surface Mining regarding the effects of coal

mining on water quality. Id. at 437. The court stated that communications regarding matters of

public concern are protected by the First Amendment to the U.S. Constitution and Article III, §

16 of the West Virginia Constitution. In so ruling, the court stated that “[o]ur democratic system

is designed to do the will of the people, and when the people cannot express their will, the

system fails.”7

 Id. at 460.

2. The exculpatory language is not consistent with the Mine Act.

Our colleagues contend that the exculpatory language included in the motion is consistent

with the Mine Act, slip op. at 5-6 (citing Amax Lead Co., 4 FMSHRC 975, 977-78 (June 1982)),

and that the Judge erred when he rejected the inclusion of the language. Id. at 6.

We believe that the majority’s reliance on Amax Lead is misplaced. Amax Lead did not

involve a violation of section 105(c)(1). The Commission concluded that in settling an alleged

violation of a mandatory safety standard an operator may limit its admission of liability to

proceedings under the Mine Act. Amax Lead, 4 FMSHRC at 978-79. The Commission stated

that limiting liability is consistent with the Act’s enforcement scheme when it does not affect the

implementation of some of the strongest compliance incentives, namely the sanction of an

“unwarrantable failure” or a “pattern of violations.” Id. 

Unlike the situation with mandatory safety standards, the Mine Act does not contemplate

progressive enforcement mechanisms for violations of the anti-discrimination provisions. 

Accordingly, we don’t consider the reasoning or rationale used in Amax Lead to be applicable to

the facts and circumstances before us.

36 FMSHRC Page 1109
8

 Under the terms of the Act, the Secretary should have fixed a reasonable time for

abatement and required the suit to be dismissed within that time frame. 

9

 Armstrong’s ultimate dismissal of the Muhlenberg suit with prejudice as opposed to the

Judge’s minimum requirement of dismissal without prejudice lacks any real significance. The

Judge explained that in his Decision on Liability and Cease and Desist Order, he permitted the

dismissal of the Muhlenberg suit to be without prejudice so as to “permit[] Armstrong to once

again bring its civil proceeding in the unlikely event Armstrong is ultimately successful on

appeal.” 35 FMSHRC at 1886. Our holding should make clear that baseless retaliatory lawsuits

violate the Mine Act and therefore, if filed, must be dismissed.

We are further troubled by the majority’s reliance on Amax Lead because the subject

settlement agreement’s terms require it to be posted at each of Armstrong’s mines. In Amax

Lead, the Commission did not consider how language limiting liability may impair effective

communications to a mining workforce of the Secretary’s position on and the Commission’s

resolution of violations of section 105(c)(1). As discussed more fully below, the exculpatory

language contained in the settlement agreement here eviscerates any educational and deterrent

effect of the posting requirement. 

 We conclude that the Judge correctly recognized that the settlement of a violation of

section 105(c)(1) is not directly analogous to the settlement of a citation issued for a violation of

a safety standard. See 35 FMSHRC at 2685-86. Therefore, the Judge did not abuse his

discretion in rejecting the subject exculpatory language. 

3. The Judge considered all the terms in the motion for settlement.

Our colleagues have also held that the record does not support the Judge’s conclusion

that the settlement agreement lacks mitigating circumstances to justify a reduction in penalty

from $70,000 to $35,000. Slip op. at 6. We again disagree.

First, the Judge correctly excluded Armstrong’s withdrawal of the Muhlenberg suit as a

mitigating circumstance. The Judge had already ruled that by filing the civil action Armstrong

violated the Act. 35 FMSHRC at 1886-87. A fundamental principle of the Mine Act is that

operators are required to abate violations of the Act. See section 104(a), 30 U.S.C. 

§ 814(a) (“[i]f, upon inspection or investigation, the Secretary or his authorized representative

believes that an operator of a coal or other mine subject to this Act has violated this Act . . . he

shall, with reasonable promptness, issue a citation to the operator. [T]he citation shall fix a

reasonable time for the abatement of the violation”)8

 (emphasis added). Because Armstrong was

required by the terms of the Act to dismiss the objectively baseless Muhlenberg suit, its

abatement of the violative condition cannot be considered a mitigating circumstance.9 The

violative condition should have been abated as soon as the Secretary’s investigator concluded

that the Act had been violated and issued the complaint. Furthermore, Armstrong did not

demonstrate good faith in its compliance. See 30 U.S.C. § 820(i) (“good faith” efforts to achieve

36 FMSHRC Page 1110
10 The fact that Shemwell was represented by private counsel, as noted by the majority,

slip op. at 3 n.3, is irrelevant to the Commission’s consideration of the settlement agreement.

compliance may be a mitigating circumstance justifying a reduction in civil penalty). It didn’t

dismiss the suit after both the Secretary and a Commission ALJ found it to be in breach of the

Act. Rather, Armstrong flouted the law by refusing to dismiss the Muhlenberg suit without a

settlement. 

Second, the Judge was correct in stating that posting and training requirements are

routinely included in motions for settlement in section 105(c) cases. In fact, the Secretary has

recently authored several press releases announcing the inclusion of posting and training

requirements in agreements to settle discrimination cases. See Press Release, Mine Safety and

Health Administration, “MSHA settles two discrimination cases with Tennessee mine operator”

(Jan. 9, 2014); Press Release, MSHA, “MSHA, New Elk Coal reach settlement” (May 8, 2013);

Press Release, MSHA, “MSHA and Pennsylvania coal operator reach settlement in

discrimination case” (Jan. 4, 2012). Our colleagues quote the Secretary’s representation that the

posting and training requirements were not routine. However, the Secretary’s bare assertion is

not supported by any evidence. The Secretary’s lawyers are apparently unaware of the

Secretary’s actual practices as described by the press releases. Accordingly, the Judge did not

abuse his discretion in concluding that the settlement terms before him were routinely included

in motions to approve settlement of discrimination cases.

For the foregoing reasons, the Judge’s conclusion that the parties failed to present 

mitigating remedies to offset the proposed $35,000 reduction in penalty is fully supported. His

analysis in light of these facts reflects that he thoroughly considered each aspect of the

settlement and then concluded that, on balance, the remedies were not proportionate to the

insidiousness of the violation or consistent with the enforcement scheme of the Mine Act. See

35 FMSHRC at 2686-87. We disagree with the majority’s assertion that the Judge’s analysis

reflects that he somehow failed to consider the effect of the settlement as a whole. See slip op. at

7-8 (citing Madison Branch Management, 17 FMSHRC 859, 867-68 (June 1995)). The Judge

correctly concluded that the reasons advanced by the Secretary to justify reducing the penalty

were baseless: “There are no mitigating circumstances to justify the proposed reduction.” 35

FMSHRC at 2686. Perhaps the Secretary had some other reason for reducing the $70,000

penalty that his Office of Assessments proposed. We don’t know. But there is nothing in the

record to justify a reduction.10

36 FMSHRC Page 1111
11 The Judge, in his August 19, 2013 Order and Supplemental Decision on Relief,

properly ordered Armstrong to post both the June 19th Decision on Liability and the August 19th

Supplemental Decision at suitable locations at each of Armstrong’s facilities for a period of 90

days. 35 FMSHRC at 2692.

B. The settlement agreement is not in the public interest because the terms are

inadequate to address the nature of the violation and contrary to the public

policy of the Mine Act.

1. The posting requirement in the settlement agreement is inadequate.

As a SLAPP, the Muhlenberg suit is contrary to the public policy of a majority of U.S.

jurisdictions, and the Judge correctly condemned it as contrary to the federal policy goals of the

Mine Act. Miners working at Armstrong’s mines must be informed in unambiguous terms that

in filing the civil action against Shemwell, Armstrong violated the Mine Act. We would require

the mine operator to post a notice with language that is clear and direct.11 See S. Rep. 95-181,

95th Cong., 1st Sess. 37 (1977), reprinted in Senate Subcommittee on Labor, Committee on

Human Resources, Legislative History of the Federal Mine Safety and Health Act of 1977, at

625 (1978) (the Mine Act’s legislative history states that the Commission should require “all

relief that is necessary to make the complaining party whole and to remove the deleterious

effects of the discriminatory conduct including . . . requirements for the posting of notices by the

operator.”) (emphasis added).

Instead of posting the Judge’s decision, under the proposed agreement Armstrong is

required merely to post a copy of the settlement motion complete with the clause that states:

“except for proceedings under the Act, nothing contained herein shall be deemed to constitute an

admission of a violation of the Act or its regulations.” Jt. Mot. at 3 (Aug. 8, 2013). The

inclusion of this limiting language creates an equivocacy about the unlawfulness of the

Muhlenberg suit that undermines the effectiveness of the posting requirement and the Act’s antidiscriminatory provisions. See Pottsville Bleaching Co., 301 NLRB 1095, 1095 (Feb. 1991)

(rejecting the inclusion of a nonadmissions clause in a Board notice and stating that “the

inclusion of a nonadmissions clause in the Board’s notice could be confusing to those reading

the notice and could undermine its effectiveness”); see also Independent Shoe Workers of

Cincinnati, Ohio, 203 NLRB 783, 783 (May 1973) (rejecting a recommended official Board

notice because it contained a nonadmissions clause that would “undermine the effectiveness

intended to be had by the Board notice and, accordingly, would fail to effectuate the policies of

the Act”). We cannot comprehend why the Secretary agreed to a posting requirement which

does not state, in unambiguous terms, that Armstrong’s lawsuit seeking punitive damages for

Shemwell’s filing of a safety complaint with MSHA was a gross violation of the Mine Act.

We conclude that the posting requirement in its current form is not in the public interest

and represents ineffective enforcement of the Mine Act. In view of Armstrong’s conduct, its

miners need to be informed that they may assert statutory rights without the threat of reprisal by

36 FMSHRC Page 1112
oppressive litigation. This is especially important given the pattern of Mine Act discrimination

complaints against Armstrong.

2. The reduction in penalty is not adequately justified.

The Secretary’s motion does not adequately justify the proposed 50 percent reduction in

the civil penalty. We agree with the Judge that the posting and training requirements that

Armstrong agreed to are unremarkable and not proportionate to the violation. The Judge was

well within his rights to insist that the filing of the Muhlenberg SLAPP is the type of violation

that warrants the imposition of the statutory maximum penalty of $70,000 originally proposed by

the Secretary.

 In an attempt to justify the proposed terms of the settlement, the Secretary contends that

he alone has “the historical expertise to determine whether the proposed relief will best protect

miners.” S. PDR at 11. However, Congress empowered the Commission to determine whether

or not to approve a settlement. 30 U.S.C. § 820(k). In this case, the Judge found that a 50

percent reduction of the maximum penalty, for what he properly characterized as an egregious

transgression against the Act, was inadequate. The record before us stands in support of his

decision. 

Conclusion 

In summary, we dissent from our colleagues because we believe that the Judge did not

abuse his discretion when he denied the motion to approve settlement. In addition, we

independently consider the proposed settlement terms to be inadequate to address the violation.

We would affirm the Judge’s denial of the joint motion to approve settlement. 

/s/ Michael G. Young 

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner

36 FMSHRC Page 1113
Distribution

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., 22nd Floor

Arlington, VA 22209-2296

Mason L. Miller, Esq.

Daniel Z. Zaluski, Esq.

Adam K. Spease, Esq.

Miller & Wells, PLLC

300 E. Main Street, Suite 360

Lexington, KY 40507

Tony Oppegard, Esq.

P.O. Box 22446

Lexington, KY 40522

Wes Addington, Esq.

Appalachian Citizens Law Center

317 Main Street

Whitesburg, KY 41858

Administrative Law Judge Jerold Feldman

Federal Mine Safety & Health Review Commission

Office of Administrative Law Judges

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

Washington, D.C. 20004

36 FMSHRC Page 1114
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1331 PENNSYLVANIA AVENUE, NW 

SUITE 520N 

WASHINGTON, DC 20004 

May 23, 2014 

SECRETARY OF LABOR, : 

 MINE SAFETY AND HEALTH : 

 ADMINISTRATION (MSHA) : 

 : Docket Nos. LAKE 2009-490 

 v. : LAKE 2009-491 

 : LAKE 2009-531 

BIG RIDGE, INC. : LAKE 2009-532 

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

DECISION

BY THE COMMISSION: 

 In this proceeding arising under the Federal Mine Safety and Health Act, 30 U.S.C. § 

801 et seq. (2012) (“Mine Act” or “Act”), an Administrative Law Judge found a violation of the 

lifeline requirements contained in 30 C.F.R. § 75.380(d)(7)(i)1

 to be significant and substantial 

(“S&S”).2 33 FMSHRC 689, 693-99 (Mar. 2011) (ALJ). Big Ridge, Inc., subsequently 

petitioned for review of the Judge’s S&S finding, which the Commission granted. For the 

reasons stated herein, we affirm the Judge’s decision and conclude that Big Ridge’s violation of 

the lifeline requirements was S&S.3

 1

 Section 75.380(d)(7)(i) provides as follows: “Each escapeway shall be provided with a 

continuous, durable directional lifeline or equivalent device that shall be installed and 

maintained throughout the entire length of each escapeway.” 

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

 We have determined that oral argument is not necessary and, therefore, Big Ridge’s 

motion for oral argument is denied. 

36 FMSHRC Page 1115
I.

 Facts and Proceedings Below

 During a March 12, 2009 inspection, an inspector with the U.S. Department of Labor’s 

Mine Safety and Health Administration (“MSHA”) observed that 20 feet of a lifeline was 

missing on a secondary escapeway at Big Ridge’s Willow Lake Mine. 33 FMSHRC at 694-95. 

The secondary escapeway was next to a belt entry at a heavily traveled crosscut intersection. Id. 

At least 40 miners in the working area would have used this escape route in the event of an 

emergency. Id. at 695. As a result, the inspector issued a citation alleging that the secondary 

escapeway was not being provided with a lifeline at a crosscut intersection for approximately 20 

feet. Id. at 694. 

 There was no dispute that there was a 20-foot gap in the lifeline. Id. at 694-97. After a 

hearing on the merits, the Judge concluded that a violation of section 75.380(d)(7)(i) had 

occurred and found the violation to be S&S. Id. at 693-99. 

 The Judge applied the Commission’s four-part S&S analysis established in Mathies 

Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984). The Judge found that a “discrete safety hazard existed 

as a result of the violations, i.e, the danger of being unable to quickly and safely escape the 

mine in the event of an emergency where smoke and/or fire are created by various scenarios.” 

33 FMSHRC at 697. 

 The Judge did not find it necessary to assume the existence of an emergency, as 

requested by the Secretary, because she determined that “an emergency [wa]s likely to occur” 

“in the continued course of mining operations.” Id. at 698-99. She also concluded that the 

hazard described would result in an injury and that the injury would be “serious or fatal.” Id. at 

699. Additionally, the Judge found that this violation would affect 40 or more miners who used 

the travelway on a daily basis. Id. at 699. 

II. 

Disposition

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

§ 814(d)(1), and refers to more serious violations. 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, 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, 

36 FMSHRC Page 1116
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 at 3-4 (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). 

 Because this case involves a violation of an emergency lifeline standard, our application 

of the Mathies test is controlled by Cumberland Coal Res., LP, 33 FMSHRC 2357 (Oct. 2011), 

aff’d Cumberland Coal Res., LP v. FMSHRC, 717 F.3d 1020 (D.C. Cir. 2013). In Cumberland, 

the Commission held that “[t]he hazard contributed to by defectively placed lifelines necessarily 

involved consideration of an emergency situation.” 33 FMSHRC at 2364. This is because 

“[e]vacuation standards are different from other mine safety standards. They are intended to 

apply meaningfully only when an emergency actually occurs.” Id. at 2367. 

 

 When applying the Mathies analysis with respect to escapeway violations, a Judge is to 

consider the S&S nature of those violations within the context of an emergency. Cumberland, 

717 F.3d at 1027-28 (providing that “assuming the existence of an emergency” when evaluating 

the S&S nature of emergency safety measures is consistent with Mathies). The D.C. Circuit 

made clear that the likelihood of an emergency actually occurring is irrelevant to the Mathies 

inquiry, which focuses on the nature of the violation itself. 717 F.3d at 1027 (citing Sec’y of 

Labor v. FMSHRC, 111 F.3d 913, 917 (D.C. Cir. 1997)). Cf. Spartan Mining Co., 35 FMSHRC 

3505, 3509 (Dec. 2013) (Secretary need not prove the likelihood of an emergency when 

evaluating whether escapeway violations were S&S). 

 Applying the Mathies test to the case at bar, we note that the first Mathies element is 

satisfied by the Judge’s finding of violation. 33 FMSHRC at 697. 

 With regard to the second Mathies element, the Judge determined that a discrete safety 

hazard existed as a result of the violation, i.e., “the danger of being unable to quickly and safely 

escape in the event of an emergency where smoke and/or fire are created by various scenarios.” 

Id. The Judge’s statement of hazard is consistent with the Cumberland decisons and is an 

accurate description of the relevant hazard contributed to by the violation. 33 FMSHRC at 

2364. 

36 FMSHRC Page 1117
Substantial evidence in the record supports the Judge’s finding that the gap in the lifeline 

would contribute to a hazard of miners being unable to quickly and safely escape in the 

presence of an emergency.4

 As the Judge found, the area where the lifeline was missing for 20 

feet is a heavily-traveled area at a crosscut. 33 FMSHRC at 695; Tr. II at 122-24. In such an 

intersection, there is no rib line to help miners find their way, and other wires and cables may 

confuse miners looking for a missing lifeline. 33 FMSHRC at 695; Tr. II at 127-28, 131. In 

addition, the presence of the conveyor belt would contribute to the thickness of the smoke in the 

cited area. 33 FMSHRC at 695; Tr. II at 129. The inspector testified that the air in the 

escapeway was common to the air in the next entry, which contained the conveyor belt. Tr. II at 

121. In a fire near a belt, the smoke would be so thick from the rollers on the belt that a miner 

would be unable to see his hand in front of his face. Tr. II at 129. The Judge also found that at 

least 40 miners in the working area would use this escape route in the event of an emergency. 

33 FMSHRC at 695; Tr. II at 122-23. 

 We reject Big Ridge’s argument that miners would find their way out because they knew 

which way the air was ventilated and would have the air at their backs. As the Judge noted, 

even experienced miners panic and become disoriented in an emergency. 33 FMSHRC at 695. 

In addition, ventilation may be interrupted in an emergency. Tr. II at 123, 141-42, 164, 197. 

Moreover, this violation involved a secondary escapeway, where the air flows outby or away 

from the working face. Tr. II at 121. This increases the possibility that a fire inby, close to the 

face, would contaminate the entry with smoke, making a usable and accessible lifeline critically 

important. 

 Big Ridge argues that 20 feet of inaccessible lifeline is not sufficient to support an S&S 

finding as shown by the longer distances of the deficient lifelines in Cumberland. Cumberland

involved four violations with inaccessible lifelines that spanned the distances of 6,650 feet, 450 

feet, 120 feet and 300 feet, respectively. 33 FMSHRC at 2358-60. Although a gap of 20 feet is 

smaller than the distances involved in Cumberland, the Judge could reasonably find on this 

record that the deficient lifeline posed a hazard when considered in the context of an emergency 

situation. In particular, the gap occurred at a critical intersection, where miners could get 

disoriented and lost; there were many cables and wires to further confuse escaping miners; and 

the intersection was near a belt line with common air, which would make any smoke very thick, 

greatly diminishing visibility. 33 FMSHRC at 694-95. 

 4

 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 Consol. 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)). 

36 FMSHRC Page 1118
Substantial evidence also supports the Judge’s determination that the third and fourth 

Mathies elements were satisfied. In addressing the third and fourth Mathies elements, the Judge 

determined: “It has been demonstrated that if a large gap remained in the lifeline, it would 

hinder the evacuation of the mine, thereby causing serious injury.” Id. at 699. Although Big 

Ridge calls the 20-foot gap small, we note that Inspector Morris testified that “[i]n smoky 

conditions, 20 feet is a long way.” Tr. II at 129. As in Cumberland, the Judge relied on the 

inspector’s testimony that in an emergency, miners become disoriented or panic and cannot see 

in dense smoke, such that a directional lifeline is essential to help them find their way and avert 

disaster. Compare Cumberland, 33 FMSHRC at 2365, with 33 FMSHRC at 695. The hazard of 

a delayed escape or no escape at all due to a missing lifeline in an emergency is reasonably 

likely to result in serious or fatal injuries. Accordingly, the Judge’s application of the Mathies

test to conclude that the lifeline violation was S&S is fully supported by substantial evidence on 

the record. 

III. 

Conclusion

For the foregoing reasons, we affirm the Judge’s determination that the lifeline violation 

was S&S. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner 

36 FMSHRC Page 1119
Distribution 

R. Henry Moore, Esq. 

Arthur M. Wolfson, Esq. 

Jackson Kelly, PLLC 

Three Gateway Center 

401 Liberty Avenue, Suite 1500 

Pittsburgh, PA 15222 

hmoore@jacksonkelly.com

awolfson@jacksonkelly.com

Edward Waldman, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22nd Floor 

Arlington, VA 22209 

waldman.edward@dol.gov

Melanie Garris 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Administrative Law Judge Margaret Miller 

Federal Mine Safety & Health Review Commission 

Office of Administrative Law Judges 

721 19th Street, Suite 443 

Denver, CO 80202-5268 

36 FMSHRC Page 1120
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1331 PENNSYLVANIA AVENUE, NW 

SUITE 520N 

WASHINGTON, DC 20004 

May 23, 2014 

SECRETARY OF LABOR, : 

 MINE SAFETY AND HEALTH : 

 ADMINISTRATION (MSHA) : 

 : Docket No. LAKE 2009-565 

 v. : A.C. No. 12-02295-188278 

 : 

 : 

BLACK BEAUTY COAL COMPANY : 

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

DECISION

BY THE COMMISSION: 

 In this proceeding arising under the Federal Mine Safety and Health Act, 30 U.S.C. § 

801 et seq. (2012) (“Mine Act” or “Act”), an Administrative Law Judge found a violation of the 

lifeline requirements contained in 30 C.F.R. § 75.380(d)(7)(iv)1

 to be significant and substantial 

(“S&S”).2 33 FMSHRC 1174, 1176 (May 2011) (ALJ). Black Beauty Coal Company 

subsequently petitioned for review of the Judge’s S&S finding, which the Commission granted. 

For the reasons stated herein, we affirm the Judge’s decision and conclude that Black Beauty’s 

violation of the lifeline requirements was S&S.3

 1

 Section 75.380(d)(7)(iv) provides as follows: “Each escapeway shall be provided with 

a continuous, durable directional lifeline or equivalent device that shall be located in such a 

manner for miners to use effectively to escape.” 

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

 We have determined that oral argument is not necessary and, therefore, Black 

Beauty’s motion for oral argument is denied. 

36 FMSHRC Page 1121
I.

 Facts and Proceedings Below

During an April 21, 2009 inspection, an inspector with the U.S. Department of Labor’s 

Mine Safety and Health Administration (“MSHA”) observed that a lifeline at Black Beauty’s 

Francisco Mine was at a height of seven to twelve feet above the mine floor for a distance of 

100 to 110 feet. 33 FMSHRC at 1174-75. Both the inspector and the Black Beauty 

representative who accompanied him were unable to pull the lifeline down to an accessible 

height. Id. at 1175-76. As a result, the inspector issued a citation, alleging that “in the event of 

a disaster the miners trying to use the lifeline to escape would not have been able to keep hold 

of the lifeline and safely exit the mine.” Id. at 1175. 

After a hearing on the merits, the Judge concluded that a violation of section 

75.380(d)(7)(iv) had occurred. Id. at 1176. There was no dispute that the lifeline was at a 

height of seven to twelve feet above the mine floor and was not located such that a miner could 

effectively use it. Id. 

In finding the violation to be S&S, the Judge applied the Commission’s four-part S&S 

analysis established in Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984). The Judge found that 

“a discrete safety hazard existed as a result of the violations, i.e., the danger of not being able to 

access or use the lifeline in the event of an emergency where visibility is reduced and miners 

must rely on the tangible nature of the lifeline to quickly escape the mine.” 33 FMSHRC at 

1177-78. The Judge did not find it necessary to assume the existence of an emergency, as 

requested by the Secretary, because she determined that “an emergency [wa]s reasonably likely 

to occur in the course of continued mining operations.” Id. at 1178. She also concluded that the 

hazard described would result in an injury and that the injury would be “serious or fatal.” Id. at 

1179. Additionally, the Judge found that this violation would affect 14 miners who were on the 

section at the time the citation was issued and noted that 28 miners would have been affected if 

a fire or explosion were to occur during a shift change. Id. 

II. 

Disposition

A. Jurisdictional Issue

At the outset, we turn to the Secretary’s argument that the Commission lacks jurisdiction 

to consider certain arguments in Black Beauty’s brief because they were not raised in its initial 

petition for discretionary review (“PDR”). 

Mine Act section 113(d)(2)(iii) provides that review by the Commission “shall be 

limited to the questions raised by the petition.” 30 U.S.C. § 823(d)(2)(iii). In its brief, Black 

Beauty argues that the violation is not S&S because the violation would not have significantly 

36 FMSHRC Page 1122
delayed miners in exiting the mine. However, Black Beauty’s PDR identified the issue as 

whether the judge erred when she found a reasonable likelihood of an emergency requiring the 

use of a lifeline. 

The Commission has held that section 113(d)(2)(iii) does not preclude review if the 

issue was implicitly raised in the PDR or is sufficiently related. Fort Scott Fertilizer-Cullor, 

Inc., 19 FMSHRC 1511, 1514 (Sept. 1997) (broadly construing PDR to encompass party’s 

argument). Although Black Beauty did argue in its PDR that the Judge erred in finding an 

emergency reasonably likely, it framed the issue broadly as: “Whether the ALJ erred in 

finding that the condition was properly designated S&S.” PDR at 4. Since this broad issue 

was raised in the PDR, it encompasses the arguments that Black Beauty later raised in its brief. 

Thus, we will address Black Beauty’s S&S arguments on their merits. 

B. S&S Issue

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

§ 814(d)(1), and refers to more serious violations. 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, 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. 

6 FMSHRC at 3-4 (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). 

Because this case involves a violation of an emergency lifeline standard, our application 

of the Mathies test is controlled by Cumberland Coal Res., LP, 33 FMSHRC 2357 (Oct. 2011), 

aff’d Cumberland Coal Res., LP v. FMSHRC, 717 F.3d 1020 (D.C. Cir. 2013). In Cumberland, 

the Commission held that “[t]he hazard contributed to by defectively placed lifelines necessarily 

involved consideration of an emergency situation.” 33 FMSHRC at 2364. This is because 

“[e]vacuation standards are different from other mine safety standards. They are intended to 

apply meaningfully only when an emergency actually occurs.” Id. at 2367. 

36 FMSHRC Page 1123
When applying the Mathies analysis with respect to escapeway violations, a Judge is to 

consider the S&S nature of those violations within the context of an emergency. Cumberland, 

717 F.3d at 1027-28 (providing that “assuming the existence of an emergency” when evaluating 

the S&S nature of emergency safety measures is consistent with Mathies). The D.C. Circuit 

made clear that the likelihood of an emergency actually occurring is irrelevant to the Mathies 

inquiry, which focuses on the nature of the violation itself. 717 F.3d at 1027 (citing Sec’y of 

Labor v. FMSHRC, 111 F.3d 913, 917 (D.C. Cir. 1997)). Cf. Spartan Mining Co., 35 FMSHRC 

3505, 3509 (Dec. 2013) (Secretary need not prove the likelihood of an emergency when 

evaluating whether escapeway violations were S&S.) 

 Applying the Mathies test to the case at bar, we note that the first Mathies element is 

satisfied by the Judge’s finding of violation. 33 FMSHRC at 1177. 

With regard to the second Mathies element, the Judge determined that a discrete safety 

hazard existed as a result of the violation, i.e, “the danger of not being able to access or use the 

lifeline in the event of an emergency where visibility is reduced and miners must rely upon the 

tangible nature of the lifeline to quickly and safely escape the mine.” 33 FMSHRC at 1177-78. 

The Judge’s statement of hazard is consistent with the Cumberland decisions and is an accurate 

description of the relevant hazard contributed to by the violation. 33 FMSHRC at 2364. She 

reasoned that if an escaping miner cannot reach the lifeline for 110 feet, the miner will become 

disoriented in a matter of seconds and could stumble and fall and not know which way to travel 

to exit the mine. 33 FMSHRC at 1179. 

Substantial evidence in the record supports the Judge’s opinion that the gap in the 

lifeline would contribute to a hazard of miners being unable to quickly and safely escape, in an 

emergency.4

 As the Judge found, the lifeline was unreachable for 110 feet. 33 FMSHRC at 

1179. Because the area was on a grade, a tripping or stumbling hazard was even more likely. 

Tr. 31. Although Black Beauty argues that the lifeline was only temporarily inaccessible due to 

construction, the inspector testified that during the five-day period that the lifeline was 

unreachable, miners traveled in the area. Tr. 28-29. We also reject Black Beauty’s argument 

that miners would find their way out because they knew the way the air was ventilated. As the 

Judge noted, even experienced miners panic and become disoriented in an emergency. 33 

FMSHRC at 1179. Ventilation may also be interrupted in an emergency. Tr. 24, 42. 

4

 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 Consol. 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)). 

36 FMSHRC Page 1124
Moreover, this violation involved a secondary escapeway where the air flows outby or away 

from the working face. Tr. 40-42. This increases the possibility that a fire inby, close to the 

face, would contaminate the entry with smoke, making a usable and accessible lifeline critically 

important. 

 Black Beauty argues that 110 feet of inaccessible lifeline is not sufficient to support an 

S&S finding as shown by the longer distances of the deficient lifelines in Cumberland. 

Cumberland involved four violations with inaccessible lifelines that spanned the distances of 

6,650 feet, 450 feet, 120 feet and 300 feet, respectively. 33 FMSHRC at 2358-60. Although a 

gap of 110 feet is slightly smaller than the distances involved in Cumberland, a Judge could 

certainly find on this record that the deficient lifeline posed a hazard when considered in the 

context of an emergency situation. As she held, an escaping miner who cannot reach the lifeline 

“will become disoriented in a matter of seconds.” 33 FMSHRC at 1179. 

 In addressing the third and fourth Mathies elements, the Judge determined that “the 

unreachable, and thus unusable, lifeline created a hazard” and that the “likelihood of injuries or 

death increases as the distance of the unavailability of the lifeline increases.” 33 FMSHRC at 

1179. As in Cumberland, the Judge relied on inspector testimony that in an emergency, miners 

become disoriented or panic and cannot see in dense smoke, such that a directional lifeline is 

essential to help them find their way and avert disaster. Compare Cumberland, 33 FMSHRC at 

2365, with 33 FMSHRC at 1179. Thus, substantial evidence supports the Judge’s determination 

that the third and fourth Mathies elements were satisfied. The hazard of delayed or no escape at 

all due to an inaccessible lifeline in an emergency is reasonably likely to result in serious or 

fatal injuries. Accordingly, the Judge’s application of the Mathies test to conclude that the 

lifeline violation was S&S is fully supported by the record.5

 5

 In challenging the S&S determination, Black Beauty raises the presence of other 

safety measures, such as a viable primary escapeway, tethers, and reflective material, as 

mitigating the S&S determination. The Commission and courts have soundly rejected this line 

of argument. As stated in Cumberland, additional safety measures do not prevent a finding of 

S&S. 33 FMSHRC at 2369 (citing Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 136 (7th Cir. 

1995)). 

36 FMSHRC Page 1125
III. 

Conclusion

For the foregoing reasons, we affirm the Judge’s determination that the lifeline violation 

was S&S. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner 

36 FMSHRC Page 1126
Distribution 

R. Henry Moore, Esq. 

Arthur M. Wolfson, Esq. 

Jackson Kelly, PLLC 

Three Gateway Center 

401 Liberty Avenue, Suite 1500 

Pittsburgh, PA 15222 

hmoore@jacksonkelly.com

awolfson@jacksonkelly.com

Robin Rosenbluth, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22nd Floor 

Arlington, VA 22209 

rosenbluth.robin@dol.gov

Melanie Garris 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Administrative Law Judge Margaret Miller 

Federal Mine Safety & Health Review Commission 

Office of Administrative Law Judges 

721 19th Street, Suite 443 

Denver, CO 80202-5268 

36 FMSHRC Page 1127
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710

May 28, 2014 

SECRETARY OF LABOR, : 

 MINE SAFETY AND HEALTH : 

 ADMINISTRATION (MSHA) : 

: Docket Nos. VA 2010-81-R, et al.1

v. : 

 : 

KNOX CREEK COAL CORPORATION : 

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

DECISION

BY: Jordan, Chairman; Nakamura, and Althen, Commissioners 

This proceeding arises 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 concluded 

that five citations issued by the U.S. Department of Labor’s Mine Safety and Health 

Administration (“MSHA”) to Knox Creek Coal Corporation were not significant and substantial 

(“S&S”).2 Slip op. at 61-64, 79-82, 97-98, No. VA 2010-81-R (Dec. 27, 2010) (ALJ) (“ALJ 

Dec.”).3 The Commission granted the Secretary of Labor’s petition for discretionary review 

challenging the Judge’s decision. For the reasons that follow, we vacate in part the Judge’s 

decision, conclude that four of the five violations were S&S, and remand for further consideration 

consistent with our decision. 

 

 1

 The relevant docket numbers involved in this proceeding are listed in an appendix 

attached to this decision. 

2

 Section 104(d)(1) of the Act authorizes the Secretary to make a special finding 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.” 30 U.S.C. § 814(d)(1). 

3

 The Judge’s decision was not published in the Commission’s Blue Books, its official 

reporter. However, the Judge’s decision can be found on the Commission’s website 

(www.fmshrc.gov). All citations to the Judge’s decision are to the slip opinion. 

36 FMSHRC Page 1128
I. 

Facts and Proceedings Below

Knox Creek’s Tiller No. 1 Mine, an underground bituminous coal mine located in 

Tazewell County, Virginia, liberates in excess of 900,000 cubic feet per hour of methane in a 

24-hour period and is subject to section 103(i)4

 spot inspections every 10 days. ALJ Dec. at 4, 51. 

In January 2009, the mine had a face ignition. Jt. Ex. 1, Stip. 21; G. Ex. 132; Tr. 1332. This 

resulted in a change in the mine’s ventilation plan. ALJ Dec. at 60; Tr. 1448. However, as the 

Judge noted, MSHA was still concerned about elevated methane readings at the face and the 

potential for ignitions, given the gassy nature of the mine. ALJ Dec. at 60. 

At issue in this proceeding are five violations which the Judge found were not significant 

and substantial (“S&S”). ALJ Dec. at 61-64, 79-82, 97-98. The citations for these violations 

were issued between October 30 and November 20, 2009. Id. at 50, 80, 95. On December 27, 

2010, the Judge issued his written decision, which the Secretary appealed. Below, these 

consolidated proceedings involved 37 dockets concerning 35 violations and their associated 

penalties, of which only five citations are currently under consideration by the Commission on 

appeal.5

 

II. 

Disposition

The fundamental issue on appeal is whether the Judge erred in determining that the five 

violations in question were not S&S. As explained below, three of the violations (Citation Nos. 

8170363, 8170375 and 8169155) involve the Secretary’s standard requiring that certain equipment 

be “permissible.” Another violation (Citation No. 8169156) involves the standard governing the 

safety of power cables, and the remaining violation (Citation No. 8170394) involves the 

accumulation of combustible materials on a conveyor belt. In section A below, we discuss the 

relevant facts and legal principles pertaining to the three permissibility violations. In section B, 

we address the facts and legal principles pertaining to the power cable violation, and in section C, 

we do the same for the accumulations violation. 

 4

 Section 103(i) of the Act provides in pertinent part that a coal or other 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, and a mine that liberates in 

excess of five hundred thousand cubic feet of methane or explosive gases during a 24 hour period 

is subject to a spot inspection every 10 working days at irregular intervals. 30 U.S.C. § 813(i). 

5

 The remaining citations and their penalties generally settled, were not appealed or were 

denied review. Knox Creek’s petition for review of seven of the citations (Nos. 8170360, 

8170391, 8170398, 8169126, 8169147, 8170374 and 8169146) was denied by the Commission on 

February 4, 2011. 

36 FMSHRC Page 1129
Applying Commission case law setting forth the test for determining whether a violation is 

S&S, we conclude that each of the three permissibility violations and the accumulations violation 

were properly designated as S&S by the Secretary. Accordingly, we reverse the Judge’s decision 

as to the S&S nature of these violations and remand the case for the reassessment of penalties. As 

to the power cable violation, we affirm the Judge’s determination that this violation is not S&S. 

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

§ 814(d)(1), and refers to more serious violations. 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); accord Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 

1995); Austin Power, Inc. v. Secretary of Labor, 861 F.2d 99, 103 (5th Cir. 1988) (approving 

Mathies criteria). It is the contribution of the violation to the cause and effect of a hazard that 

must be significant and substantial. U.S. Steel Mining Co., 6 FMSHRC 1834, 1836 (Aug. 1984). 

An evaluation of the reasonable likelihood of injury should be made assuming continued normal 

mining operations. See U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug. 1985). 

A. Permissibility Violations

The first three violations involve 30 C.F.R. § 75.503,6

 the standard requiring all face7

equipment to be maintained in permissible condition. “Permissible” means “all electrically 

 6

 Section 75.503 provides that “[t]he operator of each coal mine shall maintain in 

permissible condition all electric face equipment required by §§ 75.500, 75.501, 75.504 to be 

permissible which is taken into or used inby the last open crosscut of any such mine.” 30 C.F.R. 

§ 75.503. 

7

 A “working face” is “any place in a coal mine in which work of extracting coal from its 

natural deposit in the earth is performed during the mining cycle. . . . ” 30 U.S.C. § 878(g)(1); 30 

C.F.R. § 75.2. See also Dictionary of Mining, Mineral, and Related Terms 407 (1968) (defining 

“face” as “[t]he solid surface of the unbroken portion of the coalbed at the advancing end of the 

working place”). 

36 FMSHRC Page 1130
operated equipment taken into or used inby the last open crosscut of an entry . . . are designed, 

constructed, and installed, in accordance with the specifications of the Secretary, to assure that 

such equipment will not cause a mine explosion or mine fire, and . . . to prevent, to the greatest 

extent possible, other accidents in the use of such equipment.” 30 C.F.R. § 75.2. 

The permissibility requirements are designed to ensure that ignitions occurring within 

enclosures on mining equipment which contain electrical circuits will not escape into the mine 

atmosphere. Specifically, the requirements are intended to prevent the ignition of an explosive 

air-methane mixture surrounding mine equipment. An ignition inside the enclosure will generate 

hot gases. When the equipment is permissible, these gases will escape through a flame-arresting 

path built into the enclosure and will cool as they pass through. Consequently, the gas escaping 

into the surrounding atmosphere will not ignite any external explosive air. G. Ex. 4 at 4. 

On October 30, 2009, MSHA Inspector Jason Hess issued Citation No. 8170363, alleging 

an S&S violation on the continuous mining machine located on the 005 MMU for an opening in 

excess of .004 inches in the trailing cable junction box.8

 G. Ex. 75; ALJ Dec. at 54-55. 

On November 4, 2009, Inspector Hess issued Citation No. 8170375, alleging an S&S 

violation on the 005 MMU continuous miner because it had an opening exceeding .004 inches in 

the conveyor motor cover. G. Ex. 78; ALJ Dec. at 56. 

On November 20, 2009, MSHA Inspector Michael Colley issued Citation No. 8169155, 

alleging an S&S violation on the continuous mining machine located on the 003 MMU due to an 

opening in excess of .004 inches in the plane flange joint of the lead junction box. G. Ex. 71; ALJ 

Dec. at 53-54. 

The Judge concluded that each of the three permissibility violations was not S&S. ALJ 

Dec. at 61-64. He rejected the Secretary’s argument that there should be an assumption of the 

occurrence of an explosion within the enclosure housing the electrical components on the 

equipment when considering the S&S designation of permissibility violations. Id. at 57-59. 

Applying Mathies, he held that for each of the three permissibility violations, the Secretary had 

proved the first, second, and fourth elements, i.e., Knox Creek committed a violation of a 

mandatory safety standard, the violation contributed to a safety hazard, and the resulting injury 

would be of a reasonably serious nature. Id. at 59. 

As to the third Mathies element, the Judge found that, given the gassy nature of the mine, 

sudden methane buildups in the explosive range could reasonably be expected to occur. 

However, he concluded that the Secretary had failed to establish the reasonable likelihood of an 

 8

 In the citations, the MSHA inspectors referenced 30 C.F.R. § 18.31, which sets forth the 

requirements for explosion-proof enclosures on electric motor-driven mine equipment. G. Exs. 

71, 75, 78. Section 18.31 bases the enclosure requirements on the internal volumes of the empty 

enclosure. 30 C.F.R. § 18.31(a)(6). Enclosures with more than 124 cubic inches of internal 

volume, with the joint all in one plane, must have a maximum clearance of .004 inches. Id.

36 FMSHRC Page 1131
ignition inside of the enclosures. Id. at 61-64. He found that the Secretary had failed to produce 

any evidence concerning the frequency with which the electrical malfunctions of the equipment 

causing sparking or arcing described by the inspectors occurred. Id. He therefore concluded that 

the Secretary had failed to prove that there was a reasonable likelihood that the hazard would result 

in an injury to miners. Id.9

On appeal, the Secretary maintains that the Judge erred by failing to assume the occurrence 

of an explosion inside the enclosures housing the electrical components on the cited equipment. 

We agree with the Secretary that the Judge erred in finding that these three permissibility 

violations were not S&S. We arrive at our conclusion that the violations were S&S based on the 

correct application of Mathies and relevant Commission precedent. 

The Judge erred by limiting his consideration of the violative conditions as they existed at 

the time of the inspection, taking a “snapshot” approach to the issue of an arc or spark within the 

subject enclosures. The Commission has clearly held that the Judges must consider the violative 

conditions as they existed both prior to and at the time of the violation and as they would have 

existed had normal mining operations continued. Youghiogheny & Ohio Coal Co., 9 FMSHRC 

673, 677-78 (Apr. 1987); U.S. Steel, 7 FMSHRC at 1130; U.S. Steel Mining Co., 6 FMSHRC 

1573, 1574 (July 1984) (rejecting the mine operator’s argument that a significant and substantial 

violation should be determined based solely on the condition as it exists at the precise moment of 

inspection); Black Beauty Coal Co., 34 FMSHRC 1733, 1740 (Aug. 2012); Bellefonte Lime Co., 

Inc., 20 FMSHRC 1250, 1255 (Nov. 1998) (holding that judge failed to consider whether there 

was reasonable likelihood of injury during the “operative time frame . . . [of when the] violative 

condition existed prior to the citation”). Here, the impermissible equipment that was cited was 

expected to be put into service in its violative condition on the next shift. ALJ Dec. at 53-56. 

The Judge should have considered the inspectors’ and expert witness’ extensive testimony 

addressing the conditions expected to result from continued mining. 

Additionally, the Judge’s focus upon the absence of quantitative proof of the frequency of 

malfunctions within the enclosures is contrary to uncontradicted testimony regarding the 

likelihood of such malfunction, and thus, to the Mathies test. See Amax Coal Co., 19 FMSHRC 

846, 848-49 (May 1997) (declining to impose a “more probable than not” standard when 

considering the third Mathies element), citing U.S. Steel Mining Co., 18 FMSHRC 862, 865 (June 

 9

 The Judge found other facts supportive of a reasonable likelihood of a methane ignition 

in the mine, including that the .001 inch excess gap would permit ignited methane to enter the 

mine’s atmosphere. He found: “[E]ach violation contributed to a safety hazard in that the 

testimony overwhelmingly establishes the cited openings could have allowed methane to enter the 

subject compartment[s,] an electrical malfunction in [the] compartment[s] could [have] ignite[ed] 

the methane[, t]he flame[s] could [have traveled] out of the compartment[s] into the atmosphere 

surrounding the cited equipment, and if the methane concentration outside the equipment were in 

the explosive range of 5 [%] to 15 [%], the result could [have been] an [ignition] and [perhaps] 

explosion, causing serious burn injuries to [the] equipment operators and to those operating 

equipment immediately behind[.]” ALJ Dec. at 59. 

36 FMSHRC Page 1132
1996). By requiring the Secretary to prove essentially a statistical frequency of a spark occurring 

inside the compartments housing the electrical connections on the face equipment, the Judge 

imposed on the Secretary an unwarranted standard beyond reasonable likelihood. 

The Commission has expressly rejected a similar argument. See Musser Engineering Inc. 

and PBS Coals, Inc., 32 FMSHRC 1257, 1281 (Oct. 2010) (in supporting an S&S designation, 

Secretary not required to produce evidence that, at other mines, reliance on mine maps that were 

not final had resulted in breakthroughs and injuries). Similarly, in this case, the Secretary was not 

required to produce quantitative evidence of the frequency of malfunctions within these types of 

enclosures in order to establish that arcing or sparking was reasonably likely. 

Applying the correct standard under Mathies and considering the specific facts and 

circumstances of this case, we conclude that the Judge erred in finding that the Secretary did not 

prove an ignition was reasonably likely to occur.10 ALJ Dec. at 64. We instead conclude that the 

evidence compels the conclusion that the permissibility violations could have contributed 

significantly and substantially to the cause and effect of a methane ignition or explosion at the 

Tiller Mine. See American Mine Servs., Inc., 15 FMSHRC 1830, 1834 (Sept. 1993) (remand not 

necessary when record supports no other conclusion). 

As a threshold matter, when evaluating evidence to determine whether permissibility 

violations are S&S, the Commission has considered the particular circumstances present in the 

mine. In cases involving violations which may contribute to the hazard of methane explosions or 

ignitions, the Commission has held that the likelihood of an injury resulting from the hazard 

depends on whether a “confluence of factors” exists that could trigger an explosion or ignition. 

Texasgulf, Inc., 10 FMSHRC 498, 501 (Apr. 1988).11 Some of the factors to be considered 

include the presence of methane, possible ignition sources, and the types of equipment operating in 

the area. See Utah Power & Light Co., Mining Div., 12 FMSHRC 965, 970-71 (May 1990); 

10 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)). 

11 The factual circumstances in the instant case are readily distinguishable from those in 

Texasgulf. The mine in Texasgulf contained only miniscule amounts of methane and had never 

had a methane ignition or explosion. 10 FMSHRC at 501. By contrast, as discussed above, the 

record in this case establishes that the Tiller Mine was subject to section 103(i) spot inspections 

because of its excessive liberation of methane and that a face ignition had recently occurred. Tr. 

1239, 1242, 1320. 

36 FMSHRC Page 1133
Texasgulf, 10 FMSHRC at 501-503. Consideration of the particular circumstances in the mine is 

an acknowledgement of the complex nature of permissibility violations, which may pose a serious 

risk of a mine ignition or explosion during normal operations in the presence of certain 

conditions.12

MSHA witnesses testified to a “confluence of factors” that could trigger an ignition. In 

particular, the inspectors and expert witness testified that under normal wear and tear, the subject 

equipment would tend to break down or malfunction, thereby providing an ignition source. ALJ 

Dec. at 53-56, 61-64; Tr. 1270-72, 1287-88, 1323-24. They also testified that because of the 

impermissible gaps around the enclosures, methane could enter the enclosures. Should the 

equipment malfunction, resulting in a spark, the gap could permit the ignition to reach the mine 

atmosphere. ALJ Dec. at 53-56, 61-64; Tr. 1287-88, 1321. Significantly, the inspectors testified 

that this mine was known to liberate excess methane, i.e., it was subject to section 103(i) spot 

inspections, and that it had a history of face ignitions. Tr. 1239, 1242, 1271-72, 1288, 1320. 

Thus, an ignition within the enclosure could escape to the mine atmosphere and contribute to a 

greater explosion, resulting in serious injury and potential fatalities. Tr. 1288-90, 1326-27. 

Kenneth Porter, MSHA’s chief electrician and expert witness, submitted an expert report 

in which he explained that although there is normally no active arcing or sparking in the enclosures 

for the three pieces of equipment at issue, vibration could loosen electrical connections, leading to 

arcing or sparking or increased heat. G. Ex. 4 at 4-8. He explained that the insulation on 

conductors can be damaged by rubbing against other insulation or against the case of the 

enclosure, creating an increased likelihood of an arc or spark within the enclosure. Id. at 5. 

Also, water can enter the enclosure, causing degradation. Id. at 5-6. Porter explained that during 

continued mining operations, conveyor motors for the continuous miner machines were especially 

subject to failure because of vibration, shock, water, and loading. Id. at 8. He also testified that 

typical failures create the likelihood of an arc or spark. Id. at 5-6. 

Turning to Citation No. 8170363 – an opening in excess of .004” in the trailing cable 

junction box on the continuous miner on the 005 MMU – Inspector Hess testified that the leads 

 12 Congress recognized the inherent dangers of mining and in particular the potentially 

catastrophic consequences of such violations when, after much debate, it extended the 

permissibility requirements of electrical equipment to both gassy and non-gassy underground coal 

mines. S. Rep. No. 91-411, at 25-35 (1969), reprinted in Senate Subcomm. on Labor, Comm. on 

Labor and Public Welfare, Part I Legislative History of the Federal Coal Mine Health and Safety 

Act of 1969, at 151-61 (1975); H. Conf. Rep. No. 91-761, at 83 (1969), reprinted in Legis. Hist. at 

1527. Congress acknowledged the need for these permissibility requirements for electrical 

equipment to control face ignitions and explosions by “preventing the emission of a spark or arc 

which could cause a mine fire or explosion.” S. Rep. No. 91-411, at 68-69 (1969), reprinted in 

Legis. Hist. at 194-95; see also Sewell Coal Co., 3 FMSHRC 1402, 1405-06 (June 1981) 

(discussing legislative history of permissibility provisions of the Mine Act). Sections 305 and 

318(i), 30 U.S.C. § 865 and 878(i), which address permissibility requirements for electrical 

equipment, remain unchanged from the 1969 Coal Act to the present time. 

36 FMSHRC Page 1134
were bolted together in such a way that those connections could become loose, resulting in 

increased current draw heating the wiring, melting insulation, and allowing a short circuit and 

spark or arc to ignite methane. Id. at 55; Tr. 1287-88. In addition to the evidence of face 

ignitions, the inspector testified that in the past, methane readings in the explosive range had been 

detected at the face. ALJ Dec. at 55; Tr. 1290-91. 

With regard to Citation No. 8170375 – an opening in excess of .004” in the conveyor motor 

cover on the continuous miner on the 005 MMU – Inspector Hess testified that the equipment was 

used in the prior shift, and was to be used on the next shift. ALJ Dec. at 56; Tr. 1318-19. The 

inspector also testified that the motor cover was within ten feet of the face where methane is 

liberated during the mining process and also close to the mine floor, which also liberates methane. 

Tr. 1319-20, 1327. He explained that methane liberated from the mine floor could enter the 

motor compartment at an explosive level before traveling to the other side of the machine and 

being detected by the methane monitor. ALJ Dec. at 56; Tr. 1327-28. Inspector Hess further 

testified that although he did not open the conveyor motor cover, a photograph taken by Knox 

Creek after the MSHA inspection showed wear and an absence of insulation on one of the 

connection points where a power lead connects to the machine. ALJ Dec. at 56; Tr. 1321-24; G. 

Ex. 80. Hess testified that the wearing could lead to arcing within the motor during normal 

continuous mining operations. Tr. 1324.

Regarding Citation No. 8169155 – an opening in excess of .004” in the plane flange joint of 

the lead junction box on the continuous mining machine on the 003 MMU – the evidence indicates 

that, while the equipment was not in use at the time of the inspection because it was a maintenance 

shift, it was used on the prior shift, and the operator planned to use it on the next shift, which was a 

production shift. ALJ Dec. at 54; Tr. 1263-64. Inspector Colley testified that rust and corrosion 

showed that there was moisture inside the box. Tr. 1269-70. He said this is highly dangerous 

around electrical connections because it could wear away the protective tape covering the cables 

and lead to a spark or arcing, triggering an explosion. Tr. 1269-72. The inspector also testified 

that the electrical connections could come loose due to the moisture, causing a similar problem. 

Tr. 1272. 

As is relevant with each of the permissibility violations, the mine was subject to section 

103(i) spot inspections due to excessive liberation of methane, and the record establishes that this 

mine previously experienced face ignitions. ALJ Dec. at 60; Tr. 1239, 1242, 1271-72, 1288, 

1290-91, 1320. Significantly, for each violation, the Judge concluded that the Secretary had 

proved that an accumulation of methane in the explosive range was reasonably likely and that the 

gap would permit an ignition within the equipment to enter the mine atmosphere. ALJ Dec. at 

61-63.13 

 Knox Creek’s witnesses testified that the wires at issue (located inside of the equipment) 

were covered with tape and/or sleeves and adequately insulated (id. at 54-56; Tr. 1457-59, 1473, 

 13 As the Judge explained in his decision, the explosive range of methane is 5 – 15%. 

ALJ Dec. at 59. 

36 FMSHRC Page 1135
1476-77, 1494), and as the inspectors admitted at trial, at the time of the inspection, no defects or 

elevated methane levels were found (Tr. 1274-75, 1278, 1299, 1304). However, Knox Creek did 

not refute the Secretary’s witnesses’ testimony regarding the potential dangers posed by the 

violative conditions. Moreover, the Judge specifically discounted the prophylactic effect of the O 

rings relied on to secure the enclosures, stating that even if the rings were in perfect condition, he 

could not find that they would have prevented methane from entering the enclosures or prevented 

flames from escaping. ALJ Dec. at 59. The Judge credited the testimony of MSHA’s expert 

Kenneth Porter that the rings were designed to keep out moisture, not gas and flames, and that the 

rings would deteriorate over time. Id.; Tr. 1340-42, 1361. 

In prior cases, the Commission has upheld S&S determinations for permissibility 

violations in analogous circumstances. For example, in U.S. Steel Mining Co., Inc., 6 FMSHRC 

1866 (Aug. 1984), the Commission upheld an S&S finding for a permissibility violation involving 

headlights, even though at the time of the violation there appeared to be adequate ventilation in the 

mine, and mining was not taking place at the precise moment the citation was issued. Id. at 1869. 

The mine at issue was classified as gassy and had a history of methane ignitions. The 

Commission held that substantial evidence supported the judge’s conclusion that sparking occurs 

within the equipment. This was based on the testimony of the inspector, who stated that although 

sparking with headlights is not “normal,” it is “frequent” and can be caused by a number of factors. 

Id. at 1868. 

Similarly, in U.S. Steel Mining Co., Inc., 8 FMSHRC 1284 (Sept. 1986), the Commission 

affirmed the judge’s S&S findings regarding a permissibility violation involving electric face 

equipment. The inspector had observed a bolt missing on the cover plate of the control 

compartment of a shuttle car. The control plate was designed to keep an ignition confined and the 

missing bolt could permit methane to enter the control compartment, causing an ignition. Id. at 

1289-90. This mine liberated more than one million cubic feet of methane in a twenty-four hour 

period, and there had been a methane ignition there in the year preceding the hearing. The 

Commission concluded that this was sufficient to uphold the S&S designation. 

We must assume, in the absence of contrary evidence, that these three pieces of equipment 

would be used in coal production during the continuation of normal mining operations beginning 

on the next shift. We conclude that the operator’s evidence does not rebut the Secretary’s 

showing that deteriorating conditions were reasonably likely to create an ignition hazard in a gassy 

mine. As stated by Kenneth Porter in his report, the whole purpose of the permissibility 

requirements is to ensure that all electrical circuits which are inby the last open crosscut of an 

underground coal mine shall be maintained in enclosures which are “explosion-proof.” G. Ex. 4 

at 2. The record as a whole compels the conclusion that these permissibility violations 

36 FMSHRC Page 1136
significantly and substantially contributed to the hazard of a methane ignition or explosion, which 

would reasonably likely result in serious injury to miners.14 Accordingly, we reverse the Judge’s 

S&S findings. 

B. Trailing Cable Violation (30 C.F.R. § 75.517)

On November 20, 2009, Inspector Colley issued Citation No. 8169156, alleging an S&S 

violation of 30 C.F.R. § 75.517,15 which requires that power wires and cables be adequately 

insulated and fully protected. The citation alleged that the trailing cable of a continuous mining 

machine had a one-half inch opening in the cable, exposing the insulated power conductors. ALJ 

Dec. at 79-80; G. Ex. 97. The conductors were covered by shielding and the opening was located 

ten feet from the machine. The citation also states that the mine floor in this section where the 

continuous miner was located was wet and that the cable was handled by miners during the course 

of each shift. ALJ Dec. at 79-80; G. Ex. 97. 

The Judge found that the Secretary established the first, second, and fourth Mathies

elements. However, he found that the violation was not S&S because the evidence did not 

support the conclusion that miners were exposed to the hazard before the inspection or that there 

was a reasonable likelihood that miners would be exposed to an injury-causing hazardous event 

when mining resumed. With respect to the third Mathies element, the Judge found no miners 

were exposed to the hazard and miners would not have been reasonably likely to be exposed to a shock 

hazard because, as a result of ongoing repair work, the opening in the cable would have been found 

and repaired before the equipment was put back into service. Id. at 81. 

14 Substantial evidence supports the Judge’s other S&S findings as to these permissibility 

violations. The parties stipulated to the violations (ALJ Dec. at 56; Jt. Ex. 1, Stip. 16), and the 

Judge specifically found that an ignition or explosion within the housing compartments could 

result in a serious burn to the equipment operators or to those operating equipment immediately 

behind. ALJ Dec. at 59; see Black Diamond Coal Mining Co., 7 FMSHRC 1117, 1120 (Aug. 

1985) (recognizing that “ignitions and explosions are major causes of death and injury to miners”). 

The parties did not dispute these facts below or the Judge’s findings on appeal. 

15 Section 75.517 states that “power wires and cables, except trolley wires, trolley feeder 

wires, and bare signal wires, shall be insulated adequately and fully protected.” 30 C.F.R. 

§ 75.517.

36 FMSHRC Page 1137
We conclude that substantial evidence supports the Judge’s conclusion that there was not a 

reasonable likelihood that the condition of the cable would have caused a shock hazard to a miner 

under the specific circumstances of this case.16 Two witnesses testified with respect to this 

citation – Inspector Colley and Mark White, Knox Creek’s maintenance foreman. Inspector 

Colley testified that the machine was being repaired. Tr. 1712, 1717. He further testified that 

the conductors within the cable were shielded and that he did not find any defects in the shielding. 

Tr. 1708-09, 1722-23. He conceded that the shielding would have insulated the cable during the 

course of the repairs unless an accident occurred. Tr. 1724. In addition to acknowledging the 

machine was undergoing repairs, Inspector Colley testified that such repairs would be completed 

in accord with a Knox Creek action plan (Tr. 1719-20) and acknowledged that the cut was obvious 

and easy to find. Tr. 1717. He did not present any testimony that the cut existed in the cable 

while the machine was in use for mining. 

Mark White, the Knox Creek maintenance foreman, testified that the machine had been 

down for repairs for the two prior days and that the interior conductors were properly insulated. 

White testified that the machine was locked out. Tr. 1453, 1925, 1931. He also provided details 

regarding the repair action plan acknowledged by Inspector Colley but about which the inspector 

did not provide detailed information. White testified that the machine would have been inspected 

with the power off prior to being put back into service. This inspection would include running a 

hand down the entire length of the cable to look for gashes or cuts. Tr. 1927-28. He testified that 

the cut was obvious, and that the cut would have been found and fixed during that part of the action 

plan repair process. 

Based upon this evidence, the Judge found that the machine had been unused with its 

power off for two days before the citation was issued. Therefore, there was no way of knowing 

whether the opening in the cable occurred before the cable was last moved. ALJ Dec. at 81. 

The Judge further found that both the inspector and operator witness testified that before the 

machine would have been returned to service, the cable would have been inspected according to 

the Knox Creek action plan. Thus, the Judge found that because the machine was being repaired at 

the time of the inspection according to that action plan, the obvious cut would have been noticed 

and corrected before the machine was returned to service. According to the Judge, the opening 

would have been found and repaired so that no miner would have been exposed to the cut when 

mining continued. Id.

16 The parties dispute whether the equipment was energized, thereby potentially exposing 

miners to the hazard. The Secretary relies on the inspector’s testimony that, when he first 

observed the continuous mining machine, it was energized while miners were working on it 

(“putting power in, taking power out, and repositioning the machine to make repairs to the part”). 

S. Reply Br. at 14-15 (citing Tr. 1171). Knox Creek’s maintenance foreman Mark White testified 

that although the machine was energized, it was only energized as a courtesy for the inspector. 

ALJ Dec. at 80; Tr. 1923-24. The Judge’s finding that no miners were exposed or would have 

been exposed to the hazard is consistent with White’s testimony. 

36 FMSHRC Page 1138
Our finding that substantial evidence supports the Judge with respect to this violation 

contrasts with our resolution of the citation for accumulation of combustible materials discussed 

immediately below. The trailing cable violation involved circumstances where the machine was 

shut down and was already undergoing active repairs. Unlike the cases cited in the dissent, 

remedial efforts were already underway when the inspector arrived. We also disagree with our 

dissenting colleagues that a cut that went halfway around the circumference of the cable, and in a 

part of the cable that was, in their words “handled frequently by miners,” would nevertheless not 

be repaired during the ongoing repairs and that the cable would be permitted to deteriorate over 

time.17 Slip op. at 16. 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 Judge’s finding that that the Secretary did not carry his burden of 

proof. 

Accordingly, we affirm the Judge’s conclusion that Citation No. 8169156 is not S&S. 

C. Accumulation Violation (30 C.F.R. § 75.400) 

On November 9, 2009, Inspector Hess issued Citation No. 8170394, alleging an S&S 

violation of 30 C.F.R. § 75.400,18 due to accumulations of combustible material on the 1A 

conveyor belt. ALJ Dec. at 95-96; G. Ex. 114. The belt was turning in the accumulations, which 

were dry. Id.; Tr. 2000-034, 2007. Although a pre-shift report indicated that the belt needed 

cleaning, when the inspection took place at the start of the next oncoming production shift, no 

cleaning had begun. ALJ Dec. at 96; G. Ex. 114. 

The citation states that accumulations of combustible material consisting of coal fines, 

float coal dust, and coal were present on and around the 1A conveyor belt. The citation 

specifically charged that: (1) accumulations were four inches to eight inches deep for the width of 

the belt at the secondary scraper where the belt was running against the accumulations; (2) 

accumulations were in two piles, 10 inches and 12 inches deep under the belt’s rollers, where the 

rollers and belt were turning in the accumulations; (3) accumulations were up to 12 inches deep 

and were stacked on the frame and metal braces of the belt structure; (4) accumulations were four 

17 The dissent candidly concedes away its position by acknowledging that it would not 

find S&S if the repairmen had made a written notation of the cut before the inspection occurred. 

Slip op. at 16. We do not find S&S to turn upon whether repairmen note every item needing 

repair before beginning repairs under a specific and orderly plan. 

18 Section 75.400 provides: “Coal dust, including float coal dust deposited on 

rock-dusted surfaces, loose coal, and other combustible materials, shall be cleaned up and not be 

permitted to accumulate in active workings, or on diesel-powered and electric equipment therein.” 

30 C.F.R. § 75.400. 

36 FMSHRC Page 1139
inches to six inches deep and extended the width of the belt under the take up roller where the belt 

was turning in the accumulations; and (5) other parts of the metal frame and the belt drive were 

covered with float coal dust. ALJ Dec. at 95-96; G. Ex. 114. 

The parties stipulated to the violation. ALJ Dec. at 97. The Judge found that the 

Secretary had established the first, second, and fourth Mathies elements. As to the second 

element, the Judge found that the violation contributed to the hazard of a potential explosion – the 

belt rollers were turning in accumulations and the friction points were potential ignition sources. 

Id. As to the fourth element, the Judge found that if an ignition occurred, two miners working 

downwind would have suffered from smoke inhalation and possible asphyxiation. Id. However, 

the Judge found that the violation was not S&S because there had been no coal production, and 

thus no ignition sources, on November 7 and 8, the two days prior to the inspection. Id. at 98. At 

the time of the inspection, the accumulations had been reported in the pre-shift report and miners 

were on their way to clean them up. The Judge reasoned that as mining continued, the 

accumulations would have been cleaned up very shortly. Id. 

Considering the evidence based on the continuation of normal mining conditions, we 

conclude that substantial evidence does not support the Judge’s conclusion that the Secretary 

failed to establish the third Mathies element. The Judge credited the inspector’s testimony as to 

the conditions of the accumulations. ALJ Dec. at 97. At the time of the inspection, the belt was 

on, and coal was turning in the rollers. The Judge found that these friction points were potential 

ignition sources. Id. at 97-98. The inspector testified that the accumulations were significant 

and that it took three miners 40 to 45 minutes to clean up the accumulations. Id. at 96. 

We agree with the Secretary that the Judge erred in assuming that the accumulations would 

have been abated when determining whether the violation was S&S.19 The Commission has 

emphasized that the proper approach is to assume the continuation of normal mining conditions. 

U.S. Steel, 6 FMSHRC at 1574; U.S. Steel, 7 FMSHRC at 1130. While the Judge accepted the 

operator’s argument that abatement had begun because miners had been assigned to clean the 

accumulations, there were no miners actually working to remove the accumulations when the 

inspector noted the violation. There was no order directing that production not resume until the 

accumulations were resolved and no evidence that miners had made any efforts to abate the 

violation during the preceding maintenance shift. 

19 The Judge also erred in failing to account for the entire relevant period in his S&S 

analysis. While the judge found that there was no coal production on November 7 or 8, the fact is 

that the accumulations must have occurred during production. If rollers were turning in coal on 

November 9 despite no production for two days, that simply means that at some point on a 

production shift prior to November 7, the coal accumulations reached the dangerous condition 

Inspector Hess found during his inspection. See Bellefonte Lime Co., 20 FMSHRC 1250, 1255 

(Nov. 1998) (error in failure to consider existence of violation prior to issuance of citation). 

Because we reverse on other grounds, we do not need to remand for consideration of this time 

period by the Judge. 

36 FMSHRC Page 1140
Knox Creek’s argument that the violation was not S&S because a cleanup was underway 

therefore has no merit.20 Knox Creek contends that at the start of the oncoming production shift, 

when the citation was issued, miners were assigned to clean the accumulations and were in fact on 

their way when the inspector issued the citation. The Commission has expressly rejected the 

argument that “accumulations of combustible materials may be tolerated for a ‘reasonable time.’” 

Old Ben Coal Co., 1 FMSHRC 1954, 1957–58 (Dec. 1979); see also Utah Power & Light Co., 12 

FMSHRC 965, 968 (May 1990) (section 75.400 “was directed at preventing accumulations in the 

first instance, not at cleaning up the materials within a reasonable period of time after they have 

accumulated”) (citations omitted), aff’d, 951 F.2d 292 (10th Cir. 1991); Black Beauty Coal Co. v. 

FMSHRC, 703 F.3d 553, 558-59 (D.C. Cir. 2012). 

The Judge thus erred in concluding that the condition was being actively abated. See U.S. 

Steel Mining Co., 6 FMSHRC 1834, 1838 n.4 (Aug. 1984) (“relying on [the] skill and 

attentiveness of miners to prevent injury ‘ignores the inherent vagaries of human behavior”’). 

Similarly, we cannot assume that miners assigned to a task would have completed the clean-up 

prior to production resuming, without the presence of the inspector to ensure that the abatement 

was timely and satisfactorily completed. 

The Judge found that miners working in the shop area downwind from the accumulations 

would have been affected if a belt fire resulted, suffering from serious smoke inhalation or even 

death by asphyxiation. ALJ Dec. at 97. Accordingly, substantial evidence supports the 

conclusion that the hazard of a mine fire would be reasonably likely to result in serious injury in 

this case. Based on the foregoing, we conclude that the record compels the conclusion that this 

violation was S&S. See American Mine Servs., 15 FMSHRC at 1834. 

20 This fact would have been relevant if MSHA had alleged an “unwarrantable failure” to 

comply with mandatory health or safety standards under section 104(d)(1) of the Mine Act, 

because it relates to the operator’s negligence. 

36 FMSHRC Page 1141
III. 

Conclusion

For the foregoing reasons, we reverse and vacate the Judge’s decision that Citation Nos. 

8169155, 8170363, 8170375, and 8170394 did not involve S&S violations, and remand for 

reassessment of the penalties. As to Citation No. 8169156, we affirm the Judge’s decision that 

the violation is not S&S. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner 

36 FMSHRC Page 1142
Commissioners Young and Cohen, concurring in part and dissenting in part: 

 We join our colleagues in sections A and C of the majority opinion and the decision to 

reverse the Judge’s findings that the permissibility and coal accumulations violations were not 

S&S. However, we respectfully disagree with their opinion on the trailing cable violation 

addressed in section B. We believe that the Judge erred by assuming that the violative condition 

would have been detected and corrected before the equipment was returned to use. We thus 

conclude that the record compels the conclusion that the trailing cable violation was S&S. 

It is undisputed that the trailing cable of the continuous mining machine had a 

one-half-inch-wide opening running three inches around the six-inch circumference of the cable, 

exposing the inner insulated leads. ALJ Dec. at 80; Tr. 1709. The opening was located ten feet 

from the machine, and the cable would be handled frequently by miners during use. ALJ Dec. at 

80; Tr. 1709, 1711-12. Due to wet conditions of the mine floor, the opening in the outer covering 

of the cable would have permitted water to penetrate and deteriorate the inner shielding tape 

around the conductors and lead to rust and corrosion, causing the possibility of electrical shock and 

also creating an ignition hazard. ALJ Dec. at 80; Tr. 1710-15. 

We agree with the Secretary that the Judge erred in concluding that the violation was not 

S&S because the Judge assumed that the operator would have detected and corrected the cut in the 

trailing cable before returning the continuous miner back to service. This is contrary to 

Commission case law establishing that S&S determinations must be made without any 

assumptions as to abatement. See Consolidation Coal Co., 35 FMSHRC 2326, 2337 (Aug. 2013) 

(rejecting operator’s argument that violative condition would have been detected in next 

equipment inspection); Jim Walter Res., Inc., 28 FMSHRC 579, 604 (Aug. 2006) (holding that it is 

“improper to rely on later circumstances to find that the violation was not S&S”); U.S. Steel, 6 

FMSHRC 1573, 1574 (July 1984) (rejecting the mine operator’s argument that a significant and 

substantial violation should be determined based solely on the condition as it exists at the precise 

moment of inspection); Crimson Stone v. FMSHRC, 198 Fed. Appx. 846, 851 (11th Cir. 2006) 

(“[a]ny assumptions about how and when [the equipment] would have been repaired do not alter 

the significant and substantial nature of the violation”). 

The parties dispute whether the equipment was energized, thereby potentially exposing 

miners to the hazard. However, even if substantial evidence supported the Judge’s finding that 

the equipment was not energized at the time the citation was issued, the Judge erred in assuming 

that the condition would have been corrected before being put back into service and in concluding 

that no miners would have been exposed prospectively to the hazardous condition under continued 

normal mining conditions. See U.S. Steel Mining Co., 6 FMSHRC 1834, 1838 & n.4 (Aug. 1984) 

(in concluding that injury was reasonably likely to result from operator’s violation, the 

Commission explained that “relying on [the] skill and attentiveness of miners to prevent injury 

‘ignores the inherent vagaries of human behavior’”) (quoting Great W. Elec. Co., 5 FMSHRC 840, 

842 (May 1983)); see also Eagle Nest, Inc., 14 FMSHRC 1119, 1123 (July 1992) (a miner’s 

exercise of caution is not a factor in considering whether violation is S&S). Having already found 

that the violation contributed to a serious hazard posing a risk of serious injury, the Judge should 

have concluded that the Secretary had established the third Mathies element. 

36 FMSHRC Page 1143
The majority assumes that the cut in the cable would have been detected in the examination 

to be performed on the equipment before it was returned to service. Slip op. at 10-11. However, 

such assumption fails to acknowledge that human error could fail to observe the cut or that the 

operator could fail to correct the condition even if it were detected before being put back into 

operation. That is precisely why the Commission has rejected such explanations and arguments 

by operators in past cases. See supra. 

Critically, there is no evidence in the record that the operator was aware of this violative 

condition prior to MSHA’s inspection. While the continuous mining machine was down for 

repairs, there is no evidence that the cut in the cable was expressly cited as one of the repairs the 

operator was to perform on the continuous miner. We concede that circumstances would be 

different if the violative condition was tagged or otherwise identified as an item needing repair at 

the time the machine was being worked on.1

 But absent MSHA’s inspection and citation, the 

machine might have been put back in operation without correcting the defect, exposing miners to 

the hazardous condition of shock or electrocution or allowing the condition to be a potential 

ignition source during production. 

The assumptions made by the majority are therefore in direct contravention of Commission 

precedent requiring the consideration of continued normal mining conditions and without reliance 

on human intervention. See Consolidation Coal Co., 35 FMSHRC at 2337 (“all violations could 

be defended against as to whether they are S&S by maintaining that they would have been 

recognized in the next pre-shift examination”); U.S. Steel, 6 FMSHRC at 1574; U.S. Steel Mining 

Co., 6 FMSHRC at 1838 & n.4. We must disagree that substantial evidence supports the Judge’s 

conclusion that the Secretary failed to establish the third Mathies element because that conclusion 

rests on a misapprehension of the law. 

As the Judge found, the violation posed a discrete safety hazard – insulation on the inner 

phase conductors could have worn away or deteriorated from moisture so that a miner could have 

been seriously shocked or electrocuted. ALJ Dec. at 80. Inspector Colley testified that during 

the course of the shift, the cable had to be moved as the continuous mining machine made its cuts; 

the machine was to be put back into production on the next shift. Id. at 80; Tr. 1711-12, 1719. 

Inspector Colley also testified to the potential danger of electric shock because the insulation on 

the inner cable could deteriorate through normal use, handling and exposure to water, thereby 

creating a danger to miners operating the equipment and handling the cable. ALJ Dec. at 80; Tr. 

1713-14. 

 

 1

 In that case, abatement would not be assumed but would actually be underway.

36 FMSHRC Page 1144
Thus, the record compels the conclusion that the hazard would reasonably likely result in 

an injury. Accordingly, we would conclude that the violation was S&S and would reverse the 

Judge’s finding. See American Mine Servs., Inc., 15 FMSHRC 1830, 1834 (Sept. 1993).

/s/ Michael G. Young

Michael G. Young, Commissioner 

/s/ Robert F. Cohen

Robert F. Cohen, Jr., Commissioner 

36 FMSHRC Page 1145
 

APPENDIX 

VA 2010-81-R 

VA 2010-82-R 

VA 2010-83-R 

VA 2010-84-R 

VA 2010-85-R 

VA 2010-86-R 

VA 2010-87-R 

VA 2010-88-R 

VA 2010-89-R 

VA 2010-90-R 

VA 2010-91-R 

VA 2010-92-R 

VA 2010-93-R 

VA 2010-94-R 

VA 2010-95-R 

VA 2010-96-R 

VA 2010-97-R 

VA 2010-98-R 

VA 2010-99-R 

VA 2010-100-R 

VA 2010-101-R 

VA 2010-102-R* 

VA 2010-103-R 

VA 2010-104-R 

VA 2010-105-R 

VA 2010-106-R 

VA 2010-107-R 

VA 2010-108-R 

VA 2010-109-R 

VA 2010-110-R 

VA 2010-111-R 

VA 2010-112-R 

VA 2010-113-R 

VA 2010-130-R* 

VA 2010-131-R 

VA 2010-132-R 

VA 2010-133-R 

VA 2010-166 

VA 2010-214 

*The Judge’s December 27, 2010 decision inadvertently omitted from the case caption 

36 FMSHRC Page 1146
Docket Nos. VA 2010-102-R and VA 2010-130-R. We hereby amend the case caption to include 

Docket Nos. VA 2010-102-R and VA 2010-130-R. 

Docket No. VA 2010-102-R involves Order No. 8170395, a non-assessable section 104(b) 

withdrawal order related to Citation No. 8170387, which is the subject of contest proceeding 

Docket No. VA 2010-103-R and penalty proceeding Docket No. VA 2010-166. Both violations 

were contested by the operator and the underlying Citation No. 8170387 was ultimately settled by 

the parties. ALJ Dec. at 104-05. 

Docket No. VA 2010-130-R involves Citation No. 8169132 and is related to penalty 

proceeding Docket No. VA 2010-166. The parties likewise settled this citation. Id. at 102; Tr. 

67-68.

 

36 FMSHRC Page 1147
Distribution: 

Alexander Macia, Esq. 

Spilman, Thomas & Battle, PLLC 

300 Kanawha Blvd. East 

P.O. Box 273 

Charleston, WV 25321 

amacia@spilmanlaw.com

W. Christian Schumann, Esq. Office 

of the Solicitor 

U.S. Department of Labor 1100 

Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Melanie Garris 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Administrative Law Judges David F. Barbour 

Federal Mine Safety & Health Review Commission 

Office of Administrative Law Judges 

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

Washington, D.C. 2004 

36 FMSHRC Page 1148

COMMISSION ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

May 2, 2014

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA) :

: Docket No. CENT 2013-409

v. : A.C. No. 41-04085-311359

:

LUMINANT MINING COMPANY, LLC :

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

ORDER

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

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

§ 801 et seq. (2012) (“Mine Act”). On April 18, 2013, the Commission received from Luminant

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

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

§ 815(a).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(Sept. 1995).

36 FMSHRC Page 1149
1

 The dissent has correctly noted that we have held that inadequate or unreliable internal

processing systems do not constitute excusable neglect. While Luminant is making its fifth

motion to reopen in the past five years, that amounts to one motion per year for a large operator. 

We cannot determine, on this basis alone, that Luminant’s procedures are inadequate. However,

its motions have provided the bare minimum by way of explanation. It is not too much to expect

that a sophisticated operator will provide safeguards to ensure penalties are timely contested, and

subsequent failures to do so, unless more adequately explained, may be viewed as an inexcusable

pattern of neglect.

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

(“MSHA”) indicate that the proposed assessment was delivered on January 16, 2013, and

became a final order of the Commission on February 15, 2013. MSHA mailed a delinquency

notice on April 2, 2013. Luminant asserts that its administrative assistant was on vacation and

inadvertently overlooked the assessment upon her return. The Secretary does not oppose the

request to reopen and urges the operator to adopt procedures to ensure that the absence of

administrative personnel will have no effect on filing timely penalty contests.1 

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

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

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

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

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

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

/s/ Michael G. Young 

Michael G. Young, Commissioner

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner

/s/ William I. Althen 

William I. Althen, Commissioner

36 FMSHRC Page 1150
2

 On September 2, 2008, the Commission received a motion to reopen a penalty

proceeding from Luminant that stated that “due to the inadvertence and mistake by Company

personnel, the proposed assessment form . . . was not processed in a timely manner by its

personnel.” 31 FMSHRC 58; Mot. at 1. On December 22, 2008, the Commission received a

motion from Luminant that stated that “as a result of [an] internal miscommunication, it failed to

timely request a hearing on the penalty and that such inadvertence or mistake constitutes good

cause to reopen the penalty proceeding.” 31 FMSHRC 1026; Mot. at 2-3. On December 10,

2010, the Commission received a motion from Luminant that states that “[through the

inadvertence or mistake of a new employee] it failed to timely request a hearing on the penalty

and that such inadvertence or mistake constitutes good cause to reopen the penalty proceeding.” 

33 FMSHRC 1041; Mot. at 2. On July 15, 2011, the Commission received a motion that stated

that Luminant failed to timely contest a proposed assessment because it did not realize that

citations and orders that arose from an investigation were assessed in two different proposed

assessment forms. 33 FMSHRC 2135; Mot. at 2. 

Commissioner Cohen, dissenting: 

I dissent from my colleagues because I believe that Luminant Mining has not established

good cause to reopen the subject civil penalty case.

As grounds to reopen the proceeding, Luminant states that an administrative assistant 

inadvertently overlooked the proposed assessment because it arrived at their office on a day

when she was on vacation. Mot. at 1. The operator’s motion provides no details of the

assistant’s absence, such as the dates she was out of the office. The operator does not describe

any office procedures in place to accommodate staff absences. Moreover, no affidavit

accompanied the motion to verify the facts alleged. 

Luminant’s lack of diligence in handling this proposed assessment is not an isolated

incident, but rather it seems to be part of a pattern of behavior. Its April 2013 motion was the

fifth motion to reopen a penalty proceeding that it has filed in a five year period. See Luminant

Mining Co., LLC, 33 FMSHRC 2135 (Sept. 2011); 33 FMSHRC 1041 (May 2011); 31 FMSHRC

1026 (Sept. 2009); 31 FMSHRC 58 (Jan. 2009). In each of the five motions, the operator alleges

that due to the inadvertence of its personnel it failed to timely contest a proposed penalty

assessment.

2 

The Commission has made it clear that where a failure to contest a proposed assessment

results from an inadequate or unreliable internal processing system, the operator has not

established grounds for reopening the assessment. Shelter Creek Capital, LLC, 34 FMSHRC

3053, 3054 (Dec. 2012); Oak Grove Res., LLC, 33 FMSHRC 103, 104 (Feb. 2011); Double

Bonus Coal Co., 32 FMSHRC 1155, 1156 (Sept. 2010); Highland Mining Co., 31 FMSHRC

1313, 1315 (Nov. 2009); Pinnacle Mining Co., 30 FMSHRC 1066, 1067 (Dec. 2008); Pinnacle

Mining Co., 30 FMSHRC 1061, 1062 (Dec. 2008). In examining the operator’s asserted

justifications for reopening a particular case, the Commission has also explored whether the

36 FMSHRC Page 1151
operator has demonstrated a pattern of behaviors that are attributable to inadequate or unreliable

internal processing systems in other cases. See Oak Grove Res., LLC, 33 FMSHRC 2378, 2379-

80 (Oct. 2011).

I find Luminant’s conclusory contention of inadvertence or mistake to be insufficient and

that the operator has not established good cause to reopen the proceeding. Moreover, I conclude

that based on Luminant’s own submissions, it has demonstrated a pattern of document

mismanagement which results from an inadequate or unreliable internal processing system. 

Luminant is a large operator which should have the resources to adequately process mail in the

absence of a single employee.

Therefore, I would deny its motion to reopen.

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner

36 FMSHRC Page 1152
Distribution:

Karen L. Johnston, Esq.

Jackson Kelly PLLC

1099 18th Street, Suite 2150

Denver, CO 80202

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20004-1710

36 FMSHRC Page 1153
1

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

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

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

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

2

 In its response, Wagstaff also requested to be awarded attorneys’ fees under the Equal

Access to Justice Act, 5 U.S.C. § 504(a)(1). This matter falls outside the scope of our review of

Wagstaff’s motion to reopen, and we thus do not reach it. See Tide Creek Rock, Inc., 24

FMSHRC 428, 429 n.1 (May 2002). If the operator wishes to apply for attorneys’ fees in

conformity with the procedural and substantive requirements of the Equal Access to Justice Act,

it may do so before the Administrative Law Judge. 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

May 2, 2014

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA) :

: Docket No. WEST 2013-619-M

v. : A.C. No. 42-01665-298804 B108

:

HR WAGSTAFF COMPANY, INC. :

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

ORDER

BY THE COMMISSION: 

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

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

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

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

30 U.S.C. § 815(a).1

Wagstaff asserts that it never received the proposed assessment or delinquency notice

because they were not mailed to Wagstaff’s address of record in Utah. Wagstaff submits that its

Contractor ID Form was updated in 2001 with the Utah address, and that it had never been

associated with the Colorado address.2

 The Secretary notified the Commission that he has

discovered an error in the posting of the Contractor ID and wishes to withdraw his opposition to

the motion to reopen. 

36 FMSHRC Page 1154
Having reviewed Wagstaff’s request and the Secretary’s response, we conclude that the

above-captioned assessment has not become a final order of the Commission because it was

never received by Wagstaff. Accordingly, we deny the request to reopen as moot and remand

this matter to the Chief Administrative Law Judge for further proceedings pursuant to the Mine

Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700. Accordingly, consistent with

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

this order. See 29 C.F.R. § 2700.28. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

/s/ Michael G. Young 

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner

/s/ William I. Althen 

William I. Althen, Commissioner

36 FMSHRC Page 1155
Distribution:

Florence M. Vincent, Esq.

HR Wagstaff Co., Inc.

36 South State St., Suite1900

Salt Lake City, UT 84111-1478

fvincent@vancott.com

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20004-1710

36 FMSHRC Page 1156
1

 Commissioner Althen was recused from this case.

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

May 02, 2014

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA) :

: Docket No. WEST 2013-946-M

v. : A.C. No. 26-02142-320267

:

NEVADA READY MIX CORP. :

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

ORDER

BY THE COMMISSION: 

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

§ 801 et seq. (2012) (“Mine Act”). On July 2, 2013, the Commission received from Nevada

Ready Mix Corp. (“Nevada”) a motion seeking to reopen a penalty assessment that had become

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

36 FMSHRC Page 1157
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530

(Sept. 1995).

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

(“MSHA”) indicate that the proposed assessment was delivered on May 7, 2013, and became a

final order of the Commission on June 6, 2013. Nevada asserts that an unknown person signed

for the assessment, and that it discovered the delinquency on June 18, 2013, after receiving a

different proposed assessment. The Secretary does not oppose the request to reopen and urges

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

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

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

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

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

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

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

/s/ Michael G. Young 

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner

36 FMSHRC Page 1158
Distriibution:

Gwendolyn K. Nightingale, Esq.

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

1909 K Street NW, Suite 1000

Washington, DC 20006

gwendolyn.nightingale@odnss.com

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. Of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20004-1710

36 FMSHRC Page 1159
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

May 5, 2014

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA) :

: Docket No. PENN 2013-298

v. : A.C. No. 36-07230-319909 N4A

:

FARNHAM & PFILE CONSTRUCTION, INC.:

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

ORDER

BY THE COMMISSION: 

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

§ 801 et seq. (2012) (“Mine Act”). On July 2, 2013, the Commission received from Farnham &

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

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

§ 815(a).

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(Sept. 1995).

36 FMSHRC Page 1160
Records of the Department of Labor’s Mine Safety and Health Administration

(“MSHA”) indicate that the proposed assessment was delivered on May 1, 2013, and became a

final order of the Commission on May 31, 2013. Farnham’s vice president asserts that due to his

filing error, he did not respond to the proposed assessment until June 27, 2013. The Secretary

does not oppose the request to reopen and urges the operator to take steps to ensure that future

penalty contests are timely filed. 

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

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

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

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

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

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

/s/ Michael G. Young 

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner

/s/ William I. Althen 

William I. Althen, Commissioner

36 FMSHRC Page 1161
Distribution:

Jackson Shoup, Vice Pres.

Farnham & Pfile Construction, Inc.

1200 Maronda Way, Suite 301

Monessen, PA 15062

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20004-1710

36 FMSHRC Page 1162
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

May 16, 2014

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA) :

: Docket No. CENT 2013-389-M

v. : A.C. No. 13-02138-312685

:

L & W QUARRIES, INC. :

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

ORDER

BY THE COMMISSION: 

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

§ 801 et seq. (2012) (“Mine Act”). On April 5, 2013, the Commission received from L & W

Quarries, Inc. (“L&W”) a motion seeking to reopen a penalty assessment that had become a final

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(Sept. 1995).

36 FMSHRC Page 1163
Records of the Department of Labor’s Mine Safety and Health Administration

(“MSHA”) indicate that the proposed assessment became a final order of the Commission on

March 6, 2013. L&W asserts that it mistakenly believed that it did not need to forward the

proposed assessment to its counsel because it had previously contested the underlying citations. 

L&W’s counsel discovered the delinquency on March 27, 2013, after reviewing the MSHA data

retrieval system. L&W states that it has modified its office procedures to contact counsel upon

receipt of MSHA documents. The Secretary does not oppose the request to reopen. 

We hereby reopen Order No. 8737420. However, with respect to Citation Nos. 8737422

and 8737425, L&W’s motion does not establish that its failure to contest the civil penalties

assessed for these two citations arose from mistake, inadvertence, or excusable neglect.

In its motion, L&W asserts that it asked counsel to file notices of contest for the order

and two citations at issue. Mot. at 1. A notice of contest for Order No. 8737420 was timely

filed. See Attachment 1. L&W states that it mistakenly believed that it was not required to

subsequently forward the proposed assessment form to counsel, because it had asked its counsel

to file the appropriate notices of contest. Mot. at 2. Conspicuously absent from L&W’s request

to reopen is any documentation which establishes that notices of contests for Citation No.

8737422 or Citation No. 8737425 were filed.

While there is no precise formula for evaluating an operator’s request for reopening, “we

consider the entire range of factors relevant to determining mistake, inadvertence, surprise,

excusable neglect, or other good faith reason for reopening.” Lone Mountain Processing, Inc.,

35 FMSHRC 3342, 3345 (Nov. 2013).

L&W demonstrated some intent to contest the civil penalty assessed for Order 

No. 8737420 when it filed a notice of contest. It appears that its failure to forward the proposed

assessment to counsel was the result of mistake, inadvertence or excusable neglect. Moreover,

L&W promptly sought reopening of the order when it learned of its default. Therefore, it is

appropriate to reopen Order No. 8737420 for further proceedings. 

Based on the record before the Commission, we cannot conclude that L&W demonstrated

a similarly justifiable reason to reopen Citation Nos. 8737422 and 8737425. While L&W asserts

that it requested that its counsel file notices of contest for both citations, a request made to

counsel does not demonstrate sufficient intent to contest the civil penalty in the absence of

evidence that the citations were actually contested by counsel.

Accordingly, we hereby deny L&W’s request to reopen Citation Nos. 8737422 and

8737425. 

36 FMSHRC Page 1164
Having reviewed L&W’s request and the Secretary’s response, in the interest of justice,

we hereby reopen Order No. 8737420 and remand it to the Chief Administrative Law Judge for

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

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

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

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

s/ Michael G. Young, Commissioner 

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr., Commissioner 

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura, Commissioner 

Patrick K. Nakamura, Commissioner

/s/ William I. Althen, Commissioner 

William I. Althen, Commissioner

36 FMSHRC Page 1165
Distribution:

Diana Schroeher, Esq.

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

4740 Corridor Place, Suite D

Beltsville, MD 20705

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. Of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Chief Administrative Law Judge Robert J. Lesnick

Federal Mine Safety & Health Review Commission

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

Washington, D.C. 20004-1710

36 FMSHRC Page 1166
1

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

consolidate docket numbers WEST 2013-882-M and WEST 2014-525-M, both captioned Crater

Sand & Gravel, Inc., and involving similar procedural issues. 29 C.F.R. § 2700.12.

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, D.C. 20004-1710

May 16, 2014

SECRETARY OF LABOR, :

 MINE SAFETY AND HEALTH : Docket No. WEST 2013-882-M

 ADMINISTRATION (MSHA) : A.C. No. 35-00541-321284

:

v. : Docket No. WEST 2014-525-M

: A.C. No. 35-00541-332405

CRATER SAND & GRAVEL, INC. :

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

ORDER

BY THE COMMISSION: 

These matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 801 et seq. (2012) (“Mine Act”). On April 1, 2014, the Commission received from Crater

Sand & Gravel, Inc. (“Crater”) a motion seeking to reopen a penalty assessment proceeding and

relieve it from the Default Order entered against it, and reopen a penalty assessment that had

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

815(a).1

In Docket No. WEST 2013-882-M, Chief Administrative Law Judge Robert J. Lesnick

issued on September 16, 2013, an Order to Show Cause which by its terms became a Default

Order if the operator did not file an answer within 30 days. This Order to Show Cause was

issued in response to Crater’s perceived failure to answer the Secretary’s July 12, 2013 Petition

for Assessment of Civil Penalty. The Commission did not receive Crater’s answer within 30

days, so the default order became effective on October 17, 2013. 

The Judge’s jurisdiction in this matter terminated when the default occurred. 29 C.F.R. 

§ 2700.69(b). Under the Mine Act and the Commission’s procedural rules, relief from a judge’s

decision may be sought by filing a petition for discretionary review within 30 days of its

issuance. 30 U.S.C. § 823(d)(2)(A)(i); 29 C.F.R. § 2700.70(a). If the Commission does not

direct review within 40 days of a decision’s issuance, it becomes a final decision of the

36 FMSHRC Page 1167
Commission. 30 U.S.C. § 823(d)(1). Consequently, the Judge’s order here has become a final

decision of the Commission.

In Docket No. WEST 2014-525-M, records of the Department of Labor’s Mine Safety

and Health Administration (“MSHA”) indicate that the proposed assessment was delivered on

September 24, 2013, and became a final order of the Commission on October 24, 2013. MSHA

mailed a delinquency notice on December 9, 2013. 

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

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

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

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

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

reopen uncontested assessments that have become final Commission orders. Jim Walter Res.,

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

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

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

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

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

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

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

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

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

(Sept. 1995).

Crater asserts that it mailed a timely answer to the petition to MSHA, and encloses a

copy of a USPS receipt dated July 26, 2013. Crater further states that it contested all four

underlying citations issued during this inspection and has been responding to discovery requests

from MSHA. Crater also asserts that its bookkeeper was out of the office in October 2013,

which contributed to Crater’s confusion. The Secretary of Labor does not oppose the requests to

reopen and states that MSHA received a timely but misdated answer to the petition in Docket

No. WEST 2013-882-M, which was forwarded to the Commission on August 27, 2013. The

Secretary further states that MSHA received a letter from the operator dated January 26, 2014,

enclosing a copy of a checked proposed penalty contest form in Docket No. WEST 2014-525-M. 

The Secretary notes that it appears that the operator thought that all proposed assessments and

citations had been contested. 

36 FMSHRC Page 1168
Having reviewed Crater’s request and the Secretary’s response, in the interest of justice,

we hereby reopen these matters and vacate the Default Order in Docket No. WEST 2013-882-M. 

Accordingly, in Docket No. WEST 2014-525-M, consistent with Rule 28, the Secretary shall file

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

2700.28. Because Administrative Law Judge Richard Manning has the companion case, Docket

No. WEST 2013-881-M, we are remanding these matters to him for further proceedings pursuant

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

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

/s/ Michael G. Young 

Michael G. Young, Commissioner

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner

/s/ William I. Althen 

William I. Althen, Commissioner

36 FMSHRC Page 1169
Distribution:

Richard A. Stark

Stark & Hammack, P.C.

100 East Main St., Suite M

Medford, OR 97501

ras@starkhammack.com

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

1100 Wilson Blvd., Room 2220

Arlington, VA 22209-2296

Melanie Garris

Office of Civil Penalty Compliance

MSHA

U.S. Dept. Of Labor

1100 Wilson Blvd., 25th Floor

Arlington, VA 22209-3939

Administrative Law Judge Richard W. Manning

Federal Mine Safety & Health Review Commission

Office of Administrative Law Judges

721 19th Street, Suite 443

Denver, CO 80202-5268

36 FMSHRC Page 1170

ADMINISTRATIVE LAW JUDGE DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9933 / FAX: 202-434-9949 

 May 1, 2014 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), on behalf 

of JOSHUA D. BURKHART, 

Petitioner 

 v. 

PEABODY MIDWEST MINING, LLC, 

Respondent 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

TEMPORARY REINSTATEMENT 

PROCEEDING 

Docket No. LAKE 2014-342-D 

VINC-CD-20 14-01 

Mine ID: 12-02295 

Mine: Francisco Underground Pit 

ORDER ON TEMPORARY REINSTATEMENT

Appearances: Travis W. Gosselin, Esq., U.S. Department of Labor, Office ofthe Solicitor, 

Chicago, IL for Complainant 

Arthur M. Wolfson, Esq., Jackson Kelly PLLC, Pittsburgh, PA for Respondent 

Before:Judge Rae 

This case is before me upon an application for temporary reinstatement filed by the 

Secretary on behalf of the complainant under section 105(d) of the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 815(d) and 29 C.F.R. §2700.45. 

Statement of the Case 

On April 16, 2014, Respondent made a timely request for a hearing which was held on 

April29, 2014 in Evansville, Indiana. 

The parties submitted the following stipulations: 1) Peabody is an operator as defined in 

Section 3(d) of the Federal Mine Safety and Health Act of 1977 as amended (hereinafter ''the 

Mine Act"); 2) Operations of Peabody at the Francisco Underground Pit mine in or around 

Francisco, Indiana are subject to the jurisdiction of the Mine Act; 3) This proceeding is subject to 

the jurisdiction of the Federal Mine Safety and Health Review Commission and its designated 

Administrative Law Judge pursuant to Sections 105 and 113 of the Mine Act; and 4) Prior to his 

termination by Peabody, Joshua D. Burkhart was a "miner" as defined in Section 3(g) of the 

Mine Act. Ex. J-1. 

36 FMSHRC Page 1171
For the reasons set forth below, I find the complaint of discrimination was not frivolously 

brought and Burkhart is entitled to temporary reinstatement. 

Summary of Evidence 

Joshua Burkhart, previous to his recent termination, was employed by Peabody Midwest 

Mining at the Francisco mine as a ram car driver. He had been at the mine for approximately 3 

years and was assigned to the third shift which commenced at 11 p.m. at the time of the incident 

at issue. Ex. R-4. His normal assignment was as a coal hauler, or ram car driver. His immediate 

supervisor was the face boss, Jamie Mincey. The mine manager was Clint Underhill, however, 

on the night in question, Chris Falls was filling in for Underhill. !d. 

On the January 26-27 night shift, Burkhart was assisting another miner hanging cable 

overhead. Directly thereafter, he felt a burning pain in his right shoulder. He reported the injury 

to Mincey who in turn called out to Falls, informing him that Burkhart needed medical attention. 

Falls accompanied Burkhart to Gibson General Hospital, arriving at approximately 0410 hours. 

He was discharged that same morning at 0500 hours. The discharge summary indicates that he 

did not suffer a fracture or dislocation and it was recommended that he apply ice. He was given a 

sling for support of his right arm and was prescribed Norco and Norflex for pain and 

inflammation. The return to work portion of the discharge sheet indicates that he was restricted 

to limited duty for a few days. Ex. G-2. Burkhart testified that he was further told by the 

physician, in the presence of Falls, that he should not work underground. Tr. 21. 

Upon discharge, Burkhart was taken back to the mine where he clocked out and went 

home. A copy of the discharge paperwork was given to Mike Workman, the safety director. 

Burkhart took the Norco, which he stated was a generic of Lortab, later that morning as 

prescribed for pain. The restrictions attendant with the medications was to avoid driving and 

operating machinery. They made him feel dizzy and tired. Tr. 23, 43. By the time he reported for 

work on the night of the 27th he had taken three doses of the pain medication, the last one being 

about 35 minutes before reporting in. Tr. 25. 

Burkhart's statement as to what happened upon reporting to work the night of the 27th 

and what transpired thereafter differs from the Respondent's version. Burkhart testified that 

upon arrival at the mine that night his foreman, Underhill, asked repeatedly whether he could 

work underground. The third time he was asked this question he responded that he thought it 

would be unsafe for him to operate a ram car while on medication. Underhill continued to insist 

that he operate his ram car despite the light duty chit and the effects of medication. Ex. R-4; Tr. 

28-29. After refusing to work underground, Burkhart was told to sweep the locker rooms. 

When he finished this task, Underhill told him to go home because there was nothing 

further he could do. Tr. 30-32. Later that evening, Burkhart received a telephone call from Mike 

Workman and Ben Greenwell in Human Relations and was told not to report in for a few days 

and that a follow-up medical appointment had been made for him on Thursday, January 30. He 

was accompanied to this appointment by Workman, at which time he was again told to remain 

on light duty and not work underground. Tr. 34; Ex. R-4. Initially, Workman told him to report 

as usual that evening and his restrictions would be accommodated. Later, however, Workman 

36 FMSHRC Page 1172
called him and told him not to report for work but to report on Friday morning at 10 a.m. for a 

meeting. He met with Jon Dever and was terminated for insubordination based upon his refusal 

to work underground the night of the 27th. Ex. R-4; Tr. 36. Burkhart testified that it would have 

been unsafe to him to perform any other tasks underground besides operating the ram car 

because of the effects of the medication. Tr. 29. 

Respondent presented the testimony of three witnesses, Underhill, Mincey and 

Greenwell. Their testimony was essentially that on the night of the 27th during the management 

meeting prior the beginning of the night shift, Underhill and Mincey had determined that there 

were jobs that Burkhart could do within his light duty restrictions. Tr. 47, 67. Before Underhill 

could tell Burkhart what jobs he would be doing, Burkhart showed up without his mining 

clothes, which precluded his performing any duties because they did not have tasks that could be 

done on the surface. Underhill testified that he found another miner who was willing to give him 

clothes to use underground. When Burkhart heard he would not be working on the surface, 

according to Underhill, he just decided to leave. Tr. 53. 

Applicable Law and Conclusions 

Section 105(c) of the Mine Act prohibits discrimination against miners for exercising any 

protected right under the Mine Act. The purpose of the protection is to encourage miners "to play 

an active part in the enforcement of the [Mine] Act" recognizing that "if miners are to be 

encouraged to be active in matters of safety and health they must be protected against any 

possible discrimination which they might suffer as a result of their participation." S. Rep. No. 

181, 95th Cong. 1st Sess. 35 (1977), reprinted in Senate Subcommittee on Labor, Committee on 

Human Resources, 95th Cong. 2nd Sess., Legislative History of the Federal Mine Safety and 

Health Act of 1977, at 623 (1978). 

Unlike a trial on the merits of a discrimination complaint brought by the Secretary where 

the Secretary bears the burden of proof by the preponderance of the evidence, the scope of this 

temporary reinstatement proceeding is limited by statute. Section 105(c) of the Mine Act, as 

well as Commission Rule 45(d), 29 C.F.R. § 2700.45(d), limit the issue in an application for 

temporary reinstatement to whether the subject discrimination complaint has been "frivolously 

brought." Rule 45(d) provides: 

The scope of a hearing on an application for temporary reinstatement is limited to a 

determination by the Judge as to whether the miner's complaint is frivolously brought. The 

burden of proof shall be upon the Secretary to establish that the complaint is not frivolously 

brought. In support of his application for temporary reinstatement the Secretary may limit his 

presentation to the testimony of the complainant. The respondent shall have an opportunity to 

cross-examine any witnesses called by the Secretary and may present testimony and 

documentary evidence in support of its position that the complaint is frivolously brought. 

 

29 C.F.R. § 2700.45(d). 

36 FMSHRC Page 1173
In its decision in Jim Walter Resources, Inc. v. FMSHRC, 920 F.2d 738 (11th Cir. I990), 

the Court noted that the "frivolously brought" standard is entirely different from the scrutiny 

applicable to a trial on the merits of the underlying discrimination complaint. In this regard, the 

Court stated: 

The legislative history of the Act defines the 'not frivolously brought standard' as 

indicating whether a miner's 'complaint appears to have merit' -an interpretation that is strikingly 

similar to a reasonable cause standard. [Citation omitted]. In a similar context involving the 

propriety of agency actions seeking temporary relief, the former 5th Circuit construed the 

'reasonable cause to believe' standard as meaning whether an agency's ‘theories of law and fact 

are not insubstantial or frivolous.' 

920 F.2d at 747 (citations omitted). 

While the Secretary is not required to present a prima facie case of discrimination to 

prevail in a temporary reinstatement proceeding, it is helpful to review the elements of a 

discrimination claim to determine if the evidence at this stage satisfies the "not frivolously 

brought" standard. As a general proposition, to demonstrate a prima facie case of discrimination 

under section I 05(c) of the Mine Act, the Secretary must establish that the complainant 

participated in safety related activity protected by the Mine Act, and, that the adverse action 

complained of was motivated, in some part, by that protected activity. See Sec y of Labor on 

behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 2797-2800 (Oct. I980) rev'd on 

other grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d I2II (3d Cir. I98I); 

Sec y of Labor on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803, 8I7-8I8 (Apr. 

1981). 

It is not the judge's duty to resolve conflicts in testimony or to entertain the operator's 

rebuttal or affirmative defenses at the preliminary stage of the proceedings. Sec y of Labor on 

behalf of Albu v. Chicopee Coal Co., 21 FMSHRC 717 (July 1999). It is sufficient to find the 

Complainant engaged in protected activity, the respondent had knowledge of that activity, and 

there was a coincidence in time between the protected activity and adverse action. Sec y of Labor 

on behalf of Williamson v. CAM Mining, LLC, 31 FMSHRC I 085 (Oct. 2009). 

Respondent takes the position that first, the complainant has fabricated the facts and 

secondly, that the complainant did not have a good faith or reasonable basis upon which to refuse 

to work due to his injury. This is based upon the allegation of Underhill that they had intended 

to assign tasks to Burkhart that met the limited duty restrictions and were not unsafe, however, 

he elected to walk off the mine property before Underhill or Mincey had the opportunity to tell 

him what those tasks were. Responded asserts that the "quantitative" evidence proves these 

points and therefore, no issue of credibility is involved. I disagree. 

 

In order for me to find that the complainant has fabricated the facts, I would necessarily 

have to make a credibility determination against Burkhart. The only "quantitative" evidence 

admitted at hearing was a computer generated time sheet which indicates that Burkhart did not 

clock in for work on the January 27/28 shift. This document was offered to impeach Burkhart's 

statement that he worked for several hours sweeping the locker room on the shift after his 

36 FMSHRC Page 1174
accident. Respondent urges that the information is irrefutable and therefore, proves Burkhart 

fabricated the facts. It serves only to create a conflict in testimony between Burkhart's and 

Underhill's as to whether he worked for several hours that night or not. It also raises the issue of 

whether the document itself is accurate. These issues are not within the scope of a temporary 

reinstatement hearing. 

Respondent's second argument also calls for a credibility determination beyond the scope 

of this hearing. Respondent cited Bush v. Union Carbide, 5 FMSHRC 993 (June 1983) in support 

of its assertion that a work refusal must be made in good faith and be reasonable in order for it to 

be protected activity. This is an accurate statement of the law. The Bush matter involved a trial 

on the merits of the discrimination complaint; it was not a temporary reinstatement proceeding. 

The Commission upheld the ALJ' s determination that the complainant's work refusal was not 

reasonable. It stated that the ALJ made his credibility determination against the complainant 

based upon substantial evidence produced at the hearing. At issue here is whether Burkhart's 

refusal to work underground on the January 27/28 shift was reasonable and in good faith. The 

resolution of that issue depends upon whether Burkhart's account of the facts is more credible 

than Underhill's. Burkhart maintained he was repeatedly asked by Underhill whether he could 

work underground on the coal hauler and that no other work was offered to him. He maintained 

that he specifically told Underhill that when he broke his collar bone he was allowed to perform 

light duty on the surface. Underhill told him they no longer allowed for light duty on the surface. 

Ex. R-4. Underhill testified that he had jobs identified that he intended to assign to Burkhart that 

did not involve driving the ram car or violate the work restrictions. He implicitly denied 

Burkhart's testimony. 

Clearly, the two arguments Respondent makes in an attempt to establish that the 

complaint was frivolously brought involve divergent versions of material fact which requires the 

resolution of conflict in testimony. The law requires only that the miner's complaint appear to 

have merit in order to meet the not frivolously brought standard. I find this has been established. 

The evidence is sufficient to establish reasonable cause to believe that Burkhart did engage in 

protected activity, management was aware of it, and there was a nexus in time between that 

protected activity and his termination.1

1

 Respondent requested that should temporary reinstatement be ordered, he be restored to 

the same disciplinary level he was in at the time of his termination. This would include the 

insubordination charge at issue herein. I deny this request. 

36 FMSHRC Page 1175
ORDER 

For the reasons set forth above, Peabody Midwest Mining is ORDERED to immediately 

reinstate Joshua Burkhart to his former position with all rights and benefits to which he is 

entitled. This includes a forty hour work week at the rate of pay of $27.50 and between 8 and 9 

hours of overtime per week at $41.24 per hour as recorded on his 2013 leave and earnings 

statement at Ex. R-15. 

 

 /s/ Priscilla M. Rae 

Priscilla M. Rae 

Administrative Law Judge 

Distribution: 

Travis W. Gosselin, Esq., Office of the Solicitor, U.S. Department of Labor, 230 S. Dearborn St., 

8th Floor, Chicago, IL 60604 

Arthur M. Wolfson, Esq., Jackson Kelly, PLLC, Three Gateway Center, Suite 1500,401 Liberty 

Avenue, Pittsburgh, PA 15222 

Joshua D. Burkhart, 4642 W. Street Road 64, Princeton, IN 47670 

36 FMSHRC Page 1176
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 

May 6, 2014 

DECISION AND ORDER

REINSTATING FRED MCKINSEY

Appearances: Uche N. Egemonye, Esq., Office of the Solicitor, U.S. Department of 

Labor, Atlanta, GA, Representing the Secretary of Labor 

Roger Sauerborn, President, Pretty Good Sand Company, Inc., Battleboro, 

NC, Representing Respondent 

Before: Judge Lewis 

On March 26, 2014, pursuant to section 105(c)(2) of the Federal Mine Safety and Health 

Act of 1977 (AAct@), 30 U.S.C. '801, et. seq., and 29 C.F.R. '2700.45, the Secretary of Labor 

(ASecretary@) filed an Application for Temporary Reinstatement of miner Fred McKinsey 

(“McKinsey” or “Complainant”) to his former position with Pretty Good Sand Company, Inc., 

(APretty Good Sand@ or ARespondent@) at the Great Pit Mine pending final hearing and 

disposition of the case. 

That application followed a Discrimination Complaint filed by McKinsey on February 

18, 2014, that alleged, in effect, that his termination was motivated by his protected activity. The 

Secretary represents that this Complaint was not frivolously brought and requests an Order 

directing Respondent to reinstate McKinsey to his former position as a maintenance mechanic. 

Respondent requested a hearing regarding this application on April 10, 2014 via 

conference call. A hearing was held in Rocky Mount, NC on April 30, 2014.1 The Secretary 

1

 Under Commission Rule 45, a Temporary Reinstatement hearing must be held within 10 

calendar days of an operator’s request. 29 C.F.R. §2700.45(c). During the April 10, 2014 conference 

call, the parties agreed to waive this limitation to allow the hearing to be held on April 30, 2014. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 on behalf of FRED MCKINSEY, 

 Complainant 

v. 

PRETTY GOOD SAND COMPANY, 

INC., 

 Respondent 

 : 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

DISCRIMINATION PROCEEDING 

Docket No. SE 2014-223-DM

MSHA Case No.: SE MD 14-12 TR 

Mine: Great Pit 

Mine ID: 31-02014 

36 FMSHRC Page 1177
presented the testimony of the complainant. Respondent had the opportunity to cross-examine 

the Secretary=s witnesses and present testimony and documentary evidence in support of its 

position. 29 C.F.R. '2700.45(d). 

For the reasons set forth below, I grant the application and order the temporary 

reinstatement of McKinsey. 

Discussion of Relevant Law

Section 105(c) of the Mine Act prohibits discrimination against miners for exercising any 

protected right under the Mine Act. The purpose of the protection is to encourage miners Ato 

play an active part in the enforcement of the [Mine Act]@ recognizing that, Aif miners are to be 

encouraged to be active in matters of safety and health, they must be protected against any 

possible discrimination which they might suffer as a result of their participation.@ S. Rep. No. 

181, 95th Cong., 1st Sess. 35 (1977), reprinted in Senate Subcommittee on Labor, Committee on 

Human Resources, 95th Cong., 2nd Sess., Legislative History of the Federal Mine Safety and

Health Act of 1977, at 623 (1978). 

Congress created the temporary reinstatement as “an essential protection for complaining 

miners who may not be in the financial position to suffer even a short period of unemployment 

or reduced income pending the resolution of the discrimination complaint.” S. Rep. No. 181, 

95th Cong., 1st Sess. 36-37 (1977), reprinted in Senate Subcommittee on Labor, Committee on 

Human Resources, 95th Cong. 2nd Sess., Legislative History of the Federal Mine Safety and 

Health Act of 1977, at 624-25 (1978).

 Temporary Reinstatement is a preliminary proceeding, and narrow in scope. As such, 

neither the judge nor the Commission is to resolve conflicts in testimony at this stage of the case. 

Sec=y of Labor on behalf of Albu v. Chicopee Coal Co., 21 FMSHRC 717, 719 (July 1999). The 

substantial evidence standard applies.2 Sec=y of Labor on behalf of Peters v. Thunder Basin Coal 

Co., 15 FMSHRC 2425, 2426 (Dec. 1993). A temporary reinstatement hearing is held for the 

purpose of determining Awhether the evidence mustered by the miners to date established that

their complaints are non-frivolous, not whether there is sufficient evidence of discrimination to 

justify permanent reinstatement.@ Jim Walter Resources, 920 F.2d 738, 744 (11th Cir. 1990). 

In adopting section 105(c), Congress indicated that a complaint is not frivolously brought 

if it Aappears to have merit.@ S. Rep. No. 181, 95th Cong., 1st Sess. 36-37 (1977), reprinted in

Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong. 2nd Sess., 

Legislative History of the Federal Mine Safety and Health Act of 1977, at 624-25 (1978). In 

addition to Congress= Aappears to have merit@ standard, the Commission and the courts have also 

equated Anot frivolously brought” to Areasonable cause to believe” and Anot insubstantial.” Sec'y 

of Labor on behalf of Price v. Jim Walter Res., Inc., 9 FMSHRC 1305, 1306 (Aug. 1987), aff'd, 

 2 ASubstantial evidence@ means Asuch relevant evidence as a reliable 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)). 

36 FMSHRC Page 1178
920 F.2d 738, 747 & n.9 (11th Cir. 1990). “Courts have recognized that establishing ‘reasonable 

cause to believe’ that a violation of the statute has occurred is a ‘relatively insubstantial’ 

burden.” Sec’y of Labor on behalf of Ward v. Argus Energy WV, LLC, 2012 WL 4026641, *3 

(Aug. 2012) citing Schaub v. West Michigan Plumbing & Heating, Inc., 250 F.3d 962, 969 (6th 

Cir. 2001).

In order to establish a prima facie case of discrimination under section 105(c) of the Act, 

a complaining miner must establish (1) that he engaged in protected activity and (2) that the 

adverse action complained of was motivated in any part by that activity. Sec=y of Labor on behalf 

of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 (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 (April 1981). 

However, in the instant matter, the Secretary and McKinsey need not prove a prima facie

case of discrimination with all of the elements required at the higher evidentiary standard needed 

for a decision on the merits. Rather, the same analytical framework is followed within the 

“reasonable cause to believe” standard. Thus, there must be “substantial evidence” of both the 

applicant=s protected activity and a nexus between the protected activity and the alleged 

discrimination. To establish the nexus, the Commission has identified these indications of 

discriminatory intent: (1) hostility or animus toward the protected activity; (2) knowledge of the 

protected activity; and (3) coincidence in time between the protected activity and the adverse 

action. Sec=y of Labor on behalf of Lige Williamson v. CAM Mining, LLC, 31 FMSHRC 1085, 

1089 (Oct. 2009). The Commission has acknowledged that it is often difficult to establish a 

Amotivational nexus between protected activity and the adverse action that is the subject of the 

complaint.@ Sec=y of Labor on behalf of Baier v. Durango Gravel, 21 FMSHRC 953, 957 

(Sept.1999). The Commission has further considered the disparate treatment of the miner in 

analyzing the nexus requirement. Secretary of Labor on behalf of Chacon v. Phelps Dodge 

Corp., 3 FMSHRC 2508, 2510 (Nov. 1981), rev=d on other grounds, 709 F.2d 86 (D.C. Cir. 

1983). 

It should be noted that at pre-trial conference and at the hearing, this court gave repeated 

instructions to Respondent regarding the narrow scope of a temporary reinstatement proceeding.3 

Respondent could not understand or was unwilling to accept that the Secretary and McKinsey 

were not required at the within temporary reinstatement proceeding to prove a prima facie case 

of discrimination with all for the elements required at the higher evidentiary standard. 

Despite repeated sustained objections, Respondent mistakenly attempted to transmute the 

reinstatement hearing into full-scale credibility4 and discovery inquiries that were far beyond the 

scope of a temporary reinstatement hearing. 3 See also attachment sent to the Respondent with relevant case and statutory law regarding the 

lesser evidentiary burden imposed on the Secretary at a temporary reinstatement hearing. 

4 See also Respondent’s queries regarding credibility being “the heart” of a reinstatement 

proceeding (Transcript at 47) and this Court’s specific instruction that it would not attempt to resolve 

alleged inaccuracies or conflicts in testimony prior to discovery and hearing on the merits. 

36 FMSHRC Page 1179
Stipulations 

The parties stipulated to the following legal and factual propositions: 

1. Pretty Good Sand Company, Inc. is and was at all relevant times through this

proceeding the operator of the Great Pit Mine, Mine ID number 31-02014.

2. Great Pit is a mine. The term mine is defined in Section 3(h) of the Mine Act,

30 U.S.C. Section 802(h).

3. At all times relevant to this proceeding, products of Great Pit Mine entered

commerce, are the operations of products thereof affecting commerce, within

the means and scope of Section 4 of the Mine Act, 30 U.S.C. Section 803.

4. Pretty Good Sand Company is an operator, as the term operator is defined in

Section 3(d) of the Mine Act, 30 U.S.C. Section 802(d).

5. Fred McKinsey was previously employed by Pretty Good Sand Company.

Fred McKinsey is a miner within the meaning of Section 3(g). Mine Act, 30

U.S.C. Section 302(g).

6. Fred McKinsey was terminated from Pretty Good Sand Company on January

10, 2014.5

7. Pretty Good Sand Company is subject to the jurisdiction of the Federal Mine

Safety and Health Review Commission. The presiding administrative law

judge has authority to hear this case and issue a decision regarding this case,

pursuant to Section 105 of the Act, 30 U.S.C. Section 815, as amended.

(Transcript at 6-8).6

5

 The parties stipulated that the termination occurred on January 10, 2014. However, all 

testimony and previously filed documents indicated that the date was January 13, 2014. No explanation 

was given for this discrepancy. 

6 Hereinafter references to the transcript will be cited “Tr.” with the page number. 

36 FMSHRC Page 1180
Contentions of the Parties

On January 20, 2014, McKinsey executed a Summary of Discriminatory Action. It was 

filed with his Discrimination Complaint on February 18, 2014. In this statement he alleged the 

following7: 

My employment with Pretty Good Sand Company began in July, 2013. During 

my interview [wi]th Roger Sauerborn, the owner of the company, I disclosed that 

I have [Asp]ergers Syndrome and explained the ways in which I am different 

from other people. [A] short time after hire, I was promoted to a supervisory 

position, where I remained [unt]il late December 2013. Pretty Good Sand 

Company (PGSC) was reported to MSHA for [vio]lations, resulting in an MSHA 

inspection of the facility on 11/26/13. Immediately [aft]erwards, I was treated 

differently by Roger. He intentionally created difficult interactions [bet]ween 

himself and I, using strategies that would exacerbate my Aspergers tendencies, 

[res]ulting in escalating confrontations. On 12/8/2013, I received an email from 

Roger [det]ailing specific tasks he felt I had handled incorrectly and discussing 

the MSHA [ins]pection. After reading that e-mail, I believed that he felt I was 

responsible for [rep]orting PGSC to MSHA. The workplace harassment and 

associated tension continued [to] build for the duration of the remainder of my 

employment with PGSC. I [rec]eived a mailed letter of reprimand on 12/20/2013, 

a hand written note attached to [a] time card a few days later, and a second 

reproach email on 12/30/2013. I [wa]s verbally demoted from my supervisory 

position without any explanation. My work [h]ours were cut by sending me home 

early multiple times, as well as reducing [m]y scheduled hours to work. On the 

morning of 01/13/14, I received a text [m]essage from Roger stating that I had 

been fired. After I requested to be [in]formed of the reason(s) for dismissal, 

Roger sent an email to me on the same [d]ay, explaining his reasons for 

termination. I believe Roger deliberately [fo]stered a trying work environment for 

me in an attempt to push me to resign, [a]nd when his repeated efforts were 

unsuccessful, he dismissed me. 

Application for Temporary Reinstatement at Exhibit B, p. 2. 

The Secretary also submitted the March 25, 2014 Declaration of Michael Larue, a Special 

Investigator employed by the Mine Safety and Health Administration with the Application. 

Larue wrote that he investigated McKinsey’s discrimination claim against Respondent. Larue 

laid out the facts that he determined based on his investigation. Id. at Exhibit A, p. 1-3. He 

concluded: 

7

 The left-hand margin of the photocopied Discrimination Report filed by the Secretary was cut 

off. As a result, several words are either missing in whole or in part. These words have been recreated to 

the extent possible. Words and letters that are based on attempts to complete the document are included 

in brackets. 

36 FMSHRC Page 1181
3. Based upon the information so far available as the result of the special

investigation being conducted in these matters, I have concluded that Fred

McKinsey’s Claim that he was terminated from his employment with Respondent

as a result of his lodging a safety hazard complaint with MSHA and participating

in MSHA’s investigation was not frivolously brought.

Id. at Exhibit A, p. 3. The Secretary cited this declaration as a basis for the formal request for 

temporary reinstatement. Id. at 3. 

Respondent disputes the Secretary’s claim that McKinsey was terminated because he 

noted safety concerns in check sheets or because he was suspected of making safety complaints 

to MSHA. Instead it claims that he was terminated for failure to conduct work assignments 

properly and for unprofessional attitude at work. 

Summary of Testimony

Fred McKinsey8 was hired at the subject mine as an hourly employee by Roger 

Sauerborn9

 in July 2013 at $15.00 an hour and generally worked 45 to 50 hours per week. (Tr. 

15, 65). Respondent’s mine was a sand pit that produced sand for sale to the public. (Tr. 14-15). 

McKinsey’s job included maintenance, general labor, operating an excavator, driving a dump 

truck, and operating a pull behind a scrapper pan. (Tr. 15). 

On August 23, 2013, Sauerborn promoted McKinsey to supervisor and gave him a raise 

to $17.75 an hour. (Tr. 15-16, 65). McKinsey was not sure if the foreman preceding him was 

fired for unsafe conduct. (Tr. 29-30). As a supervisor, McKinsey continued to do all of his 

previous duties and work the same hours, but was also responsible for tasking three other 

employees (Alton “Low” Moses, Matthew Stanley, and, later, Joshua Lane) and ensuring safety. 

(Tr. 16-17). To do so, he reported safety issues to Sauerborn as they arose. (Tr. 16). 

McKinsey took several safety precautions, including completing pre-work checks on 

equipment. (Tr. 18). Whoever operated equipment for a day would check out the equipment, fill 

out a pre-shift sheet, carry it to the office, place it in the appropriate folder, and discard the 

previous day’s pre-shift sheet. (Tr. 52). These forms were designed to identify and maintain 

records of malfunctions and safety issues. (Tr. 19). As foreman, McKinsey looked at these 

sheets. (Tr. 63). At hearing, McKinsey reviewed several pre-shift examination forms (CX-9); he 

had completed three of the pages and someone else had completed the fourth. (Tr. 19-20). 

McKinsey did not recall filling out the form dated November 2, 2013 but he completed them as a 

part of his daily tasks. (Tr. 19-20). He was not positive that he worked that day. (Tr. 30). 

8

 Fred McKinsey was present at the hearing and testified for the Secretary. (Tr. 14). At the time 

of the hearing, he was unemployed, having last worked for Respondent. (Tr. 14). 

9

 Roger E. Sauerborn was the owner of Respondent and represented Respondent at the hearing. 

(Tr. 64). He was also called as a witness by the Secretary and testified at the hearing. (Tr. 64). 

36 FMSHRC Page 1182
As Supervisor, McKinsey reported several safety issues to Sauerborn. (CX-9)(Tr. 17-

18). If McKinsey noticed a problem, he would report the issue to Sauerborn, they would discuss 

it, and Sauerborn would make a final decision. (Tr. 52, 56, 63). McKinsey would follow 

Sauerborn’s instructions on whether to repair something or not. (Tr. 56). McKinsey would 

make minor repairs, but anything major had to be discussed with Sauerborn. (Tr. 63). If an issue 

was not immediately resolved, the machine was not moved to the “do not operate” line. (Tr. 52). 

The safety issues raised by McKinsey included the fact that Respondent’s Mack Truck 

needed new brakes and that it had suspension and bed issues. (Tr. 17). McKinsey also noted 

that the D-250B Caterpillar haul truck had a center pivot issue that needed to be repaired. (Tr. 

17). He reported that highwalls with roads above them needed to be supported. (Tr. 17). In one 

pre-work sheet, McKinsey noted that the articulation joint of the baby loader was worn out. (Tr. 

46-47). McKinsey told Sauerborn that this condition had to be repaired elsewhere because 

Respondent had neither the facilities nor the tools to do so on site. (Tr. 48). When McKinsey 

reported these conditions, Sauerborn would deflect the concerns and raise other jobs that needed 

to be completed. (Tr. 18). Sauerborn did not address the safety issues McKinsey raised. (Tr. 

18).

On or around November 23, 2013, McKinsey filed a complaint with MSHA. (Tr. 21). He 

filed this complaint because he learned that as a supervisor at the mine he was responsible if 

anyone was hurt, even if a safety inspection was performed. (Tr. 21). He was the responsible 

party and did not want anyone to get hurt while he was working. (Tr. 21). 

The next day, November 24, 2013, MSHA inspected the Great Pit mine as a result of this 

complaint. (Tr. 21, 65). Two citations were issued that day. (Tr. 66). One citation was for a 

failure to record new miner training. (Tr. 66). However, while preparing for hearing, Sauerborn 

found the record of the new-miner training; it had been misfiled. (Tr. 66). Sauerborn testified 

that the issues cited were not the ones complained of and that he hoped that the inspection would 

allow McKinsey to see that his safety complaints were unfounded so that they could then move 

forward as a company. (Tr. 70). 

Sauerborn conceded that he told the inspector that the complaint could only come from 

one of the employees. (Tr. 65-66). In fact, he testified “what I said was it had to be someone 

from my company, and it's not a great big company, okay. So, you know... I'm not that stupid.” 

(Tr. 66). However, at hearing he stated that he did not know who called MSHA. (Tr. 67). On 

the record, the ALJ accepted that Sauerborn’s other witnesses would have testified that he was 

uncertain as to who actually made the stated complaints. (Tr. 76). Regardless, the number of 

complaints convinced him that it had to be someone from the company. (Tr. 66-67). On the day 

of the inspection, McKinsey stopped Sauerborn and said that maybe one of his (McKinsey’s) 

girlfriends called or Lane’s parents called. (Tr. 67). 

McKinsey was not sure if the citations issued during that inspection were written near the 

berm area. (Tr. 53). He was not present when the citations were issued; he was working with 

the other employees elsewhere. (Tr. 53). When Sauerborn was nearby on the inspection, 

McKinsey was working on other tasks and was not paying attention. (Tr. 53-54). 

36 FMSHRC Page 1183
Before this inspection, McKinsey had never received any verbal reprimands or 

discipline.10 (Tr. 21, 29-30). After the MSHA inspection, the environment at work changed. 

(Tr. 21). Specifically, Sauerborn would belittle McKinsey and give him a hard time. (Tr. 22). 

Sauerborn would give McKinsey conflicting instructions that were impossible to follow. (Tr. 

22). He also sent McKinsey several e-mails stating, incorrectly, that McKinsey had improperly 

repaired equipment or “messed up” a task. (Tr. 22-23). 

On December 12, 2013 McKinsey was demoted, although his pay remained the same. 

(Tr. 24-25, 40, 49-50, 69-70). Sauerborn said Lane would become supervisor. (Tr. 40). When 

McKinsey asked why he was demoted, Sauerborn referred to several disciplinary emails he had 

sent previously. (Tr. 25, 50). McKinsey did not say anything except that he would quit rather 

than take a pay cut. (Tr. 40-41, 69-70). The harassment began before this demotion and 

continued afterwards. (Tr. 50). 

According to McKinsey, on December 20, Sauerborn approached a vehicle where 

McKinsey and Lane were sitting. (Tr. 41). McKinsey rolled down the window and Sauerborn 

started to harass him, though he could not recall what was said. (Tr. 41-42). McKinsey’s nerves 

began to bother him and he began to shake. (Tr. 41). McKinsey stepped out of the car in hopes 

that Sauerborn would see how badly he was affected and give him space. (Tr. 41). Sauerborn 

said that he was uncomfortable and McKinsey needed to clock out for an hour. (Tr. 41). 

According to Sauerborn, the events of that day proceeded as follows: Sauerborn saw 

Lane and McKinsey in the Suburban. (Tr. 71). After he said “hello,” McKinsey jumped out of 

the vehicle and yelled that Sauerborn was discriminating against him. (Tr. 71-72). McKinsey 

approached and Sauerborn raised his hands because his personal space was invaded. (Tr. 72). 

Sauerborn told McKinsey that he needed to clock out for an hour so that he could calm down 

before the Christmas party. (Tr. 72). McKinsey went to the office to clock out. (Tr. 72). While 

there McKinsey, who was within earshot of a truck driver, threatened to kill Sauerborn.11 (Tr. 

72). 

Finally, on January 13, 2014 McKinsey was informed via text message from Sauerborn 

that he was fired. (Tr. 25). When McKinsey asked why, Sauerborn said that the issue was 

covered in an email. (Tr. 25). McKinsey then contacted MSHA because he believed he was 

fired for calling and reporting violations. (Tr. 25). McKinsey believed that the email marked 

 10 However, McKinsey conceded it was possible that he and Sauerborn had a conversation of 

September 16, 2013 about promptly ordering parts, but he could not recall specifically. (Tr. 30). He did 

not receive a written follow up the next day. (Tr. 30). 

11 There is clearly a conflict in the testimony regarding what occurred on December 20, 2013. 

However, at this time it would be improper to weigh this testimony. Instead, the miner’s testimony will 

be considered in determining whether this claim was frivolously brought. 

36 FMSHRC Page 1184
CX-5 showed that Sauerborn believed that he was the person who called MSHA.12 (Tr. 26-27). 

McKinsey was still making $17.75 an hour at that time.13 (Tr. 67-68). 

Findings and conclusions

Protected Activity and Adverse Employment Action 

The Mine Act contains security measures for miners engaged in protected activity. 

Specifically, §105(c)(1) states, in relevant part: 

No person shall discharge or in any manner discriminate againstYor otherwise interfere 

with the exercise of the statutory rights of any minerYin any coal or other mine subject to 

this chapter because such minerYhas filed or made a complaint under or related to this 

chapter, including a complaint notifying the operator or the operator's agentYof an 

alleged danger or safety or health violation in a coal or other mine. 

30 USC ' 815(c)(1). As discussed supra, to support a temporary reinstatement there must be 

protected activity with a connection, or nexus, to an adverse employment action. The initial 

issue is whether McKinsey engaged in activity that triggered those protections. 

 Under the Act, protected activity includes filing or making a complaint of an alleged 

danger, or safety or health violation, instituting any proceeding under the Act, testifying in any 

such proceeding, or exercising any statutory right afforded by the Act. See Sec=y of Labor on 

behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 (Oct. 1980), rev=d on other 

grounds sub nom. Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 1981). In this 

matter, McKinsey testified that he made safety complaints both to his employer, Sauerborn, and 

MSHA. (Tr. 17-18, 21). Those complaints dealt with the unsafe condition of mobile equipment 

and support for high walls. (Tr. 17-18, 46-48). These complaints resulted in an MSHA 

 12 The subject paragraph stated, “An unknown person called MSHA with five allegations of 

wrong doing. While the inspector was on site, MSHA was contacted, a sixth allegation was made, then 

amplified. Most of the allegations were topics you and I discussed, and had disagreements. MSHA 

found the six allegations to be false. You volunteered that you did not call MSHA, and it may have been 

one of your girlfriends, or Josh’s parent. I would like you to tell me later what you have learned from this 

incident.” (CX-5)(Tr. 26-27). 

13 Respondent’s Representative testified at length (and elicited testimony) regarding the miner’s 

attitude and the quality of his work. Specifically, Respondent presented evidence regarding McKinsey’s 

efforts to fix a mirror and windows on a truck (Tr. 31-34, 45-46); McKinsey’s work on a truck that 

subsequently lost a wheel (Tr. 35); McKinsey’s work in cleaning dirt out of a truck (Tr. 43-44); 

McKinsey’s actions in accidentally striking a flashboard riser’s supports in a piece of equipment (Tr. 33-

34); and the length of time that McKinsey took in repairing a Suburban truck. (Tr. 34, 56-57). Further, 

Respondent presented evidence regarding the special accommodations Sauerborn made to help McKinsey 

succeed. (Tr. 68-70). As the purpose of this hearing is to determine whether McKinsey’s claims “may 

have merit,” this evidence is not relevant. However, all or some of this evidence may be appropriate for 

presentation during a hearing on the merits. 

36 FMSHRC Page 1185
inspection of the Mine and the discovery of violations. (Tr. 21, 65-66). There is no question the 

sending a complaint to MSHA to discuss a safety concern is protected activity. In fact, this is 

precisely the interaction between miner and MSHA that §105(c) was drafted to protect. 

Therefore, McKinsey’s claim that he was engaged in protected activity is not frivolous. 

 The next issue is whether McKinsey suffered an adverse action. According to the Act 

and well-settled Commission precedent, suffering a discharge or a demotion is an adverse 

employment action. 30 USC ' 815(c)(1); see also Moses v. Whitley Dev. Corp., 4 FMSHRC 

1475, 1478 (Aug. 1982), aff'd, 770 F.2d 168 (6th Cir. 1985). It is uncontested that on December 

12, 2013, McKinsey was demoted from supervisor to maintenance mechanic. (Tr. 24-25, 40, 49-

50, 69-70). Further, there is no question that a month later, on January 13, 2014, McKinsey was 

terminated from his position as maintenance mechanic. (Tr. 25). Therefore, McKinsey’s claim 

that he suffered an adverse employment action is not frivolous. 

Nexus between the protected activity and the alleged discrimination 

Having concluded that McKinsey engaged in protected activity, the examination now 

turns to whether that activity has a connection, or nexus, to the subsequent adverse action, 

namely the January 13, 2013 termination. The Commission recognizes that direct proof of actual 

knowledge is often not available and that the nexus between protected activity and the alleged 

discrimination must often be drawn by inference from circumstantial evidence rather than from 

direct evidence. Phelps Dodge Corp., 3 FMSHRC at 2510. The Commission has identified 

several circumstantial indicia of discriminatory intent, including: (1) hostility or animus toward 

the protected activity; (2) knowledge of the protected activity; (3) coincidence in time between 

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

e.g., CAM Mining, LLC, 31 FMSHRC at 1089; see also, Phelps Dodge Corp., 3 FMSHRC at 

2510. 

Knowledge of the protected activity

According the Commission, “the Secretary need not prove that the operator has 

knowledge of the complainant’s activity in a temporary reinstatement proceeding, only that there 

is a non-frivolous issue as to knowledge.” CAM Mining, LLC, 31 FMSHRC at 1090 citing

Chicopee Coal Co., 21 FMSHRC at 719. In fact, evidence is sufficient to support a finding of 

knowledge if an operator erroneously suspects a miner made safety complaints, even if no 

complaint was made. See Moses v. Whitley, supra. McKinsey testified that he made safety 

complaints to Respondent’s owner, Sauerborn. (Tr. 17-18). Specifically, he discussed problems 

with equipment at the mine and inadequate support for a wall. (Tr. 17-18, 46-48). If McKinsey 

raised safety complaints directly to Sauerborn, clearly the owner would have knowledge. 

Further, McKinsey testified that when Sauerborn failed to take corrective action, he contacted 

MSHA. (Tr. 21). Saueborn conceded that during the resultant inspection, he stated that the 

complaints could have only come from one of his employees. (Tr. 65-67). On December 7, 

2013 Sauerborn sent a letter (CX-5) to McKinsey that implied that he suspected that McKinsey 

was the person who contacted MSHA. (Tr. 26-27). Finally, Sauerborn testified at hearing that 

he hoped the inspection would show McKinsey that his complaints were unfounded, showing 

36 FMSHRC Page 1186
that he was aware that McKinsey’s complaints were the ones that prompted the inspection. (Tr. 

70). Therefore, there is some evidence to suggest that Sauerborn was aware or at least suspected 

the McKinsey had engaged in protected activity. Thus, I find that Complainant and the Secretary 

have raised a non-frivolous issue as to whether Respondent had knowledge of the protected 

activity when the decision was made to fire McKinsey. 

Coincidence in time between the protected activity and the adverse action

The Commission has accepted substantial gaps between the last protected activity and 

adverse employment action. See e.g. CAM Mining, LLC, 31 FMSHRC at 1090 (three weeks) 

and Sec=y of Labor on behalf of Hyles v. All American Asphalt, 21 FMSHRC 34 (Jan. 1999) (a 

16-month gap existed between the miners= contact with MSHA and the operator=s failure to recall 

miners from a lay-off; however, only one month separated MSHA=s issuance of a penalty 

resulting from the miners= notification of a violation and that recall failure). The Commission 

has stated “We ‘appl[y] no hard and fast criteria in determining coincidence in time between 

protected activity and subsequent adverse action when assessing an illegal motive. Surrounding 

factors and circumstances may influence the effect to be given to such coincidence in time.’” All 

American Asphalt, 21 FMSHRC at 47 (quoting Hicks v. Cobra Mining, Inc., 13 FMSHRC 523, 

531 (Apr. 1991). 

In the present matter, the time between the McKinsey’s final protected activity (the call 

to MSHA) and the termination was approximately 51 days. McKinsey testified that he called 

MSHA on November 23, 2013 and he was terminated on January 13, 2014. (Tr. 21, 25). 

However, even before the termination, McKinsey alleged other adverse actions. For example, on 

December 12, 2013, just 19 days after the call to MSHA, McKinsey was demoted. (Tr. 21, 24-

25, 40, 49-50, 69-70). Further, McKinsey reported being harassed and belittled from the time of 

the inspection until his termination, with one instance on December 20, 2013 discussed at length 

at hearing. (Tr. 21-23, 41, 50, 71-72). These time frames easily meet the Commission’s 

requirements. Thus, I find that the time span between the protected activities and the adverse 

action is sufficient to establish a nexus. 

Hostility or animus towards the protected activity

The Commission has held, “[h]ostility towards protected activity--sometimes referred to 

as ‘animus'--is another circumstantial factor pointing to discriminatory motivation. The more 

such animus is specifically directed towards the alleged discriminatee's protected activity, the 

more probative weight it carries.” Secretary of Labor on behalf of Chacon v. Phelps Dodge 

Corporation, 3 FMSHRC 2508, 2511 (Nov. 1981) (citations omitted). 

 McKinsey testified that before he contacted MSHA, he had never received a verbal or 

written warning regarding his conduct at work. (Tr. 21, 29-30). Following the protected 

activity, McKinsey received several disciplinary notes. (Tr. 21-23). One of those warnings, a 

letter dated December 7, 2013 (CX-5) specifically addressed the call to MSHA. (Tr. 26-27). 

The fact that a discipline letter included reference to protected activity clearly implies animus 

toward that activity. McKinsey also experienced “harassment and belittlement” regularly from 

36 FMSHRC Page 1187
that time until his termination. (Tr. 21-23, 50). He described one instance in particular, on 

December 20, when he was so distraught from this harassment that he began to shake. (Tr. 

41,71-72). After this harassment, he was forced to clock out of work, losing compensation. (Tr. 

41, 72). McKinsey was also demoted from his position as supervisor, albeit without a 

corresponding reduction in pay. (Tr. 24-25, 49-50, 69-70). Finally, less than two months after 

the inspection and following a campaign in which McKinsey alleged Sauerborn was attempting 

to force him to resign, McKinsey was terminated. (Tr. 25)(Application for Temporary 

Reinstatement at Exhibit B, p. 2). I find that McKinsey’s testimony regarding the negative 

change in his work environment following his safety complaints raises a non-frivolous issue as to 

hostility or animus towards protected activity. 

Disparate Treatment

“Typical forms of disparate treatment are encountered where employees guilty of the 

same, or more serious, offenses than the alleged discriminatee escape the disciplinary fate which 

befalls the latter.” Secretary of Labor on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 

2508, 2512 (Nov. 1981). In this case, McKinsey was allegedly fired for deficiencies in his work 

and attitude. There is no evidence on record of any other employees receiving less severe 

punishment for the same or similar misconduct. However, the Commission has previously held 

that evidence of disparate treatment is not necessary to prove a prima facie claim of 

discrimination when the other indicia of discriminatory intent are present. Id. at 2510-2513. 

As has already been shown, there is sufficient evidence to conclude that this 

discrimination claim was not frivolously brought as it relates to animus, knowledge, and 

coincidence in time. Therefore, I find that the Secretary has established a nexus between 

McKinsey=s protected activity and the Respondent=s subsequent adverse action. 

Conclusion

In concluding that McKinsey’s complaint herein was not frivolously brought, I give 

weight to the evidence of record that he called to make complaints to MSHA. I also conclude 

that there were non-frivolous issues as to whether Respondent was aware of McKinsey’s actions, 

that Respondent showed animus toward McKinsey=s alleged protected activities, and that there 

was a close connection in time between his alleged protected activity and his demotion and 

discharge.

Respondent asserts that its discharge of Respondent was based on his unprotected 

activities, specifically failure to properly perform work tasks. I find that Respondent=s evidence 

on this record is not sufficient to demonstrate that McKinsey=s complaint of discrimination was 

frivolously brought. To the contrary, since the allegations of discrimination have not been 

shown to be lacking in merit, I find they are not frivolous.

 

36 FMSHRC Page 1188
ORDER

Based on the above findings, the Secretary=s Application for Temporary Reinstatement is 

granted. Accordingly, Respondent is ORDERED to provide immediate reinstatement to 

McKinsey, as a maintenance mechanic, at the same rate of pay, for the same number of hours 

worked, and with the same benefits, as at the time of his discharge. 

 /s/ John Kent Lewis 

John Kent Lewis 

 Administrative Law Judge 

Distribution: (Certified Mail) 

Uche N. Egemonye, Esq., Office of the Solicitor, U.S. Department of Labor, 61 Forsyth Street, 

SW, Room 7T10, Atlanta, GA 30303 

Fred McKinsey, 6888 US Hwy 258 N, Tarboro, NC 27886 

Roger Sauerborn, President, Pretty Good Sand Company, Inc., 6563 NC 97 W, Battleboro, NC 

27809 

Michael Larue, Special Investigator, Southeast District, USDOL/MSHA/MNM, 135 Gemini 

Circle, Suite 212, Birmingham, AL 35209 

/tjb 

36 FMSHRC Page 1189
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

Washington, D.C. 20001 

(202) 434-9933 

 May 11, 2012 

BLEDSOE COAL CORP., 

 Contestant 

 v. 

HILDA L. SOLIS, Secretary of Labor, 

 United States Department of Labor, 

 Respondent 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

:

 CONTEST PROCEEDING 

DOCKET NO. KENT 2011-972-R 

WRITTEN NOTICE NO. 8333606; 

04/18/2011 

DOCKET NO. KENT 2011-973-R 

ORDER NO. 8353820; 04/18/2011 

DOCKET NO. KENT 2011-974-R 

ORDER NO. 8353821; 04/18/2011 

DOCKET NO. KENT 2011-975-R 

ORDER NO. 8353825; 04/21/2011 

DOCKET NO. KENT 2011-976-R 

ORDER NO. 8353838; 05/03/2011 

DOCKET NO. KENT 2011-977-R 

ORDER NO. 8353839; 05/03/2011 

DOCKET NO. KENT 2011-978-R 

ORDER NO. 8353855; 05/10/2011 

DOCKET NO. KENT 2011-979-R 

ORDER NO. 8353858; 05/12/2011 

DOCKET NO. KENT 2011-980-R 

ORDER NO. 8406696; 05/10/2011 

DOCKET NO. KENT 2011-981-R 

ORDER NO. 8406699; 05/10/2011 

DOCKET NO. KENT 2011-982-R 

ORDER NO. 8406809; 05/11/2011 

MINE I.D. NO. 15-19132 

MINE: Abner Branch Rider 

36 FMSHRC Page 1190
ORDER ON THE SECRETARY’S MOTION FOR PARTIAL SUMMARY DECISION

Before: Judge Moran

Introduction. 

Pursuant to 30 C.F.R. § 2700.67, on March 6, 2012, the Secretary of Labor filed a motion 

for partial summary decision, seeking a ruling upholding the issuance of the Notice of Pattern of 

Violations, No. 8333606, which Notice was issued to the Respondent, Bledsoe Coal Corporation, 

regarding its Abner Branch Rider Mine, (“mine”), on April 12, 2011. Motion at 1-2. The 

Secretary notes that it issued Respondent a notice, alleging a potential pattern of violations on 

November 18, 2010, as well as a withdrawal order under section 104(e)(1), alleging a significant 

and substantial violation of a mandatory standard, and eight (8) withdrawal orders pursuant to 

section 104(e)(2). The Secretary contends that, as it followed the requirements for issuance of a 

Notice of Pattern of Violations, pursuant to 30 C.F.R. Part 104, the Notice should be upheld. 

For the reasons which follow, the Court GRANTS the Secretary’s Motion and DIRECTS that the 

outstanding, identified, non-final S&S citations/orders associated with this litigation be set for 

prompt hearing. 

Findings of Fact and Conclusions of Law.

 The actions described above were the culmination of several preceding events. The 

Secretary completed its pattern of violations screening for the mine, which screening 

encompassed the twelve month period beginning on September 1, 2009 and ending August 31, 

2010. As noted above, that screening resulted in the Respondent being notified,1

 on November 

18, 2010, pursuant to 30 C.F.R. § 104.4(a), that its mine was identified as having a potential 

pattern of violations. Nine citations or orders were identified, each pertained to violations of 30 

C.F.R. § 75.400, and each of those had become final orders during the twelve month review 

period.2

 Bledsoe opted to implement a corrective action plan, which was dated January 5, 2011. 

However, about two months later, on March 18, 2011, in compliance with 30 C.F.R. § 104.4(b), 

MSHA advised Bledsoe that a potential pattern of violations continued to exist, noting that the 

mine’s S&S violations were double the target violation rate. Ex. 6. The same report, again 

following section 104.4(b), informed the mine that it had 10 days to submit comments about it to 

the Administrator for Coal Mine Safety and Health, but comments would not forestall 

submission of the report to the Administrator. 

 1

 The Notice informed Bledsoe that nine citations or orders, each of which, pursuant to 30 C.F.R. 

§ 104.2(c), were issued after October 1, 1990, were considered in the initial screening. 

2

 The November 18, 2010 Notice advised the mine that it had been issued “10.98 S&S violations 

per 100 inspection hours during the 12-month review period . . . [and that] the mine must maintain an 

S&S rate of 5.49 or lower during the evaluation period [which would constitute] a 50 percent reduction 

from the . . . review period.” A greater reduction, to 3.68 or lower would be required if the mine did not 

opt to implement a corrective action program. Bledsoe did opt for a corrective action plan. 

36 FMSHRC Page 1191
 The Secretary concludes that, as MSHA fully complied with the Part 104 Pattern of 

Violations provisions at every step of that process, and as the Mine’s “history of nine final S&S 

violations of 30 C.F.R. § 75.400 during the one-year pattern review period establishes a pattern 

of violations [pursuant to 30 C.F.R. § 104.3(a)(1)],” the pattern of violations notice, No. 

8333606, should be upheld.3 Sec. Motion at 4-5. In support of that conclusion, the Secretary 

notes that this Court, in its November 10, 2011 Order on the Contestant’s Motion for Summary 

Decision, observed that Congress left it to the Secretary’s expertise to determine when more was 

needed to be done for enforcement than simply identifying each violation and then acting to have 

each violation corrected. Instead, when an operator has a pattern of S&S violations of 

mandatory standards, the provisions of section 104(e) of the Mine Act are to be applied. In 

enforcing those provisions, the Secretary was directed by Congress to make such rules as the 

Secretary deemed necessary to establish criteria for determining when a pattern of violations of 

mandatory standards exists and making the determination for the enhanced enforcement 

provision addressing a pattern of violations. The Secretary took these steps both through the 

Pattern of Violations provisions at 30 C.F.R. Part 104 and implementing the policy. 

Accordingly, it is the Secretary’s position that, as it fully complied with both the statutory 

provision and with the Part 104 Pattern of Violations provisions in all respects, and as there is no 

issue of any material fact, the issuance of the Notice of Pattern of Violations No. 833606 should 

be upheld. Sec. Motion at 4-5. 

 In its response to the Secretary’s Motion, Bledsoe decided to renew its cross-motion for 

partial summary decision. However, that latter matter was fully addressed in the Court’s prior 

Order. For the reader’s convenience, it appears again as an appendix to this Order. 

 Bledsoe notes that the Secretary has argued that POV Notice No. 8333606 should be 

upheld as a matter of law as she has “followed all of the procedural requirements set forth in 30 

C.F.R. Part 104.” Bledsoe Response at 2. Bledsoe contends that “[a]ll that is said by the 

Secretary to support a substantive finding of a POV in this case is . . . ‘the Abner Branch Rider 

Mine’s history of nine final [significant and substantial or ‘S&S’] violations of 30 C.F.R. 

§ 75.400 during the one-year pattern review period establishes a pattern of violations.’” Id. at 3, 

citing the Secretary’s Motion at 4. 

 Mischaracterizing the Secretary’s position, Bledsoe asserts that, by the Secretary’s 

argument, “[a]ll the Secretary must show is that she accused Bledsoe of subsequent S&S 

violations.” Id. (emphasis in original). Underlying that assertion is Bledsoe’s claim that the 

Secretary has not “offer[ed] a legal definition of ‘pattern,’ [and] ... instead has determined that 

more than one final S&S violation is sufficient.” Id. 

 3

 That provision, 30 C.F.R. § 104.3(a)(1), identifies “[a] history of repeated significant and 

substantial violations of a particular standard” as one of three listed, independent, criterion for identifying 

a pattern. To state the obvious, MSHA was identifying repeated violations of 30 C.F.R. § 75.400, which 

pertains to the grave matter of accumulation of combustible materials. 

36 FMSHRC Page 1192
 Bledsoe then transitions to its overriding issue of dissatisfaction, a matter already 

addressed in the Court’s prior Order, asserting that “[i]t is incumbent upon the Secretary to 

establish criteria to guide Bledsoe – and other operators – on what the law requires.”4

 Bledsoe 

asserts that, per the Court’s Order, the Secretary has both unfettered and unreviewable discretion 

to call “any pattern of more than one S&S accusation a POV.” 5 Id. at 4-5. Resurrecting its due 

process claim, it suggests that, as there is no definition of a POV, it would be impossible to 

determine if a POV is present for Bledsoe. On this basis, Bledsoe renews, with no new grounds, 

its prior motion for partial summary decision. The Court again directs attention to the Appendix 

to this Order, which provides its prior decision addressing these contentions. 

 Short of its wish to have the Secretary’s POV provisions cast aside, Bledsoe alternatively 

maintains that “[a]t the very least, [it] must be allowed to adjudicate whether the violations 

which placed it on POV status were properly designated S&S.” Id. at 6. In support of this, 

departing from the facts here, Bledsoe points to Rockhouse Energy Co. v. Secretary, 30 

FMSHRC 1125 (December 2008) (ALJ)(“Rockhouse”), wherein another ALJ “accelerat[ed] his 

trial schedule to rule decided similar S&S issues [sic] prior to the issuance of a POV notice . . . .” 

Id. But Bledsoe, in characterizing what another judge had to decide as “similar S&S issues,” 

 4

 Bledsoe, noting that the Court observed that the dictionary definition of a “pattern” involves “ a 

reliable sample of traits, acts, or other observable features characterizing an individual [ ] behavior 

[pattern] . . . ,” redescribes the issue as “[w]hether there is a ‘reliable pattern, . . .” asserting that is “a 

question for which there is no legal answer.” Respondent’s Response at 3-4 (emphasis added). A 

reliable sample is not synonymous with a reliable pattern. 

5

 Divorced from the reality of what occurred here, Bledsoe then lifts off into a nightmarish 

scenario, starting with the idea that the Secretary could call “any pattern of more than one S & S 

accusation a POV . . .[and] [o]nce a mine has more than one final S&S violation, the Secretary could call 

this a PPOV.” The subsequent issuance of S&S violations “could be factually deficient, contrary to law 

or even arbitrary, and [yet] the [mine] operator would be subject to a pattern finding.” Bledsoe Response 

at 5. While Bledsoe acknowledges that the Secretary would be required to follow her own internal 

guidelines, it asserts these could change at any time and without notice. Id. 

36 FMSHRC Page 1193
must be using the phrase “similar S&S issues” in the loosest of senses in trying to apply that case 

to the facts at hand.6 The reason is plain. Whereas in Rockhouse the mine operator was 

challenging whether some 23 citations issued under Section 104(a) were valid and whether, if 

valid, they were “S&S,” those issues had not already been decided. For Bledsoe, though it 

would like to unring the bell, it cannot. It has settled and paid the matters constituting the 

violations the Secretary has used for its pattern case. 

 Having considered the Secretary’s Motion and Bledsoe’s Response, the Court posed 

questions to the parties to better understand their positions. These were useful to the Court’s 

resolution of the Motion. Based in part upon those responses, the Court makes the following 

observations and findings. In Exhibit 1 to the Secretary’s Motion, the Secretary did identify, 

with particularity, to Bledsoe, under the page entitled “Screening Criteria for Pattern of 

Violations” at the “Final Order Criteria” box, that there were at least five (5) S&S citations 

/orders of the same standard that became final orders of the Commission during the 12 month 

period being reviewed of September 1, 2009 through August 31, 2010. In fact, MSHA identified 

that nine (9) such citations/orders were so involved. There is no dispute that each of these 9 

 6

 As Bledsoe stretches the applicability of Rockhouse, using a case that the Court considers to be 

very distinguishable, it also took the opportunity to bemoan that in this Court’s earlier Order of November 

10, 2011, it “was needlessly castigated for not quoting a portion of [the] language contained in 30 U.S.C. 

Section 814(e), although it repeatedly cited to the statute, the full text of which is readily available.” 

Response at 6-7. Bledsoe claims it was “needlessly castigated” because, after all, it made reference to the 

cite for the full statutory provision. By the full provision being cited, Bledsoe means it gave a full listing 

to the cited provision and one would not have to guess, for example, the chapter or section involved and 

therefore anyone could go look up the provision and there they would discover all of its words. While 

that much is true, as Bledsoe has elected to recast its approach as innocent, it is necessary to revisit what 

occurred in Bledsoe’s argument and its renewed protestation over the Court’s dim view of it. The 

provision at issue provides, in full, “(4) The Secretary shall make such rules as he deems necessary to 

establish criteria for determining when a pattern of violations of mandatory health or safety standards 

exists.” 30 U.S.C. § 814 (e)(4). In contrast, Bledsoe, citing to the same provision advised that “Congress 

mandated the Secretary, under Section 104(e)(4) of the Mine Act, to “make such rules” to establish the 

criteria for determining when a pattern of violations exists.” Bledsoe Motion at 3-4. (emphasis in 

Bledsoe’s motion). Apparently to save toner ink, Bledsoe omitted the four unhelpful words “as he deems 

necessary” from the 27 word provision. Four pages later in its argument, Bledsoe reasserted this claim, 

asserting that “Section 104(e)(4) of the Mine Act directed the Secretary to make rules for determining 

when a pattern of violations exists,” again omitting the “as he deems necessary” language. That omission 

is no small matter though, as Bledsoe takes the implication of its selective reading further by advising that 

in directing the Secretary “to make rules”, “Congress, in unambiguous language directed the Secretary to 

use notice and comment rulemaking.” 

36 FMSHRC Page 1194
violations involved the same standard, that each became final orders of the Commission and that 

each of them became final during the review period, as just cited above.7 

 The Court also noted that, within the Secretary’s Exhibit 1, attached to the Secretary’s 

Motion, five (5) pages were included, listing some 159 citations. Thirty-one (31) of those listed 

citations cited section 75.400 and Citation numbers 8356674, 8356676, 8362103, 8362416, 

8362419 and 8362424 were among the thirty-one citations citing that section.8 The Secretary 

explained the inclusion of these documents stemmed from the fact that they were included in 

MSHA’s November 18, 2010 letter to the Respondent. The five page list of 159 citations 

represents all of the violations issued to the mine during the review period and, of those, 

79 were S&S.9 The five page list of 159 citations supports the Secretary’s determination that the 

mine met the initial screening criteria, per 30 C.F.R. § 104.2. As shown by the “Screening 

 

7

 The Court found it unclear why Citation number 8333031, issued 4/15/2008, Citation number 

7528749, issued 7/30/2009 and Citation number 7528752, issued 8/3/2009 were included among the 9 

citations identified by MSHA when they seemed to be before the commencement of the September 1, 

2009 review period. The answer was that the test for inclusion considers citations that became final 

during the September 1, 2009 through August 31, 2010 time frame. The Court had overlooked that the 

“Pattern Criteria” provision, at 30 C.F.R. § 104.3, in fact provides that in identifying mines with a 

potential patten of violations, two prerequisites must be present: only citations and orders issued after 

October 1, 1990 are considered and they must have become final. The nine citations identified in the 

Final Order Criteria meet both those requirements: each was issued after October 1, 1990 and each 

became final during the review period. There is no dispute about these facts. 

8

 The Court also inquired about the relevance of the 31 citations which cited the proscription of 

accumulations of combustible materials, per 30 C.F.R. § 75.400, among the total number of 159 citations. 

Those 31 citations concerning § 75.400 included six of the nine citations which became final during the 

review period. As noted above, the other three became final during the review period, being issued after

October 1, 1990 and becoming final during the review period but they were not issued during the twelve 

month review period. One will recall that, as long as a citation/order is issued after October 1, 1990, the 

other determining factor for inclusion is that the citation/order becomes final during the review period. 

Each of those three did become final during the review period and, as previously noted, there is no factual 

dispute about that. Accordingly, while representing a complete record of the Section 75.400 violations 

cited during the review period, the 31 citations are not germane to the Secretary’s motion, other than 

reflecting six of the nine S&S violations which became final. Those nine, it will be recalled, met the 

“Final Order Criteria,” requiring that at least 5 such S&S citations/orders became final orders of the 

Commission during the one year review period. The Court notes that there is no factual dispute about this 

matter either. 

9

 The same 5 pages include a running total of the S&S violations, (described as “S&S Count” 

within the “Cumulative During Review Period” categories) as reflected in the next to the last column on 

the right hand side of each page. The S&S Count begins with Citation No. 8356674, which was issued on 

11/19/2009; it was the 6th citation issued to the mine during the date span reflected on the 5 pages 

reflecting all of the citations issued during the review period. 

36 FMSHRC Page 1195
Criteria Results for Pattern of Violations,” (“SCR for POV”), which was included in November 

18, 2010 letter from MSHA to the Bledsoe Mine, Initial Criteria 1 at item 1 requires that a mine 

have at least 50 citations/orders that were “S&S” and Bledsoe had 79. In each of the three other 

categories for Initial Criteria 1, Bledsoe’s Abner Branch Mine met those requirements.10 

 The Court also inquired as to the particular pattern criteria MSHA relied upon when it 

informed Bledsoe on November 18, 2010 that a Potential Pattern of Violations existed at its 

Abner Branch Mine. A related question, the Court asked whether, when MSHA informed the 

mine on March 18, 2011 that a PPOV continued to exist, that determination was based upon all

S&S violations or only S&S violations involving 30 C.F.R. § 75.400. The Secretary advised 

that the November 18, 2010 letter relied upon Section 104.2 in toto, as that Section identifies the 

factors to be considered in the Initial Screening review period. Once, as happened here, that 

Initial Screening did not eliminate the mine, MSHA advanced to the Pattern Criteria provision, 

as set forth at Section 104.3. In turning to Section 104.3, MSHA examined the three criteria 

identified at that provision, which includes “[a] history of repeated significant and substantial 

violations of a particular standard.” 30 C.F.R. § 104.3(a)(1). That “particular standard” here 

was 30 C.F.R. § 75.400. That determination was then reflected in MSHA’s November 18, 2010 

letter to the mine which letter included the Agency’s “Screening Criteria Results for Pattern of 

Violations” (i.e. the “SCR for POV,” referred to above). Accordingly, the Court finds that 

MSHA followed its rules completely; first finding that the mine was captured within the Initial 

Screening, per 30 C.F.R. Section 104.2, then identifying the applicable Pattern Criteria, per 

30 C.F.R. Section 104.3, and then issuing the notice, per 30 C.F.R. Section 104.4, on March 18, 

2011, that the mine failed to meet its target rate. Again, completely complying with its 30 C.F.R. 

Pattern of Violations provisions, the MSHA District Manager, finding that Bledsoe did not meet 

its target rate,11 and that no mitigating circumstances existed to explain that failure,12 submitted 

 10 For example, in category 2, it exceeded the rate of eight or more S&S citations/orders issued 

per 100 inspection hours by having a rate of 10.98. 

11 MSHA’s November 18, 2010 letter to the mine advised that it had to meet an S&S target rate of 

5.49, or lower, per 100 inspection hours. As noted in MSHA’s March 18, 2011 letter to the mine, 

Bledsoe did not come even close to this rate. Instead, its rate was more than double the maximum rate 

allowed, at 11.54 S&S violations per 100 inspection hours. In noting that the mine failed to achieve the 

target rate, MSHA’s review took into account all S&S violations issued per 100 inspection hours. 

12 It should be noted that Bledsoe’s Counsel has not argued that there were any such mitigating 

circumstances that should have been considered to explain its failure to meet the target rate of S&S 

violations. 

36 FMSHRC Page 1196
his report to the Administrator for Coal Mine Safety and Health and noted that the mine had 10 

days to submit comments to the Administrator about MSHA’s finding that a Potential Pattern of 

Violations continued to exist.13 

 MSHA has noted in its Supplement to Motion for Partial Summary Decision (Sec’s 

Supplement) that for the 18 alleged violations, each of which is also alleged to be S&S, none are 

final. That is, each of the 18 alleged violations, referenced in its March 18, 2011 letter to 

Bledsoe, are contested and pending litigation. Supplement at 6 and Exhibit 6. The Secretary 

takes the position that none of those 18 would need to be upheld for the Respondent to continue 

to be under a pattern. As expressed in the Sec’s Supplement, the mine met the pattern criteria 

per the District Manager’s November 18, 2010 letter to Bledsoe. However, the Secretary goes 

on to state that “[t]o avoid the consequences that may result from establishing such a pattern, 

under 30 C.F.R. § 104.4(a)(4) the mine was provided with an opportunity to institute a program 

to avoid repeated significant and substantial violations. The District Manager allowed a nineweek period, from January 11, 2011 to March 12, 2011, for determining whether the program 

effectively reduced the occurrence of significant and substantial violations at the mine. . . . that 

program was aimed at reducing the occurrence of significant and substantial violations at the 

mine without limitation to specific mandatory standards. The program failed.” Sec’s 

Supplement at 7. Thus, by the Secretary’s vantage point, because the mine “failed to effectively 

reduce the occurrence of significant and substantial violations during the period provided under 

30 C.F.R. § 104.4(a)(4), the Secretary issued 104(e) Notice No. 8333606.” Id. 

Although the Secretary notes, and the Court agrees, that “[t]here is no regulatory 

requirement that significant and substantial violations issued during the corrective-actionprogram period must be final before the Secretary may determine whether the program 

effectively reduced the occurrence significant and substantial violations at the mine,” that can 

only carry the Secretary’s position until the alleged violations with the disputed significant and 

substantial findings have been adjudicated. Any other position would make no sense at all. For 

example, if none of the 18 S&S violations were found, upon being litigated, to be, in fact, 

“S&S,” the Secretary could hardly assert that the mine failed to meet its target rate. While the 

Secretary adds that the pattern provision under the Mine Act does not even require “that the mine 

be provided with an opportunity to institute a program to avoid repeated significant and 

substantial violations before the Secretary may issue a 104(e) pattern notice,” the fact of the 

matter is that MSHA does provide such an opportunity. Sec’s Supplement at 7. That opportunity

would be meaningless if, under the example just given, a mine, despite showing that it in fact 

had met or exceeded its target rate, would remain under the pattern, regardless. 

 13 The 18 S&S violations identified in MSHA’s March 18, 2011 letter to Bledsoe have not 

become final orders. Each of them are being litigated. Accordingly, it is possible that, should a certain 

number of those S&S violations ultimately be found, either through litigation or otherwise, that they were 

not, in fact, S&S, the S&S violation rate could be redetermined to be at a lower rate than the presently 

assumed rate of 11.54 such violations per 100 inspection hours. 

36 FMSHRC Page 1197
 Finally, the Court inquired as to the impact on the other ten (10) dockets14 if it were to 

rule in favor of the Secretary’s Motion for Partial Summary Decision. The Secretary advises that 

a hearing would be needed for each of dockets. 

 Bledsoe too responded to questions posed by the Court and it renewed its cross-motion 

for summary judgment in the same document. (“Bledsoe Response”). In its Response, Bledsoe 

contends that the Secretary “argues that following the procedures set forth in 30 C.F.R. Part 104 

is all that is needed for an adjudication of a POV.” Bledsoe Response at 2 (emphasis in 

Response). Of course, the Secretary does not merely claim that procedural fealty alone can 

carry the day. Among other things, there have to be violations, which have become final and 

which became final during a particular review period. Bledsoe continues its argument, asserting 

that “the statute and the regulations remain silent as to what constitutes a POV,” but that too is an 

exaggeration, as the regulations do explain the pattern criteria and the steps which follow on the 

road to the issuance of a notice of a pattern of violations from the Administrator. Continuing its 

usage of hyperbole, Bledsoe claims that the Secretary “has determined that more than one final 

S&S violation is sufficient.” Id. at 3. The Secretary made no such claim. Instead, the Secretary 

gathered the facts pertaining to violations which became final during the review period and 

applied those final determinations to the regulations, noting along the way the Agency’s 

meticulous adherence to the procedural steps under the Pattern of Violations regulations at Part 

104. 

 So too, Bledsoe takes references to Congress’ statements about a pattern, wherein that 

body expressed that “a pattern would be ‘more than an isolated violation’ but not necessarily ‘a 

prescribed number of violations,” and the Court’s statement from that Congressional remark 

about patterns that “Congress identified one end of the spectrum, that a pattern is more than an 

isolated violation, but left it to the Secretary’s expertise to determine when more was needed to 

be done for enforcement than simply the routine process of identifying each violation, one by 

one, and then having each violation abated,” and transforms them into “the ALJ’s ruling” 

claiming that it is a “more than one” standard. In its subsequently submitted “SUPPLMENTAL 

[sic] MEMORANDUM”, Bledsoe repeats this claim: “Bledsoe is fully aware that the ALJ has 

ruled that more than one S&S violation may be sufficient to establish a pattern” and that this 

judge-created standard “subjects every mine in the country to a POV finding . . . [by] hold[ing] 

that any mine which receives more than one S&S violation over a two year period may be 

subject to a POV finding based on whatever criteria the Secretary chooses to apply at a given 

time.” SUPPL[E]MENTAL MEMORANDUM at 3. The Bledsoe-created “more than one” 

 14 These are Docket Numbers KENT 2011-1345, KENT 2011-1220, KENT 2012-284 and KENT 

2012-381. 

36 FMSHRC Page 1198
standard blossoms into a claim that it allows the Secretary to “call any pattern of more than one 

accusation a POV.” BLEDSOE RESPONSE TO SECRETARY’S MOTION at 4-5.15 

 

 In Bledsoe’s “SUPPL[E]MENTAL MEMORANDUM IN RESPONSE TO THE 

SECRETARY’S MOTION FOR PARTIAL SUMMARY DECISION,” it responded to two 

questions posed by the Court in reaction to the Motion and Bledsoe’s initial response thereto.16 

The Court asked if Bledsoe believed it should be entitled to relitigate all S&S violations, 

including those which have become final orders. As to final orders, Bledsoe concedes that it 

cannot relitigate S&S violations which have become final. However, Bledsoe, notes that, of the 

79 citations designated as “S&S” in the period from November 2, 2009 through August 25, 2010, 

it challenged 53 of them, with the 26 others becoming final orders. Bledsoe Suppl[e]mental 

Memorandum at 2-3. Bledsoe notes that “[a]ll 79 were the basis for the PPOV notice issued by 

the Secretary.” Id. at 3.

 In one aspect the Court does agree with Bledsoe. This relates to any S&S citations/orders 

which it has contested and have not since become final orders. As noted in a more detailed 

fashion below, any such non-final citations/orders which were a part of the basis for MSHA’s 

determination to issue its Section 104(e) Notice, No. 8333606, because they were part of the 

Agency’s determination that Bledsoe failed to meet its target rate, must be tried promptly 

because there is the possibility that some number of those violations could be found by the Court 

as non-S&S violations. A sufficient number of such non-S&S findings raises the possibility that 

Bledsoe’s S&S rate could be at or below 5.49 per 100 inspection hours. Only a hearing and a 

decision on those non-final matters can resolve that. In the meantime, just as with a section 

104(d)(1) citation or order, that is subsequently found, after a hearing, to lack the special findings 

of being S&S and unwarrantable, or simply unwarrantable, as the case may be, the section 104(e) 

Notice, No. 8333606 remains intact. Should the requisite number of violations be found to be 

 15 Though it started with the “more than one” seed, then nurtured it into a flower, Bledsoe then 

cultivates an entire garden, claiming that “[o]nce a mine has more than one final S&S vioilation, the 

Secretary could call this a PPOV [and following that it] “could issue as many S&S violations as her 

inspectors could write.” Moving to the hysterical, in both senses of the word, Bledsoe asserts “[i]n no 

time, every underground coal mine in the country will be on a POV.” Id. at 5. Really. 

16 The Court’s second question to Bledsoe requires little time to address. The Court asked 

Bledsoe whether, given its position that there is no definition of what constitutes a POV, does it maintain 

that MSHA must embark on rulemaking again. Bledsoe answered in the affirmative, asserting that the 

Secretary must engage in rulemaking to define a pattern of violations. Bledsoe Suppl[e]mental 

Memorandum at 4. The Court, based on its prior Order on Contestant’s Motion for Partial Summary 

Decision and this Order, finds that the Secretary’s Rulemaking for Part 104, Pattern of Violations passes 

scrutiny. 

36 FMSHRC Page 1199
“non-S&S,” and therefore establish that Bledsoe did achieve at least its target rate, the section 

104(e) Notice would be unwound, just as in the case of 104(d)(1) citations and orders found to be 

lacking.17

CONCLUSION

 For the reasons set forth above, the Secretary’s Motion for Partial Summary Decision is 

GRANTED. However, as noted at footnote 13, “The 18 S&S violations identified in MSHA’s 

March 18, 2011 letter to Bledsoe have not become final orders. Each of them are being litigated. 

At the hearing, these will be tried first. Accordingly, as discussed earlier, it is possible that, 

should a certain number of those S&S violations ultimately be found, either through litigation or 

otherwise, that they were not, in fact, S&S, the S&S violation rate could be redetermined to be at 

a lower rate than the presently assumed rate of 11.54 such violations per 100 inspection hours.” 

This is potentially important for Bledsoe, as a finding that some, yet to be calculated, number of 

violations either were not violations or at least were not “significant and substantial” violations, 

could reduce its S&S violation rate to at or below 5.49 per 100 inspection hours. Therefore these 

alleged violations need to be set for hearing immediately. The parties are directed to email the 

Court immediately to establish a date and time for a conference call so that the prompt hearing 

for these matters can be finalized. 

SO ORDERED. 

 

 /s/ William B. Moran

 

William B. Moran 

 Administrative Law Judge 

Distribution: 

Mary Beth Zamer, Esq., Christian P. Barber, Esq., Office of the Solicitor, U.S. Department of 

Labor, 618 Church Street, Suite 230, Nashville, TN 37219-2440 

Marco Rajkovich, Esq., John M. Williams, Esq., Rajkovich, Williams, Kilpatrick & True, PLLC, 

3151 Beaumont Centre Circle, Suite 375, Lexington, KY 40513 

 17 The analogy to the “chain” created under section 104(d) of the Mine Act is well understood and 

apt here. Placing a mine operator under the “increasingly severe sanctions” through that provision does 

not have to await a final determination before such sanctions become effective. See, e.g., Secretary v. 

Weirich Brothers, 27 FMSHRC 379, 2005 WL 1198587 (April 2005), and Secretary v. Lodestar Energy, 

25 FMSHRC 343, 2003 WL 21665294 (July 2003), noting that, where S&S and unwarrantable findings 

are not sustained, the citations or orders issued under section 104(d) are to appropriately modified. 

36 FMSHRC Page 1200
APPENDIX

 FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

Washington, D.C. 20001 

(202) 434-9933 

November 10, 2011 

BLEDSOE COAL CORPORATION, : CONTEST PROCEEDING 

 : 

 Contestant : DOCKET NO. KENT 2011-972-R 

: WRITTEN NOTICE NO. 8333606; 

 : 04/18/2011 

 : 

 : DOCKET NO. KENT 2011-973-R 

 v. : ORDER NO. 8353820; 04/18/2011 

 : 

 : DOCKET NO. KENT 2011-974-R 

 : ORDER NO. 8353821; 04/18/2011 

 : 

HILDA L. SOLIS, Secretary, : DOCKET NO. KENT 2011-975-R 

of Labor, United States Department : ORDER NO. 8353825; 04/21/2011 

of Labor : 

 : DOCKET NO. KENT 2011-976-R 

 : ORDER NO. 8353838; 05/03/2011 

 : 

 : DOCKET NO. KENT 2011-977-R 

 : ORDER NO. 8353839; 05/03/2011 

 : 

 : DOCKET NO. KENT 2011-978-R 

 : ORDER NO. 8353855; 05/10/2011 

 : 

 : DOCKET NO. KENT 2011-979-R 

 : ORDER NO. 8353858; 05/12/2011 

 : 

 : DOCKET NO. KENT 2011-980-R 

 : ORDER NO. 8406696; 05/10/2011 

 : 

 : DOCKET NO. KENT 2011-981-R 

 : ORDER NO. 8406699; 05/10/2011 

 : 

36 FMSHRC Page 1201
 : MINE ID NO. 15-19132 

: MINE: Abner Branch Rider 

 

ORDER ON CONTESTANT’S MOTION FOR PARTIAL SUMMARY DECISION 

Before: Judge Moran 

 On August 17, 2011, Contestant Bledsoe Coal Corporation (“Bledsoe”: filed its Motion 

for partial summary decision (“Motion”: seeking the vacation of each order issued by the Mine 

Safety and Health Administration (“MSHA” or “Agency”: associated with the Agency’s 

issuance of a notice of a pattern of violations (“POV”: on April 12, 2011. Bledsoe assails the 

Agency’s decision on the grounds that it was never subjected to notice and comment rulemaking, 

that it lacked fair notice and that the criteria it used were an unreasonable interpretation of the 

Mine Act and regulations. For the reasons which follow, each of Bledsoe’s claims is rejected.18 

 In an unfortunate practice of selectively quoting, and by that process, being misleading as 

to the Mine Act’s requirements regarding a pattern of violations of mandatory health or safety 

standards, Bledsoe asserts “Congress mandated the Secretary, under Section 104(e:(4: of the 

Mine Act, to “make such rules” to establish the criteria for determining when a pattern of 

violations exists.” Motion at 3-4 (emphasis in Motion:. The Mine Act states no such thing. 

Instead, the provision provides, in full, that “The Secretary shall make such rules as he deems 

necessary to establish criteria for determining when a pattern of violations of mandatory health 

or safety standards exists.”19 

 Although once would be too often, Bledsoe repeats its mischaracterization, which 

mischaracterization is not about some ancillary matter, but involves a fundamental aspect of the 

issue. Bledsoe’s own words put this on full display, as it asserts: “Section 104(e:(4: of the Mine 

Act directed the Secretary to make rules for determining when a pattern exists, but in so doing, 

Congress, in unambiguous language, directed the Secretary to use notice and comment 

rulemaking in accordance with the Administrative Procedure Act.” Bledsoe Motion at 8. And 

yet again, not much later in its Motion: “Congress required the Secretary to use notice-and-

 18 Simultaneously being issued today is the Court’s ruling on the Secretary’s Motion to Dismiss 

for Lack of Jurisdiction in which the Court DENIES the Secretary’s Motion. For ease of reference and 

because the two orders need to be considered together, a copy of that Order appears as an Appendix to 

this Order. 

19 It is a curious thing, the practice of advocates to parse out words and apparently assume that no 

one will notice that only part of the story has been told. In the Court’s view, it is better, and ethically 

superior, to acknowledge the troublesome language and deal with it forthrightly, either by arguing that it 

means something other than the words suggest or by demonstrating, if possible, that notwithstanding the 

nettlesome words, the Secretary must make rules even though the statute suggests that discretion is 

involved. 

36 FMSHRC Page 1202
comment rulemaking to establish POV criteria.” Id. at 11. To borrow, and slightly alter, an 

expression, “a mischaracterization, stated often enough, does not become an accurate 

characterization.” That is, proof by repeated assertion does not make something so. 

Accordingly, to keep the facts straight, it bears repeating, with emphasis upon the critical phrase 

omitted by the Contestant, to bring attention to the words of the statutory provision: 

The Secretary shall make such rules as he deems necessary to establish criteria for 

determining when a pattern of violations of mandatory health or safety standards exists. 

Thus, as evident by the italicized language, any rules are only as the Secretary deems necessary. 

With that power and discretion, one obvious option for the Secretary was that it could have been 

decided that no such rules were necessary. 

 

The parameters which may constitute a Pattern of Violations 

 As the Secretary has observed, the dictionary defines a “pattern” in a manner which is 

consistent with the common understanding of the word, by describing it as “a reliable sample of 

traits, acts, or other observable features characterizing an individual [] behavior [pattern] . . . .” In 

line with that sense, the Senate Committee spoke to that provision of the Mine Act, expressing 

that it would be shown where a mine has “‘an inspection history of recurrent violations’ or 

‘continuing violations,’ and that a pattern would be ‘more than an isolated violation’ but not 

necessarily ‘a prescribed number of violations.’” Response at n. 2, citing S. Rep. No. 95-151, pp. 

32-33. Thus, Congress identified one end of the spectrum, that a pattern is more than an isolated 

violation, but left it to the Secretary’s expertise to determine when more was needed to be done 

for enforcement than simply the routine process of identifying each violation, one by one, and 

then having each violation abated. 

 

 That Congress decided to leave it to the Secretary to develop the parameters for a pattern 

is not simply surmise. Both the statutory provision itself and the legislative history make this 

clear. Regarding the latter, the same Senate Report expresses an intent for the Secretary to be 

afforded “broad discretion in establishing criteria for determining when a pattern of violations 

exists.” Response at 6, citing the same S. Rep. at 33. The Senate, rather than setting a number of 

conditions and requirements for the pattern tool to be employed, did the opposite. It noted that 

the criteria for identifying a pattern would “necessarily have to be broad enough to encompass 

the varied mining activities within the Act’s coverage.” Id. The Senate went further in 

explaining its design, stating that a pattern can be composed of violations of different standards 

and was certainly not limited to violations of particular standards. Although it acknowledged the 

obvious, that a pattern, by definition must be more than a single, isolated, violation, that did not 

mean that “a prescribed number of violations” had to occur, nor that the violations had to come 

from “predetermined” that is, previously identified, standards. Last, the Senate noted that, while 

a “pattern” represents something more than an isolated violation, it does not require some intent 

or state of mind on the part of the mine where a pattern is found to exist. Id. Thus, if the pattern 

is present, that is sufficient, even if no intentional disregard of safety or health concerns is 

36 FMSHRC Page 1203
evident. In short, with intent not a prerequisite, a number, as long as it is a number greater than 

one, potentially can be enough, dependent upon the circumstances, to establish a pattern. 

 As the Secretary notes, from the Mine Act’s legislative history, the provision was 

intended to “provide an effective enforcement tool” in situations where the mine operator has 

demonstrated disregard for miners’ safety and health by having a pattern of violations. Its use 

was contemplated where a mine has permitted continued safety and health standard violations, 

and it has been concluded that simply abating violations as they occur is not doing the job, and 

that a next step is necessary to “restore the mine to effective safe and health conditions.” 

Response at 5, citing S. Rep. No. 95-181, pp. 32-33. (1977:. 

 

 Apart from whether the Secretary was obligated to promulgate a pattern regulation, the 

fact is that it did so, utilizing the notice and comment rulemaking procedures under the 

Administrative Procedure Act. This result of this process, appearing at 30 C.F.R. Part 104, 

begins by examining the compliance records of mines annually. Other factors, such as whether a 

mine has demonstrated a lack of good faith in correcting significant and substantial violations, 

the non 104(e: enforcement measures that have been applied, and whether the mine’s accident, 

injury or illness record reflects a serious problem with managing safety or health matters, are 

examined, together with any mitigating considerations. Where a mine is not ruled out after the 

initial screening, then a mine with recurring significant and substantial violations is evaluated by 

application of the pattern criteria. These are set forth at 30 C.F.R. § 104.3(a:(1:- (3:.20 Again, 

the review works by determining, at that second stage, if the mine under review may be 

eliminated from a pattern designation. If a mine remains a subject of concern, the third phase is 

applied. In that posture, the mine is notified of MSHA’s concern and that it has been identified 

 20 § 104.3 Pattern criteria. (a) The criteria of this section shall be used to identify those mines 

with a potential pattern of violations. These criteria shall be applied only after initial screening conducted 

in accordance with § 104.2 of this part reveals that the operator may habitually allow the recurrence of 

violations of mandatory safety standards or health standards which significantly and substantially 

contribute to the cause and effect of mine safety or health hazards. These criteria are (1) A history of 

repeated significant and substantial violations of a particular standard; (2) A history of repeated 

significant and substantial violations of standards related to the same hazard; or (3) A history of repeated 

significant and substantial violations caused by unwarrantable failure to comply. (b) Only citations and 

orders issued after October 1, 1990, and that have become final shall be used to identify mines with a 

potential pattern of violations under this section. 55 FR 31136, July 31, 1990. 

36 FMSHRC Page 1204
as having a potential pattern of violations issue.21 Even then, in what can only be described as an 

overabundance of due process, the mine is not faced with a section 104(e: enforcement action. 

Instead the mine has the opportunity: to examine the documents MSHA has relied upon to arrive 

at that stage of review; to provide additional information to the Agency; to request a conference 

with MSHA; and to launch a program to avoid such repeated significant and substantial 

violations.22 As the Secretary appropriately observes, Section 104(e:(1: does not require that 

these extraordinary lengths be taken before a notice under that provision can be issued. Thus, it 

is a great understatement on the Secretary’s part to describe the rulemaking as providing “ample 

notice” before issuance of the section 104(e:(1: notice. A mine operator is provided notice “writ 

large” under the rule and this occurs in the context of requiring the Secretary to provide only a 

 21 The Proposed Rule noted that the intention behind section 104(e) is plain; it is intended to 

address “mines with a record of repeated S & S violations” upon the Secretary’s determination that the 

Act’s other enforcement mechanisms have not been effective in achieving compliance with the safety and 

health standards. The Rule noted that, in accomplishing that next step, “[t]he Secretary has broad 

discretion in determining [the] criteria [for determining when a pattern exists].” 54 FR 23156-01 at * 

23156. 

Truly, the Rule’s operation allows, effectively, an individualized notice and comment procedure, 

upon the Agency’s notification to a particular mine that the mine is under review for a possible pattern of 

violation issuance. This process ensures that a given mine will have had the opportunity for full input 

into the Agency’s review of the appropriateness for that specific mine to be issued a notice of a pattern 

under section 104(e). 

 Certainly the Agency’s final rule reflected full consideration of all comments made to the 

proposal, together with the Agency’s rationale for its responses to those comments. In short, the rule does 

not operate in any automatic function; input from the mine involved is considered before the 

Administrator makes the final determination. Further, while the “Initial screening” considers non-final 

citations and orders, the “pattern criteria” used to identify mines with a potential pattern takes into 

account only those that have become final citations or orders. 55 FR 31128-01 at * 31136. 

22 Section 104.4, Issuance of notice, provides: (a) When a potential pattern of violations is 

identified, the District Manager shall notify the mine operator in writing. A copy of the notification shall 

be provided to the representative of miners at the mine. The notification shall specify the basis for 

identifying the mine as having a potential pattern of violations and give the mine operator a reasonable 

opportunity, not to exceed 20 days from the date of notification, to take the following steps: (1) Review 

all documents upon which the pattern of violations evaluation is based. (2) Provide additional 

information. (3) Submit a written request for a conference with the District Manager. The District 

Manager shall hold any such conference within 10 days of a request. The representative of miners at the 

mine shall be provided an opportunity to participate in the conference. (4) Institute a program to avoid 

repeated significant and substantial violations at the mine. The District Manager may allow an additional 

period, not to exceed 90 days, for determining whether the program effectively reduces the occurrence of 

significant and substantial violations at the mine. The representative of miners shall be provided an 

opportunity to discuss the program with the District Manager. 30 C.F.R. § 104.4. 

36 FMSHRC Page 1205
notice that a pattern of violations exists.23 Again, that determination by the Secretary, that a 

mine has “a pattern of violations of mandatory health or safety standards,” requires making rules 

for establishing the criteria for determining when a pattern exists, only as the Secretary deems 

necessary. Section 104(e:(4:. 

 Even after the completion of all that process, more is provided, as the District Manager, 

upon concluding at the end of the day that a potential pattern exists, then sends a report 

concerning the evaluation to the applicable MSHA Administrator at which point the mine has yet 

another opportunity for comment. It is not until all that has transpired that the Administrator 

makes the decision whether the mine is to be issued a notice of a pattern of violations. 30 C.F.R. 

§ 104.4(c:. If there is a problem to be identified with the procedure developed by MSHA, it is 

that it is far too generous and prolonged. It is hard to imagine, given the Senate Report 

statements about this enhanced enforcement tool and the design for its use, that Congress 

intended such a protracted process.24

 

 Moving from the established framework for determining whether to proceed with a 

pattern of violations to applying that procedure in the present case, the Secretary notes that it 

conducted such a screening for Bledsoe’s Abner Branch Rider Mine, examining a 12 month 

period which ended on August 31, 2010, and then, following the final rule’s procedure, informed 

Bledsoe there was a potential pattern. Bledsoe was advised at that time that 9 citations or orders 

pertaining to violations of 30 C.F.R. § 75.400, which had all become final orders were part of 

this matter. Meetings followed and Bledsoe, utilizing the Rule’s procedures, submitted a 

corrective action plan. That plan, again pursuant to the Rule, was evaluated by the District 

Manager, who advised the Respondent that he would be required to make a report to the 

Administrator and that occurred on March 18, 2011. Nearly four weeks later, on April 12, 2011, 

the Administrator for Coal Mine Safety and Health notified Bledsoe that he had determined the 

existence of a pattern of violations at the mine. The District Manager then issued, that same day, 

a Section 104(e:(1: notice, Number 8333606, which is the subject of this litigation. 

 In arguing that Bledsoe’s arguments should be rejected, the Secretary first addresses the 

claims about inadequacy of the screening process, and its objections that the regulation does not 

“specify the time period of a mine’s compliance history that will be examined during the initial 

 23 Accordingly, Bledsoe’s claim that the Secretary did not give “fair notice” of the criteria to 

determine a POV is hollow. When challenging those citations/orders which have not been settled, 

Bledsoe could, in theory, challenge whether it received “fair notice” of the particular standard therein 

cited, as distinct from the rejected claim that it had no notice of the criteria used to determine a POV. In 

the same vein, claims that “rulemaking by program policy manual and website” and by “press release” do 

not deserve further comment. 

24 While one might think that the final rule would be the final word on the subject, MSHA has 

further addressed the subject in its Program Policy Manual. Suffice it to say that while the PPM provides 

helpful explanatory guidance about the final rule for Agency personnel, it does not amend, alter, or 

otherwise change that Rule. 

36 FMSHRC Page 1206
screening” and that it is not limited to considering only final orders in that initial screening 

process. The Secretary’s response is convincing, as it notes that Section 104(e: has no such 

requirement for a particular time period to be examined. The implicit suggestion, that MSHA 

should have selected a fixed time period, would have been arbitrary. The Secretary properly 

notes that the legislative history recognized that a one-size-fits-all approach would be jejune.25 

Further, as this reasoned choice by the Secretary is not unreasonable, nor arbitrary or capricious, 

the deference principles articulated in Chevron U.S.A., Inc. v. Natural Resources Defense 

Council, Inc., 467 U.S. 837 (1984: apply. Sec. Response at 23. 

 In the same vein, the Secretary observes that the statutory provision is also silent on the 

issue of whether non-final citations and orders may be considered.26 The Secretary makes two 

key points on this issue: 

 Limiting pattern consideration to final orders would undermine 

 Section 104(e:'s effectiveness by eliminating consideration of current 

 or recent mine conditions and practices – precisely the matters that 

 are most relevant in determining whether the mine currently should be 

 considered for enhanced enforcement measures – and focusing 

 consideration instead on mine conditions and practices that are more 

 remote in time. 

Sec. Response at 24-25. The Contestant’s position would severely hamper the enforcement tool 

that Section 104(e: surely is, as “citations and orders frequently do not become final until months 

or years after they are issued.”27 Id. at 24. 

 25 As the Secretary states: “In promulgating § 104.2 - the initial screening regulation - the 

Secretary expressly declined to impose a particular period to be examined in every case, recognizing that 

‘interruptions in mining operations, changes in mine management or ownership, or other factors could 

indicate that this period should be longer or shorter.’ 55 Fed. Reg. 31,130 (July 31, 1990). And in 

promulgating the pattern criteria in § 104.3, the Secretary expressly rejected the suggestion that ‘only 

citations and orders issued within certain time periods . . . be considered in applying the pattern criteria’ 

because such a rule ‘would unduly restrict the Agency's ability to enforce section 104(e). . . .’ Id. at 

31,132-3.” Sec. Response at 23. Further, the Secretary observes that “Congress expressly delegated to the 

Secretary the authority to make rules to implement Section 104(e) [and that the same Section] is silent 

with respect to the compliance-history period to be considered when determining whether the mine has a 

pattern of violations. Id.

26 The Secretary looks to the legislative history, urging that it “suggests that Congress did not 

intend to require the Secretary to limit her consideration to final orders. Section 104(e) was enacted in 

response to the Scotia mine disaster and the ensuing investigation which revealed that the mine had an 

‘inspection history of recurrent violations.’ S. Rep. No. 95 181, p. 32. Congress thus focused Section 

104(e) on a mine's ‘inspection history’ rather than on a mine's final order history.” Sec. Response at 24. 

In the Court’s view, this is certainly a rational interpretation of the legislative history and therefore it 

supports the Secretary’s approach here, per Chevron. 

36 FMSHRC Page 1207
 Second, the Secretary aptly compares the pattern of violation application with the 

unwarrantable failure sequence of Section 104(d:. This is not a stretch by any means, as the 

Senate Report itself made such a comparison, observing that the POV “sequence parallels the 

current unwarrantable failure sequence." S. Rep. No. 95-181, p. 33. Borrowing from that Senate 

Report, the Secretary notes that the comparison was expressly stated. Particularly pertinent here 

in that comparison is the point that “[i]t is beyond debate that a closure order under Section 

104(d:(1: may be based upon a Section 104(d:(1: citation that is not final, and a closure order 

under Section 104(d:(2: may be based upon a Section 104(d:(1: order that is not final.” Id. at 25. 

 Thus, the Court agrees with the Secretary’s point that, by Congress making such a 

comparison, it is reflective that POV determinations also need not be based upon final orders. 

Further, clearly, under a Chevron analysis, the Secretary’s decision to include non-final citations 

and orders, does not run counter to the statute, nor can it be characterized as arbitrary, 

unreasonable or capricious. 

 Turning to Contestant’s claim28 that the POV Procedures Summary and Screening 

Criteria are “rulemaking through website” in violation of Section 104(e: of the Mine Act and the 

notice-and-comment provisions of the APA, the Secretary makes the same point that the Court 

noted earlier, namely that, “Section 104(e:(4: of the Mine Act does not ‘require[] the Secretary to 

use notice-and-comment rulemaking to establish POV criteria’ . . . . Section 104(e:(4: provides 

only that the Secretary ‘shall make such rules as he deems necessary’; it does not require any 

particular rulemaking procedure.” Id. at 26, referencing Contestant’s Motion at 11. 

 The Secretary also makes note that, under the Administrative Procedure Act, rules may 

be valid even though not promulgated after notice under 5 U.S.C. § 553(b:,29 and that, as “rules,” 

they are exempt from the APA's notice-and-comment provisions because such provisions “do 

not apply to ‘interpretative rules, general statements of policy, or rules of agency organization, 

procedure, or practice [ ].’”30 Id. at 26-27. 

 27 One could fairly expect that if mine operators had their way and only final orders could be 

considered before a pattern could be invoked, the defense would then be raised by some that such 

information was now stale and useless in assessing the mine’s current operational procedures, given the 

passage of years since the conditions were initially cited. Thus, if it were to prevail that such pre-final 

orders were “too soon” to be considered, and MSHA were left to consider only final orders, those would 

then be characterized as “too late.” Often, the approach is really about delay. For example, back in 1980, 

when the task of identifying mines with a pattern of violations was first raised as a proposed rule, the 

“concerns” raised caused the Agency to withdraw its proposal with the result that it was not until nearly 

nine (9) years later before it was proposed again. 

28 Contestant’s Motion at 12. 

29 5 U.S.C. § 553(b)(3)(A), (B). 

30 5 U.S.C. § 553(b)(3)(A) 

36 FMSHRC Page 1208
 These two observations also make sense when placed in the context of the use for the 

“POV Procedures Summary and Screening Criteria.” That critical context is that the POV 

Procedures “describe the internal procedures MSHA personnel – and only those who answer to 

the Administrator – follow in reviewing mine violation histories under Section 104(e: of the 

Mine Act and Part 104; they pertain to the procedural aspects of the review of mine violation 

histories. They are not law; they do not bind the public.” Id. at 27. (emphasis added:. 

 Further, as the Secretary also notes, although the POV Procedures “may bind MSHA 

personnel to the extent personnel must follow supervisory direction, they do not bind the 

Administrator in any case. They address MSHA's conduct in reviewing mine violation histories 

in preparation for the Administrator's exercise of discretion regarding possible enforcement 

action; they do not address operator conduct. [Accordingly,] [t]hey help ‘direct the analysis [of 

whether the mine has a pattern of violations] but not necessarily the answer.’” Id. at 27.31

(emphasis added:. The Secretary observes that this is consistent with “MSHA's Procedure 

Instruction Letter [which was] held exempt from notice-and-comment rulemaking in National 

Mining Ass'n. v. Secretary of Labor, 589 F.3d 1368, 1372 (11th Cir. 2009:.”32 Similarly, the 

Secretary points out that “the POV Procedures Summary and Screening Criteria address ‘the 

general procedures District Managers are to consider’ in evaluating a mine's violation history 

under Section 104(e: of the Mine Act and Part 104; but the agency – the District Managers and 

 31 Citing Ryder Truck Lines, Inc. v. United States, 716 F.2d 1369, 1377 (11th Cir. 1983). As the 

11th Circuit observed in that case, “[a]s long as the agency remains free to consider the individual facts in 

the various cases that arise, then the agency action in question has not established a binding norm.” 

Citing American Trucking Associations, Inc. v. ICC, 659 F.2d at 463, among other cases. In Ryder, the 

Court recognized that various criteria had been enumerated but that any presumptions remained rebuttable 

and that the review will involve scrutinizing the actual operation. That is exactly what occurs here. Also 

as in Ryder, the process of issuance of a section 104 (e) notice follows “an intensely factual determination 

informed by [the] relevant criteria.” 

32 As the 11th Circuit emphasized, National Mining Ass'n. v. Secretary of Labor, the obligation to 

publish a proposed rule pertains to the promulgation of new or revised mandatory standards. No new 

“across-the-board rules” have been created by the POV Procedures. 

36 FMSHRC Page 1209
ultimately the Administrator – is ‘free to consider individual facts' when evaluating each specific 

mine." (quoting Ryder Truck Lines, 716 F.2d at 1377:.” Sec. Response at 27-28.33 

 Thus, the Court agrees with the Secretary that Part 104 informs the mining community of 

the pattern criteria used to identify a potential pattern of violations at a given mine and the 

procedures MSHA will follow upon making such identification, culminating in the 

Administrator’s decision as to whether a notice of a pattern of violations will be issued.34 

Drummond is not instructive.

 Bledsoe points to Secretary v. Drummond Company, Inc., 14 FMSHRC 661, 682 (May 

1992: for authority in support of its inaccurate claim that “Section 104(e:(4: of the Mine Act 

directed the Secretary to make rules for determining when a pattern of violations exists . . . .” 

Motion at 8. Drummond challenged the Secretary's interim excessive-history civil penalty 

program and the Commission found that the program was inconsistent with and therefore 

modified the existing 30 C.F.R. Part 100 penalty regulations. However, as the Secretary 

 33 The Secretary cites a host of cases presenting similar situations: the Occupational Safety and 

Health Administration's per-instance-penalty policy held exempt from notice-and-comment rulemaking in 

Kaspar Wire Works, Inc. v. Secretary of Labor, 268 F.3d 1123, 1132-33 (D.C. Cir. 2001), the POV 

Procedures Summary and Screening Criteria do not "‘encode[] a substantive value judgment or put[] a 

stamp of approval or disapproval on a given type of behavior.'" (quoting American Hosp. Ass'n. v. Bowen,

834 F.2d 1037, 1047 (D.C. Cir. 1987)); the Department of Health and Human Services ("HHS") Provider 

Reimbursement Manual provision held exempt from notice-and-comment rulemaking in SentaraHampton Gen. Hosp. v. Sullivan, 980 F.2d 749, 759 (D.C. Cir. 1992), the POV Procedures Summary and 

Screening Criteria are "not intended to substantively change existing rights and duties." In SentaraHampton Gen. Hosp., the Court explained that explaining ambiguous language or reminding parties of 

existing duties, that is not creating new law. Id. Thus, the POV procedures only address the exercise of 

enforcement discretion under 30 C.F.R. Part 104 and not "enforcement of new obligations." Accordingly, 

they do not bring about substantive change. See also JEM Broadcasting Co. v. FCC, 22 F.3d 320, 326-27 

(D.C. Cir. 1994) (holding exempt FCC's "hard look" rules that guided agency's review of license 

applications and resulted in elimination of some applications); the HHS Manual IM85-3 policy held 

exempt from notice-and-comment rulemaking in American Hosp. Ass'n. v. Bowen, 834 F.2d 1037, 1051-

52 (D.C. Cir. 1987), the POV Procedures Summary and Screening Criteria "target" the "focus" of 

MSHA's "enforcement efforts," do not impose new burdens on operators, and are well within MSHA's 

"discretionary enforcement authority;" and the Federal Savings and Loan Insurance Corporation's 

directives held exempt from notice-and-comment rulemaking in Guardian Fed. Sav. and Loan Ass'n. v. 

FSLIC, 589 F.2d 658, 666-67 (D.C. Cir. 1978), the POV Procedures Summary and Screening Criteria 

preserve the enforcement discretion of the Administrator.” 

34 Having concluded that the Secretary was not required to do as much as it did, the Court agrees 

that more was not needed beyond the issuance of Part 104. As the Secretary notes, the Administrative 

Procedure Act “does not require that all the specific applications of a rule evolve by further, more precise 

rules.” Sec. Response at 30, citing Shays v. Federal Election Comm'n., 528 F.3d 914, 930 (D.C. Cir. 

2008) (quoting Shalala v. Guernsey Mem'l. Hosp., 514 U.S. 87, 96 (1995)). 

36 FMSHRC Page 1210
correctly observes, “ nothing in the POV Procedures Summary or Screening Criteria is 

inconsistent with or modifies 30 C.F.R. Part 104 or any other regulation.” Id. at 30. 

The Court would add that the circumstances were very different in that case as 

Drummond focused exclusively on the penalty computation regulations which were in existence 

and formulated through the notice and comment process.35 Placed in context, in that litigation, 

the complaint was that penalties were being computed, not in accordance with Part 100 but rather 

upon the Secretary of Labor’s Program Policy Letter, which was a program established outside 

the notice and comment process of the Administrative Procedure Act. As the Commission 

expressed it, the challenge from the mine operators in Drummond was that the Secretary was 

failing to act within the framework of its own Part 100 regulations. Id. at *672. 

 The Secretary’s action here would seem to fit within the APA definition of a “Rule,”36

but the present question is whether there is any deficiency in its application. There was, 

following the proposed rule, the opportunity for comment from the affected public. It is also true 

that the notice and comment process is not applicable where interpretive rules, general 

statements of policy, or rules of agency organization, procedure or practice are involved. 5 

U.S.C. § 553 (b:(3:(A:. While notice and comment is intended to accomplish public 

participation and fairness, here Congress’ expressed intent was to leave it to the Secretary’s 

discretion as to whether such rules were needed. In short, it was left to the Secretary, not the 

public, to ultimately decide the parameters of a pattern. Further, consistent with the conclusion 

that the pattern rule is a statement of policy, it clearly leaves the Agency, through the 

Administrator, with discretion in its decision making. In fact, it is the ultimate in that regard, as 

the Administrator, not the final rule, makes the final decision whether to proceed with a pattern 

notice.37 

 

 Regarding Bledsoe’s claim that there was retroactive rulemaking, the Secretary responds 

that the Pattern provision was promulgated decades before the notice of pattern issued here. The 

Court agrees that, by that rulemaking, Sections 104.2 (a:(1: and 104.3(a: gave Bledsoe notice of 

the parameters upon which a pattern could be formulated. Therefore, Bledsoe’s protestation that 

 35 Based on the Court’s other comments in this Order, Bledsoe’s claim that MSHA has engaged in 

“rule-making through website postings” needs no further comment. Bledsoe Motion at 12-13. 

36 5 U.S.C. § 551(4) defines “Rule” as “the whole or part of an agency statement of general or 

particular applicability and future effect designed to implement, interpret, or prescribe law or policy or 

describing the organization, procedure, or practice requirements of an agency and includes the approval or 

prescription for the future of rates, wages, corporate or financial structures or reorganizations thereof, 

prices, facilities, appliances, services or allowances therefor or of valuations, costs, or accounting, or 

practices bearing on any of the foregoing.” 

37 It must again be noted that once the Administrator makes that determination, it is hardly the 

end of the story. A mine operator then has the opportunity to challenge the violations constituting the 

pattern. 

36 FMSHRC Page 1211
it was caught unaware of the effect of not challenging 26 of the citations which make up the 79 

citations during the period from September 1, 2009 through August 31, 2010, rings hollow. 

There are two reasons for this: first, “Bledsoe was not entitled to know and the Secretary was not 

obligated to supply information about the internal procedures adopted to guide the agency's 

exercise of Section 104(e: enforcement discretion.” Second, and of significance, as a “pattern 

does not necessarily mean a prescribed number of violations38, . . . Bledsoe had no reason to 

expect that it would ever know that a certain number of S&S violations would subject it to 

review for a potential pattern or pattern of violations.”39 Id. at 34-35. 

 In sum, the Secretary reiterates that the POV Procedures Summary and Screening Criteria 

were not required to undergo notice and comment rulemaking. Instead, they serve as guidance 

for MSHA in the exercise of its discretionary enforcement authority and as such they are not 

binding on the public or the Administrator. Thus, the Secretary emphasizes that it sufficiently 

“informed the public through § 104.3(a: that a history of repeated S&S violations: (1: of a 

particular standard; (2: of standards related to the same hazard; or (3: caused by unwarrantable 

failure to comply, would identify it as a mine with a potential pattern of violations.”40 Sec. 

Response at 32. The Court agrees. 

 There is one aspect of Bledsoe’s argument with which the Court agrees, at least in theory. 

That is Bledsoe’s assertion that the “practical effect of a POV notice is that a mine is subject to 

closure every time an S & S citation is issued. [It notes that] [t]hese citations may be challenged 

by the operator; however there will still be a closure upon issuance. This allows the Secretary, 

based on nothing more than allegations, to repeatedly close a mine in perpetuity. In fact, even if 

all such citations are later vacated, the operator has no remedy to prevent such closures.” 

Bledsoe Motion at 8. In the Court’s view, this observation is really an argument in support of 

 38 Though referenced earlier in this Order, the Senate spoke to this subject at S. Rep. No. 95-181, 

p. 33. 

39 In the same vein, the Secretary points out that Bowen v. Georgetown Univ. Hosp., 488 U.S. 204 

(1988), involving as it did, the retro-active application of a substantive, legislative rule that was intended 

to have the force and effect of law, is inapposite, as the POV Procedures Summary and Screening Criteria 

are procedural. 

40 The Court further agrees that the cases cited by Bledsoe, cases – Akzo Nobel Salt, Inc. v. 

FMSHRC, 212 F.3d 1301 (D.C. Cir. 2000), and Phelps Dodge Corp. v. FMSHRC, 681 F.2d 1189 (9th 

Cir. 1982) – involved challenges to the Secretary's interpretation of mandatory standards that required or 

prohibited certain conduct by the mine operator and that Trinity Broadcasting of Florida, Inc. v. FCC, 

211 F.3d 618 (D.C. Cir. 2000) – involved the FCC's interpretation of a regulation that required certain 

conduct by a regulated party. It is a key distinction that the POV Procedures Summary and Screening 

Criteria “merely instruct agency personnel in screening and reviewing mines for potential patterns of 

violations” as opposed to requiring or prohibiting certain conduct by operators. Sec. Response at 33. 

36 FMSHRC Page 1212
Bledsoe’s Response to the Secretary’s Motion to Dismiss for Lack of Jurisdiction. As noted at 

the outset of this Order, the Court has DENIED the Secretary’s Motion. See n.1, supra.

 For the foregoing reasons, Contestant Bledsoe’s Motion for Partial Summary Decision is 

DENIED. The parties are directed to contact the Court via its email address for the purpose of 

arranging a hearing date so that this matter can proceed forward. 

SO ORDERED. 

 /s/ William B. Moran 

 William B. Moran 

 Administrative Law Judge

36 FMSHRC Page 1213
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 

May 13, 2014 

 

INTERIM DECISION

Appearances: Timothy J. Turner, Esq., Office of the Solicitor, U.S. Department of 

Labor, Denver, Colorado for Petitioner 

 C. Gregory Ruffennach, Esq., Washington D.C. for Applicant 

Before: Judge Manning 

This case is before me upon an application for the award of fees and expenses under the 

Equal Access to Justice Act (“EAJA”) 5 U.S.C. 504 and the Commission’s regulations at 29 

C.F.R 2704. North County Sand & Gravel, Inc., filed the application against the Department of 

Labor’s Mine Safety and Health Administration based upon my decision in North County Sand 

& Gravel, Inc., 35 FMSHRC 3217 (Sep. 2013) (ALJ). 

North County seeks an award in the amount of $40,180.60 under the EAJA, alternatively 

under 29 C.F.R 2704.105(a) and 29 C.F.R 2704.105(b). North County attests, and the Secretary 

does not oppose, that it satisfies the basic requirements to be eligible to receive an EAJA award 

under 29 C.F.R 2704.104.1

I find that North County is entitled to an EAJA award under 29 C.F.R 2704.105(a). I 

furthermore order the parties to confer upon the amount of reimbursement to be awarded to 

North County. 

 

 1

 Section 2704.104 requires that only small entities that are parties to the adversary adjudication 

may seek EAJA awards. The standards are different for individuals and entities, but focus on net worth 

and number of employees. North County has a net worth less than “$7 million and not more than 500 

employees.” 29 C.F.R 2704.104(b)(3)(iii). 

NORTH COUNTY SAND & GRAVEL, 

 INC., 

 Applicant 

 v. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Respondent 

: 

: 

: 

: 

: 

: 

: 

: 

: 

:

 EQUAL ACCESS TO JUSTICE 

PROCEEDING 

Docket No. EAJ 2014-1-J 

Formerly WEST 2010-365-M 

Mine ID 04-05632 

Mine: Roadrunner 32 

36 FMSHRC Page 1214
I. BACKGROUND 

The underlying case concerned one citation that MSHA issued under section 104(d)(1) of 

the Federal Mine Safety and Health Act of 1977, 30 U.S.C. §815(c)(3) (the “Mine Act” or 

“Act”). A hearing in that case, concerning Citation No. 7980681 of Docket No. WEST 2010-

365-M, was held on May 1, 2013, in San Bernardino, California.2 The parties presented 

testimony and documentary evidence and filed post-hearing briefs. 

 On April, 16, 2009, MSHA Inspector Steven Soderburg issued Citation No. 7980681 

under section 104(d)(1) of the Mine Act, alleging a violation of section 56.15005 of the 

Secretary’s safety standards. The inspector designated Citation No. 7980681 as significant and 

substantial (“S&S”) and highly likely to cause an injury that could reasonably be expected to be 

fatal. He also alleged that the violation was the result of North County’s reckless disregard and 

unwarrantable failure. The Secretary proposed a specially assessed penalty of $35,500 for this 

citation. 

 Citation No. 7980681 alleged that Inspector Soderburg saw the owner and president of 

North County, Michael LaPaglia, standing upon a portable crusher without fall protection. The 

ground was 11 feet below where LaPaglia stood. The Secretary provided photographs and called 

Inspector Soderburg to testify to show where LaPaglia was standing when the inspector issued 

the citation and also provided proof to show that LaPaglia was an experienced miner who had 

owned North County for over 20 years. Counsel for the Secretary focused her efforts upon 

impeaching LaPaglia’s testimony by asking questions about specific details concerning when 

North County purchased the cited portable crusher and when it obtained legal title to the crusher. 

These events occurred years earlier and were irrelevant. 

 At hearing, North County contested the citation and its designations, but stated that the 

“number one reason” it brought the citation to hearing was the large penalty that the Secretary 

proposed. (Tr. 125 in WEST 2010-365-M). North County focused upon providing evidence to 

show that the Secretary did not consider factors required by the Secretary’s penalty regulation at 

30 C.F.R. § 100.3(a)3

 and that the penalty was too high based upon the factors set forth in section 

 2

 Pamela Mucklow represented the Secretary prior to and at the hearing. On July 22, 2013, 

Timothy Turner filed a Substitution of Counsel and became the Secretary’s counsel. 

3

 Section 100.3(a) states, in part: 

The amount of the proposed civil penalty shall be based on the criteria set forth in 

sections 105(b) and 110(i) of the Mine Act. These criteria are: 

 (i) The appropriateness of the penalty to the size of the business of the operator charged; 

 (ii) The operator's history of previous violations; 

 (iii) Whether the operator was negligent; 

 (iv) The gravity of the violation; 

 (v) The demonstrated good faith of the operator charged in attempting to achieve rapid 

compliance after notification of a violation; and 

 (vi) The effect of the penalty on the operator's ability to continue in business. 

30 C.F.R. 100.3(a). 

36 FMSHRC Page 1215
30 C.F.R. § 100.3(a)4

 and that the penalty was too high based upon the factors set forth in section 

110(i) of the Mine Act.5

 North County called one witness, LaPaglia, to testify. 

I issued a decision on the merits on September 26, 2013. In that decision, I modified the 

citation at issue, reducing the penalty to $3,500, the negligence designation from reckless

disregard to high, the likelihood from highly likely to reasonably likely, and reduced the 

Secretary’s designation of fatal for the likely injury. 

The day of the hearing, May 1, 2013, North County filed a Motion to Strike the 

Secretary’s Specially Assessed $35,500 Proposed Penalty. In that Motion to Strike, North 

County argued that the Secretary’s special assessment procedure was arbitrary and unlawful 

because the Secretary’s general principles used to determine the amount of special assessments 

modify the part 100 penalty scheme, but did not undergo notice and comment rule making 

required by the Administrative Procedure Act. (Ex. R-3). North County argued that the special 

assessment general procedures removed the requirement that the Secretary base penalties upon 

the six penalty criteria and make narrative findings of his consideration of those criteria. (R. 

Mot. to Strike at 9). The special assessment policies produce penalties contrary to the scheme 

mandated by congress in the Mine Act by inflating penalties against small, compliant operators. 

Due to what North County asserted to be the unlawful procedures used to determine and apply 

the specially assessed penalty, it asserted in its Motion to Strike that the $35,500 special 

assessment at issue should be removed. 

On July 22, 2013, the Secretary filed a substitution of counsel and on July 23, 2013, prior 

to submitting a post hearing brief, the Secretary filed a Motion to Amend the Penalty Proposal 

and to Deny North County’s Motion to Strike as Moot. The Secretary’s Motion to Amend 

reduced the proposed penalty from $35,500 to $5,961, removing the special assessment. North 

County subsequently opposed the Secretary’s Motion to Amend, objecting to the assertion that 

4

 Section 100.3(a) states, in part: 

The amount of the proposed civil penalty shall be based on the criteria set forth in 

sections 105(b) and 110(i) of the Mine Act. These criteria are: 

 (i) The appropriateness of the penalty to the size of the business of the operator charged; 

 (ii) The operator's history of previous violations; 

 (iii) Whether the operator was negligent; 

 (iv) The gravity of the violation; 

 (v) The demonstrated good faith of the operator charged in attempting to achieve rapid 

compliance after notification of a violation; and 

 (vi) The effect of the penalty on the operator's ability to continue in business. 

30 C.F.R. 100.3(a). 

5

 Section 110(i) of the Mine Act states, in part: 

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.

30 C.F.R. 110(i). 

36 FMSHRC Page 1216
the amendment of penalty mooted its Motion to Strike. In response, the Secretary filed a motion 

in support of its Motion to Amend. On July, 30, 2013, I issued an order granting the Secretary’s 

Motion to Amend and finding North County’s Motion to Strike moot because the subject special 

assessment was no longer at issue after I granted the Secretary’s Motion to Amend. North 

County Sand & Gravel, Inc., 35 FMSHRC 2318 (July 2013) (ALJ). In that order, I limited my 

ruling to the civil penalty proceeding, specifically stating that the ruling did not address or affect 

an EAJA claim. Id at 2320. 

II. PARTIES’ ARGUMENTS 

North county argues that it is entitled to fees and expenses under 29 C.F.R 2704.105(a) 

because it was a prevailing party and the position of the Secretary was not substantially justified. 

The judge lowered the penalty. The initial penalty is the Secretary’s position “upon which the 

adversary adjudication [was] based[.]” 29 C.F.R 2704.105(a). The judge’s de novo penalty 

determination of $3,500 must be compared to the original proposed penalty of $35,500. The 

judge made a decision on the merits and the Secretary can no longer demand a higher penalty for 

Citation No. 7980681, which makes North County a prevailing party. The judge’s penalty was a 

de novo assessment that provided the necessary judicial imprimatur and was not affected by the 

Secretary lowering the penalty. 

The Secretary, North County argues, provided no evidence to support the extreme nature 

of the penalty and did not address the history, good faith, or size of North County. North County 

references the argument in its Motion to Strike that the procedure used in the special assessment 

of Citation No. 7980681 violated 30 C.F.R. 100.5(b). The assessment was also not proportional 

to other penalties assessed against North County, inconsistent with penalties assessed to other 

operators for violations of section 56.15005, and was substantially in excess of the properly 

assessed penalty under 30 C.F.R 100.3. The Secretary’s post trial decision to remove the special 

assessment also supports the argument that the $35,500 penalty was unreasonable and 

unjustified. 

 North County also notes that the judge removed the reckless disregard determination 

from Citation No. 7980681 because the Secretary presented “no evidence” to show that LaPaglia 

knew of his violation of the standard but ignored it. North County Sand & Gravel, 35 FMSHRC 

at 3223. Section 56.15005 does not designate a height at which fall protection must be worn, 

which shows that the Secretary based its argument upon unjustified inferences and not objective 

factors. 

If North County is not a prevailing party under 29 C.F.R 2704.105(a), it argues that it is 

entitled to attorney fees and expenses under 29 C.F.R 2704.105(b) because the demand of the 

Secretary was unreasonable and substantially in excess of the judge’s decision. 

The Secretary argues that North County was not a prevailing party because the Secretary, 

not the judge, voluntarily removed the special assessment and lowered the penalty to $5,961. 

The judge never ruled upon the $35,500 penalty because the Secretary voluntarily amended the 

penalty. The judge also affirmed the Secretary’s unwarrantable failure and S&S designations 

and found that North County’s high negligence caused Citation No. 7980681. 

36 FMSHRC Page 1217
Even if North County was a prevailing party, the Secretary asserts that his position was 

substantially justified. A reasonable person could find that the underlying violation was the 

result of North County’s reckless disregard because LaPaglia owned the mine. The highly likely 

designation was also reasonable because the inspector had a reasonable belief that the cited 

conduct would recur. The fatal designation of Citation No. 7980681 was justified based upon 

the inspector’s experience and the judge’s finding that a fatality was possible. Citation No. 

7980681 violated a Rule to Live By, which led to a special assessment of the penalty. MSHA 

also followed its usual procedures to propose a penalty under special assessment and did not 

review the application of those procedures to this case until after the hearing. 

The Secretary cites Colorado Lava to argue that if North County was a prevailing party, 

then section 2704.105(b) is inapplicable under Commission precedent. Colorado Lava Inc., 27 

FMSHRC 186, 195 (Mar. 2005). The Secretary’s position is substantially justified and therefore 

is also reasonable under 29 C.F.R 2704.105(b). The Secretary’s proposed penalty of $5,961, 

furthermore, was not substantially in excess of the judge’s decision. 

III. DISCUSSION AND ANALYSIS 

Commission procedural rules state that “a prevailing applicant may receive an award of 

fees and expenses incurred in connection with a proceeding, or in a significant and discrete 

substantive portion of the proceeding, unless the position of the Secretary was substantially 

justified.” 29 C.F.R 2704.105(a). 

The “position of the agency” includes the “position taken by the Secretary in the 

adversary adjudication” and “the action or failure to act by the Secretary upon which the 

adversary adjudication is based.” 29 C.F.R 2704.105(a). A position may “encompass both the 

agency’s prelitigation conduct and...subsequent litigation positions,” but “only one threshold 

determination for the entire civil action is to be made.” Commissioner, I.N.S. v. Jean, 496 U.S. 

154, 159 (1990). 

Section 5 U.S.C. 504(a)(1), implemented by the Commission in 29 C.F.R 2704.105(a), 

requires that a party to the action be a prevailing party to be awarded funds in an EAJA claim. 

The term “prevailing party” is a term of art that means “one who has been awarded some relief 

by the court[.]” Buckhannon Bd. and Care Home, Inc. v. West Virginia Dept. of Health and 

Human Resources, 532 U.S. 598, 603 (2001). A prevailing party must prevail on the merits of 

some of its claims and receive at least nominal relief. See Buckhannon, 532 U.S. at 603-04 

(citing Farrar v. Hobby, 506 U.S. 103, 113 (1992)). The D.C. Circuit interpreted Buckhannon to 

impose a three part test to determine prevailing party status, “(1) there must be a “court-ordered 

change in the legal relationship” of the parties; (2) the judgment must be in favor of the party 

seeking the fees; and (3) the judicial pronouncement must be accompanied by judicial relief.” 

District of Columbia v. Straus, 590 F.3d 898, 901 (D.C. Cir. 2010) (quoting Thomas v. National 

Science Foundation, 330 F.3d 486, 492-93 (D.C. Cir. 2003)). 

Once a party is established as the prevailing party, EAJA mandates that the Commission 

award fees and expenses to the prevailing party unless the Secretary proves that “the position of 

36 FMSHRC Page 1218
the agency was substantially justified or that special circumstances make an award unjust.” 29 

C.F.R 2704.100. 

The government bears the burden to show that its position was substantially justified. 

Scarborough v. Principi, 541 U.S. 401,414 (2004). The Secretary must justify his position “to a 

degree that could satisfy a reasonable person” to prove that his actions were substantially 

justified. Pierce v. Underwood, 487 U.S. 552, 564-566 (1988). The substantially justified 

standard demands more than non-frivolousness, but less than a showing that the government's 

“‘decision to litigate was based on a substantial probability of prevailing.’” Taucher v. Brown–

Hruska, 396 F.3d 1168, 1173 (D.C. Cir. 2005) (quoting Spencer v. NLRB, 712 F.2d 539, 557 

(D.C. Cir. 1983)). The position must be “substantially justified on the law and facts[.]” 

Contractor's Sand and Gravel, Inc. v. Federal Mine Safety and Health Review Com'n, 199 F.3d 

1335, 1340 (D.C. Cir. 2000). 

Secretary’s Position in the Underlying Case 

I find that the position of the Department of Labor pertinent to North County’s EAJA 

claim includes the Secretary’s demand for $35,500. Only one determination of the Secretary’s 

position can be used in an EAJA proceeding; each change in position does not warrant a separate 

finding. Jean, 496 U.S. at 159. The Secretary’s original position demanded a penalty of $35,500 

from North County for its violation of section 56.15005. The Secretary adhered to this position 

throughout the proceeding including during the hearing. The large monetary amount of the 

proposed penalty caused North County to contest the penalty, incur substantial legal fees, and 

proceed to hearing. The Secretary adhered to this position for years and it composed both “the 

position taken by the Secretary in the adversary adjudication” and “the action or failure to act by 

the Secretary upon which the adversary adjudication is based.” 29 C.F.R 2704.105(a). 

The Secretary consistently maintained that the proposed penalty of $35,500 was 

appropriate from the onset of the litigation until more than two months after the close of the 

hearing. The Secretary’s actions led North County to incur substantial legal fees. The aim of 

EAJA is to deter the government from forcing small entities to incur legal fees when the 

government’s position is unjustified; here, allowing the government to change its entrenched 

position to avoid an EAJA claim defeats the purpose of EAJA. The government stood by its 

position through the adversary adjudication and North County had already incurred attorney fees, 

regardless of the post-hearing amendment that the Secretary made. The adjudication was based 

upon the Secretary’s prehearing and litigation position that included a proposed penalty of 

$35,500 and that is the position that is pertinent to this EAJA award.6

 

The Secretary argues that had North County filed its Motion to Strike earlier, the parties 

could have resolved the case without a Motion for Summary Decision or hearing; I disagree. 

North County raised this issue in its answer to the Secretary’s penalty petition. Moreover, North 

County filed a Motion for Summary Decision on June 30, 2012 that, among other issues, argued 

 6

 I reject the Secretary’s argument that the decrease in penalty was a voluntary change and not the 

product of judicial action. I assessed the penalty de novo and my assessment of a $3,500 penalty was not 

influenced by the fact that the Secretary amended the penalty after the hearing. 

 

36 FMSHRC Page 1219
that MSHA’s special assessment did not consider the six penalty criteria in the Mine Act and the 

Secretary’s penalty regulations and that the Secretary “provided absolutely no information as to 

how the $35,500 penalty was determined.” (R.’s Motion for Summary Decision at 11-14).7

 

Thus, North County presented the core argument included in its Motion to Strike to the Secretary 

well before the hearing, but the Secretary did not change his position and, in all likelihood, did 

not review the legitimacy of the special assessment at that time. The Secretary only reduced his 

proposed penalty, changing his position and settlement offer, after participating in the hearing 

and appointing new counsel as his representative. Ms. Mucklow, the Secretary’s counsel until 

July 2013, apparently showed no interest in reviewing the basis for the special assessment or in 

otherwise settling the case. 

North County’s Prevailing Party Status 

I find that North County is a prevailing party under 29 C.F.R 2704.105(a) because in the 

underlying proceedings, (1) I ordered a change in the relationship of the parties (2) in favor of 

North County which (3) provided judicial relief to North County. In my September 26, 2013, 

decision, I ordered a final disposition of Citation No. 7980681, which modified the citation and 

removed the Secretary’s ability to further change the penalty or designations of the citation. The 

modifications all favored North County: I lowered the negligence designation from reckless 

disregard to high, found that the cited condition was reasonably likely and not highly likely to 

lead to an injury, and that the likely injury would not be fatal.8

 Most important to this 

proceeding is the significant reduction of penalty that North County received. North County 

declared that its main objective at hearing was to achieve a reduction in the proposed penalty and 

tailored its arguments and presentation of evidence to achieve that goal. North County achieved 

its primary goal of a penalty reduction and is therefore a prevailing party, even though I found 

that they owe more than zero dollars.9 My conclusion that a penalty of $3,500 was appropriate 

for the violation was not based on the Secretary’s motion to amend the penalty. 

 7

 By order dated April 12, 2012, I denied the motion because material facts were in dispute as to 

the merits of the citation. 

8

 I reject the Secretary’s argument that he was victorious based upon the affirmation of the 

unwarrantable failure and S&S designations of Citation No. 7980681. Every modification made to the 

citation was adverse to the Secretary’s position. Any success achieved by the Secretary would affect the 

extent of North County’s victory, which subsequently would diminish the fees awarded to North County. 

Hensley v. Eckerhart, 461 U.S. 424, 432 (1983). 

9

 North County argues that if it is not a prevailing party it is entitled to relief under section 

2704.105(b). The Secretary made a demand that substantially exceeded my decision and was 

unreasonable, but I find that North County is not eligible for relief under section 2704.105(b). A party 

that does not prevail may be entitled to attorney’s fees under EAJA if “the demand of the Secretary is 

substantially in excess of the decision of the Commission and is unreasonable when compared with such 

decision[.]” 29 C.F.R 2704.105(b). Section 2704.105(b) does not apply to prevailing parties because 

prevailing parties “could argue that they meet the requirements of the ‘excessive demand’ prong 

of section 504(a)(4) in nearly every instance, rendering it essentially meaningless (although the 

Secretary's demand must also be determined to be ‘unreasonable’).” Colorado Lava, Inc., 27 FMSHRC 

at 189. 

36 FMSHRC Page 1220
The decision provided judicial relief and changed the legal relationship of the parties by 

modifying the citation and lowering the penalty owed by North County. The legal relationship 

between the parties changed, North County prevailed in some of its claims and was awarded 

relief by the court; North County is therefore a prevailing party for the purposes of this EAJA 

proceeding. 

Substantial Justification 

The Secretary did not fulfill his burden to substantially justify his position on the law and 

facts; he did not adhere to the requirements of 30 C.F.R. 100 and provided no convincing 

evidence that he was justified to initially propose and then litigate a $35,500 penalty. Once an 

applicant shows that it was a prevailing party, the Secretary bears the burden to justify his 

position “to a degree that could satisfy a reasonable person.” Pierce v. Underwood, 487 U.S. at 

564-66. Although the Secretary substantially justified his positions concerning his negligence 

and gravity designations that I modified following the hearing,10 he did not justify the amount of 

his proposed penalty. The Secretary’s Objection to Application for Award of Attorney’s Fees 

and Expenses ignores the criteria required by 30 C.F.R. 100.3(a) and 30 C.F.R. 100.5(b)11 and 

argues that the Secretary’s procedures, which were either inapplicable or not followed, justified 

his position; the Secretary did not satisfy a reasonable person that his position was justified. 

 The Secretary did not provide evidence to show that he proposed the penalty after 

considering all the factors that the Mine Act requires, as set forth in 30 C.F.R. 100.3(a) and 30 

C.F.R. 100.5(b). The Secretary did not address the penalty factors or explain why a penalty of 

$35,500 was appropriate under the Mine Act. The Mine Act mandates that Secretary formulate 

penalties based upon the six criteria in section 100.3(a). To justify the specific penalty amount in 

an EAJA case, therefore, the Secretary must show how he applied the penalty criteria to the facts 

of the case or at least address why the amount was reasonable. 

In the underlying case, furthermore, the penalty was the focus of the dispute and the 

Secretary should have supported that penalty by demonstrating its consideration of all the factors 

required by the Mine Act. The Secretary had numerous opportunities to provide that information 

and justify his penalty, but he failed to do so. North County challenged the validity of the 

specially assessed penalty in its answer to the Secretary’s penalty petition and in its motion for 

summary decision. In his opening statement at the hearing, counsel for North County asserted 

that his primary goal at hearing was the reduction of the penalty. The basic facts of the violation, 

which were easy to discern from photographs, were the only proof presented by Mucklow at the 

underlying hearing. These facts allowed me to uphold the violation as well as the Secretary’s 

10 Although I did not uphold all the designations proposed by the Secretary, they were not 

unreasonable for the purposes of this EAJA proceeding. The reasonableness standard of the EAJA is a 

distinct legal standard. The judicial decision in the proceeding underlying the EAJA claim can be 

relevant, but is not determinative. Halverson v. Slater, 206 F.3d 1205, 1208 (D.C. Cir. 2000) (citing F.J. 

Vollmer Co., Inc. v. Magaw, 102 F.3d 591, 595 (D.C. Cir. 1996)). 

11 Section 100.5(b) mandates 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.” 30 C.F.R. 100.5(b). 

36 FMSHRC Page 1221
S&S and unwarrantable failure designations, but they do not justify the large proposed penalty, 

especially considering the mine’s small size, the company’s sparse history of previous violations, 

and its demonstrated good faith. I determined that North County was a small operator with only 

two employees at the Roadrunner 32 Mine at the time the citation was issued. 35 FMSHRC at 

3223. The mine had a history of three violations, none of which were S&S. (Id.; Ex. G-19 in 

WEST 2010-365-M). The mine operated on an intermittent basis. North County employed 

between 20 and 25 people at other facilities but most worked in operations that were not subject 

to the Mine Act. (Tr. 130-31 in WEST 2010-365-M). 

When North County filed its Motion to Strike, the Secretary did not oppose the motion by 

supporting the validity of its special assessment by addressing the six penalty criteria; the 

Secretary chose instead to avoid doing so and removed the special assessment. In its motion to 

amend the penalty, the Secretary stated: “After reviewing the arguments presented in 

Respondent’s motion and revisiting the evidence of the circumstances surrounding the citation at 

issue, the Secretary has determined that the conditions surrounding the violation at issue do not 

warrant a special assessment.” (Motion at 2). At no point in the underlying proceedings did the 

Secretary show how the penalty amount was formulated, how it related to the penalty factors in 

section 100.3(a), or show that he even considered all the factors. The Secretary’s Petition for 

Assessment of Penalty, as filed with the Commission, did not include Narrative Findings for a 

Special Assessment or any other documents setting forth the basis for the proposed penalty. 

I reject the Secretary’s argument that his $35,500 proposed penalty was justified because 

he abided by his “own policies.” (Sec’y Br. at 12). The Secretary states that he decided to lower 

his proposed penalty “based on procedural gaps within the specific assessment process[.]” 

(Sec’y Br. at 6, 13-14). These “procedural gaps” could have and should have been discovered by 

the Secretary long before the citation was adjudicated at a hearing. When North County 

challenged the special assessment in its motion for summary decision, the Secretary should have 

conducted a review of his special assessment of the citation. His failure to do so is not a defense 

to North County’s EAJA claim. 

The Secretary’s assertion that his position is justified because MSHA specially assesses 

all violations of its “Rules to Live By” actually undermines his position. As North County points 

out, MSHA’s “Rules to Live By” policy referenced by the Secretary did not exist when the 

penalty was proposed, which shows that the Secretary could not possibly have abided by it when 

assessing this penalty.12 The Secretary cannot revise the past to make the position he took in the 

past appear justified. 

The timing of the Secretary’s amendment of its penalty, moreover, is suspicious. North 

County disputed the specially assessed penalty throughout the proceedings, including in its 

answer to the penalty petition filed February 18, 2010 and in its Motion for Summary Decision 

filed on January 30, 2012. The Secretary maintained that his initial penalty proposal was 

appropriate and only reconsidered the penalty after North County filed its Motion to Strike and 

the Secretary substituted counsel. 

 12 The Rules to Live By policy was enacted in March 2010, but the Secretary filed his Petition for 

Penalty on January 15, 2010. 

36 FMSHRC Page 1222
Once an operator shows that it is a prevailing party, the Secretary bears the burden to 

show that his position was substantially justified. I find that the Secretary failed to fulfill this 

burden. The Secretary’s justification of his position in this case could satisfy no reasonable 

person.13 The arguments that there were procedural gaps within the assessment process at issue 

and that the Secretary did not review the penalty procedures until after North County filed its 

Motion to Strike actually support that it was unreasonable for the Secretary to pursue such a high 

penalty against a small operator; he did not follow his own procedures and did not bother to 

review the procedures that the disputed penalty was based upon, but adhered to the penalty 

throughout the adjudication. The Mine Act requires the Secretary to base his proposed penalty 

upon the six penalty criteria and therefore he is required to present his consideration of those 

factors to the court. This failure, in addition the arguments that the Secretary did present, make it 

clear that the Secretary did not fulfill his burden to justify his position. North County is entitled 

to an EAJA fee award under 29 C.F.R 2704.105(a). 

IV. ORDER 

It is ORDERED that North County’s EAJA application for attorney’s fees and expenses 

is GRANTED. The parties are FURTHER ORDERED TO CONFER before May 21, 2014, 

in an attempt to reach agreement upon the specific reimbursement to be awarded. An agreement 

as to the amount of reimbursement to be awarded will not preclude either party from appealing 

this decision upon entry of my final order. If an agreement is reached, a Joint Stipulation on 

Reimbursement shall be submitted to me on or before June 4, 2014. The relief may be a lump 

sum payment. 

If an agreement cannot be reached, the parties are FURTHER ORDERED to submit 

their respective positions upon the disputed issues, with any necessary supporting arguments, 

case citations, and citations to the record, on or before June 18, 2014. Each party shall submit 

specific proposed dollar amounts with explanations for the amount chosen. 

I retain jurisdiction over this case until I issue a specific award to North County. 

Consequently, this decision will not become a final appealable decision until I issue an order 

containing a monetary award. 

 /s/ Richard W. Manning 

 Richard W. Manning 

 Administrative Law Judge 

 13 North County argues that the Secretary’s special assessment procedure is inherently 

unreasonable. In this instance I find that the application and litigation of that procedure was 

unreasonable, but it is unnecessary for me to rule upon the procedure in general and therefore I decline to 

do so. I limit my findings to the specific facts and circumstances presented by this case. 

36 FMSHRC Page 1223
Distribution: 

 

Timothy J. Turner, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, 

Suite 1600, Denver, CO 80202-5708 (Certified Mail) 

C. Gregory Ruffennach, Esq., 1629 K Street, N.W. STE 300, Washington DC 20006-1621 

(Certified Mail) 

36 FMSHRC Page 1224
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 

May 13, 2014 

REMAND DECISION

Before: Judge Feldman 

The Commission, in a decision with a majority and concurring opinion, has vacated 

the $8,300.00 total civil penalty assessed for the four citations adjudicated in this proceeding, 

and remanded this matter for reconsideration of the appropriate civil penalties. 36 FMSHRC __ 

slip op. (April 2014), remanding 32 FMSHRC 1361 (Sept. 2010) (ALJ). The four citations were 

issued at Sequoia Energy’s (“Sequoia’s”) coal preparation plant located in Harlan, Kentucky. 

At the prep plant, rock material separated from coal is loaded into haul trucks from refuse bins. 

The refuse trucks then transport the rocks from the refuse bins to a refuse pile that is situated 

approximately one quarter of a mile from the preparation plant. 32 FMSHRC at 1362. 

The Commission majority has directed that I revisit the appropriate civil penalties 

consistent with its decision. The Commission majority remanded this matter because it 

concluded that: 

(1) I erred in assessing the penalties because I reduced the proposed penalties 

“based upon [my] consideration of prior penalties that were proposed 

pursuant to a different penalty regulation [in 30 C.F.R. Part 100];”1

 and 

(2) the initial decision failed “to reconcile seemingly unsupported or 

inconsistent findings with respect to the four penalties.” 

Slip op. at 1.

 1

 Specifically, the majority notes that the initial decision made reference to prior proposed 

penalties assessed under the Secretary’s outdated penalty formula, rather than the revised formula 

contained in the March 2007 amendment of Part 100 of the Secretary’s penalty regulations. 72 Fed. Reg. 

13592 (Mar. 22, 2007). 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

 v. 

SEQUOIA ENERGY, LLC, 

 Respondent 

: 

: 

: 

: 

: 

: 

: 

:

 CIVIL PENALTY PROCEEDING 

Docket No. KENT 2008-1059 

A.C. No. 15-12428-149534 

Mine: Prep Plant 

36 FMSHRC Page 1225
The joint concurring opinion of two Commissioners did not assume that I had considered 

the amount of the Secretary’s prior proposed penalties in my penalty assessment. Rather, the 

concurring opinion would have remanded for “clarification of the reason [the Judge] referred to 

prior [proposed penalties] and the use, if any, he made of them.” Slip op. at 16 (Commissioners 

Young and Althen, concurring). In addition, the concurring Commissioners noted that they 

would have provided an opportunity “to explain whether [the Judge] was aware of and/or took 

into account the change in penalty regulations in referring to the prior penalties.” Id. at n.10. 

The genesis of this remand is the “principal argument advanced by the Secretary – that 

the Judge ‘abused his discretion by considering a factor outside those listed in Section 110(i), 

[30 U.S.C. § 820(i),] i.e., the amounts of previous penalties.’” Slip op. at 11 (concurring), citing 

PDR at 11. 2 The Secretary’s assertion is predicated on a parenthetical paragraph contained at 

the end of the initial decision, which states: 

I note parenthetically, that the previous penalties proposed by the 

Secretary for violations concerning Sequoia’s failure to correct 

defects on mobile equipment ranged from $60.00 to $400.00 

compared to the $3,996.00 to $5,503.00 range currently proposed 

by the Secretary for the four adjudicated citations. I recognize the 

Secretary’s concern that Sequoia needs to display greater efforts to 

maintain its heavy duty refuse trucks regardless of their operation 

under adverse conditions. The imposition of civil penalties from 

$1,200.00 to $3,500.00 in this case, that are significantly greater 

than previous assessments imposed by the Secretary for similar 

violations, adequately address the Secretary’s concern. 

13 FMSHRC at 1372. 

 

 2

 Section 110(i) states: 

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). 

36 FMSHRC Page 1226
I. Relevance of 30 C.F.R. Part 100

The Commission routinely remands matters involving civil penalty amounts for analysis 

of whether the civil penalty criteria in Section 110(i) were properly applied. However, in this 

case, the Commission has concluded that I impermissibly considered the Secretary’s prior 

proposed penalty amounts in my civil penalty analysis. 

Of course, as directed by the Commission, I will revisit the issue of the appropriate civil 

penalties by reconciling unsupported or inconsistent findings, and address their impact with 

respect to application of the traditional Section 110(i) framework. 3 However, it is difficult to 

discern whether the Commission majority found error because it believed I considered the old, 

rather than the new, civil penalty regulations promulgated by the Secretary, or, because it 

concluded that I should not have considered the Secretary’s Part 100 criteria at all. In any event, 

as discussed below, I hope it is clear that I am incapable of correcting a perceived error in my 

analysis that has not occurred. 

The Judge is the most reliable source for identifying the scope of the civil penalty 

analysis considered in his decision. Slip op. at 11, 16 (concurring). The Commission’s 

well-established framework for assessing civil penalties, upon which I solely relied, is set forth 

in the initial decision and need not be repeated. 32 FMSHRC at 1364-65. In this regard, 

the initial decision explicitly and repeatedly considered Section 110(i) criteria in determining 

the appropriate penalties. 32 FMSHRC at 1364-65, 1367, 1369, 1371, 1372. 

My reference to prior penalty amounts in the initial decision was solely intended to 

illustrate that I was not trivializing the four violations in issue.4

 Significantly, the parenthetical 

paragraph appears at the end of the initial decision, after the civil penalties had already been 

assessed pursuant to Section 110(i). 

While the penalties proposed by the Secretary in contested cases before an ALJ are 

always a focus, and the basis for any significant reduction in proposed penalties must be 

articulated, I have never, in more than two decades with the Commission, considered the history 

of the Secretary’s proposed penalty amounts in my assessment analysis. See Slip op. at 9, citing 

Cantera Green, 22 FMSHRC 616, 620-21 (May 2000) (holding that substantial deviations from 

the Secretary’s proposed assessments must be adequately explained). It is significant that the 

Secretary also asserts that “an ALJ may not rely on such amounts [past penalties] to arrive at 

penalties for new violations.” Slip op. at 13 (concurring), citing PDR at 11, citing Jim Walter 

 3

 Although the deterrent purposes of the Mine Act are inherent in the Section 110(i) criterion 

concerning the appropriateness of the amount of the civil penalty compared to the size of the mine 

operator, the Commission did not explicitly articulate that deterrence was an appropriate consideration 

until Black Beauty Coal Company, 34 FMSHRC 1856 (Aug. 2012). As the Commission’s decision in 

Black Beauty was issued after the penalties were initially assessed in this matter, I will not consider the 

effect of Black Beauty, if any, in my reassessment of the appropriate civil penalties. 

 

4

 In its remand, the Commission majority also used comparisons of penalty amounts for 

illustrative purposes. Slip op. at 6, n.7. 

 

36 FMSHRC Page 1227
Resources, Inc., 28 FMSHRC 579 (Aug. 2006) (holding that although past penalties may be 

noted, they are not a determinative factor as they are outside the scope of Section 110(i)). 

Moreover, the importance of insulating the Commission’s exercise of its delegated 

authority to assess civil penalties independent from the Secretary’s penalty proposals is 

consistent with both longstanding legislative history and caselaw. In this regard, the Conference 

Report for the Act states: 

The conference substitute provides for an independent Federal 

Mine Safety and Health Review Commission. This Commission is 

assigned all administrative review responsibilities and is also 

authorized to assess civil penalties. The objective in establishing 

this Commission is to separate the administrative review functions 

from the enforcement functions, which are retained as functions 

of the Secretary. This separation is important in providing 

administrative adjudication which preserves dues process and 

instills confidence in the program. 

S. Conf. Rep. No. 95-461, at 58 (1977), reprinted in Senate Subcomm. On Labor, Comm. on 

Human Res., Legislative History of the Federal Mine Safety and Health Act of 1977, at 1360 

(1978) (emphasis added). 

The Court affirmed the Commission’s firm belief in its independent role in assessing civil 

penalties in Sellersburg Stone Co. v. FMSHRC, 736 F.2d 1147, 1152 (7th Cir. 1984) (holding that 

neither the Mine Act nor the Commission’s regulations require Commission Judges to apply the 

Part 100 point system in assessing penalties). Thus, although relevant as a point of reference, 

Commission Judges are not beholden to the penalties proposed by the Secretary. In fact, it is 

not uncommon for Commission Judges to assess penalties greater than those proposed by the 

Secretary. See, e.g., Spartan Mining Company, Inc., 29 FMSHRC 465 (June 2007) (ALJ), 

aff’d 30 FMSHRC 699 (Aug. 2008); F.R. Carroll, Inc., 26 FMSHRC 97 (Feb. 2004) (ALJ). 

Although I did not distinguish between the Secretary’s former and current Part 100 

penalty regulations, implicit in my assessment of penalties higher than those previously proposed 

by the Secretary was a recognition of the increased penalties sought by the Secretary under his 

revised guidelines.5

 I agree with the Secretary that the history of proposed penalty amounts is a 

“factor outside” the Section 110(i) penalty criteria. Slip op. at 11 (concurring), citing PDR at 11. 

As such, since it is not a proper consideration in determining the appropriate penalty to be 

assessed, whether I referenced the old or new Part 100 regulations is immaterial. 

Rather, my goal was merely to ensure that the penalty reduction in the initial decision 

was viewed in the proper perspective. Having excluded consideration of the Secretary’s 

previous penalty amounts from my initial penalty calculation, resolution of the question of 

 5

 I have issued numerous penalty decisions concerning penalties proposed under the Secretary’s 

March 2007 revised enhanced Part 100 penalty criteria. See, e.g., McCoy Elkhorn Coal Corp., 33 

FMSHRC 2403, 2420, 2421-22 (Oct. 2011) (ALJ) (imposing the proposed penalty for one citation, and 

raising the proposed penalty for another); Knox Creek Coal Corp., 31 FMSHRC 1422, 1434 (Dec. 2009) 

(ALJ) (assessing the Secretary’s proposed penalties for two citations). 

36 FMSHRC Page 1228
whether Administrative Law Judges may now use prior proposed penalty amounts in assessing 

penalties, despite longstanding caselaw to the contrary, goes beyond the scope of this 

proceeding. 

Finally, in a further effort to place the challenged parenthetical paragraph in perspective, 

it is helpful to view the May 4, 2010, hearing in context. The hearing was conducted in the midst 

of an unprecedented backlog of pending Mine Act cases. The approximate pending Commission 

caseload was 1,300 in September 2004; 1,600 in September 2005; 2,800 in September 2006; and 

4,000 in September 2007. In contrast, at the time of the January 2010 hearing, the Commission’s 

caseload had increased nearly fourfold to approximately 15,700. 

At the end of the hearing, in an effort to preserve limited government resources by 

encouraging a settlement, I informed the parties that my initial inclination was to affirm the fact 

of the violations and their significant and substantial (“S&S”) designations, and to impose a total 

civil penalty of $8,300.00 for the four citations in issue. As noted previously, my reference at 

the hearing to the Secretary’s history of lower proposed penalties provided context, in that the 

comparatively higher penalties I was suggesting were consistent with the Secretary’s revised 

policy of seeking enhanced penalties.6

 Alternatively, the parties were afforded the opportunity 

to file briefs if they wished to dissuade me of my tentative decision. Ultimately, the Secretary 

elected to have the parties file briefs rather than settle this matter. Suffice it to say, my efforts 

to seek an expeditious and efficient resolution of this case have been manifestly unsuccessful. 

However, I note, parenthetically, that I have no regrets. 

II. Traditional Section 110(i) Penalty Analysis

The initial decision noted statutory penalty criteria that were essentially not in dispute. 

The initial decision stated: 

It has neither been contended nor shown that imposition of the 

civil penalties proposed in this case will adversely affect Sequoia’s 

ability to continue in business, or, that the penalties proposed are 

disproportionate to the size of Sequoia’s business. The cited 

conditions were abated in a good faith and timely manner. The 

Secretary has not specifically asserted that Sequoia’s history of 

violations is an aggravating factor. 

32 FMSHRC at 1365. My initial decision was based on my evaluation of the evidence and 

the credibility of the witnesses. In its remand, the Commission has directed that I reconcile 

seemingly unsupported or inconsistent findings with respect to negligence and gravity that 

impact the appropriate civil penalty to be assessed for each of the four citations. 

 As a general matter, to the best of my recollection, I did not find the inspector’s 

testimony with respect to Sequoia’s awareness of the cited violative conditions entirely 

 6

 The concurring opinion recognized I was unlikely to have considered the Secretary’s previous 

penalty criteria, as my assessed penalties were as much as five and a half times greater than those that 

would have been proposed under such criteria. Slip op. at 12, n.2 (concurring). 

36 FMSHRC Page 1229
convincing. The initial decision made several references to the fact that the inspector’s 

testimony was not supported by his contemporaneous notes. In this regard, the initial 

decision noted: 

Although [the inspector] reviewed the pre-shift examination 

reports for these three trucks, [he] did not make copies of the 

pre-shift reports and he did “[not] recall exactly what [they] said.” 

(Tr. 104). [The inspector] did not take photographs of any of 

the cited conditions and he did not record any information from 

the pre-shift reports in his contemporaneous notes. (Tr. 107; Gov. 

Ex. 2). The pre-shift examination reports are not in evidence. 

32 FMSHRC at 1363. 

It is significant that the only relevant reference to a pre-shift examination in the 

inspector’s notes concerns the inoperable backup alarm. (Gov. Ex. 2 at 32). The inspector’s 

notes also reflect that two uncontested violative conditions that are not at issue in this matter 

were also noted in pre-shift examinations. (Gov. Ex. 2 at 16A, 29). In stark contrast, there is 

no contemporaneous documentation in either the inspector’s notes, or the body of the citations, 

to support the inspector’s testimony that the conditions cited in the three remaining contested 

citations were noted on pre-shift examinations. (Gov. Ex. 2 at 14-16, 19-27; Gov. Exs. 4, 5, 7, 

8, 10). Consequently, I can give little weight to the inspector’s testimony that all of the cited 

defects were noted in pre-shift examinations, yet went unaddressed. A further reevaluation of 

the issues of negligence and gravity for each of the citations follows. 

A. Citation No. 7496260: Exhaust pipe and headlights7

The initial decision affirmed the alleged violation and S&S designation for Citation 

No. 7496260, which alleged a violation of the mandatory standard in 30 C.F.R. § 77.404(a). 

This standard requires mobile equipment to be maintained in safe operating condition, and that 

equipment in unsafe condition must be removed from service immediately. 

Citation No. 7496260 was issued after the MSHA inspector observed a defect on the 

Volvo A40D No. T9 refuse truck’s vertical exhaust pipe. The exhaust pipe was located behind 

the platform used to access the operator’s compartment. The pipe was connected to a muffler 

with a clamp located at the approximate height of the operator’s seat in the cab of the truck. 

The MSHA inspector noted that the muffler clamp was loose, which permitted exhaust fumes 

to escape. The citation also included an inoperable headlight on the right (passenger) side that 

was due to a short in the harness in which the headlight was mounted. 32 FMSHRC at 1365-66. 

The Secretary proposed a civil penalty of $4,689.00 for Citation No. 7496260. However, 

although the initial decision affirmed the fact of the violation, the S&S designation, and the 

7

 The defective exhaust pipe was initially the sole subject of Citation No. 7496260. This citation 

was subsequently modified to include defective front lights. The defective lights were initially the subject 

of Citation No. 7496257, which has been vacated. (Gov. Exs. 4, 5). 

36 FMSHRC Page 1230
Secretary’s attribution of moderate negligence, the proposed penalty was reduced to $1,400.00 

based on mitigating circumstances. 

As noted by the Commission, de novo assessments of civil penalties by Commission 

Judges are accorded broad discretion. Slip op. at 4, citing Spartan Mining Co., 30 FMSHRC 

699, 723 (Aug. 2008). In this regard, a Judge is not required to impose the civil penalty 

proposed by the Secretary, even though the Judge has affirmed all elements of the subject 

citation. Rather, a Judge’s civil penalty assessment must be supported by an articulation of the 

facts considered, with reference to the applicable penalty criteria in Section 110(i) of the Act. 

The de novo assessment of civil penalties does not require “that equal weight must be assigned to 

each of the penalty assessment criteria.” 32 FMSHRC at 1364, citing Thunder Basin Coal Co., 

19 FMSHRC 1495, 1503 (Sept. 1997). In other words, an ALJ may give greater weight to facts 

related to a particular penalty criterion than the Secretary has chosen to give in his proposed 

penalty analysis. 

Here, the focus is on whether there are circumstances that mitigate Sequoia’s negligence. 

As noted in the initial decision, the condition of the exhaust pipe was not obvious, in that it could 

only be heard when the engine was started. 32 FMSHRC at 1366 (citing Tr. 146). Consequently, 

the defective exhaust was less noticeable from inside the operator’s compartment. Additionally, 

the loose muffler clamp was not visible because it was located between the cab and the truck 

bed. Id. at 1365 (citing Tr. 143). 

 The inspector relied on a layer of soot on the side of the frame of the truck bed as an 

indication of a compromised exhaust system. Id. (citing Tr. 57). I do not view soot on a truck 

that is routinely operated in the muddy and dusty conditions in a coal preparation plant as an 

obvious byproduct of a loose muffler clamp. It is true that Sequoia’s mechanic conceded that the 

exhaust leak caused soot to accumulate on the frame of the truck. Id. at 1366 (citing Tr. 145-46). 

However, the evidence is inadequate to reflect that the mechanic was aware of the soot caused by 

the loose muffler clamp prior to the issuance of the citation. Nor do I accept the Secretary’s 

contention that the smell of fumes in the vicinity of an exhaust pipe is a clear sign that repair is 

required. (Tr. 118). 

The inspector related that the truck operator complained to him about exposure to carbon 

monoxide when the truck was idling. 32 FMSHRC at 1365 (citing Tr. 54). However, this 

conversation was not documented in the inspector’s contemporaneous notes. Id. I can give l 

ittle weight to the inspector’s undocumented recollection of a conversation that occurred 

approximately two years prior to the hearing in this matter. Similarly, as discussed above,

the inspector’s testimony that the defective exhaust pipe had been noted in pre-operation 

 

36 FMSHRC Page 1231
checklists is not reflected in the inspector’s notes or the body of the citation. See pg. 6, supra. 

Moreover, it is surprising that the Secretary would only attribute the cited condition to a 

moderate degree of negligence if the defective exhaust was repeatedly noted, and/or complained 

about, yet remained unaddressed. While I have concluded that Sequoia’s negligence remains in 

the moderate range, the Secretary has not satisfied his burden of demonstrating that the exhaust 

defect was obvious due to soot, was noted in pre-shift examinations, and that any alleged 

complaint was communicated to mine management. 

 With respect to the negligence attributable to the inoperable headlight, the inspector did 

not recall whether additional upper lights were installed on the refuse truck. Id. at 1365 (citing 

Tr. 61-62). Thus, the Secretary did not refute Sequoia’s assertion that all of its refuse trucks 

were equipped with supplemental upper lights. Upon viewing a photograph of Sequoia’s refuse 

truck at the hearing, the inspector conceded the upper lights depicted in the photograph were 

more powerful than headlights, stating that “they just light up the . . . [kind of] the whole area in 

front of you.” Id. (citing Tr. 106; Resp. Exs. 4-6). 

Moreover, the initial decision noted: 

There are lighting systems at the refuse bins and refuse pile sites. 

The refuse bins are illuminated with 250 watt while halogen bulbs 

that are located on each of the four corners of the refuse bins. 

The halogen bulbs are aimed toward the ground where the truck 

beds are positioned for loading from the bins located above. 

(Tr. 139-40). The refuse pile is illuminated by two sources of light 

each energized by two diesel-powered generators. Each light 

source consists of four halogen lights. One light source illuminates 

the refuse pile at the top of the hill. The other light source shines 

down from the top of the hollow to illuminate the access road to 

and from the refuse pile. (Tr. 140-41). 

32 FMSHRC at 1362. 

While I am not suggesting that an inoperable headlight does not constitute a violation, 

the evidence reflects there were three operable lights – two upper and one lower – and that the 

refuse bins and piles where the haul trucks operated within the preparation plant were extremely 

well lit. I view the evidence with respect to the issue of adequate lighting, as well as the absence 

of any documentation supporting relevant pre-shift examination notations, to be significant 

mitigating factors. Putting aside the supplemental lights installed on the refuse truck, while it is 

true that the truck could be used for other purposes, the truck was routinely operated between 

the refuse bins and the refuse piles, a distance of only several hundred yards to approximately 

one quarter of a mile. (Tr. 37-38). 

 

36 FMSHRC Page 1232
In the final analysis, the term “moderate negligence” is not intended to be precise. 

While I have affirmed the Secretary’s attribution of moderate negligence, I believe the mitigating 

factors discussed herein warrant the conclusion the Sequoia’s culpability was not as high as the 

Secretary has alleged. However, in revisiting this issue, in recognition of the serious gravity 

created by the potential exposure to carbon monoxide fumes, and the impact of the failure to 

maintain both headlights in operable condition on the degree of negligence, I shall increase 

the initial $1,400.00 assessment that was vacated by the Commission to $1,900.00.8 

B. Citation No. 7496262: Mirrors and headlights9

The initial decision affirmed the alleged violation and S&S designation for Citation 

No. 7496262, which also alleges a violation of the mandatory standard in 30 C.F.R. § 77.404(a). 

The citation was issued for a cracked upper left (driver’s side) side view mirror, a missing left 

lower front side mounted mirror, and a non-functioning right headlight, on the Volvo A40D 

No. T7 refuse truck. 

A refuse truck is normally equipped with two pairs of side view mirrors. The upper 

pair of mirrors are traditional side view mirrors that enable a truck operator to view the areas 

alongside of the truck. These side view mirrors are four inches wide and six inches long, and 

are capable of lateral adjustment. (Tr. 188). The refuse truck is also normally equipped on each 

side with bottom mirrors that are adjusted downward to enable the operator to view the rear 

wheels of the truck. (Tr. 189). These bottom mirrors serve two purposes. As a source of hazard 

prevention, they are used by the truck operator to avoid breaching a berm when backing into 

an elevated area. (Tr. 185). Pragmatically, as primarily used in this case, the lower mirrors 

also enable the truck operator to properly position his truck by viewing the rear tires as they 

approach berms which act as a reference point. (Tr. 158-59, 191). 

With respect to the missing left lower mirror, the inspector easily could have, but did not, 

credibly identify any areas within the preparation plant where the refuse trucks could be exposed 

to the hazard of breaching a berm and falling down an embankment while maneuvering in 

reverse. While the inspector did testify that there were berms on elevated roadways (Tr. 185), 

such berms are a safety precaution in the event a truck operator loses control while traversing 

the road. Lower side mirrors, which are used when maneuvering in reverse, are not intended 

to prevent a breach of such roadway berms. Rather, as discussed, lower mirrors are intended to 

assist the truck operator in utilizing berms that have been constructed to aid in properly 

positioning the truck. 

 8

 It is difficult to assess an appropriate civil penalty, with respect to the cumulative effect 

of negligence, when the subject citation deals with two unrelated violative conditions. For 

example, if the negligence attributable to one condition is greater than the other, should the overall 

negligence attributed be in the higher or lower range?

9

 As with Citation No. 7496260, Citation No. 7496262 initially only involved defective mirrors, 

but was subsequently modified to include defective lights. The defective lights were initially contained in 

Citation No. 7496261, which has been vacated. (Gov. Exs. 7, 8). 

36 FMSHRC Page 1233
The testimony reflects that the general area around the refuse pile is relatively flat, having 

been crushed by the dozers. 32 FMSHRC at 1368 (citing Tr. 165). The inspector did not 

identify any elevated hazards in the area of the refuse pile, and Government Exhibit 13 clearly 

depicts a refuse area that is relatively level. In essence, the inspector’s testimony reflects that the 

lower mirror is relied on by the truck operator to view the rear tires, enabling him to use a berm 

as a reference point to determine how close the bed of the truck is when backing up to dump 

material at the refuse pile. In this regard, the relevant testimony was: 

Q: [W]hy is this condition [c]ited in Citation [No. 749]6262 hazardous? 

A: The fact [of] the visibility backing up. When you - - when you’re backing up 

this truck, if it was backing up to a berm and whatever, it was backing under 

the refuse bin, whatever, you need to be able to see the back - - the bottom back 

of his tires where they’re located. 

Q: And why is that important? 

A: Well, you need to know where you’re at and where you’re located at, how 

close you are to the - - how close you are to the berm. A berm is just used for a 

reference point. You know, they help you stop your vehicle. You back up to it 

and then dump. You need to know where you’re at. 

(Tr. 158-59) (emphasis added). The inspector’s testimony further unequivocally reflects that 

it was not uncommon for refuse trucks to back into previously dumped material, and that the 

“purpose for a berm at the end dumps” was to act as a “warning device” to prevent the truck 

from reversing into the material that had been previously dumped. (Tr. 191). 

Thus, having concluded that the evidence fails to reflect any relevant elevated hazards at 

the refuse piles, we turn to a consideration of the refuse bins. The material dumped at the refuse 

sites is loaded onto the refuse trucks from two bins. The trucks are loaded from the first bin by 

driving the truck under the bin, and then directly through the bin area, without the need to use 

any mirrors. (Tr. 159-60, 192). The second bin requires the truck operator to maneuver the 

truck by backing the truck under the bin between two beams, primarily relying on the side view 

mirrors to avoid striking the beams. (Tr. 159-60, 192). In either case, the refuse truck is not on 

an elevated structure. In the final analysis, the evidence does not reflect that the missing lower 

mirror posed a hazard, at either the refuse pile or the bins, with respect to potentially breaching a 

berm constructed to prevent descent to the area below. 

 

Turning to the cited upper left side mirror, it is significant that the inspector testified that 

the mirror was functional despite the cited crack. 32 FMSHRC at 1368 (citing Tr. 188, 207). 

Thus, the evidence does not reflect that the crack created a distortion that prevented the truck 

operator from using it for its intended purpose. The Commission has directed me to reconcile 

my initial reduction of the Secretary’s proposed penalty with the initial decision’s finding that a 

cracked side view mirror could contribute to an injury to individuals in the vicinity of the truck, 

 

36 FMSHRC Page 1234
and that the missing lower mirror could contribute to a truck driving through a berm in an 

elevated area. Slip op. at 8. These findings were made to support the Secretary’s designation 

of the violation as S&S. As such, the findings were made in the context of continued mining 

operations and the myriad of circumstances under which a truck may be operated. Such findings 

were not intended to elevate the level of Sequoia’s culpability, as S&S and degree of negligence 

are independent elements of a civil penalty analysis that must be considered based on the totality 

of circumstances. 

Finally, the remand directed that, in reconsidering the civil penalty assessment, I revisit 

the inspector’s testimony that the cited refuse truck “traveled at night, on steep grades, up and 

down hills, and around other equipment and miners.” Slip op. at 8. Although a defective 

headlight would ordinarily significantly interfere with operation of a truck on dark roads with 

steep grades, as previously discussed, the hazard is mitigated by the supplemental floodlights 

that apparently were installed on the subject refuse truck. See pg. 8, supra. In addition, while 

it is true that the refuse trucks could be operated anywhere within the prep plant, their primary 

purpose was to transport rock material to and from the well-lit areas of the refuse bins and refuse 

piles, which were located between approximately several hundred yards and one quarter of a 

mile from each other. (Tr. 37-38, 58, 139-41). 

 In retrospect, although I have concluded that the degree of negligence, while moderate, 

is lower than that alleged by the Secretary, in recognition of the fact that refuse trucks are 

multi-purpose vehicles that can be used in a variety of circumstances, I have concluded that there 

is a basis for assessing a civil penalty greater than the initial assessment. Consequently, I shall 

increase the initial $1,200.00 assessment that was vacated by the Commission to $1,800.00.10 

C. Citation No. 7496263: Accumulation of oil on hood

The initial decision affirmed the fact of the violation and S&S designation for Citation 

No. 7496263 that concerned a violation of the mandatory safety standard in 30 C.F.R. § 77.1104, 

based on an accumulation of hydraulic fluid on the Volvo A40D No. T7 refuse truck. This 

safety standard prohibits the accumulation of combustible materials or flammable liquids that 

can create a fire hazard. The violation was attributed to a moderate degree of negligence, and 

a penalty of $5,503.00 was proposed by the Secretary. 

The initial decision reduced the proposed penalty to $3,500.00, despite my conclusion 

that the evidence reflected at least a moderately high degree of negligence, rather than the 

moderate degree of negligence claimed by the Secretary. 32 FMSHRC at 1371. The condition 

was readily observable and, given its nature, apparently existed for several shifts. The increase 

in the degree of negligence was based on the degree of hazard posed by a leak in pressurized 

hydraulic oil that accentuated the unpredictability of its directional flow with respect to potential 

contact with extremely hot surfaces. Id. The degree of negligence was also raised because 

 

 10 It is difficult to assess a penalty with respect to determining degree of negligence when 

the citation contains unrelated violative conditions. See n.9, supra. 

36 FMSHRC Page 1235
I initially credited the inspector’s testimony that the condition had been noted in the pre-shift 

examination records. Id. However, I now realize that this testimony is neither supported by the 

inspector’s contemporaneous notes, nor his summary of the violation in the body of the citation. 

Consequently, despite its obviousness, the claimed prior identification of the condition in 

pre-shift examinations that would have surely alerted Sequoia maintenance personnel that repair 

was necessary cannot be considered as an additional aggravating factor. 

In the final analysis, the obvious nature of the condition, as well as the fact that it 

apparently existed for several shifts, support the conclusion that Sequoia’s negligence was 

moderately high. Absent any relevant pre-shift examination notations, the other aggravating 

factors are inadequate to warrant a penalty in the range the Secretary has proposed. In view of 

the increase in the degree of negligence over that alleged by the Secretary, the initial $3,500.00 

assessed civil penalty that has been vacated by the Commission shall be reassessed at $4,200.00 

for Citation No. 7496263.11

D. Citation No. 7496266: Inoperative backup alarm

Citation No. 7496266 alleges that a backup alarm on the Volvo A40D No. T10 refuse 

truck was not maintained in functional condition, in violation of the mandatory safety standard 

in 30 C.F.R. § 77.410(c). This safety standard requires warning devices to be maintained in 

functional condition. The cited condition was designated as S&S, and attributed to a high 

degree of negligence because the pre-shift examination reports reflected that the backup alarm 

was non-functional for several months. (Gov. Ex. 2 at 32). The Secretary proposed a civil 

penalty of $3,996.00 for Citation No. 7496266. 

Sequoia stipulated to the fact of the violation at the hearing. 32 FMSHRC at 1371. 

Sequoia’s service mechanic testified that the backup alarm was functional, but its sound was 

muted because it was covered with mud. Id. (citing Tr. 317-18). As mud was the underlying 

cause, Sequoia abated the citation by cleaning the mud that had accumulated around the alarm, 

and washing the alarm with water. Id. (citing Tr. 318-19). The mechanic testified that the 

periodic washing of the backup alarm to restore its functionality was not noted in the pre-shift 

notes because it was a recurring problem caused when the rear of the refuse truck came into 

contact with muddy refuse piles. Id. at 1372 (citing Tr. 319-20). The issuing inspector conceded 

it was not uncommon for refuse trucks to back into previously dumped material that was muddy, 

thereby preventing the backup horn from working. Id. (citing Tr. 307). Significantly, in abating 

the citation, the inspector did not note that any significant repairs were made, noting only that 

“the back up horn [was] now working on the on the Volvo A40D refuse truck, Co No. T10.” 

(Sec’y Pet., Ex. A at 27). 

 

 11 I do not view a reduction of the Secretary’s proposed penalty of $5,503.00 to an assessed 

penalty of $4,200.00 as a substantial deviation that requires a more detailed explanation than provided in 

this decision. See Cantera Green, 22 FMSHRC at 620-21. 

36 FMSHRC Page 1236
The truck mechanic testified that minimizing the deleterious effects of mud was 

ultimately accomplished by repositioning the backup alarm so that the sound was directed 

in a downward position. (Tr. 319). Specifically, the mechanic testified that: 

[A]fter we just cleaned it and got the backup alarms where they 

worked, at a later time, me and another mechanic went back as we 

got time and took each of the trucks . . . and we took - - instead of 

facing the horn outward, we faced it downward where the mud 

wouldn’t shove into the horn part of the backup alarm. 

(Tr. 319-20). To achieve this repositioning, the mechanic “made us a bracket and turned [the 

horn] upside down where the horn would still be loud, but it’d keep the mud from pushing up 

inside of it.” (Tr. 322). Notably, multiple trucks were modified in this manner, and the repairs 

were made after the horn on the cited No. T10 truck had already been cleaned for abatement 

purposes. (Tr. 319, 323). This indicates that Sequoia made an effort beyond that minimally 

required to satisfy the inspector in order to correct the underlying problem. 

The initial decision lowered the degree of negligence from high to moderate. While 

Sequoia is required to maintain the backup alarm in functional condition, the reduction in 

negligence was based on testimony that the refuse trucks were operated in adverse muddy 

conditions, and that periodic cleaning of the backup alarm had occurred. 32 FMSHRC at 1372. 

I viewed the efforts to achieve compliance, albeit unsuccessful because of periodic contact with 

the muddy refuse piles, to be a mitigating factor. See Enlow Fork Mining Co., 19 FMSHRC 5, 

11-12, 17 (Jan. 1997) (holding that an operator’s compliance efforts made prior to the issuance 

of a citation is a factor when assessing culpability). The Commission has concluded that the 

reduction in negligence is not a subject for further review, because it was not challenged by the 

Secretary. Slip op. at 9, n.11. 

However, the Commission has directed that I may not consider the muddy conditions as a 

factor in recalculating the appropriate civil penalty. Slip op. at 9. In view of the Commission’s 

directive, the initial penalty of $2,200.00 that has been vacated by the Commission shall be 

reassessed at $3,100.00 for Citation No. 7496266. In assessing this penalty, I have imposed a 

civil penalty less than that proposed by the Secretary, as I consider the construction of a bracket 

to effectuate the repositioning of the backup alarm as a demonstration of good faith to achieve 

compliance after notification of the violation, a civil penalty criterion contained in Section 

110(i). 

 

36 FMSHRC Page 1237
ORDER

Consistent with this Decision, IT IS ORDERED that Sequoia Energy, LLC, shall pay 

a total civil penalty of $11,000.00 in satisfaction of Citation Nos. 7496260, 7496262, 7496263 

and 7496266. 

IT IS FURTHER ORDERED that the parties’ motions to approve partial settlement 

ARE GRANTED. Consistent with the parties’ settlement terms, IT IS ORDERED that 

Sequoia Energy, LLC, shall pay a total civil penalty of $3,343.00 in satisfaction of the remaining 

citations that are at issue in this proceeding. 

 Accordingly, IT IS ORDERED that Sequoia Energy, LLC, pay, within 30 days of the 

date of this decision, a total civil penalty of $14,343.00 in satisfaction of the eleven citations that 

are the subject of this proceeding. 

IT IS FURTHER ORDERED that, upon receipt of timely payment, the civil penalty 

proceeding in Docket No. KENT 2008-1059 IS DISMISSED. 

/s/ Jerold Feldman 

Jerold Feldman 

Administrative Law Judge 

Distribution: 

W. Christian Schumann, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson 

Blvd., Room 2220, Arlington, VA 22209-2296 

Edward Waldman, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., 

Room 2220, Arlington, VA 22209-2296 

Melanie Garris, Office of Civil Penalty Compliance, MSHA, U.S. Department of Labor, 

1100 Wilson Blvd., 25th Floor, Arlington, VA 22209-3939 

Jim F. Bowman, P.O. Box 99, Midway, WV 25878 

/tmw 

36 FMSHRC Page 1238
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 

May 13, 2014 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), on 

 behalf of LUCERO ZAMBONINO, 

Applicants 

v. 

COLONIAL MINING MATERIALS, 

 LLC, and INFINITY MINING 

 MATERIALS, LLC, 

Respondents 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

TEMPORARY REINSTATEMENT PROCEEDING 

Docket No. SE 2014-196 DM 

MSHA Case No. SE-MD-14-05 TR 

Mine: Williams Farms Sand & Shell, Inc. 

Mine ID: 08-01331 

AMENDED DECISION AND ORDER OF TEMPORARY REINSTATEMENT 

Appearances: Tara E. Stearns, Esq., Office of the Solicitor, Washington, DC and 

Channah S. Broyde, Esq., Office of the Solicitor, Atlanta, GA for 

Petitioner 

Mark N. Savit, Esq., and Ross J. Watzman, Esq., Jackson Lewis P.C., 

Denver, Colorado for Respondents 

Before:Judge McCarthy 

I. Statement of the Case 

This case is before me upon the Secretary of Labor’s Amended Application for 

Temporary Reinstatement filed on behalf of Complainant, Lucero Zambonino, under section 

105(c)(2) of the Federal Mine Safety and Health Act of 1977 (the Mine Act), 30 U.S.C. § 

815(c)(2), against Colonial Mining Materials, LLC (“CMM”), and its putative successor-in36 FMSHRC Page 1239
interest, Infinity Mining Materials, LLC (“IMM”).1

 The Secretary seeks an Order holding 

Respondents jointly and severally liable to reinstate Zambonino to her ticketing agent (scale 

clerk) position held immediately prior to her December 20, 2013 alleged termination, or to a 

similar or substantially position at the same rate of pay, benefits, and hours, with the same or 

equivalent duties. Amended Appl. at 4; see also Tr. 45. 

II. Jurisdiction

Respondents stipulated to jurisdiction in this matter. Tr. 9-10. Jurisdiction exists because 

Respondents, Colonial Mining Materials, LLC and Infinity Mining Materials, LLC are or were 

the operators of the Williams Farms Sand and Shell, Inc., (the “Mine”) a mine within the 

meaning of section 3(d) of the Mine Act, 30 U.S.C. § 803, and the products of the subject mine 

entered the stream of commerce or the operations or products thereof affected commerce within 

the meaning and scope of Section 4 of the Act, 30 U.S.C. § 804. Respondents are covered by the 

Mine Act because the Mine’s activities affect interstate pricing and demand. See D.A.S. Sand & 

Gravel, Inc. v. Chao, 386 F.3d 460, 464 (2d Cir. 2004); United States v. Lake, 985 F.2d 265, 269 

(6th Cir. 1993). In addition, CMM and IMM are “person[s]” within the meaning of sections 3(f) 

and 105(c) of the Mine Act, 30 U.S.C. §§ 803(f) and 815(c). 

III. The Application’s Procedural History

On March 14, 2014, the Secretary filed an Application for Temporary Reinstatement 

against Respondent CMM and served a copy of the Application on CMM by first class mail. On 

March 18, 2014, IMM registered with MSHA as the operator of the Williams Mine. (R. 

Prehearing Report, 12; Sec’y Mot. to Amend, Ex. B). On March 24, 2014, CMM filed a request 

for a hearing. 

On April 1, 2014, the undersigned convened a conference call with the parties. The 

parties requested that an expedited hearing be postponed to allow them time to work out 

stipulated facts on the successorship issue and submit cross motions on summary decision. 

Although expressing skepticism that the parties would arrive at agreement, the undersigned 

allowed them to try. On April 3, 2014, the parties executed an agreement to waive the hearing 

and provide the undersigned with stipulated facts by April 11, 2014, and cross motions for 

summary decision by April 18, 2014. 

1

 At the outset of the hearing, after review of the Secretary’s Motion to Amend Application for 

Temporary Reinstatement and Authorities in Support Thereof, Respondent’s Opposition and Authorities 

in Support Thereof, and after hearing oral argument on the issue, I granted the Secretary’s Motion to 

Amend Application for Temporary Reinstatement because the Secretary timely filed the Amended 

Application before the commencement of the hearing and Respondents have failed to demonstrate 

prejudice and have had ample opportunity to research the successorship issue, file an Opposition, and 

make oral argument. Tr. 36. 

36 FMSHRC Page 1240
As deadlines approached, the parties informed the undersigned that they could not agree 

on stipulated facts and that a hearing would be necessary. Accordingly, during a conference call 

with the parties on April 24, 2014, the undersigned set an expedited hearing date for April 30, 

2014 in Fort Myers, Florida. During that call, the Secretary advised that she would be filing a 

Motion to Amend Application for Temporary Reinstatement. 

On April 25, 2014, the Secretary filed a Motion to Amend Application for Temporary 

Reinstatement and Authorities in Support Thereof to add IMM as a Respondent successor. On 

April 29, 2014, Respondents’ Opposition was filed. 

 An expedited hearing was held on April 30, 2014 in Fort Myers, Florida. Witnesses 

were not sequestered as credibility is not at issue in a temporary reinstatement proceeding. See, 

e.g., Sec’y of Labor on behalf of Williamson v. Cam Mining, LLC, 31 FMSHRC 1085, 1089,

1091 (Oct. 2009). The parties filed simultaneous post-hearing briefs on May 7, 2014. 

At the hearing, Respondents stipulated that Ms. Zambonino’s January 14, 2014 

discrimination complaint was not frivolously brought. Tr. 44, 58-59, 156. 

The Secretary called two witnesses, Complainant, Lucero Zambonino, and MSHA 

Special Investigator, Michael Larue. At the close of the Secretary’s case, the undersigned denied 

Respondents’ motion to dismiss, as more fully explained below. 

Respondent then called one witness, Randall Bono. Bono, a retired lawyer and judge, is 

the managing member of Pantheon Management, LLC, which is the managing member and part 

owner of Gravitas, LLC (“Gravitas”), the parent company of CMM, IMM, and Colonial 

Concrete Construction Precast, LLC (“C3P”). Bono testified that Gravitas is the majority partner 

of IMM for tax purposes. Bono is also the managing member and owner representative of both 

CMM and IMM. Tr. 176, 224-225, 250. Bono also owns Frugalitas, LLC, which wrote an 

(unsigned) $500,000 check on behalf of IMM on February 25, 2014 to execute the purchase of 

500,000 tons of rock, sand, shell, and other material from the Mine. Sec’y Ex. 2; Tr. 230-31. 

Respondent called Bono primarily in an effort to show that the Secretary failed to 

establish a non-frivolous claim that IMM is a successor-in-interest jointly and severally liable for 

discriminatory actions of CMM and that temporary reinstatement should be tolled because the 

alleged layoff of Zambonino and the subsequent elimination of her position was motivated solely 

by economic conditions. 

After close of Commission business on Friday, May 9, 2014, Respondents filed a motion 

to strike section IV(B) of the Secretary's post-hearing brief, which summarizes the facts alleged 

by MSHA Special Investigator Michael LaRue in a sworn declaration, attached to the Secretary's 

original and amended Application for Temporary Reinstatement. On Monday, May 12, 2014, 

the Secretary filed an Opposition to Respondents’ Motion to Strike. 

36 FMSHRC Page 1241
On Monday, May 12, 2014, the undersigned convened two conference calls with the 

parties and sua sponte re-opened the record until close of business that day for proffer and 

receipt of, and objection to, all pleadings in this matter, including, inter alia, the Secretary’s 

Application for Temporary Reinstatement, with attached exhibits; Respondent’s Request for 

Hearing; the Secretary’s Motion to Amend Application for Temporary Reinstatement and 

Authorities in Support Thereof, with attached exhibits; Respondent’s Opposition to the 

Secretary’s Motion to Amend Application For Temporary Reinstatement, with attached Exhibits; 

the Parties’ respective Pre-hearing Reports, with attached exhibits; Respondents’ Motion to 

Strike; and the Secretary’s Opposition. By close of business May 12, 2014, the Secretary filed a 

Motion Responsive to the Court’s Telephonic Order and Respondent filed a e-mail proffer, 

which attached, inter alia, “R-7,” a document showing CMM employees, job titles and 

termination dates. 

Minutes before close of business that day, and one minute after I issued my original 

decision in this matter at 4:54 p.m., the Secretary objected to “R-7,” arguing that the document, 

unlike the other documents proffered by the parties, had previously not been submitted to the 

undersigned prior to the hearing. On May 13, 2014, the undersigned convened a conference call 

with the parties to discuss the Secretary’s objection. During that call, Respondent withdrew its 

proffer of “R-7.” 

I receive all of the other documents set forth above and previously submitted to the 

undersigned before hearing into the record in this matter. Accordingly, Respondent’s Motion to 

Strike is denied. 

The undersigned emphasizes that it is best practice at the outset of all Commission 

litigation, including discrimination and civil penalty proceedings, to proffer the pleadings or 

formal papers at issue, and any position statements or alleged admissions against interest at the 

outset of the hearing. After all, as in other administrative litigation, it is the pleadings that join 

the issues to be litigated by the parties before the administrative law judge and these should be 

part of the record. Unfortunately, this practice is rarely followed in Commission proceedings. 

IV. The Disputed Issues

According to Respondents, the issues that remain to be litigated are: 

1. Whether IMM is a successor-in-interest jointly and severally liable for the alleged

discriminatory action of CMM under the test adopted by the Commission in Munsey v.

Smitty Baker Coal Co., 2 FMSHRC 3463, 3465 (Dec. 1980), aff’d in relevant part sub

nom., Munsey v. FMSHRC, 701 F.2d 976 (D.C. Cir. 1983), cert. denied sub nom., Smitty

Baker Coal Co. v. FMSHRC, 464 U.S. 851 (1983)?

2. Whether temporary reinstatement is appropriate because Zambonino’s former job at

CMM has been eliminated and Respondent IMM claims that it does not intend to hire

someone to perform that job in the future?

36 FMSHRC Page 1242
3. Whether Respondent IMM is required to create a position for temporary reinstatement of

Zambonino given the Administrative Law Judge’s decision in Sec’y of Labor on behalf of

Haynes v. Decondor Coal Co., 10 FMSHRC 1810, 1814 (Dec. 1988) (ALJ),which denied

immediate reinstatement to complainant’s former position because that job had been

eliminated due to a layoff “necessitated by business reasons,” but ordered temporary

reinstatement once any position became available that complainant was qualified to

perform by training or work experience?

4. Whether temporary reinstatement should be granted because the alleged layoff of

Zambonino and subsequent elimination of her position was motivated solely by economic

conditions?

According the Secretary, the issues that remain to be litigated are:

1. Whether IMM is a successor-in-interest jointly and severally liable for the discriminatory

discharge of Zambonino on December 20, 2013 by predecessor CMM?

2. Whether temporary reinstatement should be ordered and not tolled, notwithstanding

Respondents’ claim that Zambonino would have been included in a subsequent economic

layoff, because there is still work available for her, and the evidence, as a whole, supports

a non-frivolous finding that her inclusion in any such layoff might have resulted, at least

in part, from her protected activity?

V. Stipulated or Disputed Facts at Hearing

At the hearing, the parties stipulated to the facts described in paragraphs 1, 2, 3, 4, 6, 8, 

12, 15, 16, 17, 19, 23, 24, 26, 27, and 28, and the second two sentences of paragraph 30 of 

Respondents’ Prehearing Report. Tr. 11-18. Those stipulated or disputed facts are summarized 

below. 

1. CMM is a wholly owned subsidiary of Gravitas. Gravitas is the principal owner of

eighteen other companies involved in: commercial real estate holdings, private lending

and capital investment, multi-family/condo development, residential custom home

building, hotel development and management, hollowcore manufacturing, concrete

manufacturing, and aggregate mining.

2. CMM entered into an Excavation Agreement with Williams Farms Partnership on June

28, 2013 for the purpose of excavating, removing, processing, marketing, and selling

sand, rock, shell, and other materials from the Mine.

3. The Mine is a sand and shell mine located in Punta Gorda, Florida.

36 FMSHRC Page 1243
4. Complainant worked as a ticketing agent at the Mine from July 2013 to December 2013.

5. Respondents contend that Zambonino was laid off from her position as a ticketing agent

on December 20, 2013 by the Mine’s manager, Wayne Filyaw, and Gravitas

representative, Randall Bono. The Secretary claims that Zambonino was terminated on

said date by Filyaw for making safety complaints. Tr. 11.

6. On January 8, 2014, Zambonino filed a discrimination complaint with MSHA. After

receiving the complaint, MSHA Special Investigator Michael LaRue conducted an

investigation of Zambonino’s discrimination claim against Respondent. The Secretary

subsequently filed an Application for Temporary Reinstatement on March 14, 2014.

7. CMM contends that it laid off two other employees before Zambonino and eight other

employees following Zambonino’s alleged layoff. The Secretary disputes this and argued

at hearing that requested personnel records were not provided. Tr. 13.

8. On February 25, 2014, Williams Farms Partnership and CMM executed a Release

Agreement and Covenant Not to Sue whereby the parties agreed to terminate the

Excavation Agreement dated June 28, 2013.

9. CMM claims that it operated the Mine until it ceased all excavation activities on February

28, 2014. The Secretary disputes this and argued at hearing that MSHA’s data retrieval

system shows that IMM did not register as operator of the Mine until March 18, 2014,

and that CMM did not assign its machine repurchase agreements to IMM until March 12,

2014, and did not assign its long-term equipment lease agreements to IMM until March

21, 2014. Tr. 11-12; R. Opposition, Ex. 2.

10. CMM contends that it shut down on February 28, 2014 due to: (1) losses of

approximately $800,000 in its eight months of operation, and (2) the wash plant located

at the Mine was unable to provide useable sand. Respondent contends that it currently

has approximately $800,000 in debt and $25,000 in accounts receivable. The Secretary

disputes this and argued at hearing that audited financial information was not provided to

substantiate CMM’s contentions. Tr. 12-13.

11. IMM contends that it commenced operations at the Mine on February 28, 2014. The

Secretary disputes this and implicitly argues that IMM could not legally commence

operations until it registered with MSHA on March 18, 2014. Tr. 13, 16. IMM contends

that 30 C.F.R. § 41.11 permits a 30-day grace period from commencement of operations

to submit a legal identity report. Tr. 16.

12. On March 18, 2014, Respondent completed and filed MSHA ID form (2000-7)

transferring operations of the Mine to IMM.

36 FMSHRC Page 1244
13. CMM contends that it had a maximum of fifteen employees at one time during its period

of operation, but was down to seven employees at the time it shutdown. Three of the

seven employees were re-hired by IMM. The Secretary disputes this. Tr. 13.

14. Two of the re-hired employees were equipment operators and one was a working

foreman. One of the equipment operators was re-hired as a part-time employee. The

Secretary disputes and notes that personnel records were not provided. Tr. 13.

15. Mr. Filyaw is now employed as the mine manager of IMM.

16. Ms. Zambonino is currently employed by Home Depot in Fort Myers, Florida.

17. Amanda Miller, Ms. Zambonino’s former coworker, is no longer employed as a scale

clerk (ticketing agent) at the Mine. She is now working in accounts payable at C3P, a

Hollowcore manufacturing company owned by Gravitas.

18. There are no plans or agreements for further excavation at the Mine by a Gravitas

subsidiary. Additionally, there are no plans to resume use of scales by anyone other than

a manager or foreman at the Mine or any other mine owned by a Gravitas, LLC

subsidiary. The Secretary declined to stipulate to this. Tr. 14.

19. CMM is no longer engaged in mining operations in the United States.

20. Infinity Lake, LLC, a wholly owned subsidiary of Gravitas, LLC, was formed on July 16,

2013 and purchased the Infinity Lake Mine, in Punta Gorda, Florida on July 26, 2013.

The Secretary declined to stipulate to this. Tr. 14.

21. IMM was formed on August 27, 2013 for the purpose of operating the Infinity Lake

Mine. The Secretary declined to stipulate to this. Tr. 14.

22. Infinity Lake Mine is not currently operational as it does not have all of the necessary

permits required to excavate. As such, it does not have a registered Mine ID at this time,

and has no employees. The Secretary declined to stipulate to this. Tr. 14.

23. IMM is owned 70% by Gravitas LLC, 15% by Wayne Filyaw, and 15% by Phil Morris.

24. On January 1, 2014, IMM entered into a lease with Williams Farms Partnership allowing

IMM to store, stockpile, process, load, weigh, and remove from the property the quantity

of material acquired by IMM.

25. IMM does not engage in any extraction activities. The Secretary declined to stipulate to

this. Tr. 14.

36 FMSHRC Page 1245
26. On February 25, 2014, IMM and Williams Farm Sand and Shell, Inc. executed a Bill of 

Sale in which IMM bought approximately 500,000 tons of rock, sand, pre-excavated 

shell, and other material located at the Mine for $500,000. 

27. IMM is processing raw rock material into mostly #89 and some #57 stone. 

Approximately 100% of the #89 stone and 25% of the #57 stone is delivered to Coast 

Concrete Company, a Gravitas subsidiary. The remainder of the #57 stone is sold to 

multiple entities. 

28. Neither CMM nor IMM owned any of the extraction, washing, crushing, or screening 

equipment on the site. CMM leased its equipment from a third party. 

29. IMM has four employees, including one manager, one working foreman, and two 

equipment operators. The Secretary declined to stipulate to this. Tr. 14-15. 

30. IMM does not have a ticket agent employed at either the Mine or the Infinity Lake Mine, 

and does not intend to hire one in the future. While DOT regulations require the trucks to 

be weighed upon leaving the Mine, the manager and/or foreman are responsible for 

completing this task before the material is sold. Typically, only ten to fifteen trucks leave 

the mine per day. The Secretary declined to stipulate to the first sentence since it 

addressed future intent. Tr. 15. 

31. IMM lost approximately $43,000 from January through March 2014. The Secretary 

declined to stipulate to this. Tr. 15. 

VI. Summary of Testimony

A. Randall Bono’s Testimony and Respondents Minimal Financial Documentation 

 Randall Bono testified that CMM was formed about late 2011 or early 2012 to operate 

the Quality Mine on a royalty basis to supply sand, shell, and other material to Colonial Concrete 

Company, which ran a redi-mix plant located about two miles from the Quality Mine. Tr. 177-

79. 

 Bono testified that IMM was formed about June 2013. Tr. 194. No documentation was 

proffered to support this. As noted, IMM is majority owned (70%) by Gravitas. IMM has two 

minority shareholders, Wayne Filyaw and Phillip Morris, who each own 15%. Tr. 213. Bono is 

Gravitas’ majority owner representative to IMM. Tr. 212. 

 CMM operated the Quality Mine until September 2013, when the mine ran out of viable 

material. Tr. 1178-79. CMM began looking for other sources of sand, rock, and shell material. 

Tr. 179. Although Gravitas had acquired another mine called Infinity Lake Mine, it was not yet 

operational because permits were not in place. Tr. 179. 

36 FMSHRC Page 1246
 Bono testified that Mr. Williams, the owner of the Williams Farms Sand and Shell Mine, 

had about 500,000 to 600,000 tons of pre-mined sand and rock stockpiled and approached “us” 

about negotiating a deal. Tr. 179-80. On June 28, 2012, CMM executed two agreements with 

the owner of the Williams Mine. Tr. 180; Sec’y Ex. 4. The Excavation Agreement granted 

CMM the right, inter alia, to excavate rock, sand, and shell on 400 acres at the Williams Mine, in 

exchange for a $2/ton royalty. Id. The Excavation Agreement was effective August 1, 2013 

through July 31, 2014 and allowed either party to terminate the agreement without cause one 

year after the effective date. Sec’y Ex. 4. The other agreement granted CMM the right, inter 

alia, to buy from Williams’ stockpile of mined rock and mined and washed sand, all the rock and 

washed sand that CMM could process, sell and/or use for a $3/ton royalty as weighed at the 

Williams scale, a fixture on the property. Tr. 180; Sec’y Ex. 4. Bono signed both agreements on 

behalf of CMM. Sec’y Ex. 4. 

 

 Bono testified that CMM expected to produce 100 to 150 tons of crushed rock per hour at 

the Mine, but only managed to produce 75 tons per hour. Tr. 183. In December 2013, CMM 

started trying to produce washed sand, but it did not meet specifications due to problems with the 

wash plant. Tr. 183-84. 

 Bono testified that he approached Williams in December 2013 about buying the rock and 

sand stockpile for $1 a ton. Tr. 197. Bono testified that IMM purchased the stockpile because 

they still needed rock their concrete companies. When asked by the undersigned why he wanted 

to purchase the stockpile if he was losing money, Bono testified that “we were paying him $3 a 

ton royalty for the rock and sand, and if we were able to get it down to $1 a ton, we figured we 

might be able to make this thing work. We would be closer, which we are closer. Okay?” Id. 

 Bono started negotiating the purchase of the material when CMM was still the operator of 

the Williams Mine. Tr. 197-98, 236. The lease was initially drafted as an agreement between 

CMM and the Williams Farm Partnership. Tr. 237. CMM’s name was subsequently crossed out 

by hand and IMM’s name was inserted on the tenant signature line. Sec’y Ex. 3; Tr. 237. While 

describing the negotiations with Williams, Bono did not refer to CMM or IMM as separate 

entities, rather he used the term “we.” Tr. 198. 

 Bono testified that in early to mid-January 2014, CMM attempted excavating shell at the 

mine. Tr. 182-83. Bono testified, however, that the MSHA inspection on December 16, 2013, 

further discussed below, caused a two-week delay because the area that CMM intended to 

excavate remained flooded after MSHA allegedly shut the mine down. Tr. 187-88. He further 

testified that eventually CMM was able to begin excavating and it spent “most of January just 

putting product on the ground.” Tr. 188. Bono testified, without explanation, that there was “no 

market” for the product CMM excavated. Tr. 188. 

 

 Respondents submitted unaudited profit and loss statements from CMM from January 

through December 2013 and from January through cessation of operations in late February 2014, 

36 FMSHRC Page 1247
purporting to show approximately $750,000 in losses from January 2013 to April 2014. Tr. 193; 

R. Ex. 5. That financial information, however, partially encompassed CMM’s operation, 

revenue and fees from the Quality Mine. Tr. 191; R. Ex. 5. Respondent also submitted 

unaudited balanced sheets for CMM as of December 31, 2013 and February 28, 2014, the date 

CMM ceased operations. R. Ex. 5. That financial information, however, includes long-term 

loans payable to Frugalitas of $600,000 and $735,000, respectively. 

 On February 25, 2014, Frugalitas, LLC, a financing company that Bono personally owns, 

purchased 500,000 tons of rock, sand, shell, and other material from Williams Farms Sand and 

Shell, LLC on behalf of IMM. Sec’y Ex. 2; Tr. 230-31. No balance sheet, audited or otherwise, 

was proffered for IMM. Respondents did admit into evidence an IMM profit and loss statement 

from January through March, 2014, even though Bono testified that IMM did not commence 

operations until March 3, 2014. R. Ex. 6; Tr. 213. Although not proffered in evidence, Bono 

testified that he had reviewed IMM’s profit and loss statement through the end of April 2014, 

which shows losses are down to $24,000 and IMM may have actually made a little bit of money. 

Tr. 218. 

 

 Bono testified that CMM ceased operations on February 28, 2014 because it could not 

sustain the losses it was suffering and could not afford its leases on equipment. Tr. 194. Bono 

testified that Williams let CMM out of the Excavation Agreement, but Gravitas did not walk 

away from the Williams Farms Sand and Shell Mine because “we still needed the rock.” Tr. 

196. 

 As noted, on February 25, 2014, Bono executed an agreement to have IMM purchase the 

entire pre-mined stockpile at the Williams Mine. Tr. 223; Sec’y Ex 2. Also on February 25, 

2014, Bono executed a 20-acre lease with typewritten date of January 1, 2014, under which 

Williams Farms Partnership granted IMM the right to crush and process the stockpile at the mine 

for the earlier of 60 months or the date on which the material had been completely processed. 

Tr. 133; Sec’y Exs. 2-3. 

 

 Bono testified that IMM began operating the Mine in place of CMM on March 3, 2014, 

although CMM as a corporate entity still exists. Tr. 193, 215. Wayne Filyaw, Mine Manager for 

both CMM and IMM did not change the mine operator ID with MSHA until March 18, 2014, 

four days after the Secretary served a copy of the Application for Temporary Reinstatement on 

Respondents by first-class mail. Sec’y Application for Temporary Reinstatement; Sec’y Mot. to 

Amend, Ex. B; R. Opposition at para. 4. CMM assigned its machine repurchase agreements to 

IMM on March 12, 2014. CMM assigned its long-term equipment lease agreements to IMM on 

March 21, 2014. R. Opposition, Ex. 2. Bono testified that other equipment, such as the Sandvik 

crusher, has yet to be assigned, although “we’re trying to get Sandvik assigned.” Tr. 185, 254. 

 Bono testified that CMM had seven or eight employees at the end of February 2014, and 

IMM employs four of these former CMM employees, one on a part-time basis. Tr. 201-02. 

These miners are Wayne Filyaw, Mine manager; John David Hardee, foreman; Jason Mosley, 

36 FMSHRC Page 1248
full-time operator; and Floyd Layport, part-time operator. Tr. 200; Sec’y Mot. to Amend, Exs. 

A, B; R. Opposition, Ex. 3. Filyaw is the manager, salesman, ticket agent, and office sweeper at 

the Williams Mine for IMM. Tr. 200. Bono further testified that one or two of the other 

employees were employed by other subsidiaries of Gravitas including Amanda Miller, former 

ticket agent, who was employed by C3P without training as a receptionist when her predecessor 

resigned right before CMM ceased operations. Tr. 202. Bono testified that Gravitas rehired 

“[a]s many as we could, and I think it was one or two.” Id. Accordingly, based on Bono’s own 

testimony, five or six of the seven or eight CMM employees in late February 2014 retained 

employment with Gravitas subsidiaries. 

 IMM crushes and screens from the same pre-excavated stockpile that CMM crushed and 

sold. IMM produces and sells 89 stone used for pump mixes that are poured from trucks, and a 

larger 57 stone used in pouring concrete. Tr. 199, 217. Colonial Concrete Company uses 100% 

of the 89 stone and about 25-30% of the 57 stone. Tr. 216. Bono testified that IMM has been 

unable to sell the remaining 57 stone because they do not have certification from the Florida 

Department of Transportation (FDOT), but IMM is expecting to receive FDOT certification any 

day. Tr. 216-17. IMM’s crushing operation is currently producing about 75 tons an hour, the 

same rate of production as when CMM operated the Mine, but a rate that Bono testified was 

insufficient to make crushing rock “solely a possibility.” Tr. 183, 216. 

 Bono testified that IMM weighs an average of about ten trucks a day at the Williams 

Mine, which takes 15-20 minutes for Filyaw or foreman Hardee to perform. Tr. 204-05. 

Respondents’ Pre-hearing Report states that the average number of trucks weighed per day is 10-

15. R. Prehearing Report at 30. Bono testified that he anticipates a 20-40% increase in truck 

volume once IMM obtains FDOT certification. Tr. 218. He further testified that IMM will be a 

very profitable business once it obtains FDOT certification for the 57 stone and is able to wash 

the sand and make a usable product, but as things currently stand, IMM would not be profitable 

if it hired more people. Tr. 219. 

 

 Bono testified that IMM is still trying to open the Infinity Lake mine: “We’re working on 

that as we speak trying to get the permits.” Tr. 201. He explained that IMM does not currently 

excavate or sell sand or shell at the Williams Mine, although it wants to sell sand. Tr. 205. IMM 

hopes to open the wash plant at the Infinity Mine and take its sand there to wash it and get the 

fines out. Tr. 216. 

 

B. Complainant Zambonino’s Testimony and MSHA’s Special Investigation of Her 

Safety Complaints

 Zambonino testified that on July 1, 2013, she completed an application for employment 

at C3P’s main office in Placida, Florida after Wayne Filyaw told her about a job in e-mail 

correspondence during June 2013. Tr. 60-61, 70, 105; Sec’y Ex. 1 (page one of a multi-page 

application); see also Tr. 68-69. Zambonino testified that she was absolutely sure that the 

36 FMSHRC Page 1249
handwritten notation “CMM” was not present of the top of the application when she completed 

it. Tr. 105. 

Filyaw told Zambonino that “he was going to be working from a mine that they were 

leasing, and they were going to open the Infinity Lakes mine that he used to work from before, 

and he was going to need several people. He was going to have to staff both mines, and he 

needed bilingual ticketing agents to work at both mines . . . .” Tr. 79-81; see also Tr. 127 

(Zambonino testified on questioning from the undersigned that “[t]hey were planning to open 

[the Infinity Lakes mine] again because Mr. Bono had bought it . . . he needed to staff both 

mines; the Williams Farm mine and the Infinity Lakes mine. So he needed to staff both mines, 

and he needed bilingual ticketing agents for that.”). 

When mine manager Filyaw hired Zambonino, he told her that he worked for C3P and 

gave her a business card that said project manager for C3P. Tr. 69. Zambonino testified that she 

assumed that she was being hired by C3P. Tr. 70. Zambonino was paid by a payroll company. 

Tr. 106. Filyaw, who reported to Bono, supervised Zambonino, and hired her about July 1, 

2013, as a bilingual ticket agent to work at the Williams Farms Sand and Shell Mine. Tr. 70, 78. 

Zambonino testified that there were about four or five employees working at the Mine at 

that time, and others coming and going. Tr. 96, 115. Filyaw was present at the Mine on a daily 

basis. Tr. 102. He did not testify in this matter, although he was present in the courtroom. 

Zambonino testified that people were constantly applying for jobs at the CMM trailer 

during September, October, and November 2013, and most of them were hired. Tr. 103. 

Zambonino testified that CMM equipment operator, Louis Blackwelder, was hired in October, 

but then went out on workers’ compensation disability because of an accident he had at the 

Mine. Tr. 84, 116. Zambonino testified that she learned from speaking to Filyaw that operator 

John Murawski was also not laid off. Rather, he was let go after his equipment broke down and 

he refused to load trucks as directed by Filyaw. Tr. 84, 122. 

In October 2013, about four months after hiring Zambonino, Filyaw hired Amanda 

Miller, another ticket agent so that Zambonino could train her to work at the Infinity Lakes mine 

when it opened. Tr. 79-80, 120. Miller did not speak Spanish. Tr. 83, 121. Miller also received 

some quality control training from CMM to ensure that samples from stockpiled material were 

up to standards. Tr. 95. According to Zambonino, Miller worked at the Infinity mine on 

December 12 or 13, 2013 generating tickets for trucks loaded with dirt fill to be sold to a landfill 

company. Tr. 80-81, 120-21. 

Zambonino described her ticket agent job duties as printing out computerized tickets 

from the scale house, which showed the weight of the trucks as they crossed the scale before 

leaving the Mine. Tr. 71. Zambonino spoke to the truck drivers in Spanish, and sometimes was 

asked to take or make calls in Spanish. Tr. 78. She testified that her other duties included 

compiling daily and weekly reports regarding the number of loads that were broken down by 

material or truck number, answering and making phone calls in Spanish, researching on the 

36 FMSHRC Page 1250
Internet to find prospective customers, and cleaning the office trailer. Tr. 71, 78. She testified 

that an average of about fifteen loaded trucks left the mine each day, although Zambonino recalls 

a five to eight day busy period during October 2013 when about thirty to forty trucks left the 

mine. Tr. 75-76. It took Zambonino about a minute or two per truck to generate a ticket. Tr. 

130. 

Zambonino would send her tickets and reports through interoffice envelopes to a lady 

named Mandy Pittman at Colonial Coast Concrete Company (CCC), the main customer and 

accounting entity for CMM. Tr. 72-75. CCC purchased CMM’s raw stockpile material such as 

sand and rock, which was crushed and washed into crushed concrete and sold to CCC for about 

$5 a ton. Tr. 77-78. 

According to the sworn declaration of MSHA Special Investigator, Michael Larue, which 

is attached to the Secretary’s initial Application, the Secretary alleges the following: 

On November 12, 2013, Filyaw directed Zambonino and Miller to clean out the officer 

trailer located on the Infinity Mine, an abandoned mine in Punta Gorda, Florida, which 

Respondent CMM planned to reopen. Upon arriving at the Infinity Mine, Zambonino observed 

rat feces, urine and nests inside the trailer and she complained to Filyaw that the trailer was 

unsafe. Filyaw told Zambonino to either go home or clean the trailer. 

On December 6, 2013, Zambonino submitted a written complaint to OSHA describing 

the conditions inside the Infinity Mine trailer and requesting an inspection. In her complaint, 

Zambonino also alleged that the heavy equipment operators at the Williams Mine did not have 

access to restroom facilities. Zambonino had previously complained to Filyaw about the lack of 

restroom facilities at the Williams Mine. 

On December 9, 2013, OSHA forwarded Zambonino’s complaint regarding the lack of 

facilities at the Williams Mine to MSHA. On December 10, 2013, an OSHA compliance officer 

arrived at the Williams Mine, privately interviewed Zambonino, Miller, and Filyaw, and then 

went to the Infinity Mine and inspected the trailer. 

On December 16, 2013, MSHA inspected the Williams Mine and issued two citations 

and ordered CMM to withdraw two miners who had not been trained. 

On December 17, 2013, Zambonino reported for work at the Williams Mine and Filyaw 

told her that the mine had been shut down. Zambonino and all the other employees left the 

Mine. Later that day, Filyaw discussed the situation with Bono, who told Filyaw to “cut back the 

staff now.” 

On December 18, 2013, Filyaw called all employees back to the Williams Mine for 

training, except Zambonino. On December 19, 2013, after the training was completed, MSHA 

terminated the citations and order and the Mine resumed operations. That same day, Filyaw 

36 FMSHRC Page 1251
informed Zambonino that her services as a bilingual ticket agent were no longer needed. On 

December 20, 2013, Zambonino was officially terminated. At C3P, Filyaw continues to employ 

Miller, who has less seniority, experience, and education than Zambonino.2

 

Based on the foregoing, Special Investigator Larue concluded that Zambonino’s claim 

that she was terminated by Respondent CMM because she filed a safety complaint with MSHA 

was not frivolously brought. See Application For Temporary Reinstatement, Ex. A. 

 As noted, at hearing, Respondents stipulated that Zambonino’s January 14, 2014 

discrimination complaint was not frivolously brought. Tr. 44, 58-59, 156. 

Zambonino testified that on Tuesday, December 17, 2013, when she reported for work 

and was entering the open door to the trailer, foreman John David Hardee was talking to foreman 

Rodney Flint and mine manager Filyaw. Tr. 85-87, 96, 100, 111. Zambonino heard Hardee tell 

Flint and Filyaw that it would be really nice to find out who the rat was that told on us so we can 

crush it. Zambonino testified that Hardee looked into her eyes when he uttered these words. Tr. 

86.3 At that point, Filyaw approached Zambonino from his desk and told her that he had “bad 

news, that MSHA had come the day before, and they had cited them for violations and that they 

(MSHA) had shut down the mine.” Tr. 85, 89. Filyaw further told Zambonino that “[w]e can no 

longer operate, have any trucks carrying material. So I need to send all the employees home.” 

Tr. 89. On cross, Zambonino testified that Filyaw told her that MSHA had shut them down. Tr. 

106, 113; R. Ex., 13, line 3. 

At that point, Zambonino asked to see the papers that Filyaw was holding and he showed 

such papers to her. Tr. 89-90. Zambonino then told Filyaw that since the mine had been shut 

down by MSHA, she understood that she no longer had a job, and she asked Filyaw for copies of 

the papers for unemployment purposes. Filyaw told her that she did not need to have a copy of 

the documents, and if anybody needed any information, they could call him. Tr. 90. 

Zambonino testified that she assumed that day was the last day of operations so she 

finished up pending reports and went home. Tr. 90. Before Zambonino left, she overheard 

Filyaw tell Hardee and Flint that CMM was losing money and that Bono was sick of all the 

problems they were having (including problems with MSHA), and that Bono wanted to pull the 

plug and close down the Mine for good. Tr. 112, 128, 130. 

2

 Zambonino did not know whether Miller made complaint to OSHA or MSHA. Tr. 121. 

3

 On cross, counsel established Zambonino did not mention Hardee’s alleged statement in her 

complaint to MSHA. Tr. 110-111. 

36 FMSHRC Page 1252
 Zambonino testified on aggressive cross that Filyaw did not say “. . . no, we’re not 

closing. We’re going to open. You still have a job here.” Zambonino explained that Filyaw led 

her to belief that she did not have a job anymore. Tr. 113. 

Later that day, Zambonino called Filyaw from home because she was not completely sure 

that CMM was going to close for business. So, Zambonino asked Filyaw when she could return 

to work. Tr. 91. Filyaw told Zabonino that he was going to turn in his resignation in the 

morning and he would not be able to tell Zambonino “if they were going to ever open again,” but 

she could call Mandy Pittman to find out when she can go back to work if they ever open again. 

Tr. 91, 107. 

The next day, Wednesday, December 18, 2013, Zambonino called the Mine because she 

still was not sure that they were out of business. Tr. 91. Ticketing agent Miller answered the 

phone. Zambonino hung up. Tr. 92. 

 Later that same day, Zambonino called Pittman to ask if Zambonino could work. Tr. 92. 

Zambonino told Pittman that she was calling because Filyaw had told Zambonino that he was 

going to turn in his resignation, and that if Zambonino wanted to go back to work, that she 

should call Pittman. Tr. 93. Pittman told Zambonino that she was not aware that Filyaw was 

resigning, that the mine was going to open after the miners were trained, and that Miller was not 

there either. Tr. 93. 

Filyaw never called Zambonino back for training. Tr. 94. 

On Thursday, December 19, 2013, Zambonino called Filyaw about coming back to work. 

Filyaw told Zambonino that “they were doing fine without a bilingual ticket agent and not to 

[come] back.” Tr. 94; see also R. Ex. 13 (Zambonino’s January 14, 2014 MSHA discrimination 

complaint stating, inter alia, “[o]n December 19, . . . Filyaw . . . told me ‘things are working out 

well without a bilingual ticketing agent’ and that I was not to go back to work.” Zambonino 

understood Filyaw’s comments to mean that there was no longer a job for her. Tr. 94. It was 

obvious to Zambonino that Filyaw had not resigned. Tr. 121. 

Zambonino testified that she was willing to do any training if it would help her get her 

job back. Tr. 95. Zambonino testified that about ten people worked at the mine at the time she 

was let go, and Zambonino was not aware of more than ten people working at the mine at any 

time that she was employed. Tr. 117, 118. 

C. Special Investigator Larue’s Testimony and Bono’s Rejoinder

MSHA inspector and special investigator Michael Larue testified that he was assigned 

Zambonino’s discrimination complaint. On January 23, 2014, he interviewed Filyaw, at Gravitas 

offices in Sarasota, Florida in the presence of Bono and the intermittent presence of Gravatis 

CEO Flynn. Tr. 134-35; Sec’y Prehearing Report at 3, para 17. Based on his investigation, 

36 FMSHRC Page 1253
Larue understood that the rank and file miners at CMM reported to a foreman, who reported to 

mine manager Filyaw, who reported to CMM representative for Gravitas, Randall Bono. Tr. 

136. 

After Filyaw’s interview of Filyaw, while the group was waiting for portable toilets to 

arrive at the Mine site, Larue explained to Filyaw and Bono that MSHA did not shut the Mine 

down, but only withdrew two miners under a 104(g)(1) Order until proper training had been 

provided, at which point the Mine could continue operating. Larue testified that Bono then made 

a comment that insinuated that he was a direct decision maker in Zambonino’s termination. Tr. 

137, 144. Larue testified that Bono exhibited frustration because he had received information 

from Filyaw that MSHA had shut him down, and Bono pointed at Filyaw and told Larue that 

upon receiving that news he had told Filyaw to cut the staff now (immediately). Tr. 138. 

Bono testified, “I don’t recall saying that. I’m not denying it, but it’s certainly true that 

we decided to start cutting staff in November, and then, after the episode in December with the 

MSHA inspection and shutdown of the mine, I said we can’t keep doing this. We’re getting 

killed. We got to start cutting back.” Tr. 220. Respondents’ counsel then asked Bono: 

Q. And was there a time when maybe you even thought about dare 

I say pulling the plug on the entire operation? 

A. That was under consideration as early as November. 

Q. Did Mr. Filyaw ever offer to resign? 

A. Yes, sir. 

Q. Did he offer you his resignation? 

A. Yes, sir. 

Q. And what happened? 

A. The MSHA inspection occurred, as I understand it, at 3:50 in 

the afternoon on Monday, [December] January 16. I didn’t know 

anything about it until Tuesday morning when I got a call from the 

crusher salesman out there. He had brought people in from the 

Northeast to repair the crusher that was shut down or wasn’t 

working appropriately, and he told us that the MSHA inspector had 

shut the mine down and they got kicked off the property and he 

couldn’t do the repairs. 

I didn’t know anything about the MSHA inspection or the repairs 

or anything going on at that point in time. I was distraught that 

36 FMSHRC Page 1254
Wayne hadn’t called me and told me the mine had been shut down 

by MSHA. I called Wayne up and not politely asked what was 

going on, and Wayne then informed me at that time, and I asked 

Wayne what happened. He said MSHA shut us down. I wasn’t 

here. He was out making a sales call. There was no management 

staff there at the time of the MSHA inspection according to 

Wayne, and he didn’t know what happened, and he was trying to 

reach the MSHA inspector, was unable to reach him, and didn’t 

reach him -- another MSHA representative sometime that 

afternoon, as I recall, to find out what was going on and what had 

happened. 

Q. Did anyone at the mine tell you or did you ever hear that they 

were given a piece of paper that evidenced that the inspection was 

made as a result of an employee complaint? 

A. Never. The first time we ever saw that document -- and we still 

haven’t seen it to this day -- it was flashed by this investigator in 

front of Mr. Filyaw, and he said did you ever see this before, and 

Wayne said no, and I still haven’t seen it to this day. 

THE COURT: Who? By Mr. LaRue? 

THE WITNESS: Yes, sir. That was during the interview. We had 

no notice that anyone had ever filed a complaint. The MSHA 

inspector never told us. We never got any notice, and whoever he 

told, if he told anybody, it wasn’t an officer, manager, or anything 

to do with the management of that company because none of them 

were there that day. 

BY MR. SAVIT: 

Q. Fair to say, Mr. Bono, that all of the decisions to lay people off 

or not replace them were economic at Colonial and – 

THE COURT: Well, you’re leading. 

MS. STEARNS: Objection. 

MR. SAVIT: Okay. 

THE COURT: In a critical area I might add. 

MR. SAVIT: I will withdraw that question. I’m very sorry. 

36 FMSHRC Page 1255
BY MR. SAVIT: 

Q. Can you tell me what your reasons were for not replacing 

people after October of 2013 at Colonial Mining? 

A. It was all economic. We were losing our backsides, and we 

couldn’t continue those kind of losses. We had to figure out a way 

to cut it down to try to save as many jobs as we could. 

Q. Same reason for layoffs during that period? 

A. Yes, sir. 

MR. SAVIT: I don’t have anything further. 

Tr. 220-223. 

Larue testified that he understood Bono’s December 17, 2013 directive to Filyaw, i.e., cut 

the staff now, to mean that Bono was upset that MSHA had shut him down, and given the time 

line of events, Bono was “eliminating” Zambonino because he believed that she may have made 

the complaint that brought MSHA out to the Mine site. Tr. 138, 142. 

On cross, Larue conceded that Bono did not explicitly say anything in connection with 

cutting the staff now that had anything to do with a complaint being made to MSHA. Tr. 139. 

Rather, Larue testified that he drew an inference based on Bono’s comment that after learning 

from Filyaw that MSHA shut the mine down, Bono had ordered Filyaw to cut the staff 

immediately because MSHA was on the scene. Larue conceded that he did not formally 

interview Bono or ask him to explain his comment. Tr. 139, 142. On further cross, Larue 

testified that he had reason to doubt that the reason for the shutdown was financial, but had no 

reason to doubt Zambonino’s testimony that Filyaw stated on December 17 that the reason Bono 

said that he was pulling the plug was in part because of financial reasons and in part because 

Bono believed that MSHA had shut them down. Tr. 140-42. Larue further conceded, however, 

that Bono may have been under the mistaken impression that MSHA had indeed shut him down. 

Tr. 144. Larue did not recall whether he asked CMM for overall financial statements and did not 

recall receiving any. Tr. 145. 

On questioning from the undersigned, Larue testified that he reviewed e-mail 

correspondence between Filyaw and Zambonino in which Filyaw indicated that he had a need for 

a bilingual ticket agent, but that Filyaw did not indicate that both mines needed to be staffed with 

bilingual agents. Tr. 146. The Secretary did not offer the e-mail colloquy. 

36 FMSHRC Page 1256
On February 13, 2014, MSHA apparently issued citations to CMM for defective brake 

lights on a loader, improper containment of fuel storage tanks, and failure to regularly inspect 

fire extinguishers. Sec’y Prehearing Report at 13, para. 18. 

VII. Respondent’s Motion to Dismiss

At the close of the Secretary’s case, the Respondents moved to dismiss the Amended 

Application for Temporary Reinstatement because the Secretary allegedly produced no evidence 

to show that the elimination of Zambonino’s ticket agent job was in any part motivated by 

discriminatory as opposed to financial reasons, that the evidence established that CMM’s largest 

miner complement was in October 2013 after which there were work force reductions supporting 

Respondents’ argument that there was no need for two ticket agents, and that ticketing agent 

Miller was hired to work at another mine, which did not ever open. Tr. 152-53. 

The Secretary responded that the burden of proof to establish a tolling defense is on the 

operator and the Secretary’s obligation to establish a non-frivolous claim that the so-called 

economic layoff tolls the reinstatement obligation does not even come into play until the operator 

has made a showing concerning tolling. Furthermore, the Secretary noted that in the 

Commission’s Cobra decision (cited below), the Secretary offered no evidence whatsoever, and 

the Commission looked at the evidence provided by the operator to determine that there was a 

non-frivolous reason to think that the layoff that supposedly would have included the miner 

might have been motivated, at least in part, by the miner’s protected activity. Therefore, the 

Secretary reserved the right make her case at the end of the hearing after cross examination of 

Respondent’s witnesses. Tr. 153-54. 

The undersigned denied Respondents’ Motion to Dismiss, noting the parties’ stipulation 

that Zambonino’s discrimination complaint was non-frivolous. The undersigned found that the 

Secretary established a non-frivolous case that IMM is a successor to CMM based on facts 

concerning substantial continuity in the business entity going forward. The undersigned further 

found that the Secretary established a non-frivolous claim that IMM may be a Golden State 

successor with notice of the MSHA complaints that Zambonino filed and therefore jointly and 

severally liable for Zambonino’s termination. Even assuming that the undersigned needed to 

reach the tolling issue based on a layoff for economic reasons, the undersigned found that the 

Secretary has put on a non-frivolous case establishing facts that could support the inference that 

Zambonino was fired and not laid off. Finally, the undersigned found that should it be necessary 

to reach the tolling issue, the Secretary has provided sufficient evidence in this temporary 

reinstatement record to support a non-frivolous claim that Zambonino’s selection for or inclusion 

in any layoff or the elimination of her ticketing agent position was motivated (at least in part) by 

her protected activity. Accordingly, the undersigned denied the motion to dismiss. Tr. 156-57. 

36 FMSHRC Page 1257
VIII. Legal Analysis

A. Applicable Temporary Reinstatement Precedent

As noted, Respondents have stipulated that Zambonino’s discrimination complaint was 

not frivolously brought. The Commission has recognized, however, that “the occurrence of 

certain events, such as a layoff for economic reasons, may toll an operator’s reinstatement 

obligation.” Sec’y on behalf of Shemwell v. Armstrong Coal Co., 34 FMSHRC 996, 1000 (May 

2012) (citations omitted). Consistent with the narrow scope of temporary reinstatement 

proceedings, the Commission permits a limited inquiry into whether the obligation to reinstate a 

miner may be tolled even when it has been established that the miner’s discrimination complaint 

is not frivolous. See Sec’y on behalf of Gatlin v. KenAmerican Res., Inc., 31 FMSHRC 1050, 

1054 (Oct. 2009) (temporary reinstatement order does not require that a miner is owed 

reinstatement under every circumstance, regardless of changes that occur at the mine after 

issuance of the order). In Gatlin, the Commission held that the duration of a miner’s temporary 

reinstatement may be modified if the operator can prove that the miner’s inclusion in a 

subsequent layoff was entirely unrelated to his protected activity. Id. at 1055. 

The Commission addressed this issue again in Sec’y on behalf of Ratliff v. Cobra Natural 

Res., LLC, 35 FMSHRC 394 (Feb. 2013), dismissed for lack of jurisdiction, Cobra Natural Res., 

LLC v. FMSHRC, 742 F.3d 82, 83 (4th Cir. 2014). The Commission reiterated that when an 

operator attempts to demonstrate that a layoff properly included a reinstated miner (or would 

have included the miner if he or she had not been discharged previously, in the case of a 

complaining miner whose case is being heard), the Secretary may “assert that the miner’s 

inclusion in the layoff was, or might have been, related to protected activity engaged in by the 

miner.” Id. at 397. Given that the layoff itself, as a termination of employment, must at that 

point be evaluated as a potentially wrongful adverse action, the Commission held that “if the 

objectivity of the layoff as applied to the miner is called into question in the temporary 

reinstatement phase of the litigation, judges must apply the ‘not frivolously brought’ standard 

contained in section 105(c)(2) of the Mine Act to the miner’s claim [regarding the layoff]. . . In 

other words, temporary reinstatement should be granted and not tolled unless the operator shows 

that the claim that the layoff arose at least in part from protected activity is frivolous.” Id. 

The Commission most recently affirmed this precedent in Sec’y on behalf of Dustin 

Rodriguez v. C.R. Meyer & Sons Co., 35 FMSHRC 1183 (May 2013). The Commission 

reiterated that the inquiry into tolling must be limited, consistent with the scope and 

spirit of a temporary reinstatement proceeding. The Commission stated: 

. . . the Secretary shall be allowed to present the rebuttal evidence 

he indicated he was prepared to introduce on the issue of tolling at 

the original hearing. (Tr. citations omitted). The Secretary can also 

introduce evidence and cross-examine witnesses to question the 

objectivity of the layoff as it would have applied to Rodriguez. If 

the Secretary pursues that issue, the judge shall determine whether 

36 FMSHRC Page 1258
the evidence, as a whole, supports a “non-frivolous” claim that 

such a layoff might have been motivated in any way by the miner’s 

protected activity. If it does, the operator’s request that 

reinstatement be tolled must be denied. See Cobra, [35 FMSHRC 

at 397]. Because it is inappropriate to resolve conflicting 

testimony at this stage, the Secretary’s burden of proof is limited to 

establishing facts which could support the claim that any inclusion 

of the complaining miner in the layoff might have been based in 

part on the miner’s protected activity. 

Should the Secretary fail to sufficiently establish the possibility 

that any inclusion of Rodriguez in the layoff might have been 

motivated by the miner’s protected activity, the judge must then 

consider the entire record and determine whether the operator has 

proven by a 

preponderance of the evidence that the layoff of local miners, 

which the operator alleges took place no later than February 22, 

justifies tolling its obligation to temporarily reinstate Rodriguez. If 

the operator succeeds in proving that tolling is justified, the judge 

shall determine the period of time for which the layoff would have 

properly included Rodriguez and shall limit any tolling to that 

period. 

Id. at 1187-88. 

 In the instant case, the tolling issue is presented by Respondents CMM and IMM and its 

obverse is presented by the Secretary, i.e, that alleged successor IMM is jointly and severally 

liable for CMM’s alleged discrimination. Accordingly, I apply the non-frivolous standard to 

both the successorship issue and the tolling issue. 

 

B. The Secretary Has Established a Non-Frivolous Claim that IMM is CMM’s 

Successor, Jointly and Severally Liable for Zambonino’s Termination 

 

 In Golden State Bottling Co., Inc. v. NLRB, 414 U.S. 168 (1973), the Supreme Court, 

after noting that the successor company acquired the predecessor with notice of unfair labor 

practice litigation, and continued the business without substantial interruption or change in 

operations, employee or supervisory personnel, upheld the Board’s order requiring the successor 

to reinstate with back-pay an employee discharged by the predecessor company. Both 

companies were held jointly and severally liable for the back-pay award. 

 Quoting with approval from Perma Vinyl Corp., 164 NLRB 968, 969 (1967), enforced 

sub nom. United States Pipe & Foundry Co. v. NLRB, 398 F.2d 544 (5th Cir. 1968), the Court 

stated: 

36 FMSHRC Page 1259
‘To further the public interest involved in effectuating the policies 

of the Act and achieve the ‘objectives of national labor policy, 

reflected in established principles of federal law,’ we are persuaded 

that one who acquires and operates a business of an employer 

found guilty of unfair labor practices in basically unchanged form 

under circumstances which charge him with notice of unfair labor 

practice charges against his predecessor should be held responsible 

for remedying his predecessor’s unlawful conduct. 

‘In imposing this responsibility upon a bona fide purchaser, we are 

not unmindful of the fact that he was not a party to the unfair labor 

practices and continues to operate the business without any 

connection with his predecessor. However, in balancing the 

equities involved there are other significant factors which must be 

taken into account. Thus, ‘It is the employing industry that is 

sought to be regulated and brought within the corrective and 

remedial provisions of the Act in the interest of industrial peace.’ 

When a new employer is substituted in the employing industry 

there has been no real change in the employing industry insofar as 

the victims of past unfair labor practices are concerned, or the need 

for remedying those unfair labor practices. Appropriate steps must 

still be taken if the effects of the unfair labor practices are to be 

erased and all employees reassured of their statutory rights. And it 

is the successor who has taken over control of the business who is 

generally in the best position to remedy such unfair labor practices 

most effectively. The imposition of this responsibility upon even 

the bona fide purchaser does not work an unfair hardship upon 

him. When he substituted himself in place of the perpetrator of the 

unfair labor practices, he became the beneficiary of the unremedied 

unfair labor practices. Also, his potential liability for remedying 

the unfair labor practices is a matter which can be reflected in the 

price he pays for the business, or he may secure an indemnity 

clause in the sales contract which will indemnify him for liability 

arising from the seller’s unfair labor practices.’ 

414 U.S. at 171-172, n. 2. 

 Thereafter, in addressing the remedies available under the National Labor Relations Act 

(NLRA), the Court determined that the Act’s remedies may not be thwarted by the fact that an 

employee who is within the Act’s protections when the discrimination occurs would have been 

promoted or transferred to a position not covered by the Act if he had not been discriminated 

36 FMSHRC Page 1260
against. Id. at 188. Rather, the purpose of reinstatement is to restore the economic status quo 

that would have obtained but for the (alleged) wrongful discharge. Id. 

 In EEOC v. MacMillan Bloedel Containers, Inc., 503 F.2d. 1086 (6th Cir. 1974), the 

Sixth Circuit expressed the view that the considerations set forth by the Supreme Court in 

Golden State as justifying a successor doctrine to remedy unfair labor practices were mandated

in the Title VII context, which was designed to eliminate discrimination in employment by 

giving courts broad equitable powers to eradicate the present and future effects of past 

discrimination. Id. at 1092 (citations omitted). The court held that successor liability must be 

determined on the facts of each case by balancing the purposes of the statute with the legitimate 

and often conflicting interests of the employer and the discriminatee, and that a successor may be 

liable for some purposes and not for others. Id. at 1091-92 (citations omitted). 

 The court reasoned that the failure to hold a successor employer liable for the 

discriminatory employment practices of its predecessor could emasculate the relief provisions of 

Title VII by leaving the discriminatee without remedy or with incomplete remedy. For example, 

where the predecessor no longer had any assets, monetary relief would be precluded, thus 

encouraging evasion in the guise of corporate transfers of ownership. Similarly, where relief 

involves seniority, reinstatement or hiring, only the successor could provide it. The court 

emphasized that the equities favor successor liability because the successor benefitted from the 

discriminatory employment practices of its predecessor. The court observed that although the 

nature and extent of liability is not subject to any formula, the primary concern is to provide the 

discriminatee with full relief, and such relief may be awarded against the successor, albeit the 

ability of the predecessor to provide relief will be a necessary inquiry. Id. 

The Sixth Circuit further determined that courts considering the successorship issue in a 

labor context have found a multiplicity of factors to be relevant, including: 1) whether the 

successor company had notice of the charge, 2) the ability of the predecessor to provide relief, 3) 

whether there has been a substantial continuity of business operations, 4) whether the new 

employer uses the same plant, 5) whether he uses the same or substantially the same work force, 

6) whether he uses the same or substantially the same supervisory personnel, 7) whether the 

same jobs exist under substantially the same working conditions, 8) whether he uses the same 

machinery, equipment and methods of production, and 9) whether he produces the same product. 

Id. at 1094 (citations omitted). 

The Commission with D.C. Circuit approval has found these nine factors to provide a 

useful framework for resolving successorship and successor liability under the Mine Act. 

Munsey v. Smitty Baker Coal Co., 2 FMSHRC 3463, 3465-66 (Dec. 1980) (“Munsey”), aff’d in 

relevant part sub nom., Munsey v. FMSHRC, 701 F.2d 976 (D.C. Cir. 1983), cert. denied sub 

nom., Smitty Baker Coal Co. v. FMSHRC, 464 U.S. 851 (1983); see also Sec’y of Labor on 

Behalf of Keene v. Mullins, 888 F.2d 1448, 1453 n. 15 (D.C. Cir. 1989). 

36 FMSHRC Page 1261
 Applying the above precedent and nine-factor test to the facts of this case, the Secretary 

has established a non-frivolous claim that IMM is CMM’s successor and thus jointly and 

severally liable for Zambonino’s termination. 

 First, IMM had notice of MSHA proceedings which could lead to successor liability 

because Filyaw, who controlled day-to-day operations at IMM and CMM, was mailed a copy of 

Zambonino’s January 14, 2014 discrimination complaint. In addition, Bono was present during 

MSHA special investigator Larue’s interview of Filyaw on January 23, 2014, as was Susan 

Flynn, CEO of Gravitas, LLC, the parent of both entities. See Munsey, 2 FMSHRC at 3466 

(notice of proceedings which could lead to liability is the critical factor). 

 Second, CMM has no ability to provide temporary reinstatement relief since it no longer 

operates the Mine. 

 Third, there has been substantial continuity of business operations between CMM and 

IMM. The same surface Mine is now operated without any significant hiatus by IMM, which is 

engaged in some of the same operations (crushing and screening) as CMM, and uses some of the 

same leased equipment. Respondents admit that IMM uses the same screening and crushing 

equipment that CMM had used. CMM assigned its machine repurchase agreements to IMM on 

March 12, 2014. CMM assigned its long-term equipment lease agreements to IMM on March 

21, 2014. R. Opposition, Ex. 2. Respondent IMM also admits that it leases the same scale and 

scale house leased by CMM, which are integral to the Mine’s weighing operations. R. 

Opposition at para. 7. Although IMM does not engage in extraction or washing activities at the 

Mine, IMM purchased 500,000 tons of rock, sand, shell and other material at $1 per ton from 

Williams Farms, who previously had mined and sold substantial quantities of washed sand and 

rock from its stockpile to CMM at $3 per ton. Sec’y Ex. 2; Sec’y Mot. to Amend, Ex. F. 

Furthermore, Respondent’s own documentation indicates that both IMM equipment operators 

(John Mosley and Floyd Layport) perform duties that involve escavator operation. R. 

Opposition, Ex. 3 (IMM Employees - Job Assignments). 

 Fourth, as noted, IMM uses the same Mine (plant) that CMM used without any 

significant hiatus in the substantial continuity of business operations. 

 Fifth, IMM’s four employees are all former CMM employees, including IMM equipment 

operators (Jason Mosley, full-time and Floyd Layport, part-time), foreman (Jason David 

Hardee), and mine manager (Wayne Filyaw). In addition, Randall Bono is the Gravatis 

representative for both CMM and IMM. Although Respondents assert that CMM had as many as 

fifteen employees at the height of its operations, the extent of workforce reduction or carryover 

cannot be reliably established, absent personnel and payrolls records from CMM and IMM, 

which Respondents did not provide. In fact, Bono testified that CMM had only seven or eight 

employees when it ceased operations at the end of February 2014, and IMM employs four of 

these former CMM employees. Tr. 201-02. Concededly, CMM had two scale house operators 

or ticket agents (Zambonino and Miller), whereas IMM has none. But Miller, who apparently 

36 FMSHRC Page 1262
did not file a complaint with MSHA, was offered a receptionist job at C3P after Zambonino filed 

her discrimination complaint with MSHA and after the Secretary began its special investigation 

with the knowledge of Filyaw, Bono and Flynn. Furthermore, after Zambonino’s MSHA 

discrimination complaint, the duties of scale house operator were allegedly subsumed into IMM 

Mine manager Filyaw’s and foreman John David Hardee’s jobs, so the scale operator or ticketing 

agent job function still exists. See R. Opposition, Ex. 3 (IMM job assignments). Zambonino 

testified, however, that Filyaw stated at the outset of her employment that he needed ticket 

agents to staff both mines. In these circumstances, I conclude that IMM employs substantially 

the same miner complement that CMM employed when it ceased operations. 

 Sixth, IMM uses the same or substantially the same supervisory personnel since Filyaw 

was/is the day-to-day Mine manager at CMM and IMM, Hardee was/is the foreman for CMM 

and IMM, and Bono is the Gravatis representative for both CMM and IMM. 

 Seventh, as noted with respect to the fifth factor above, although the same jobs do not 

exist, the same essential job functions exist under substantially the same working conditions, 

and, as further explained below, the Secretary has established a non-frivolous claim that the 

workforce reduction may have been motivated, in part, by Zambonino’s MSHA complaint, 

MSHA’s subsequent investigation, and Zambonino’s discrimination complaint filed on the heels 

of her termination. 

 Eighth, as more fully explained with respect to the third factor above, IMM uses some of 

the same machinery, assigned equipment leases, scale and scale house, stockpile and partial 

methods of production (crushing and screening). 

 Ninth, IMM mines, processes and sells or intends to sell the same product and materials 

(rock, sand, shell and other material) that were mined, processed and sold by CMM. 

 Given all these circumstances, Respondents’ reliance on the D.C. Circuit’s decision in

Sec’y of Labor on Behalf of Keene v. Mullins, 888 F.2d 1448 (D.C. Cir. 1989) is inapposite and 

unpersuasive. In that case, the court found substantial evidence to affirm the Commission 

holding that two operations were so dissimilar as to negate successor liability for an act of 

alleged discriminatory discharge by the predecessor. The alleged successor operated a surface 

mining operation, whereas the predecessor operated an underground mining operation. The 

successor’s mine was located a mile and one-half from the predecessor’s mine. The different 

mines operated under different coal leases. Only two of the alleged successor’s eight employees 

were employed by the predecessor. The two companies employed different supervisors. The 

machinery, equipment and mining methods were not the same. Id. at 1454.

 In this case, by contrast, there is substantial evidence in this record, even prior to 

discovery and a full-blown hearing on the merits, that IMM is CMM’s successor, who is jointly 

and severally liable for Zambonino’s non-frivolous complaint of discriminatory discharge. 

36 FMSHRC Page 1263
Certainly, it cannot be gainsaid that the Secretary has established a non-frivolous claim that IMM 

is CMM’s successor and thus jointly and severally liable for Zambonino’s termination. 

C. Respondents Have Failed to Prove by a Preponderance of the Evidence that 

Zambonino Would Have Been Laid Off for Economic Reasons When CMM Ceased 

Operations Thereby Tolling Temporary Reinstatement 

At the outset, I find that the Secretary has established a non-frivolous claim that 

Zambonino was fired on December 20, 2013, and not laid off, as Respondent contends. Tr. 94; 

R. Ex. 13; see also Pride Ambulance Co., 356 NLRB No. 128, slip. op. at 3-4 (2011) (when 

employer’s words or actions lead an employee to reasonably believe that she has been 

discharged, a termination has occurred regardless of actual employment status). Nevertheless, 

Respondents argue that temporary reinstatement should be tolled to February 28, 2014, the date 

that CMM ceased operations purportedly for economic reasons because Zambonino would have 

been laid off on that date even if she had not been terminated on December 20, 2013. 

 I reject this argument. The evidence supports the Secretary’s non-frivolous claim that 

Respondents’ decision to eliminate Zambonino ’s job might have been motivated, at least in part, 

by Zambonino’s protected activity of complaining to MSHA in December 2013 and filing a 

discrimination complaint with MSHA on January 14, 2014. 

 

 As the Secretary points out in her post-hearing brief at 21-22, Respondents do not 

contend that the mine where Zambonino was employed has been idled or that her job duties are 

no longer being performed. Cf. Gatlin, 31 FMSHRC at 1055. Nor do they contend, like the 

operator in Cobra, that Zambonino would have been included in an across-the-board reduction in 

force based on layoff criteria that was applied to all employees. Cf. Cobra, 35 FMSHRC at 395. 

Rather, Respondents allege that the same mine management who were involved in Zambonino’s 

non-frivolous retaliatory termination decided to eliminate her position when IMM began 

operating the Mine, in an effort to reduce costs. For the reasons set forth below, the undersigned 

concludes that temporary reinstatement should be ordered and not tolled because the evidence 

supports a non-frivolous claim that these managers might have made any such decision, at least 

in part, because of Zambonino’s protected activity of complaining to MSHA in December 2013 

and filing a discrimination complaint with MSHA on January 14, 2014, and to avoid having to 

reinstate Zambonino, the alleged “rat.” 

 

 Given Respondents’ contention that Zambonino would have been included in a 

subsequent layoff or reduction in force (RIF), the subsequent layoff or RIF “must at that point be 

evaluated as a potentially wrongful adverse action.” Cobra, 35 FMSHRC at 397. In such 

circumstances, the traditional circumstantial evidence of discriminatory motivation is relevant in 

evaluating whether the subsequent adverse action may have resulted, at least in part, from the 

miner’s protected activity. Accordingly, the Commission looks to knowledge by the operator of 

the protected activity; hostility or animus toward the protected activity; temporal proximity 

between the protected activity and the adverse action(s); and disparate treatment of the 

36 FMSHRC Page 1264
complainant as compared to other miners. Sec’y on behalf of Chacon v. Phelps Dodge Corp., 3 

FMSHRC 2508, 2510-11 (Nov. 1981), rev’d on other grounds sub nom Donovan v. Phelps 

Dodge Corp., 709 F2d 86 (D.C. Cir. 1983). Furthermore, an operator's apparent disinclination to 

subject itself to MSHA jurisdiction and the involvement of the same managers who were aware 

of the miner's protected activity in the layoff or subsequent adverse action may be relevant 

factors with respect to motivation. See Sec'y on behalf of Shemwell v. Armstrong Coal Co., 34 

FMSHRC 1464, 1471 (June 2012) (ALJ), aff'd, 34 FMSHRC 1580, 1582-83 (July 2012). These 

indicia of discriminatory motivation are present here. 

 Bono admitted that he and Filyaw were involved in the decision to terminate Zambonino. 

Q. Okay. So it’s true that you were involved in the decision to 

terminate Miss Zambonino; correct? 

A. Ultimately the decision was mine to start cutting down on staff. 

I had been wanting to get rid of at least one of the ticket agents 

long before the 16th, and Wayne and Phil said no. This thing’s 

going to work. It’s going to work. We need to keep them here in 

case this works. 

Then, after we got shut down by MSHA, I said it’s time to cut 

back. We got to do it now. And I didn’t take lightly falling two 

further weeks behind in being able to excavate. 

So yes. I did not say Lucy had to go or Amanda had to go. Wayne 

got to choose which one, but we said we had to cut back, and we 

just didn’t have the trucks coming through to justify one, much less 

two. 

 Tr. 247. 

 These same mine managers, Bono and Filyaw, who had knowledge of and were involved 

in Zambonino’s December 20, 2013 termination, were aware of her subsequent discrimination 

complaint and MSHA’s concomitant investigation and any subsequent layoff or restructuring 

decision. Tr. 137-38; 204. Bono testified that ‘. . . in cost-saving measures we got rid of all 

ticket agents in February . . .” Tr. 204. Respondents’ decision to eliminate the ticket agent 

position still being performed by Miller, who did not speak Spanish and had less seniority, 

experience, and education than Zambonino, occurred six weeks after Zambonino filed her 

discrimination complaint, and only about a month after LaRue’s special investigatory interview. 

The Mine operator ID was not changed until March 18, 2014, four days after the Secretary 

served a copy of the original Application for Temporary Reinstatement by first class mail. 

Certainly, the close temporal proximity of events could reflect a discriminatory motive. See 

Sec’y v. All American Asphalt, 21 FMSHRC 34, 47 (Jan. 1999) (citing Chacon, supra, 3 

FMSHRC at 2511) (“[a]dverse action under circumstances of suspicious timing taken against the 

36 FMSHRC Page 1265
employee who is [a] figure in protected activity casts doubt on the legality of the employer’s 

motive . . .”). 

 

 The Secretary also presented evidence that agents of Respondents harbored animus 

toward Zambonino’s protected activity and MSHA’s inspection(s) and special investigation. 

Zambinino heard Respondents’ agent Hardee, foreman for both CMM and IMM, tell Mine 

manager Filyaw and CMM foreman Flint that it would be really nice to find out who the rat was 

who told on us so we can crush it. Zambonino testified that Hardee looked into her eyes when he 

uttered these words. Tr. 86. Immediately thereafter, Filyaw told Zambonino that he had “bad 

news, that MSHA had come the day before, and they had cited them for violations and that they 

(MSHA) had shut down the mine.” Tr. 85, 89. Before Zambonino left, she overheard Filyaw 

tell Hardee and Flint that Bono was losing money and sick of all the problems they were having 

and that Bono wanted to pull the plug and close down the mine for good. Tr. 112, 128, 130. 

Thereafter, Filyaw led Zambonino to believe that he had resigned and she had been terminated. 

He never called her back for training with other employees. When she persisted in an effort to 

get her job back, he told her that “things are working out well without a bilingual ticketing 

agent” and that she would not go back to work. Tr. 90-91, 94, 107. 

 At the hearing, Bono expressed several instances of apparent disdain toward the MSHA 

inspection resulting from Zambonino’s safety complaint and MSHA’s conduct during the 

subsequent discrimination investigation. When asked on cross why he did not require proof of 

compliance with MSHA regulations from Filyaw, Bono testified, “I think that would be an 

impossibility because there are so many MSHA rules and regulations that he would have to bring 

me volumes of books and show me compliance, compliance, compliance.” Tr. 246. Bono 

insisted that MSHA, not CMM or its alleged non-compliance with mandatory MSHA safety and 

health standards, “shut us down.” Tr. 187. He blamed the MSHA inspection for a two-week 

delay in CMM’s attempt to engage in shell production and excavation activities because the lake 

filled up with water when the pumps were shut down and it took CMM two weeks to pump down 

the lake to get to the area of excavation. Tr. 187-88. Bono “didn’t take lightly falling two 

further weeks behind in being able to excavate.” Tr. 247. As noted, Bono testified that “after the 

episode in December with the MSHA inspection and shutdown of the mine, I said we can’t keep 

doing this. We’re getting killed. We got to start cutting back.” Tr. 220. When asked whether he 

had seen Zambonino’s hazard complaint, he testified not until it was “flashed by this investigator 

in front of Mr. Filyaw” during the discrimination interview. Tr. 222. Bono’s testimony suggests 

animus towards MSHA’s regulatory activity and Zambonino’s safety complaints and 

discrimination complaint, which initiated MSHA’s regulatory activity and special investigation. 

 Regarding disparate treatment, Bono testified that nearly all the other employees who 

were “laid off” when CMM ceased operations were rehired by IMM or by another subsidiary 

controlled by Bono and Gravitas, majority owner of IMM. Tr. 201-02. Perhaps most 

importantly, Bono testified that “we offered” Miller a position as receptionist at C3P, without any 

training. Tr. 202. Accordingly, there is evidence that other employees purportedly laid off when 

36 FMSHRC Page 1266
CMM ceased operations were treated more favorably than Respondents claim that Zambonino 

would have been treated. 

 

 In sum, there is sufficient evidence to support a non-frivolous claim that Respondents’ 

decision to eliminate the ticketing agent position might have been motivated, at least in part, by 

Zambonino’s safety complaints and discrimination complaint, which initiated MSHA’s 

regulatory activity and special investigation. Although Respondents submitted evidence of 

economic difficulties, Respondents failed to demonstrate by a preponderance of the evidence 

that economic reasons were the sole motivation for eliminating the ticketing agent position or 

that Respondents adverse actions were in no part motivated by Zambonino’s protected activities. 

 Respondents provided incomplete and cursory evidence of the economic reasons 

purportedly causing them to eliminated the ticketing agent position at the end of February 2014. 

Bono failed to explain why the rock crushing operation did not meet economic projections, nor 

establish by documentation or otherwise, the decision making process that led to the alleged 

financial curtailment. As noted, unaudited profit and loss statements from CMM from January 

through December 2013 and from January through cessation of operation in late February 2014, 

purport to show approximately $750,000 in losses from January 2013 to April 2014. Tr. 193; R. 

Ex. 5. That financial information, however, partially encompassed CMM’s operation, and its 

revenue and fees from the Quality Mine. Tr. 191; R. Ex. 5. Respondent also submitted 

unaudited balanced sheets for CMM as of December 31, 2013 and February 28, 2014, the date 

CMM ceased operations. R. Ex. 5. That financial information, however, includes long-term 

loans payable to Frugalitas of $600,000 and $735,000, respectively. As noted, on February 25, 

2014, Frugalitas, the lending company Bono personally owns, purchased 500,000 tons of rock, 

sand, shell, and other material from Williams Farms on behalf of IMM. Sec’y Ex. 2; Tr. 230-31. 

No balance sheet, audited or otherwise, was proffered for IMM. Respondents did admit into 

evidence an IMM profit and loss statement from January through March, 2014, even though 

Bono testified that IMM did not commence operations until March 3, 2014. R. Ex. 6; Tr. 213. 

Although not proffered in evidence, Bono testified that he had reviewed IMM’s profit and loss 

statement through the end of April 2014, which shows losses are down to $24,000 and IMM may 

have actually made a little bit of money. Tr. 218. 

 Although Bono testified that CMM ceased operations on February 28, 2014 because it 

could not sustain the losses it was suffering and could not afford its leases on equipment (Tr. 

194), Bono did not walk away from the Williams Mine at the time of alleged economic layoff or 

retrenchment. Rather, through Frugalitis, he provided $500,000 for IMM to purchase 500,000 

tons of stockpile around the same time Respondents would have terminated Zambonino for 

financial reasons. Tr. 223, 231; Sec’y Ex 2. Bono testified that IMM began operating the Mine 

in place of CMM on March 3, 2014, although CMM as a corporate entity still exists. Tr. 193, 

215. CMM’s long-term debt apparently is owed to Frugalitas. Tr. 31; R. Ex. 5. As the Sixth 

Circuit alluded to in EEOC v. MacMillan Bloedel, IMM’s purchase “could encourage evasion in 

the guise of corporate transfers of ownership,” and it casts doubt on the veracity of Respondents’ 

economic tolling arguments. 503 F.2d at 1092. Furthermore, Respondents did not submit 

36 FMSHRC Page 1267
personnel records showing which employees were allegedly laid off due to CMM’s economic 

losses. Bono could not identify any of them. Tr. 242. In these circumstances, Respondents have 

failed to prove its economic tolling defense by a preponderance of the evidence. Cf. Sec’y on 

behalf of Pilon v. ISP Minerals, Inc., 2013 WL 1385626 at *2 (Feb. 28, 2013) (ALJ) (bona fide 

economic retrenchment in workforce not established given absence of evidence concerning sales 

volumes, personnel files, or other financial information). 

 Respondents’ reliance on Sec’y on behalf of Haynes v. Deconder Coal Co. 10 FMSHRC 

1810 (Dec. 1988) (ALJ) is non-precedential and superseded by recent Commission precedent in 

Cobra, 35 FMSHRC at 397, and C.R. Meyer, 35 FMSHRC at 1187, holding that when an 

operator asserts that a miner would have been included in a post-termination layoff, temporary 

reinstatement must be granted if there is a non-frivolous claim that such layoff might have been 

motivated in any part by the miner’s protected activity. As explained above, that non-frivolous 

claim has been established here. Moreover, the judge’s decision in Deconder was based on 

credibility determinations, which are not appropriate in a temporary reinstatement hearing. Sec’y 

on behalf of Williamson v. Cam Mining, LLC, 31 FMSHRC 1085, 1091 (Oct. 2009). 

 This case is also sharply distinguishable from Sec’y v. Argus Energy, 2014 WL 586885 

(Jan. 16, 2014) (ALJ). In that case, the judge tolled temporary reinstatement based on changed 

circumstances not applicable here. The mine completely ceased operations due to “the collapse 

of the Central Appalachian coal market” and 56 of the 62 miners were laid off without any 

transfer to other facilities. Id. at *1. Six employees were retained for removal and transportation 

of equipment, and for clean up of remaining coal. These miners were selected based on 

seniority, experience and skill, respondent documented the selection process, and the laid-off 

complainant had fewer certifications and less seniority than those retained. Id. at *2. The judge 

emphasized an “exceptional case” where the discrimination complaint had already been denied, 

there was complete closure of the mine, and the Secretary submitted no evidence opposing 

Respondent’s claims. Id. at *4 n.6. 

 Here, Zambonino’s discrimination complaint is viable, the mine where she worked has 

not been shut down, and the Secretary has established a non-frivolous claim that there is 

substantial continuity in the business enterprise with profitability looming on the horizon. Tr. 

218-19. Most importantly, the evidence as a whole suggests that Respondents may have 

eliminated the ticketing agent position, at least in part, to avoid reinstating Zambonino after the 

MSHA problems she engendered. 

 It is noteworthy that Zambonino did more than weigh trucks at the extant scale house, a 

task now performed by managers, who exhibited animus towards her. Zambonino also printed 

reports, researched potential customers, cleaned, and spoke Spanish with truck drivers or on 

phone calls. Tr. 71, 78. Respondents have not shown Zambonino’s former duties no longer 

exist, or are no longer needed. Respondents have denied Zambonino the opportunity to perform 

her duties, which contrasts starkly with treatment of Miller, the other ticketing agent, with less 

seniority. CMM trained Miller to perform quality control work and continued to employ her as a 

36 FMSHRC Page 1268
ticketing agent until CMM ceased operations about February 28, 2014. Tr. 95, 201-02. At that 

time, Miller was offered a job as a receptionist with C3P, one of Bono’s other Gravitas 

companies, where other CMM miners also worked. Tr. 202, 60, 64, 96-97, 225. 

 Respondents argue that Zambonino’s temporary reinstatement should not be ordered 

because Miller was transferred to a position not covered by the Mine Act and Zambonino’s ticket 

agent position no longer exists. This argument must fail. The evidence as a whole suggests that 

Respondents may have eliminated the ticketing agent position, at least in part, to avoid 

reinstating Zambonino because of Zambonino’s protected activity of complaining to MSHA in 

December 2013 and filing a discrimination complaint with MSHA on January 14, 2014. 

MSHA’s investigation is ongoing and its theories of liability and discrimination may expand to 

the layoff or elimination of the ticket agent position, or to other employees affected by such 

action. 

 Finally and most importantly, the purpose of temporary reinstatement under the Mine 

Act is to restore a miner like Zambonino to the economic status quo prior to the alleged 

discrimination against her, once it has been established, as stipulated here, that her discrimination 

complaint is not frivolously brought. Jim Walter Res., Inc., v. FMSHRC, 920 F.2d 738, 744 (11th

Cir. 1990); cf., Golden State, 414 U.S. at 188 (the purpose of reinstatement under the NLRA is to 

restore the economic status quo that would have obtained but for the wrongful discharge). It is 

undisputed that Zambonino was a miner covered by the Mine Act at the time of her nonfrivolous discriminatory discharge. Accordingly, the remedial principles articulated above in 

Jim Walter Resources and Golden State apply. The Mine Act’s temporary reinstatement remedy 

may not be thwarted by the fact that Zambonino, who was within the Act’s protections when the 

non-frivolous claim of discrimination occurred, would (or may) have been promoted or 

transferred to a position not covered by the Act if she had not been allegedly discriminated 

against. Id.; see Munsey, 2 FMSHRC 3463 (citing Golden State with approval in a case 

involving a successor’s joint and several reinstatement liability). Therefore, to restore 

Zambonino to the status quo ante her non-frivolous discriminatory discharge, Respondents 

should be required to reinstate Zambonino to her former ticketing agent position or provide her 

with a job similar to the one provided to Miller. 

 The undersigned intimates no view on the ultimate merits of Zambonino’s discrimination 

complaint. 

IX. Temporary Reinstatement Order 

 

 Colonial Mining Materials, LLC and its putative successor-in-interest Infinity Mining 

Materials, LLC are jointly and severally ORDERED to immediately reinstate Lucero 

Zambonino to her former position that she held immediately prior to her December 20, 2013 

termination, or to a substantially equivalent or similar position, at the same rate of pay, hours, 

benefits, and job responsibilities or equivalent duties. 

36 FMSHRC Page 1269
 Ms. Zambonino’s reinstatement is not open-ended. It will end upon final order on the 

underlying discrimination complaint as set forth in section 105(c)(2) of the Act. 30 U.S.C. § 

815(c)(2). Therefore, the Secretary must promptly determine whether or not she will file a 

complaint with the Commission under section 105(c)(2) of the Act and so advise the Respondent 

and this tribunal. 

 I retain jurisdiction over this temporary reinstatement proceeding. 29 C.F.R. § 

2700.45(e)(4). 

 /s/ Thomas P. McCarthy 

 Thomas P. McCarthy 

 Administrative Law Judge 

Distribution: 

 

Mark N. Savit, Esq., and Ross J. Watzman, Esq., Jackson Lewis P.C., 950 17th Street, Suite 

2600, Denver, Colorado 80202 

Tara E. Stearns, Esq., Office of the Solicitor, U.S. Department of Labor, 200 Constitution Ave., 

N.W., Room N-2700, Washington, D.C. 20210 

Channah S. Broyde, Esq., Civil Rights Counsel, Office of the Solicitor, U.S. Department of 

Labor, 61 Forsyth Street, SW, Suite 7T10, Atlanta, GA 30303 

Lucero Zambonino, 2602 70th St. W., Lehigh Acres, FL 33971 

36 FMSHRC Page 1270
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

721 19TH STREET, SUITE 443 

DENVER, CO 80202-2500 

303-844-5266/FAX 303-844-5268 

May 14, 2014 

 

ORDER DENYING CONMAT’S MOTION FOR SUMMARY DECISION &

ORDER GRANTING SECRETARY’S MOTION FOR SUMMARY DECISION

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

of Labor pursuant to section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 

U.S.C. § 801 et seq. (the “Act”). The case involves one 104(a) citation issued to Conmat, Inc. on 

February 23, 2011. 

On March 13, 2014 the parties participated in a conference call with the undersigned.1 

The parties represented to the court that a dispute of fact did not exist, and that the case rested on 

an interpretation of law. To that end, the parties agreed that the issue could be decided on cross 

motions for summary decision. On March 28, 2014 Conmat filed its Motion for Summary 

Decision (“Conmat Mot.”) and Memorandum in Support (“Conmat Memo”) pursuant to 

Commission Procedural Rule 67, 29 C.F.R. § 2700.67. The Secretary filed his Motion for 

Summary Decision (“Sec’y Mot.”) on April 11, 2014. For reasons set forth below, Conmat’s 

Motion for Summary Decision is DENIED, and the Secretary’s Motion for Summary Decision is 

GRANTED. 

I. BACKGROUND AND STATEMENT OF UNDISPUTED MATERIAL FACTS 

On June 3, 2013 Gordie Pearce task trained a miner on two pieces of equipment at 

Respondent’s mine. Pearce noted the trainings on a task training form, then signed and dated the 

form on the line reserved for the “[s]ignature of person responsible for health and safety 

training[,]” which was located immediately below a statement which read: “I certify that the 

 1

 During the call the court informed the parties that it would obtain a transcript of the call. The 

transcript was received by the court on March 18, 2014. For purposes of this order the transcript is cited 

as “Call Tr.” 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION, (MSHA), 

 Petitioner, 

 v. 

CONMAT, INC., 

 Respondent. 

: 

: 

: 

: 

: 

: 

: 

: 

:

 CIVIL PENALTY PROCEEDING 

Docket No. LAKE 2014-9-M 

A.C. No. 11-00012-332726 

Mine: Spread 4 

36 FMSHRC Page 1271
above training has been completed[.]” Jt. Ex. 1. 2 While Gordie Pearce was competent to 

perform the task training, he was not designated in the mine’s Part 46 MSHA-approved training 

plan as an individual responsible for health and safety training. 

On June 25, 2013, Inspector Eric W. Crum with the Department of Labor’s Mine Safety 

and Health Administration issued Citation No. 8741693 under section 104(a) of the Act for an 

alleged violation of 30 C.F.R. § 46.9(b)(5). The citation alleges the following: 

The task training form for one new miner was not signed by a 

person designated as responsible for the health and safety of the 

miners in the mine[’]s part 46 training plan. The task training was 

signed by Gordie Pearce but the three people designated in the plan 

[as responsible for health and safety training] did not include 

Gordie Pearce. 

Inspector Crum determined that this violation had no likelihood of contributing to injury 

or illness of a miner, and that, should an injury occur, it could reasonably be expected to result in 

no lost workdays. He determined that the violation was not significant and substantial (“S&S”), 

that no persons were affected, and that the violation was a result of low negligence on the part of 

the operator. The Secretary proposed a penalty of $100.00 for this citation. 

II. BRIEF SUMMARY OF THE PARTIES’ ARGUMENTS 

a. Conmat’s Argument

Conmat argues that it is entitled to summary decision as a matter of law, and that Citation 

No. 8741693 should be vacated. The regulations require that task training need only be certified 

by a designated person once every twelve months. Twelve months had not elapsed since the task 

training occurred and, therefore, the citation was prematurely issued. Call Tr. 2. 

According to Conmat, the task training for the new miner was “in progress.” Id. at 3. 

Conmat therefore argues that it should have twelve months to certify that the training had been 

completed. Id. Task training is “not a one-shot deal;” Conmat envisions training a miner “one 

day on three or four things and then a week later you can be task trained on some more.” Id. at 5. 

The twelve-month certification timeline is consistent with this reality. “[T]hat’s why there’s 20 

spots on [the task training worksheet] to fill in all the task training.” Id. 

 Conmat contends that its interpretation of the standard is justified by MSHA’s Program 

Policy Manual. The manual states that “[a] ‘record’ of task training must be made at the 

completion of new task training. New task training records must be ‘certified’ at least once 

 2

 Conmat included pictures of the task training form in its motion, however, the form was 

unreadable due to the poor quality of the printed pictures. On May 5, 2015, the Secretary, after conferring 

with Respondent, emailed digital pictures of the training form to the court. This document has been 

marked Jt. Ex. 1. A printed version of the exhibit has been included in the file. 

36 FMSHRC Page 1272
every 12 months, or upon request by the miner.” Conmat Memo Ex. RX-11. The Compliance 

Guideline for MSHA’s Part 46 Training Regulations includes identical language, written in 

response to the question “Does task training have to be recorded and certified each time you train 

an employee in a specific task?” Id. at Ex. RX-6. 

 According to this interpretation, “recording” and “certifying” each miner’s training is 

intended to be a two part process involving separate and distinct responsibilities. Conmat Memo 

6. Part one requires operators to record the training, by written record, on a form of the 

operator’s choosing. Id. Part two requires operators to certify the training, at least once every 

twelve months. Id. Conmat argues that it did not violate section 46.9(b)(5) by failing to certify 

the training because the certification need only be made within one year of the training. 30 

C.F.R. § 46.9(d)(3). The citation was issued twenty-two days after the safety training was 

recorded, and long before the expiration of the twelve month period during which the operator 

had to certify the record. 

b. Secretary’s Argument

 The Secretary argues that there are no genuine issues as to any material fact and that the 

citation should be affirmed because the individual who certified the record was not listed in the 

mine’s training plan. The plain language of section 46.9(b)(5) requires an individual who 

certifies a miner’s training form to be “designated in the MSHA-approved training plan for the 

mine as responsible for health and safety training.” Sec’y Mot. 6-7. Gordie Pearce, who is not 

listed in the mine’s approved training plan as someone who is “responsible for health and safety 

training,” signed the miner’s training form in the space clearly reserved for the signature of the 

individual who certifies the training. Id. at 4. Pearce’s signature constituted an improper 

certification of the miner’s task training form and, accordingly, a violation of section 46.9(b)(5). 

Id. at 4-5. 

 Even if the plain language of the standard is ambiguous, deference should be afforded the 

Secretary’s reasonable interpretation that Pearce’s signature constituted a violation of section 

46.9(b)(5). Id. at 7-8. If Conmat’s argument were accepted, i.e., that a violation is premature 

until the expiration of the twelve month window, then the signing of the form would have no 

effect until the twelve month period expired. Id. While mine operators do have twelve months 

to certify task training, certification can occur prior to the expiration of the twelve month period. 

Id. at 5-6. The twelve month period set forth in section 46.9(d)(3) is the maximum time allowed 

before certification of task training is required. Id. at 6. Here, Pearce certified the miner’s 

training form, albeit improperly, the same day the training occurred. MSHA inspectors cannot 

be expected to decipher whether the individual who signed the signature line to certify a record 

intended to certify the record. Id. at 5. Given Congress’ “deep concern over the problem of 

poorly trained miners,” mine operators’ responsibility to conduct training and maintain proper 

records, and MSHA’s reasonable expectation that the records and certificates presented to its 

inspectors will be correct, deference should be afforded the Secretary’s interpretation. Id. at 7-9. 

 

36 FMSHRC Page 1273
III. DISCUSSION 

 Commission Procedural Rule 67 sets forth the grounds for granting summary decision as 

follows: 

A motion for summary decision shall be granted only if the entire 

record, including the pleadings, depositions, answer to 

interrogatories, admissions, and affidavits, shows: 

(1) That there is no genuine issue as to any material fact; and 

(2) That the moving party is entitled to summary decision as a 

matter of law. 

29 C.F.R. § 2700.67. 

The parties agree that there are no genuine issues as to any material fact and that this 

matter should be decided based on the information presently before the court. This case presents 

questions of regulatory interpretation regarding section 46.9 of the Secretary’s regulations, which 

is titled “Records of training.” While Conmat argues that the training form was only a “record” 

of training, and that the citation was issued prematurely, the Secretary asserts that the form was 

“certified,” albeit improperly, and that a violation existed. For reasons that follow, I agree with 

the Secretary and find that Pearce’s signature constituted an improper certification of the miner’s 

task training in violation of section 46.9(b)(5). 

The Commission has explained that, with regard to regulatory interpretation, “‘the 

language of a regulation ... is the starting point for its interpretation.’” Mach Mining, LLC, 34 

FMSHRC 1769, 1773 (Aug. 2012) (quoting Dyer v. United States, 832 F.2d 1062, 1066 (9th Cir. 

1987)). Further, “[w]here 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.” Id. (citing 

Utah Power & Light Co., 11 FMSHRC 1926, 1930 (Oct. 1989) and Consolidation Coal Co., 15 

FMSHRC 1555, 1557 (Aug. 1993)). 

The citation in this case was issued for an alleged violation of section 46.9(b)(5) of the 

Secretary’s regulations, which requires that safety training forms include “[a] statement signed 

by the person designated in the MSHA-approved training plan for the mine as responsible for 

health and safety training, that states ‘I certify that the above training has been completed.’” 30 

C.F.R. § 46.9(b)(5). 

The plain language of section 46.9(b)(5) clearly states that only individuals designated in 

the mine’s approved training plan may certify a miner’s completion of training by signing a 

statement that reads “I certify that the above training has been completed.” This much does not 

seem to be in dispute. However, the parties are at odds over whether the particular training form 

presented to the inspector had been certified. 

I agree with Conmat that the regulations and MSHA guidance materials differentiate the 

creation of a “record” of training from the “certification” of the record of training. Section 

36 FMSHRC Page 1274
46.9(c) requires that a “record” of training be created “[u]pon completion of new task training[.]” 

30 C.F.R. § 46.9(c). The record must include the name of the miner being trained, the type of 

training, the duration of training, the date of training, the name of the trainer, the name of the 

mine or independent contractor, the MSHA mine identification number, the location of the 

training, and a statement regarding false certification of the record. 30 C.F.R. §§ 46.9(b)(1)-(4). 

Proper “certification” of the training occurs when a statement reading, “I certify that the above 

training has been completed” is signed by an individual designated to do so in the mine’s 

MSHA-approved training plan. 30 C.F.R. § 46.9(b)(5). 

The Secretary’s regulations do not specify a particular form that must be used to record 

and certify training and, rather, only require that, in creating the record and certification, certain 

specific information is provided on the document. 30 C.F.R. §§ 46.9(a) and (b). Given the 

flexibility afforded mine operators as to how to record and certify training, it is certainly 

reasonable to expect operators to familiarize themselves with the form they choose to use. 

Respondent chose to use the form depicted in Jt. Ex. 1. 3 There is no evidence in the record that 

MSHA required the use of this form, or that Respondent was unfamiliar or confused by the form. 

The form, in its blank state, provides input space for all of the information required by 30 

C.F.R. §§ 46.9(b)(1)-(3). Further, it includes the required statement regarding false certification 

required by 30 C.F.R. § 46.9(b)(4). Finally, and as particularly relevant to this analysis, the form 

includes a statement which reads “I certify that the above training has been completed,” followed 

by a signature line for the “[s]ignature of the person responsible for health and safety[.]” The 

statement and signature line are clearly intended to satisfy the requirements of 30 C.F.R. § 

46.9(b)(5), which outlines what is necessary to properly certify a miner’s training record. 

It appears that Pearce correctly provided the information required by sections 46.9(b)(1) 

through (b)(3). See Jt. Ex. 1. I agree with Conmat that this information, along with the 

statement regarding false certification, created a “record” of training. However, I disagree with 

Conmat that the record of training was not “certified.” 

Pearce’s signature constituted an improper certification of the miner’s training record. 

While Respondent argues that Pearce’s signature and date below the statement that “I certify that 

the above training has been completed,” on a signature line for the “[s]ignature of the person 

responsible for health and safety[,]” is without effect and does not amount to a “certification” of 

the record, I find to the contrary. I agree with the Secretary that, absent the signature, a violation 

would not have existed. The statement and signature line for the designated individual have little 

meaning when a signature is not present. Contrarily, the statement and signature line, which is 

explicitly reserved for a designated individual, must have meaning when a signature is present. 

Pearce’s signature was a representation, or in this case a misrepresentation, that he “certified that 

 3

 Respondent makes passing reference to the training form being in the private possession of the 

miner at the time the inspector observed it, and not in the possession of an agent of the mine. While 

Respondent asserts that the form was “not purported to be certified by CONMAT” it acknowledges that 

the form “was in fact a record[.]” Conmat Memo 6. While Conmat does not explicitly argue that a 

difference exists between records in the possession of an agent of the mine and those in the private 

possession of its employees, given its acknowledgement that the form was, at a minimum, a “record,” I 

need not address the issue. 

36 FMSHRC Page 1275
the . . . training had been completed” and was “the person [designated in the mine’s approved 

training plan as] responsible for health and safety.” 

I agree with the Secretary that MSHA inspectors cannot be expected to deduce the intent 

of an individual who signs a training form in an area which is clearly intended to be signed by 

the individual certifying the training. Moreover, given the strict liability imposed by the Mine 

Act, neither the inspector nor the court need reach the issue of whether Pearce intended, or 

meant, to certify the form. However, based upon the record evidence before me, and my 

conversations with the parties, I do not believe that the signature was an overt attempt by Pearce 

or the Respondent to avoid compliance.4

 Rather, I am inclined to believe that Respondent had a 

good faith belief that it was complying with the regulations. After all, the parties agree that this 

was simply a paperwork violation, from which no apparent benefit could be derived by the 

operator for violation of the standard. While the violation can seemingly be chalked up to simple 

mistake on the part of Respondent, the fact remains that the purpose of the statement and 

signature line is to certify the training. To find otherwise would fly in the face of the plain 

language of both the cited standard and the form chosen by the operator. Accordingly, I find that 

Pearce’s signature amounted to an improper certification of the training form in violation of 

section 49.6(b)(5). 

The Respondent argues that the citation was prematurely issued given that the Secretary’s 

regulations afford twelve months for the designated person to certify the training. The 

Respondent relies upon section 46.9(d)(3), which states that the operator “must ensure that all 

records of training . . . are certified under paragraph (b)(5) of this section and a copy provided to 

the miner . . . [a]t least once every 12 months for new task training, or upon request by the miner, 

if applicable[.]” 30 C.F.R. § 46.9(d)(3). Respondent avers that, given twelve months had not 

elapsed since the time of training, time remained for one of the three individuals designated in 

the approved training plan to correctly certify the training. I find no merit to this argument. 

The regulation is clear and requires that a record of training be certified “at least once 

every 12 months for new task training.” (emphasis added). I have already found that the task 

training form was certified, albeit by a person not qualified to do so. The standard requirement 

for certification “at least once every 12 months” is a baseline/minimum for certification of task 

training. While operators need only certify the training once every twelve months, they are free 

to, and for that matter probably encouraged to, do so more often. Here, Gordie Pearce 

improperly certified the training form the same day the task training occurred. Pearce’s 

improper certification, which was presented to the inspector by the miner who had been trained 

by Pearce, amounted to a violation at the time the inspector issued the citation. Given this 

finding, I need not speculate on the issue of whether a subsequent signature and certification by 

one of the individuals designated in the approved plan would have avoided a violation had the 

appropriate person signed the form at a time prior to the inspector viewing the form. 

Consistent with my above analysis, I find that the text of the regulation is clear and that 

the terms of the relevant provisions, when applied to the facts of this case, require that the fact of 

 4

 The Secretary has made no allegation that Pearce’s action rose to the level of a “false 

certification” contemplated by 30 C.F.R. § 46.9(b)(4). 

36 FMSHRC Page 1276
violation be upheld.5

 In addition, I affirm the Secretary’s findings regarding gravity, all of which 

are already at the minimum, as well as his negligence finding. While Conmat asserts that it was 

not negligent, Conmat Memo 2, its argument is based entirely on its assertion that there was no 

violation. Given that I have already found a violation, and based upon my review of the 

information before me, I affirm the Secretary’s “low” negligence designation. 

IV. ORDER 

 Conmat’s Motion for Summary Decision is DENIED. The Secretary’s Motion for 

Summary Decision is GRANTED. Citation No. 8741693 is AFFIRMED as issued. Conmat is 

ORDERED TO PAY the Secretary of Labor $100.00 within 30 days of the date of this order. 

 /s/ Margaret A. Miller 

 Margaret A. Miller 

 Administrative Law Judge 

Distribution: 

Dan Venier, CLR, U.S. Department of Labor, MSHA, 515 West 1st Street, Suite 228, Duluth, 

MN 55802 

Shawn Meier, Conmat Inc., 2283 US 20 BR E, Freeport, IL 61032 

 5

 In the unlikely event that some ambiguity could be read into the pertinent language of section 

46.9, I would find that the Secretary’s interpretation is entirely reasonable and logically consistent with 

both the language of the text and intent of the standard. Alcoa Alumina & Chemicals, 23 FMSHRC 911, 

913-914 (Sep. 2001). 

36 FMSHRC Page 1277
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

721 19TH STREET, SUITE 443 

DENVER, CO 80202-2536 

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

May 14, 2014 

 

DECISION

Appearances: Daniel Brechbuhl, Esq., Office of the Solicitor, U.S. Department of Labor, 

Denver, Colorado, for Petitioner; 

 Lee Bissell, Rock N Road Quarry, Culver, Oregon, for Respondent. 

Before: Judge Manning 

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

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

against Rock N Road Quarry, pursuant to sections 105 and 110 of the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the “Act” or “Mine Act”). The parties 

introduced testimony and documentary evidence at a hearing held in Portland, Oregon. 

 One section 104(a) citation was adjudicated at the hearing. The Secretary proposed a 

total penalty of $108.00 for this matter. 

I. Citation No. 8599814

On January 1, 2011, MSHA Inspector Benjamin Burns issued Citation No. 8599814 

under section 104(a) of the Mine Act, alleging a violation of section 56.11001. The citation 

stated: 

A safe means of access was not provided to the Thunderbird screen 

deck. The screen was being accessed by a 24 ft. extension ladder 

for fluid level checks, v-belt maintenance, and screen changes. 

Miners were tying off with a Miller retractable lanyard 9 ft. X 1 in. 

X .06 In. Polyester with a 3 1/2 ft. arresting distance to frame 

work of the over screen conveyor and shimmying along I-beams to 

change screens and access bolts. From ground level to the top of 

the deck was approx. 14 ft. This condition creates a fall hazard 

and could result in a permanently disabling injury. This practice 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

 v. 

ROCK N ROAD QUARRY, 

 Respondent 

: 

: 

: 

: 

: 

: 

: 

: 

:

 CIVIL PENALTY PROCEEDING 

Docket No. WEST-2011-749-M X 

A.C. No. 35-03702-245915 

Rock N Road Quarry 

36 FMSHRC Page 1278
has existed for some time and the operator did not recognize this as 

a hazard. 

(Ex. G-3). Inspector Burns determined that an injury was reasonably likely to occur and that 

such an injury could reasonably be expected to be permanently disabling. Further, he determined 

that the violation was Significant and Substantial (“S&S”), the operator’s negligence was 

moderate, and that one person would be affected. Section 56.11001 of the Secretary’s safety 

standards requires that “[s]afe means of access shall be provided and maintained to all working 

places.” 30 C.F.R. § 56.11001. 

For the reasons set forth below, I modify Citation No. 8599814. 

Discussion and Analysis

I find that Respondent did not maintain safe access to the Thunderbird screen deck of the 

cited crusher because it did not correctly instruct miners upon proper use of safety equipment. 

Section 56.11001 requires that operators both provide and maintain safe access. Lopke Quarries, 

Inc., 23 FMSHRC 705, 707 (July 2001). To comply with section 56.11001, “the standard 

requires an operator to uphold, keep up, continue, or preserve the safe means of access it has 

provided to a working place.” Id at 708. Respondent did not uphold safe access to the cited area 

because although it provided proper equipment, it did not train miners to properly use that 

equipment. Inspector Burns testified that he issued Citation No. 8599814 because to maintain 

the crusher, miners climbed a 24 foot retractable ladder, tied off with a safety line and lanyard, 

and then side-stepped along an I-beam that was 6 or 7 feet above the ground. (Tr. 14-15, 37). 

Respondent did not dispute the inspector’s testimony regarding its procedure. Although there 

was more than one point to tie-off, only one point was used when miners accessed and moved 

across the beam. (Tr. 48). Respondent does not dispute that the inspector correctly stated the 

substance of its procedure. Respondent argues, and the Secretary does not dispute, that the 

ladder, the harness, and the lanyard in use at the cited area all worked properly and were not 

defective. (Tr. 43). If used properly, Respondent’s safety equipment could provide safe access 

to satisfy section 56.11001. Respondent’s procedure for using the equipment, however, allowed 

miners to move horizontally across an I-beam and work a significant distance away from their 

static tie off point. Working several feet away from a static tie-off point could allow a falling 

miner to swing into the structure of the crusher, which is unsafe. Respondent did not provide 

safe access to the cited area. 

To maintain safe access, Respondent can utilize the same ladder, harness, and lanyard at 

issue here, but must train its miners to use that equipment safely.1

 Although Respondent 

 1

 Section 56.11001 does not specify a means of abatement. Any efforts that create safe access to 

the cited area can therefore abate Citation No. 8599814. Respondent asserts that the inspector advised it 

that Citation No. 8599814 could only be abated by buying a bucket truck or lifter or installing a catwalk. 

(Tr. 46). The inspector did not testify regarding this assertion and Respondent did not address the issue 

when it questioned the inspector. Regardless of whether the inspector insisted upon an abatement 

procedure, I find that Respondent’s existing equipment, if used properly, could abate Citation No. 

8599814. 

36 FMSHRC Page 1279
provided adequate equipment to facilitate safe access to the cited area, it did not maintain safe 

access in accordance with section 56.11001 because it did not properly instruct its employees to 

use the equipment that it provided. Respondent must maintain safe access with proper training 

and enforcement of the implementation of that training. 

I find that the Secretary did not fulfill his burden to show that Citation No. 8599814 was 

S&S2

 because the condition cited in Citation No. 8599814 was not reasonably likely to lead to an 

injury and such an injury was not reasonably likely to be serious. I credit Bissell’s testimony 

concerning the measurements and procedures in place at the mine.3

 The Secretary relied heavily 

upon the inspector’s estimated measurements to support his reasonably likely designation. Even 

if I credited the testimony of Inspector Burns, however, these measurements alone do not explain 

how the hazard was reasonably likely to injure a miner. The inspector did not explain how far a 

miner could travel from a tie off point before facing a hazard, or how that distance would affect 

the likelihood of an injury. Id. A miner is unlikely to swing like a “pendulum” the entire 

distance back to the tie-off point; the fall protection would arrest a miner close to the beam and 

stop the miner from falling. (Tr. 17). At worst, a miner would slide along the side of the crusher 

to the tie off point, but the miner would not swing into that point with 6 feet of momentum. The 

fall protection would stop a miner quickly if he lost his footing and the inspector provided no 

explanation of how injury was likely to occur. I also note that miners only accessed this area two 

to three times per year, making an injury less likely. (Tr. 49-50, 54). The Secretary did not 

fulfill his burden to show that the hazard contributed to by the violation was reasonably likely to 

result in an injury. 

The Secretary also did not fulfill his burden to show that the injury contributed to by the 

cited condition was reasonably likely to be serious. A miner tripping, or at worst bumping into 

the crusher and sliding back to the tie-off point would most likely receive scrapes and bruises. 

 2

 An S&S violation is a violation “of such nature as could significantly and substantially 

contribute to the cause and effect of a . . . mine safety or health hazard.” 30 U.S.C. § 814(d) (2006). 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). The 

Commission has held that “[t]he test under the third element is whether there is a reasonable likelihood 

that the hazard contributed to by the violation...will cause injury.” Musser Eng’g, Inc. and PBS Coals, 

Inc., 32 FMSHRC 1257, 1281 (Oct. 2010). 

3

 Inspector Burns did not see miners performing work upon the screen; he based his testimony 

upon “what was gathered” from Lee Bissell, the owner of Rock N Road. Bissell, however, undermined 

many of the statements made by Inspector Burns at the hearing. Bissell testified that the I-beam upon 

which miners walked was 10 inches wide and not 6 inches as the inspector believed. (Tr. 14-15, 38-40). 

Miners did not use the I-beam to access and maintain the v-belt, the upper bolts, or the oil as the inspector 

suggested. (Tr. 39). Miners only followed the cited procedures to use air guns to tighten the lower bolts, 

which were underneath the “Thunderbird” logo. (Tr. 38-39; Ex. G-4 at 3). Bissell testified that the 

distance from the tie-off point that a miner could travel was only 5 to 6 feet, while the inspector believed 

that distance reached 9 feet. (Tr. 65). The scale of the photograph of the crusher that the Secretary 

himself submitted as evidence also supports Bissell’s testimony. (Ex. G-4 at 3). 

36 FMSHRC Page 1280
The fall protection would stop the miner from falling or gaining momentum to swing into the 

crusher, preventing a serious injury, especially a permanently disabling injury. Citation No. 

8599814 is not S&S. 

I find that Respondent’s low negligence caused Citation No. 8599814. Respondent 

supplied all the necessary equipment to provide safe access and believed that its procedure 

complied with section 56.11001. Previous inspectors, furthermore, asked Respondent to explain 

its procedure and did not issue any citations as a result. (Tr. 56). I hereby MODIFY Citation 

No. 8599814 to low negligence and non S&S; I also reduce the gravity. A penalty of $80.00 is 

appropriate for Citation No. 8599814. 

II. APPROPRIATE CIVIL PENALTY 

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

appropriate civil penalty. I have considered the Assessed Violation History Reports, which were 

submitted by the Secretary. (Ex. G-5). Respondent had no history of previous violations in the 

two years preceding the issuance of the subject citation. At all pertinent times, Respondent was a 

small mine operator. The violation was abated in good faith. The penalty assessed in this 

decision will not have an adverse effect upon the ability of Rock N Road Quarry to continue in 

business. The gravity and negligence findings are set forth above. 

III. ORDER 

 For the reasons set forth above, I MODIFY Citation No. 8599814. Rock N Road Quarry 

is ORDERED TO PAY the Secretary of Labor the sum of $80.00 within 30 days of the date of 

this decision.4

 

 

 /s/ Richard W. Manning 

Richard W. Manning 

 Administrative Law Judge 

Distribution: 

 

Daniel Brechbuhl, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, 

Suite 800, Denver, CO 80202-5708 (Certified Mail) 

Lee Bissell, Rock N Road Quarry, 7238 South Adams Drive, Culver, OR 97734-9678 (Certified 

Mail) 

 4

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

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

36 FMSHRC Page 1281
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9971 / FAX: 202-434-9949 

May 15, 2014 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

 Petitioner 

 v. 

CLINTWOOD ELKHORN MINING 

 COMPANY, INC., 

 Respondent 

:

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

:

 CIVIL PENALTY PROCEEDINGS 

 Docket No. KENT 2011-1354 

 A.C. No. 15-16734-259098 

 Docket No. KENT 2011-1385 

 A.C. No. 15-16734-260061-01 

 Docket No. KENT 2011-1386 

 A.C. No. 15-16734-260061-02 

 Mine: Clintwood Elkhorn II 

AMENDED DECISION

Appearances: Willow Fort, Esq., U.S. Department of Labor, Nashville, Tennessee, 

for Petitioner 

Melanie J. Kilpatrick, Esq., Rajkovich, Williams, Kilpatrick & 

True, PLLC, Lexington, Kentucky, for Respondent 

Before: Judge Rae 

These cases are before me upon petitions for assessment of a civil penalty under section 

105(d) of the Federal Mine Safety and Health Act of 1977,30 U.S.C. § 815(d). The Secretary's 

petitions allege that Clintwood Elkhorn Mining Company, Inc. ("Clintwood") is liable for a total 

of five violations; three violations of the Secretary's mandatory safety standards for surface coal 

mines and surface work areas of underground coal mines, two violations of "notification ...of 

accidents, injuries ...in mines." 30 C.F.R. §§50, 77. They propose the imposition of penalties 

totaling $168,600.00. The parties presented testimony and documentary evidence at a hearing in 

Pikeville, Kentucky. Post-hearing briefs were submitted by both parties. 

After consideration of evidence on the record and post-hearing briefs submitted by the 

parties, I find that the Secretary has proven a violation of MSHA standards as alleged in two of 

the citations. I impose civil penalties in the total amount of $29,600.00 for the violations. 

36 FMSHRC Page 1282
The parties submitted the following stipulations: 1) This proceeding is subject to the 

jurisdiction of the Federal Mine Safety and Health Review Commission and its designated 

Administrative Law Judges pursuant to sections 105 and 113 of the Mine Act; 2) Todd Belcher 

and Nathan Mounts, whose signatures appear in Citation Nos. 8247826 and 8247827, were citing 

in the official capacity as MSHA employees and authorized representatives of the Secretary of 

Labor when the citations were issued; 3) True copies of the citations were served on Respondent 

as required by the Mine Act; 4) The total proposed penalties in this case will not affect 

Respondent's ability to remain in business; 5) The alleged violations were abated in good faith. 

Ex. J-1. 

Findings of Fact and Conclusions of Law

The Clintwood Elkhorn II mine is a surface coal preparation plant located in Pike 

County, Kentucky. Tr. 22. The plant contains a series of belts used to transport coal from the 

deep mine and to stockpiles outside of the plant. Tr. 34, 235. The coal inside the plant is washed 

and cleaned to remove rock and clay. Tr. 36, 235. The coal is then transferred to one of six clean 

coal stocker areas depending on its blend. Tr. 34-35, 235, 270. A stocker is a large concrete 

cone that holds coal. Tr. 269-70. Flop gates, located inside the plant, are used to direct the coal 

intothe stockpiles. Tr.II 18.1

On January 18,2011, MSHA Headquarters in Arlington received a call from a member of 

the news media who had heard the ambulance dispatch, asking for information on an accident at 

the Clintwood Elkhorn II Mine. Tr. 125. MSHA Headquarters, not having heard about an 

accident, called the district office, which also did not have a report of an accident at the mine. 

Tr.125. MSHA Inspector Nathan Mounts2 was instructed to visit the mine the same day and arrived 

Around 1:00 p.m. Tr. 125. MSHA Inspector Todd Belcher3 arrived at the mine on January 19, 

2011 to conduct an accident investigation. Tr. 78. 

 1

 The use of "Tr." refers to the hearing transcript for December 10, 2013. The use of "Tr.II" 

refers to the hearing transcript for December 11, 2013 

2

 Nathan Mounts is a health inspector for MSHA. Tr. 13-14. His duties include 

observing and evaluating respirable dust parameters as well as evaluating noise and health 

related issues to dust and noise. Tr. 14. At the time that he issued the two citations below, 

Mounts had been a general inspector for about 3 years. Tr. 15-16. Prior to joining MSHA, he 

was an underground coal miner, foreman, and equipment operator for Massey Energy for 12 

years. Tr. 16. 

3

 Todd Belcher has been a ground control surface specialist for MSHA since 2007. Tr. 73-

74,75. His duties include reviewing and sending ground control plans for acknowledgement, 

inspections as needed, and accident investigations. Tr. 74. Belcher received accident investigation 

trainingin 2009 and assisted in investigations prior to that. Tr. 75. Since the training, he has 

participated in 12 to 15 accident investigations, leading all but one or two. Tr. 77-78. Prior to 

joining MSHA, Belcher worked at Cam Mining for over a year and was an inspector for the 

Kentucky Department of Surface Mining for 14 of his 21 years there. Tr. 94-95. 

36 FMSHRC Page 1283
The details of how the accident happened are largely undisputed. Between 4:30a.m. and 

5:00a.m. on January 18, 2011, Christopher Bowling, a miner, was standing on an elevated metal 

platform, located between the second and third floors of the plant, trying to manually switch the 

flop gate to the old syn-fuel stacker 6 when he fell from it. Tr. 25, 30-33, 86-87, 251, 353; Ex. S4 at 3, S-6 at 2, 5. The platform was accessed by going down steps from the third floor and 

climbing through handrails and was elevated almost 22 feet above the mine floor. Tr. 85, 353. 

Bowling stated that he had no memory of the fall but believed his hands slipped on the lever 

operating the flop gate and he fell backwards. Ex. S-5 at 9. No one witnessed the fall but several 

employees responded shortly thereafter. He had been taken away by ambulance by the time 

MSHA investigators arrived at the scene. 

As a result of Mounts' inspection and Belcher's investigation, the five citations discussed 

below were issued. 

KENT 2011-1354

Citation No. 8247826 

Citation No. 8247826 was issued by Mounts on January 18, 2011 at 1:14 p.m., pursuant 

to section 104(d)(1) of the Act.4 It alleges a violation of30 C.P.R. § 77.2045 which states, 

"[o]penings in surface installations through which men or material may fall shall be protected by 

railings, barriers, covers or other protective devices." The violation was described in the citation 

as follows:6 

On Tuesday, January 18, 2011, a serious fall type accident occurred at the 

Clintwood Elkhorn Mining Company preparation plant. 

A plant employee, who was located at the flop gate for the belt conveyor leading 

to the syn-fuel storage area, fell to the concrete floor located approximately 20 

feet below, receiving multiple injuries as a result. 

As a result of the accident investigation and based on additional information 

obtained from witness interviews and an on-site inspection of the area, this 

 4

 This citation was originally issued as a 104(a) citation but was modified to a 104(d)(1) 

citation by Belcher after further evaluation and gathering of evidence. Ex. S-2 at 2. Mounts was not 

consulted about this change. Tr. 60-61. 

5

 The alleged violated section was amended from 77.205(e) to 77.204 in an Order Granting 

Secretary's Motion to Amend issued on February 12, 2013. Mounts was not consulted about the 

modification to the cited section. Tr. 60-61. 

6

 Grammatical errors in the descriptions from the "Condition or Practice" sections of the 

citations and orders have been corrected, and subsequent modifications to the citations and orders 

have been included. 

36 FMSHRC Page 1284
violation is being modified to reflect changes that describe the condition or 

practice being cited. 

The accident investigation revealed that handrails were not provided on the 

landing between the second and third floors at the flop gate for the belt going 

to the old syn-fuel storage area. This area is approximately 20 feet above the 

concrete floor and metal conveyor belt cover below. As a result, at 0430 hours, 

a serious accident occurred resulting in an employee seeking medical attention 

due to the fall. 

This is an unwarrantable failure to comply with a mandatory standard. Ex. S-2 at 2. 

Mounts determined that an injury occurred as a result of the violation and was reasonably 

expected to result in lost workdays or restricted duty, that the violation was significant 

and substantial ("S&S"), that one person was affected, that the level of negligence was 

high, and that the violation was the result of an unwarrantable failure to comply with a 

mandatory standard. Ex. S-2 at 1, 2. The Secretary proposed a penalty of $70,000.00. 

The Violation 

Secretary's Evidence

When Mounts arrived at the mine, he was met by foremen Robert Hinkle and Jim East 

and taken to the accident scene. Tr. 28. Before arriving at the area where the accident 

occurred, Hinkle and East informed Mounts that handrails had been installed on the platform. 

Tr. 28; Ex. S-4 at 3, S-6 at 4, 5. The handrails were installed around the platform from which 

Bowling fell. Tr. 32; Ex. S-4 at 3, S-6 at 4, 5. Based on this information, Mounts issued 

Respondent a citation for not having handrails prior to the accident. Tr. 28, 32-33. 

The Secretary's initial theory of the case was that this elevated platform required handrails 

around it under section 77.205(e), which states "[c]rossovers, elevated walkways ... shall be 

...provided with handrails ...." Just prior to hearing, the Secretary sought and was granted leave 

to amend the standard to section 77.204, which states that "[o]penings in surface installations 

through which men or material may fall shall be protected by railings, barriers, covers or other 

protective devices." The later theory being that the space between the edge of a platform and an 

adjacent wall could be considered an "opening" under the standard. 

Mounts believed the work platform was hazardous because there was no barrier to protect 

miners from falling off of it. Tr. 33, 40. He stated that Hinkle and East informed him that Bowling 

was on the platform, attempting to manually flop the gate, because the mechanical switch was 

broken. Tr. 33-34, 36. When questioned about the "opening" between the edge of the platform 

and the wall, Mounts confirmed that he interpreted it to mean that openings do not need to have 

handrails if it can be covered by other protective devices that are deemed safe. Tr. 61-62. 

Belcher believed the area between the edge of the platform and the wall was a 

hazard because there were no handrails or cover present and it was big enough for a 

36 FMSHRC Page 1285
person to fall through. He posited that pushing or pulling a lever to switch the flop gate 

could cause a miner to slip and lose his balance, which likely happened to Bowling. Tr. 

105, 106-07. 

Respondent's Evidence

Superintendent Sullivan7

 confirmed during his testimony that prior to this accident, 

handrails were not present on the platform. Tr. 254. He believed that handrails were not 

required if a safety device was worn and considered fall protection a protective device that 

satisfied the requirements of section 77.204. Tr. 254, 295. Sullivan stated that a miner 

wearing fall protection would tie off on round metal eyes attached to the chute in the plant. 

Tr. 254. 

Analysis

Respondent argues that the Secretary is trying to avoid the issue that handrails are not 

required by part 77 by changing the cited standard and claiming that the edge of the platform is 

an opening. Resp. Br. at 7. Mounts clearly believed that the regulations called for handrails 

around the elevated platform and the Secretary amended the citation in an attempt to salvage it. 

What the Secretary refers to as an opening is really the edge of a platform that happens to have a 

wall nearby. There were other platforms in the plant that were similarly situated for which 

citations were never issued. Tr. 258-59. Belcher also focused on the fact that there were no 

handrails present on the platform. Ex. S-5 at 13. While Respondent believed that it was a hazard 

to not have handrails on the platform and it installed them, there is unfortunately no requirement 

in part 77 for elevated work platforms to have handrails.8 In addition, the presence of handrails, 

even though used to abate the citation, would not have prevented small objects from falling 

off the platform because there was large gap between the platform and the first railing Ex. S6 at 5; Resp. Br. at 9 n.10. This further evidences the fact that neither Belcher nor Mounts 

were concerned about or considered the area between the edge of the platform and the nearby 

wall to be an "opening" as set for in section 77.204 at the time that the citation was originally 

issued. It is further noted that the Secretary failed to prove that the miner fell through this 

 7

 Homer Sullivan has been the plant superintendent for the past 6 years. Tr. 234. He has a 

duty to oversee the production of coal and the safety of all employees. Tr. 235. Prior to becoming 

superintendent, Sullivan was a plant foreman for 7 years. Tr. 236. He is also a certified mine 

emergency technician (MET). Tr. 236. 

8

 As being familiar with the mining industry and from previous ALJ decisions, MSHA 

has been put on sufficient notice that it should clarify what an opening is and promulgate 

regulations to require handrails on elevated working platforms. Sunbeam Coal Corp., 2 FMSHRC 

192, 221 (Jan. 1980) (ALJ) ("[I]f MSHA desires to provide barriers and other protective devices 

to prevent personnel from falling off an elevated platform [also used as a work station], it should 

promulgate a precise standard to cover that situation."). As it stands now, travelways and work 

platforms are distinguished from elevated walkways in section 205(b) in that they must only be 

kept clear of extraneous materials and slipping hazards. 30 U.S.C. § 205(b). 

36 FMSHRC Page 1286
alleged opening. Bowling stated that he believed he fell backwards, which would mean he 

fell off the long edge of the platform behind the flop gate. Ex. S-5 at 9. No one witnessed his 

fall. 

Therefore, I find that the area between the edge of a platform and a nearby wall is not an 

opening as a matter of law and that Respondent did not violate the cited standard. Citation No. 

8247826 is hereby VACATED. 

Fair Notice Argument

Assuming, arguendo, that the space between the edge of the platform and the wall could 

be considered an opening, I find that Respondent did not have fair notice. 

"[D]ue 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); Gates & Fox Co. v. OSHRC, 790 F.2d 154, 156 (D.C. Cir. 

1986). "The Commission's test for notice under the Mine Act is '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."' Wolf Run Mining Co., 32 

FMSHRC 1669, 1682 (Dec. 2010). A number of factors are relevant to this determination, 

including "the text of a regulation, its placement in the overall regulatory scheme, its regulatory 

history, the consistency of the agency's enforcement, and whether MSHA has published notices 

informing the regulated community with ascertainable certainty of its interpretation of the 

standard in question." Id.

Sullivan testified that the platform was installed in 2006 and MSHA was made aware of 

this because it gave a courtesy inspection. Tr. 255. MSHA did not tell Respondent that handrails 

or any other protective devices were needed. Tr. 255. Since 2006, two inspections per year have 

been done by MSHA, none of which resulted in the issuance of a citation, despite the fact that 

the platform is easily visible from the steps that lead to a new addition. Tr. 256-57, 258. In 

addition, there were several other platforms without handrails in the plant and citations were 

never issued for those areas either. Tr. 258-59. Sullivan stated that when he asked Silas Adkins, 

now the manager of the Elkhorn Office, why the plant had never been cited for the condition 

before, Adkins replied that it was not an issue until the accident happened. Tr. 260. I find this 

testimony by Sullivan to be credible. 

Belcher confirmed that the plant is inspected in its entirety every 6 months. Tr. 172. He 

did not ask past inspectors whether they ever inspected the platform and just assumed that no one 

from MSHA ever saw the platform. Tr. 172-73. I find this statement to be improbable at best, 

particularly in light of Sullivan's testimony that the lack of handrails was not an issue until 

someone was injured. 

What constitutes an opening and the devices that can be used to protect an opening are 

open to broad interpretation. MSHA has not published any notices informing the regulated 

community of its interpretation of the standard, it performed a courtesy inspection of the 

platform when it was installed, and it has performed about 12 full inspections of the plant over 

the course of 6 years and has never issued a citation under section 77.204. Just because an 

36 FMSHRC Page 1287
accident occurs does not mean that a condition never considered by MSHA to be a violation in 

the past, automatically becomes one for MSHA's convenience of imposing a penalty. Under 

these circumstances, I find that a reasonably prudent person familiar with the mining industry 

and protective purposes of the standard would not have recognized the requirements of section 

77.204 as being applicable to the area between the edge of a platform and a nearby 

wall. Therefore, I find that Respondent lacked fair notice. 

Citation No. 8247827 

Citation No. 8247827 was issued by Mounts on January 18, 2011 at 2:16p.m., pursuant to 

section 104(a) of the Act. It alleges a violation of 30 C.F.R. § 77.171O(g) which states, "each 

employee ... shall be required to wear protective clothing and devices as indicated below ... 

[s]afety belts and lines where there is a danger of falling ...." The violation was described in the 

citation as follows: 

An accident occurred on 1118/2011 due to an employee (Christopher Bowling) 

not wearing fall protection while working from an elevated platform. The 

employee fell approximately 20 feet onto the concrete floor and metal conveyor 

belt cover below. No handrails were in place to prevent a person from falling and 

Citation No. 8247826 was issued for this condition. The employee had to seek 

medical attention from injuries sustained from the fall. 

Standard 77.1710(g) was cited two times in the two years at mine 1516734 (0 to 

the operator, 2 to a contractor). 

Ex. S-3 at 1. 

Mounts determined that an injury occurred as a result of the violation and was 

reasonably expected to result in lost workdays or restricted duty, that the violation was 

S&S, that one person was affected, and that the level of negligence was high. Ex. S-3 

at 1. The Secretary proposed a penalty of $31,000.00. 

The Violation 

Secretary's Evidence

Mounts stated that he issued this citation because East and Hinkle made 

statements that Bowling was not wearing fall protection when he was switching the flop 

gate on the platform and fell through an opening. Tr. 52. Mounts was of the opinion 

that even with handrails installed, fall protection needed to be worn. Tr. 53-54. In 

addition, Belcher testified that there were no warning signs to use fall protection posted 

in the area where Bowling fell. Tr. 224. 

36 FMSHRC Page 1288
In Southwestern Illinois, the Commission approved the ALJ's interpretation of the 

language, "shall be required to wear" in section 77.171O(g) to mean that the operator must 

require each employee to wear safety belts when needed. Southwestern Illinois Coal Corp., 5 

FMSHRC 1672, 1674-75 (Oct. 1983). Specifically, the Commission stated, 

"[t]he regulation does not state that the operator must guarantee that belts and 

safety lines are actually worn, but rather says only that each employee shall be 

required to wear them. The plain meaning of "require" is to ask for, call for, or 

demand that something be done. . . . Accordingly, when an operator requires its 

employees to wear belts when needed, and enforces that requirement, it has 

discharged its obligation under the regulation." 

Southwestern Illinois Coal Corp., 5 FMSHRC at 1675; see also Southwestern Illinois Coal 

Corp., 7 FMSHRC 610 (1985) (hereinafter SOCO /[).

The Secretary maintains that based on Southwestern Illinois, Respondent violated the 

standard, stating that the Commission found a violation even though its safety rules required 

miners to wear belts and miners were disciplined for not wearing belts, the operator failed to 

show that the guidelines were "sufficiently specific." Sec'y Br. at 26. 

In Southwestern Illinois, the general director of safety and training testified that 

the decision to wear fall protection was largely up to the miner. This viewpoint was 

reiterated at oral argument where counsel stated that the use of a safety belt was 

optional. Southwestern Illinois Coal Corp., 5 FMSHRC at 1676. There were no signs in 

the mine reminding employees to wear belts and no safety analysis or directives were 

issued to identify situations where belts should be worn. /d. The Commission found 

that the evidence fell short of "demonstrating due diligence in enforcement" and 

contrasted the case with that of North American where the operator had a specific 

program for avoiding hazards through prominent signs, verbal warnings and 

reinforcement of safety considerations. Id; North American Coal Corp., 3 IBMA 93 

(1974). 

Respondent's Evidence

Sullivan stated that the mine has annual refresher training once a year, which in 2011, was 

January 15, 3 days before the accident. Tr. 283; Ex. R-15. Bowling signed in for the training and 

Sullivan contended that, even though he did not attend the annual training, fall protection would 

have been covered under the accident prevention heading on the agenda. Tr. 284-85, 322, 355; 

Ex. R-15. Sullivan did however confirm that when he arrived at the scene after Bowling fell, it 

did not appear that Bowling was wearing fall protection. Tr. 313. Sullivan and Brian Hurley9

 9

 Brian Hurley has been employed at the Clintwood Elkhorn II Mine for about 13.5 years. 

Tr. 333. He held the position as third shift foreman in January 2011. Tr. 333. Hurley had been a 

foreman for about 7 years at that time and a certified MET since 2001. Tr. 333, 334. Prior to 

joining Clintwood, he worked for two other coal mine companies as an equipment operator and 

mechanic. Tr. 336 

36 FMSHRC Page 1289
also testified that safety meetings were held once a week with miners on all shifts, Bowling being 

one of them. Tr. 283, 358. Hurley stated that he covered fall protection at least once a month. Tr. 

283, 357. Respondent presented a safety meeting agenda from September 2010 that included a 

fatality at another mine from failure to use fall protection. Tr. 287-88; Ex. R-2. 

In addition, all employees received handbooks that address fall protection. Tr. 293. 

The handbook specifically states that if there is a 'potential' to fall from an unprotected work 

station, safety belts are required. Ex. R-14 at 8. Miners were also aware that they had to wear 

protection in any area without handrails and toe boards, and if using a ladder over 6 feet in 

height, according to Sullivan. Tr. 284. 

Further, Bowling was issued his own personal safety belt less than 6 months prior to 

the accident because of his size and there was fall protection gear readily available. Tr. 358. 

There were signs to wear fall protection located at various places in the plant. Tr. 284, 358. 

Pete Maynard, electrician, testified that safety belts were provided on every floor, including 

the third floor which you had to ascend to in order to access the platform. Tr.II 5, 13. There 

was also a sign at the entrance to the third floor to wear fall protection which was about 15 to 

20 feet from where Bowling was working. Tr. 291, Tr.II 31. 

Finally, the mine had a disciplinary program in place that consisted first of a verbal 

warning and then referral of the issue to human resources. Tr. 292, 294. Sullivan had never 

seen employees working without fall protection on elevated platforms and Maynard had seen 

Bowling wearing fall protection in the past. Tr. 294, Tr.II 14-15. The Secretary presented no 

evidence that Respondent was previously issued citations for failing to wear fall protection 

and Mounts testified that there was no evidence that anyone was aware, management or otherwise, 

that Bowling was working on the platform without it. Tr. 63. 

Analysis

In this case, evidence was presented of annual refresher training that occurred only three 

days prior to the accident, which addressed fall protection. There were weekly meetings with 

miners that addressed safety issues and it appears that Bowling attended these. Fall protection was 

covered in at least one of these meetings per month. Handbooks were distributed to all miners 

with clear language of the fall protection requirement. In addition, I credit the testimony of 

Maynard, Sullivan, and Hurley that there was wide availability of fall protection gear, warning 

signs close to the platform area that had to be passed by miners to reach the platform, a 

disciplinary program for violations of mandatory standards, and no previous citations issued under 

this standard. There was also no mention by any witness that the requirement was lax or left up to 

the employee's discretion to wear it, making the facts of this case distinguishable from those of 

Southwestern Illinois.

I find that Respondent has demonstrated due diligence in requiring fall protection to be 

worn and hereby VACATE Citation No. 8247827. 

 

36 FMSHRC Page 1290
Order No. 8258182 

Order No. 8258182 was issued by Belcher on January 21,2011 at 9:00a.m., pursuant 

to section 104(d)(1) of the Act. It alleges a violation of 30 C.F.R. § 77.1713 which requires 

that an examination in each active working area be conducted for hazardous conditions and 

that any hazardous conditions be noted, reported and corrected. The violation was described 

in the order as follows: 

On Tuesday, January 18, 2011, a serious fall type accident occurred at the 

Clintwood Elkhorn Mining Company preparation plant. 

A plant employee, who was located at the flop gate for the belt conveyor leading 

to the syn-fuel storage area, fell to the concrete floor located approximately 20 

feet below, receiving multiple injuries as a result. 

The accident investigation revealed that the preparation plant foreman assigned to 

perform the daily examination of the facility on this date had failed to conduct an 

adequate on-shift examination during the night shift of 1/17/2011 to 1/18/2011. A 

safety hazard existed on a landing between the second and third floors at the flop 

gate for the belt going to the old syn-fuel storage area and was not recorded in the 

daily on-shift book. A handrail was not provided for the landing at this work 

area, resulting in a mine employee falling, striking the belt chute cover, and then 

landing onto the first floor of the plan. The employee was transported to the 

hospital by ambulance for medical treatment for the injuries he sustained. 

The foreman has engaged in aggravated conduct constituting more than ordinary 

negligence by not making adequate examinations of active work areas. 

This violation is an unwarrantable failure to comply with a mandatory standard. Ex. S-7 at 

1, 2. 

Belcher determined that an injury occurred as a result of the violation and was reasonably 

expected to result in lost workdays or restricted duty, that the violation was S&S, that one person 

was affected, that the level of negligence was high, and that the violation was an unwarrantable 

failure to comply with a mandatory standard. Ex. S-7 at 1. The Secretary proposed a penalty of 

$38,000.00. 

The Violation 

Secretary's Evidence

During Belcher's investigation, he reviewed the on-shift examination books for the night 

shift of January 17-18, 2011, and found that the "hole" in the floor had not been marked as a 

hazard and had not been adequately protected to prevent a fall. Tr. 110, 111-12; Ex. S-11. This 

indicated to Belcher that an examination of the platform had not been performed prior to miners 

36 FMSHRC Page 1291
accessing it to conduct work, and if it had been examined, the exam was inadequate. Tr. 114, 

115. In addition, Belcher spoke to the foreman on the January 17, 2011 night shift and stated that 

the foreman did not say that he failed to inspect the platform area. Tr. 166. As a result, he issued 

the above order for an inadequate on-shift examination. 

Belcher explained that the cited standard requires that all workplaces be inspected at least 

once a shift in order to identify and correct hazards. Tr. 113. If work was not going to be 

conducted in a particular area during the shift, an exam would not need to be performed. Tr. 

113. While Belcher acknowledged that a miner could guard themselves with fall protection, he 

contended that it would not change the fact that there was an "opening" in the floor. Tr. 115, 

116. 

Respondent's Evidence

As discussed above, Sullivan stated that the platform was installed in 2006, MSHA was 

aware of the installation, conducted a courtesy inspection, and has never issued a citation for an 

inadequate exam for failure to list the area between the edge of the platform and the wall as a 

hazard, or notified Respondent that handrails were needed. Tr. 255, 256-57, 260-61. He 

maintained that the lack of handrails did not need to be listed as long as fall protection was worn 

in the area. Tr. 261. 

Hurley was the foreman on duty when Bowling fell. He testified that he examined the 

platform from which Bowling fell on January 17 during a pre-shift examination as required by 

state law. Tr. 380. In the 7 years that Hurley had been performing on-shift examinations, he had 

never recorded missing handrails as a hazard. Tr. 359. He further contended that the only reason 

to flop the gate that Bowling was attempting to flop on January 18 was if the belts were torn or 

stopped working, but neither of those things happened that day. Tr. 373-74. 

On January 18, 2011, Hinkle, a foreman, reported the lack of handrails on the platform as 

a hazard because Bowling fell from it. Tr.II 37. He stated that he never recorded it in prior exam 

records because he thought fall protection was sufficient. Tr.II 38; Ex. S-11. 

Analysis

Because neither section 204 nor 205 under Part 77 requires handrails on elevated 

platforms, and I found that the area between the edge of a platform and a nearby wall did 

not constitute an opening, I find that Respondent did not violate section 77.1713, Order No. 

8258182 is hereby VACATED. 

KENT 2011-1385

Order No. 8258183 

Order No. 8258183 was issued by Belcher on January 21, 2011 at 9:00a.m., pursuant to 

section 104(d)(1) of the Act. It alleges a violation of30 C.F.R. § 50.10(b) which states, "[t]he 

operator shall immediately contact MSHA at once without delay and within 15 minutes ...once the 

36 FMSHRC Page 1292
operator knows or should know that an accident has occurred involving ... [a]n injury of an individual 

at the mine which has a reasonable potential to cause death." The violation was described in the order 

as follows: 

On Tuesday, January 18, 2011, a serious fall type accident occurred at 

the Clintwood Elkhorn Mining Company preparation plant.The accident 

investigation revealed that a plant employee, who was located at the flop gate 

for the belt conveyor leading to the syn-fuel storage area, fell to the concrete 

floor located approximately 20 feet below, receiving multiple injuries as a 

result. 

The mine operator has failed to immediately report an accident that occurred 

on 1118/2011 to MSHA without delay and within 15 minutes. A mine 

employee fell approximately 20 feet from the landing between the second and 

third floors at the flop gate for the belt going to the old syn-fuel storage area, 

striking the belt chute cover, and then landing onto the first floor of the plant, 

sustaining serious injuries. The employee received multiple injuries to the 

head, leg, and wrist. Based on information gathered during the accident 

investigation, the mine employee was found temporarily unconscious and 

unresponsive after the fall. 

The employee was transported from the mine site to an area hospital for medical 

treatment. Injuries sustained from this type of fall have reasonable potential to 

cause death. 

The mine foreman has engaged in aggravated conduct constituting more than 

ordinary negligence by not immediately reporting this accident to MSHA without 

delay within 15 minutes. 

This violation is an unwarrantable failure to comply with a mandatory standard. Ex. S-8 at 

1, 2. 

Belcher determined that an injury occurred as a result of the violation which was 

reasonably expected to result in lost workdays or restricted duty, that the violation was S&S, that 

one person was affected, that the level of negligence was high, and that the violation was an 

unwarrantable failure to comply with a mandatory standard. Ex. S-8 at 1. The Secretary 

proposed a penalty of $21,900.00. 

The Violation 

Secretary's Evidence

Belcher arrived at the mine to lead the accident investigation on January 19, 2011. Tr. 78. 

Prior to arriving, he was only aware that someone had fallen from a platform area and sustained 

injuries on January 18. Tr. 126. No report of an accident had been made by Respondent. Tr. 125. 

36 FMSHRC Page 1293
During the investigation Belcher took measurements from the platform to the areas 

below, where Bowling landed. He determined that Bowling fell 17 feet 1 inch from the 

platform to the belt chute cover, and another 4 feet 9 inches from the top of the conveyor belt 

chute cover to the concrete floor, a total of 21 feet 10 inches. Tr. 85; Ex. S-5 at 2. Belcher 

determined that the accident was reportable because of the distance fallen and types of injuries 

Bowling received. Tr. 126. 

In regards to the distance, Belcher testified that there have been numerous falls from 

lesser distances, some as little as 8 feet, that resulted in fatalities. Tr. 97. He stated that Bowling 

could have fallen straight to the floor, but because the area was between a wall and the edge of 

the platform, Belcher opined that Bowling slid down the wall which helped to break his fall. Tr. 

97.10

Belcher received information on Bowling's injuries through interviews with miners 

who responded to Bowling after he fell and from reviewing the ambulance records. 

According to Belcher's notes, Bowling received stitches to his head and right ear as a result 

of lacerations, a splint on his wrist for a fracture, and a cut on his chin. Tr. 131-32; S-5 at 10. 

Upon contacting the witnesses on January 19, Belcher was told by Shawn Newsome, tipple 

operator and MET, that Bowling was knocked unconscious for approximately 3 minutes. Ex. 

S-5 at 5. He thought Bowling was dying. Id Bowling's neck was swollen and he helped to 

bandage the wounds and administer oxygen. Tr. 127, 135; Ex. S-5 at 5. A second witness, 

Quentin Harr, equipment operator and MET, said that he gave treatment for shock. Tr. 136; 

Ex. S-5 at 5. A third witness, Will McCoy, clean coal dozer operator, stated that he arrived a 

minute after the accident and found Bowling was not responding, talking, or moving. He 

believed Bowling was hurt badly. Tr. 136; Ex. S-5 at 5. 

Hurley, told Belcher that he was the first or second person to reach Bowling after the fall 

and he called 911 and applied bandages. Bowling knew his name, was responding, and his blood 

pressure and pulse were okay. Tr. 137; Ex. S-5 at 7-8. Belcher also spoke with Bowling who said 

he could not remember what happened but did not recall being unconscious. He stated that he 

was disoriented. Tr. 196. 

Belcher testified that he read the ambulance report in an attempt to verify the witness' 

statements. Tr. 220. He noted that the report stated, "LOC, [d]oesn't remember falling" and 

based on his MET experience, assumed that LOC meant loss of consciousness. Tr. 138, 140; Ex. 

S-9 at 2. However, on cross-examination, Belcher did concede, based on the definition of LOC in 

10 Neither Belcher nor Mounts made a definitive determination that Bowling fell off the 

right hand edge of the platform where the Secretary, through his amendment, claimed the opening 

was. No one witnessed the fall, there was no evidence that Bowling was found lying next to the 

wall below the "opening" and he had no recollection of it himself. This assumption was made by 

Belcher at the hearing after the Secretary amended his order. I do not find any facts to substantiate 

this claim. 

36 FMSHRC Page 1294
a medical dictionary, that the acronym could mean loss of consciousness or level of 

consciousness. Tr. 185. 

Based on all of this information, Belcher believed that the operator should have 

known that the accident had a reasonable potential to cause death. Tr. 141. As he testified, 

the extent of head injuries is not immediately known until further tests are conducted at the 

hospital. In his opinion, it is not easy to determine whether someone has injuries that would 

not lead to death within the IS-minute time-frame. Tr. 127. Belcher's understanding was that 

as soon as a person who is responsible for reporting the accident becomes aware of one, and 

there is a likelihood that a reasonable potential for death exists, the person must call to notify 

MSHA within 15 minutes. Tr. 200-01. He agreed that when an accident does not have a 

reasonable potential to be life threatening, there is a 10-day reporting requirement. Tr. 178-

79. 

Belcher explained that the purpose of the 15-minute reporting requirement is to prevent 

injuries to other miners from the same or similar conditions that may be present in the mine. Tr. 

128. Another reason is to ensure that evidence is preserved, the accident is investigated properly, 

and the area is analyzed to determine what hazards need to be corrected to prevent that type of 

accident from reoccurring. Tr. 129. 

Respondent's Evidence

Sullivan, who usually arrived at work around 5:00a.m., testified that his brother, a 

mine employee, called him on his way to work and notified him of the fall. Tr. 239. Both he 

and Hurley, the foreman, had the authority to report the accident to MSHA. Tr. 241, 347. 

Because Sullivan was not present at the mine at the time of the accident, Hurley would have 

been responsible for making the call. Tr. 239, 241. 

According to Sullivan, Bowling was moved onto a backboard so that he did not have 

to sit up, he checked Bowling for rib and pelvic fractures, and put Bowling on oxygen for 

shallow breathing and to prevent shock. Tr. 243. Sullivan maintained that Bowling never 

went into shock and he never saw or heard from another miner that Bowling lost 

consciousness.11 Tr. 243, 244, 247-48. He also stated that he performed a pupil check which 

was normal, and there was not a lot of bleeding. Tr. 244-45. 

Sullivan followed the ambulance from the mine to the hospital and contended that he did 

not learn anything at the hospital that was different than his first assessment. Tr. 246. He 

overheard the physician tell Bowling's family that Bowling would be okay. Tr. 246-47. 

After speaking with the safety director, a decision was made not to report the accident 

to MSHA because Bowling knew his name, phone number, and was "pretty conscious." Tr. 

 11 Sullivan did concede that he heard other employees talking about Bowling losing 

consciousness the night of January 18 but trusted Hurley and Maynard's account because he 

believed they got to Bowling first. Tr. 247-48. 

36 FMSHRC Page 1295
244. Sullivan contended that if an injury requires stitches or broken bones are involved, the 

10-day reporting period applied. Tr. 241. However, Sullivan testified that he was an MET 

and admitted that a person can suffer a brain injury that may not be apparent within 15 

minutes. Tr. 301. He did not remove bandages around Bowling's head to evaluate the 

laceration and determined that the injury was not life-threatening before Bowling received 

brain scans at the hospital. Tr. 304. 

Hurley testified that he was the first person to reach Bowling after the fall. Tr. 338. As 

an MET, he first assessed Bowling's level of consciousness as alert by talking to him and then 

drove to the foreman's office to get the MET bag. Tr. 340, 341, 360-61. After retrieving the 

bag, Hurley checked Bowling's pupils, blood pressure and respirations, which he found to be 

normal.12 Tr. 340, 341. He did not notice swelling. Tr. 362. Hurley detailed Bowling's 

injuries in his patient care report as several cuts on the right hand and head, and a 1.5 inch 

cut on the right leg. Tr. 341; Ex. R-3. He maintained that if there was a brain injury, there 

would be a lot of blood loss, dilated pupils, and confusion. Tr. 343. Oxygen was administered 

as a precaution and there was no indication that Bowling was in or going into shock. Tr. 344. 

As a result of his evaluation, Hurley did not believe Bowling's injuries were life-threatening 

and did not report the accident. Tr. 346. He stated that the paramedic told him he thought 

Bowling would be okay and that he heard the physician at the hospital say that the test results 

looked good. Tr. 348, 349. 

During cross-examination, the Secretary confronted Hurley with the ambulance report. He 

specifically pointed out the findings that Bowling received nausea medication, and that under the 

injuries section for "head," the columns for "blunt," "laceration," "pain," and "swelling" were 

checked off. Tr. 363, 365; Ex. S-9 at 2. Hurley questioned how the EMT could have noticed 

swelling if Bowling was already bandaged and disagreed that there was swelling. Tr. 364. 

Hurley was also unaware that Bowling had nausea but agreed that nausea could be a sign of a 

brain injury which could have a reasonable potential to cause death. Tr. 365, 366-67. He also 

admitted that head injuries could take time to increase in severity. Tr. 367. 

Maynard, an electrician without MET certification, testified that after Bowling fell, he 

reached Bowling at about the same time as Hurley did. Tr.II 8, 15. Belcher's notes indicate 

that Maynard arrived first. Ex. S-5 at 9. Maynard stayed with Bowling when Hurley went to 

retrieve the MET bag and maintained that while Bowling had injuries to his head and ear, 

Bowling never lost consciousness and that there was not a lot of blood. Tr.II 9. As a result, 

he did not think that there was a reasonable potential for death. Tr.II 9. However, when I 

asked Maynard what Bowling's complaints were, he stated, "[a]nd we was just trying to, you, 

know, get him calm to see what actually was wrong.... He was a little disoriented ... [for] 

[m]aybe ten minutes, maybe. I don't know. I'm not sure." Tr.II 18-19. 

 12 Hurley testified that he never saw Bowling lose consciousness and did not hear anyone 

say otherwise until days or weeks after Belcher conducted his investigation. Tr. 344-45. He 

believes that the other miners Belcher spoke to essentially exaggerated because they were young, 

not trained, and scared of what had happened. Tr. 345 

36 FMSHRC Page 1296
Analysis

Respondent cited several cases where judges have vacated section 50.10 citations 

because the Secretary failed to prove that injuries to the miner did not have a reasonable 

potential to cause death and cited a Commission case where a violation of section 50.10 was 

found where a miner had stopped breathing and required CPR. Resp. Br. at 28-32; Cougar 

Coal Co., 25 FMSHRC 513 (Sept. 2003). In addition, Respondent highlighted that the 

analysis should focus on whether mine management representatives acted reasonably in 

concluding that there was no reasonable potential for death. Resp. Br. at 30; Oneida Coal Co., 

11 FMSHRC 810, 832-33 (May 1989) (ALJ). Respondent also posed questions during the 

hearing in an attempt to argue that an MET is more qualified to make a determination as to 

whether an injury has a reasonable potential to result in death than someone without this 

certification. Tr. 181-84. 

 In this situation, Respondent's arguments fail for several reasons. First, in Cougar 

Coal, the Commission rejected the judge's construction that "a medical or clinical opinion of 

the potential of death would be needed before an accident is even determined to be reportable," 

stating that to do so would frustrate the immediate reporting of near fatal accidents." Cougar 

Coal Co., 25 FMSHRC at 521. The Commission goes on to say 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." Id The focus is on the nature of the accident and the type of 

injuries, i.e. head trauma, not the measurement of the probability of resulting death. Here, a 

fall of over 20 feet with resulting head injuries per se had the potential to cause death. 

Second, in 2006, MSHA issued a final rule in the Federal Register amending the definition 

of two types of reportable accidents. 71 Fed. Reg. 71430-1 (Dec. 2006). The announcement stated 

that "[b]ased on MSHA experience and common medical knowledge, some types of 'injuries 

which have a reasonable potential to cause death' include concussions ... major upper body blunt 

force trauma, and cases of intermittent or extended unconsciousness." 71 Fed. Reg. at 71433-34. 

Third, in a recent decision, the Commission clarified a prior decision, stating that 

"Consol, stands for the proposition that although an operator should be afforded a reasonable 

opportunity to investigate, once it is determined that a reportable accident has occurred, an 

operator must act immediately to report the incident." Wolf Run Mining Co., 35 FMSHRC 

3512, 3518 (Dec. 2013). 

36 FMSHRC Page 1297
The cases cited where ALJ’s vacated the s , ection 50.10 citations did not involve miners 

with head injuries,13 and the Oneida case, which involved a miner with possible internal 

injuries from being pinned against a rib by a continuous miner, was decided in 1989, prior to 

the Cougar Coal decision and Federal Register announcement. While the injuries that the 

miner in Cougar Coal sustained were clearly more serious than Bowling's, the Commission in 

no way restricted 50.10(b) violations to situations where a miner requires CPR. 

Here, Bowling fell over 20 feet onto a metal-framed piece of machinery and then to a 

concrete floor. He had lacerations on his head, was disoriented for a period of time, and three 

witnesses who Belcher spoke with, two being METs -one who responded first to Bowling 

contrary to Hurley's testimony, stated that Bowling was unconscious, not responding, had 

swelling in his neck, and was treated for shock. I find Maynard's statements that Bowling 

was a little disoriented for "[m]aybe ten minutes, maybe. I don't know. I'm not sure" to be 

evasive and non-responsive compared to his statements at the scene as recorded in Belcher's 

notes. 

Belcher's notes make it clear the majority opinion was that Bowling was unconscious and 

hurt very badly. I credit the statements recorded in Belcher's notes as a more accurate description 

of Bowling's medical symptoms following the fall. Hurley tried to explain the discrepancy, 

stating that the miners were young and frightened. Tr. 345. This makes no sense in light of the 

fact that some of them were trained METs. It also begs the question of how accurate an MET's 

decision is on the probability of death on the scene of a traumatic head-injury type of accident. 

While Sullivan and Hurley's testimony indicated that Bowling was fine, I find them to be less 

credible on this issue because they had a motive for not reporting the accident. 

Belcher testified that under normal circumstances, when an accident is reported under 

section 50.10, the entire plant is closed down until it is inspected and considered safe. Tr. 128- 

29. Sullivan testified that in October 2010, about 3 months prior to the accident, a truck accident 

occurred and was immediately reported to MSHA. Tr. 299. The entire plant was shut down until 

an expedited hearing was held and it was ruled by the judge that the event did not constitute an 

immediately reportable accident under section 50.10. Tr. 326-27. Sullivan was clearly agitated 

when discussing this at hearing. He also stated that at that time of the year, the only reason to send 

coal to stacker 6 was because production was high and all of the other ones were full. In fact, 

directly after the accident, that the plant was up and running again after someone else climbed 

onto the platform and manually flopped the gate. Tr. 271, 302. Clearly Respondent's foreman had 

a very strong motive not to report this accident immediately and have production shut down for an 

 13 The cited cases included a past Order I issued, Granting a Motion for Summary Decision 

and Order of Dismissal. PCS Phosphate-White Springs, Unpublished Order dated Jan. 10, 2011. 

The facts of PCS are distinguishable from those in this case because there, the miner fell 10 feet and 

was examined by an employee of the mine who was a Licensed Practical Nurse (LPN) with training 

in emergency and intensive care treatment. The employee had also been a U.S. Army medic for 2 

years. Id at 2. An LPN is more qualified than an MET to make a determination as to whether an 

injury has the potential to be life threatening and the miner fell about half the distance of Bowling. 

In addition, the Order was issued prior to the Cougar Coal decision. 

36 FMSHRC Page 1298
indeterminate amount of time as they knew would happen once MSHA investigators arrived on 

the scene and a 103(k) order was issued. Ex. S-1 at 6. 

A medical opinion of potential death was not needed before the accident was reported, 

both Sullivan and Hurley conceded that brain injuries are not necessarily immediately apparent, 

the symptoms reported by witnesses were serious, and Belcher stated that numerous falls from 

lesser distances have resulted in fatalities. In addition, the actions taken by mine management to 

determine whether or not to report the accident once they were aware of it, i.e. checking vital 

signs, retrieving the medical bag, calling 911, and then discussing the situation with the safety 

director, took an unreasonable amount of time. Based on these facts and mine management's 

motive for not reporting the accident, I find that Respondent knew that the accident had a 

reasonable potential to cause death and therefore, that Respondent violated section 50.1O(b). 

S&S

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). A 

violation is properly designated S&S, "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'/ Gypsum Co., 3 FMSHRC 822, 825 

(Apr. 1981). As is well recognized, in order to establish the S&S nature of a violation, the 

Secretary must prove: (1) the underlying violation; (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 3-4 (Jan. 1984); accord Buck Creek 

Coal Co., Inc. 52 F. 3rd 133, 135 (7th Cir. 1995); Austin Power Co., Inc. v. Sec'y of Labor, 861 F. 

2d 99,103 (5th Cir. 1988) (approving Mathies criteria). 

It is the third element of the S&S criteria that is the source of most controversies 

regarding S&S findings. The element is established only if the Secretary proves "a reasonable 

likelihood the hazard contributed to will result in an event in which there is an injury." U.S. 

Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985). An S&S determination must be 

based on the particular facts surrounding the violation and must be made in the context of 

continued normal mining operations. Texasgulf, Inc., 10 FMSHRC 1125 (Aug. 1985); U.S. 

Steel, 7 FMSHRC at 1130. The Commission has emphasized that 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., 6 FMSHRC 1824, 1836 (Aug. 1984). 

I have found that the violation has been established. The Secretary charges that failure to 

report the accident contributed to the discrete safety hazard, exposing other miners at the plant to 

an increased likelihood of future, similar accidents. Sec'y Br. at 35. The validity of the S&S 

finding turns on whether the failure to report the accident contributed to a discrete safety hazard, 

and whether the hazard was reasonably likely to cause an injury or injuries of a reasonably serious 

nature. 

36 FMSHRC Page 1299
The purpose of the 15-minute reporting requirement is to prevent injuries to other miners 

from the same or similar conditions that may be present in the mine and to preserve evidence so 

that the accident can be properly investigated and corrective measures determined. By failing to 

immediately report the accident, mine management exposed other miners to the possibility of 

having similar accidents. 

Belcher's concern for the likelihood of a similar accident occurring and causing serious 

injuries was well-founded. Because Respondent did not report this accident immediately, there 

was no immediate issuance of a 103(k) order that restricted access to the platform. As a result, 

another person climbed up to flop the gate and production continued throughout Bowling's shift. 

It was not until the following shift that the handrails were installed. The mine also had a number 

of similar situated platforms, thus, under continued normal mining operations, other miners were 

put at risk of comparable injuries by not reporting the accident. 

Therefore, I find that the violation was S&S. The gravity of the violation was 

also serious. A miner fell from over 20 feet and suffered head and wrist injuries that had 

the reasonable potential to result in death and the accident went unreported. This also 

put other miners in the plant at risk of similar injuries. 

Unwarrantable Failure

In Lopke Quarries, Inc., 23 FMSHRC 705 (July 2001), the Commission stated the law 

applicable to determining whether a violation is the result of an unwarrantable failure: 

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

U.S.C. § 814(d), and refers to more serious conduct by an operator in connection 

with a violation. In Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987), the 

Commission determined that unwarrantable failure is aggravated conduct 

constituting more than ordinary negligence. /d. at 2001. Unwarrantable failure is 

characterized by such conduct as "reckless disregard," "intentional misconduct," 

"indifference," or a "serious lack of reasonable care." /d. at 2003-04; Rochester & 

Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991) ("R&P"); see also 

Buck Creek Coal, Inc. v. FMSHRC, 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, such as the length 

of time that the violation has existed, the extent of the violative condition, whether the 

operator has been placed on notice that greater efforts are necessary for compliance, 

the operator's efforts in abating the violative condition, whether the violation is 

obvious or poses a high degree of danger, and the operator's knowledge of the 

existence of the violation. See Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 

2000) ("Consof'); Cyprus Emerald Res. Corp., 20 FMSHRC 790, 813 (Aug. 

1998), rev'd on other grounds, 195 F.3d 42 (D.C. Cir. 1999); Midwest Material 

Co., 19 FMSHRC 30, 34 (Jan. 1997); Mullins & Sons Coal Co., 16 FMSHRC 192, 

195 (Feb. 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992); 

BethEnergy Mines, Inc., 14 FMSHRC 1232, 1243-44 (Aug. 1992); Quinland 

Coals, Inc., 10 FMSHRC 705, 709 (June 1988). All of the relevant facts and 

36 FMSHRC Page 1300
circumstances of each case must be examined to determine if an actor's conduct is 

aggravated, or whether mitigating circumstances exist. Consol, 22 FMSHRC at 353. 

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. REB Enters., Inc., 20 FMSHRC 203, 225 (Mar. 1998). 

Lopke Quarries at 711. 

Obviousness, Degree of Danger, Length of Time and Extent of the Violation

 The nature of the accident and the type of injuries sustained – a fall from over 20 feet with 

head injuries – made this a per se obviously reportable accident. Failure to report the accident put 

other miners in the plant at a high risk of falling off the same platform as Bowling or falling off 

another similarly situated platform. In addition, Respondent never reported the accident to MSHA. 

MSHA only arrived at the mine after an inquiry was made by the media to MSHA Headquarters 

asking about the accident. The violation existed for an extended period of time. 

The extensiveness factor involves consideration of the scope or magnitude of a violation. 

Eastern Associated Coal Corp., 32 FMSHRC 1189, 1195 (Oct. 2010). Respondent had no 

intention to report this accident until the 10-day report was due. Management took an extensive 

amount of time to retrieve the MET bag, examine Bowling, bandage him, report their findings, 

and consult the safety director before deciding whether to report the accident. The violation was 

moderately extensive. 

Operator's Knowledge of the Existence of the Violation

Management was clearly aware of the accident and the nature of it shortly after Bowling 

fell. The foreman was the one who sent Bowling up to the platform to flop the gate, as they had 

been doing this manually for 5 years. It was also a foreman who had the gate flopped to resume 

production immediately after Bowling was taken to the hospital and it was management, Hurley, 

Sullivan, and the safety director, who made the decision not to report the accident. 

The plant was running at full capacity when the accident occurred and the events of 

October 2010 gave Sullivan and Hurley motive to not report it in order to prevent the entire 

plant from being shut down. Based on the fact that the accident was obvious in that in needed 

to be immediately reported and mine management had motive for not reporting it, I find that 

the operator had knowledge of the existence of the violation. 

Operator Placed on Notice that Greater Efforts at Compliance were Necessary and 

Operator's Efforts in Abating the Violation

There was no evidence presented by either party that Respondent was placed on 

notice that greater efforts at compliance were necessary. 

The focus of the abatement effort factor is on compliance efforts made prior to the issuance 

of a violation. In general, the factor measures an operator's response to violative conditions that 

were known to it or that should have been known to it. Enlow Fork Mining Co., 19 FMSHRC 5, 

36 FMSHRC Page 1301
17 (Jan. 1997). It must then be determined whether the efforts "were taken with sufficient care 

under the circumstances, even if ultimately unsuccessful in completely preventing a violative 

condition." Windsor Coal Co., 21 FMSHRC 997, 1005 n.9 (Sept. 1999). There was no evidence 

presented that Respondent made any effort to notify MSHA and abate the violation. The evidence 

established that management had no intention of reporting the accident until the 10-day section 

50.20 report was due. 

I find that Respondent's failure to report this fall from almost 22 feet, resulting in a 

loss of consciousness and open head injuries to be a complete disregard for the miners' safety. 

It per se posed a reasonable potential of death. It appears that the decision not to report it was 

to avoid another 103(k) order at a time when production was high. Failure to report the 

accident was not because Respondent was unaware of the requirement to do so. I find that 

Respondent's knowledge of the violation and the high degree of danger posed by failing to 

report it are most significant. I do not find that the Respondent had a good faith belief that 

there was not a reportable accident under section 50.10, particularly in light of its previous 

experience with reporting one in October of the prior year. I find that that violation was 

caused by Respondent's unwarrantable failure to comply with section 50.10. 

Negligence

Belcher determined the level of negligence to be high because of the seriousness of the 

accident and the severity of injuries incurred by Bowling, including loss of consciousness. Tr. 

146. In addition, mine management was aware of the accident and never reported it. Tr. 147. 

In addition to the facts above, Sullivan and Hurley had motive for not reporting the 

accident, making their analysis of the situation skewed and unreliable, as exemplified by several 

other witnesses reporting to Belcher a number of details that they failed to mention. I find the 

level of negligence was properly marked as high. 

KENT 2011-1386

Citation No. 8258184 

Citation No. 8258184 was issued by Belcher on January 20, 2011 at 4:00p.m., 

pursuant to section 104(a) of the Act. It alleges a violation of 30 C.F.R. § 50.12 which states, 

"[u]nless 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." The violation was described in 

the citation as follows: 

On Tuesday, January 18, 2011, a serious fall type accident occurred at the 

Clintwood Elkhorn Mining Company preparation plant. 

36 FMSHRC Page 1302
A plant employee, who was located at the flop gate for the belt conveyor leading 

to the syn-fuel storage area, fell to the concrete floor located approximately 20 

feet below, receiving multiple injuries as a result. 

The accident investigation revealed that the operator had altered the accident site 

without receiving permission from an MSHA District Manager. Handrails were 

installed at the landing between the second and third floors at the flop gate for the 

belt where an accident occurred on 1/18/2011 prior to the completion of the 

accident investigation. A handrail was not provided for the landing at this work 

area, resulting in a mine employee falling, striking the belt chute cover, and then 

landing onto the first floor of the plant. The employee was transported to the 

hospital by ambulance for medical treatment for the injuries he sustained. 

Ex. S-10 at 1, 2. 

Belcher determined that an injury occurred as a result of the violation which was 

reasonably expected to result in no lost workdays, that one person was affected, and that the level 

of negligence was high. Ex. S-10 at 1. The Secretary proposed a penalty of $7,700.00. 

Secretary's Evidence

When Belcher conducted the accident investigation on January 19,2011, he observed 

that handrails had been installed on the platform at the location where Bowling fell. Tr. 149. 

He stated that preserving the scene is necessary to prevent evidence from being destroyed. Tr. 

204. Installing the handrails, even though it made the platform safer, altered the original 

accident scene. Tr. 208. 

Belcher explained that the purpose of not altering an accident scene is so that the 

investigators are able to visualize exactly what the scene looked like when the accident 

happened in order to put measures in place to prevent it from happening again, either at the 

same location or another similarly situated location in the plant. Tr. 122. When the scene is 

altered, the investigators must rely on company officials to describe the scene prior to the 

accident and they therefore cannot say with certainty what the scene looked like. Tr. 122, 149, 

150. 

In addition, based on the facts that Belcher gathered about the accident, he did not think 

that the accident scene needed to be altered in order to prevent or eliminate an imminent danger. 

Tr. 152, 154. Because no imminent danger existed, Belcher maintained that the MSHA District 

Manager needed to be notified and give permission for any alterations to be done. Tr. 151. 

Belcher marked the likelihood of injury as occurred with no lost workdays reasonably 

expected and one person affected. Tr. 155. He also determined that the level of negligence was 

high because Respondent knew that an accident had occurred, it installed the handrails 

intentionally, and Respondent did not receive permission from MSHA to alter the scene. Tr. 

157. 

36 FMSHRC Page 1303
Respondent's Evidence

Sullivan testified that after Bowling fell and was picked up by an ambulance, all of 

the coal was cleaned up off the floor, including the coal that Bowling knocked over when he 

fell, handrails were installed, a ratchet was replaced where Bowling was attempting to flop 

the gate, and production started again. Tr. 302-303, 309. At the time that production started, 

the results from the brain scans at the hospital were not available. Tr. 302-03. Sullivan 

maintained that installing the handrails was not an attempt to alter the scene or hinder an 

accident investigation. Tr. 278. 

Analysis

In Cougar Coal, the Commission found that where a power line, which was involved 

in an accident, was removed from the scene before MSHA was notified of the accident or 

began its investigation, a violation of 50.12 existed. Cougar Coal Co., 25 FMSHRC at 521. 

In addition, several ALJs have made similar determinations where MSHA had not yet been 

notified of an immediately reportable accident. In Signal Peak Energy, Judge Moran stated 

that Respondent would be excused from liability for failure to preserve the accident scene 

only if it did not have an obligation to report the accident. Signal Peak Energy, LLC, 34 

FMSHRC 1346, 1375 (June 2012). In Chino Mines, Judge Hodgdon found a violation of 

50.12 where a reportable accident occurred, a circuit breaker that exploded was replaced, and 

MSHA was not notified of the accident until the day after. Chino Mines Company, 24 

FMSHRC 189, 196-97 (Feb. 2002). 

Even though the operators in the above cases had not reported the accident to MSHA at 

the time that the alterations were made, the Commission has found that an operator still had 

notice of section 50.10's requirements and impliedly, section 50.12's requirements. In Cyprus 

Emerald Resources Corp., the Commission concluded that adequate notice is provided when a 

regulation is unambiguous. Cyprus Emerald Resources Corp., 20 FMSHRC 790,797-98 (Aug. 

1998). It stated that "[f]rom our conclusion that the definition of accident in section 50.2 is plain, 

it follows that section 50.10 provided the operator with adequate notice of its requirements. Id If 

Respondent had adequate notice of the requirements under section 50.10, it follows that 

Respondent also had adequate notice of its obligation to preserve the accident scene under 

section 50.12. 

Based on the above case law, the fact that handrails were installed on the platform from 

where Bowling fell, coal was cleaned up off the ground where he landed, and a ratchet was 

replaced, the scene of the accident was altered without the permission of an MSHA District 

Manager. Whether the alterations hindered the investigation was immaterial as the only 

acceptable reasons to alter an accident scene are "to rescue or recover an individual, prevent or 

eliminate an imminent danger, or prevent destruction of mining equipment." 30 U.S.C. § 50.12. 

There was no testimony presented by either party that these exceptions applied in this particular 

instance. Additionally, it is not within the Respondent's authority, absent these narrowly 

36 FMSHRC Page 1304
delineated circumstances, to determine whether alterations may hinder or impede an investigation 

by MSHA. 

Therefore, I find that Respondent violated section 50.12 and knew of the standard's 

requirements. 

Negligence

The alterations made to the scene of the accident were intentional and the decision to alter 

the scene was made by management. Respondent has not presented any mitigating evidence. As 

a result, I find that Belcher properly determined the level of negligence to be high. 

Civil Penalties

The Commission has reiterated in Mize Granite Quarries, Inc., 34 FMSHRC 1760, 1763- 

64 (Aug. 2012): 

Section 110(i) of the Mine Act grants the Commission the authority to assess all 

civil penalties provided under the Act. 30 U .S.C. §820(i). It further directs that 

the Commission, in determining penalty amounts, 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 1n 

attempting to achieve rapid compliance after notification of a violation. 

30 U.S.C. § 820(i). 

The Commission and its ALJs are not bound by the penalties proposed by the 

Secretary nor are they governed by MSHA' s Part 100 regulations, although substantial 

deviations from the proposed penalties must be explained using the section 110(i) criteria.14 

See Sellersburg Stone Co., 5 FMSHRC 287, 293 (Mar. 1983). In addition to considering the 

110(i) criteria, the judge must provide a sufficient factual basis upon which the Commission 

can perform its review function. See Martin Co. Coal Corp., 28 FMSHRC 247 (May 2006). 

 14 Respondent has raised an objection to the special assessments levied by the Secretary, 

stating that there was no explanation for the extreme divergence between the standard penalty 

calculated according to the section 100.3 formula and the assessed penalties, and that because the 

penalties assessed are arbitrary, they should not be considered a benchmark or guideline for de novo 

penalty assessments. Resp. Br. at 33. My assessment of penalties is based upon all of the statutory 

criteria above as they relate to the facts of each violation as established by the record evidence. The 

special assessments levied by the Secretary are immaterial. 

36 FMSHRC Page 1305
Ability to Continue in Business, Good Faith, and Size of the Operator

The parties have stipulated that the proposed penalties will not affect the Respondent's 

ability to continue in business and that Respondent abated the violations in good faith. Ex. J-1. 

The parties did not stipulate to the size of the operator, however, on the forms reflecting 

calculations of the proposed penalties (Secretary's Exhibit A), the mine tonnage is 0 and the 

controller tonnage is over 5 million. Based on Tables I and II in section 100.3, I find the size of 

the mine to be small but the overall size of the operator to be large. Therefore, I find that the 

penalties assessed herein are appropriate to the size of the business. 

History of Previous Violations and Negligence

The history of violations provided is over a 2 year period, not the required IS-month 

period, and reflects that 47 violations became final. Ex. S-13. I accept the figures reflected in the 

report as accurate. However, the overall violation history set forth in the exhibit is deficient in 

that it provides no qualitative assessment, i.e., whether the number of violations is high, moderate 

or low. See Cantera Green, 22 FMSHRC at 623-24. In addition, because the violations were 

specially assessed, no points were assigned by the Secretary for the number of violations per 

inspection day in Secretary's Exhibit A. Therefore, without the number of inspection days, it is 

not possible to determine whether the history of violations is an aggravating, neutral, or mitigating 

factor. The negligence and gravity of each violation is discussed at length above. 

I assess the following penalties: 

1. Citation No. 8247826 is VACATED. 

2. Citation No. 8247827 is VACATED. 

3. Order No. 8258182 is VACATED. 

4. Order No. 8258183 is affirmed. I assess a penalty of $21,900.00. I find the failure to report a 

fall under the circumstances here to be extremely serious with no mitigating factors. I find that 

the penalty is appropriate. 

5. Citation No. 8258184 is affirmed. I assess a penalty of $7,700.00. While the Respondent 

alleges the alteration of the scene was for the protection of miners, as stated herein, there were 

ulterior motives involved. I find that the penalty is appropriate. 

36 FMSHRC Page 1306
ORDER

It is ORDERED that the operator pay a total penalty of $29,600.00 within 30 days of the 

date of this order. 15

 /s/ Priscilla M. Rae

 Priscilla M. Rae 

 Administrative Law Judge 

 

Distribution (Certified Mail): 

Willow Fort, Esq., U.S. Department of Labor, Office of the Solicitor, 618 Church Street, Suite 

230, Nashville, TN 37219 

Melanie J. Kilpatrick, Esq., Rajkovich, Williams, Kilpatrick & True, PLLC, 3151 Beaumont 

Centre Circle, Suite 375, Lexington, KY 40513 

 15 Payment should be sent to: Mine Safety and Health Administration, U.S. Department of 

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

36 FMSHRC Page 1307
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 

May 15, 2014 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

 v. 

ELK RUN COAL COMPANY, INC., 

 Respondent 

: 

: 

: 

: 

: 

: 

: 

: 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA 2014-485 

A.C. No. 46-08553-341181 

Mine: Black King I North Portal 

ORDER ACCEPTING APPEARANCE

DECISION APPROVING SETTLEMENT

ORDER TO MODIFY

ORDER TO PAY

Before: Judge Lesnick 

 This case is before me upon a petition for assessment of a civil penalty under section 

105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). 

 The Secretary of Labor’s Conference and Litigation Representative (“CLR”) filed a 

notice of limited appearance with the penalty petition. It is ORDERED that the CLR be 

accepted to represent the Secretary. Cyprus Emerald Res. Corp., 16 FMSHRC 2359 (Nov. 

1994). 

 The CLR has filed a motion to approve settlement. A reduction in the penalties from 

$11,807.00 to $7,205.00 is proposed. The CLR also requests that Citation No. 8155239 be 

modified to reduce the likelihood of injury or illness from “reasonably likely” to “unlikely,” and 

to delete the significant and substantial designation. The CLR justifies the modification by 

stating: 

Respondent would have argued at hearing for modification of 

Citation No. 8155239's gravity designations because, Respondent 

claims, the condition cited was for the escapeway map at the 

section power center not showing the correct location of the mine 

faces, refuge alternative or the scsr storage locations, yet he further 

states that this escapeway map is located in close proximity to the 

current mine faces and all miners affected by the escapeway map 

36 FMSHRC Page 1308
actually work and travel on the active section and know the current 

location. He also states that this map is always stored at the 

section power center and miners can actually see the refuge 

alternative and scsr storage cache while reviewing the map, which 

lowers the likelihood of this condition causing injury. 

 While the Secretary does not admit the relevancy or significance of the Respondent’s 

arguments, the Secretary agrees to modify the citation. The remaining citations and penalties are 

unchanged. 

 Pursuant to 29 C.F.R. § 2700.1(b) and Fed. R. Civ. P. 12(f), I strike paragraphs three and 

four from the Secretary's Motion as immaterial and impertinent to the issues legitimately before 

the Commission.1

 The paragraphs incorrectly cite and interpret the case law and misrepresent 

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. Proposed Settlement

8155239 $6,458.00 $1,856.00 

9005633 $3,405.00 $3,405.00 

9005634 $1,944.00 $1,944.00 

 $11,807.00 $7,205.00 

 1

 The Secretary’s Motion for Decision and Order Approving Settlement reads in pertinent 

part: 

 

3. In reaching this settlement, the Secretary has evaluated the value of the 

compromise, the likelihood of obtaining a still better settlement, the prospects of 

coming out better, or worse, after a full trial, and the resources that would need to 

be expended in the attempt. The Secretary has determined that the public interest 

and the effective enforcement and deterrent purposes of the Mine Act are best 

served by settling the citation as indicated above. 

4. Consistent with the position the Secretary has taken before the Commission in 

The American Coal Company, LAKE 2011-13, the Secretary believes that the 

pleadings in this case and the above summary give the Commission an adequate 

basis for exercising its authority to review and approve the Secretary's settlement 

under Section 110(k) of the Mine Act, 30 U.S.C. § 820(k). 

36 FMSHRC Page 1309
WHEREFORE, the motion for approval of settlement is GRANTED. 

 It is ORDERED that Citation No. 8155239 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 further ORDERED that the operator pay a total penalty of $7,205.00 within thirty 

days of this order.2 Upon receipt of payment, this case is DISMISSED. 

 /s/ Robert J. Lesnick 

 Robert J. Lesnick 

 Chief Administrative Law Judge 

Distribution: 

Donald K. Phillips, Conference & Litigation Representative, U.S. Department of Labor, MSHA, 

100 Bluestone Road, Mt. Hope, WV 25880-1000 

Eric Silkwood, Esq., Hardy Pence, PLLC, P.O. Box 2548, Charleston, WV 25329 

/tjr 

 2

 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. 

36 FMSHRC Page 1310
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

WASHINGTON, DC 20004-1710 

May 19, 2014 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

 v. 

THE AMERICAN COAL COMPANY, 

 Respondent

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

 CIVIL PENALTY PROCEEDINGS 

 Docket No. LAKE 2008-666 

 A.C. No. 11-02752-161958 

 Docket No. LAKE 2008-667 

 A.C. No. 11-02752-160563 

 

 Docket No. LAKE 2009-6-A 

 A.C. No. 11-02752-162890-05 

 

 Mine: New Era Mine 

DECISION AND ORDER

Appearances: Barbara Villalobos, Esq., Travis W. Gosselin, Esq., Office of the Solicitor, 

 U.S. Department of Labor, Chicago, Illinois, for Petitioner 

 

 Jason W. Hardin, Esq., Mark E. Kittrell, Esq., Fabian & Clendenin, 

 Salt Lake City, Utah, for Respondent 

Before:Judge Zielinski 

 These cases are before me on Petitions for Assessment of Penalty filed by the Secretary 

of Labor pursuant to section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 

U.S.C. § 815(d). The petitions allege that The American Coal Company (“AmCoal”) is liable 

for eight violations of the Secretary’s Mandatory Safety Standards for Underground Coal 

Mines.1

 Seven of the violations were deemed to be “flagrant,” and subject to substantially higher 

penalties.2

 A total of $1,182,500 in civil penalties was assessed for the violations. Prior to the 

hearing, the parties settled three of the violations; the flagrant designations were withdrawn, and 

the assessed penalties were reduced from $452,000 to $30,000. A Decision Approving Partial 

Settlement was entered on February 25, 2014. 

 1

 30 C.F.R. Part 75. 

2

 As discussed infra, the Mine Act was amended in 2006 to add a new category of 

“flagrant” violations, for which penalties up to $220,000 could be imposed. The statutory limit 

on most other violations is $70,000. 

36 FMSHRC Page 1311
A hearing on the remaining violations was held in Evansville, Indiana and Henderson, 

Kentucky, before Administrative Law Judge Gary M. Melick, and the parties filed briefs after 

receipt of the transcript. Judge Melick subsequently retired, and the case was reassigned for 

purposes of writing and issuing a decision. The parties did not object to the reassignment, or 

request a supplemental evidentiary hearing.3 Because of the time that had elapsed since the 

parties had filed their original post-hearing briefs, they were afforded an opportunity to submit 

supplemental briefs on the issue of whether the violations were properly assessed as flagrant. 

Both parties elected to submit briefs, which were filed on March 28, 2014. 

 Remaining at issue are five violations: Order No. 7490572 alleged a flagrant violation of 

a standard requiring that electrical equipment be de-energized when work is performed, for 

which a penalty of $161,800 was assessed. Order No. 6668524 alleged a flagrant violation of the 

roof control standard, for which a penalty of $158,900 was assessed. Order No. 6668526 alleged 

a flagrant violation of the preshift examination standard, for which a penalty of $161,800 was 

assessed. Order No. 6673874 alleged a flagrant violation of the accumulations standard, for 

which a penalty of $188,000 was assessed. Order No. 6673876 alleged a violation of the onshift 

examination standard, for which a penalty of $60,000 was assessed. 

 For the reasons that follow, I find that AmCoal committed the violations. However, the 

flagrant designations are vacated, and several of the special findings on the issues of gravity and 

negligence are modified, and civil penalties in the total amount of $36,500 are imposed. 

Findings of Fact - Conclusions of Law

 At all times relevant to these proceedings, AmCoal operated the Galatia Mine, an 

extremely large underground longwall coal mine, located in Saline County, Illinois. It is a 

“gassy” mine, liberating over one million cubic feet of methane in a 24-hour period, and is 

subject to 5-day spot inspections under section 103(i) of the Act. Underground coal mines must 

be inspected by the Secretary’s Mine Safety and Health Administration (“MSHA”) four times 

each year.4

 In order to timely complete the inspections, MSHA assigned several inspectors, most 

of whom were at the mine virtually every day. Steven Miller, one of the inspectors, issued the 

five violations remaining at issue. Miller has extensive experience, both as a miner, and an 

MSHA inspector, and has inspected the Galatia mine since 1991. The orders litigated by the 

parties were issued during inspections of the mine in September and November 2007, and 

January 2008. 

 3

 See Commission Procedural Rule 68, Substitution of the Judge. 29 C.F.R. § 2700.68. 

4

 30 U.S.C. § 113(a). 

36 FMSHRC Page 1312
Order No. 7490572 (LAKE 2008-667) 

 Order No. 7490572 was issued by Miller at 11:30 a.m., on September 6, 2007, pursuant 

to section 104(d)(2) of the Act. It alleges a violation of 30 C.F.R. § 75.509, which requires that 

“[a]ll power circuits and electric equipment shall be de-energized before work is done on such 

circuits and equipment, except when necessary for trouble shooting or testing.” The violation 

was described in the “Condition and Practice” section of the citation as follows: 

A maintenance supervisor was observed reaching into a, 480 Volt AC, energized 

electrical panel. The supervisor had been making repairs to the Stamler Feeder, 

company number FB-11, located on the Flannigan New Portal Bottom active 

section. (MMU-003) There was an hourly employee standing next to the 

supervisor who was also exposed to this hazard. The supervisor stated that he 

was just reaching in the panel to move some wires as he was closing the access 

panel. His hand was within ten inches of the un-insulated lugs on the bottom of 

the energized circuit breaker. This is the second citation of this regulation in the 

last ten days. The supervisor offered no mitigating circumstances other than to 

state he was taking a shortcut. 

Ex. S-2. 

 Miller determined that it was highly likely that the violation would result in a fatal injury, 

that the violation was S&S, that one person was affected, and that the operator’s negligence rose 

to the level of “Reckless Disregard.” The violation was assessed as flagrant, and a civil penalty 

in the amount of $161,800 was proposed. 

The Violation 

 On September 7, 2007, Miller conducted an inspection of the Galatia North Mine. He 

was accompanied by Robert Hatcher,5

 AmCoal’s safety director for the mine. They rode in a 

golf cart approximately 7 miles to the active section of the mine, referred to as the Flannigan 

New Portal Bottom. When they arrived at the section, near the working face, Miller conducted 

an imminent danger run, while Hatcher took the cart to a charging station so that the batteries 

would have enough energy for the return trip. 

 The mine was not then producing coal, because the working section was bolting screen 

wire to the ribs. Tr. 47. AmCoal took advantage of the idle period to address a problem with the 

feeder, which had been malfunctioning. It would not stay on for extended periods due to a 

problem with sequencing of the electronic controls. Tr. 471. Christopher Cowsert, a 

 5

 Hatcher left AmCoal’s employment in November of 2009, and began working for 

MSHA as a coal mine inspector. He was so employed when he testified at the hearing. Tr. 28. 

36 FMSHRC Page 1313
maintenance mechanic, called his supervisor, John Jones, the maintenance foreman, to assist in 

diagnosing and remedying the problem. 

 Jones and Cowsert reported that they had de-energized the feeder at the power center, and 

locked and tagged out the 480-volt circuit prior to opening the feeder’s electrical panel. One of 

them then returned to the power center, removed the lock/tag, energized the panel, and Jones 

began the task of troubleshooting. Jones did not have his equipment with him, so he borrowed 

Cowsert’s gloves and meter while he worked on the panel.6

 Tr. 473. 

 The feeder’s electrical panel was housed in a metal box approximately 4 feet wide, 18 to 

20 inches high and 14 inches deep. Tr. 411. It was mounted at roughly waist height, and had a 

door that was hinged along the bottom of the 4-foot width, with a chain on the right-hand side to 

limit the swing of the door to an approximately horizontal position. Tr. 475. Several 

photographs of the panel were introduced into evidence. Ex. S-4, R-27. On the left side there 

was a breaker that could be re-set externally, i.e., without opening the panel. Next to that were 

three vacuum lugs which would transmit 480-volt AC power to the main motor. From the center 

to the right, there were other connections, including numerous connections to a bus bar that ran 

along the bottom of the panel. The other connections were primarily control circuits, operating 

at 110 volts or less. Tr. 61, 150, 408-10. 

 

 Believing that the problem had been fixed, Jones handed the meter and gloves back to 

Cowsert, and began to lift the panel door to close it. Tr. 477. No attempt was made to deenergize the panel. Tr. 31. Jones had his left hand on a handle that was located at the top, 

middle of the panel door, and was lifting it when he noticed that some control wires running 

along the bottom of the panel might be pinched as the door pivoted up. Tr. 477. He reached into 

the box with his bare hand, and lifted the wires to allow the door to close. Tr. 477. The wires 

were insulated, and there were no defects in the insulation. Tr. 93, 477. 

 At that time, Miller was returning from his imminent danger run and, as he approached 

the feeder, he observed Jones with his hand in the panel. When Miller asked what he was doing, 

Jones removed his hand and let the lid back down. Miller reminded the men that electrical 

panels could not be opened or closed while energized, i.e., that power to the panel had to be shut 

off and the circuit locked and tagged out, before those actions could be taken. Jones walked 

back to the power center, 100-200 feet away, to kill the power and lock and tag the circuit. He 

encountered Hatcher, who was returning from the battery charging station, and told him what 

happened when Hatcher inquired. Hatcher went to the feeder, where Miller was located. When 

 6

 Miller clarified that under MSHA’s regulations voltages less than 995 volts are 

considered “low voltage” and there is no requirement that specially insulated gloves be worn. 

Tr. 88. Under the general protective equipment regulation, gloves are required when performing 

work which might cause injury to the hands. 30 C.F.R. § 75.1720(c). MSHA regards the 

wearing of leather gloves by miners working on low voltage electrical panels as complying with 

the requirement. Tr. 83. 

36 FMSHRC Page 1314
Jones returned, after de-energizing the feeder panel, Miller asked him whether he was in a hurry 

or just taking a short cut, and Jones responded, “I guess I was taking a short cut.”7

 Tr. 31. 

 AmCoal does not directly argue that there was no violation. However, it does point out 

that neither the Act, the Secretary’s regulations, nor MSHA’s publications provide a clear 

definition of the terms “work” or “trouble shooting and testing” as used in the standard. Prior to 

the issuance of the order, however, MSHA’s electrical department personnel had determined that 

the actions of opening or closing an electrical panel constituted work, for which the standard 

required that the circuits and equipment be de-energized. Tr. 96. That was true even if the 

purpose of opening the panel was to trouble shoot or test the electrical components. Todd 

Horton, AmCoal’s electrical foreman, confirmed that MSHA had informed AmCoal of its 

determination, and AmCoal had adopted it as its policy, and incorporated it into its training. 

Tr. 413, 446-48. Cowsert was well aware of the policy, and Jones surely must have been. 

Tr. 472, 480. 

 Any ambiguity in the terms “work” and “trouble shooting or testing” was removed well 

before the incident at issue, and AmCoal and its employees had received actual notice of the 

Secretary’s interpretation of the standard. An extended discussion of Chevron U.S.A., Inc. v. 

Natural Res. Def. Council, Inc., 467 U.S. 837 (1984) is unnecessary. For present purposes, in 

light of AmCoal’s position on this issue, I find that the standard is ambiguous and that the 

Secretary’s interpretation, though not the only permissible view, is reasonable and entitled to 

deference. In attempting to close the panel, Jones performed work without de-energizing the 

equipment, in violation of the standard.8

 

 7

 The Secretary argued that adverse inferences should be drawn because AmCoal did 

not call Jones as a witness. A similar argument was made with respect to AmCoal’s failure to 

call examiners to explain their reports with respect to the accumulations violation. The Secretary 

failed in both instances to establish a predicate for his missing witness argument, notably that the 

witness was peculiarly available to AmCoal. In any event, the facts of the respective incidents 

were largely found to be consistent with the adverse inferences that the Secretary urged. 

8

 In an enforcement proceeding under the Act, the Secretary has the burden of proving 

all elements of an alleged violation by a preponderance of the evidence. In re: Contests of 

Respirable Dust Sample Alteration Citations, 17 FMSHRC 1819, 1838 (Nov. 1995), aff’d, Sec’y 

of Labor v. Keystone Coal Mining Corp., 151 F.3d 1096 (D.C. Cir. 1998); ASARCO Mining Co., 

15 FMSHRC 1303, 1307 (July 1993); Garden Creek Pocahontas Co., 11 FMSHRC 2148, 2152 

(Nov. 1989); Jim Walter Resources, Inc., 9 FMSHRC 903, 907 (May 1987). 

36 FMSHRC Page 1315
Significant & Substantial 

 The Commission reviewed and reaffirmed the familiar Mathies9 framework for 

determining whether a violation is S&S in Cumberland Coal Res., 33 FMSHRC 2357, 2363-65 

(Oct. 2011), aff’d sub nom., Cumberland Coal Res., LP v. FMSHRC, 717 F.3d 1020 (D.C. Cir. 

2013): 

 The S&S terminology is taken from section 104(d) of the Mine Act, 30 

U.S.C. § 814(d), and refers to more serious violations. 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, 6 FMSHRC 1, 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); accord Buck Creek Coal, Inc. v. MSHA, 52 F.3d 

133, 135 (7th Cir. 1999); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103 

(5th Cir. 1988) (approving Mathies criteria). An evaluation of the reasonable 

likelihood of injury should be made assuming continued normal mining 

operations. See U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug. 1985). The 

Commission has emphasized that 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., 6 FMSHRC 1834, 1836 (Aug. 1984). 

 . . . . 

 . . . . 

 The Commission recently discussed the third element of the Mathies test 

in Musser Engineering, Inc. and PBS Coals, Inc., 32 FMSHRC 1257, 1280-81 

(Oct. 2010) (“PBS”) (affirming an S&S violation for using an inaccurate mine 

map). The Commission held that the “test under the third element is whether 

there is a reasonable likelihood that the hazard contributed to by the violation, 

i.e., [in that case] the danger of breakthrough and resulting inundation, will cause 

 9

 Mathies Coal Co., 6 FMSHRC 1 (Jan. 1984). 

36 FMSHRC Page 1316
injury.” Id. at 1281. Importantly, we clarified that the “Secretary need not prove 

a reasonable likelihood that the violation itself will cause injury.” Id. The 

Commission concluded that the Secretary had presented sufficient evidence that 

miners who broke through into a flooded adjacent mine would face numerous 

dangers of injury. Id. 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 fact of the violation has been established. Jones was performing “work” on 

an electrical panel that had not been de-energized. The violation contributed to a discrete 

safety hazard, that Jones’ hand might contact an uninsulated energized electrical 

component, resulting in an electrocution type of injury. Any such injury would be 

serious. Consequently, whether the violation was S&S turns on whether it was 

reasonably likely that the hazard would result in an injury. 

 Miller determined that the violation was highly likely to result in a fatal injury. 

As he explained his rationale, Jones’ hand was within approximately 10 inches of lugs 

energized with 480 volts of AC power, and there were other energized connections, 

including a breaker, a fuse box, and a bus bar that ran along the bottom-right side of the 

panel. Tr. 67, 76, 104. He did not believe that Jones could see exactly where his hand 

was when the panel door was most of the way closed. Tr. 66-67. He also felt that there 

was a possibility of inadvertent contact between Cowsert and Jones that could have 

caused Jones’ hand to contact energized components inside the panel. Tr. 104. 

 Miller had to have been mistaken about Jones’ hand being within 10 inches of the 

480-volt lugs. They were located on the left side of the panel, and Jones’ hand was on 

the right side. Tr. 477. Miller had noted in the order that Jones’ hand was within 10 

inches of uninsulated lugs “on the bottom” of the panel. Ex. S-2. The lugs on the bottom 

of the panel were on the bus bar, and were connections for control circuits of no more 

than 110 volts. Cowsert described the wires as all being insulated along that strip, i.e., 

the bus bar on the lower right side of the panel with connections for the control circuits. 

Tr. 477. 

 The possibility of external movement, e.g., tripping or slipping, causing Jones’ 

hand to move inside the panel was remote. Cowsert had worked as a maintenance 

mechanic and had received his electrical card. Tr. 484, 469. From past experience, he 

appreciated the dangers of other persons being too close to him as he worked on electrical 

equipment, and had stationed himself a safe distance away from Jones. Tr. 478-79. 

Neither he nor Jones were moving, and there were no other persons or moving equipment 

in the area. Tr. 106-07. 

36 FMSHRC Page 1317
 While Jones may not have been able to see his hand if the panel door was raised 

close to vertical, he was able to see the location of wires that might get pinched as the 

panel door closed, and had had a view of the wires as he lifted them. He was not feeling 

around inside the panel to locate loose wires. Cowsert testified that Jones had lifted the 

wires and was removing his hand when Miller approached. Tr. 478. With 20 years of 

experience, Jones was very familiar with the layout of the panel and the locations of the 

various energized components. The 480-volt lugs for the main feeder power were located 

on the left side of the panel, and Jones’ left hand was on the outside of the panel door, 

near the handle. He was using his right hand to lift the wires. While Miller estimated 

that Jones’ hand may have been 10 inches away from those lugs, it was considerably 

farther away from the 480-volt lugs. Tr. 67, 101-02. The bus bar, which was closer to 

Jones’ hand, was configured with the electrical connections recessed between nonconductive fins designed to prevent inadvertent contact with other conductors. Tr. 103; 

Ex. R-27. His hand would have been in the panel for a few seconds, as he lifted the wires 

prior to raising the lid toward closure. While the possibility of inadvertent contact with 

energized components existed, it was not highly likely. 

 

 Jones’ violation of the standard contributed to a discrete safety hazard of a 

potential electrocution injury. A hazard that could have been substantially, if not 

completely, eliminated by his wearing of gloves, or the installation of clips to hold the 

wires away from the pinch point. Of course, adherence to MSHA’s interpretation of the 

standard, and AmCoal’s policy, by deenergizing the panel while it was being closed 

would have completely avoided the hazard, as well as the violation. 

 I find that the hazard contributed to was reasonably likely to result in a reasonably 

serious injury, and that the violation was S&S. 

Negligence - Unwarrantable Failure 

 In Lopke Quarries, Inc., 23 FMSHRC 705, 711 (July 2001), the Commission 

reiterated the law applicable to determining whether a violation is the result of an 

unwarrantable failure: 

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

30 U.S.C. § 814(d), and refers to more serious conduct by an operator in 

connection with a violation. In Emery Mining Corp., 9 FMSHRC 1997 (Dec. 

1987), the Commission determined that unwarrantable failure is aggravated 

conduct constituting more than ordinary negligence. Id. at 2001. Unwarrantable 

failure is characterized by such conduct as "reckless disregard," "intentional 

misconduct," "indifference," or a "serious lack of reasonable care." Id. at 2003-

04; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991) 

(“R&P”); see also Buck Creek [Coal, Inc. v. FMSHRC, 52 F.3d 133, 136 (7th Cir. 

1995)] (approving Commission's unwarrantable failure test). 

36 FMSHRC Page 1318
Whether conduct is “aggravated” in the context of an unwarrantable failure 

analysis is determined by looking at all the facts and circumstances of each case 

to see if any aggravating factors exist, such as the length of time that the violation 

has existed, the extent of the violative condition, whether the operator has been 

placed on notice that greater efforts are necessary for compliance, the operator’s 

efforts in abating the violative condition, whether the violation is obvious or poses 

a high degree of danger, and the operator’s knowledge of the existence of the 

violation. See Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000); 

Cyprus Emerald Res. Corp., 20 FMSHRC 790, 813 (Aug. 1998), rev’d on other 

grounds, 195 F.3d 42 (D.C. Cir. 1999); Midwest Material Co., 19 FMSHRC 30, 

34 (Jan. 1997); Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994); 

Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992); BethEnergy Mines, 

Inc., 14 FMSHRC 1232, 1243-44 (Aug. 1992); Quinland Coals, Inc., 10 

FMSHRC 705, 709 (June 1988). All of the relevant facts and circumstances of 

each case must be examined to determine if an actor’s conduct is aggravated, or 

whether mitigating circumstances exist. Consol, 22 FMSHRC at 353. 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. REB Enters., Inc., 20 FMSHRC 203, 225 (Mar. 

1998). 

 Miller determined that AmCoal’s negligence rose to the level of reckless disregard, and 

that the violation was attributable to its unwarrantable failure to comply with the standard. 

Analysis of the unwarrantable failure factors is skewed somewhat by the unusual nature of the 

violation. The Secretary’s position is predicated almost exclusively on Jones’ negligence in 

closing the panel door while reaching in to hold wires away from a pinch point. Since the 

actions of Jones, an AmCoal supervisor, are normally imputable to the operator, the 

unwarrantable failure analysis will initially focus on Jones’ conduct. 

Extensiveness - Length of Time - Abatement Efforts 

 The violation was not extensive, and existed only for a few seconds. There was no 

opportunity for AmCoal to have abated the specific violation prior to its occurrence. However, 

AmCoal had taken steps to eliminate such violations, by adopting MSHA’s interpretation of the 

standard as its policy, and incorporating it into its training. It also disciplined personnel that 

violated the policy. 

Whether Operator was Placed on Notice that Greater Efforts were Necessary for Compliance 

 The Secretary does not argue directly that AmCoal was placed on notice that greater 

compliance efforts were necessary. Sec’y. Br. at 21-23. However, he notes that prior incidents 

occurred (“[t]his was not the first time that an employee was working on energized equipment”), 

before concluding that “[r]egardless of prior violations or incidents, however, Inspector Miller 

would have issued the subject citation as reckless disregard because a supervisor put his bare 

36 FMSHRC Page 1319
hand into an energized electrical box.” Id. at 23. Miller had a somewhat different focus. He 

testified that he would have issued the violation as an unwarrantable failure order under section 

104(d)(2) of the Act, even if Jones had not placed his hand into the open panel, i.e., solely for 

closing the panel without de-energizing it. Tr. 149-50. 

 The “prior incidents” included a violation cited by Miller two weeks earlier, on August 

26, 2007, where a miner conducting a permissibility check on a roof bolter ran a feeler gauge 

through openings in an electrical panel and lights while the equipment was energized. Tr. 78-79, 

122-24; Ex. S-5, R-33. Miller determined that the actions of the repairman, who he later testified 

was acting as AmCoal’s agent, violated section 75.509, and rated the violation as highly likely to 

result in a fatal injury. Tr. 147-49. While he determined that AmCoal’s negligence was high, he 

determined that it did not rise to the level of unwarrantable failure, and issued the violation as a 

citation pursuant to section 104(a) of the Act. Tr. 79, 122-23; Ex. S-5. The repairman’s 

employment was terminated for his actions, and crews were re-instructed on the prohibition of 

working on energized electrical equipment. Tr. 442; Ex. R-34. 

 Miller also testified that he was aware that “other inspectors” had issued “similar types of 

violations.” Tr. 73. However, he was unable to relate any details of such incidents. Tr. 111-14. 

There were no other violations of section 75.509 noted on the exhibit introduced by the Secretary 

listing AmCoal’s past violations although such violations occurring on AmCoal’s surface 

facilities would have been cited under a different regulation. Tr. 112; Ex. S-1. One such 

incident that occurred on the surface 14 months prior to the instant violation involved repairmen 

installing relays on an energized panel, which Miller had evaluated as high negligence, rather 

than reckless disregard. Tr. 116-18. Those personnel were independent contractors, not 

employees of AmCoal, and the contractor was removed from the mine site as a result of the 

violation. Tr. 121. Interestingly, the repairman and his supervisor both stated that “they always 

did it that way.” Tr. 120-21. 

 The incidents of record, two in 14 months, do not support an inference that AmCoal was 

put on notice that greater efforts to comply with section 75.509 were necessary. In both of the 

described incidents those involved had their relationship with AmCoal terminated, and it appears 

that MSHA’s interpretation of the standard as prohibiting the opening and closing of energized 

electrical panels was consistently emphasized in AmCoal’s training, a fact that the Secretary 

relies on in arguing the degree of Jones’ negligence. Tr. 412-13, 423-33; Ex. R-20, R-21, R-22. 

Obviousness - Knowledge of the Violation 

 AmCoal’s knowledge of the violation, and the fact that it was obvious, are predicated 

exclusively on Jones’ knowing failure to comply with MSHA’s interpretation of the standard, 

which had been adopted by AmCoal and conveyed to its employees. Miller was undoubtedly 

correct when he surmised that Jones tired of walking back to the power center to de-energize the 

panel and lock/tag the circuit. Tr. 107. He decided, in effect, to take a shortcut, to close the 

panel while it remained energized, apparently perceiving little danger in doing so, even when he 

36 FMSHRC Page 1320
reached in to hold a wire or wires away from a pinch point. Consequently, Jones knew that he 

was violating the standard as interpreted by MSHA, and he knew that the violation was obvious. 

Danger to Miners 

 As noted in the S&S discussion, Jones’ actions placed him in danger of an electrocution 

type of injury that could easily have been fatal. To a lesser extent, Cowsert might also have 

suffered an injury, if Jones contacted a bare energized conductor and Cowsert tried to free him 

from it. However, Cowsert had experience as a mechanic, had his electrical card, and had a good 

understanding of the dangers presented by working on energized equipment and in close 

proximity to persons who did so. The relatively low voltages involved virtually eliminated the 

possibility of the electric current arcing, such that Jones’ and Cowsert’s clothing would have 

provided effective insulation from the current.10 It was reasonably likely that Jones would suffer 

a serious injury as a result of the violation, and a slight possibility that Cowsert would have 

suffered an injury. No other miners were put in danger by Jones’ actions. 

Conclusion 

 As noted above, unwarrantable failure is aggravated conduct constituting more than 

ordinary negligence, and is characterized by such conduct as reckless disregard, intentional 

misconduct, indifference, or a serious lack of reasonable care. Jones’ actions could certainly be 

characterized as intentional misconduct. However, it is not clear that they amounted to a serious 

lack of reasonable care. While MSHA’s interpretation of the standard was reasonable, the 

conclusion that the opening and closing of an electrical panel constitutes work, as opposed to 

trouble shooting and testing, is certainly not compelled, and apparently was at odds with the 

common practice of two electrical contractors. It is also unclear that such actions would be 

inherently hazardous. Miller proffered an explanation of a danger that could be encountered by 

opening an energized electrical panel, i.e., that a loose wire inside might then contact the metal 

box, energizing it. Tr. 151. As unlikely as that scenario might be,11 he did not describe any 

dangers that might typically be encountered in the closing of a panel, although pinching of an 

insulated wire could be one. Cowsert explained that the initial examination of the panel when it 

was first opened revealed no obvious problems, e.g., loose relays. Tr. 472. Jones could see that 

there were no loose electrical connections when he started to close the panel. The wires that he 

took hold of were insulated, and the insulation was in good condition, which provided an 

effective barrier to the transmission of electrical energy to him. Tr. 93-94, 477. In order to 

 10 See note 12, infra. 

11 Although not explained in detail, it appears that the energized conductors from the 

power center were connected to the fixed terminals, e.g., the bus bar, in the panel, and that the 

wires connected to those terminals conducted power to the various components of the feeder. If 

a wire came completely loose from the terminal, it would no longer be energized. In addition, it 

is highly likely that the metal boxes enclosing such components were grounded. 

36 FMSHRC Page 1321
suffer an injury, his bare hand would have had to come into direct contact with an energized 

component in the panel.12 He knew where those components were located, and his hand was 

kept a reasonably safe distance away from them, especially the 480-volt lugs on the left side of 

the panel. 

 As noted above, Miller would have cited the violation as an unwarrantable failure, even if 

Jones’ had not reached into the panel. It would be extremely difficult to characterize the mere 

closing of an energized panel as S&S or an unwarrantable failure. However, Jones’ action of 

using his bare hand to lift some wires while he closed the panel door enhanced the “danger to 

miners” factor of the unwarrantable failure analysis. The violation was not extensive and existed 

for only a few seconds. AmCoal had not been put on notice of a need for greater compliance 

efforts. Jones knew of the violation, which was obvious, but only for its short duration. It was 

reasonably likely that one miner would suffer a serious injury, and there was a slight chance that 

one other miner would suffer an injury because of the violation. 

 Upon consideration of the factors applicable to the unwarrantable failure analysis, I find 

that Jones’ negligence was high, but did not rise to the level of reckless disregard, and that the 

violation was not the result of an unwarrantable failure to comply with the standard. 

AmCoal’s Negligence 

 As a maintenance foreman, a supervisor, Jones was AmCoal’s agent and his negligence is 

imputable to it. Rochester & Pittsburgh Coal Co. 13 FMSHRC 189, 194 (Feb. 1991). In Nacco 

Mining Co., 3 FMSHRC 848, 850 (Apr. 1982), the Commission held that the negligent 

misconduct of a supervisor will not be imputed to an operator if the operator has taken 

reasonable steps to avoid the particular class of accident involved in the violation and the 

supervisor’s erring conduct was unforeseeable and exposed only himself to risk. The 

Commission later held that the Nacco defense was not available where the supervisor’s conduct 

 12 AmCoal referred to a web site in its brief 

http://www.cirris.com/testing/voltage/arc.html) that it claimed established that the distance that 

480 volt electric power could arc in air was approximately 0.001 inches, and requested that 

judicial notice be taken that the potential arc for 480 volts was “on the order of a few 

thousandth’s of an inch.” Resp. Br. at 7 n.2. The Secretary did not oppose that request in his 

reply brief. The web site generally supports the assertion, but not quite as AmCoal claims. The 

arc calculator on the site specifies that the distance that 480-volt AC power can arc in air is 

limited to approximately 0.003 inches. The fact that the low voltage in the panel would have 

such a limited arcing distance is consistent with MSHA’s acceptance of leather gloves as 

adequate protection for miners performing trouble shooting and testing on energized low voltage 

electrical panels. I decline AmCoal’s invitation to take judicial notice of the specific limitations 

urged. However, it does appear that the arcing distance of 480 volt AC power in air is extremely 

limited, and that Jones would have had to physically contact a bare energized conductor to have 

suffered an injury. 

36 FMSHRC Page 1322
results in an unwarrantable failure violation. Capitol Cement Corp., 21 FMSHRC 883, 894-95 

(Aug. 1999), aff’d. 229 F.3d 1141 (4th Cir. 2000) (unpublished opinion). 

 The Secretary argues that Jones’ negligence is imputable to AmCoal because his conduct 

resulted in an unwarrantable failure violation, and that Nacco would not be applicable, in any 

event, because Jones endangered another miner, i.e., Cowsert. 

 Jones’ conduct did not constitute an unwarrantable failure violation. Consequently, 

under Nacco, his negligence cannot be imputed to AmCoal, unless his action endangered other 

miners.13 Miller testified that Jones’ actions put Cowsert in danger, because he was in close 

proximity to Jones, and instinctively might have tried to pull Jones out of the panel if he had 

contacted an energized conductor. Tr. 75-76. As noted above, there was a slight possibility that 

Cowsert would have suffered an injury if Jones had contacted an energized conductor. 

Therefore, Jones’ actions placed another miner in danger. While Miller’s order reflects that one 

person, Jones, was affected by the violation, his notes and testimony consistently reflect his 

concern that Cowsert was also exposed to danger. 

 I find that Jones’ violative conduct endangered Cowsert. Therefore, the Nacco defense is 

not available to AmCoal. Jones’ negligence is imputable to AmCoal and I find that its 

negligence was also high, although it was mitigated somewhat by its efforts to eliminate such 

violations, as noted above. 

 

 The propriety of designations of this and the other three orders as flagrant violations is 

discussed infra. 

Order Nos. 6668524 and 6668526 (LAKE 2008-666) 

 Order No. 6668524 was verbally issued by Miller at approximately 8:00 p.m. on 

November 7, 2007, pursuant to section 104(d)(2) of the Act.14 It alleges a violation of 30 C.F.R. 

 13 The Secretary does not argue that AmCoal had not taken reasonable steps to avoid the 

particular class of accident involved in the violation, or that Jones’ erring conduct was 

foreseeable. It appears that AmCoal had taken reasonable steps to avoid the particular class of 

accident involved in the violation by adopting MSHA’s interpretation of the standard as its 

policy and incorporating it into its training. As to foreseeability, Miller had formed an opinion 

that work on energized equipment seemed to be common practice at AmCoal. However, aside 

from two incidents, he was unable to provide any details of other such conduct. The incidents 

that were described had resulted in the termination of the involved workers. Moreover, it was 

Jones’ reaching into the panel that presented the greatest danger, and there is no indication that 

that action should have been foreseeable. 

14 The order bears a date of November 8, 2007, because it was past midnight before 

Miller was able to compose it on his computer, and that date was automatically entered when the 

order was printed. 

36 FMSHRC Page 1323
§ 75.202(a), which requires that “[t]he roof, face and ribs of areas where persons work or travel 

shall be supported or otherwise controlled to protect persons from hazards related to falls of the 

roof, face or ribs and coal or rock bursts.” The violation was described in the “Condition and 

Practice” section of the order as follows: 

 

The roof and ribs along the 1st West Flannigan Longwall Primary Intake 

Escapeway were not supported or otherwise controlled to protect persons from 

hazards related to falls of the roof and ribs. There is loose, broken-up, or 

unsupported mine roof at the following locations: along this escapeway from 

Number 7 crosscut to Number 25 crosscut. Number 7, 8, 9, 14, 16, 20 and 25. 

Ribs need to be scaled and supported at the following locations: Number 10-11, 

16-17, 19-20, and other intermittent locations. 

Ex. S-6. 

 Miller determined that it was highly likely that the violation would result in a fatal injury, 

that the violation was S&S, that two persons were affected, that the operator’s negligence was 

high, and that the violation was the result of AmCoal’s unwarrantable failure to comply with the 

standard.15 The violation was assessed as flagrant, and a civil penalty in the amount of $158,900 

was assessed. 

The Violation 

 Miller participated in an ongoing inspection of the mine during the second shift on 

November 7, 2007. He met Mark Odum, an MSHA supervisory roof control specialist, at the 

mine and they went underground, accompanied by Johnna Durham, an AmCoal safety 

specialist.16 They traveled several miles, through the main travelway and primary escapeway, to 

the headgate of a longwall panel that was being set up at the time. There had been a roof fall in 

that area, and an order had been issued pursuant to section 103(k) of the Act. Rehabilitation 

measures had been taken, and AmCoal was seeking to have the order terminated. 

 The inspection party traveled in a 4-seat personal vehicle (“PV”), equipped with a 

canopy, and driven by Durham. Tr. 539. They encountered a loose rib between crosscuts 3 and 

 15 While the order was issued by Miller, it was Odum who identified the various 

conditions in the first instance. After the PV was parked, Miller and Durham walked 

approximately 30 feet behind Odum and either abated or flagged conditions that he pointed out, 

and were later written into the order. 

16 Durham had over 10 years of mining experience at the time, including operating 

equipment on a working section, serving as mine manager, and approximately 2-3 years as an 

examiner. She had been a safety specialist for approximately 6 months, and was continuing to 

participate in on-the-job training. Tr. 536, 550-52. 

36 FMSHRC Page 1324
4, for which a citation was issued charging a violation of the mine’s roof control plan. At 

crosscut No. 6, they noticed a piece of draw rock hanging down from the roof. They stopped and 

scaled it down, leaving a loose roof bolt, which was flagged. A citation was issued for that 

condition. Tr. 539; Ex. S-8. 

 

 As they continued on, Odum asked Durham to back up so that he could examine 

something that “didn’t look right” near crosscut No. 7. Miller’s notes reflect that there was 

broken roof and a loose roof bolt at that location. Ex. S-8. After traveling approximately 

another two crosscuts, Odum had Durham stop so that he could examine another suspect 

condition. He decided to walk the rest of the way, and asked Durham to park the PV, which she 

did. Tr. 541. While they walked the 35-40 crosscuts to the headgate, Odum identified numerous 

places where he felt that the roof and ribs were not properly supported, and Miller made notes of 

their locations.17 Tr. 543. At one point, Miller and Durham attempted to pry down a section of 

rib that appeared to be loose. However, they were unable to do so. They flagged the area and 

moved on. Tr. 540-41. Durham scaled many of the rib conditions that Odum identified. She 

described those conditions as not “real big stuff, but it was just a little bit of loose stuff that we 

could pull down, normal rib rash.” Tr. 542. Areas that needed extra attention were flagged by 

Miller and Durham. Tr. 542. From her experience as an examiner, Durham did not believe that 

the conditions Odum was identifying were hazardous. Tr. 543. 

 When they reached the longwall headgate, they encountered Jeff Dyson, the longwall 

coordinator, and Mike Grant, the longwall boss. Durham related her experience and alerted them 

to the likelihood that an order would be issued by Odum or Miller, closing the travelway. 

Tr. 546. Stephen Willis, AmCoal’s manger of health and safety for the AmCoal complex, was 

advised of events, and drove to the mine. He met Durham and Miller at the mouth of the 

Flannigan unit, and Durham told him what had occurred. Tr. 500. Willis traveled to the area to 

observe the conditions. Willis, who had 33 years of mining experience, including several years 

as an examiner, observed areas where there was some loose rock and cracks in ribs. Tr. 504, 

516. However, he believed that they were typical of conditions that could be found virtually any 

time in a large coal mine, and whether they “were unwarrantable or not” was a “subjective” 

 17 The description of how the inspection proceeded is based largely on Durham’s 

testimony, and Miller’s notes. Durham appeared to have had a fair recollection of the events, 

and described pertinent details, although she was uncertain of the specific location of some 

conditions. Any notes she may have taken were lost, and she had not prepared an “order report,” 

which was AmCoal’s practice at the time. Tr. 553-54. As a safety specialist in training, who had 

been assigned to that portal for only a few days, the inspection would have been a significant 

event for her. Tr. 550-52. Miller, on the other hand, had virtually no recollection of the details 

of the inspection, or of his visit to the mine the previous day. Tr. 160-61, 214, 262. His 

testimony was based on his field notes, and his interpretation of what they “evidently” or 

“probably” meant. Tr. 256-58, 262, 288, 290. He observed that the events occurred “five years 

ago,” and could confirm that Odum was present at the mine, as his notes reflected, but could not 

recall whether Odum accompanied him. Tr. 217-18, 262. 

36 FMSHRC Page 1325
determination - “a judgment call.” Tr. 504-05, 517. Assuming they could be classified as 

violations, he did not feel that they “in any way” could be attributable to an unwarrantable 

failure, and AmCoal’s negligence should have been rated at “no more than moderate.” Tr. 500. 

 As with the previous order, AmCoal does not argue that the cited conditions did not 

establish a violation of the standard. The conditions noted in Miller’s order were, in his opinion, 

violations of the standard, i.e., a reasonably prudent person, familiar with the mining industry 

and the protective purpose of the standard, would have recognized the inadequacy of the 

particular roof and rib support in the areas cited. Canon Coal, Co., 9 FMSHRC 667, 668 (April 

1987) (cited in Harlan Cumberland Coal Co., 20 FMSHRC 1275, 1277 (Dec. 1998)). 

 As noted above, Willis confirmed, upon inquiry by the judge, that there were areas of the 

roof where there was “some loose rock” and there were “some cracked ribs.” Tr. 504, 516-17. 

Durham, too, opined that there were some conditions that needed attention. Initially, a rib 

appeared to be loose and was flagged for further attention. Similarly, other areas that could not 

be scaled successfully and needed “extra attention,” were flagged. As to the roof conditions, she 

identified an area one row of bolts into a crosscut, and an area where there was a crack in the 

roof that needed additional support. Tr. 545-46. 

 

 I find that the standard was violated. 

S&S 

 The fact of the violation has been established. The violation contributed to a discrete 

safety hazard, that inadequately supported areas of the roof and/or ribs would fall, possibly 

injuring any miners who happened to be in the area. While some falls might not result in serious 

injury, e.g., minor sloughing of a rib, the more serious conditions, large pieces of loose rib and 

any significantly sized loose rock in the roof, would inflict a serious injury. Consequently, 

whether the violation was S&S turns on whether it was reasonably likely that the hazard would 

result in an injury. 

 

 Miller opined that a serious injury was “very highly likely” because of the number of 

hazardous conditions in the travelway, and the fact that virtually all of the miners, working on 

three shifts, traveled through the area on their way into and out of the mine. Tr. 162-68, 276. 

While miners generally traveled on mobile equipment for the lengthy ride, not all of the 

transports had canopies, e.g., some rode in open golf carts. Tr. 169. 

 The Secretary also notes that the travelway served as the primary escapeway. Miners 

were required to participate in escape drills every 90 days, and may have been required to use the 

escapeway in the event of an emergency. Tr. 163, 166. However, there was no evidence 

establishing that evacuation drills occurred, or would have occurred, while the conditions 

existed. The Secretary does not contend, and offered no evidence to establish, that an emergency 

evacuation of the mine was likely to occur while the violative conditions existed. The subject 

roof control standard under which the order was entered does not apply only, or even primarily, 

36 FMSHRC Page 1326
in emergency situations. Consequently, while the possibility of increased exposure of miners in 

the event of an emergency could be a legitimate consideration in the S&S analysis, there is no 

basis for doing so here, and the existence of an emergency will not be assumed. See 

Consolidation Coal Co., 35 FMSHRC 2326, 2333 (Aug. 2013) (discussing Cumberland Coal, 

supra). 

 AmCoal makes much of the fact that, in his notes, Miller placed substantial emphasis for 

his conclusion that a fatal injury to two miners was highly likely on the presence of two miners 

working “directly under” a “Big Rock” at the “#6 x-cut.” Tr. 162, 165, 279-84; Ex. S-8 at 13-14. 

AmCoal’s point is well taken. That condition was not one of the violative conditions cited in 

Order No. 6668524. Rather it was the subject of a separate violation, Citation No. 6668522, that 

was issued by Miller shortly before he issued the subject order. Ex. S-8 at 4-5. It is not clear 

whether, or to what extent, miners would have worked in the area of the cited conditions, i.e., 

crosscuts 7-25, as opposed to simply passing through it. Also unclear is how often miners 

traveled on foot or in equipment that did not have a canopy. There is also much uncertainty on 

the precise nature of the hazards presented by the various conditions, because Miller was unable 

to recall details of the cited roof and rib conditions.18 He made no sketch depicting the locations 

of the various conditions, and could not recall whether roof conditions were located near the 

center of the entry where miners normally traveled, or near the rib where miners seldom traveled 

and injury would be unlikely. Tr. 255, 259-60. There is even some question as to whether some 

of the conditions were located in the travelway or in adjacent crosscuts. 

 Nevertheless, Miller believed that the conditions were located in the travelway and 

presented hazards to persons using the travelway. He had cited the travelway, not the crosscuts, 

and believed that the references to crosscuts in his notes were to locate the conditions along the 

travelway. Tr. 264. I accept his reasonable interpretation of his notes, and find that the 

conditions referenced in the order and his notes were located in the travelway and that at least 

 18 Durham testified that, as Odum was pointing out conditions, Miller made gestures and 

comments indicating that he was not in agreement with Odum’s determinations. Tr. 543-44. 

Miller stated that he did not recall disagreeing with Odum or apologizing for the fact that the 

conditions were being cited. Tr. 217-18. Durham could not recall Miller’s exact words, and any 

notes she made of the event were lost in an office move related to the closing of a portal. At the 

time, she was still in training and did not prepare an “order report,” as Smith had done for 

citations issued by Miller on November 6. Tr. 553-54. Miller’s lack of recollection suggests a 

ring of truth to Durham’s testimony. While the events had occurred years earlier, and Miller’s 

recollection of them was extremely limited, disagreeing with or being critical of a supervisor 

during an inspection would be a particularly noteworthy occurrence, and it would seem that he 

would have had a relatively certain recollection that it either did, or did not, take place. 

Durham’s rendition of events would also be consistent with the fact that Odum was identifying a 

number of conditions in an area that Miller had traveled less than 24 hours earlier without citing 

any hazardous conditions. 

36 FMSHRC Page 1327
some posed a hazard to persons using the travelway.19 The travelway was typically 18-20 feet 

wide. Miners traveling in mobile equipment would tend to travel near the center of the entry, but 

would have occasion to move closer to the ribs, e.g., when passing another piece of equipment, 

or maneuvering around debris or other obstructions. Sloughing of smaller pieces of coal from 

the ribs would not pose a reasonable likelihood of injury. However, falls of large sections of rib, 

some of which were described in Miller’s notes, could inflict serious injuries on miners. Pieces 

of draw rock, of any appreciable size, falling from the roof, could also inflict serious injuries to 

miners riding in open vehicles, or on foot. 

 The “operative time frame for determining if a reasonable likelihood of injury exists 

includes both the time that a violative condition existed prior to the citation and the time that it 

would have existed if normal mining operations had continued.” Bellefonte Lime Co., 

20 FMSHRC 1250, 1255 (Nov. 1998) (quoting Rushton Mining Co., 11 FMSHRC 1432, 1435 

(Aug. 1989)). As noted in the discussion of unwarrantable failure, infra, there is considerable 

uncertainty as to how long the cited conditions had existed. However, it is likely that they would 

have continued to exist for a significant period of time, had the order not been entered. Mine 

examiners had not identified the conditions as hazardous, despite having undergone special 

training only two weeks prior. Miller noted that rib separations can be difficult to detect, 

depending upon one’s direction of travel. AmCoal’s managers who personally observed the 

conditions did not regard them as particularly problematic. Willis, for example, viewed them as 

“nothing really out of the ordinary” – at “any given time there are going to be cracked ribs, loose 

rock up and down travel ways” and whether or not they’re unwarrantable is a judgment call. 

Tr. 504-05. Durham did not feel that the conditions being pointed out by Odum were hazardous. 

Tr. 543. 

 Despite the uncertainties argued by AmCoal, there were a significant number of 

inadequately supported roof and rib conditions along the travelway, some of which, e.g., the 

large pieces of rib that had separated from coal pillars, could have caused serious injuries to 

miners. The main travelway/escapeway was heavily traveled, and under continued normal 

mining operations, the cited conditions would have continued to exist for a significant period of 

time, i.e., several shifts or longer. With the exception of the large piece of draw rock hanging 

from the roof at crosscut #6, a condition that was not included in this order, the evidence of the 

nature of the violative conditions established that, while a fatal injury might have been possible, 

a far more likely result would be that the violation was reasonably likely to result in a permanent 

injury to one miner.20

 19 Willis, who viewed the conditions shortly after the order was entered, conceded that 

some of them posed hazards. His disagreement was addressed to whether they justified the 

designation of unwarrantable failure. Tr. 504-05, 517. 

20 As noted, infra, Citation No. 6668522, which addressed the condition at crosscut #6 

where two miners were working under the hanging rock, was subsequently modified to allege 

that one miner, rather than two, was likely to be injured. 

36 FMSHRC Page 1328
 I find that it was reasonably likely that a reasonably serious injury would have resulted 

from the hazard contributed to by the violation and that the condition was S&S. 

 

Unwarrantable Failure - Negligence 

 

 Miller testified that he believed that AmCoal’s negligence was high, and rose to the level 

of unwarrantable failure because of the number of roof/rib control deficiencies, they had existed 

for “quite some time,” and that they were “extensive and obvious.” Tr. 166, 169. Moreover, the 

conditions were allowed to exist, despite the fact that there had been prior discussions with 

management about the number of roof/rib control violations in quarterly close-out meetings and 

in informal close-out meetings after such violations had been issued. Tr. 167-69. 

The extent of the violation 

 The cited conditions existed over a relatively large area, from crosscut #7 to crosscut #25, 

a distance of approximately 2,700 feet. Violative roof conditions were identified at seven 

locations and violative rib conditions were identified at at least five locations, although there is 

no information as to the conditions at two of those locations. Ex. S-8. However, some of the 

conditions may not have been in violation of the standard, and the extent of the conditions at 

each of the referenced areas was not great. Miller was unable to describe the conditions 

referenced in the order, beyond the information recorded in his notes. For example, the 

condition at the #7 crosscut was described in Miller’s notes as “not adequately supported along 

the south side of travelway. Broken up roof and loose roof bolts are present in x-cut and in the 

intersection.” Ex. S-8 at 7. Miller was unable to state how many bolts were involved, the 

condition of the bolts, how many were in the crosscut as opposed to in the travelway, or where 

they were located, e.g., along the rib or more toward the center where persons were more likely 

to travel. Tr. 255-60. He was also unable to recall details of other conditions noted in the order 

and his notes. Durham shed limited light on the conditions, noting that one of the areas where 

bolts were referenced involved one bolt in a row of bolts in a crosscut. Tr. 545. In another area, 

screen had been put up to catch pieces of draw rock, but, additional support was requested 

because there was a crack in the roof. Tr. 545-46. 

 The fact that the conditions were in an area that extended 18 crosscuts justifies a finding 

that they were extensive. However, the evidence does not support a finding that the individual 

conditions referenced in the order affected significant areas, such that the extensiveness factor 

does not weigh heavily in favor of a finding of unwarrantability. 

Length of time conditions existed 

 Miller provided several estimates of the length of time that the conditions existed. He 

recorded in his notes that the length of time that the conditions existed was “unknown.” Tr. 235; 

Ex. S-8 at 8. Several times he expressed his opinion that the conditions existed for “more than 

one shift” or “several shifts.” Tr. 166-67, 211, 239; Ex. R-50. After noting that the order was 

36 FMSHRC Page 1329
not abated until November 13, he opined that since it took 5 days to abate the conditions, “I’m 

going to say it took five days or better for the conditions to arise.”21 Tr. 240. He also opined that 

the conditions existed from 5 to 35 shifts, i.e., up to 12 days. Tr. 167. While he stated that there 

is “usually some evidence” indicating how long a condition existed, he did not identify any such 

evidence. Tr. 240. The asserted basis for Miller’s various estimates of the length of time that the 

conditions had existed was “just my experience,” a reference to his 31 years of mining 

experience, including serving as a roof control specialist and 15 years of inspecting the Galatia 

mine. Tr. 211, 240-41. 

 The Secretary argues that the opinion of an experienced inspector is entitled to substantial 

weight, citing Harlan Cumberland Coal Co., 20 FMSHRC 1275, 1278-79 (Dec. 1998) and Buck 

Creek Coal, Inc., 52 F.3d 133, 135-36 (7th Cir. 1995). It is well-settled that, under the Act, a 

seasoned inspector’s judgment is an “important element” in an S&S determination. The same 

may be true for other opinions offered by experienced inspectors. However, estimating how long 

a particular condition has existed, based solely on the present appearance of the condition, strikes 

me as a complex and somewhat speculative undertaking, that calls for a close examination of 

factors affecting the reliability of such testimony. 

 Certainly, Miller’s 31 years of mining experience and familiarity with the Galatia mine 

lends some degree of reliability to such an estimate. However, the bare assertion of years of 

experience, without identification of the particular aspects of that experience that aided the 

formulation of the opinion, or an explanation of how they informed the specific judgment, can 

significantly undercut the reliability and probative value of such testimony. Here, however, 

Miller’s various estimates of the length of time that the conditions existed, with one notable 

exception, were not based upon his observations and evaluations of the conditions. 

 21 I do not credit Miller’s “five-day” estimate. Miller did not explain the basis of his 

assumed relationship between the length of time taken for abatement efforts and the length of 

time that the conditions would have existed. Willis and Durham estimated that abatement of the 

conditions should have taken no more than two shifts. Tr. 518, 549. Miller testified that he was 

in the mine daily and was told that AmCoal was working on it “around the clock.” Tr. 231-32. 

However, as previously noted, Miller’s recollection of the inspection was virtually non-existent. 

I find it highly unlikely that Miller, who could not remember whether Odum accompanied him 

on the inspection even with the assistance of his field notes, could recall being at the mine and 

comments about the progress of abatement efforts on 5 consecutive days, without the benefit of 

any notes. The 5-day period included a weekend and a federal holiday, and it is doubtful that 

abatement efforts actually consumed 5 days. Durham had scaled some of the conditions and, in 

anticipation of the order, AmCoal had moved a roof bolter and a scoop to the cited area to 

facilitate the abatement. Tr. 548. I find that Willis’ and Durham’s “two shift” abatement time 

estimate was a substantially more credible measure of the actual time it took to abate the 

conditions, especially considering that some of the initial effort had to be devoted to 

rehabilitation of an alternate travelway/escapeway around the area closed by the order. 

36 FMSHRC Page 1330
 As previously noted, Miller had virtually no recollection of the inspection. For example, 

he observed at one point that he had no recollection of a particular condition; “That’s five years 

ago. I don’t recall that. Just what I read from my notes.” Tr. 262. As reflected in his notes, his 

opinion, recorded shortly after observing the conditions, was that the length of time that they had 

existed was “unknown.” Ex. S-8. Three days later, when he filled out a form recommending 

that the violation be specially assessed, he wrote that the conditions existed “for several shifts.” 

Ex. R-50.22 

 As candidly reflected in his notes, Miller was unable to ascertain how long the conditions 

had existed. There is no indication that he obtained any other information that would have given 

him a basis for estimating that length of time. He conceded that roof and rib strata can separate 

at any time. Tr. 240. The more probable basis for his estimate that the conditions had existed for 

more than one shift, or several shifts, was that “it would be kind of unique or unusual to have a 

separation of strata in that many locations along that travel way in a half mile.” Tr. 240. 

 That would appear to be a reasonable conclusion. However, it does little to fix a time 

when the conditions came into existence, or when, or even if, they became hazardous conditions 

so as to be in violation of the standard. Some conditions, e.g., separation of large slabs of rib, or 

a crack in the roof, could have come about immediately before Odum and Miller saw them. 

They may also have occurred sometime prior to that, or have been the result of a slow movement 

of strata that gradually became more noticeable. Conditions like loose roof bolts, could have 

occurred over a considerable period of time. Miller concluded they were “probably” hanging 

from the roof because the immediate mine roof had sloughed away. Tr. 258-59. Such 

conditions are not unusual in entries that were mined years earlier, and do not necessarily present 

hazardous conditions.23 It is the condition of the remaining immediate roof that generally may 

present a hazard, i.e., if it is broken and pieces of draw rock are likely to fall from it. Miller 

described some of the conditions as “broken roof.” Ex. S-8. However, there is no indication of 

when the roof had become broken, such that it presented a hazard. 

 22 The Secretary’s objections to discovery and introduction into evidence of Special 

Assessment Review (SAR) forms were overruled. Those objections, on grounds of relevance 

and deliberative process privilege, were renewed in the Secretary’s post-hearing briefs. Sec’y. 

Reply Br. at 2-4. The discoverability of SAR forms has been the subject of considerable, and in 

the opinion of the undersigned unproductive, litigation effort, with varying outcomes. See, e.g., 

Big Ridge, Inc., 34 FMSHRC 2999 (Nov. 2012) (Order Denying Respondent’s Motion to 

Compel). I decline the Secretary’s invitation to revisit the issue. In any event, the Secretary’s 

arguments are inapplicable to the subject phrase. 

23 If the bolts were fully grouted, support for the main mine roof may not have been 

compromised by the fact that the plates were no longer in contact with the immediate mine roof. 

See Oak Grove Resources, LLC, 35 FMSHRC 3039, 3046-49 (Sept. 2013) (ALJ). 

36 FMSHRC Page 1331
 Some of the conditions most likely existed for more than one shift, or several shifts, and 

I so find. However, there is no reliable evidence that the more serious conditions, such as the 

large pieces that had separated from the ribs, had existed for any appreciable length of time prior 

to issuance of the order, i.e., longer than one shift. This factor does not weigh heavily in favor of 

a finding of unwarrantability. 

Operator placed on notice that greater efforts were necessary for compliance 

 The Secretary argues that AmCoal was put on notice that greater efforts were necessary 

for compliance with the standard by a high number of violations of the standard in the preceding 

months and by specific discussions of past violations with MSHA inspectors. An Assessed 

Violation History Report for the mine listing violations of section 75.202(a) issued within the 

24-month period preceding issuance of the subject order established that 134 citations or orders 

for violations of the standard had been issued. Ex. S-1. Miller testified that violations of the 

standard were discussed with AmCoal officials at quarterly close-out conferences and, 

frequently, when such violations were issued. Tr. 167-69. MSHA had an “ongoing dialog” with 

AmCoal about such violations. Tr. 168. AmCoal counters that the Secretary did not establish 

that there was a history of roof control violations in the Flannagan Headgate travelway, and that 

there was no attempt to prove that the numbers of violations were excessive compared to 

comparable mines. 

 AmCoal’s arguments are unavailing. It is well established that repeated similar 

violations may serve to put an operator on notice that greater efforts are necessary for 

compliance, and that such violations need not be in the same area of the mine. IO Coal Co., 31 

FMSHRC 1346, 1353-54 (Dec. 2009). Past discussions about a problem also can put an operator 

on heightened scrutiny that it must increase its efforts to comply with a standard. Id. at 1353. 

AmCoal did not introduce evidence challenging Miller’s description of an ongoing dialog about 

compliance with the standard. 

 I find that AmCoal had been put on notice that greater efforts were necessary to comply 

with the standard.24

 24 This is not to say that AmCoal’s arguments are totally without merit. The Galatia 

Mine was an extremely large mine, comprised of three portals. In order to complete required 

quarterly inspections MSHA inspectors were in the mine virtually every day. It is not surprising 

that, from a raw numbers standpoint, a large number of violations were issued. The Secretary’s 

history of violations report appears to indicate that AmCoal was not regarded as having an 

“excess history” as of the time that the violations were issued. If the Secretary’s case on notice 

rested solely upon past violations, the absence of qualitative violation history information may 

have affected the finding on this factor. However, the unrebutted evidence of past discussions of 

roof/rib control violations justifies the notice finding. 

36 FMSHRC Page 1332
Efforts to abate the conditions 

 The focus of the abatement effort factor is on compliance efforts made prior to the 

issuance of a violation, generally a measure of an operator’s response to violative conditions that 

were known or should have been known to it. Here there is no evidence that AmCoal made any 

effort to address the cited conditions prior to the issuance of the order. However, it had 

undertaken an unusually ambitious training program in an effort to identify and eliminate 

hazardous conditions, such as the roof and rib conditions that were the subject of the order. 

 In response to increased emphasis by MSHA on assuring effective preshift, on-shift and 

other examinations, AmCoal requested MSHA’s assistance in providing additional training to its 

examiners. Tr. 210, 488-89. The result was a collaborative training program, involving 

instructors from MSHA’s training academy at Beckley,West Virginia. Training was conducted 

at AmCoal’s facilities on October 23 and 24, 2007, for examiners, safety and management 

personnel, and was designed to enhance the ability of responsible personnel to identify hazardous 

and potentially hazardous conditions. Tr. 210; Ex. R-24, R-25. Miller believed that that had been 

the first time that MSHA had been involved in a joint training effort with an operator, and 

conceded that, prior to issuance of the order, AmCoal had made an effort to inform its miners 

and do a better job of identifying and eliminating hazards. Tr. 205-06, 210. 

 While not directed at the specific conditions cited in the order, AmCoal’s efforts to 

address such conditions is a factor that should be taken into account in the unwarrantable failure 

analysis, and weighs slightly against such a finding. 

Obviousness of conditions 

 As noted above, Miller testified that the conditions were obvious. AmCoal attempted to 

impeach Miller’s testimony by establishing that he had traveled through the cited areas only the 

day before, on November 6, 2007, and had not noted any of the conditions he described as 

“extensive and obvious.” Miller was shown copies of his field notes from that day, which 

confirmed that he had been in the mine and had traveled to the longwall panel headgate to assess 

the roof fall. Tr. 213-14; Ex. R-70. However, he did not recall, and could not confirm from his 

notes, the route that he had traveled, noting that the area could also have been approached from 

the tailgate travelway. Tr. 288-90, 295-96. He also did not recall what type of vehicle he had 

ridden in that day, but assumed that it probably had a canopy that precluded viewing the mine 

roof and allowed only passing observation of ribs. Tr. 214-16. He also offered that he may have 

been talking to his escort, or writing notes, such that he did not observe the conditions.25 Tr. 

291. 

 25 Miller explained that gaps in ribs might be very difficult to see when traveling in one 

direction. Tr. 292. However, he would most likely have traveled both directions in entering and 

leaving the mine. 

36 FMSHRC Page 1333
 Michael Smith, an AmCoal safety inspector, had traveled with Miller on November 6. In 

the course of that visit, Miller issued two citations to AmCoal and served them on Smith. Tr. 

564-66; Ex. R-68, R-69. It was AmCoal’s practice at the time to have its safety personnel write 

an “order report,” memorializing the issuance of orders and S&S violations. Tr. 577-78. The 

reports were entered into AmCoal’s computer system. Tr. 578. Smith reviewed the citations and 

the order report that he had prepared, which refreshed his recollection of the November 6 events. 

Tr. 566. He testified that he and Miller traveled the main intake travelway/escapeway to the 

headgate area, i.e., the same route that the inspection party traveled on November 7.26 Tr. 567-

73; Ex. R-6. 

 

 Smith also testified that he and Miller traveled in PV-79, a four-seat personal vehicle, 

which was the only one that the safety department had available in that area. Tr. 568. It had a 

canopy, but, also had a large windshield, that allowed examination of the mine roof, which safety 

personnel were trained to do. Tr. 580. He had ridden in PV-79 numerous times and testified that 

his view of the roof and ribs was not significantly impeded - “the rides are all open, you’ve got a 

big windshield in front of you, it’s almost like driving in a car. You do have something 

overhead, but you can see out in front of you.” Tr. 582. While traveling to the headgate, they 

stopped to abate a couple of citations, but did not observe any adverse roof or rib conditions, and 

Miller did not issue any citations for such conditions, either while traveling into or out of the 

mine. Tr. 214-15, 573, 581; Ex. R-70. 

 Miller’s attempts to downplay the significance of his November 6 travel in the mine were 

unconvincing. His destination was the headgate area of the longwall panel, and the most direct 

and logical route of travel would have been to proceed through the main travelway/escapeway. 

Smith testified, credibly, that that was the route that he and Miller traveled on November 6, and I 

so find. It is also apparent that the canopy on the PV did not preclude viewing of the roof and 

ribs, and provided adequate opportunity to observe the condition of the ribs. The November 7 

inspection party also traveled in a 4-seat PV that had a canopy, and Odum was able to identify 

several adverse rib and roof conditions prior to the parking of the PV and the party proceeding 

 26 Smith confirmed that the area could have been approached from the tailgate 

travelway, but explained that it would not have “made a lot of sense” to do so. Tr. 573. The 

tailgate entries had to be “cribbed up” so that the adjacent longwall panel could be mined. That 

process had begun, and cribs would have precluded vehicular travel closer than 7-8 crosscuts 

away from the set-up entries. Tr. 572. Persons approaching the headgate from that direction 

would have had to walk to the set-up entries, then walk all the way across the width of the panel 

to reach the headgate, and walk back to return to the PV. Tr. 572-73. 

36 FMSHRC Page 1334
on foot.27 Tr. 539. As Durham stated with respect to the large piece of draw rock that the party 

observed while traveling in the PV, “we all saw it - no missing it.” Tr. 539. I accept Smith’s 

testimony that the PV afforded a reasonable view of the travelway roof and ribs, and that obvious 

defects should have been observed if they existed. 

 Miller had no recollection of the November 6 events, but he offered that he may have 

been talking to Smith or writing notes. He did not explain how talking to Smith may have 

impaired his ability to observe roof and rib conditions. There was also no explanation of why he 

might not have paid attention to conditions that may have posed a hazard to him, personally. He 

acknowledged that mine roof and rib strata can separate at any time, and it would seem that an 

experienced miner would always be vigilant for such hazards. Tr. 240. 

 As the Secretary argues, the purpose of Miller’s visit on November 6 was to examine the 

area of a roof fall near the headgate. His ride to the area took about 10-15 minutes. He was not 

conducting an inspection of the travel/escapeway, which would have been “much more 

thorough.” Tr. 292. Nevertheless, his failure to note any of the conditions that formed the bases 

of the November 7 order strongly suggests that they were not obvious. AmCoal points out that 

the examiners who conducted the three preshift inspections immediately preceding issuance of 

the order, did not note the conditions. They had received the specialized training on the 

recognition of hazards that was provided by MSHA instructors 2 weeks earlier, and should have 

been able to recognize obvious conditions. Other examiners had noted other hazardous 

conditions in their examination reports. Ex. R-16. The fact that, like Miller, the travelway 

examiners did not identify hazardous conditions, weighs against a finding that the cited 

conditions were obvious. 

 I find that the cited conditions were not obvious, and that this factor does not weigh in 

favor of an unwarrantable finding.28

 27 Durham testified that she “probably” parked the PV around crosscut #9, after which 

the inspection party walked. Tr. 542-43. According to Miller’s notes, a citation was issued for 

fractures and slips in a coal rib between crosscuts 3 and 4, the large piece of draw rock was 

identified at crosscut #6, and broken roof was identified at crosscut #7. Ex. S-8. Those 

deficiencies , as well as the apparently questionable condition that prompted Odum to request 

that the PV be backed-up and parked, would have been observed while riding in the PV. 

28 AmCoal points out that the examiners conducting the preshift examinations rode in 

mobile equipment to inspect the several miles of the travelway, and that there is no requirement 

that examiners walk. Whether examiners ride or walk, however, they are required to conduct the 

examination effectively, i.e., so as to be able to identify any hazardous conditions. The fact that 

the examiners rode, no doubt because of the significant distances involved, would not excuse the 

failure to identify and correct hazardous roof or rib conditions. It does, however, have some 

bearing on the degree of negligence. A conscientious examiner could well fail to observe a 

subtle, or minor problem, e.g., rib sloughage that Durham described scaling down, which would 

not have presented an appreciable hazard to users of the travelway. 

36 FMSHRC Page 1335
Degree of danger to miners 

 As reflected in his notes, Miller’s initial evaluation was that the cited conditions were 

“likely” to result in fatal injuries to two persons, because “miners are working in the entry every 

shift and these hazards are up and down the entry and crosscuts.” Tr. 276; Ex. S-8 at 8. When 

the order was reduced to writing that night, the likelihood of injury was listed as “highly likely,” 

the same determination that was made on the companion preshift order, Order No. 6668526. 

Ex. S-6, S-7. The highly likely determination for Order No. 6668526 was based, to a significant 

degree, on the fact that two miners were working under the large piece of draw rock that was 

hanging down from the mine roof at crosscut #6. Ex. S-8 at 14. That condition was the subject 

of Citation No. 6668522, a separate violation, for which a penalty was assessed and paid. 

Ex. S-8 at 4; Ex. S-1.29 Whether or not it could properly be considered in evaluating the gravity 

of the preshift order, it would not be appropriate to consider the condition cited in Citation No. 

6668522 in evaluating the gravity of Order No. 6668524 because it was not among the 

conditions underlying that order. 

 Miners on the working crews used the travelway to enter and leave the mine, and there 

were three shifts per day. Examiners, maintenance, supply, and other persons also used the 

travelway. Generally, persons using the travelway, including examiners, rode in mobile 

equipment. Tr. 164. Some pieces of mobile equipment did not have canopies, but there is no 

evidence as to the numbers of canopied versus open rides. Tr. 164. There were two miners 

working near crosscut #6, and Miller noted that “miners are working in the entry every shift.” 

Ex. S-8 at 5, 8. The basis for the latter statement was not explained, nor was it explained what 

such miners might be doing in the entry. 

 As noted in the S&S discussion, there is considerable uncertainty as to the precise nature 

of the hazards presented by the cited conditions. Miller was unable to recall the details of the 

roof conditions, including whether they were located near the center of the entry, where persons 

were likely to travel, or along the sides. The indications of locations, where available, indicate 

that they were more to the side, where they would present less of a hazard. The rib conditions 

included two significantly large pieces that posed a hazard to miners who might be working or 

traveling near the rib, most likely a rare occurrence. 

 In light of the uncertainties as to the nature and locations of the conditions, I find that the 

violative conditions did not pose a high degree of danger to miners. 

 

 29 On June 9, 2009, an order was entered approving a proposed settlement of Citation 

No. 6668522, which included a modification to reduce the number of persons affected to one, 

and a reduction in the assessed penalty from $$1,944 to $1,796. The American Coal Co., Docket 

No. LAKE 2008-120 (unpublished Order Approving Partial Settlement) (ALJ). 

36 FMSHRC Page 1336
Operator’s knowledge of conditions 

 Miller had recorded in his notes that it was “unknown who knew” about the violative 

conditions. Ex. S-8 at 8. He could not identify a person at the mine who had knowledge of the 

conditions, other than persons who would have traveled through the area. Tr. 234. The 

Secretary attributes knowledge to AmCoal through management officials, e.g., foremen, who 

used the travelway, and preshift examiners, who act as agents of the operator in performing those 

duties. Rochester & Pittsburgh Coal Co., 13 FMSHRC 189,194-96 (Feb. 1991). However, it 

was not established that the more serious violative conditions existed when preshift examiners 

conducted their examinations, and it is unclear when other management officials would have 

traveled the area other than that foremen would likely have done so at the beginning and end of 

each shift.30 Other conditions, e.g., sloughage of immediate mine roof from around roof bolt 

plates, were undoubtedly known to AmCoal, but, depending upon their location and whether the 

roof was broken to any significant degree, may not have been hazardous when observed by 

preshift examiners. 

 The order was issued at 7:00 p.m., approximately 5 hours after the most recent preshift 

examination had been conducted. While there is considerable uncertainty as to how long the 

conditions existed, I find that the majority of them existed prior to the commencement of the 

preshift examination, but that some of them had not developed to the point of being hazardous at 

that time. Consequently, AmCoal had constructive knowledge of at least some of the hazardous 

conditions, but that knowledge was significantly mitigated by Miller’s failure to identify any of 

the conditions when he traveled through the area the day before. 

Conclusion 

 AmCoal had been put on notice that greater efforts were required to comply with the roof 

and rib control standard. The conditions were somewhat extensive and most of them had existed 

for at least one shift. AmCoal should have had knowledge of the conditions, but, that factor is 

partially off-set by the fact that the conditions were not obvious. The conditions did not present 

a high degree of danger to miners, and AmCoal had taken some steps to address potentially 

hazardous conditions that could be discovered during examinations. 

 Considering all of these factors, I find that the violation was not the result of AmCoal’s 

unwarrantable failure. Rather, its negligence was moderate. 

 30 The most recent preshift examination of the travelway had been conducted between 

1:00 and 4:00 p.m. If the report form is indicative of how the examination was conducted, the 

travelway would have been examined early in the 1-4 p.m. window, approximately 5 hours 

before the order was entered. 

36 FMSHRC Page 1337
Order No. 6668526

 Order No. 6668526 was issued at 11:59 p.m. on November 7, 2007, 5 hours after Order 

No. 6668524 was issued, and alleges a violation of 30 C.F.R. § 75.360(b)(1), or, in the 

alternative, section 75.360(g).31 Section 75.360(b)(1) requires that persons conducting required 

preshift examinations “examine for hazardous conditions” in “[r]oadways, travelways and track 

haulageways where persons are scheduled, prior to the beginning of the preshift examination, to 

work or travel during the oncoming shift.” Section 75.360(g) requires that examination records 

be retained. The violation was described in the “Condition and Practice” section of the order as 

follows: 

An inadequate pre-shift examination for hazardous conditions was conducted 

along the 1st West Flannigan Longwall Primary Intake Escapeway on the 12:00 

PM to 4:00 PM shift on November 7, 2007, in that the hazardous conditions listed 

in Mine Citation Number 6668524, were neither posted with a conspicuous 

danger sign nor recorded in a book maintained for that purpose. The hazardous 

conditions are extensive and readily visible to a mine examiner traveling this 

entry. 

Ex. S-7. 

 Miller determined that it was highly likely that the violation would result in a fatal injury, 

that the violation was S&S, that two persons were affected, that the operator’s negligence was 

high, and that the violation was the result of AmCoal’s unwarrantable failure to comply with the 

standard. The violation was assessed as flagrant, and a civil penalty, in the amount of $161,800 

was assessed. 

The Violation 

 The Secretary’s motion to amend the order to allege, alternatively, a violation of section 

75.360(g) was prompted by AmCoal’s reaction to Miller’s confirmation that he had no evidence 

that the preshift examinations were not conducted and that the violation was based on the 

examiners’ failure to identify and record the hazardous conditions cited in Order No. 6668524. 

AmCoal contended that those facts, if proven, did not state a violation of section 75.360(b). 

Tr. 225-27. However, the Commission has consistently held that “section 75.360(b) essentially 

requires a preshift examiner to find and record a hazardous condition in a preshift examination 

book.” Cumberland Coal Res., LP, 32 FMSHRC 442, 446 (May 2010); Eagle Energy, Inc., 

23 FMSHRC 1107, 1118 (Oct. 2001); Enlow Fork Mining Co., 19 FMSHRC 5, 14-16 (Jan. 

1997). Consequently, the failure of a preshift examiner to identify and record a hazardous 

 31 During cross-examination of Inspector Miller, the Secretary’s motion to amend the 

order to charge a violation of section 75.360(b)(1), or in the alternative, section 75.360(g), was 

granted. Tr. 230. 

36 FMSHRC Page 1338
condition that has been proven to have existed when the examination was made, constitutes a 

violation of section 75.360(b), and the order properly charged a violation of that section. 

 Order No. 6668524 was issued at 7:00 p.m. When Miller exited the mine, he again 

reviewed the preshift examination books. Miller confirmed that notations at appropriate 

locations along the travelway evidenced that preshift examinations had been conducted, and that 

the results had been recorded in the examination book. Tr. 221-22. However, no hazardous 

conditions were reported for the examination that had been conducted prior to the start of the 

second shift or for the previous two examinations. Tr. 223-24; Ex. R-16. He then issued Order 

No. 6668526 before leaving the mine site. 

 As noted in the discussion of Order No. 6668524, there were numerous areas in the 

travelway where the mine roof and ribs were not adequately supported or otherwise controlled 

that presented hazards to miners. Some of those conditions were found to have existed for more 

than one shift, although there was no reliable evidence that the more serious conditions had 

existed for longer than one shift. That order was issued at 7:00 p.m., approximately 5 hours after 

the most recent preshift examination had been conducted. While there is considerable 

uncertainty as to how long the conditions existed, the majority of them existed when the preshift 

examination for the second shift was conducted, and that some of them existed when earlier 

preshift examinations were conducted. Accordingly, they should have been identified and 

reported on the preshift examination book, and the failure to do so was a violation of the 

standard. 

S&S 

 The violation charged in Order No. 6668524 was found to be S&S, in that the hazard 

contributed to by the violation was reasonably likely to result in a permanent injury to one miner. 

The failure to identify and record the hazards in the preshift examination book, perpetuated those 

hazards and resulted in exposure of the miners to the hazards. The violation charged in Order 

No. 6668526 contributed to most of the safety hazards that existed as a result of the violation 

charged in Order No. 6668524.32 Similarly, under continued normal mining conditions, those 

hazards were reasonably likely to result in a permanent injury to one miner. The violation 

charged in Order No. 6668526 was also S&S. 

 32 As noted in the discussion of that order, Miller’s evaluation of the gravity of the 

violation was premised upon consideration of the large piece of draw rock at crosscut #6 that two 

miners were working under. While that condition was not included in the conditions cited in 

Order No. 6668524, it and others cited in the travelway prior to the issuance of the order could 

properly have been considered predicates for the issuance of the preshift order, because the 

examinations would have encompassed the entire travelway. However, the order did not 

reference conditions other than those cited in Order No. 6668524, and there was virtually no 

attention devoted to those conditions during the hearing. Consequently, they will not be 

considered in deciding the issues relevant to Order No. 6668526. 

36 FMSHRC Page 1339
Unwarrantable Failure - Negligence 

 The unwarrantable failure analysis parallels that of Order No. 6668524, with some 

variations because of the nature of the violation. The essence of the preshift violation occurred 

over the course of a few minutes when the examiner failed to identify the hazardous conditions 

cited in Order No. 6668524, the majority of which existed at that time. Those that conducted 

earlier examinations, and failed to identify hazardous conditions that existed at the time, also 

contributed to the violation. The extensiveness and time factors, as discussed with respect to 

Order No. 6668524 are not directly applicable to the preshift violation, and I find that they do not 

weigh heavily in favor of a finding of unwarrantability. 

 The more significant factors in the analysis are those directly related to the degree of 

negligence, or fault, of the preshift examiners, and the gravity of the violation. AmCoal had 

been put on notice of a need for greater efforts to comply with examination and reporting 

standards. Miller testified that there were “countless meetings” on those topics, which at least in 

part prompted the special collaborative training effort two weeks before the order was issued. 

Tr. 205. AmCoal also should have had knowledge of the violation, which is the essence of the 

preshift violation itself. As with Order No. 6668524, the notice and knowledge factors weigh in 

favor of a finding of unwarrantability, and the fact that AmCoal had requested and implemented 

the training program, weighs somewhat against such a finding. The conditions that existed when 

the examinations were conducted were not obvious and, again, there is insufficient reliable 

evidence to establish that they presented a high degree of danger to miners. 

 Considering all of these factors, I find that the violation was not the result of AmCoal’s 

unwarrantable failure to comply with the standard, and that its negligence was moderate to high. 

Order Nos. 6673874 and 6673876 (Docket Nos. LAKE 2008-666 and LAKE 2009-6A) 

 Order No. 6673874 was issued by Miller at 9:25 a.m. on January 24, 2008, pursuant to 

section 104(d)(2) of the Act. It alleges a violation of 30 C.F.R. § 75.400, which requires that 

“[c]oal dust, including float coal dust deposited on rock-dusted surfaces, loose coal, and other 

combustible materials, shall be cleaned up and not be permitted to accumulate in active 

workings, or on diesel-powered and electric equipment therein.” The violation was described in 

the “Condition and Practice” section of the order as follows: 

Float coal dust, a distinct black in color, loose coal, paper, cardboard, wood, and 

plastic were allowed to accumulate under and along the energized Flannigan 

Number 2 Conveyor Belt and adjoining crosscuts. This condition existed from 

the head roller to crosscut number fifty. This area includes the head roller, belt 

drive, and belt take-up. The accumulations measured approximately 6 inches to 

24 inches in depth. The bottom belt and bottom belt rollers were observed turning 

in these accumulations in the drive area as well as the head roller area. There was 

also a broken bottom belt roller throwing metal shavings into these accumulations 

36 FMSHRC Page 1340
in this area. This condition has existed for several shifts and [is] continuing to 

grow as there is fresh spillage on top of some of the areas. These conditions were 

not reported on the examination books. 

Ex. S-18 

 Miller determined that it was highly likely that the violation would result in a fatal injury, 

that the violation was S&S, that 10 persons were affected, that the operator’s negligence was 

high, and that the violation was the result of AmCoal’s unwarrantable failure to comply with the 

standard. The violation was assessed as flagrant, and a civil penalty, in the amount of $188,000 

was assessed. 

The Violation 

 Miller, accompanied by Smith, inspected the belts at the Galatia mine on January 24, 

2008. Coal mined at the longwall was transported out of the mine by several miles of belts. It 

traveled on the longwall belt to the Flannigan #3 belt, to the Flannigan #2 belt, and to the 

Flannigan #1 belt, on its way out of the mine. Crosscuts along the belt entry were spaced 150 

feet apart. Miller started his inspection at the Flannigan #3 belt at crosscut #100. Ex. S-21. 

After checking on abatement of other citations, he found a carbon monoxide (“CO”) monitor that 

was improperly positioned between crosscuts #75 and #76, and issued Citation No. 6673872 for 

that condition. Proceeding outby along the #2 belt, he found a broken bottom roller between 

crosscuts #43 and #44 that was making clanking noises and throwing off metal shavings that 

were falling onto coal accumulations approximately 3 feet below. Tr. 310, 583-85; Ex. S-21. He 

issued Order No. 6673873, pursuant to section 104(d)(2) of the Act, and Smith shut the belt 

down so that the roller could be changed.33 Tr. 583; Ex. S-20. 

 The head drive of the #2 belt, which dumped coal onto the tail of the #1 belt, was located 

around crosscut #42. The head roller of the #2 belt was elevated above the #1 tail, and 

overlapped it by approximately 10-15 feet. Tr. 322-25, 382-89, 585-86; Ex. R-76. There were 

water sprays trained on the dumping point to control dust, which wet the belt and caused material 

to stick to it as it wrapped around the head roller and began its journey back to the tail piece. 

Scrapers were mounted around the head roller to dislodge the material. If a scraper was 

damaged or moved out of position, material could “carry back” along the bottom of the returning 

belt, eventually falling off, e.g., as it contacted a bottom roller. Tr. 304-07, 325-29. Miller 

observed accumulations of spilled coal, ranging from 6-24 inches deep at various locations from 

the head drive of the #2 belt, back inby to crosscut #50, a distance of approximately 1,200 feet. 

Tr. 299-302. Some of the coal was in contact with the belt’s bottom rollers in the head drive 

area, and appeared to be packed. The area around the head drive was covered with a layer of 

black float coal dust. There was also wood and plastic in the area, along the rib and entrances to 

crosscuts. Tr. 589. Wooden crib ties, 6" x 6" and 2.5 feet long, were used when belt splices 

 33 Citation No. 6673872 and Order No. 6673873 are not at issue in this proceeding. 

36 FMSHRC Page 1341
were made. Three or four of them had been placed along the rib. Cardboard boxes for beltsplicing kits were also present, as were some plastic buckets containing sealant for use on 

stoppings. 

 Smith confirmed the observations made by Miller as to the conditions, the presence of 

combustible accumulations consisting of coal, float coal dust, wood, cardboard and plastic. 

AmCoal does not challenge the fact of violation, directing its arguments to the S&S and 

unwarrantable aspects of the order. Resp. Br. at 44-63. I find that the standard was violated. 

S&S – Gravity 

 

 The fact of the violation has been established. The violation contributed to a discrete 

safety hazard, the possibility of an ignition or fire in the belt entry. Fires in underground coal 

mines pose a significant risk of serious injuries. Consequently, whether the violation was S&S 

turns on whether it was reasonably likely that the hazard would result in an injury. 

 In evaluating the reasonable likelihood of an ignition or fire, the Commission considers 

whether a confluence of factors render such an event likely. 

When evaluating the reasonable likelihood of a fire, ignition, or explosion, the 

Commission has examined whether a “confluence of factors” was present based 

on the particular facts surrounding the violation. Texasgulf, Inc. 10 FMSHRC 

498, 501 (April 1988). Some of the factors include the extent of the 

accumulations, possible ignition sources, the presence of methane, and the type of 

equipment in the area. Utah Power & Light Co., 12 FMSHRC 965, 970-71 (May 

1990). 

Enlow Fork Mining Co., 19 FMSHRC 5, 9 (Jan. 1997). 

 Miller believed that the violation was S&S because the accumulations and surrounding 

coal provided fuel for a mine fire, there was plenty of oxygen because of the air flow in the belt 

entry, and the broken roller and belt rollers turning in packed coal presented ignition sources. He 

rated potential injuries as fatal because of the hazards of CO and smoke exposure and that the 

vision of persons trying to evacuate the mine would be obstructed. As to the number of persons 

affected, Miller explained that there had been discussions at MSHA around that time and it had 

been determined that, for violations of the nature of accumulations, that all persons inby would 

be considered affected because they would have to travel back through the area. Tr. 308-09, 352. 

There were multiple units working inby at the time, and Miller listed 10 people as being affected 

because that was the maximum number of persons that the assessment process contemplated at 

the time. Tr. 309, 360. 

 AmCoal challenges the S&S designation, arguing that, because of the water sprays, the 

accumulations were “likely wet to some degree,” that the broken roller was not a viable ignition 

source, and the Secretary did not introduce studies or other evidence that friction produced by the 

36 FMSHRC Page 1342
belt and rollers turning in the accumulations was sufficient to ignite them.34 Resp. Br. at 45-49. 

In its reply brief, AmCoal argues that there is no case that holds that accumulations in contact 

with belts will “necessarily and always amount to an S&S violation.” Resp. Reply Br. at 30. 

Despite AmCoal’s observations, however, belts and/or rollers turning in coal accumulations have 

frequently been recognized as viable ignition sources, and have been acknowledged by operators 

as presenting hazardous conditions. See, e.g., Big Ridge, Inc., 35 FMSHRC 1525, 1528 (June 

2013) (S&S finding affirmed, noting MSHA inspector’s testimony that ignition sources were 

presented by belt sliding in accumulations and rubbing on belt structure; belt examiner 

acknowledged that a belt running in accumulations would constitute a hazard, i.e., an immediate 

danger that can cause a fire); Amax Coal Co., 19 FMSHRC 846, 849 (May 1997) (S&S finding 

affirmed - 15-foot section of belt running on packed dry coal and in loose coal was a potential 

ignition source; shift manager admitted that a belt running in coal is a dangerous condition and 

poses a threat of a fire). Smith agreed that a belt turning in coal accumulations created a 

potential for a fire. Tr. 613. 

 As noted in the discussion of unwarrantability, there are questions as to how long the 

broken roller and the accumulations had existed. However, the belts and rollers turning in 

packed coal presented a viable ignition source and, combined with the other factors identified by 

Miller, posed a reasonable likelihood of a fire and resultant injuries. Consequently, the violation 

was S&S. 

 AmCoal challenges Miller’s gravity assessment, i.e., that the violation was highly likely 

to result in fatal injuries to 10 persons, arguing that any injuries reasonably likely to result should 

be no more serious than lost work days, and that the number of persons affected should be no 

more than two or three. Miller had made the same gravity determinations when he issued the CO 

monitor citation (#6673872) and the broken roller order (#6673873). His reasoning on the 

subject order, and, presumably, those violations, was that smoke or fire would contaminate both 

escapeways, and that all persons inby were considered affected because, in trying to get out, they 

would have to travel back through the area. Tr. 308-09, 352-53. The air flow in the belt entry 

was inby, such that smoke and other products of combustion would flow into the mine. 

However, as Miller acknowledged, and the Secretary stipulated, that ventilation flow was 

coursed into a return, and did not reach the working sections. Tr. 357-59, 522-23; Ex. R-7. 

While the return served as the secondary escapeway, miners evacuating the mine would almost 

certainly use the primary escapeway, which was ventilated with fresh intake air and, as a 

consequence, would be unlikely to become contaminated. Miller was not aware of any 

deficiencies in the escapeways, e.g., problems with lifelines or the availability of SCRS. 

 34 I accept Smith’s description of the location of the broken roller as being 

approximately 3 feet above the accumulations. Unlike a situation where a damaged roller is in 

contact with accumulations, the subject roller did not present a realistic ignition source. Aside 

from the stand being “warm” to the touch, there were no sparks, red-hot bearings or other 

indications that it was generating significant heat. 

36 FMSHRC Page 1343
 The mine’s air courses were separated by stoppings which were designed to contain the 

airflow in the designated entries. Miller had postulated that leakage could occur if stoppings 

were not properly sealed, and the Secretary argues that “there could develop a problem with the 

stoppings in which case smoke would travel from one entry into the escapeways.” Tr. 353; 

Sec’y. Br. at 70. However, Miller acknowledged that he had made no notes of any such 

conditions, and had not issued citations for any of those types of conditions. Tr. 342, 353. 

 The Secretary also argues that the likelihood of an injury producing event was 

exacerbated by the possible presence of methane. Miller testified that the mine liberated over 

three million cubic feet of methane in a 24-hour period and that methane could accumulate 

anywhere at any time. Tr. 341. However, he found no methane near the cited conditions, and 

did not identify any instance where he had ever detected methane in the belt entries at or near the 

cited location. Tr. 341. That is not surprising in that the belt entries were ventilated with intake 

air that had not passed through any areas of active mining. While I accept Miller’s opinion that a 

methane accumulation could occur anywhere in the mine, the possibility of its presence in the 

cited area in sufficient quantity to exacerbate a fire or result in an explosion was highly unlikely 

and too speculative to be considered in the assessment of gravity. Consequently, even if there 

were an ignition, there was no realistic possibility of an explosion that could have suspended the 

float coal dust, possibly resulting in a second explosion that could compromise ventilation 

controls and threaten other areas of the mine. 

 AmCoal also relies on its safety systems in arguing that injuries would not be as severe or 

as numerous as Miller asserted. Conveyor belt systems in coal mines are required to have 

numerous safety features designed to minimize the substantial threat posed by fires. Transfer 

points, such as the subject transfer point from the #2 to the #1 belt, where powerful equipment 

operates, must be equipped with fire suppression systems. CO sensors are placed at intervals 

along the belt lines, to detect the initial stages of combustion and transmit a warning to the 

surface. AmCoal also maintains “fire brigades,” teams of miners specially trained to fight fires, 

available on each shift, to promptly respond to any ignitions. Tr. 602-05. Miller acknowledged 

the presence of these safety features and confirmed that he was not aware of any problems with 

their functionality at the time. The Secretary stipulated that there was no claim that the CO 

monitoring or fire suppression systems were not working properly. Tr. 461-66. 

 While redundant safety systems, such as CO monitors and fire suppression systems, 

cannot defeat a finding that a violation is S&S,35 their presence can be taken into consideration in 

evaluating the number and severity of injuries that may reasonably be expected as a result of a 

violation. Here, AmCoal’s safety systems, all of which were in good working order, could be 

expected to provide effective control of any fire resulting from the accumulations. While there is 

no evidence that anyone other than an examiner was inby in the belt entry or in the return, it is 

not unreasonable to assume that miners could be in those areas, and, in any event, those who 

responded to the ignition would have been exposed to the hazards of a fire. 

 35 See, e.g., Big Ridge, 35 FMSHRC at 1529. 

36 FMSHRC Page 1344
 The Secretary’s position that the violation was highly likely to result in fatal injuries to 

10 persons is highly speculative, and is not supported by the evidence. I find that the violation 

was reasonably likely to result in lost work days injuries to two miners.36

Unwarrantable Failure - Negligence 

 The Secretary argues that the violation was the result of AmCoal’s unwarrantable failure 

because the condition was extensive, had existed for a significant period of time, AmCoal knew 

or should have known of the violation, it posed a high degree of danger to miners, and AmCoal 

had been put on notice of a need for greater efforts to comply with the standard. AmCoal 

disputes most of the Secretary’s arguments, asserting that the conditions had not existed for long, 

it did not, and should not, have had knowledge of them, it had not been placed on notice of a 

need for greater compliance efforts, the conditions did not pose a high degree of danger to 

miners, and it had taken reasonable steps to prevent the conditions from arising and going 

undetected. 

Extensiveness 

 The violative conditions were extensive. The accumulations consisted of loose coal, float 

coal dust, paper, cardboard, wood and plastic. While the wooden crib ties and, possibly, the belt 

splice kit boxes and stopping sealant buckets, were most likely not unlawful accumulations in 

themselves, they added to the combustible load and, in combination with the loose coal and float 

 36 As noted above, the other two violations issued by Miller shortly before the instant 

order had also been evaluated as being highly likely to result in fatal injuries to 10 persons. 

Those violations were subsequently modified. The broken roller order, #6673873, was modified 

to a section 104(a) citation and the gravity determinations were changed; from fatal to lost work 

days and the number of persons affected from 10 to 3, which were “more likely” results “if a fire 

were to occur in the affected area cited.” Ex. R-66, R-67. The negligence was reduced from 

high to moderate because “it could not be determined how long the cited condition had existed.” 

Ex. R-66. The CO monitor citation was also modified to change the type of injury to lost work 

days and the number of persons affected to two. Ex. R-74, R-75. Miller did not participate in 

the modifications. Tr. 396. The Secretary contends that those modifications are not relevant, 

and that statements made during settlement discussions are privileged. Sec’y. Reply Br. at 1-2. 

The modifications are not confidential settlement negotiations. They are changes to the subject 

charges that were agreed to by the Secretary and AmCoal, were included in a document filed in 

the public record of Commission proceedings, and became final orders of the Commission when 

approved by the presiding judges. Similar modifications were made to citations for 

accumulations violations that were introduced as exhibits by the Secretary. Ex. S-92, S-93. I 

find that the modifications, particularly the modifications to the broken roller order, are relevant 

to the assessment of the gravity of the subject order, and support the determination that the 

violation was reasonably likely to result in lost work days injuries to two persons. 

36 FMSHRC Page 1345
coal dust were impermissible accumulations in violation of the standard. The loose coal was 6 to 

24 inches deep, at various locations along the belt from the head roller to crosscut #50, some 

1,200 feet. Abatement of the conditions, i.e., cleaning and rock dusting, consumed over 100 

man-hours. Ex. S-18. AmCoal does not argue that the violative conditions were not extrensive. 

AmCoal had been put on notice of a need for greater compliance efforts. 

 AmCoal’s arguments on notice parallel those made with respect to the roof control 

violation. It points out the broad applicability of the standard and focuses on the very limited 

evidence of similar accumulations violations in the cited area. As with the roof control violation, 

AmCoal’s points about numbers of past violations have merit. However, as noted there, prior 

violations need not be in the same area of the mine, and Miller’s unrebutted testimony that he 

had had repeated discussions with AmCoal managers about accumulations violations is sufficient 

to establish that AmCoal had been put on notice of a need for greater efforts to comply with the 

standard. 

Degree of danger to miners 

 The accumulations did not present a high degree of danger to miners. As noted in the 

discussion of gravity, the Secretary’s position that the violation was highly likely to result in fatal 

injuries to 10 persons was speculative and not supported by the evidence. Rather, the violation 

was reasonably likely to result in lost work days injuries to two miners, most likely those who 

would have been involved in responding to an ignition or fire. Even that potential outcome was 

not compelled. The material in contact with the belt and bottom rollers had been carried back on 

the belt that was wet from sprays at the head roller. While wet coal can dry out when in contact 

with rollers or the belt, if it ignited, it most likely would have smoldered, would have been 

detected by the CO monitoring system, and promptly addressed by the fire brigades. AmCoal’s 

fire brigade personnel were well-trained, and, with one notable exception, there has been a 

remarkable absence of injuries resulting from belt fires in the nation’s coal mines. AmCoal 

refered to an MSHA study on belt fires, referred to as the “Bentley Report,” which found that 

there were no fatalities and no reportable lost time injuries from belt fires in all of the nation’s 

coal mines from 1980 to 2005. Resp. Br. at 64. The belt fire at Aracoma’s Alma #1 Mine on 

January 19, 2006, in which two miners perished, occurred outside the study period. It confirmed 

the serious threat that can be posed by belt fires. However, the conditions that existed at the 

Aracoma mine were unique and bear no resemblance to those at the Galatia mine. See 

Cumberland Coal Res., LP, 31 FMSHRC 137, 149 (Jan. 2009) (ALJ). 

Length of time conditions existed 

 As discussed below, there were three distinct types of coal accumulations in the cited 

area; 1) float coal dust, which had been accumulating for 2-3 days; 2) loose coal at various 

locations in deposits ranging from 6-24 inches in depth, primarily alongside the belt, most of 

which was of relatively recent origin; and 3) dust and fines underneath the belt in contact with 

36 FMSHRC Page 1346
the belt and rollers, that had accumulated over time for two or three shifts. In addition, the 

broken roller existed only for a short time, i.e., an hour or two prior to its being cited. 

Float coal dust 

 Float coal dust was generated at the transfer point where the coal dumped from the #2 

belt head roller onto the #1 belt tail. Sprays helped to control the dust, but did not eliminate it. 

Tr. 328-29. Miller testified that, in his opinion, the accumulations, presumably including the 

dust, had existed for several days or as long as a week. Tr. 303-05. His notes reflect that his 

assessment at the time of the inspection was that they had existed longer than a couple of shifts. 

Ex. S-21. Miller’s opinion was based on his observations of the conditions and his review of 

AmCoal’s reports of examinations. 

 Miller stated in the examination order, Order No. 6673876, and had recorded in his notes, 

that “accumulations” had been listed in the “remarks” section of the preshift reports for the day 

and evening shifts on January 22, but were dropped from the report for the third shift, with no 

corrective action having been noted, leading him to conclude that they had not been addressed.37 

Tr. 314, 371-75; Ex. S-19, S-21 at 13. However, the reports of the preshift examinations 

conducted during the day and evening shifts on January 22 did not note the presence of 

“accumulations.” Tr. 633-34; Ex. R-17. Rather, they reflected notations in the “remarks” 

sections of the reports that the area of the #2 belt from the take-up to the #46 crosscut was 

“getting black,” i.e., that float coal dust was being deposited, which indicated, according to 

Jimmy Wilson, the mine manager at the time, that the area should be checked, and that rock 

dusting was needed or soon would be. Tr. 633-34. Wilson concluded that the fact that there was 

no notation that the area was “black” in the subsequent preshift report indicated that the area had 

probably been rock dusted. Tr. 638-39. Miller testified that the notation that the float coal dust 

was black indicated that there was no rock dust mixed in with it. Tr. 301-02. The Secretary 

argues that there is no direct evidence that rock dusting had occurred, and the fact that the area 

was black is indicative that the area had not been recently rock dusted. 

 The Secretary’s position is reasonable. Miller’s notes reflect that when the order was 

issued, AmCoal officials asked if he would lift the order when the accumulations were cleaned, 

before rock dusting was done. The reason for the request was that “both rock dusters were down 

and they didn’t know when they would come back up.” Ex. S-21. There was no other evidence 

 37 Conditions noted during preshift examinations are recorded in one of two sections on 

the “Preshift Mine Examiner’s Report,” either “violations and other hazardous conditions” or 

“remarks.” Ex. R-17. Conditions that constitute hazards must be addressed, and the corrective 

action taken must be recorded in the examination reports. 30 C.F.R. § 75.360(f). Conditions that 

do not constitute hazards, but should be monitored and/or addressed to prevent them from 

becoming hazards, are noted in the “remarks” section. Tr. 315, 617, 633-34. There is no 

requirement that non-hazardous conditions be reported or addressed, and AmCoal does not 

record actions taken to address non-hazardous conditions. Tr. 612-13, 639. 

36 FMSHRC Page 1347
introduced regarding the rock dusters, which may have been down for some time. While hand 

dusting may have occurred, is doubtful that rock dusting had been done in the recent past, i.e., 

few days. Consequently, I find that float coal dust had begun to accumulate on January 22, and 

had continued to accumulate until the order was issued on January 24. 

Accumulations of loose coal in piles at various locations along the belt 

 Accumulations of loose coal were located at various places from the head roller to 

crosscut #50, and ranged from 6" to 24" deep alongside the belt. Tr. 299-303. Miller had 

recorded in his notes, and in the order, that the condition was “continuing to grow as there is 

fresh spillage on top of some of the areas,” which appears to be a reference to those deposits, 

rather than the float coal dust or the material under the belt. Tr. 344; Ex. S-18, S-21. He was not 

able to ascertain what caused the accumulations. Tr. 326. He agreed that one indication of the 

age of accumulations would be whether they had turned brown or reddish in color, which he had 

not noted with respect to the subject accumulations. Tr. 370. 

 While these accumulations were noteworthy, the real focus of Miller’s concern had to 

have been the material packed under the belt in the area of the take-up, close to the head drive of 

the #2 belt. He had approached the area from inby and had issued a citation for the mispositioned CO monitor between crosscut #75 and #76. According to his notes, the next 

condition of interest was the broken roller between crosscuts # 43 and 44. Ex. S-21. While he 

later included accumulations extending back to crosscut #50 in the order, he apparently did not 

regard them as particularly problematic when he first traveled past them while walking the 900-

1,000 feet from crosscut #50 to the broken roller. 

 Miller was unable to recall any material coming off the belt, but, he had recorded that 

accumulations were continuing to grow and that there was fresh spillage on top of some of the 

areas. The loose coal accumulations resulting from spillage would have been relatively obvious, 

and, with the exception of spillage in close proximity to the transfer point, had not been recorded 

on preshift or on-shift examination reports. I find that the loose coal accumulations alongside the 

belt were of fairly recent origin, and that a significant portion of those deposits had occurred 

within one shift. 

Carry back dust and fines under the belt 

 Miller’s primary concern was fine coal that had become packed under the belt, and was in 

contact with the belt rollers in the take-up area of the #2 belt head drive. The broken roller was 

just inby the take-up. Consequently the #2 belt take-up was within approximately 150 - 200 feet 

of the #2 belt head roller and the #1 belt tail. Smith had recorded in his report on issuance of the 

order, that “rollers were in contact with the material at the inby end of the drive and the #1 

Flannigan tail roller.” Ex. R-37. Miller believed that the material under the belt and around the 

rollers was “carry back” from the head roller that had not been removed by the scraper, and that 

it would normally take “some time,” i.e., several shifts, to get packed like it was. Tr. 303, 325-

28. Miller did not believe that the accumulations packed under the belt had been cleaned 

36 FMSHRC Page 1348
recently, e.g., within a day or two, because he did not see any shovel marks or fresh rock dust. 

Tr. 317. 

 As noted in the discussion of float coal dust, Miller’s reference to “accumulations” 

having been reflected in the preshift reports for January 22, was not accurate. However, there 

had been references to conditions at or near the transfer point, i.e., at the #1 belt tail, and that 

actions had been taken to address them. Most significantly, the report of the preshift 

examination conducted on the previous day, between 5:00 a.m. and 8:00 a.m., reflected that the 

“tail scraper” of the #1 belt was “dirty,” and that Wilson had been informed Tr. 634-37; Ex. R17 at 1856.38 He assigned men to clean the area, and the on-shift report for that shift shows that 

the area was “cleaned.” Tr. 637-38; Ex. R-17 at 1857. Wilson also stated that the report of the 

preshift examination conducted between 1:00 p.m. and 4:00 p.m. on January 23 showed, in the 

remarks section, that the tail of the #1 belt and the head of the #2 belt were getting dirty, and that 

the absence of any such notation on the report for the following preshift examination indicated 

that “it’s been cleaned.” Tr. 639-40; Ex. R-17 at 1858. 

 In addition, the hazardous conditions section of the report for the preshift examination 

conducted between 5:00 a.m. and 8:00 a.m. on January 24, shortly before the order was issued at 

9:20 a.m., reflected that the “tail” of the #1 belt was “dirty,” and that the mine manager had been 

informed. Tr. 623-25; Ex. R-17 at 1862. Wilson testified that he had read and signed the report 

and had assigned men to clean the area. Tr. 623-26. However, the cleaning personnel had to 

wait for transportation until the “hot-seating” working section miners, who had just been relieved 

by the new day shift crew, brought transport vehicles back to the bottom area. Tr. 627-31. As a 

result, they had not arrived at the cited area by the time the order was issued. Wilson got a call 

about the issuance of the order “before the men even made it there.” Tr. 631. 

 Wilson did not think it was unusual that the #1 tail area had been cleaned the day before, 

and was dirty again on January 24. He pointed out that the longwall was producing over 6,000 

tons of coal each shift, all of which traveled on the subject belt, at 600 feet per minute, across the 

transfer point from the #2 head drive to the #1 tail. Tr. 641-44. Miller had essentially agreed, 

stating “[I]t’s mining 101. Any time you transfer coal you’re going to have a little bit of 

spillage.” Tr. 329. 

 AmCoal argues that the examination reports show that the belt transfer point was being 

closely monitored and that accumulations, including coal spillage were being promptly cleaned. 

The Secretary argues that the reports’ references to the #1 tail are not relevant to the conditions 

cited in the order, because the “area at the #1 tail and the #2 head roller are different areas.” 

Sec’y. Br. at 74. Miller also testified that the references to problems at the #1 tail had nothing to 

do with the cited area. Tr. 377-78. The Secretary’s argument is clearly in error, but, Miller’s 

 38 Page numbers for exhibit R-17 refer to the last 4 digits of the numbering system used 

on all of AmCoal’s exhibits. 

36 FMSHRC Page 1349
point has some merit. AmCoal was attending to some of the cited conditions at the transfer 

point, but the fines and dust packed under the belt in the take-up area were not being addressed. 

 There is no question that the #2 belt head and the #1 belt tail are in the same area. 

Miller’s own sketch of the transfer point shows that the #2 head roller sat directly above the #1 

tail piece, and the belts overlapped by 10-15 feet. Ex. R-76. The notations in the reports to the 

#2 belt head and the #1 belt tail being dirty were most likely references to ongoing spillage that 

all appear to agree was an inevitable occurrence at a transfer point where large volumes of coal 

are being dumped from one belt onto another. The reports evidence that AmCoal’s examiners 

were identifying and reporting that condition, and that spills in the area of the #2 belt head and 

#1 belt tail were being promptly addressed. 

 However, the packed fines and dust that Miller was most concerned about were in the 

area of the #2 belt take-up, under the belt and rollers that were, at that point, very close to the 

floor of the mine, i.e., from 8 to 18 inches. Tr. 301. That area was just inby the transfer point, 

and may have extended inby approximately one crosscut, close to where the broken roller was 

located. That material would have been difficult to observe, and I accept Miller’s estimate that it 

had been accumulating for more than a couple of shifts. 

The broken roller 

 Miller testified that, in his opinion, the broken roller had existed for several shifts. 

Tr. 310; Ex. S-21. While the broken roller, itself, was not included in the conditions cited in the 

order, it did figure into Miller’s assessment of gravity, and was one of the conditions upon which 

the inadequate examinations order was based. Consequently, the length of time that the roller 

was broken must be addressed. Miller had spoken to an AmCoal examiner, who informed him 

that he had not seen the broken roller the day before. Tr. 362; Ex. S-21. Miller wondered if the 

belt may have been down when that area was examined, in which case a broken roller may not 

have been found. Tr. 362. The broken roller had not been recorded on any of the on-shift or 

preshift examination reports, including the examination that had been done only hours before the 

order was entered. Ex. R-17. 

 Miller did not explain the rationale for his conclusion that the roller had been broken for 

several shifts, and was no doubt relying on his extensive mining experience. As noted 

previously, the persuasiveness of such opinion evidence is significantly undercut when there is 

no explanation relating particular aspects of such experience to what can be a complex task of 

estimating the length of time that a condition existed. Smith testified that, while some modes of 

roller failure, e.g., bearings going bad, might give some advance notice, there is little or no 

indication that a roller is about to break. Tr. 592-93. Miller confirmed that there was no 

apparent problem with the roller’s bearings. Tr. 364. The broken roller was “clanging around on 

its axle” and was obvious. Tr. 584. While it is possible that the belt was not running when the 

preshift examinations of the area were conducted, that appears unlikely in light of the fact that 

the three previous shifts had each produced 5,000 - 6,000 tons of coal. The fact that the 

examiner had not seen the roller the day before, and that it had not been noted in any of the 

36 FMSHRC Page 1350
examinations strongly suggests that it broke shortly before Miller found it, i.e., after the preshift 

examination had been conducted between 5:00 a.m. and 8:00 a.m. that morning, and I so find. 

 In sum, there were three distinct types of coal accumulations in the cited area; float coal 

dust that had been accumulating for 2-3 days; loose coal in deposits ranging from 6-24 inches in 

depth, most of which was of relatively recent origin; and, dust and fines in contact with the belt 

and rollers that had accumulated over time for several shifts. 

Obviousness - Knowledge of the Conditions 

 The float coal dust was obvious and had been noted on reports of preshift examinations. 

The loose coal was also obvious, but was of relatively recent origin. AmCoal had identified 

loose coal deposits at the transfer point and cleaned them on January 23. It had also identified 

deposits in the same area on January 24, and had taken steps to have them cleaned. Other 

deposits, further inby, had not been identified, but may have been less obvious or not existed 

when examinations had been made. Even on the 24th, Miller had not noted deposits between 

crosscuts #50 and #43 when he first walked the area. The packed fines and dust under the belt 

and bottom rollers in the take-up area were not obvious because the belt was very close to the 

mine floor in that area. Nevertheless, a competent examiner should have discovered them, at 

least by the morning of January 24. 

 This factor weighs in favor of a finding of unwarrantability. 

Efforts to abate the conditions 

 AmCoal had cleaned the area of the #1 belt tail, where the #2 belt head drive was located 

on January 23. That area was reported as “dirty” again on the morning of January 24, and 

Wilson had dispatched a crew to clean it. These efforts were directed at the loose coal spillage in 

the area of the #2 belt drive, but did not include the float coal dust, the loose coal further inby, or 

the material packed under the belt take-up. Whether the January 24 crew would have noticed the 

accumulations packed under the belt and rollers is unknown. However, the broken roller may 

have called attention to that area, and appropriate actions may have been taken. In addition, 

AmCoal had implemented the special, MSHA-assisted, training program for managers, safety 

personnel and others. However, that program had been conducted several months earlier, and is 

of limited significance to this order. 

Conclusion 

 The combination of the accumulations of float coal dust, loose coal, and the carry back 

fines and dust under the belt take-up was extensive. AmCoal had been put on notice that greater 

efforts were required to comply with the standard. The float coal dust had existed for two days, 

the loose coal for one shift, and the carry back material for several shifts. The conditions did not 

present a high degree of danger to miners. AmCoal had taken steps to abate at least a portion of 

36 FMSHRC Page 1351
the conditions prior to issuance of the order, and had undertaken efforts to better comply with the 

standard by providing training on the conduct of examinations. 

 The obvious - knowledge factors are of more significance on the facts of this case. The 

float coal dust was obvious, and AmCoal had knowledge that it existed for 2 days. However, it 

was not, in itself, a hazardous condition. Miller had not cited any inadequacies in rock dust. 

Tr. 336. The loose coal deposits were of more recent origin, and AmCoal had cleaned and taken 

steps to clean loose coal deposits in the area of the transfer point. Such deposits further inby had 

not been noted by Miller has he traveled to the broken roller. The carry back material packed 

under the belt was not obvious, but AmCoal should have had knowledge of it. 

 AmCoal’s examination reports demonstrate that preshift and on-shift examinations of the 

belts were being conducted, as required. There is no evidence of deficiencies in documentation 

of the examinations. Examiners were noting the presence of hazardous accumulations, as well as 

other conditions, and at least the hazardous conditions were being promptly addressed by the 

mine manager. While the more serious condition, the carry back material packed under the belt 

and rollers in the take-up area, should have been discovered and addressed, it was not obvious. 

That failing, in conjunction with the other factors discussed above, does not rise to the level of 

aggravated conduct sufficient for a finding of unwarrantability. I find that AmCoal’s negligence 

with respect to the violation was moderate to high. 

Order No. 6673876

 Order No. 6673876 was issued by Miller at 1:00 p.m. on January 24, 2008, pursuant to 

section 104(d)(2) of the Act. It alleges a violation of 30 C.F.R. § 75.363(b) which requires that a 

record be made of any hazardous condition found during an on-shift examination and the action 

taken to correct it. The violation was described in the “Condition and Practice” section of the 

order as follows: 

The hazardous conditions as reflected by Mine Citation Number 6673873 and 

Mine Citation Number 6673874 were not recorded in the examiners on-shift book 

as required. The broken bottom belt roller and the accumulations have existed 

longer than a couple of shifts. The accumulations were reported on January 22, 

2008 on the day shift and the second shift in the remarks column, but dropped on 

the third shift January 23, 2008. There was no reference to any action taken on 

the conditions listed in the remarks column. 

Ex. S-19 

 Miller determined that it was highly likely that the violation would result in a fatal injury, 

that the violation was S&S, that 10 persons were affected, that the operator’s negligence was 

high, and that the violation was the result of AmCoal’s unwarrantable failure to comply with the 

standard. A civil penalty, in the amount of $60,000 was assessed. 

36 FMSHRC Page 1352
The Violation 

 

 AmCoal’s belts and transfer points were the subject of pre-shift examinations conducted 

during the 3 hours immediately preceding the start of each of three shifts, and on-shift 

examinations conducted during the shifts. Tr. 533; Ex. R-17. The standard, parallels the preshift standard, and requires that hazardous conditions found during an on-shift examination, and 

corrective action taken, be recorded in a book maintained for that purpose. None of the reports 

of on-shift examinations conducted from January 22 through the issuance of the order on January 

24, recorded the broken roller or accumulations as hazardous conditions. Tr. 314-16; Ex. R-17. 

The Secretary argues that the broken roller and accumulations should have been reported, “at a 

minimum, on the third (midnight) shift on January 23, 2008.” Sec’y. Br. at 83. 

 

 In that the order includes a charge that the broken roller was a hazardous condition that 

was not reported before the January 24 inspection, it was not a violation of the standard. As 

noted above, it was found that the roller did not break until after the preshift examination had 

been conducted for the day shift on January 24. Consequently, it did not exist and could not 

have been reported during any on-shift examination prior to its having been cited. In addition, 

there was no hazardous condition reflected in the “remarks” section of the January 22 pre-shift 

reports. Those references were to comments about “the area of the #2 belt from the take-up to 

crosscut #46 “getting black,” i.e., the accumulation of float coal dust which was not regarded as a 

hazardous condition. 

 However, as also noted above, the accumulation of carry back material that was packed 

under the #2 belt take-up and bottom rollers, was a hazardous condition that, while not obvious, 

should have been identified by a competent examiner. Those accumulations grew over time as 

additional material was deposited, but should have been identified and reported at least on the 

third shift on January 23 and the shift, which began at midnight on January 24. Consequently, 

the standard was violated. 

S&S - Gravity 

 

 The failure to identify and correct the violative condition perpetuated it, and subjected 

additional crews of miners to the hazard contributed to by the unlawful accumulations. Just as 

that violation was S&S, the violation of the on-shift examination standard was S&S. It was 

reasonably likely to result in lost work days or restricted duty injuries to two miners. 

Unwarrantable Failure - Negligence 

 While not all of the unwarrantability factors of the accumulations violation apply directly 

to the examination violation, the outcome is the same. Required examinations were being 

conducted and hazardous conditions were being identified and addressed. The failure to identify 

and correct the condition of the carry back material during the immediately preceding on-shift 

examinations did not rise to the level of aggravated conduct sufficient for a finding of 

36 FMSHRC Page 1353
unwarrantability. I find that AmCoal’s negligence with respect to the violation was moderate to 

high. 

The Allegedly Flagrant Violations

 Four of the litigated violations were alleged to have been flagrant, and substantially 

enhanced penalties were imposed. As noted above, on March 28, 2014, the parties filed 

supplemental briefs on the propriety of the flagrant designations. 

 On August 17, 2006, following the Aracoma and Sago Mine disasters, Congress enacted 

the Mine Improvement and New Emergency Response Act of 2006 (“MINER Act”). Among the 

provisions that were generally intended to enhance worker safety, was an amendment to section 

110(b) of the Act that dramatically increased potential civil penalties that could be assessed for a 

new category of violations designated as “flagrant.” Section 110(b)(2) reads: 

 Violations under this section that are deemed to be flagrant may be 

assessed a civil penalty of not more than $220,000 [$242,000]. 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). 

 By most accounts, the statute is a model of ambiguity. See Stillhouse Mining, LLC, 

33 FMSHRC 778, 799-800 (Mar. 2011); Bowie Resources, LLC, 33 FMSHRC 1685, 1696 (July 

2011) (agreeing with Stillhouse finding that statute is ambiguous). More striking, however, is 

that nearly eight years after passage of the statute, much of the ambiguity remains, especially 

with regard to what constitutes a repeated flagrant violation. 

 Under section 8(b) of the Miner Act, the Secretary was required to promulgate rules 

implementing the flagrant provision. Pub. L. No. 109-236, § 8, 120 Stat. 493 (2006). However, 

MSHA’s final rule, simply repeated the language of the statute, providing no further guidance on 

how the rule would be applied. 30 C.F.R. § 100.5(e). MSHA issued a Procedure Instruction 

Letter (“PIL”), No. 106-III-04, effective October 26, 2006, which set forth procedures to 

evaluate flagrant violations. With respect to “repeated failure” flagrant violations, the PIL 

provided the following criteria: 

1. Citation or order is evaluated as significant and substantial 

 2. Injury or illness is evaluated as at least permanently disabling 

 3. Type of action is evaluated as unwarrantable failure, and 

 4. At least two prior “unwarrantable failure” violations of the same 

 safety or health standard have been cited within the past 15 months. 

36 FMSHRC Page 1354
The PIL expired on May 31, 2008, and was later re-issued as PIL No. 108-III-02, which expired 

on March 31, 2010. On April 19, 2011, MSHA issued a press release entitled, “MSHA 

inspectors armed with new online tool to detect flagrant violations.” Release No. 11-568-NAT. 

The press release set forth the same criteria that had been included in the PILs. 

 The sole case to have reached the Commission resulted in resolution of only one narrow 

question, that “the Secretary may permissibly consider an operator’s past violation history in 

determining that a violation should be assessed as a ‘repeated failure’ flagrant violation within 

the meaning of section 110(b)(2) of the Act.” Wolf Run Mining Co., 35 FMSHRC 536, 543 

(Mar. 2013). Six years after the MINER Act became law, the Secretary’s interpretation was still 

evolving. As the Commission noted: [t]he Secretary’s interpretation has changed several times 

during the course of this litigation.” Id. n. 5 at 538-39. The Secretary’s position continues to 

evolve. The flagrant designations in Wolf Run were eventually withdrawn. Wolf Run Mining 

Co., 36 FMSHRC (April 14, 2014) (Decision on Remand Approving Settlement) (ALJ).39

 In Wolf Run the Secretary initially based his interpretation of “repeated failure” flagrant 

violations on the factors specified in the PIL. However, that position was broadened 

considerably, including the proposal and later disavowal of a requirement that past violations be 

“substantially similar” to the allegedly flagrant violation. In these cases, the Secretary has 

conceded that “the Agency has not issued a definitive interpretation of the statutory provision” 

and that “MSHA does not argue that the PIL [a general screening device] is entitled to 

deference.” Sec’y. Br. at 30, n 2. As to the PIL, the Secretary claims that all violations that meet 

the criteria listed in the PIL could constitute flagrant violations, but, that the statutory definition 

“is broader in scope than the class of violations that would be derived from a strict application of 

the PIL.” Id. 

 In Wolf Run, while the Commission held that past violative conduct could be considered 

in determining whether a cited condition represented a “repeated failure” flagrant violation, it 

recognized that “[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),” and did “not resolve which prior violations are 

relevant to the assessment of a ‘repeated failure’ violation.” 35 FMSHRC at 541, 543. 

 As in these cases, the Secretary has typically attempted to prove the past violations 

element of “repeated failure” flagrant violations by introducing a computer printout listing of 

past violations, and copies of citations or orders charging the operator with violations of the 

same, or similar, standards. Those attempts have been uniformly criticized. In Bowie Resources, 

Judge Manning stated: “I believe that the Secretary cannot establish the ‘repeated failure’ 

 39 As noted in Wolf Run, the Secretary also abandoned efforts to sustain flagrant 

allegations in Conshor Mining, LLC. 33 FMSHCR 2917 (Nov. 2011) (ALJ), after a petition for 

interlocutory review was granted by the Commission. 33 FMSHRC at 539-40 n 6. 

36 FMSHRC Page 1355
element in section 110(b)(2) by simply introducing a computer printout showing that there have 

been multiple violations of the cited safety standard at the mine. Such statistics do not establish 

that the mine operator has repeatedly failed to make reasonable efforts to eliminate a known 

violation.”40 33 FMSHRC at 1699. Similarly, Judge McCarthy, in The American Coal Co., 35 

FMSHRC 2208, 2255 (July 2013), opined that reliance on violation history to prove the 

“repeated failure” element “raises a host of proof problems,” and observed that the “Secretary 

has failed to proffer sufficient evidence concerning the nature of the past violations of section 

75.400 to support the repeated flagrant designation for either” of the two violations at issue. Id. 

at 2247-48 n.19, 2255. That failing was not fatal to Secretary’s case, however, because the 

violations were sustained as flagrant on a narrow interpretation of the statute that did not rely on 

past violations. In Blue Diamond Coal Co., 36 FMSHRC 541, 581-82 (Feb. 2014), Judge Paez 

held that the Secretary’s introduction of two section 104(d)(2) S&S orders, 13 section 104(a) 

S&S citations, and the inspector’s vague testimony about the operator’s violation history, did not 

satisfy the Secretary’s burden of proof to establish the predicate previous failure to make 

reasonable efforts to eliminate a previous violation. 

Flagrant means Flagrant 

 As noted in Wolf Run, section 110(b)(2) should be interpreted consistent with the Mine 

Act’s graduated enforcement scheme. 35 FMSHRC at 541. The Commission held in Emery 

Mining Corp., 9 FMSHRC 1997 (Dec. 1987), the Mine Act’s enforcement scheme, provides for 

“increasingly severe sanctions for increasingly serious violations or operator behavior.” 

9 FMSHRC at 2000 (quoting Cement Div. Nat’l. Gypsum Co., 3 FMSHRC 822, 828 (Apr. 1981). 

In Stillhouse, Judge Paez noted that “[i]n Emory Mining, the Commission interpreted the 

unwarrantable failure language of section 104(d) citations and orders in light of th[e graduated 

enforcement] scheme of escalating sanctions. Here, if a violation is determined to be flagrant, 

then the Commission is authorized to impose the highest amount of civil penalties available 

under the Mine Act, up to $220,000 per violation.” 33 FMSHRC at 802. 

 The substantial civil penalties that can be imposed for flagrant violations are several 

rungs up the graduated enforcement ladder from even more serious violations charged under 

section 104(d). Accordingly, flagrant violations should denote conspicuously bad, offensive, or 

outrageous conduct. As Judge Paez noted in Stillhouse, “[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.” 33 FMSHRC at 799. In that regard, I agree, in 

principle, with Judge Feldman’s analysis in Conshor Mining, LLC, 33 FMSHRC 2917, (Nov. 

 40 In that case, the Secretary also relied on specific orders issued shortly before the 

subject violation. Ultimately, Judge Manning declined to rule on whether an increasing history 

of S&S and unwarrantable failure violations of a single standard would be sufficient to establish 

the “repeated failure” element, because he determined that the Secretary had not established 

another element of the alleged flagrant violation. 33 FMSHRC at 1700. 

36 FMSHRC Page 1356
2011), that a flagrant violation must be conspicuous and egregious, and the fact that Congress 

did not simply amend section 110(a) of the Act to raise the general statutory penalty ceiling 

evidences something considerably more than an intent to deter repeated unwarrantable failure 

violations. 

 The cases brought by the Secretary and that have been decided by ALJs thus far, at least 

under the “reckless” prong of the statute, have involved truly outrageous conduct. Stillhouse

involved egregious conduct by several mine management personnel who ignored prior warnings 

from MSHA and deliberately violated the mine’s approved ventilation plan on more than one 

occasion. Their actions created a serious risk of a mine disaster and threatened the lives of the 

entire mining crew, which was left underground to produce coal while the main mine fan was 

turned off, and then restarted. Three mine managers plead guilty to criminal felony charges for 

their conduct. In Roxcoal, Inc., 35 FMSHRC 625 (Mar. 2013), a flagrant violation was affirmed 

under the “reckless” prong of the statute where an operator’s chief electrician deliberately 

circumvented safety measures by taping down a switch that could de-energize power, and then 

assigned miners to work on the equipment in close proximity to 7,200 volts of electric power. 

He also failed to take any steps to eliminate the violation and the extremely hazardous condition. 

As a result, a miner suffered an injury resulting in permanent disability. 

 The Secretary’s ventures into the “repeated failure” prong of the flagrant statute have 

often strayed from the egregious conduct principle and have met with less success. As noted 

above, the Secretary voluntarily withdrew the “repeated failure” flagrant allegations in Wolf Run

and Conshore Mining. Alleged repeated failure flagrant violations were rejected in Bowie 

Resources and Blue Diamond. The “screening factors,” now broadened considerably by the 

Secretary’s evolving interpretation of the statute, appear to sweep within their ambit a substantial 

portion, if not a vast majority, of violations cited under section 104(d) of the Act. The result is 

that substantial penalties have been assessed under section 110(b)(2) for violations that are very 

similar, if not identical, to violations for which penalties have been assessed under section 

110(a)(1) that have not even reached the maximum amount allowed under that section. 

 The Secretary’s lone success was the American Coal case, in which two repeated failure 

violations were held to be flagrant under a narrow reading of the statute. Order No. 7490584, 

charged an S&S and unwarrantable failure violation of the accumulations standard, 30 C.F.R. 

75.400, that was found to have been the result of the operator’s high negligence, and was 

reasonably likely to have resulted in lost work days or restricted duty injuries to more than 10 

persons. The conditions were found to have existed for at least three shifts, and were known to 

the operator because they had been noted on reports of required examinations during those shifts, 

but had not been corrected. The operator’s failure to eliminate the known violation during each 

of the three shifts was held to satisfy the repeated failure element, and the violation was found to 

be flagrant. 

 Order No. 7490599, also charged an S&S and unwarrantable violation of the 

accumulations standard. It was found to have been the result of the operator’s moderate 

negligence, and was reasonably likely to have resulted in serious or fatal injuries to 6 persons. It 

36 FMSHRC Page 1357
was found that the accumulations likely “began building up about two shifts before the violation 

was cited” and the violation was found to have existed “for two shifts.” 35 FMSHRC at 2236. 

The conditions had not been noted on reports of examinations. However, it was found that the 

operator knew or should have known of the violation because the conditions were obvious and 

should have been discovered during required examinations. Its failure to eliminate the violation 

during either of the two shifts was held to satisfy the repeated failure element. 

 While I agree with much of Judge McCarthy’s analysis in American Coal, I am 

concerned that it could be read to include a large number of violations that were never intended 

to be addressed by the statute. Can constructive knowledge of a violation that existed for the 

better part of two shifts, resulting in a finding that the operator was moderately negligent, be 

squared with the concept that the statute was intended to address egregious conduct, or 

particularly severe violations? Are those valid conclusions regarding the intent of Congress? 

Similarly, can a violation that was reasonably expected to result in lost work days or restricted 

duty injuries, and that would not have passed the Secretary’s screening device requirement for at 

least a permanently disabling injury, be said to be expected to result in death or serious bodily 

injury within the meaning of the statute? Hopefully, these and other questions will soon be 

answered by the Commission. 

 Even in the absence of a review of all reported decisions involving accumulations 

violations cited under section 104(d), I am confident that it would be difficult to identify more 

than a handful that did not involve an opinion by the issuing inspector that the conditions had 

existed for two shifts or longer, and that injuries at least as severe as lost work days were 

reasonably expected.41 Could all such violations be classified as repeated failure flagrant 

violations, and assessed penalties nearly four times higher than the most serious non-flagrant 

violations? For the reasons discussed above, I do not believe that such a result would be 

consistent with the Mine Act’s graduated enforcement scheme, or a reasonable interpretation of 

the subject statute. 

 41 See, e.g., Eastern Associated Coal, LLC, 35 FMSHRC 1438, 1442-47 (May 2013) 

(ALJ) (section 104(d)(1) citation issued on April 5, 2008, for S&S and unwarrantable failure 

violation of section 75.400, extensive accumulations, several ignition sources, inspector 

estimates accumulations existed at least a couple of weeks, preshift examinations conducted on 

each of three shifts, MSHA assessed penalty of $6,458); Rebco Coal, Inc., 36 FMSHRC 181, 

196-202 (Jan. 2014) (ALJ) (section 104(d)(2) order issued on July 15, 2011, for S&S and 

unwarrantable failure violation of section 75.400, highly likely to result in permanent injuries to 

eight persons, accumulations extensive, ignition sources electrical equipment, inspector estimates 

would have taken several days to build up, no notations in examination records, MSHA assessed 

penalty of $6,624). 

36 FMSHRC Page 1358
 For the reasons that follow, I find that the litigated violations were not flagrant, within the 

meaning of section 110(b)(2). I decline to accord deference to the Secretary’s interpretations of 

the statute, or to reach AmCoal’s more sweeping arguments, e.g., that the statute is void for 

vagueness, and, like Judge Manning, anticipate substantive rulemaking by the Secretary and/or 

decisions by the Commission or the Courts, will provide considerably more guidance by the time 

it is necessary to revisit these questions. 

The violation charged in Order No. 7490572 was not flagrant. 

 The Secretary’s supplemental brief did not address the “reckless” prong of the statute, 

and, consequently, did not address Order No. 7490572. The Secretary’s original post-hearing 

brief short-circuits a detailed analysis of the reckless prong of the statute, arguing that Jones’ 

conduct was so “plainly reckless” that no statutory interpretation is necessary. Sec’y. Br. at 27-

29. However, the violation charged in the subject order does not fit easily within the parameters 

of the statutory definition of a reckless flagrant violation. As AmCoal argues in its brief, “this 

action was an isolated incident, existed for only moments, occurred during what indisputably had 

been otherwise proper action, was not clearly and obviously a violation of the regulations, and 

was not condoned by management (as illustrated by the firing of Mr. Jones).” Resp. Br. at 86. 

 Jones’ negligence was found to be high, but did not rise to the level of reckless disregard. 

The act of closing the panel without de-energizing it was, under MSHA’s interpretation, a known 

violation. However, MSHA’s interpretation of the standard as classifying the opening and 

closing of a panel while troubleshooting as “work” on circuits and equipment, is certainly not 

compelled. In fact there is evidence that it may have been a common practice of experienced 

electricians. It is difficult to understand how AmCoal, or Jones, could have eliminated the 

known violation, other than by Jones simply not committing it, or, under Judge Paez’s 

formulation of a “reckless” flagrant violation, how “the operator [failed to] take the steps a 

reasonably prudent operator would have taken to eliminate the known violation . . . and 

consciously or deliberately disregard[ed] an unjustifiable, reasonably likely risk of death or 

serious bodily injury.” Stillhouse, 33 FMSHRC at 805. 

 Obviously, AmCoal had taken reasonable steps to avoid the violation, by incorporating 

MSHA’s interpretation of the standard into its policies and training. It had terminated the 

employment of a previous individual who had violated the policy. Aside from Jones, it had no 

independent knowledge of the violation and no opportunity to eliminate it. While Jones placed 

himself at risk of a serious, possibly fatal, injury, the risk to the other miner was only slight. 

Jones’ negligence is imputable to AmCoal for purposes of an unwarrantable failure 

determination. However, in light of the considerations involved in determining whether a 

violation can properly be characterized as flagrant, it is not at all clear that AmCoal can be 

charged with a flagrant violation and subjected to substantially enhanced penalties, based solely 

on the improvident impulsive behavior of its maintenance foreman, who unforeseeably acted in 

direct contravention of its training and policies, and was terminated as a result. Jones’ actions 

were determined not to have risen to the level of reckless disregard, and there is no evidence that 

36 FMSHRC Page 1359
MSHA initiated an investigation or pursued action against Jones pursuant to section 110(c) of the 

Act. Tr. 145-46. See Blue Diamond, 36 FMSHRC at 579. 

 Based upon the foregoing, I find that the violation charged in Order No. 7490572 was not 

flagrant within the meaning of section 110(b)(2) of the Act. 

The violation charged in Order No. 6668524 was not flagrant. 

 Arguing in support of the flagrant designation for Order No. 6668524, the Secretary, in 

his supplemental brief, reiterates the argument in his original brief, relying on the “R-17" 

printout of AmCoal’s history of violations, which shows that it was issued 86 violations of 

section 75.202(a) in the 12 months preceding November 7, 2007, including 52 that were S&S, 

and “at least one violation issued as an unwarrantable failure.” Sec’y. Supp. Br. at 3. The report 

also shows that AmCoal had been issued 135 violations of the standard in the 24 months 

preceding November 7, 2007, 74 of which were S&S. The Secretary also relies on copies of 

citations that had been issued pursuant to section 104(a), for violations of section 75.202(a).42 

Ex. S-30 thru S-56. The Secretary maintains that: “[c]onsidering the number of repeat instances 

of violative conduct, the subject orders constitute ‘repeated failures’ to make reasonable efforts 

to eliminate known unsupported roof and rib violations and Order No. 6668524 should be 

affirmed as flagrant.” Id. 

 In his original brief, the Secretary argued that the fact of the prior violations brought the 

instant violation so clearly within the plain meaning of the repeated failure prong of the flagrant 

violation definition, that interpretation of the statute was unnecessary. Alternatively, it was 

argued that the Secretary’s interpretation of the provision, at least as reflected in his argument, is 

entitled to deference. The Secretary also maintained that, past violations aside, the violation was 

flagrant because AmCoal repeatedly failed to eliminate the violation cited in the order, which 

was known for at least three shifts. Sec’y. Br. at 45-52. 

 The Secretary’s argument that an operator’s history of violations can satisfy the repeated 

failure element of a flagrant violation has been uniformly rejected, and I reject it here. As to the 

argument that AmCoal repeatedly failed to eliminate the cited violation, I find that the 

Secretary’s attempt to prove that the violation was known was effectively blunted by the fact that 

Miller had traveled through the cited area on two occasions the previous day and did not identify 

any of the conditions that he and the Secretary characterized as obvious. In Blue Diamond, the 

fact that the issuing inspector had participated in an inspection of the cited area the day before 

 42 Those exhibits, and similar exhibits charging violations of the accumulations standard 

(Ex. S-91 thru S-119), had been ruled inadmissible at the hearing. In his supplemental brief, the 

Secretary argues that in light of Wolf Run those exhibits should now be considered in reaching a 

flagrant determination. Sec’y. Supp. Br. at 5. AmCoal did not address that question in its 

supplemental brief. I agree with the Secretary that under Wolf Run the copies of citations should 

be admitted as evidence, and they will be considered as part of the record in these cases. 

36 FMSHRC Page 1360
and had not identified any of the supposedly obvious conditions was found to negate the 

contention that the conditions were obvious, and substantially mitigated the operator’s 

constructive knowledge of the conditions. Here, Miller was not engaged in an inspection on his 

travels through the area. However, his attempts to downplay the significance of his presence in 

the area and failure to identify the conditions were found to be unconvincing. He rode through 

the area in a vehicle that provided a reasonable view of the roof and ribs, such that hazardous 

conditions, especially those that were obvious, should have been observed. AmCoal examiners, 

who had recently received special training on examinations also had not noted the conditions. 

 In Blue Diamond, it was found that the conditions were not obvious, that the operator’s 

negligence was moderate, and that the Secretary had not established the “actual or implied 

knowledge necessary to characterize the cited conditions as a known violation,” thereby failing 

to establish that it was flagrant. 36 FMSHRC at 572. Here, too, the conditions were not obvious 

and AmCoal’s negligence was moderate. I find that the Secretary has failed to establish the 

actual or implied knowledge necessary to characterize the cited conditions as a known violation 

within the meaning of section 110(b)(2). I also find that the violation was not particularly 

severe, or the result of egregious conduct, so as to warrant a flagrant designation. 

The violation charged in Order No. 6668526 was not flagrant. 

 The Secretary made similar arguments as to the examination violation, Order No. 

6668526, asserting that AmCoal’s history of violations of the same or “similar” standards 

satisfied the repeated failure element of the statute. He noted that the Act does not “say the same

standard” and that, in American Coal, it was held that “any substantive regulatory standard” 

would satisfy the statutory requirement.43 Sec’y. Br. at 62-65; Sec’y. Supp. Br. at 3-4. 

Alternatively, under the “current repeated conduct” theory, he contended that AmCoal had 

repeatedly failed to eliminate the violation cited in the order. Sec’y. Br. at 65. 

 The Secretary’s history of violations argument has been rejected. As to the alleged 

repeated failure to eliminate the known violation alleged to have been flagrant, the Secretary 

makes the same argument that he made for the previous order, i.e., that AmCoal’s failure to 

identify and record the violative roof/rib conditions in the course of at least three preceding 

preshift examinations amounted to a repeated failure to eliminate the known violation alleged to 

be flagrant. Sec’y. Br. at 50. Conceptual difficulties can be encountered in attempting to apply 

the same analysis, e.g., the unwarrantable failure factors, to an alleged violation of a standard 

like the roof control standard, and an alleged examination violation for failing to identify the roof 

control violation. The Secretary argued that the failure, during several preshift examinations, to 

identify and eliminate the roof control violation rendered that violation flagrant, and that the 

examination violation “is flagrant for the same reasons that the violative conduct in Order No. 

 43 The history of violations printout introduced by the Secretary listed 2,611 violations, 

issued in the 26.5 months preceding the latest violation at issue, raising the possibility that any, 

or all, of those violations could conceivably be urged as predicate repeated violations. Ex. S-1. 

36 FMSHRC Page 1361
6668524 is ‘repeat’ flagrant.” Sec’y. Br. at 65. I reject the Secretary’s argument for the reasons 

that I rejected it with respect to Order No. 6668524. I am also troubled by the concept that the 

exact same conduct that was urged to justify a flagrant designation for the roof control violation 

could also justify a flagrant designation for the examination violation. 

The violation charged in Order No. 6673874 was not flagrant. 

 The Secretary also makes a two-pronged argument urging that the violation charged in 

Order No. 6673874 was flagrant. He relies on AmCoal’s history of violations, which shows that, 

in the 12 months preceding issuance of the order, AmCoal was issued 201 citations/orders for 

violations of the accumulations standard, 29 of which were substantially similar, and of the 29, 

19 were cited as S&S. Ex. S-1, S-91 thru S-119. The violations history report also shows that in 

the 24 months preceding issuance of the order, AmCoal was issued 365 violations of the 

accumulations standard, 55 of which were S&S, and 5 of which were issued as unwarrantable 

failures. Two of the unwarrantable failure violations became final, one in December 2010, and 

one in May 2011. The Secretary contends that “under any formulation of the term ‘repeated,’ the 

subject orders constitute ‘repeated failures’ to make reasonable efforts to eliminate known 

accumulations violations.” Sec’y. Br. at 78. The Secretary’s violations history argument, which 

fails to address many of the other terms in the statute, has been rejected, and is rejected for this 

order. In addition, the violation was found to be reasonably likely to result in lost work days or 

restricted duty injuries to 2 persons. It was not reasonably expected to result in death or serious 

bodily injury within the meaning of the statute. 

 The Secretary also argues that the violation was flagrant under a “current repeated 

conduct” theory, in that the cited condition was “recorded in the examination records on January 

22 but dropped after the midnight shift,” and the examiners’ failures to identify and record the 

conditions “over the course of five or more shifts” constitutes a repeated failure to eliminate the 

known violation. Sec’y. Br. at 80. However, the notations in the examination records from 

January 22, did not refer to the critical component of “the cited conditions.” The notations, in 

the remarks section of the reports, referred only to the fact that float coal dust was being 

deposited in the area, a condition that was not, in itself, hazardous. The loose coal in piles 

alongside the belt was of recent origin, i.e., within one shift. The most significant component of 

the accumulations, the “carry back” fines that were being deposited under the bottom rollers, was 

not reflected in the examination reports. As Miller stated in the order: “These conditions were 

not reported on the examination books.” Ex. S-18. Those deposits were not obvious, although 

they should have been discovered by a competent examiner, one or two shifts before they were 

cited. 

 The Secretary did not establish that AmCoal had actual knowledge of the critical 

component of the cited accumulations. It is, however, charged with constructive knowledge of 

them one or two shifts prior to their being cited. While that constructive knowledge could be 

held to satisfy the “known” violation element, it is not sufficient to bring the violation within the 

statutory framework. As noted in the discussion of this violation, AmCoal’s examinations were 

being conducted as required, and there were no deficiencies in documentation. Hazardous and 

36 FMSHRC Page 1362
other conditions were being noted, and were being addressed. The failure of examiners, over the 

course of 2-3 shifts to identify the conditions, which were under the belt close to the mine floor 

and were not obvious, did not rise to the level of aggravated conduct sufficient for a finding of 

unwarrantability. AmCoal’s negligence was found to be moderate to high. 

 I find those facts insufficient to establish the actual or implied knowledge necessary to 

characterize the cited conditions as a known violation within the meaning of section 110(b)(2). 

The violation was not particularly severe, or the result of egregious conduct, so as to warrant a 

flagrant designation. In addition, as noted above, the violation was found to be reasonably likely 

to result in lost work days or restricted duty injuries, which I find does not meet the statute’s 

requirement that the violation be reasonably expected to result in death or serious bodily injury. 

 Based upon the foregoing, I find that the violation charged in Order No. 6673874 was not 

flagrant. 

The Appropriate Civil Penalties

 As the Commission reiterated in Mize Granite Quarries, Inc., 34 FMSHRC 1760, 1763-

64 (Aug. 2012): 

 Section 110(i) of the Mine Act grants the Commission the authority to assess all 

civil penalties provided under the Act. 30 U.S.C. § 820(i). It further directs that the 

Commission, in determining penalty amounts, 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. 

 30 U.S.C. § 820(i). 

 Under this clear statutory language, 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.”). While there is no 

presumption of validity given to the Secretary’s proposed assessments, we have 

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, 5 FMSHRC at 293; Hubb Corp., 22 FMSHRC 606, 612 

(May 2000); Cantera Green, 22 FMSHRC at 620-21 (citations omitted). A judge 

need not make exhaustive findings but must provide an adequate explanation of 

36 FMSHRC Page 1363
how the findings contributed to his or her penalty assessments. Cantera Green, 22 

FMSHRC at 622. In addition to considering the statutory criteria, the judge must 

also set forth a discernible path that allows the Commission to perform its review 

function. See, e.g., Martin Co. Coal Corp., 28 FMSHRC 247, 261 (May 2006). 

 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 699, 725 (Aug. 2008) (appropriate for judge to raise a penalty significantly based 

upon findings of extreme gravity and unwarrantable failure); Lopke Quarries, Inc., 23 FMSHRC 

705, 713 (July 2001) (judge did not abuse discretion by weighing the factors of negligence and 

gravity more heavily than the other four statutory criteria). 

Findings on Penalty Criteria

Good Faith - Operator Size - Ability to Continue in Business 

 The parties stipulated that AmCoal demonstrated good faith in abating the violations in a 

timely manner, and that the proposed penalties would not affect its ability to remain in business. 

Jt. Stip. #8, #10. The parties did not stipulate to the size of AmCoal as an operator. However, 

forms reflecting calculations of penalty assessments were filed with the petitions and indicate 

that AmCoal is a very large operator, as is its controlling entity, and I so find. AmCoal’s good 

faith abatement efforts should be considered a minor mitigating factor in the penalty assessment 

process. The fact that it is a very large operator and that the proposed penalties would not affect 

its ability to remain in business, while not aggravating factors, indicate that a penalty should be 

higher than that which would be imposed on a smaller operator. 

History of Violations 

 AmCoal’s history of violations is reflected in several exhibits. A report generated from 

MSHA’s database, typically referred to as an “R-17” shows violations issued between November 

7, 2005 and January 24, 2008, that had become final as of the time of the hearing. Ex. S-1. The 

report reflects that 2,611 violations issued in that period had become final, 539 of which were 

S&S, and 17 of which were specially assessed. Copies of some of the citations issued for roof 

and rib control and accumulations violations were also introduced into evidence. Ex. S-30 thru 

S-56, S-91 thru S-119. I accept the figures reflected in the reports as accurate. However, the 

overall violation history is deficient in that it provides no qualitative assessment, i.e., whether the 

number of violations is high, moderate or low. See Cantera Green, 22 FMSHRC at 623-24. 

 Qualitative violations’ history information can be found on the forms reflecting 

calculations of the proposed assessments, and have been represented in Respondent’s brief. The 

36 FMSHRC Page 1364
Secretary’s Part 100 regulations for regular penalty assessments take into account two aspects of 

an operator’s violation history, the “total number of violations and the number of repeat 

violations of the same citable provision of a standard in a preceding 15-month period.” 

30 C.F.R. § 100.3(c). Only violations that have become final are used in the calculations. For 

total violation history, points used in the penalty calculation are assigned on the basis of the 

number of violations per inspection day, ranging from 0 points for 0 to 0.3 violations per day to 

25 points for in excess of 2.1 violations per day. Forms stating penalty assessments for the 

litigated violations generally show that AmCoal had a ratio of violations per inspection day 

between 0.9 and 1.1, for which 10 penalty points are assigned in the applicable table - a moderate 

overall violation history. 

 I find that AmCoal’s overall history of violations, as relevant to these violations, was 

moderate, and should be considered a neutral factor in the penalty assessment process. 

Gravity - Negligence 

 Findings on gravity and negligence are set forth in the discussion of each violation. 

Method for Determining the Amount of Penalties for the Litigated Violations

 The purpose of explaining significant deviations from proposed penalties is to avoid the 

appearance of arbitrariness.44 Similarly situated operators, determined to be liable for violations 

of similar gravity, negligence and other penalty criteria, ideally should not be assessed 

significantly different penalties. Absent some guideline, however, a judge has no quantitative 

reference point to aid in specifying a penalty within the current statutory/regulatory range of 

$1.00 to $70,000.00. The Secretary’s regulations for determination of a penalty amount by a 

regular assessment, 30 C.F.R. §100.3, take into consideration all of the statutory factors that the 

 

 44 As explained in Sellersburg Stone Co., 5 FMSHRC 287, 293 (Mar. 1983), aff’d, 736 

F.2d 1147 (7th Cir. 1984): 

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. 

36 FMSHRC Page 1365
Commission is obligated to consider under section 110(i) of the Act.45 The product of that 

regular assessment formula provides a useful reference point use, of which would promote 

consistency in the imposition of penalties by Commission judges.46

 Accordingly, in determining penalties for the litigated violations, the penalty produced by 

application of the Secretary’s regular assessment formula will be used as a reference point, and 

adjusted depending on the particular findings with respect to the statutory penalty criteria. The 

tables and charts in the regulations provide a limited number of categories for some factors. For 

example, the table for operator’s negligence consists of five gradations, ranging from “No 

negligence” to “Reckless disregard.” 30 C.F.R. §100.3(d). In reality, however, the degree of an 

operator’s negligence will fall on a continuum, dictating that adjustments will generally be 

required. Other unique circumstances may dictate lower or higher penalties. Violations 

involving extreme gravity and/or gross negligence, or other unique aggravating circumstances 

may dictate substantially higher penalty assessments. A party seeking a reduced or an enhanced 

penalty must assume the burden of producing evidence sufficient to justify any requested 

adjustment. Where the Secretary urges a penalty higher than that derived by reference to the 

regular assessment process, he will have the burden of establishing the appropriateness of the 

higher penalty, based upon the statutory penalty criteria. 

Order No. 7490572 (Docket No. LAKE 2008-667) 

 Order No. 7490572 charged a violation of the standard that requires that electrical circuits 

and equipment be de-energized before work is done on them. It was alleged that the violation 

was highly likely to result in a fatal injury to one person and that it was the result of AmCoal’s 

reckless disregard of the standard. The violation was determined to be flagrant, and a specially 

assessed civil penalty in the amount of $161,800 was proposed by the Secretary. Application of 

 45 Under the regulations, penalty points are assigned based on the size of the operator 

and the operator’s controlling entity; the operator’s history of previous violations; the operator’s 

history of repeat violations of the same standard; the degree of the operator’s negligence; and, 

the gravity of the violation, including the likelihood of an occurrence of an event against which a 

standard is directed, the severity of injury or illness if the event were to occur, and the number of 

persons potentially affected if the event were to occur. A penalty amount is determined by 

applying the total of the points assigned to a “Penalty Conversion Table,” which specifies 

penalties ranging from $112.00 for 60 or fewer points, up to the statutory/regulatory maximum 

of $70,000.00 for 144 or more points. That figure may then be adjusted by reducing it by 10% if 

the operator demonstrated good faith in abating the violation. 30 C.F.R. §100.3(f). A further 

reduction may occur if the operator can demonstrate to MSHA’s District Manager that the 

penalty will adversely affect its ability to continue in business. 30 C.F.R. §100.3(h). 

46 See Magruder Limestone Co., Inc., 35 FMSHRC 1385, 1411 (May 2013) (ALJ) 

(regular assessment regulations provide a helpful guide for assessing an appropriate penalty that 

can be applied consistently). 

36 FMSHRC Page 1366
the Secretary’s regular assessment process would have produced an assessed penalty of $63,000. 

Resp. Br. at 22. 

 The violation was found not to be flagrant. Therefore, the higher penalties provided by 

section 110(b)(2) are not available. It was sustained as an S&S violation. However, the gravity 

was lowered, as it was found to have been reasonably likely to result in a fatal injury to one 

person, and was not the result of AmCoal’s unwarrantable failure. AmCoal’s negligence was 

found to have been high. Application of the Secretary’s regular assessment process to the 

violation, as modified, would yield a proposed penalty in the range of $13,500. 

 This violation involves serious gravity and high negligence, factors that are taken into 

account in the Secretary’s penalty regulations. Neither the gravity, nor the negligence, were of 

such a level to justify imposition of substantially higher penalties. In addition, AmCoal’s high 

negligence was predicated upon the negligence of its agent, who acted contrary to its established 

policies and training. 

 Considering the factors enumerated in section 110(i) of the Act, and guided by the 

Secretary’s regulations governing regular assessments, I impose a penalty in the amount of 

$15,000 for this violation. 

Order No. 6668524 (Docket No. LAKE 2008-666) 

 Order No. 6668524 alleged a violation of the roof and rib control standard that was 

highly likely to result in fatal injuries to two persons and was the result of AmCoal’s high 

negligence and unwarrantable failure. The violation was determined to be flagrant, and a 

specially assessed civil penalty in the amount of $158,900 was proposed by the Secretary. 

Application of the Secretary’s regular assessment process would have produced an assessed 

penalty of $45,708. Resp. Br. at 39-40. 

 The violation was found not to be flagrant. Therefore, the higher penalties provided by 

section 110(b)(2) are not available. It was sustained as an S&S violation. However, the gravity 

was lowered, as it was found to have been reasonably likely to result in a permanent injury to 

one person, and was not the result of AmCoal’s unwarrantable failure. AmCoal’s negligence 

was found to have been moderate. Application of the Secretary’s regular assessment process to 

the violation, as modified, would yield a proposed penalty in the range of $3,000. 

 This violation involves neither extreme gravity, nor gross negligence, factors that have 

justified imposition of substantial penalties in other cases. Considering the factors enumerated in 

section 110(i) of the Act, and guided by the Secretary’s regulations governing regular 

assessments, I impose a penalty in the amount of $5,000 for this violation. 

36 FMSHRC Page 1367
Order No. 6668526 (Docket No. LAKE 2008-666) 

 Order No. 6668526 alleged a violation of the preshift examination standard with respect 

to the conditions cited in Order No. 6668524, that was highly likely to result in fatal injuries to 

two persons and was the result of AmCoal’s high negligence and unwarrantable failure. The 

violation was determined to be flagrant, and a specially assessed civil penalty in the amount of 

$161,800 was proposed by the Secretary. Application of the Secretary’s regular assessment 

process would have produced an assessed penalty of $31,989. Resp. Br. at 43-44. 

 The violation was found not to be flagrant. Therefore, the higher penalties provided by 

section 110(b)(2) are not available. It was sustained as an S&S violation. However, the gravity 

was lowered, as it was found to have been reasonably likely to result in a permanent injury to 

one person, and was not the result of AmCoal’s unwarrantable failure. AmCoal’s negligence 

was found to have been moderate to high. Application of the Secretary’s regular assessment 

process to the violation, as modified, would yield a proposed penalty in the range of $4,000. 

 This violation involves neither extreme gravity, nor gross negligence, factors that have 

justified imposition of substantial penalties in other cases. Considering the factors enumerated in 

section 110(i) of the Act, and guided by the Secretary’s regulations governing regular 

assessments, I impose a penalty in the amount of $5,000 for this violation. 

Order No. 6673874 (Docket No. LAKE 2008-666) 

 Order No. 6673874 alleged a violation of the accumulations standard that was highly 

likely to result in fatal injuries to 10 miners, and was attributable to AmCoal’s high negligence 

and unwarrantable failure. The violation was determined to be flagrant, and a specially assessed 

civil penalty in the amount of $188,000 was proposed by the Secretary. Application of the 

Secretary’s regular assessment process would have produced an assessed penalty of $63,000. 

Resp. Br. at 64. 

 The violation was found not to be flagrant. Therefore, the higher penalties provided by 

section 110(b)(2) are not available. It was sustained as an S&S violation. However, the gravity 

was lowered considerably, as it was found to have been reasonably likely to result in lost work 

days injuries to two persons, and was not the result of AmCoal’s unwarrantable failure. 

AmCoal’s negligence was found to have been moderate to high. Application of the Secretary’s 

regular assessment process to the violation, as modified, would yield a proposed penalty in the 

range of $5,500. 

 This violation involves neither extreme gravity, nor gross negligence, factors that have 

justified imposition of substantial penalties in other cases. Considering the factors enumerated in 

section 110(i) of the Act, and guided by the Secretary’s regulations governing regular 

assessments, I impose a penalty in the amount of $7,500 for this violation. 

 

36 FMSHRC Page 1368
Order No. 6673876 (Docket No. LAKE 2009-6A) 

 Order No. 6673876 alleged a violation of the on-shift examination standard with respect 

to the conditions cited in Order No. 6673874 that was highly likely to result in fatal injuries to 10 

miners, and was attributable to AmCoal’s high negligence and unwarrantable failure. The 

violation was specially assessed and a penalty of $60,000 was proposed. A regular assessment 

would have produced approximately the same assessed penalty. 

 It was sustained as an S&S violation. However, the gravity was lowered considerably, as 

it was found to have been reasonably likely to result in lost work days injuries to two persons, 

and was not the result of AmCoal’s unwarrantable failure. AmCoal’s negligence was found to 

have been moderate to high. Application of the Secretary’s regular assessment process to the 

violation, as modified, would yield a proposed penalty in the range of $2,500. 

 This violation involves neither extreme gravity, nor gross negligence, factors that have 

justified imposition of substantial penalties in other cases. Considering the factors enumerated in 

section 110(i) of the Act, and guided by the Secretary’s regulations governing regular 

assessments, I impose a penalty in the amount of $4,000 for this violation. 

ORDER

Docket No. LAKE 2008-666. 

 Order No. 6668524 is modified to a section 104(a) citation and the special findings are 

changed to reflect that the violation was S&S and was reasonably likely to result in a permanent 

injury, that one person was affected, and that AmCoal’s negligence was moderate. A civil 

penalty in the amount of $5,000 is imposed for this violation. 

 Order No. 6668526 is modified to a section 104(a) citation and the special findings are 

changed to reflect that the violation was S&S and was reasonably likely to result in a permanent 

injury, that one person was affected, and that AmCoal’s negligence was moderate to high. A 

civil penalty in the amount of $5,000 is imposed for this violation. 

 Order No. 6673874 is modified to a section 104(a) citation and the special findings are 

changed to reflect that the violation was S&S and was reasonably likely to result in lost work 

days injuries, that 2 persons were affected, and that AmCoal’s negligence was moderate to high. 

A civil penalty in the amount of $7,500 is imposed for this violation. 

Docket No. LAKE 2008-667 

 Order No. 7490572 is modified to a section 104(a) citation and the special findings are 

changed to reflect that the violation was S&S and was reasonably likely to result in a fatal injury, 

that one person was affected, and that AmCoal’s negligence was high. A civil penalty in the 

amount of $15,000 is imposed for this violation 

36 FMSHRC Page 1369
Docket No. LAKE 2009-6A 

Order No. 6673876 is modified to a section 104(a) citation and the special findings are 

changed to reflect that the violation was S&S and was reasonably likely to result in lost work 

days injuries, that two persons were affected, and that AmCoal’s negligence was moderate to 

high. A civil penalty in the amount of $4,000 is imposed for this violation 

Civil penalties in the total amount of $36,500 shall be paid within 30 days. 

/s/ Michael E. Zielinski 

Michael E. Zielinski 

Senior Administrative Law Judge 

Distribution (Certified Mail): 

Barbara Villalobos, Esq., Travis W. Gosselin, Esq., Office of the Solicitor, U.S. Department of 

Labor, 230 S. Dearborn Street, Room 844, Chicago, IL 60604 

Jason W. Hardin, Esq., Mark E. Kittrell, Esq., Fabian & Clendenin, 215 South State Street, Ste. 

1200, Salt Lake City, UT 84111-2323 

36 FMSHRC Page 1370
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

721 19TH ST., SUITE 443 

DENVER, CO 80202-2500 

TELEPHONE: 303-844-5266 / FAX: 303-844-5268 

May 20, 2014 

ORDER OF DISMISSAL

This case is before me on a Notice of Contest filed by Pocahontas Coal Company, LLC 

pursuant to Section 105(d) of the Federal Mine Safety and Health. This contest is directed not at 

a particular citation or order but, rather, at a written notice of pattern of violations issued by 

MSHA pursuant to Section 104(e) of the Mine Act. On February 27, 2014 the Secretary filed a 

Motion to Dismiss for lack of jurisdiction. Sec’y Mot. 1. Pocahontas raises a number of 

arguments in its notice of contest, however, for reasons that follow, I find that the Commission is 

without jurisdiction to consider these arguments in the context of this proceeding and, 

accordingly, I DISMISS this case. 

On October 24, 2013 MSHA issued Written Notice No. 7219153 in which it notified 

Pocahontas that an alleged pattern of violations existed at Pocahontas’ Affinity Mine. The 

“Condition or Practice” section of the Written Notice included two groups of citations and orders 

which the Secretary had deemed “illustrative of this pattern of violations.” On November 26, 

2013, Pocahontas Coal filed this notice of contest pursuant to Section 105(d) of the Act to 

contest “the issuance of Section 104(e)(1) Written Notice Number 7219153.” Pocahontas Notice 

of Contest 1. 

The question of whether the Commission has jurisdiction to hear a contest of a 104(e) 

written notice of pattern of violations has not been addressed by the Commission. However, two 

Commission judges have reached conflicting results on the question of jurisdiction regarding a 

written notice of pattern of violations. In Bledsoe Coal, Unpublished Order dated Nov. 11, 2011, 

Judge William Moran found that the Commission did have jurisdiction to hear a contest of a 

written notice of pattern of violations. Recently, in Brody Mining LLC, 36 FMSHRC ___, slip 

op. at 4, Docket No. WEVA 2014-81-R (Jan. 30, 2014), Chief Administrative Law Judge Robert 

Lesnick found that the Commission was without jurisdiction to adjudicate the mine operator’s 

contest of the written notice of pattern of violations by itself. 

In order to address this issue, it is helpful begin with a brief overview of the pattern of 

violations provision in the Mine Act. 

POCAHONTAS COAL COMPANY, LLC 

 Contestant, 

v. 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION, (MSHA), 

 Respondent.

 : 

: 

: 

: 

: 

: 

: 

: 

: 

CONTEST PROCEEDING 

Docket No. WEVA 2014-202-R 

Written Notice No. 7219153; 10/24/2013 

Mine ID: 46-08878 

Mine: Affinity Mine

36 FMSHRC Page 1371
 The passage of the Federal Mine Safety and Health Act of 1977 introduced the pattern of 

violations provision. The provision was designed “to provide an effective enforcement tool to 

protect miners when the operator demonstrates his disregard for the health and safety of miners 

through an established pattern of violations.” S. Rep. No. 95-181, at 32 (1977), reprinted in

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

Safety and Health Act of 1977, at 620 (1978). The provision grants the Secretary enforcement 

authority against mine operators that have a “pattern of violations of mandatory health or safety 

standards . . . which are of such nature as could have significantly and substantially contributed 

to the cause and effect of coal or other mine health and safety hazards[.]” 30 U.S.C. § 814(e)(1). 

The Secretary is charged with providing the mine operator with “written notice that such a 

pattern exists.” Id. (emphasis added). The provision then grants the Secretary authority to issue 

withdrawal orders, in a sequence which “parallels the . . . unwarrantable failure sequence.” for 

significant and substantial violations issued in the 90 days subsequent to the issuance of the 

written notice. See Id. at (e)(1)-(3); S. Rep. No. 95-181, at 33 (1977), reprinted in Legis. Hist. at 

621. The mine operator remains subject to the Secretary’s 104(e) withdrawal order power until 

such time that an inspection of the “entire mine” reveals no S&S violations. 30 U.S.C. § 

814(e)(3). 

The Mine Act does not define the term “pattern of violations” and, instead, instructs the 

Secretary to “make such rules as he deems necessary to establish criteria for determining when a 

pattern of violations of mandatory health of safety standards exists.” 30 U.S.C. § 814(e)(4). 

Accordingly, the Secretary has promulgated rules establishing those criteria. See 30.C.F.R. § 

104.2. Most recently, the Secretary, after determining that the previous version of the rules 

implementing the pattern of violations provision “[did] not adequately achieve the intent” of the 

Mine Act, promulgated new rules under part 104 of her regulations designed to “simplify the 

existing POV criteria, improve consistency in applying the POV criteria, and increase the 

efficiency and effectiveness in issuance of a POV notice.” Pattern of Violations; Final Rule, 78 

Fed. Reg. 5056 (Jan. 23 2013). The Act and the regulations do not address the issue of 

contesting a notice of pattern of violations. 

In Rushton Mining Co., 11 FMSHRC 759, 764 (May 1989) the Commission stated that it 

“is an agency created under the Mine Act with certain defined and limited administrative and 

adjudicative powers.” Given that the Commission is “an administrative agency created by 

statute, it cannot exceed the jurisdictional authority granted by Congress.” Black Beauty Coal 

Co., 34 FMSHRC 1856, 1860 (Aug. 2012) (citing Kaiser Coal Corp., 10 FMSHRC 1165, 1169 

(Sept. 1988). 

 A review of the Mine Act reveals no statutory authority for the Commission to hear a 

contest to a notice of pattern of violations in the context of a dedicated proceeding. Pocahontas 

has brought this action pursuant to section 105(d) of the Act. Section 105(d) provides mine 

operators with the right to contest, among a limited number other things, the issuance or 

modification of citations and orders. 30 U.S.C. § 815(d). Notably, the section does not afford a 

right to contest written notices. Further, the legislative history, the Secretary’s regulations, 

Commission case law, and the Commission’s Procedural Rules do not reveal any language which 

could be interpreted to grant the Commission jurisdiction to hear a contest of a written notice of 

pattern of violations. 

36 FMSHRC Page 1372
In addition, the Mine Act and legislative history make clear that written notices are 

distinct from citations and orders. The Commission has stated that “in considering the meaning 

of the Mine Act, we must ‘give effect to the unambiguously expressed intent of Congress.’” 

Revelation Energy, 35 FMSHRC 3333, 3337 (Nov. 2013) (quoting Chevron, U.S.A., Inc. v. 

Natural Res. Def. Council, Inc., 467 U.S. 837, 843 (1984)). Here, the distinction between a 

104(e) written notice and an order issued subsequent to that notice is clear. The language of the 

Act makes clear that the written notice is a separate document which must be issued prior to any 

order issued pursuant to section 104(e). Even if one could read some ambiguity into the 

language of the Act, Congress clearly intended to distinguish between written notices issued 

pursuant to section 104(e), which are meant to “indicate to both the mine operator and the 

Secretary that there exists at that mine a serious safety and health management problem, one 

which permits continued violations of safety and health standards...” and orders issued after the 

operator has been “advised” of the existence of the pattern by way of the written notice. S. Rep. 

No. 95-181, at 32 (1977), reprinted in Legis. Hist. at 620. 

If Congress had intended the Commission to hear contests to written notices of pattern of 

violations, it would have said so or at least equated the written notices with citations or orders, 

which are subject to contest proceedings. Instead, Congress differentiated written notices from 

citations and orders. 

Contestant is not without remedy on the issue and may properly challenge the notice of 

pattern of violations in the context of a contest to an order issued under section 104(e) following 

the issuance of the written notice of pattern of violations.1

 The Secretary, in his answer to 

Pocahontas’ notice of contest, stated that, while there is “no statutory right to independently 

contest” the written notice, he “acknowledges that the validity of Notice No. 7219153 is at issue 

in the Contest Proceedings docketed at WEVA 2014-390-R, 391-R, 392-R, 393-R, 394-R, 395-

R, 396-R, 397-R and 398-R” and, “as a component of these Contest Proceedings, the Secretary 

does not oppose the Commission’s review of the validity of Notice No. 7219153. Sec’y Answer 

n. 2. 

 Section 105(d), as mentioned above, provides mine operators with the right to contest the 

issuance or modification of citations and orders. 30 U.S.C. § 815(d). The section then charges 

the Commission with affording an opportunity for a hearing and then issuing “an order . . . 

affirming, modifying, or vacating the Secretary’s citation, order, or proposed penalty, or 

directing other appropriate relief.” Id. “Section 105(d)‘s unambiguous . . . broad grant of . . . 

authority to direct ‘other appropriate relief’” allows the Commission to address a notice of 

pattern of violations in the context of a contest to an order issued under section 104(e) following 

the issuance of the written notice of pattern of violations. See North American Drillers, LLC, 34 

 1

 In a somewhat analogous situation, the Commission has acknowledged a mine operator’s right 

to contest the validity of a safeguard in the context of a contest to a citation issued pursuant to a violation 

of the underlying safeguard. See e.g., Southern Ohio Coal Co., 14 FMSHRC 1 (Jan. 1992). Commission 

judges have declined to review the validity of an underlying safeguard, which is issued via a “notice to 

provide safeguard,” prior to the issuance of a citation for a violation of the underlying safeguard. Beckley 

Coal Mining Co., 9 FMSHRC 1454 (Aug. 1987) (ALJ); Colorado Westmoreland, Inc., 10 FMSHRC 

1236 (Sep. 1988) (ALJ); Jim Walters Resources, Inc., Unpublished Order of Dismissal, Docket No. SE 

96-118-R, (Apr. 1996) (ALJ). 

36 FMSHRC Page 1373
FMSHRC 352, 356 (Feb. 2012). There are presently a number of 104(e) orders before me that 

are related to the notice of pattern of violations and, when those cases are heard, I will hear the 

arguments regarding the validity of the notice of pattern of violations. If Pocahontas wishes to 

pursue the arguments set forth in its notice of contest of the written notice of pattern of 

violations, it may properly do so in the context of those proceedings. 

 Finally, Pocahontas argues that fundamental principles of due process are violated if it is 

not able to contest the written notice in its own proceeding and, instead, must wait until a 104(e) 

withdrawal order is issued and contested. Pocahontas Resp. 15-16. Specifically, Pocahontas 

asserts that the mere issuance of a notice of pattern of violations causes the operator to “suffer 

tangible consequences flowing from that designation alone,” and that absent a “prompt postdesignation review...” it is deprived of a significant property interest in violation of 

Constitutional due process requirements. Id. at 16, 19. Pocahontas cites to the standard 

language about due process and argues that the mine is deprived of a property interest prior to a 

hearing and that deprivation is not outweighed by a need of the government. I disagree. Here, 

the Secretary’s need to assure a safe and healthy working environment for miners at a mine that 

is alleged to have a history of serious violations, outweighs the need of the mine to be heard 

immediately. Additionally, the mine has another immediate remedy, that of contesting any order 

issued after the notice of pattern of violations and have that order heard while raising all of the 

issues associated with the underlying notice. The Secretary has frequently worked with an 

operator to issue an order immediately when there is a dispute over a roof control or ventilation 

plan so that the matter may be heard expeditiously. 

 Due process claims require the Commission to consider three factors when a deprivation 

to a property interest occurs: (1) "the private interest that will be affected by the official action;" 

(2) the risk of an "erroneous deprivation of such interest through the procedures used" and the 

value of additional or substitute procedural safeguards; and 3) the Government's interest, 

including ''the fiscal and administrative burdens that the additional or substitute procedural 

requirement would entail." Mathews v. Eldridge, 424 U.S. 319, 335 (1976). Due process, as 

described by the Court in Mathews, is “not a technical conception with a fixed content unrelated 

to time, place, and circumstances,” and further, “is flexible and calls for such procedural 

protections as the particular situation demands.” Id.(citing Cafeteria Workers v. McElroy, 367 

U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 1230 (1961); Morrissey v. Brewer, 408 U.S. 471, 

481, 92 S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972)

 Pocahontas states that “once a POV notice is issued, an inspector’s suspicion of an S&S 

violation goes from being a mere allegation that may be challenged before an ALJ (with due 

process protections) to being an automatic withdrawal order that could take months-or years-for 

the operator to challenge.” Pocahontas Resp. 16. Further, it asserts that the issuance of a notice 

triggers “enhanced SEC reporting requirements,” which in turn can have “obvious, adverse 

consequences on an operator’s business”. Id. at 19. 

 I find Pocahontas’ due process argument to be without merit given its halfhearted attempt 

to pursue a prompt review of this matter. I do not dispute that Pocahontas initially sought to 

expedite both this proceeding and the contest proceedings for the 104(e) orders that followed the 

issuance of the notice of pattern of violations. In response to that request, I set the cases for 

hearing. However, subsequently the parties moved for stays of the 104(e) cases, and, with regard 

36 FMSHRC Page 1374
to the instant matter of the written notice, Pocahontas asserted that “before determining whether 

the pattern of violations rule was validly applied to Pocahontas in WEVA 2014-202-R, the 

Commission will need to issue its decision in Brody Mining, LLC, to inform the Secretary and 

the regulated community as to the extent the rule may be used in future enforcement 

proceedings.” Pocahontas Motion to Stay Further Adjudication of Enforcement Action 7276509, 

dated January 31, 2014. Given the obvious conflict between Pocahontas’ two positions; proceed 

expeditiously versus wait for the Commission to rule in another similar matter, I reject its 

argument that dismissal of this matter will amount to a violation of its right to due process. 

Further, if Pocahontas had wished to proceed expeditiously on its challenge to the notice of 

pattern of violations, it stands to reason that it could have selected one of the multiple 104(e) 

orders to advance to hearing in a more expeditious manner. Nevertheless, it chose not do to so, 

and given the jurisdictional limitations placed on this court, I must dismiss this proceeding. 

 This docket contains no citations or orders, and rather only the notice of pattern of 

violations that was issued to the mine, prior to the issuances of any 104(e) citation or order. Any 

legitimate arguments raised that are directed to the validity of the written notice of pattern of 

violations will be heard when the subsequently issued 104(e) orders are heard. Therefore, the 

above captioned contest proceeding is DISMISSED. 

 /s/ Margaret A. Miller 

 Margaret A. Miller 

 Administrative Law Judge 

Distribution: 

Benjamin Chaykin, U.S. Department of Labor, Office of the Solicitor, 1100 Wilson Boulevard, 

22nd Floor West, Arlington, Virginia 22209-2247 

Robert Huston Beatty, Jr., Dinsmore & Shohl, LLP, P.O. Box 11887, 900 Lee Street, Suite 600, 

Charleston, WV 25339 

36 FMSHRC Page 1375
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

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

WASHINGTON, D.C. 20004-1710

May 22, 2014

SECRETARY OF LABOR

 MINE SAFETY AND HEALTH

 ADMINISTRATION (MSHA),

 Petitioner,

v.

OAK GROVE RESOURCES, LLC,

 Respondent.

:

:

:

:

:

:

:

:

:

CIVIL PENALTY PROCEEDING

Docket No. SE 2011-881

A.C. No. 01-00851-265581-01

Mine: Oak Grove Mine

DECISION

Appearances: Monique Wright Hudson, Esq., and Leslie P. Brody, Esq., Office of the

Solicitor, Atlanta, Georgia, on behalf of the Secretary of Labor;

Eric Johnson, Esq., Office of the Solicitor, Nashville, Tennessee, on behalf of the

Secretary of Labor (on briefs);

R. Henry Moore, Esq., Jackson Kelley PLLC, Pittsburgh, Pennsylvania, on behalf

of Oak Grove Resources, LLC.

Before: Judge Paez

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

Secretary of Labor (“Secretary”) pursuant to section 105(d) of the Federal Mine Safety and

Health Act of 1977 (“Mine Act”), 30 U.S.C. § 815(d). This case initially involved one section

104(d)(2) order and one section 104(a) citation. However, the parties reached a settlement

regarding the section 104(d)(2) order, which was disposed in a separate Decision Approving

Partial Settlement.

In dispute is one section 104(a) citation issued to Oak Grove Resources, LLC (“Oak

Grove” or “Respondent”). To prevail, the Secretary must prove his charges “by a preponderance

of the credible evidence.” In re: Contests of Respirable Dust Sample Alteration Citations, 17

FMSHRC 1819, 1838 (Nov. 1995) (citing Garden Creek Pocahontas Co., 11 FMSHRC 2148,

2152 (Nov. 1989)), aff’d sub nom., Sec’y of Labor v. Keystone Coal Mining Corp., 151 F.3d

1096, 1106–07 (D.C. Cir. 1998). This burden of proof requires the Secretary to demonstrate that

“the existence of a fact is more probable than its nonexistence.” RAG Cumberland Res. Corp.,

22 FMSHRC 1066, 1070 (Sept. 2000) (citations and internal quotation marks omitted), aff’d,

272 F.3d 590 (D.C. Cir. 2001).

36 FMSHRC Page 1376
1 The S&S terminology is taken from section 104(d)(1) of the Mine 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.”

2

 In this decision, the hearing transcript, the Secretary’s exhibits, and Oak Grove’s

exhibits are abbreviated as “Tr.,” “Ex. G–#,” and “Ex. R–#,” respectively.

3 In the early stages of this proceeding, Church represented the Secretary as a CLR. 

Respondent objected to Church’s testimony based on the advocate-witness rule, but I permitted

his testimony. (See Tr. 64:5–72:14.) In its posthearing brief, Oak Grove again claims I should

disregard Church’s testimony. (Resp’t Br. at 18–20.) Although Oak Grove identifies case law

suggesting a current advocate should not testify as a witness, it is unclear why Church cannot

testify as a witness after he has ceased to represent the Secretary. Indeed, one of the cases

Respondent cites, United States v. Johnston, specifically suggests withdrawal as a solution to the

advocate-witness problem. 690 F.2d 638, 645 (7th Cir. 1982) (“The most obvious alternative was

for the witness-prosecutor to withdraw from any further participation in the trial of defendant.”).

Despite his early involvement in the case, Church was no longer the Secretary’s representative at

the time of the hearing. He questioned no witnesses. He made no opening or closing statement. 

Accordingly, I conclude that Church’s testimony is properly part of the record before me.

I. STATEMENT OF THE CASE

 The single alleged violation remaining in this case was issued at the Oak Grove Mine

on March 16, 2011. Citation No. 8519718 charges Oak Grove with a violation of 30 C.F.R.

§ 75.203(b) for failing to use sightlines or other method of directional control to maintain the

direction of certain cuts in the 13 East Section of the mine. The Secretary designated the citation

as significant and substantial (“S&S”)1

 and characterized Oak Grove’s negligence as moderate. 

The Secretary proposed a specially-assessed penalty of $10,700.00. 

Chief Administrative Law Judge Robert J. Lesnick assigned Docket No. SE 2011-881 to

me, and I held a hearing in Birmingham, Alabama.2 The Secretary presented testimony from

MSHA Inspector Stanley Wilkosz and Conference Litigation Representative (CLR) John

Church.3

 Oak Grove presented testimony from Lead Safety Auditor Thomas Fisher, Section

Foreman Paul Jamison, and Safety Manager Lawrence Pasquale. The parties each filed closing

briefs, and the Secretary filed a reply brief.

II. ISSUES

The Secretary contends that section 75.203(b) imposes two independent duties. (Sec’y

Br. at 6–9.) In addition, he argues that Respondent fulfilled neither duty. (Id.) Accordingly, the

Secretary claims that the condition was properly cited as a violation and that the allegations

underlying the citation are valid. (Id. at 14.) Oak Grove denies that a violation existed and

rejects the Secretary’s allegations regarding the gravity of the violation. (Resp’t Br. at 6, 10–11.) 

36 FMSHRC Page 1377
In addition, Oak Grove contends that Citation No. 8519718 is duplicative of two citations that

are not before me. (Id. at 14–18.) 

The parties raised several potentially interesting questions. However, the threshold

issues before me are as follows: (1) whether 30 C.F.R. § 75.203(b) implies two independent

duties; and (2) whether the Secretary has proven by a preponderance of the evidence facts

demonstrating a violation of mandatory health or safety standards regarding directional controls. 

For the reasons set forth below, Citation No. 8519718 is VACATED.

III. FINDINGS OF FACT

A. Safety Principles in Underground Coal Mining

Given the danger involved in underground coal mining, MSHA specifies the manner in

which an operator—including Oak Grove—may mine its coal seam and the steps it must take to

support its mine roof. Among other provisions, Oak Grove’s approved roof control plan dated

December 28, 2010 (“December 28 Plan”) sets the maximum allowable widths for the “cuts” it

makes through the coal seam to extract coal. (Ex. R–7.) 

In particular, MSHA requires operators to use sightlines or other directional controls

when making cuts to help maintain the projected direction of mining. 30 C.F.R. § 75.203(b). 

Sightlines are painted onto a mine roof up to the working face. (Tr. 34:8–10, 115:5–12.) A

sightline provides a continuous mining machine operator a point of reference for the proper

location of the center of the cut. (Tr. 79:9–17, 82:6–9.) Thus, sightlines keep an operator’s cuts

on the projections included in the operator’s mine map. (Tr. 23:8–11.) They also help ensure

that those cuts do not exceed the width permitted under the operator’s roof control plan. 

(Tr. 23:11–14.) Here, Oak Grove painted sightlines using fluorescent paint that normally

remains visible even after rock dust has been applied to the roof. (Tr. 145:14–17, 146:3–6.)

B. Operations at Oak Grove Mine

Oak Grove Mine is a longwall coal mine located in Jefferson County, Alabama. 

(Tr. 24:23–25:3; Ex. R–7 at 1.) As Oak Grove developed the 13 East Section, it cut four parallel

entries around the outside of the large coal reserve section. (Ex. R–1; Ex. R–3; Ex. R–8.) From

left to right, these entries were numbered 1 through 4. (Ex. R–1; Ex. R–3; Ex. R–8.) As mining

advanced, Respondent also made perpendicular cuts, known as crosscuts, that connect those

entries. (Tr. 83:6–16, 133:10–16.) Rectangular blocks of coal—also known as coal

pillars—were left between the entries and crosscuts to support the mine roof overhead. 

(Ex. R–1; Ex. R–3; Ex. R–8; Tr. 87:15–88:9, 94:11–17, 119:24–120:4.) When viewed from

overhead, these entries and crosscuts resemble a grid of city streets. (Ex. R–1; Ex. R–3; Ex.

R–8.) Respondent began developing the 13 East Section in September 2010, and had advanced

approximately 34 crosscuts by March 2011. (Tr. 128:19–23.) 

36 FMSHRC Page 1378
Respondent also cut “slants” at a forty-five-degree angle from its No. 2 entry through its

coal pillars and into every second crosscut. (Tr. 44:3–18, 86:11–87:3, 119:24–120:4, 133:17–21;

Ex. R–3.) Slant cuts provide a place for Respondent to store equipment and supplies used on the

section. (Tr. 37:18–23, 86:25–87:3, 109:19–20, 123:23–25, 124:14–23.) These slant cuts split a

formerly rectangular block of coal into two coal pillars: one large, five-sided block and one

small triangular block. (Ex. R–1; Ex. R–3; Ex. R–8; Tr. 87:15–88:9, 119:24–120:4.) 

Respondent’s December 28 Plan limits slant cuts to 20 feet in width. (Ex. R–7 at 1.)

Oak Grove cut the 13 East Section’s entries, crosscuts and slants using continuous

mining machines. (Tr. 105:10–14.) When making cuts, a mining machine operator stands

behind the thirty-five-foot long machine with a remote control to direct its cuts. (Tr. 105:13–21,

106:8–16, 107:12–21, 125:23–127:1.) Given the machine operator’s distance from the cutting

face and the coal dust created in the mining process, it is difficult to make precision cuts along a

sightline. (Tr. 91:5–24, 92:11–13, 107:12–24, 127:2–21.) Although an operator’s ability to

make precision cuts improves with experience, even experienced miners inadvertently cut

entries, crosscuts, and slants too wide. (Tr. 107:12–24, 127:16–21.) Moreover, Oak Grove’s

continuous mining machine operators on 13 East Section did not have much experience. 

(Tr. 127:9–14.)

 The coal seam in the 13 East Section is soft, and rib sloughage occurs when the rib (or

walls) of an entry, crosscut, or slant deteriorates and “rolls off” (or collapses), thereby making

the entry, crosscut, or slant wider than initially cut. (Tr. 93:6–13, 99:15–19, 120:5–8.) 

Sloughage is common in the slants on the 13 East Section. (Tr. 120:5–8.) In addition, the

weakest part of the small, triangular pillar is the portion where it comes to a point. (Tr.

93:22–94:3.) Accordingly, the point of the triangular pillar is the most likely to slough off. (Tr.

94:4–7, 120:22–121:8.) Finally, the amount of sloughage increases over time. (Tr. 99:12–21.) 

C. Mine Inspection — March 16, 2011

On March 16, 2011, MSHA Inspector Stanley Wilkosz visited the Oak Grove Mine. 

(Tr. 24:22.) After reviewing section, pre-shift, and on-shift reports, he traveled to the 13 East

Section with a union representative. (Tr. 25:13–17, 26:10–13; Ex. G–1 at 1–2.) Wilkosz 

noticed “notches” in the section’s slant cuts suggesting to him that Oak Grove had mined the

slant in the wrong direction, then stopped and redirected its cut. (Tr. 29:2–13, 40:13–20.) 

However, Wilkosz did not record measurements for any of the notches. (Tr. 56:18–24.)

Nevertheless, he and Inspector John Turpo measured portions of slants that exceeded the 20-foot

maximum width permitted under the December 28 Plan. (Tr. 29:12–30:3; Ex. G–1 at 5, 12–15.) 

Wilkosz measured areas as wide as 27 feet near the point of the small, triangular coal block

adjacent to crosscuts 21 and 25. (Tr. 30:12–13, 31:1, 120:19–121:1; Ex. G–1 at 12–13.) 

According to Wilkosz, cutting without the required sightlines can result in cuts that

exceed the permitted width. (Tr. 34:11–14.) He testified that he looked at the mine roof in

36 FMSHRC Page 1379
4 In the months preceding Wilkosz’s March 16 inspection, he and other MSHA inspectors

walked past the very same slant cuts in question. (Tr. 56:25–59:15, 149:19–152:6; Ex. R–4.) 

No citations for wide entries or missing sightlines had been issued prior to Citation No. 8519718. 

(Ex. R–4; Tr. 149:19–152:6.) 

5 Lead Safety Auditor Thomas Fisher and Section Foreman Paul Jamison both disputed

Inspector Wilkosz’s testimony that no sightlines were present. (Tr. 110:23–111:2,

114:20–115:12, 116:13–14, 142:7–23, 145:1–17.) Fisher and Jamison also testified that they

pointed out those sightlines to Wilkosz. (Tr. 117:12–23, 122:11–123:15, 143:5–16, 145:1–17.)

6 That same day, Wilkosz also issued Citation No. 8519719, which alleged the conditions

in crosscuts 13, 15, 17, 19, 21, 23, 25, and 29 constituted a violation of 30 C.F.R. § 75.203(a) for

exposing miners to hazards caused by excessive widths. (Ex. G–4; Tr. 61:17–62:22.) In

addition, he issued Citation No. 8519720 alleging that the conditions in crosscuts 21 and 25

violated 30 C.F.R. § 75.220(a) because they exceeded the permissible width allowed under the

December 28 Plan. (Ex. R–5; Tr. 49:12–50:3, 60:9–61:6.) Wilkosz designated both citations as

S&S and characterized Oak Grove’s negligence as moderate. Looking at MSHA’s public, online

retrieval database, I note that Oak Grove paid the proposed penalty in both cases.

crosscuts 13, 15, 17, 19, 21, 23, 25, and 29 and saw no sightlines on the roof.4

 (Tr. 31:21–32:10,

33:21–25, 40:18–20, 60:6–8.) In addition, Wilkosz testified that no one from Oak Grove pointed

out sightlines in the area.5

 (Tr. 32:9–19.)

Based on his observations, Inspector Wilkosz issued Citation No. 8519718 alleging a

violation of section 75.203(b):

A sightline or other method of directional control shall be used to

maintain the projected direction of mining in entries, rooms,

crosscuts and pillar splits. In the 13 East [S]ection MMU (033-0)

where they are cutting slants there are no sight spads to maintain

the projected direction of mining at crosscuts 13, 15, 17, 19, 21,

23, 25, and 29.

(Ex. G–2 at 1.) Wilkosz designated the citation as an S&S violation affecting two persons and

characterized Oak Grove’s negligence as “moderate.”6

 (Id.)

IV. REGULATORY ANALYSIS, ADDITIONAL FINDINGS OF FACT 

AND CONCLUSIONS OF LAW

A. 30 C.F.R. § 75.203(b)

The Secretary claims that section 75.203(b) includes two independent duties: (1) use of a

sightline or other directional control; and (2) maintenance of the projected direction of mining. 

(Sec’y Br. at 7–8.) According to the Secretary, “[w]ithout the requirement to maintain the

projected direction of mining, sightlines serve no purpose.” (Sec’y Br. at 7.) Moreover, the

36 FMSHRC Page 1380
Secretary claims that such a requirement is “unique to 30 C.F.R. § 75.203(b)” and is “imposed

by the plain language of the standard.” (Id. at 7–8.) 

Regulatory interpretation is a two-step process. First, unambiguous regulatory provisions

“must be enforced as they are written unless the regulator clearly intended the words to have a

different meaning or unless such meaning would lead to absurd results.” Jim Walter Res., Inc.,

28 FMSHRC 579, 587 (Aug. 2006) (citing Dyer v. United States, 832 F.2d 1062, 1066 (9thCir.

1987), and Utah Power & Light Co., 11 FMSHRC 1926, 1930 (Oct. 1989)). The meaning of

regulations are “ascertain[ed] . . . not in isolation, but rather in the context in which those

regulations occur.” Wolf Run Mining Co., 32 FMSHRC 1669, 1681 (Dec. 2010) (citing RAG

Shoshone Coal Corp., 26 FMSHRC 75, 80 & n.7 (Feb. 2004)). Second, if the meaning of the

regulation is ambiguous, the Secretary’s reasonable interpretation of the regulation is entitled to

deference. Mach Mining, LLC, 34 FMSHRC 1784, 1806 (Aug. 2012).

 Section 75.203(b) provides that a “sightline or other method of directional control shall

be used to maintain the projected direction of mining . . . .” 30 C.F.R § 75.203(b). The text of

the regulation can be broken into two parts. The first part lists required items, and the second

part establishes a goal or purpose to be achieved. The Secretary’s interpretation reads both parts

as independent duties. However, the regulation may also be read to simply specify the manner

in which an operator must achieve a stated purpose. Cf. Cumberland Coal Res., LP, 28

FMSHRC 545, 552 (Aug. 2006) (indicating that the duty under section 75.334(b)(1) is to

provide an effective bleeder system that protects the active workings from dangerous

accumulations of methane); see also 30 C.F.R. § 75.334(b)(1) (“During pillar recovery, a bleeder

system shall be used to control the air passing through the areas and continuously dilute and

move methane-air mixtures and other gasses, dusts, and fumes from the worked out areas away

from active workings, and into a return air course or to the surface of the mine.”) (emphasis

added). From that perspective, section 75.203(b) only imposes a duty to use sightlines or other

methods of directional control. Cf. Faith Coal Co., 19 FMSHRC 1357, 1372 (Aug. 1997)

(affirming Administrative Law Judge’s decision finding no violation based solely on whether

sightlines were used and deviations were necessitated by poor roof). Given these two plausible

readings, section 75.203(b) appears to be ambiguous. See Island Creek Coal Co., 20 FMSHRC

14, 19 (Jan. 1998) (finding that where a meaning of a term in a regulation is “open to alternative

interpretations . . . we conclude that it is in some respects ambiguous.”). Moreover, nothing in

the regulatory history—see Safety Standards for Roof, Face, and Rib Support, 53 Fed. Reg.

2,354, 2,355 (Jan. 4, 1988)—or section 75.203(b)’s placement in the Secretary’s regulatory

scheme suggests that its terms are unambiguous. Accordingly, I conclude that the regulation

does not unambiguously—or, in the Secretary’s words, plainly—require that the projected

direction of mining be maintained. 

Next, I must determine whether the Secretary’s interpretation is reasonable and entitled

to deference. Here, the Secretary interprets maintenance of the direction of mining as an

independent duty that is violated when an operator mines an “excessive width.” (Sec’y Br. at 7.)

Notably, the Secretary’s brief neither argues that his interpretation is entitled to deference nor

points to any previous interpretive guidance in his Program Policy Manual, Program Information

36 FMSHRC Page 1381
7 Even if I found the Secretary’s interpretation to be reasonable and worthy of deference,

it is unclear whether his application of that interpretation would be appropriate. Under the

Secretary’s theory in this case, “excessive” widths and “notches” constitute a deviation from the

proposed direction of mining. (Sec’y Br. at 7–8.) I am not convinced such widths demonstrate a

change in the direction of mining. See discussion infra Part IV.B (addressing alternate

explanations for slant widths). However, I need not decide the issue because I have concluded

that the Secretary’s interpretation is not due any deference.

Bulletins, Program Policy Letters, or Procedure Instruction Letters. In fact, the Secretary’s

proposed interpretation conflicts with Inspector Wilkosz’s testimony that he could not cite Oak

Grove under section 75.203(b) if sightlines were present. (Tr. 31:17–20.) CLR Church

concurred with Wilkosz’s interpretation: “If there is a sightline in place and it’s being

maintained, [a wide place] would not be a violation of section [75.]203(b).” (Tr. 84:15–20.) 

Although deference may be accorded to a reasonable interpretation advanced in a legal brief,

such deference is inappropriate “when there is reason to suspect that the agency’s interpretation

‘does not reflect the agency’s fair and considered judgment of the matter in question’” such as

“when the agency’s interpretation conflicts with a prior interpretation.” Christopher v.

SmithKline Beecham Corp., 132 S. Ct. 2156, 2166 (2012) (citations omitted). I therefore

conclude that the Secretary’s suggested interpretation is not due any deference.7

 Instead, I

determine that section 75.203(b) requires only that a sightline or other directional control be used

to achieve the intended purpose.

B. Additional Findings of Fact

 The Secretary contends that Inspector Wilkosz’s measurements and testimony support a

conclusion that no sightlines were present. (Sec’y Br. at 3–4, 6–7.) Oak Grove points to the

testimony of Lead Safety Auditor Fisher and Section Foreman Jamison to contend sightlines

were present in the 13 East Section and were pointed out to Wilkosz. (Resp’t Br. at 6–7.) I

therefore must determine whether the Secretary has met his burden of proving that Oak Grove

did not use sightlines or other directional controls in its slant cuts on the 13 East Section. 

For the three reasons outlined below, I determine that the Secretary has not satisfied this burden. 

First, the text of Citation No. 8518718, Wilkosz’s contemporaneous inspection notes, and

the conflicting testimony from Fisher and Jamison each significantly undermine the credibility of

Wilkosz’s testimony regarding his March 16 inspection. It is uncontroverted that spads are

different than sightlines and were not required in Oak Grove’s slant cuts. (Tr. 33:2,

89:14–90:19.) However, Inspector Wilkosz alleged in the text of Citation No. 8519718 that Oak

Grove did not have “sight spads” in the slant cuts at issue. (Ex. G–2.) His inspection notes

likewise refer to “surveyor spads” and “surveyor sights.” (Ex. G–1 at 5, 16.) The Secretary

argues that in light of his experience Wilkosz’s use of “spad” and “surveyor sights” should be

read to mean “sightlines.” (Sec’y Br. at 6 n.2.) Wilkosz has many years of experience working

in and inspecting coal mines, as well specific experience as a topographical surveyor in the U.S.

Army Reserve. (Tr. 18:18–24:18.) I also understand that the terms “spad” and “surveyor sights”

are sometimes used interchangeably with “sightlines.” (Tr. 33:6–7, 89:23–90:1, 90:20–24.) Yet,

36 FMSHRC Page 1382
it is unclear why an inspector aware of the difference between spads and sightlines—as well as

the terms of section 75.203(b)—would write “spad” in both his notes and citation unless he was

citing Oak Grove for a lack of spads, rather than sightlines. On the contrary, an inspector with

Wilkosz’s particular experience would seem more likely to be precise in his language. Thus, I

do not find convincing the Secretary’s explanation that Wilkosz meant sightlines when he wrote

spads. 

In addition, Fisher and Jamison claimed that Wilkosz told them while underground that

Oak Grove needed to use spads—in the specific sense—in the slant cuts. (Tr. 116:17–118:16,

143:10–12, 145:1–13.) When they returned above ground, Fisher testified that he specifically

reviewed the text of section 75.203(b) with Wilkosz to stress that spads were not necessary. 

(Tr. 118:6–16.) In contrast, Wilkosz claims he only mentioned spads while underground as a

suggestion that might help Oak Grove make straight cuts in the future. (Tr. 38:25–39:6.) 

Curiously, the Secretary chose not to elicit testimony from Inspector Turpo, who helped Wilkosz

take his measurements. Instead, the Secretary chose to rely solely on Wilkosz’s observations. 

Weighing his testimony against the testimony of two credible witnesses who worked in the

13 East Section every day, along with the text of Citation No. 8519718 and Wilkosz’s

contemporaneous notes, I have significant doubts about the accuracy of Wilkosz’s testimony. I

therefore accord little weight to his testimony regarding his observations during his March 16

inspection.

Second, Wilkosz’s wide measurements on the 13 East Section are insufficient to

demonstrate a lack of sightlines. The Secretary hopes I will view Wilkosz’s measurements as

evidence that sightlines were absent in the slant cuts on the 13 East Section. (Sec’y Br. at 6–8.) 

From this perspective, missing sightlines led to wide places because the continuous miner

operator had no point of reference while making the cut. Yet, as CLR Church testified, wide

places merely suggest a lack of sightlines but do not necessarily indicate that none were used. 

(Tr. 83:20–84:4.) Thus, wide places are simply indirect evidence from which I might infer a lack

of sightlines. 

In this case, Respondent presented a countervailing explanation for its wide places: the

combination of inexperienced continuous miner operators and rib sloughage. (Resp’t Br. at

9–10.) The Secretary does not dispute that even experienced miners sometimes cut a slant a few

feet wider than permitted even when a sightline is present. (Tr. 84:10–14; Sec’y Br. at 7.) He

also does not dispute that sloughage may result in entries that are a few feet wider than initially

mined. (Tr. 50:8–11, 93:6–13, 99:12–100:10; Sec’y Br. at 7.) Rather, the Secretary claims that

his theory of the case is a “simpler and more plausible” explanation for deviations in width of

“up to seven feet.” (Sec’y Br. at 7.) 

 

Unfortunately for the Secretary, his burden of proof has not changed. An explanation

may often be “simpler” or “more plausible” than others without being “more likely than not.” 

Here, Wilkosz’s notes only reflect measurements in the slants for crosscuts 21, 25, 29, and 33. 

(Ex. G–1 at 12–15.) Notwithstanding Wikosz’s measurements showing that two wide places

36 FMSHRC Page 1383
8 I recognize it is counterintuitive to consider the mistakes of inexperienced miners as a

reason to question the Secretary’s suggested inference. Coal mine operators have a duty to

ensure miner safety and should not be “rewarded” for employing miners who do not adequately

perform their duties. Yet here, Respondent’s explanation simply makes the Secretary’s

suggested inference less likely as a matter of fact. Moreover, Oak Grove’s wide slant cuts did

not go unpunished; indeed, Citation Nos. 8519719 and 8519720 involved these same wide places

and Respondent has paid the Secretary’s proposed penalties for both of these violations. See

supra note 6.

exceeded the permissible slant width by seven feet, it is unclear that those widths are

representative of the wide places he found in crosscuts 13, 15, 17, 19, and 27.

Further, I accord little weight to Wilkosz and Church’s opinions that sloughage or

inadvertent mining were unlikely to explain seven-foot deviations from the permitted slant

width. Neither factor need wholly explain the deviation: the wide areas could be explained by

some combination of inadvertence and sloughage. Here, the wide places that Wilkosz did

measure appear to have occurred at the point of the small, triangular coal pillar—precisely at the

location where rib sloughage would be the most severe. In addition, Oak Grove’s miner

operators had little experience, which could lead to larger than normal deviations from the

permitted cut width. Taken together, these two factors would explain these deviations at least as

well as the Secretary’s theory that sightlines must have been absent. Critically, Wilkosz and

Church failed to address whether the combination of these two factors could result in slants that

exceed the permissible width by seven feet.8 Accordingly, I do not find that an inference of

missing sightlines is appropriate based on the few places for which Wilkosz recorded

measurements.

Third, it is uncontroverted that Wilkosz and other inspectors traveled the 13 East Section

several times since Oak Grove developed the slants in question. The Mine Act is a strict liability

statute, and these inspectors’ failure to cite violative conditions previously would not excuse

Respondent from its duties. However, the inspector’s failure to issue such citations in their

frequent visits to the area suggests that sightlines were not absent and that seven-foot deviations

were not prevalent.

Considering all of the evidence before me, the Secretary has not shown that a lack of

sighlines is the necessary—or most likely—inference to be drawn from the wide places in Oak

Grove’s slant cuts. Given my doubts regarding the accuracy of Wilkosz’s testimony, I determine

that the Secretary has not met his burden of proving that sightlines were absent in the slant cuts

on the 13 East Section.

C. Conclusions of Law

In view of the above, I conclude that the Secretary has failed to demonstrate by a

preponderance of the evidence that Oak Grove violated section 75.203(b). Because I have not

found a violation, I do not need to address the Secretary’s S&S and negligence allegations. 

36 FMSHRC Page 1384
Moreover, I need not address Oak Grove’s assertion that Citation No. 8519718 is duplicative of

Citation Nos. 8519719 and 8519720. 

VI. ORDER

In light of the foregoing, it is hereby ORDERED that Citation No. 8519718 be

VACATED.

/s/ Alan G. Paez 

Alan G. Paez

Administrative Law Judge

Distribution:

Leslie P. Brody, Esq., U.S. Department of Labor, Office of the Solicitor, 61 Forsyth Street, S.W.,

Suite 7T10, Atlanta, GA 30303

Eric A. Johnson, Esq., U.S. Department of Labor, Office of the Solicitor, 211 Seventh Avenue

North, Suite 420, Nashville, TN 37219

R. Henry Moore, Esq., Jackson Kelly PLLC, Three Gateway Center, Suite 1500, 401 Liberty

Avenue, Pittsburgh, PA 15222

/pjv

36 FMSHRC Page 1385
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

7 PARKWAY CENTER, SUITE 290 

875 GREENTREE ROAD 

PITTSBURGH, PA 15220 

TELEPHONE: 412-920-7240 / FAX: 412-920-8689 

 May 23, 2014 

 

 

DECISION AND ORDER

Appearances: Terrence Duncan, Esq., U.S Department of Labor, Office of the Solicitor, 

New York, NY for the Secretary 

Manuel A. Quilichini, Esq., Quilichini Law Offices, San Juan, PR for 

Respondent 

Before: Judge Andrews 

STATEMENT OF THE CASE 

These cases are before the undersigned Administrative Law Judge on Petitions for 

Assessment of Civil Penalty filed by the Secretary of Labor against Respondent, Cemex de 

Puerto Rico (“Respondent” or “Cemex”) pursuant to Section 104 of the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. §815(d). A hearing was held in San Juan, Puerto Rico on August 

5, 2013. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

 v. 

CEMEX DE PUERTO RICO, 

 Respondent 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

:

 CIVIL PENALTY PROCEEDING 

Docket No. SE 2011-502-M 

A.C. No. 54-00001-251949-01 

Docket No. SE 2011-503-M 

A.C. No. 54-00001-251949-02 

Docket No. SE 2013-130-M 

A.C. No. 54-00001-307347 

Mine: Ponce Cement Plant 

Docket No. SE 2011-504-M 

A.C. No. 54-00240-251950-01 

Mine: Cantera Canas 

36 FMSHRC Page 1386
PROCEDURAL HISTORY 

 MSHA inspector Isaac Villahermosa conducted several inspections of Respondent’s 

various operations. On August 26, 2010, he conducted an inspection of the Cantera Canas Mine 

and issued a citation under Section 104(d)(1) of the Federal Mine Safety and Health Act of 1977 

(“the Act”). On November 23, 2010, he conducted an inspection of the Ponce Cement Plant and 

issued two citations, one under Section 104(a) and one under section 104(d)(1). Finally, on June 

20, 2012, he conducted another inspection of the Ponce Cement Plant and issued an order under 

104(b) of the Act. Respondent contested these four issuances and each was placed in a separate 

civil penalty docket (SE 2011-502-M, SE 2011-503-M, SE 2011-504-M, and SE 2013-130-M). 

The total assessed penalty for the four citations was $29,711.00. On August 5, 2013 a hearing 

was held on these citations. The parties submitted Post-Hearing Briefs and the Secretary 

submitted a Reply Brief. 

STIPULATIONS 

The parties have entered into several stipulations, admitted as Parties’ Joint Exhibit 1.1

 

Those stipulations include the following: 

1. The Federal Mine Safety and Health Commission has jurisdiction over these proceedings 

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

2. Respondent Cemex De Puerto Rico was/is a mine within the meaning of Section 4 of the 

Federal Mine Safety and Health Act, 30 U.S.C. §804, and has/had products which entered 

interstate commerce within the meaning of §4 at the time of the violations alleged in the 

citations. 

3. Respondent Cemex De Puerto Rico was/is subject to the jurisdiction of the Federal Mine 

Safety and Health Act of 1977, as amended, 30 U.S.C. §801 et seq., at the time of the 

violations alleged in the citations. 

4. Respondent Cemex De Puerto Rico was/is the owner/operator of the Cantera Canas 

Mine, I.D. #54-00240 and the Ponce Cement Plant, ID No. 54-00001, at the time of the 

violations alleged in the citations. 

5. On or about August 26, 2010, Inspector Isaac Villahermosa conducted an inspection of 

Respondent’s Cantera Canas Mine. 

6. At the end of his inspection, Mr. Villahermosa issue (sic) several citations which alleged 

that Respondent was operating some of its mobile equipment with various defects, some 

of which allegedly remained uncorrected for extended periods of time. 

 1

 Hereinafter the Joint Exhibits will be referred to as “JX” followed by the number. Similarly, the 

Secretary’s Exhibits will be referred as “GX” and Respondent’s Exhibits will be referred to as “RX.” 

36 FMSHRC Page 1387
7. Respondent did not contest the citations which alleged that violations existed on its 

Pettibone Cranes Nos. 771 and 774, its Chevrolet Water Truck #37-007, its Caterpillar 

Dozer No. 2 and its Caterpillar Loader No. 302. 

8. Respondent only contested Citation No. 8544130 which alleged that respondent violated 

30 C.F.R. §56.14100(c). 

9. At the time of inspector Villahermosa’s inspection, Horacio Terron was the Mobile and 

Crushing Equipment Maintenance Coordinator at Respondent’s Cantera Canas Mine. 

10. Respondent’s equipment operators inspected the equipment they operated before each 

shift and completed pre-shift inspection reports. 

11. As Coordinator of Maintenance, Horacio Terron was responsible for correcting the 

defects identified in the vehicles pre-shift inspection reports. 

12. Horacio Terron supervised Crane Operator Edwin Bautista. 

13. Edwin Bautista submitted equipment pre-shift inspection reports for the equipment he 

operated to Horacio Terron. 

14. At the time of MSHA’s inspection, Guillermo Vazquez was Respondent’s Quarry 

Coordinator at the Cantera Canans (sic) Mine. 

15. Guillermo Vazquez supervised the equipment operators who worked at the quarry at 

Respondent’s Cantera Canans (sic) Mine. 

16. The equipment operators who worked at Respondent’s quarry at the Cantera Canans (sic) 

Mine inspected the equipment they operated before each shift and completed pre-shift 

inspection reports. 

17. Guillermo Vazquez received and reviewed the equipment pre-shift inspection reports for 

the equipment that operated at Respondent’s quarry at the Cantera Canans (sic) Mine. 

18. Guillermo Vazquez was responsible for among other things, taking defective equipment 

out of operation until the defects were corrected. 

19. On November 23, 2010, inspector Isaac Villahermosa visited Respondent’s limestone 

plant to conduct a second inspection. 

20. At approximately 1:30 p.m. on November 23, 2010, Mr. Villahermosa went to the No. 11 

mill at Respondent’s cement plant. 

21. On or about November 23, 2010, Juan Martinez used the handrails located on the 

platform of the No. 11 mill, and then scaled the “mill’s structure” to reach the top of the 

mill. 

36 FMSHRC Page 1388
22. On or about November 23, 2010, Carlos Vargas saw Juan Martinez used (sic) the 

handrails located on the platform of the No. 11 mill, and then scaled (sic) the “mill’s 

structure” to reach the top of the mill. 

Joint Exhibit 1 (see also Transcript at 6-7).2

MILL NO.11 CITATIONS 

I. SUMMARY OF TESTIMONY 

Inspector Isaac Villahermosa conducted an inspection of Respondent’s cement plant on 

November 23, 2010.3

 (Tr. 21, 118). On that day, he was initially inspecting Respondent’s lime 

plant.4 (Tr. 22). During his lunch break at Respondent’s Mine Office, a cement plant employee 

approached him and told him to go to Mill No. 11, but not until after lunch so that miners would 

be there. (Tr. 22-23, 76-77). He asked the miner why he should go to the mill and the miner 

said, “Just go there. You’ll see.” (Tr. 77). He had no idea what he would see. (Tr. 77-78). A 

trip to the cement plant was not part of his itinerary. (Tr. 22). Villahermosa did not solicit these 

comments and the miner did not describe the nature of the problem. (Tr. 23, 77). 

 

After lunch, Villahermosa waited for Respondent’s safety representative, Carlos Collazo, 

to join him.5 (Tr. 23-24, 78). He did not recall who else was at the mine office that day, beyond 

Collazo. (Tr. 79). However, Collazo did not arrive and, at around 1:15-1:20, Villahermosa went 

to the area by himself. (Tr. 23-24, 29). He did not try to contact Collazo first. (Tr. 79). 

Around the same time, Joel Martinez left lunch and returned to work at Mill 11, as he had 

that morning.6 (Tr. 116, 118, 130). That day he was assigned to weld over some cracks that had 

occurred in the mill spout as a result of wear. (Tr. 116, 171). He did these sorts of repairs once or 

twice a month and climbed up the equipment each time. (Tr. 116-117, 129-130). At the time of 

the hearing, he no longer did this kind of maintenance because a new liner had been installed, 

 2

 Hereinafter the transcript will be cited as “Tr.” followed by the page number. 

3

 Isaac Villahermosa appeared at hearing and testified for the Secretary. (Tr. 20). Villahermosa 

had worked as an MSHA inspector for six years and was also a special investigator. (Tr. 21). In that 

capacity he has performed over 200 regular inspections at quarries and plants. (Tr. 21). 

4

 Respondent has three plants: a lime plant, a cement plant, and the Canas quarry. (Tr. 22). 

5

 Carlos Alberto Collazo Vasquez appeared at the hearing and testified for Respondent. (Tr. 223). 

At the time of the hearing Collazo was Respondent’s Safety Director and had held that position for about 

five years. (Tr. 224). 

6

 Joel Martinez Torres appeared at hearing and testified for Respondent. (Tr. 114). Martinez had 

worked for Respondent since 2002 or 2003. (Tr. 114). At the time of the hearing he was a 

welder/mechanic and had held that position for five years. (Tr. 115). In that capacity he repaired broken 

structure and manufactured items. (Tr. 115). 

36 FMSHRC Page 1389
making repairs unnecessary. (Tr. 117). The spout was without a liner for a year or two. (Tr. 

118). Carlos Vargas was also working at Mill 11 and was standing at ground level.7

 (Tr. 170). 

When he left the office, Villahermosa walked down the street towards Mill No. 11.8

 (Tr. 

80). To approach the mill, he traveled on a walkway to a platform. (Tr. 24-25). He estimated 

that the top of the mill was seven feet above the platform and 12 feet above the ground, though 

he did not measure. (Tr. 25, 95). Martinez estimated that top of the mill was 5 or 6 feet above 

the platform and 8 or 10 feet from the ground. (Tr. 126, 131-132). The parties agreed that there 

was spillage around the platform. (Tr. 96, 126). Respondent believed that this material would 

prevent a miner from falling all the way to ground, but Villahermosa was not sure. (Tr. 96, 126). 

The top of the mill was rounded and sometimes covered in dust. (Tr. 31-32, 133). 

The parties have different accounts as to what happened once Villahermosa reached Mill 

11. According to Villahermosa, when he arrived at the cement plant he saw Martinez on top of 

the mill with no harness. (Tr. 24, 26). When he first reached the walkway, he was far from the 

mill and could only see someone on top. (Tr. 25). It was not until he was on the platform that he 

saw that the miner was not tied to a safety line and there was no hand rail. (Tr. 25). Because the 

condition was unsafe and he feared Martinez would fall, Villahermosa told him to sit down. (Tr. 

25). 

After the miner sat down, a supervisor, Vargas, approached and Villahermosa explained 

the situation. (Tr. 26, 34, 259). Villahermosa did not approach Vargas, because he did not know 

that Vargas was the supervisor. (Tr. 259). Villahermosa told Vargas that they needed to get 

Martinez off of the mill safely. (Tr. 26). Villahermosa suggested using a ladder. (Tr. 26). 

Vargas called for a ladder and Martinez was brought down from on top of the mill. (Tr. 26, 28). 

When Martinez got off the mill, Villahermosa questioned him. (Tr. 26). Martinez told 

Villahermosa how he got up on the mill and the name of the supervisor who directed him to 

perform the task. (Tr. 26-27). Martinez said he used the handrails and the mill structure to climb 

to the top. (Tr. 27-28, GX-7, p.1-3). There were two handrails on the mill platform. (Tr. 28, 95). 

The bottom rail was about 20 inches above the platform. (Tr. 257). The top one was 40-44 

inches above the platform. (Tr. 31, 95-96). Martinez stated he climbed one rung (the second), 

and stepped on the bearing cover. (Tr. 96). Climbing onto the structure put Martinez at an even 

 7

 Carlos G. Vargas Martinez was present at the hearing and testified for Respondent. (Tr. 168). 

Vargas retired on June 30, 2011, after working for Respondent for 36 years. (Tr. 168-169, 178). His last 

position at the company was Industrial Mechanic Supervisor. (Tr. 169). In that capacity he oversaw a 

group of mechanics, including Martinez. (Tr. 169). Since retirement, Vargas had had little contact with 

Respondent’s management, though he remained friends with some of his employees. (Tr. 178). Vargas 

did not know who issued the subpoena for the hearing. (Tr. 178). 

 

8

 Respondent’s counsel asked Villahermosa to review digital photographs of the street (RX-1). 

(Tr. 81). These photographs were taken just three weeks before the hearing (three years after the citation) 

by Respondent’s counsel. (Tr. 81). They showed that from the angle of the photographs, it was not 

possible to see the area cited. (Tr. 82-83). Martinez testified that the area shown in these photographs 

was similar to how it looked three years ago. (Tr. 127). However, he could not authenticate the 

photographs. (Tr. 161-162). 

36 FMSHRC Page 1390
greater height. (Tr. 31). Martinez stated he climbed to the top with his hands free. (Tr. 265). 

He stated he did not tie himself off when climbing. (Tr. 96). 

Villahermosa believed that the way Martinez traveled to the top of the mill created 

exposure to serious or fatal injury. (Tr. 30-31). The area was not safe to access. (Tr. 31). As 

soon as Martinez began to climb the rails, he was not protected and could have been injured in a 

fall. (Tr. 31, 256). Even the lower handrail posed a hazard, albeit a lesser one. (Tr. 257, 264). 

The higher the miner climbed, the more hazardous the condition would be. (Tr. 264-265). 

Standing on the top rail posed a danger because a four-foot fall could cause serious injury. (Tr. 

257, 264-266). Once he reached the top of the mill, the surface was rounded, making a slip more 

likely.9 (Tr. 31-32, 258). If he fell the 7 feet from that area, the metal in the location could have 

struck his head causing a serious injury or fatality. (Tr. 31, 258). The resultant broken skull or 

neck could be fatal. (Tr. 34). The miner could also break an arm or be cut. (Tr. 33). 

Martinez was wearing a lanyard and a harness but he told Villahermosa that he did not 

use it to tie off. (Tr. 28-29). Villahermosa believed that Martinez did not claim he was using the 

harness and lanyard to tie off until several months later during the 110(c) investigation. (Tr. 29-

30). Even if Martinez had been tied off, he would have been exposed to a fall, though perhaps a 

less severe one. (Tr. 32, 265). In tying off, he would have been standing on the top rail and 

reaching up, thereby exposing himself to a fall. (Tr. 256-257, 264-266). When a line is tied off, 

generally the miner would like to tie off at a higher level. (Tr. 32). When climbing, a miner 

must reach down to unhook the tie and can fall. (Tr. 33, 258). Further, a miner can fall while 

tied off, and as the lanyard is 5-6 feet long, the miner could still hit structure or walkway. (Tr. 

33). Further, he could have fallen while walking to tie off on top of the mill. (Tr. 258). 

Respondent’s witnesses offered a far different account. According to Martinez, when 

Villahermosa arrived at the mill, he was still on the platform and had not yet climbed the mill.10 

(Tr. 119). In response to questioning, Martinez told Villahermosa he would be welding. (Tr. 

119). Martinez testified Vargas arrived while they were speaking. (Tr. 128). However, Vargas 

testified that Villahermosa approached him at the ground level and that they had walked together 

to the platform where Martinez was working. (Tr. 170-171). At ground level, Villahermosa had 

asked Vargas who was in charge and said that he was in the area because of an imminent danger. 

(Tr. 170-172). Vargas said he was in charge. (Tr. 170). 

Regardless of the order of arrival, Villahermosa asked how Martinez would get to the top 

of the mill and Martinez explained how he would routinely climb up while tying off. (Tr. 119, 

124-125, 130, 134, 172). This was the way he had reached the area that morning. (Tr. 130). 

 9

 On cross examination, Villahermosa discussed a guard on top of the mill. (Tr. 97-98). He 

stated that he could see the top of the guard from below, that it was five and a half feet high, and that he 

did not observe planks on the guard for a walking surface. (Tr. 97-99). There was no guard on the 

backside. (Tr. 96-97). 

10 Martinez had seen Villahermosa before the day of the inspection but had never spoken to him 

before. (Tr. 160-161). He never had any conflict with Villahermosa before that day. (Tr. 161). Vargas 

had some encounters with Villahermosa before that day. (Tr. 179). 

36 FMSHRC Page 1391
Martinez testified that after the explanation, Villahermosa requested that he demonstrate 

how he would climb while tying off with his harness. (Tr. 119, 125, 142-143). Vargas testified 

that Villahermosa interrupted Martinez’s explanation in asking for the demonstration. (Tr. 172). 

The harness was manufactured so Martinez could tie in with two lines. (Tr. 124, 134). He had 

been trained on how to climb by Respondent. (Tr. 143). He used the handrails to begin. (Tr. 

120, 134). He put his feet on the first rail and tied himself to the green lubricant pipe above his 

head. (Tr. 120-123, 135-136, 173). The pipe was four to five feet above the rail, or 2 to 3 feet 

above his head. (Tr. 136-139). He was cautious in balancing on the rail. (Tr. 136). Martinez 

then climbed to the second handrail. (Tr. 139). He then stepped on the bearing for the mill and 

tied himself to the green pipe. (Tr. 139-140, 156-157, 173). There was also an eyelet he could tie 

off on. (Tr. 123, 173). When he reached the top, he would tie off on a pipe located there, untie 

from the green pipe, and his assistant would hand up his tools. (Tr. 131-133, 141-143). 

On this day, when he reached the top Villahermosa told him to sit down and not tie off 

while a ladder was retrieved. (Tr. 119, 124-126, 143-144, 158, 173, 181). Villahermosa told him 

to untie from the lower pipe as well. (Tr. 158-159). Vargas also saw the inspector tell Martinez 

to sit. (Tr. 145, 173). Villahermosa ordered Vargas to get the ladder. (Tr. 173-174). When the 

ladder arrived, Martinez climbed down. (Tr. 127). When he got down, Villahermosa told him 

that he had come to the mine over a matter of life and death. (Tr. 127). He also said that the 

work could not be performed until necessary arrangements were made to do the work safely and 

that the equipment had to be left on top. (Tr. 174). Vargas called his supervisor, the engineer in 

charge, and said that work could not be done until arrangements were made. (Tr. 175). 

Martinez knew it was wrong to sit down without tying off and that doing so placed him in 

danger. (Tr. 144-145). He followed the order because the inspector told him to do so and he felt 

that he was safe while sitting. (Tr. 144-145). Vargas agreed that Villahermosa’s instructions 

were unsafe. (Tr. 181-182). An untied miner could fall and receive serious injury. (Tr. 182). 

Villahermosa testified that he did not order the miner to climb the structure. (Tr. 107). 

The parties agreed that later that day, Villahermosa spoke with Martinez, Collazo, and 

Vargas about the cited condition in a conference room.11 (Tr. 35-36, 127-128, 174, 226). Vargas 

testified that he was asked to leave the room when Collazo arrived. (Tr. 174). They went to the 

room to clarify any misunderstandings. (Tr. 36). Martinez said that the inspector told him stay 

calm and that no one would fire him. (Tr. 129). Vargas said that Villahermosa gave Martinez a 

card and said that “no one could touch him; that he was like a god and that no one could fire 

him.” (Tr. 174). Villahermosa told those at the meeting that he had all the information, that he 

had conducted all the interviews, explained the condition, and noted the condition was an 

imminent danger for unsafe access. (Tr. 36, 129, 226-228, 243-244). Villahermosa said that 

Martinez reached the mill through unsafe access and that handrails, access area, and spout at Mill 

No. 11 could not be used for climbing. (Tr. 227-228). 

Villahermosa testified that at the meeting, Callazo and Vargas confirmed that the 

condition existed. (Tr. 36). He said Vargas had seen Martinez climb on the mill and did not say 

that Martinez tied off. (Tr. 36, 99). Villahermosa testified that Vargas did not mention “three 

 11 Collazo learned about the condition when Villahermosa called him at lunch. (Tr. 226). He 

arrived 20 minutes later. (Tr. 226). Martinez and Vargas were already there. (Tr. 243). 

36 FMSHRC Page 1392
points of contact”; that issue was not raised until much later. (Tr. 99). At the meeting, Collazo 

said that the condition should not be aggravated conducted because Vargas did not recognize the 

hazard. (Tr. 34-35, 37, 99-100). Collazo testified that he believed the access was safe but the 

inspector said that MSHA did not approve. (Tr. 228). Collazo also testified he had not heard in 

training that “three points of contact” was no longer authorized by MSHA, so he accepted what 

the inspector said. (Tr. 228). Villahermosa left after speaking. (Tr. 229). 

The unsafe access citation (No. 8629721 (GX-5)) stated that an injury or illness was 

reasonably likely because Martinez told the inspector that he had accessed the area in the 

morning and in the afternoon in an unsafe manner. (Tr. 21, 37-38, 45-46). If Martinez were to 

fall 7 feet, there could be fatal injury, broken or dislocated bones, twisted ankles, or other injuries 

depending on how he landed. (Tr. 39, 46). 

The inspector testified that the citation was marked as S&S because of the combination of 

the unsafe way Martinez accessed the area and the possible injury he would sustain. (Tr. 39, 46). 

Inspector Villahermosa also testified that Respondent engaged in an unwarrantable 

failure/aggravated conduct because it required Martinez to do a job without safe access. (Tr. 40). 

He stated that management was aware of the miner in that area and observed him climbing. (Tr. 

40-41). He found the violation occurred as a result of high negligence because Respondent was 

aware of what was required for safe access, having been cited nine times in the past, but failed to 

provide it. (Tr. 40). In fact, he believed they approved of such access because Vargas said he 

did not recognize a hazard. (Tr. 40). 

Villahermosa also reviewed citation No. 8629720 (GX-12). (Tr. 37-38, 106-107). The 

miner was wearing a harness but it was not tied off. (Tr. 41, 107). A photograph (GX-13) 

showed Martinez sitting on the mill. (Tr. 41). There was a green pipe for Martinez to tie off on 

at the top of the mill. (Tr. 43, 94). Villahermosa learned about this place later and did not see it 

at the time of the issuance. (Tr. 94-95). He did not ask Martinez if he could tie off. (Tr. 95). 

Vargas did not know when he learned that Martinez was cited for not being tied off. (Tr. 

181). He testified that he did not speak with Collazo about the violation or the instructions not to 

tie off on the day of the incident. (Tr. 175, 182, 184). He also did not speak to MSHA or file a 

complaint about Villahermosa’s alleged instruction for Martinez to climb. (Tr. 175-176, 183-

184). This was because he was a mechanic’s supervisor; safety personnel were supposed to deal 

with those issues. (Tr. 183-184). Vargas did not talk about the condition at all until a meeting 

with Collazo three days after the alleged violation in which he learned MSHA had issued a 

citation. (Tr. 175, 182, 227, 229). At the meeting, Collazo talked about safe access. (Tr. 229, 

244). At that time he did not have any evidence to contradict the inspector’s assertion that “three 

points of contact” and that the use of handrails was not safe. (Tr. 229). He told the employees 

that they would need to change the method of access. (Tr. 229). Collazo heard that Martinez 

was already on top of the mill when Villahermosa arrived. (Tr. 149). No one said anything to 

undermine this understanding or the citation, so Collazo accepted the citation and the inspector’s 

explanation. (Tr. 227). Vargas conceded that never spoke with Collazo or recommended letting 

MSHA know about Villahermosa’s actions. (Tr. 184). 

36 FMSHRC Page 1393
Respondent decided that the citation was not accurate and drafted a letter requesting a 

meeting with the MSHA supervisor, Valentin, at the local office. (Tr. 230-231, 234). This 

followed the protocol of the Mine Act and occurred 10 days after the citation. (Tr. 230-231, 

244). Respondent told Valentin that it had used the “three-points of contact” method, as 

Martinez had done, for 5-10 years, believed it was safe, and had never been told to discontinue 

the practice. (Tr. 231-232). Valentin upheld the citations, noting that the use of the handrails as 

a ladder and using three points of contact was not allowed. (Tr. 231). Villahermosa testified that 

“three points of contact” was for areas that already had safe access, like a ladder. (Tr. 258, 266). 

It was for moving hands-free and without falling on safe access. (Tr. 259). It could not be used 

everywhere. (Tr. 259). It is not for scaling handrails and structures. (Tr. 259). Villahermosa 

never cited anyone simply for the use of “three points of contact.” (Tr. 266-268). 

Several weeks after the inspection and the Valentin meeting, Jose Figueroa conducted a 

110(c) investigation. (Tr. 230, 245-246). It was during the investigation that Collazo first heard 

information that contradicted the citation. (Tr. 232, 234, 245). Specifically, Martinez stated that 

he was not at the mill spout when the inspector arrived. (Tr. 148-149, 233). Martinez had not 

spoken with management about Villahermosa’s instructions to not tie off until that time. (Tr. 

148-149). He did not know until the investigation that MSHA believed he was caught standing 

on top of the mill without tying off. (Tr. 164-167). Martinez explained to Figueoroa that 

Villahermosa had asked him to demonstrate climbing the mill and asked him not to tie off when 

he reached the top. (Tr. 233-234). He explained that after he demonstrated how he climbed the 

inspector took the picture. (Tr. 233-234). Vargas corroborated Martinez’s story for Collazo. 

(Tr. 165-166, 234, 246-247). Martinez did not talk to Collazo about the condition until after the 

MSHA investigation, despite seeing Collazo during the interim. (Tr. 152-153). 

During the investigation, Vargas asked Martinez why there was a picture of him not tied 

off and Martinez explained he was following Villahermosa’s instructions. (Tr. 166-167). 

However, Vargas was present when Villahermosa told Martinez not to tie off, so he was already 

aware. (Tr. 167). Martinez conceded that in an October 18, 2012 deposition he testified that he 

did not speak with anyone, including Vargas, about the instructions. (Tr. 150-154). 

 In an October 17, 2012 deposition, Collazo stated that he filed a verbal complaint against 

Villahermosa with Figueroa during the investigation. (Tr. 252-253). Specifically, he told 

Figueroa that Villahermosa had lied and that Martinez’s statement was the truth. (Tr. 253-254). 

Collazo also stated that Respondent did not file a formal complaint with MSHA. (Tr. 253). 

However, because Respondent had learned about the discrepancies between the citation and 

events, Collazo wrote a complaint letter to Michael Davis. (Tr. 234-235, 244, 247). He did not 

receive a response. (Tr. 234-235, 248). During the 110(c) investigation, Figueroa told them that 

Davis received the letter and that his investigation would cover the citations and the allegations 

in the letter. (Tr. 235). No further letter was sent to Davis because Collazo believed that one 

was enough and feared negative repercussions for the company if he did more. (Tr. 235-236). 

Collazo did not bring a copy of the letter to the hearing, but had one. (Tr. 248). 

36 FMSHRC Page 1394
II. CONTENTIONS OF THE PARTIES REGARDING CITATION NO. 

8269720 

The Secretary issued two citations following the November 23, 2010 inspection. One 

citation was issued for an alleged failure on the part of Martinez to tie off on Mill No. 11 when 

working. (GX-12). The other citation was issued for an alleged failure of Respondent to provide 

safe access to the top of Mill No. 11. (GX-5). 

With respect to Citation No. 8269720 (alleged failure to tie off), the Secretary asserts that 

Respondent violated 30 C.F.R. §56.15005, that this violation was highly likely to result in fatal 

injuries to one miner, that the violation was S&S, and that it resulted from high negligence. 

(GX-12)(Secretary’s Post-Hearing Brief at 18-24). The Secretary also asserts that a penalty of 

$9,122.00 is appropriate. (Id.) 

 Respondent asserts this it did not violate the cited standard. (Respondent’s Post-Hearing 

Brief at 14). It further avers that if a violation existed, it was unlikely to result in any injury, that 

any injury sustained would be “lost workday/restricted duty” rather than fatal, and its actions 

would be better characterized as showing “low” or “no” negligence. (Id.) Presumably, 

Respondent would also prefer a reduction in the penalty. 

III. FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING 

CITATION NO. 8269720 

The findings of fact in this, and other sections, are based on the record as a whole and the 

Administrative Law Judge’s careful observation of the witnesses during their testimony. In 

resolving any conflicts in the testimony, the Administrative Law Judge has taken into 

consideration the interests of the witnesses, or lack thereof, and consistencies, or inconsistencies, 

in each witness’s testimony and between the testimonies of the witnesses. In evaluating the 

testimony of each witness, the Administrative Law Judge has also relied on his demeanor. Any 

failure to provide detail as to each witness’s testimony is not to be deemed a failure on the 

Administrative Law Judge’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). 

1. The Secretary Has Carried His Burden Of Proof By A Preponderance Of The 

Evidence That Respondent Violated 30 C.F.R. §56.15005.

On November 23, 2010, Inspector Villahermosa issued a 104(a) Citation, No. 8269720, 

to Respondent. Section 8 of that Order, Condition or Practice, reads as follows: 

A miner was observed working on top of the #11 Mill without the safety harness 

and line tied. The miner had the harness on but was not tied. The miner was 

exposed to falling from approximately 7 feet to the walkway and sustaining 

serious or fatal injuries. The mine operator was aware the miner was going to 

36 FMSHRC Page 1395
perform the task but did not ensure the miner had an area where to tie off without 

being exposed to a falling hazard. 

This condition was a factor that contributed to the issuance of order 8629719, 

dated 11/23/2010. Therefore, no abatement time was set. 

(GX-12). 

 The cited standard, 30 C.F.R. §56.15005 (“Safety Belts and Lines”), provides the 

following: 

Safety belts and lines shall be worn when persons work where there is danger of 

falling; a second person shall tend the lifeline when bins, tanks, or other 

dangerous areas are entered. 

30 C.F.R. §56.15005. 

With respect to a 30 C.F.R. §56.15005 violation, “the Commission has held that a danger 

of falling exists when an informed, reasonably prudent person would recognize a danger of 

falling warranting the wearing of safety belts and lines.” Hunt Martin Materials, LLC, 2013 WL 

1856613, *5 (Sept. 2013)(ALJ Simonton), citing Great Western Electric Co., 5 FMSHRC 840, 

842 (May 1983); see also United Taconite, LLC, 2014 WL 1010076, * 12 (Feb. 2014)(ALJ 

Lewis). Therefore, the issue here is two-fold: was the miner wearing belts or lines and, if not, 

would a reasonably prudent person recognize a danger of falling. See e.g. Boart Longyear 

Company, 2014 WL 586878, *7 (Jan. 9, 2014)(ALJ Barbour). 

In the instant matter, The Secretary presented evidence that Respondent violated the cited 

standard, as described in the citation. Inspector Villahermosa credibly testified that upon seeing 

Martinez he noted that the miner was wearing his harness, but was not tied off. (Tr. 24, 26, 28-

29). The photographic evidence supports this conclusion. (Tr. 41) (GX-13). Therefore, I find 

that Martinez was not wearing safety belts or lines in the manner required by regulation. 

As a result, the only issue remaining in determining the validity of this citation is whether 

a reasonably prudent person would recognize a danger of falling. Once again, I find that the 

Secretary presented credible evidence to prove, by a preponderance of the evidence, that such a 

reasonably apparent danger existed. Inspector Villahermosa testified that the top of the mill, 

where the miner was working and standing, was not intended as a walking surface. Specifically, 

the top of the mill posed a slipping hazard because it was rounded and dusty. (Tr. 31-32, 258). 

In addition, there was no handrail or other protection to prevent a fall. (Tr. 25). The evidence 

also showed that the top of the mill was 7 feet above the walkway and roughly 10-12 feet from 

the top of the mill to the ground below. (Tr. 25, 95). Commission case law has consistently held 

that a fall anywhere from 7 to 12 feet poses a danger. See e.g. Grand Western Electric Co., 5 

FMSHRC at 843 (holding that 12 feet is a substantial height from which to fall); Morton 

Company, LP, 31 FMSHRC 427 (Marc. 2009)(ALJ) (holding that a fall from 7 feet was S&S); 

Laramie County Road & Bridge, 17 FMSHRC 902, 905 (Jun. 1995)(ALJ) (holding that a fall of 

36 FMSHRC Page 1396
8-12 feet was S&S); and United Taconite, LLC, 2014 WL 1010076, supra (holding that a fall 

danger of 65-inches constituted a violation of 30 C.F.R. §56.15005). 

Both the unsuitability of the mill as a walking surface, the lack of guardrails, and the 

dangerous height of the mill were obvious indications of danger. Therefore, I find that a 

reasonably prudent person seeing the cited condition would have recognized that the miner 

standing on the mill without fall protection was in danger of falling and that belts and lines were 

warranted. As such, the citation at issue here was validly issued. 

In its brief, Respondent asserted several arguments to support its claim that this citation 

was invalid. (Respondent’s Post-Hearing Brief at 7-9). However, those arguments are not 

supported by the evidence. 

Respondent argued that both Vargas and Martinez consistently testified that Inspector 

Villahermosa had created the dangerous situation. (Respondent’s Post-Hearing Brief at 7). 

Specifically, Respondent’s witnesses testified that Villahermosa asked Martinez to climb up the 

mill. (Tr. 119). Further, they testified that when Martinez reached the top of the mill, his failure 

to tie off was the result of Villahermosa’s specific instructions. (Tr. 119, 124-126, 143-144, 158, 

173, 181). Therefore, Respondent argues that it was not responsible for the violation and that the 

citation was invalid. 

I find the testimony of Respondent’s witnesses on this point to be incredible. First, I find 

the accounts given by Respondent’s witnesses to be inconsistent. Martinez testified that he was 

approached by Villahermosa as he was standing on the platform and that Vargas arrived later, as 

they were speaking. (Tr. 119, 128). Vargas testified that he was working at the ground level 

when Villahermosa arrived and that he and the inspector approached Martinez together. (Tr. 

170-172). Martinez testified that after he explained how he climbed the mill, Villahermosa 

requested that he demonstrate. (Tr. 119, 125, 142-143). Conversely, Vargas testified that 

Villahermosa interrupted Martinez’s explanation to demand a demonstration. (Tr. 172). 

Furthermore, Martinez and Vargas’ testimony is inconsistent with Collazo’s testimony. 

Specifically, Martinez and Vargas stated that when Martinez reached the top of the mill, 

Villahermosa told him to sit down without tying off. (Tr. 119, 173). Collazo testified instead 

that Martinez tied off on the top, but that Villahermosa asked him to untie and then sit down. 

(Tr. 233-234). Respondent’s witnesses cannot agree on the basic facts surrounding this 

violation. 

In addition to these discrepancies, Respondent’s witnesses did not behave in a manner 

consistent with their testimony that Villahermosa ordered the violation. Martinez testified that 

he knew that Villahermosa’s alleged instructions were unsafe, but never objected (Tr. 144-145). 

More importantly, after the citation was issued, Martinez did not complain about Villahermosa’s 

actions to MSHA or to his supervisors at that time. (Tr. 150-154). Similarly, Vargas did not 

object to Villahermosa placing the miner in danger. (Tr. 99). Also, Vargas did not speak to his 

supervisor or MSHA about Villahermosa’s alleged actions after the citation was issued. (Tr. 

175-176-183-184). The fact that each witness passively accepted an admittedly unsafe situation 

and then neglected to speak about it undermines the credibility of those witnesses. Such action is 

unnatural and unbelievable. 

36 FMSHRC Page 1397
With respect to informing his supervisors, Martinez testified that he told Vargas about 

Villahermosa’s dangerous instructions several days after the citation. (Tr. 166-167). However, 

Vargas was present when Villahermosa gave the unsafe instructions. (Tr. 167). This testimony 

is strange because, if Vargas was present to hear Villahermosa give the dangerous instructions, 

then there was no need for Martinez to apprise him of that fact several days later. (Tr. 167). 

Further, Martinez’s testimony on this point at hearing directly contradicted his deposition 

testimony. (Tr. 150-154). Moving up the corporate hierarchy, Vargas and Martinez testified that 

they did not speak to their supervisor, Collazo, about Villahermosa’s alleged actions even when a 

meeting was held regarding the citation. (Tr. 227). After the citation was issued, Collazo 

testified that he spoke with Vargas and Martinez and told them they could no longer use the 

railing to climb the mill. (Tr. 229). However, despite this admonition from their supervisor, 

neither Vargas nor Martinez took the opportunity to explain that Villahermosa had instigated the 

violation. (Tr. 227). The fact that neither witness chose to speak seriously undermines the 

credibility of their testimony. 

Collazo’s testimony further adds to the problems with Respondent’s argument. Collazo 

testified that he did not learn that Villahermosa directed Martinez not to tie off until a month 

after the citation, during the 110(c) investigation. (Tr. 232-234). Collazo testified that after 

receiving this information, he wrote a letter to MSHA. (Tr. 234-236). He testified that he 

learned that MSHA had received this letter from Figueroa during the 110(c) investigation. (Tr. 

234-236). Callazo’s testimony is absurd. If Callazo learned about Villahermosa’s instructions 

during the 110(c) investigation, then it was impossible for the investigator to have information 

regarding a letter Callazo wrote complaining about that instruction. He would have had to write 

the letter before he learned of a reason for drafting that letter. As Respondent presented no 

evidence that Callazo was capable of somnambulant psychic letter-writing, no weight can be 

given to this testimony. 

Finally, regardless of the actions or testimony of Respondent’s witnesses, I find that there 

would be no reason for Inspector Villahermosa to ask Martinez to climb the mill. “Once an 

inspector has identified a violation, there is no requirement in the Mine Act or Commission case 

law that he endanger himself or a miner by exposure to the conditions giving rise to the 

violation.” Western Industrial, Inc., 25 FMSHRC 449, 453 (Aug. 2003). If Martinez told the 

inspector that he worked on top of the mill and the inspector felt that doing so was a violation of 

the Act, he was within his rights to issue a citation. The inspector did not need to place Martinez 

in danger to justify the issuance of the citation. In short, there was no incentive for Inspector 

Villahermosa to entrap Respondent. 

This inconsistent testimony and inexplicable behavior is insufficient evidence upon 

which to base a finding that the Inspector framed or had some sort of vendetta against 

Respondent. Instead the far more likely scenario, and the one supported by the preponderance of 

the evidence, is the explanation given by Inspector Villahermosa. Specifically, that the inspector 

arrived at the mill following an anonymous tip and found a miner already standing on top of the 

mill, untied. (Tr. 24, 26, 28-29). Villahermosa consistently testified to these events at all stages 

of this litigation and the photographic evidence supports his testimony. This would explain why 

Respondent’s witnesses related different stories and why they did not quickly complain about 

36 FMSHRC Page 1398
Villahermosa’s action: there was nothing to complain about. I find that Respondent’s witnesses 

either became confused about events that occurred several years in the past or, perhaps, 

formulated their stories after the fact for the purposes of litigation.12

In a related argument, Respondent contended that the inspector’s testimony was 

unreliable and could not form the basis of a finding that a violation took place. (Respondent’s 

Post-Hearing Brief at 7-8). I find that there is no credible evidence to support this claim. I will 

address each instance of allegedly unreliable testimony from the inspector in turn. 

Respondent noted that Villahermosa testified that he saw the miner from a distance, but 

that photographs submitted by Respondent’s counsel showed that he could not possibly see the 

top of the mill until he was standing on the platform below. (Respondent Post-Hearing Brief at 

7-8). However, the photographs relied upon by Respondent were admitted only as demonstrative 

evidence so show what the area looked like. (Tr. 81-83, 127, 161-162). Those photographs did 

not show Villahermosa’s point of view when he entered the area and are not evidence of what he 

could see. (Tr. 81-83). Villahermosa credibly testified that from where he approached the mill, 

he could see the miner on top of the mill from a distance. (Tr. 24-26). In fact, one of 

Villahermosa’s photographs shows the miner at a distance. (GX-13). I find Villahermosa’s 

testimony on this point credible and consistent with other evidence in this proceeding. 

Respondent contended the Villahermosa was also unreliable because he was unable to 

recall how he reached the mill area. (Respondent’s Post-Hearing Brief at 8). In so doing, 

Respondent refers to an exceedingly confusing section of the transcript (the testimony contained 

several references to locations situated “here” and “there” with no explanation as to what “here” 

or “there” meant relative to anything else). (Tr. 82-83). In that section Villahermosa stated that, 

in reviewing photographs taken by Respondent’s counsel, he was unsure of where he had entered 

the area. (Tr. 82-83). He stated that the inspection had been three years earlier and he was not 

positive of which route, between two possible avenues, he had taken. (Tr. 83). However, 

Respondent’s counsel conceded that the photographs had been taken just weeks before the 

hearing. (Tr. 84). No witness ever authenticated these photographs. It is entirely possible that 

the area looked different in the photographs than it did during the inspection. Further, as stated 

supra, the point of view in the photographs was not the same as the one Villahermosa had during 

the inspection. (Tr. 81-83). A photograph shown from the angle of his approach may have 

refreshed the inspector’s memory. Perhaps most importantly, I find that even if Villahermosa 

simply forgot the route he took to reach the mill, this failure to recall would not be grounds upon 

which to discredit his testimony. Inspector Villahermosa’s goal that day was to inspect the mine 

for violations, not to memorize a route. Inspector Villahermosa sufficiently recalled the 

substantive aspects of his inspection; failure to recall unnecessary details does not undermine his 

credibility. 

Respondent further contended that Villahermosa was unreliable because on direct 

examination he did not state that he asked the anonymous informant why he should inspect the 

 12 Considering the latter explanation, the obviously ill-conceived and poorly executed ad 

hominem attack on the veracity of Inspector Villahermosa utterly fails. The scheme hatched to place 

blame on the inspector is readily transparent. Indeed, the idea that a MSHA inspector would order a 

miner to perform any act prohibited by safety regulations is simply preposterous. 

36 FMSHRC Page 1399
mill, but on cross-examination he stated he did. (Respondent’s Post-Hearing Brief at 8). 

Respondent fails to note in its brief that during direct examination, Villahermosa was not 

questioned about what he stated to the anonymous informant. (Tr. 22-23). Only when 

Respondent’s counsel specifically asked Villahermosa his response to the miner, did the 

inspector provide that information. (Tr. 77). Villahermosa’s testimony was in no way 

inconsistent and I find no reason to question his credibility on this point.13 

Respondent also argued that it was strange Villahermosa could remember the details of 

who he spoke with during this inspection, but could not remember the name of the person who 

spoke to regarding the BC-N conveyor citation, which occurred two years later. (Respondent’s 

Post-Hearing Brief at 8)(Tr. 59). While it is true that Inspector Villahermosa never stated who 

he spoke with regarding the BC-N conveyor Order, there is a good reason for this. No one asked. 

The evidence does not show that Villahermosa was unsure who he spoke with, the record is 

completely silent on that issue. I do not find Villahermosa’s testimony is incredible simply 

because he did not answer a question that was not asked. 

Respondent’s final argument with respect to Villahermosa’s credibility is that the 

Inspector could remember minute details of the inspection but could not recall where he waited 

for Respondent’s representative after lunch. (Respondent’s Post-Hearing Brief at 8). As noted 

supra, the Inspector’s goal that day was to inspect the mine for violations, not to memorize 

locations. The fact that the inspector could recall details regarding the violations but could not 

recall irrelevant details does not undermine his credibility. In fact, it shows that he was focused 

on the substantive matter at hand. 

Respondent attempts to contrast Villahermosa’s alleged lack of credibility with Vargas’ 

credibility. (Respondent’s Post-Hearing Brief at 7-8). Specifically, Respondent noted several 

times that Vargas no longer worked for Respondent and, therefore, his testimony was unbiased. 

(Id.). As noted supra, there are several logical inconsistencies in Respondent’s witnesses’ 

testimony that undermine Vargas’ credibility, regardless of his level of bias. Further, Vargas 

testified that he was still friends with several of Respondent’s miners. (Tr. 178). Therefore, he 

was not wholly neutral or disinterested. Perhaps most importantly, even if Vargas were credible, 

that would not change the fact that Villahermosa was also credible while Martinez and Collazo 

were not. 

Respondent’s final argument was that a reasonably prudent person would not perceive 

this condition as a danger. (Respondent’s Post-Hearing Brief at 8-9). To that end, Respondent 

argued that Villahermosa was overly pessimistic regarding the hazard posed by a 7-foot fall. 

(Id.). Further, it noted that pads eyes were present for tie off on top of the mill. (Id.). As noted 

supra, relevant case law supports a finding that a 7-foot fall can pose a serious hazard. In fact, 

the existence of the pads eye shows that Respondent recognized that a 7-foot fall could pose a 

danger. The danger of a fall was apparent to anyone working for Respondent and this tie-off 

point was added. Unfortunately, Martinez was not tied off when the Inspector arrived. (Tr. 24, 

 13 Respondent’s attempt to undermine the credibility of the inspector through misrepresentation of 

the record has the effect of bolstering the Inspector’s testimony and undermining the credibility of 

Respondent. 

36 FMSHRC Page 1400
26, 28-29). Therefore, the miner was exposed to a fall. A reasonably prudent person would 

recognize this exposure. 

The preponderance of the evidence shows that Martinez was not properly wearing the 

required belts or lines and that a reasonably prudent person would recognize a danger of falling. 

Therefore, this citation was validly issued. 

2. The Violation Was Highly Likely to Result in a Fatal Injury to One Miner And

Was Significant And Substantial In Nature

Inspector Villahermosa marked the gravity of the cited danger in Citation No. 8269720 as 

“Highly Likely” to result in “Fatal” injury to one person. (GX-12). These determinations are 

supported by a preponderance of the evidence. 

The Mine Act requires that the “gravity of the violation” be considered in assessing a 

penalty. 30 U.S.C. §820. The Secretary has promulgated a three-factor inquiry to determine the 

gravity of a citation for purposes of determining the penalty. Those factors are: 

[T]he likelihood of the occurrence of the event against which a standard is 

directed; the severity of the illness or injury if the event has occurred or was to 

occur; and the number of persons potentially affected if the event has occurred or 

were to occur. 

30 C.F.R. §100.3(e). 

The event against which the instant standard, 30 C.F.R. §56.15005 is essentially stated in 

the language of the rule. Specifically, the standard is designed to protect miners from situations 

in which “there is danger of falling.” Here, the inspector credibly testified that a fall from the 

top of the mill was highly likely to result in a fatal injury. Specifically, Inspector Villahermosa 

stated that the top of the mill, where Martinez was standing, was not intended as a walking 

surface. Instead, the top of the mill was rounded and dusty, creating a slipping hazard. (Tr. 31-

32, 258). Further, there was no handrail or other protection to prevent a fall. (Tr. 25). Finally, 

the miner was not tied off. (Tr. 24,26, 28-29, 96). Given these conditions, it was highly likely 

that a miner working and using equipment on top of the mill would eventually slip and fall the 7 

feet to the walkway below. A fall from that height could be fatal. Inspector Villahermosa 

credibly testified that if Martinez fell 7 feet, there could be fatal injury, broken or dislocated 

bones, twisted ankles, or other injuries depending on how he landed. (Tr. 39, 46). Relevant case 

law supports a finding that a fall from around this height onto a walkway can be fatal. See e.g., 

United Taconite, LLC, 2014 WL 1010076, supra. Therefore, a fall was highly likely to result in 

fatal injury. 

Respondent argued that such a fall would be unlikely to result in a fatality because the tie 

off points were a reasonable and acceptable safety measure that prevented a fall. (Respondent’s 

Post-Hearing Brief at 11). As noted supra, the credible evidence shows that the miner was not 

tied off was highly likely to fall 7 feet onto his head or neck. (Tr. 31-34, 258). Perhaps if the 

miner had used the tie-off point, the likelihood or the severity of the danger would be lessened. 

36 FMSHRC Page 1401
Unfortunately, Martinez was exposed to a 7-foot fall while standing on a slippery, rounded mill. 

Respondent’s argument is not supported by the evidence. 

Finally, only one miner was on top of the mill. (Tr. 24, 26). There was no indication that 

more than one miner would ever be working on top of this area. As a result, the preponderance 

of the evidence supports a finding that one person would be affected. 

Therefore, I find that the cited violation was highly likely to result in fatal injuries to one 

miner. I will now turn to the S&S designation in this matter. 

Well-settled Commission precedent sets forth the standard used to determine if a 

violation is S&S. A violation is S&S “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., National Gypsum Co., 3 FMSHRC 822, 

825 (April 1981). The Commission later clarified this standard, explaining: 

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

and substantial under National Gypsum, the Secretary of Labor must prove: (1) 

the underlying violation of a mandatory safety standard; (2) a discrete safety 

hazard – that is, a measure of danger to safety – contributed to by the violation; 

(3) a reasonable likelihood that the hazard contributed to will result in an injury; 

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

serious nature. 

Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984). 

With respect to the first element, the underlying violation of a mandatory safety standard, 

it has already been established that Respondent violated 30 C.F.R. §75.15005. 

With respect to the second element of Mathies, a discrete safety hazard – that is a 

measure of danger to safety – contributed to by the violation – As discussed supra, the cited 

condition contributed to the danger of a fall. The miner was standing on a mill 7 feet above a 

platform without a tie-off. (Tr. 24, 26, 28-29, 126, 131-132). As has already been stated, this 

made a fall highly likely. 

The third element of the Mathies test – a reasonable likelihood that the hazard contributed 

to will result in an injury – was also met. The preponderance of the evidence establishes that the 

hazard contributed to in this matter would be reasonably likely to result in injury. 

The Commission clarified the third element of the Mathies test in Musser Engineering, 

Inc., and PBS Coal Inc., 32 FMSHRC 1257, 1280-81 (Oct. 2010) (“PBS”). The Commission 

held that the “test under the third element is whether there is a reasonable likelihood that the 

hazard contributed to by the violation, i.e., [in that case] the danger of breakthrough and resulting 

inundation, will cause injury.” Id. at 1281. Importantly, it clarified that the “Secretary need not 

prove a reasonable likelihood that the violation itself will cause injury.” Id. The Commission 

concluded that the Secretary had presented sufficient evidence that miners who broke through 

36 FMSHRC Page 1402
into a flooded adjacent mine would face numerous dangers of injury. Id. 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); Blue Bayou Sand & Gravel, Inc., 18 FMSHRC 853, 

857 (June 1996). 

If the hazard contributed here were realized, specifically if the miner were to fall off of 

the mill, an injury would be highly likely. Inspector Villahermosa credibly testified that if 

Martinez fell 7 feet to the walkway below, there could be a fatal injury, broken or dislocated 

bones, twisted ankles, or other injuries depending on how he landed. (Tr. 39, 46). Other ALJs 

have found similar hazards to be sufficiently likely to cause injury to support an S&S 

designation. See e.g. Morton Company, LP, supra; Laramie County Road & Bridge, supra; and 

United Taconite, LLC, supra. 

Respondent argued that the hazard contributed to by this violation created no likelihood 

of an injury. (Respondent’s Post-Hearing Brief at 11). However, this argument was not 

compelling. Respondent argued that the inspector testified that any fall would be serious, but 

that this understanding was not “objective.” Further, Respondent argued that it used precautions 

to prevent a fall. The Inspector’s understanding of whether a fall would be serious at different 

heights is immaterial to this issue. The only issue is whether a fall from 7 feet would be 

reasonably likely to result in an injury. The credible evidence shows that such a fall could result 

in a multitude of injuries. (Tr. 39, 46). Further, the evidence showed that no “precautions” were 

used. The miner was standing on top of the mill and was not tied off. (Tr. 24, 26, 28-29). 

Therefore, the third prong of Mathies is met. 

Under Mathies, the fourth and final element that the Secretary must establish is that there 

was a “reasonable likelihood that the injury in question will be of a reasonably serious nature.” 

Mathies Coal Co., 6 FMSHRC at 3-4; U.S. Steel, 6 FMSHRC 1573, 1574 (July 1984). As 

discussed supra, the inspector credibly testified that a fall from the mill could result in serious, 

perhaps fatal injury. (Tr. 39, 46). A fatal injury (or broken bones) would be undoubtedly be 

serious. As a result, the fourth prong of Mathies is met. 

As a result of these factors, I find that the Secretary proved the violation was S&S by a 

preponderance of the evidence. 

3. Respondent’s Conduct Displayed “High” Negligence.

In the citation at issue, Inspector Villahermosa found that the operator’s conduct was 

highly negligent in character. (GX-12). 

Standard 30 C.F.R. §100.3(d) provides the following: 

(d) Negligence. Negligence is conduct, either by commission or omission, which 

falls below a standard of care established under the Mine Act to protect miners 

against the risks of harm. 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 

36 FMSHRC Page 1403
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. When applying this criterion, MSHA considers mitigating 

circumstances which may include, but are not limited to, actions taken by the 

operator to prevent or correct hazardous conditions or practices. 

 In 30 C.F.R. §103(d), Table X, the category of high negligence is described thusly: “The 

operator knew or should have known of the violative condition or practice and there are no 

mitigating circumstances.” Conversely, moderate negligence is shown when “[t]he operator 

knew or should have known of the violative condition or practice, but there are some mitigating 

circumstances.” Low negligence is served for situations where there are “considerable” 

mitigating circumstances. 

I find that Respondent knew about the violation and that there were no mitigating factors. 

With respect to knowledge, well-settled Commission precedent recognizes that the negligence of 

an operator’s agent is imputed to the operator for penalty assessments and unwarrantable failure 

determinations. See Whayne Supply Co., 19 FMSHRC 447, 451 (Mar. 1997); Rochester & 

Pittsburgh Coal Co., 13 FMSHRC 189, 194-197 (Feb. 1991); and Southern Ohio Coal Co., 4 

FMSHRC 1459, 1463-1464 (Aug. 1982). An agent is defined as someone with responsibilities 

normally delegated to management personnel, has responsibilities that are crucial to the mine’s 

operations, and exercises managerial responsibilities at the time of the negligent conduct. Martin 

Marietta Aggregates, 22 FMSHRC 633, 637-638 (May 2000) see also 30 U.S.C. §802(e) (an 

agent is “any person charged with responsibility for the operation of all or part of a...mine or the 

supervision of the miners in a...mine.”). 

With respect to the instant violation, the evidence shows that Respondent’s agent, 

Vargas, had actual knowledge of this violation. There is no question that Vargas was an agent. 

His title was Industrial Mechanic Supervisor and he testified that he oversaw the work of the 

mechanics like Martinez. (Tr. 169). In fact, Vargas directed Martinez to climb on top of the 

mill. (Tr. 26-27). Villahermosa testified that when he arrived at the mill, Vargas was watching 

Martinez. (Tr. 40-41). Martinez and Vargas both conceded that Vargas was present and 

observed Martinez on top of the mill; albeit with the discredited explanation that Villahermosa 

caused him to be there. (Tr. 128, 145, 173). As a result, it is clear that Vargas, and therefore 

Respondent, was aware of the violation. 

Having found the requisite knowledge, the next issue is whether there were any 

mitigating circumstances. I find that none existed. Therefore, I find the Secretary’s designation 

of “high” negligence appropriate. 

Respondent argued that there were mitigating circumstances. It noted again that 

precautions were taken for working atop the mill, including the installation of pad-eyes. 

(Respondent’s Post-Hearing Brief at 11-12). While the installation of pad-eyes may have been a 

mitigating circumstance if they were used, the evidence here shows that the miner was not tied 

36 FMSHRC Page 1404
off. (Tr. 24, 26, 28-29). The mere existence of a tie off point, if unused, does not mitigate 

Respondent’s negligence. 

Respondent also argued that Martinez followed all safety precautions until he was 

required to stop by Inspector Villahermosa. (Respondent’s Post-Hearing Brief at 12). As noted 

supra, I do not find any reliable evidence exists to support a finding that Inspector Villahermosa 

framed Respondent. As a result, I cannot find the alleged conspiracy by MSHA to be a 

mitigating circumstance. 

4. Penalty

Under the assessment regulations described in 30 CFR §100, the Secretary proposed a 

penalty of $9,122.00 for Citation No. 8269720. The Commission has affirmed that ALJs are not 

bound the Secretary’s proposals. Sec. v. Performance Coal Co., (Docket No. WEVA 2008-1825 

(8/2/2013) (see also 30 U.S.C. §820(i) and 29 C.F.R. §2700.30(b)). However, the Commission 

also held that, although there is no presumption of validity given to the Secretary’s proposed 

assessments, substantial deviation from the Secretary’s proposed assessments must be adequately 

explained using §110(i) criteria. (Id. at p. 2). (see also Cantina Green, 22 FMSHRC 616, 620-

621 (May 2000)). However, having affirmed the Secretary’s determinations in all respects, no 

deviation is necessary. In fact, the proposed penalty is appropriate under the Act. 

Therefore, Respondent is hereby ORDERED to pay a civil penalty in the amount of $9,122.00 

with respect to this violation. 

IV. CONTENTIONS OF THE PARTIES REGARDING CITATION NO. 

8269721 

With respect to Citation No. 8269721 (alleged failure to provide safe access), the 

Secretary asserts that Respondent violated 30 C.F.R. §56.11001, that this violation was 

reasonably likely to result in fatal injuries to one miner, that the violation was S&S, that it 

resulted from high negligence, and that it was an unwarrantable failure to comply. (GX5)(Secretary’s Post-Hearing Brief at 13-18). The Secretary also asserts that a penalty of 

$11,900.00 is appropriate. (Id.) 

With Respect to Citation No. 8269721, Respondent asserts that the alleged violation was 

unlikely to result in any injury, that any injury sustained would be “lost workday/restricted duty” 

rather than fatal, and its actions would be better characterized as showing “low” or “no” 

negligence. (Respondent’s Post-Hearing Brief at 14.) Presumably, Respondent would also 

prefer a reduction in the penalty. 

 

36 FMSHRC Page 1405
V. FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING 

CITATION NO. 8269721 

1. The Secretary Has Carried His Burden Of Proof By A Preponderance Of The 

Evidence That Respondent Violated 30 C.F.R. §56.11001.

On November 23, 2010, Inspector Villahermosa issued a 104(d)(1) Citation, No. 

8269721, to Respondent. Section 8 of that Order, Condition or Practice, reads as follows: 

A safe access was not provided to work on top of #11 Mill. A welder climbed the 

area using the hand rails and mill structure to climb on top of the mill. The 

welder was exposed to sustaining serious or fatal injuries if he fell from 

approximately 7 feet to the ground. The Mechanical Supervisor showed a lack of 

degree of care since he directed the welder to work in the area and observed him 

access the area without taking any preventative or corrective actions. Mechanical 

Supervisor Carlos Vargas engaged in aggravated conduct constituting more than 

ordinary negligence in that he was aware of the lack of safe access to the top of 

the mill and directed the welder to access the area. Mr. Vargas also observed the 

welder climb using the rails and mill structure and did not take any actions to stop 

the welder. This was an unwarrantable failure to comply with a mandatory 

standard. The mine operator has been cited 9 times for this standard. 

(GX-5). 

 The cited standard, 30 C.F.R. §56.11001 (“Safe Access”), provides the following: 

Safe means of access shall be provided and maintained to all working places. 

30 C.F.R. §56.11001. 

The Commission has held that this standard “comprises the dual requirements of 

providing and maintaining safe access to working places.” Watkins Engineers & Constructors, 

24 FMSHRC 669, 680 (July 2002) (citation omitted). The Commission held that the second 

portion of that duty, to “maintain” safe access” is “an on-going responsibility ... to ensure that a 

means of safe access is utilized.” Id. In reading and applying the terms of section 56.11001, the 

Commission has utilized a “plain meaning” approach. See e.g. Lopke Quarries, Inc., 23 

FMSHRC 705, 707-708 (July 2001). In determining the plain meaning of 30 C.F.R. §56.11001, 

the Commission has previously approved of the using the definition of “safe” found in Webster's 

Third New International Dictionary 1998 (1993), which defines “safe” as “secure from threat of 

danger, harm, or loss.” Western Industrial, Inc., 25 FMSHRC at 452. Therefore, the existence 

of a §56.11001 violation turns on whether access to a work area posed a danger to miners. Id. 

Because the cited standard is broadly worded, determining in a given situation whether a danger 

existed should consider whether “a reasonably prudent person familiar with the mining industry 

and the protective purposes of the standard would have recognized the” hazard. Ideal Cement 

Co., 12 FMSHRC 2409, 2416 (Nov. 1990). 

36 FMSHRC Page 1406
In the instant matter, The Secretary presented credible evidence that Respondent violated 

the cited standard, as described in the citation. There is undisputed evidence that Martinez was 

assigned to climb up the mill platform to perform repairs. (Tr. 116). Further, there is no 

question that Martinez used the handrails as a sort of makeshift ladder to climb up the mill. 

(Stip. 21) (Tr. 26-28, 119-125, 129-130, 173). In fact, Vargas saw Martinez climb up the 

handrails in this manner. (Stip. 22) (Tr. 35, 173). Villahermosa credibly testified that Martinez 

did not tie off with his harness as he climbed. (Tr. 28-29). Villahermosa further testified that 

this condition exposed Martinez to serious or fatal injury from a fall. (Tr. 30-32, 34). Such an 

injury could have been caused by falling from the handrail or from falling while higher up and 

hitting his head. (Tr. 119-123). The miner also could have fallen during descent from the mill. 

(Secretary’s Post-Hearing Brief at 15). 

A reasonably prudent person would have recognized that an untied miner, scrambling up 

a handrail while untied would face a hazard. Utilizing this method of accessing the top of the 

mill was unsafe. Therefore, the citation is valid. 

In its brief, Respondent asserted several arguments to support its claim that this citation 

was invalid. (Respondent’s Post-Hearing Brief at 7-9). However, those arguments are not 

supported by the evidence. 

As with Citation No. 8269720, Respondent argued that both Vargas and Martinez 

consistently testified that Inspector Villahermosa had created the dangerous situation. 

(Respondent’s Post-Hearing Brief at 7). Respondent also contended that Inspector 

Villahermosa’s testimony regarding the access was unreliable. (Id. at 7-8). For the reasons 

discussed with respect to Citation No. 8269720 supra, I find that the substantial evidence does 

not support these arguments. To the contrary, I find that a preponderance of the evidence 

supports Inspector Villahermosa’s credible testimony that Martinez used the unsafe access cited 

before Villahermosa had arrived at the mill. (Tr. 24, 26, 28-29, 96). Further, I find that 

Villahermosa’s testimony, in contrast to the testimony of Vargas and Martinez, was highly 

credible. 

Respondent also argued that the way in which the miner accessed the work area was safe. 

(Respondent’s Post-Hearing Brief at 8-9) Respondent claimed that pads eyes were present and 

that Martinez claimed that he tied off while climbing. (Tr. 32, 123-124, 141-142) I credit the 

testimony of Inspector Villahermosa that Martinez was not tied off while climbing. (Tr. 96). I 

further credit the testimony of the inspector that even if the miner had been tied off, that he 

would have been exposed to a danger, albeit a slightly lesser one. (Tr. 32, 265). The cited 

condition occurred at an industrial work site, not at a jungle gym. There was absolutely no 

reason for a miner to be climbing on handrails or scrambling up the side of a mill. Even if 

Martinez had been tied off, it would still be inappropriate and unsafe for him to climb on the 

handrails and structure in this manner. A ladder, like ones provided at other mills at the mine, 

should have been provided for Martinez. 

With respect to safety, Respondent also noted that Martinez’s hands were empty as he 

climbed, that he maintained “three points of contact” and that items were handed up to him 

(rather than carried during the climb). (Respondent’s Post-Hearing Brief at 9). The evidence 

36 FMSHRC Page 1407
presented supports these assertions; however these issues are largely inconsequential to the 

outcome here. Even if Martinez’s hands were empty and he was able to maintain “three points 

of contact” there was still a violation of the cited standard. The issue was that Martinez 

scrambled to the top of the mill using handrails. Even if his hands were free, he was exposed to 

a dangerous fall from the mill. Further, as noted by Judge Lewis in discussing a similar standard, 

“[n]othing in the Act, regulations, or case law provides an exception to the rule based on points 

of contact. Respondent cites to no legal authority for the proposition that three or four points of 

contact eliminates an imminent fall danger.” United Taconite, LLC, 2014 WL 1010076, supra. 

Villahermosa testified that “three points of contact” is a standard used for otherwise safe access, 

not for scrambling up the side of equipment. (Tr. 258, 266). 

Respondent also argued that Inspector Villahermosa’s belief about the degree of danger 

was unreasonable. (Respondent’s Post-Hearing Brief at 8-9). Specifically, it noted that the 

Inspector believed that Martinez was in danger of a serious injury even when he was only four 

feet off the ground. (Tr. 265). I credit the testimony of Inspector Villahermosa that a fall, even 

from as low as four feet, could pose a serious danger to a miner. However, I further find that this 

issue is largely academic. The evidence presented shows that the miner was exposed not only to 

a four foot fall, but a seven foot fall from climbing. As discussed at length with respect to 

Citation No. 8269720, such a fall would constitute a serious danger. As a result, whether a fourfoot fall could cause a serious or fatal injury is irrelevant to the instant matter. 

 Respondent’s final argument is that use of the handrails was not prohibited by MSHA’s 

rules or regulations and that Respondent had used this method to climb for ten years. 

(Respondent’s Post-Hearing Brief at 9). While it is true that the standard does not specifically 

state that climbing on handrails is prohibited, this is because the standard is broadly worded to 

encompass any unsafe access. The fact that this broad statement does not include a specific 

reference to climbing up the side of a mill is not fatal to this citation. Further, the Commission 

has held that the issue with respect to such a broadly worded standard is not actual notice, but 

whether a reasonably prudent person would recognize the danger. Ideal Cement Co., supra. 

Even if Respondent had no prior notice that scrambling up the side of the mill was unsafe, it 

should have been readily apparent to anyone watching, including Vargas, that Martinez was in 

danger of falling. Therefore, Respondent’s argument does not undermine the validity of this 

citation. 

The preponderance of the evidence shows that the access provided was unsafe. 

Therefore, this citation was validly issued. 

2. The Violation Was Reasonably to Result in a Fatal Injury to One Miner And Was 

Significant And Substantial In Nature 

Inspector Villahermosa marked the gravity of the cited danger in Citation No. 8269721 as 

“Reasonably Likely” to result in “Fatal” injury to one person. (GX-5). These determinations are 

supported by a preponderance of the evidence. 

 The event against which the instant standard, 30 C.F.R. §56.11001 is applied is exposure 

to dangerous conditions while accessing a workplace. Here, the inspector credibly testified that a 

36 FMSHRC Page 1408
fall while climbing up the mill would be reasonably likely to result in a serious, perhaps fatal, 

injury. (Tr. 30-32, 34). Specifically, Inspector Villahermosa testified that if Martinez had fallen 

while climbing up the handrails, he could have hit his head or neck. (Tr. 119-123). This type of 

fall could have resulted in a broken neck or fractured skull. (Tr. 34). Martinez could also have 

been injured as he reached the top of the mill and fallen from an even greater height. (Tr. 31-32, 

34, 133). He could have also fallen during his descent. As the miner was untied and using 

handrails (and other structure) in an unintended fashion to climb, such injuries were reasonably 

likely to occur. 

 Respondent argued that such a fall would be possible, but would be less serious because 

the miner was tied off. (Respondent’s Post-Hearing Brief at 12-13). As discussed at length 

supra, I found that Martinez and Vargas to be incredible witnesses as it relates to Martinez 

accessing the mill. I credit the testimony of Inspector Villahermosa that the miner was not tiedoff when he first arrived and further that Martinez conceded that he had not tied off on his climb. 

(Tr. 24, 26, 28-29, 96). Further, given the unintended use Martinez made of the handrails and 

the mill, as well as the large amount of equipment and other items in the mill area, I find that 

even if Martinez was tied-off, he faced considerable hazards. Therefore, I affirm the Secretary’s 

findings with respect to gravity. 

Finally, only one miner was on top of the mill. (Tr. 24, 26). There was no indication that 

more than one miner would ever be working on top of this area. As a result, the preponderance 

of the evidence supports a finding that one person would be affected. 

With respect to S&S, the first element - the underlying violation of a mandatory safety 

standard - it has already been established that Respondent violated 30 C.F.R. §75.11001. 

With respect to the second element of Mathies, a discrete safety hazard – that is a 

measure of danger to safety – contributed to by the violation – was also met. As discussed 

supra, the cited condition contributed to the danger of a fall. The miner was scrambling up the 

side of a mill using handrails to a work area 7 feet above a platform (10 feet above the ground) 

without a tie-off. (Tr. 39, 46). The miner was reasonably likely to fall. 

Respondent argued that the cited condition did not contribute to a safety hazard because 

climbing the structure was safe, even if other methods might have been safer. (Respondent’s 

Post-Hearing Brief at 12). As discussed at length, Respondent’s decision to allow Martinez to 

scramble up the side of the mill untied exposed the miner to a fall. This is not a conflict between 

two “safe” options, one preferred by the operator and one by the inspector. Respondent’s 

method did not provide the requisite safety to the miner. 

Respondent also argued that the cited condition did not contribute to a safety hazard 

because the miner used “three points of contact” and was tied. (Respondent’s Post-Hearing 

Brief at 12). As noted before, the use of “three points of contact” does not transform an 

otherwise unsafe access into a safe access. As noted by the inspector, “three points of contact” is 

a safety precaution used for proper forms of climbing, like using ladders or stairs, not for 

scrambling up handrails. (Tr. 258, 266). Further, as discussed supra, I credited the testimony of 

Inspector Villahermosa that the miner was not tied off. However, I find that even if Martinez 

36 FMSHRC Page 1409
was tied off, the miner’s method of scrambling up the side of the mill on the handrails exposed 

him to a fall, which constitutes a safety hazard. Therefore, even if he were tied off, the second 

prong of Mathies would be met. 

The third element of the Mathies test – a reasonable likelihood that the hazard contributed 

to will result in an injury – was also met. The preponderance of the evidence establishes that the 

hazard contributed to in this matter would be reasonably likely to result in injury. As discussed 

supra, in the event of a fall from the side or top of the mill, a miner would be reasonably likely to 

suffer an injury, including a fractured neck or skull or other serious injuries. (Tr. 39, 46). 

Respondent argued that the hazard contributed to by this violation created no likelihood 

of an injury because the miner was tied off. (Respondent’s Post-Hearing Brief at 12). Once 

again, I credited the testimony of Inspector Villahermosa that the miner was not tied off. 

Further, even if the miner had been tied off, the unsafe climb still exposed the miner to a fall that 

would have result in an injury. Therefore, even if he were tied off, the third prong of Mathies

would be met. 

The fourth element - that the injury be of a reasonably serious nature - was also met. As 

discussed supra, the inspector credibly testified that a fall from the mill could result in serious, 

perhaps fatal injury. (Tr. 39, 46). A fatal injury (or a fracture neck) would be undoubtedly be 

serious. As a result, the fourth prong of Mathies is met. 

As a result of these factors, I find that the Secretary proved the violation was S&S by a 

preponderance of the evidence. 

3. Respondent’s Conduct Displayed “High” Negligence and an Unwarrantable 

Failure.

In the citation at issue, Inspector Villahermosa found that the operator’s conduct was 

highly negligent in character. (GX-5). The substantial evidence supports this designation. 

With respect knowledge, the factual situation presented here is substantially similar to 

that in Citation No. 8269720. Specifically, a supervisor within in the definition provided in 30 

U.S.C. 802(e) and Martin Marietta Aggregates, supra, witnessed the cited action and actually 

directed it. (Tr. 26-27, 40-41). Therefore, Vargas was clearly aware of the violation. Further, as 

a supervisor, Vargas’ conduct was imputed to Respondent. Whayne Supply Co., supra; 

Rochester & Pittsburgh Coal Co., supra; and Southern Ohio Coal Co., supra. 

Having found the requisite knowledge, the next issue is whether there were any 

mitigating circumstances. I find that none existed. Therefore, I find the Secretary’s designation 

of “high” negligence appropriate. 

Respondent argued that there were mitigating circumstances. However, Respondent 

addressed those arguments in its brief to the issue of unwarrantable failure. As a result, those 

arguments will be discussed in the unwarrantable failure discussion infra. 

36 FMSHRC Page 1410
The Commission has recognized the close relationship between a finding of 

unwarrantable failure and a finding of high negligence. San Juan Coal Co., 29 FMSHRC 125, 

139 (Mar. 2007) see also Consolidation Coal Company, 22 FMSHRC 340, 353 (2000) (holding 

that if there is mitigation, an unwarrantable failure finding is inappropriate). Emery Mining 

Corp., defines an unwarrantable failure, as “aggravated conduct constituting more than ordinary 

negligence.” Emery Mining Corp., 9 FMSHRC 1997, 2002 (Dec. 1987). Such conduct may be 

characterized as reckless disregard, intentional misconduct, indifference, or serious lack of 

reasonable care. Id. at 2004; see also Buck Creek Coal, 52 F.3d 133, 135-136 (7th Cir. 1995). 

The Commission formulated a six-factor test to determine aggravating conduct. IO Coal Co., 

Inc., 31 FMSHRC 1346, 1350-1351 (Dec. 2009). While each factor does not need to be present 

in order to find unwarrantable failure, all six factors must be considered. The Administrative 

Law Judge will consider each of those factors in turn: 

1. Extent Of The Violative Condition 

This particular condition occurred on a single, damaged mill at the mine. While 

Respondent had been cited for similar conditions in the past (as will be discussed infra), the 

instant violation was not particularly extensive. 

2. The Length of Time of the Violation Existed 

The evidence showed that the condition had existed for some time. The uncontested 

evidence shows that Martinez climbed the mill twice a month for two years. (Tr. 129-130). 

Therefore, the condition was quite lengthy. 

3. Whether the violation is obvious or poses a high degree of danger 

The violation at issue here was obvious and posed a considerable danger. Martinez 

scrambled up the side of the mill in plain sight and was, in fact, under the observation of Vargas. 

Climbing on equipment that is not intended for climbing is obviously a violation of the act. As 

discussed, supra, a reasonably prudent person would have been aware that this was a violation of 

the act. 

 

 Similarly, the evidence shows that the condition posed a high degree of danger. As noted 

in the gravity discussion, this condition was reasonably likely to result in fatal injuries to a miner 

and was S&S. There is no question that the condition posed a high degree of danger. 

 Respondent argued that the condition was neither obvious nor posed a high degree of 

danger because it “took every precaution” to ensure that the employees ascended safely. 

(Respondent’s Post-Hearing Brief at 13). Those precautions included the harness, three points of 

contact, and free hands. (Id.). Of course, one precaution that Respondent failed to take was to 

provide a ladder or some other form of access that was intended to be used for climbing. Instead, 

the miner was required to scramble up the side of the mill using handrails and structure as a 

ladder. I find that Respondent exposed the miner to a dangerous fall as a result of this 

improvised access method. For the reasons discussed at length earlier, the un-tied harness, three 

points of contact, and free hands did not lessen this danger. Further, they did not make the 

36 FMSHRC Page 1411
danger any less obvious, the miner was still scrambling up the side of the mill with no ladder at a 

dangerous height. Therefore, the evidence does not support Respondent’s argument. 

4. Whether the operator had been placed on notice that greater 

efforts were necessary for compliance or that this condition was an 

issue. 

Respondent was aware that greater efforts were needed. The Secretary presented 

evidence that Respondent had been cited nine times in the past for similar violations. 

(Secretary’s Post-Hearing Brief at 17). Past citations are relevant to the issue of whether 

Respondent had notice. IO Coal at 1353-1355. Therefore, Respondent had meaningful notice 

that the cited condition was not permissible and should have taken action to correct it. 

 Respondent argued that it did not receive notice because it had been climbing in this 

manner for 10 years without being told that it was unsafe. (Respondent’s Post-Hearing Brief at 

13). There is no requirement that an MSHA inspector explain to an operator each and every 

action that might constitute a violation of every standard. The nine previous citations should 

have given Respondent ample notice that it was doing something wrong. 

5. The operator’s efforts in abating the violative condition 

The evidence shows that the condition was abated without delay. 

6. Operator’s knowledge of the existence of the violation 

 “It is well-settled that an operator’s knowledge may be established, and a finding of 

unwarrantable failure supported, where an operator reasonably should have known of a violative 

condition.” IO Coal Co., 31 FMSHRC at 1356-1357 (citing Emery, 9 FMSHRC at 2002-2004). 

A supervisor’s knowledge and involvement is an important factor in an unwarrantable failure 

determination. See Lopke Quarries, Inc., 23 FMSHRC 705, 711 (July 2001) citing (REB 

Enterprises, Inc., 20 FMSHRC 203, 224 (Mar. 1998) and Secretary of Labor v. Roy Glenn, 6 

FMSHRC 1583, 1587 (July 1984). In fact, a supervisor’s actual knowledge can be imputed to 

the Respondent for purposes of determining an unwarrantable failure, in addition to the penalty. 

Whayne Supply Co., supra; Rochester & Pittsburgh Coal Co., supra; and Southern Ohio Coal 

Co., supra. As discussed supra, the preponderance of the evidence shows that Vargas actually 

directed and witnessed Martinez’s actions. Therefore, his knowledge can be imputed to 

Respondent. Respondent had actual knowledge of the existence of this violation. 

 In light of the length of time the violation had existed, the obviousness and high degree of 

danger posed by the condition, the notice Respondent received, Respondent’s knowledge of the 

cited condition, and the fact that Respondent’s actions are best characterized as “high” 

negligence, I find that this violation was an unwarrantable failure on the part of the operator. 

36 FMSHRC Page 1412
4. Penalty

Having affirmed the Secretary’s determinations in all respects, no deviation in the civil 

penalty is necessary. In fact, the proposed penalty is appropriate under the Act. Therefore, 

Respondent is hereby ORDERED to pay a civil penalty in the amount of $11,900.00 with 

respect to this violation. 

Defective Equipment Citation

I. SUMMARY OF TESTIMONY 

Villahermosa was at the Cantera Canas Mine on August 26, 2010 and inspected the 

equipment. (Tr. 46-47). Usually, the person accompanying Villahermosa for the inspection 

organizes the equipment for examination. (Tr. 49-50). The inspections can occur at the shop 

area or out on the road. (Tr. 50). During this inspection, Villahermosa and the safety 

representative, Noe Arroyo, went to the road and waited for the trucks. (Tr. 51). This allowed 

them to inspect trucks while they were loaded, as required. (Tr. 50-51). 

During that inspection Villahermosa issued Citation No. 8544130 (GX-15) for failure to 

take several pieces of defective equipment out of operation. (Tr. 47-49, 100-101). None of the 

equipment inspected had tags, markings, or was placed in an area indicating it was out of service. 

(Tr. 51). Villahermosa informed Arroyo of each violation and that that the overall inspection of 

mobile equipment was ineffective. (Tr. 57, 59-60). The maintenance shop coordinator, Horacio 

Terron learned about the conditions later, when he returned to the plant. 14 (Tr. 189). Terron 

was away from the plant periodically between July and October 2010 for private medical 

reasons, including the day of the instant inspection. (Tr. 198-199). 

Inspector Villahermosa testified that two of Respondent’s cranes had non-functioning 

parking brakes, deteriorated seats, no load charts, missing engine guards, and one had a seat belt 

unattached and lying on the floor. (Tr. 47, GX-16). When Villahermosa arrived, the seat belt for 

Crane 771 was located on the tire. (Tr. 55-56). Lack of seatbelt could result in serious injury in 

a collision. (Tr. 52). If the cranes were to run off the road or hit a berm, a miner could be 

thrown from the equipment and suffer a fatal injury. (Tr. 52,66). The miner could be run over 

by the equipment after ejection. (Tr. 66). 

Inspector Villahermosa also found that a lack of load charts could result in too much 

weight being placed on the crane causing a collapse and fatalities. (Tr. 52, 66). However, 

 14 Horacio Osvaldo Terron Vanga appeared at hearing and testified for Respondent. (Tr. 185). At 

the time of the hearing, Terron worked for Respondent and had done so since February 2004. (Tr. 186). 

He started at Respondent as a maintenance planner for the concrete fleet. (Tr. 186-187). He then worked 

as maintenance chief for the concrete division, maintenance manager for concrete and logistics, the 

Dessarrollos Multiples (quarry) division, and the coordinator of the maintenance shop in Ponce. (Tr. 

187). At the time of the hearing he was the maintenance planner for the milling and packing division 

inside the plant. (Tr. 187). On August 26, 2010 he was the coordinator of the maintenance shop in the 

cement plant. (Tr. 188). In that capacity he would plan maintenance of mobile equipment in the quarry. 

(Tr. 188-189). 

36 FMSHRC Page 1413
Respondent told Villahermosa that they would not load the cranes to the maximum capacity and 

he had no information to contradict that claim. (Tr. 106). Further, Terron learned in a personnel 

meeting that the operator had used the equipment for about 15 years and had not used a load 

chart in years. (Tr. 195-196). The operator was trained in the equipment and was used to 

working with it. (Tr. 196). 

In Inspector Villahermosa’s opinion, defective parking brakes would allow the crane to 

roll and strike someone if parked on a hill. (Tr. 52-53, 107-108). However, Villahermosa did 

not know if the equipment was used on grades. (Tr. 108). Further, the mine used “riggers” as 

brakes and these most likely would have prevented the vehicle form moving. (Tr. 108). 

A defective guard on the crane could allow miners to contact moving parts. (Tr. 53). 

The broken seats had existed for a long time, perhaps years and were in bad shape. (Tr. 

108). Long-term use of seats without cushion could cause back problems. (Tr. 53, 108). 

Villahermosa did not recall being informed that Respondent sought new seats to comply with the 

standard. (Tr. 108). 

One of the Pettibone cranes, 771, was parked behind the maintenance shop. (Tr. 102, 

190-191, 205, 259-260). Terron testified that it was behind the shed since July 2010 because it 

had a leak on the bottle for the jacks and was waiting on spare parts. (Tr. 191-193). It was still 

there at the time of the hearing. (Tr. 193). The area behind the shed was where Respondent 

parked out-of-service equipment. (Tr. 191). This equipment may only be accessed by a certified 

mechanic under Puerto Rican law. (Tr. 192-193). Terron testified that it had been there, behind 

a green truck for several weeks before the inspection and had not moved when he returned to 

work after the inspection. (Tr. 192, 205). Terron testified that he told Bautista that the 771 crane 

was out of service in July and that he should not use it. (Tr. 200-201, 206). However, Terron 

could not be certain that Bautista did not use it when he was out. (Tr. 201). 

No one told Villahermosa that the machine had been out of service since June 2010. (Tr. 

103). Instead, the equipment operator, Bautista, told the inspector that the equipment was used 

when the other one, 774, was not working. (Tr. 103, 261-262). In fact, that day Villahermosa 

asked to inspect machines that would be used and Bautista led him to the 771 crane. (Tr. 260, 

272). While he knew the equipment was behind the shed, the operator said it was used on more 

than one occasion, in June and August. (Tr. 260-261, 272-273). The miner’s statement 

contradicted Terron’s testimony. (Tr. 270). Villahermosa testified that operators, including 

Respondent, often argue that equipment is out of service if he is trying to inspect. (Tr. 269). 

Whether the equipment was in use was not included in Villahermosa’s notes. (Tr. 269). 

The fact that Bautista said the equipment was used weeks earlier was in the notes, just not the 

actual statement. (Tr. 269-270). Generally, Villahermosa does not include whether equipment is 

in use in his notes. (Tr. 272, 275). The operator determines what equipment is in service. (Tr. 

273). He asks what will be in service so he can inspect it. (Tr. 272). If an operator says that 

equipment is out of service, he would ask why. (Tr. 272). He did not recall anyone telling him 

the equipment could be used on August 24-26. (Tr. 273-274). It was probably not used that day, 

36 FMSHRC Page 1414
but it was used before. (Tr. 271). Further, on the day of the citation, as far as he could tell the 

771 crane was ready to be used because it was not tagged. (Tr. 272). 

Terron believed that at some point the cabin of 771 was removed. (Tr. 194). Without the 

cabin, it could not be used. (Tr. 194). He was not sure if anything else was removed. (Tr. 194). 

Villahermosa believed the crane had a cage when the citation was issued. (Tr. 102-103). 

 

Next, Respondent’s front-end-loader did not have safe access. (Tr. 53). Respondent had 

modified the loader so that it was no longer greased at floor level, but instead at the front of the 

machine. (Tr. 53-54). In order to reach the front, miners had to climb the loader. (Tr. 54). 

Some of the miners reached the loader by climbing a ladder or the tire. (Tr. 55). A fall from that 

point, seven feet high, could cause serious injury or death (depending on how the miner fell). 

(Tr. 54-55, 65-66, 104). Miners working on this equipment tied themselves to the mirror or 

handrail, but they could have fallen and hit the structure or, depending on the length of the line, 

the ground. (Tr. 54-55, 104-106). Such a fall was likely to occur and cause permanently 

disabling injuries, including severe cuts to the skull or broken bones. (Tr. 105-106). Terron 

testified that the lubrication technicians could lubricate the equipment by parking the loader 

close to the balcony and reaching it from there. (Tr. 194-195). However, he never saw anyone 

perform this task. (Tr. 195). 

Respondent had two defective dozers; one was missing a front wiper and another had an 

uncharged fire extinguisher. (Tr. 66, 107, GX-16). Low visibility from a missing wiper could 

result in the equipment striking miners or other machinery causing injury to those inside or 

outside the machine. (Tr. 52, 66). The lack of a charged fire extinguisher could cause serious 

injury in the event of a fire. (Tr. 67). 

Also, Respondent had a water truck with a defective parking brake. (GX-16). If the 

water truck’s parking brake failed, it could result in someone being run over. (Tr. 66-67). 

Finally, a haul truck was equipped with a faulty speedometer and fuel gauge. (GX-16). 

Terron testified regarding the difficulty he experienced getting additional parts. (Tr. 196-

198). While his duties included ordering replacement parts, another department handled the 

negotiations and purchasing. (Tr. 196). First, Terron would make a request for parts, which had 

to be authorized. (Tr. 197). Then the request went to the planning department for validation. 

(Tr. 197). Then the request went to the purchasing department where a negotiator would 

purchase the part. (Tr. 197). The validation and ordering process took 10 days and then the 

equipment has to come from the U.S. or another country. (Tr. 197). Then the part would go to 

the plant. (Tr. 197). Some parts, like for the Caterpillar, arrived more quickly than others. (Tr. 

196). There was less support for the Pettibone Cranes because there were no dealers in Puerto 

Rico and the equipment was old (it was bought used and refurbished 15-20 years ago). (Tr. 197). 

It is harder to find replacement parts for older, discontinued equipment. (Tr. 198). The 

replacements were generally new, non-original parts that had to be adapted or modified to work. 

(Tr. 198). Sometimes the bases or supports had to be modified or adapted. (Tr. 198). 

36 FMSHRC Page 1415
Villahermosa believed the cited conditions were reasonably likely to result in injury 

because the equipment had defects that affected safety, the conditions were not corrected, and the 

machines were still being used. (Tr. 65). The equipment operators and miners in the area were 

those exposed. (Tr. 68). This citation was marked as S&S because there was a lot of equipment 

with a lot of safety defects, and they were still being used. (Tr. 67). 

Villahermosa believed that Terron and Guillermo Vasquez engaged in aggravated 

conduct because they received daily examination records. (Tr. 60-61, 67). With respect to the 

cranes, Bautista, completed a “daily inspection report” of the machines and submitted them to 

Terron as per Respondent’s policy. (Tr. 62-63, 199-200). Such an inspection was supposed to 

occur on all equipment that was to be used that day and was supposed to check the security 

points (wipers, seatbelts, fire extinguishers, and other devices). (Tr. 199-200, 204, 270-271). 

Terron, as Bautista’s supervisor, was tasked with collecting these reports and coordinating 

repairs of defective equipment. (Tr. 61-63). Bautista would leave the reports in Terron’s office 

and he would review, but not sign, them. (Tr. 202, 206-207). If Bautista said the equipment was 

defective, Terron would get a mechanic to inspect it and then take it out of service. (Tr. 202, 

207). Terron had the authority to do so. (Tr. 63-64, 202). 

Terron reviewed the daily inspection report for the 771 Crane dated August 24, 2010. 

(Tr. 204). That report showed that the crane was defective. (Tr. 67-68). Specifically, that it had 

leaks in its hydraulic system, rusted wires, a broken cabin, and a broken seat. (Tr. 207-208). 

The leak was the reason the crane was removed from service in July. (Tr. 208). However, 

Terron did not take action to prevent exposure. (Tr. 67-68). In fact, that daily report says that 

the equipment was available for service. (GX-28, Tr. 204-205, 268-269). Bautista said that 

equipment was used when reported hazardous. (Tr. 260, 269) There were two crane inspections 

that day, showing that both cranes, not just 774, were available. (Tr. 262-263, 279). 

Vasquez was the quarry coordinator and was a supervisor for other mobile equipment 

operators. (Tr. 64, 202-203). Vasquez also knew about these defects because his employees had 

turned in inspection forms. (Tr. 65). Both the miners and Vasquez stated that these forms were 

turned in. (Tr. 65). He also had authority to remove unsafe equipment from service. (Tr. 203). 

Villahermosa believed Respondent was highly negligent because it was aware of the cited 

conditions and took no corrective action. (Tr. 68). He also believed this condition was an 

unwarrantable failure to comply because there were defects, Respondent continued to use the 

equipment, and miners were exposed to hazards. (Tr. 68). The equipment should have been 

repaired or removed from service. (Tr. 68). 

II. CONTENTIONS OF THE PARTIES 

The Secretary issued a citation following the August 26, 2010 inspection. This citation 

was issued for an alleged failure to take defective equipment out of service. (GX-15). 

With respect to this citation, No. 8544130, the Secretary asserts that Respondent violated 

30 C.F.R. §56.15005, that this violation was reasonably likely to result in fatal injuries to one 

miner, that the violation was S&S, that it resulted from high negligence, and that it was an 

36 FMSHRC Page 1416
unwarrantable failure to comply. (GX-15)(Secretary’s Post-Hearing Brief at 24-32). The 

Secretary also asserts that a penalty of $3,689.00 is appropriate. (Id.) 

 Respondent asserts that the alleged violation was unlikely to result in any injury, that any 

injury sustained would be non-fatal, and its actions would be better characterized as showing 

“moderate” negligence. (Respondent’s Post-Hearing Brief at 16.) Presumably, Respondent 

would also prefer a reduction in the penalty. 

III. FINDINGS OF FACT AND CONCLUSIONS OF LAW 

1. The Secretary Has Carried His Burden Of Proof By A Preponderance Of The 

Evidence That 30 C.F.R. §56.1400(c) Was Violated.

On August 26, 2010, Inspector Villahermosa issued a 104(d)(1) Citation, No. 8544130, to 

Respondent. Section 8 of that Order, Condition or Practice, reads as follows: 

The mine operator did not ensure that defects on mobile equipment that affect 

safety were corrected in a timely manner to prevent the creation of a hazard to 

persons. The mine operator received the inspection reports and did not make any 

effort to correct the reported conditions. Some conditions were reported for 

several months without corrections or preventative actions taken while allowing 

the equipment to be operated with the defects. Not correcting hazards and 

allowing equipment to be used can lead to serious or fatal injuries. Horacio 

Terron (Maintenance Coordinator) and Guillermo Vazquez (Quarry Coordinator) 

engaged in aggravated conduct constituting more than ordinary negligence in that 

he was aware that of the mobile equipment safety defects and allowed the 

equipment to be used by miners. This violation is an unwarrantable failure to 

comply with a mandatory standard. 

(GX-15). 

 The cited standard, 30 C.F.R. §56.14100(c) (“Safety Devices and Maintenance 

Requirements”), provides the following: 

When defects make continued operation hazardous to persons, the defective items 

including self-propelled mobile equipment shall be taken out of service and placed in 

a designated area posted for that purpose, or a tag or other effective method of 

marking the defective items shall be used to prohibit further use until the defects are 

corrected. 

30 C.F.R. §56.14100(c). 

As Judge Weisberger noted in Dix River Stone, Inc., “to show a violation of Section 

56.14100(c) supra, the Secretary must establish 1) the existence of a defect, that 2) makes 

continued operations hazardous to persons, and 3) the machine was not taken out of service.” 32 

FMSHRC 1779, 1784 (Nov. 2010)(ALJ). In order to find a violation, each of those factors must 

36 FMSHRC Page 1417
be met. See e.g. North Idaho Drilling, Inc., 2013 WL 4140375, *9-10 (Aug. 7, 2013)(ALJ 

Manning) (finding a violation did not exist when there was a defect, the machine was not taken 

out of service, but continued operations did not expose miners to a hazard). In discussing a 

similar standard, the Commission stated that equipment is still in service if it “is located in a 

normal work area, fully capable of being operated.” Ideal Basic Industries, Cement Division, 3 

FMSHRC 843, 845 (April 1981); see also Mountain Parkway Stone, Inc., 12 FMSHRC 960, 963 

(May 1990) (equipment was in use when it was “parked in the mine in turn-key condition and 

had not been removed from service.”) The Commission found that allowing equipment to stay 

“parked in a primary working area could allow operators easily to use unsafe equipment yet 

escape citation merely by shutting it down when an inspector arrives.” Id. Therefore, the 

equipment does not have to be actually used, just be available for use. 

In the instant matter, credible evidence establishes that there were several pieces of 

equipment at the mine that were defective. (See Secretary’s Post-Hearing Brief at 24-26). 

Inspector Villahermosa testified at length about the various dangers that would arise from these 

defects. (Tr. 47, 52-55, 65-67, 104-108). In addition, Respondent was cited 12 times for these 

pieces of defective equipment and paid the levied fines. (GX-15). The payment of a civil 

penalty constitutes an admission that the cited conduct actually occurred and renders the citation 

final. See Old Ben Coal Co., 7 FMSHRC 205, 209 (Feb. 1985). Finally, Respondent explicitly 

concedes in its brief that it was cited for defects in several pieces of equipment. (Respondent’s 

Post-Hearing Brief at 16). Therefore, there is no issue as to whether defects existed or as to 

whether those defects were hazardous to persons under continued operations. The only question 

is if the equipment was taken out of service. 

 The Secretary presented credible evidence to support a finding that the equipment at issue 

here was not removed from service. Perhaps most persuasively, Respondent had conducted preoperational examinations of the cited equipment. (Tr. 199-200)(GX-28). This is especially 

important because Respondent would only conduct pre-operational examinations on equipment 

that was going to be used that day. (Tr. 204-205). Therefore, under Respondent’s protocols, 

there was no question that the defective equipment was “in use.” It had been prepared for 

operation on the day of the inspection with every indication that it would be used. 

Even without the pre-operational examinations, the evidence shows that this equipment 

was not removed from service. The evidence shows that the cited equipment was sitting in the 

regular work area. Inspector Villahermosa credibly testified that he conducted his inspection of 

the equipment in an active work area, so that he could see the equipment while loaded. (Tr. 50-

51). Further, none of the equipment was marked “out of service” or placed in an area 

specifically marked for “out-of-service” equipment. (Tr. 51). Further, when Inspector 

Villahermosa inspected the equipment, no one told him that the specific pieces he was citing 

were not being used. (Secretary’s Post-Hearing Brief at 28). This type of action would be 

reasonable if he was inspecting equipment that was actually removed from service. In fact, 

employees told Villahermosa that the equipment was recently operated. (Tr. 260-261, 269-270, 

272-273). 

Therefore, the preponderance of the evidence shows that the equipment was not removed 

from service, but actually in a working area, ready for use, and “available” under existing 

36 FMSHRC Page 1418
protocol. In light of the failure to remove this equipment from service, and the fact that the 

equipment was defective and hazardous, I find that Respondent violated 30 C.F.R. §56.14100(c). 

 In its brief, Respondent asserted several arguments to support its claim that this citation 

was invalid. (Respondent’s Post-Hearing Brief at 8, 16). However, those arguments are not 

supported by the evidence. 

As with the Mill Citations, Respondent contended that the inspector’s testimony was 

unreliable and could not form the basis of a finding that a violation took place. (Respondent’s 

Post-Hearing Brief at 8). I find that there is no credible evidence to support this claim. I will 

address each instance of allegedly unreliable testimony from the inspector in turn. 

First, Respondent noted that Inspector Villahermosa could not remember where he 

inspected the Pettibone Crane No. 771 and did not include that information in his notes. 

(Respondent’s Post-Hearing Brief at 8). This assertion is based on Inspector Villahermosa’s 

testimony. (Tr. 102). However, even though Villahermosa was unsure of the location of the 

Pettibone Crane, I find him credible. The issue for the inspector was whether Respondent 

violated a safety standard. He found that found that the crane was dangerously defective. (Tr. 

47, 52-53, 55-56, 66, 107-108). He also found that it was not tagged out of service and was, in 

fact, given a pre-shift examination so that it could be used that day. (Tr. 51). Those were the 

relevant facts needed to find a violation of the cited standard. The location of the crane was not 

relevant to that issue. I find that it is natural that the inspector would not include the location in 

his notes and that he would not remember irrelevant details during the three years between the 

inspection and the hearing. 

 Respondent also questioned Inspector Villahermosa’s credibility because he did not 

include in his notes that a miner told him the Pettibone Crane No. 771 was being used. 

Specifically, the inspector stated that a miner told him that the equipment had recently been used, 

but did not include the miner’s actual statement in the notes. (Tr. 268-270). But this is not 

relevant. The equipment was ready for use and could have been used. In fact, Villahermosa 

asked Respondent’s representative to take him to the active equipment and the miner brought 

him to the Pettibone Crane No. 771. (Tr. 260, 272). Again, Villahermosa credibly testified to 

the substantive issues in this matter, his failure to recall irrelevant trivia does not affect that 

credibility. 

 In addition to questioning Inspector Villahermosa’s credibility, Respondent also argued 

that the citation was invalid because it was attempting to correct the problem. (Respondent’s 

Post-Hearing Brief at 16). It argued that it tried to correct the problems, but did not have time. 

(Id.). There is no evidence, beyond Terron’s self-serving testimony, that Respondent made any 

attempts to correct the cited conditions. (Tr. 196-198). There are no receipts, no work orders, 

and no invoices to show that repairs were being made. However, even if there were, Respondent 

would still have violated the cited standard. The standard does not require Respondent to make 

efforts to repair defective equipment. It requires operators to remove defective equipment from 

service. Here there was defective equipment that was still available for use. Even if all the 

replacement parts were sitting at Respondent’s mine and there were concrete plans to repair the 

equipment the next day, Respondent still violated the standard by not removing the equipment 

36 FMSHRC Page 1419
from service while the repairs were pending. Respondent’s argument, even if supported by the 

evidence, would not undermine the validity of this citation. 

2. The Violation Was Reasonably Likely to Result in a Fatal Injury to One Miner 

And Was Significant And Substantial In Nature

Inspector Villahermosa marked the gravity of the cited danger in Citation No. 8544130 as 

“Reasonably Likely” to result in “Fatal” injury to one person. (GX-15). These determinations 

are supported by a preponderance of the evidence. 

 The event against which the instant standard, 30 C.F.R. §56.14100(c) is applied is 

exposure to hazards related to defective equipment. Here, the inspector testified credibly 

testified that various defects in the equipment exposed miners to a reasonable likelihood of 

serious injury. With respect to the bulldozer, missing windshield wipers, in the event of low 

visibility or inclement weather, could impair the vision of the operator to the extent that he 

would be unable to see other miners walking or working in his vicinity resulting in a collision. 

(Tr. 66). With respect to the crane, the absence of seatbelts could cause an operator to be thrown 

from the cabin if he went over a berm or down a steep decline. (Tr. 66). Further, if the cranes’ 

booms broke because the operator erroneously lifted loads that exceeded their capacity, the 

broken booms and the loads could cause serious or fatal injuries if they struck individuals in the 

vicinity. (Tr. 66). Defective brakes on those cranes or on the water truck could cause the 

vehicles to roll away and strike miners. (Tr. 66). All of these pieces of equipment were 

extremely heavy and would cause fatal injuries if they struck a miner. In addition, a defective 

guard on a crane could allow miners to contact moving parts. (Tr. 53). A miner falling from the 

front-end loader, even if tied, could suffer serious injury. (Tr. 54-55, 104-106). Deteriorated 

seats could also cause some long-term injuries to miners. (Tr. 53, 108). In short, the defective 

equipment exposed miners to a multitude of potential hazards, most fatal, that were reasonably 

likely to occur while the equipment was in service. 

Only one miner would likely be affected by these conditions at any one time. 

With respect to S&S, the first element, the underlying violation of a mandatory safety 

standard, it has already been established that Respondent violated 30 C.F.R. §56.14100(c). 

With respect to the second element of Mathies, a discrete safety hazard – that is a 

measure of danger to safety – contributed to by the violation – was also met. The cited 

condition, failure to remove defective equipment from the mine, contributed to several discrete 

safety hazards. Miners were exposed to being struck by faulty equipment, to being thrown from 

and crushed by faulty equipment, to being crushed by broken equipment, to contacting moving 

equipment, to a fall, and to possible long-term back injury. (Tr. 47, 52-55, 65-67, 104-108). 

The third element of the Mathies test – a reasonable likelihood that the hazard contributed 

to will result in an injury – was also met. The preponderance of the evidence establishes that the 

hazard contributed to in this matter would be reasonably likely to result in injury. As discussed 

supra, if a miner was struck by these large pieces of equipment, the likely result would be a 

crushing or striking injury. (Tr. 52-53, 107-108, 66-67). Other pieces of equipment, like the 

36 FMSHRC Page 1420
crane with a missing guard, exposed the miners to other types of injury. (Tr. 53-55, 65-67, 104-

106, 108). 

The fourth element -that the injury be of a reasonably serious nature - was also met. As 

discussed supra, the inspector credibly testified that in the event the hazards here were realized, 

miners being struck or crushed by large equipment would suffer fatal injury. Other defects 

exposed miners to serious, if less fatal, injuries. As a result, the fourth prong of Mathies is met. 

As a result of these factors, I find that the Secretary proved the violation was S&S by a 

preponderance of the evidence. 

Respondent argues that this citation should not be S&S because 10 of the underlying 

twelve violations were not S&S. (Respondent’s Post-Hearing Brief at 16). Of course, that 

means that two of the underlying twelve violations were S&S. If the dangers associated with 

some of the underlying defects were S&S, then obviously failure to remove the defective 

equipment from service was also S&S. It would defy logic if the existence of defective 

equipment was S&S, but the presence and use of that equipment was not. 

3. Respondent’s Conduct Displayed “High” Negligence and an Unwarrantable 

Failure.

In the citation at issue, Inspector Villahermosa found that the operator’s conduct was 

highly negligent in character. (GX-15). The substantial evidence supports this designation. 

The facts establish that Respondent, through its agent, had actual knowledge of the cited 

condition. Terron was the coordinator of maintenance and a supervisor within in the definition 

provided in 30 U.S.C. 802(e) and Martin Marietta Aggregates, supra. (Stip. 9)(Tr. 188). The 

same was true of Vasquez, the quarry coordinator. (Tr. 65, 202-203). At the mine, equipment 

operator’s would conduct pre-shift examinations and submit the reports to Terron and/or 

Vasquez. (Stip. 10) (Tr.65). Terron and Vasquez were responsible for correcting defects found 

as a result and could remove defective equipment from service. (Tr. 60-64, 67, 203). In the 

instant matter, the equipment operator, Bautista, submitted forms on August 24, 2010 that clearly 

stated that the Pettibone Crane No. 771 was defective.15 (Tr. 67-68). Terron reviewed this report 

but did not take action to prevent exposure. (Tr. 67-68, 204). In fact, that daily report shows 

that the equipment was available for service. (GX-28) (Tr. 204-205, 268-269). Bautista stated 

that equipment was used when reported hazardous. (Tr. 260, 269) Vasquez was also aware of 

defects in the equipment. (Tr. 65). Therefore, Terron and Vasquez had actual knowledge that 

hazardously defective equipment was not removed from service. As supervisors, Terron and 

Vasquez’s conduct was imputed to Respondent. Whayne Supply Co., supra; Rochester & 

Pittsburgh Coal Co., supra; and Southern Ohio Coal Co., supra. 

 15 The report showed the crane had leaks in its hydraulic system, rusted wires, a broken cabin, and 

a broken seat. (Tr. 207-208). The leak was the reason the crane was removed from service in July. (Tr. 

208). There were two crane inspections that day, showing that both cranes, not just 774, were available. 

(Tr. 262-263, 279). 

36 FMSHRC Page 1421
Having found the requisite knowledge, the next issue is whether there were any 

mitigating circumstances. I find that none existed. Therefore, I find the Secretary’s designation 

of “high” negligence appropriate. 

Respondent argued that there were mitigating circumstances. However, Respondent 

addressed those arguments in its brief to the issue of unwarrantable failure. As a result, those 

arguments will be addressed in the unwarrantable failure discussion infra. 

The Secretary cited Respondent’s conduct as an unwarrantable failure to comply with the 

cited standard. A preponderance of the evidence, as analyzed in through the IO Coal factors, 

supports this determination: 

1. Extent Of The Violative Condition 

The cited condition dealt with several different pieces of equipment. (Tr. 47-49, 100-

101). Further, some of the equipment had more than one defect. (Tr. 47, 53, 68) (GX-16). This 

equipment was examined and reported to management, but it was placed into service or at least 

made available for service. (Tr. 67-68). The evidence supports the Secretary’s characterization 

that Respondent had a “culture of neglect” with respect to the equipment at the mine. 

(Secretary’s Reply Brief at 16). I find that the cited condition was extensive. 

2. The Length of Time of the Violation Existed 

The evidence showed that the condition had existed for some time. The evidence showed 

that, for example, the Pettibone Crane No. 771 was damaged for over a month, but remained in 

service. (Tr. 67-68, 204-205, 268-269)(GX-28). Further, Inspector Villahermosa testified that 

some of the deterioration in the equipment that he observed would have taken considerable time 

to develop. Therefore, the condition was quite lengthy. 

3. Whether the violation is obvious or poses a high degree of danger 

The violation at issue here was obvious and posed a considerable danger. As discussed at 

length supra, the dangerously defective equipment was highly likely to result in fatal or other 

serious types of injury. (Tr. 47, 52-55, 65-67, 104-108). Miner could have been struck or 

crushed by equipment, caught within equipment, thrown from equipment, and falling from 

equipment. The condition was also obvious. The defective equipment included easily visible 

conditions like missing seatbelts and warning signs. Further, the defects were actually observed 

during pre-shift examinations, indicating that they were obvious to a prudent examiner. (Tr. 67-

68, 207-208)(GX-28). 

 Respondent argued that the condition was neither obvious nor posed a high degree of 

danger because it did its best comply with the standard, but did not have sufficient time. 

(Respondent’s Post-Hearing Brief at 16-17). There is some evidence that Respondent had 

attempted to repair the defects, albeit in the form of self-serving testimony without 

documentation. (Tr. 196-198). However, Respondent was not cited for failure to repair 

equipment. It was not required under the cited standard to repair equipment. It was required to 

36 FMSHRC Page 1422
remove defective equipment from service. Repair was optional. There is no indication in the 

evidence that Respondent made any effort to remove equipment from service. Instead, records 

show that the equipment was in regular work areas and was marked “available” on pre-shift 

reports. The evidence does not support Respondent’s argument. 

Respondent also argued that the equipment did not pose a danger because it was not 

actually used, notwithstanding the “available” marking on the pre-shift reports. (Respondent’s 

Post-Hearing Brief at 17). It asserts that the body of those reports indicated that the equipment 

was not available. (Id.). As discussed supra, “removal from service” does not simply turn on 

whether the equipment is actually used. Even if the equipment cited here was not actually used 

(though the evidence supports a finding that it was), the violation was that the equipment was 

sitting in the regular work area in turn-key condition and was in no way marked as “out-ofservice.” In fact, Respondent’s documentation indicated that this equipment was “available” and 

was examined in a way that only active equipment was examined. I find nothing in the body of 

any of the documents submitted that indicated that equipment otherwise marked as “available” 

was actually “unavailable.” Therefore, the evidence does not support Respondent’s argument. 

4. Whether the operator had been placed on notice that greater

efforts were necessary for compliance or that this condition was an

issue.

Respondent was aware that greater efforts were needed with respect to the equipment. 

As noted, Respondent had, just days before the instant citation, been cited 12 times for failure to 

maintain mobile equipment. (GX-27). Further, Respondent knew from its own records (the preshift examinations) that it had extensive problems with its mobile equipment. Respondent had 

sufficient notice that the equipment it had marked “available” for use on the day of the citation 

was in no condition to be operated. 

5. The operator’s efforts in abating the violative condition

The evidence shows that the condition was abated without delay. 

6. Operator’s knowledge of the existence of the violation

As discussed at length in the negligence section, supra, Respondent’s agents Terron and 

Vasquez had actual knowledge of the cited condition from the pre-shift reports. (Tr. 60-61, 67). 

A supervisor’s actual knowledge can be imputed to the Respondent for purposes of determining 

an unwarrantable failure, in addition to the penalty. Whayne Supply Co., supra; Rochester & 

Pittsburgh Coal Co., supra; and Southern Ohio Coal Co., supra. Therefore, this knowledge can 

be imputed to Respondent. Respondent had actual knowledge of the existence of this violation. 

In light of the extensive nature of the condition, the length of time the violation had 

existed, the obviousness and high degree of danger posed by the condition, the notice 

Respondent received, Respondent’s knowledge of the cited condition, and the fact that 

Respondent’s actions are best characterized as “high” negligence, the Administrative Law Judge 

finds that this violation was an unwarrantable failure on the part of the operator. 

36 FMSHRC Page 1423
4. Penalty

Having affirmed the Secretary’s determinations in all respects no deviation in the civil 

penalty is necessary. In fact, the proposed penalty is appropriate under the Act. Therefore, 

Respondent is hereby ORDERED to pay a civil penalty in the amount of $3,689.00 with respect 

to this violation. 

BCN Conveyor Citation

I. SUMMARY OF TESTIMONY 

Villahermosa reviewed Citation No. 8643560 (GX-27), which was issued pursuant to 

previous violations. (Tr. 68-69). The initial citation, given on March 1, was issued because 

material was spilled along the BCN conveyor, creating unsafe, hazardous access to the area. (Tr. 

68-69, 214). The problem was caused because the chute that lowered raw cement material from 

the conveyor was damaged, resulting in spillage. (Tr. 212-214). 

Imilcen Rivera recalled that after the initial citation, she called someone to close off the 

area and then put a plan in place for the area to be cleaned. 16 (Tr. 214). Maintenance cleaned 

the spillage. (Tr. 214). Respondent then made a risk evaluation for the BCN conveyor and 

developed a protocol to correct the conditions. (Tr. 237). This included reconstruction of the 

roof of the chute which would take six months and cost $300,000.00. (Tr. 215, 237). It would 

take time to fix the condition because there was over 20,000 tons of raw material in the 

warehouse that needed to be emptied before the belt could be reached. (Tr. 215, 238). The 

contractor’s plans were complicated and made on a month-to-month basis while the plant 

adapted. (Tr. 215). The condition was corrected in August 2012. (Tr. 238-239). 

Rivera testified that in the interim, the area was constantly cleaned because if the material 

too high, it would stop the conveyor. (Tr. 216, 219). They had someone check the conditions 

each day and clean the mounds of material with a shovel and bucket. (Tr. 219, 242). There were 

miners in the cited area, but only to prepare the area to be cleaned. (Tr. 239). 

Respondent received five time abatement extensions because it was unable to correct the 

problem. (Tr. 69). Rivera testified that several inspections found that the condition still existed. 

(Tr. 215-216). Each time, Respondent closed and cleaned the walkway. (Tr. 216, 237-238). 

After the fifth extension, and a month before the instant citation, Villahermosa saw that the 

material was still present and footprints were in the material so he issued an Order. (Tr. 70-71, 

241). Respondent had placed yellow tape around the area, but there were still footprints in the 

material. (Tr. 71). Collazo felt that the abatement periods given were too short, especially 

considering Respondent told MSHA the condition would take six months to repair. (Tr. 241). 

Collazo testified that the inspector knew on each of these subsequent inspections what 

 16 Imilcen Rivera appeared at hearing and testified for Respondent. (Tr. 210). Rivera worked at 

Respondent as a Safety Coordinator and had done so for a year and eight months. (Tr. 210). Before that 

he had worked as a safety coordinator for Marlin, a contractor, for nine years. (Tr. 210-211). Rivera’s 

nickname is Emily, which appears on some forms. (Tr. 211-212). 

36 FMSHRC Page 1424
Respondent was trying to do. (Tr. 238). If miners were required to leave this area until MSHA 

verified that the condition was corrected, Respondent’s business would grind to a halt. (Tr. 241). 

With respect to Citation No. 8643560, Villahermosa once again observed footprints in the 

material and broken tape. (Tr. 71-74, 216). The area was not closed off and there was about two 

feet of material with footprints in it (though they did not measure it). (Tr. 216-217). Rivera 

testified that there were two footprints; the first was at the beginning of the pile and maybe half 

an inch deep and the second was farther in, but shallower and partial. (Tr. 217-218, 220-221). 

Rivera believed that someone had stepped in, not put their full weight in, and stepped out (she 

was not present to see them made and could not be sure). (Tr. 218, 220-222). There was no 

third footprint in the material. (Tr. 221). Villahermosa saw more than two; he saw a trail. (Tr. 

263). Collazo told Villahermosa that the footprints were present because miners went over the 

area to clean it. (Tr. 264). Villahermosa told Collazo that this was improper because it exposed 

miners to the hazard and that miners should have begun cleaning at the front. (Tr. 264). 

Respondent had not complied with the Order. (Tr. 71). 

Miners could have slipped and hit structure or twisted an ankle or wrist. (Tr. 75). 

Laborers and mechanics were affected when traveling through the area. (Tr. 74-75). 

Respondent was highly negligent because miners continued to access the area in an 

unsafe manner. (Tr. 74). 

II. CONTENTIONS OF THE PARTIES 

The Secretary issued a citation following the above-described inspection. This citation 

was issued for an alleged failure to correct or limit exposure to a previously cited hazard. (GX27). 

With respect to this citation, No. 8643560, the Secretary asserts that Respondent violated 

Section 104(b) of the Act, that this violation had no likelihood to result in injuries to a miner, and 

that it resulted from high negligence. (GX-27)(Secretary’s Post-Hearing Brief at 32-34). The 

Secretary also asserts that a penalty of $5,000.00 is appropriate. (Id.) 

 Respondent asserts that the alleged violation would be better characterized as showing 

“low” negligence. (Respondent’s Post-Hearing Brief at 19.) Presumably, Respondent would 

also prefer a reduction in the penalty. 

III. FINDINGS OF FACT AND CONCLUSIONS OF LAW 

1. The Secretary Has Carried His Burden Of Proof By A Preponderance Of The 

Evidence That 30 U.S.C. §814(b) Was Violated.

On June 20, 2012 Inspector Villahermosa issued a 104(a) Order, No. 8643560, to 

Respondent. Section 8 of that Order, Condition or Practice, reads as follows: 

36 FMSHRC Page 1425
The mine operator continued to allow personnel to transit along conveyor BC-N 

with approximately 2-1/2 feet of spilled material even though a 104(b) Order No. 

8643534 for non-compliance was issued by MSHA on May 24, 2012. His order 

required the walkway next to the conveyor to withdrawn from service until the 

spilled material was removed and a safe access is obtained. Foot prints were 

observed on top of the spilled material indicating a person or persons transited the 

area. Area was not closed off. This condition has not been designated 

“significant and substantial) because the conduct violated a provision of the Mine 

Act rather than a mandatory Safety or health standard 

(GX-27). 

 The cited Section, 30 U.S.C. §814(b) (“Citations and Orders”) provides the following: 

If, upon any follow-up inspection of a coal or other mine, an authorized 

representative of the Secretary finds(1) that a violation described in a citation 

issued pursuant to subsection (a) of this section has not been totally abated within 

the period of time as originally fixed therein or as subsequently extended, and(2) 

that the period of time for the abatement should not be further extended, he shall 

determine the extent of the area affected by the violation and shall promptly issue 

an order requiring the operator of such mine or his agent to immediately cause all 

persons, except those persons referred to in subsection (c) of this section, to be 

withdrawn from, and to be prohibited from entering, such area until an authorized 

representative of the Secretary determines that such violation has been abated. 

30 U.S.C. §814(b). 

The Secretary presented credible evidence that Respondent was issued a 104(a) citation 

regarding the BCN conveyor on March 1. (Tr. 68-69, 214)(GX-27). Further, Inspector 

Villahermosa credibly testified that, despite five extensions, Respondent failed to totally abate 

the cited condition and was issued a 104(b) Order on May 24, 2014. (GX-27). A follow-up 

inspection showed Respondent had not complied with the 104(b) Order, leading to the instant 

Order. In its brief, Respondent did not contest the validity of this Order and explicitly stated that 

it did not intend to dispute any finding by the Secretary, save for the negligence designation. 

(Respondent’s Post-Hearing Brief at 18). In light of this fact, and the evidence presented, I find 

that this citation was valid. 

2. The Violation Posed No Likelihood of Injury. 

Inspector Villahermosa marked the gravity of the cited danger in Citation No. 8643560 as 

“No Likelihood” to result in “No Lost Workdays” injury” to a miner. (GX-27). The evidence 

supports this designation. (Tr. 68-69, 74-75, 214). In its brief, Respondent did not contest 

gravity designation of this Order and explicitly stated that it did not intend to dispute any finding 

by the Secretary, save for the negligence designation. (Respondent’s Post-Hearing Brief at 18). 

Therefore, I find the preponderance of the evidence supports the Secretary’s findings. 

36 FMSHRC Page 1426
3. Respondent’s Conduct Displayed “High” Negligence.

In the citation at issue, Inspector Villahermosa found that the operator’s conduct was 

highly negligent in character. (GX-27). The preponderance of the evidence supports this finding. 

With respect to knowledge, Respondent absolutely knew the condition existed. Inspector 

Villahermosa testified that he had issued the initial citation for the messy walkway over a month 

earlier and further, had been back to the mine five times to extend the abatement period. (Tr. 68-

69, 214). Further, Respondent’s witness, Rivera, testified that they were attempting to correct 

the condition but, for various reasons, were unable to do so. (Tr. 214-215, 237-239). Rivera was 

the Safety Coordinator for Respondent and therefore a supervisor. (Tr. 210). Her knowledge of 

the cited condition is imputed to Respondent. Therefore, there is no question that Respondent 

had knowledge that it had failed to abate the cited condition and had failed to comply with the 

previous Order. 

Therefore, the only issue remaining is whether there were any mitigating circumstances. 

The preponderance of the evidence shows that there is not. Respondent simply failed to comply 

with the Order and failed to abate the initial citation. 

Respondent presented several putative mitigating factors with respect to this order. 

However, none of those arguments were compelling. 

First, Respondent argued that it “did its best” to cordon off the area and keep miners out. 

(Respondent’s Post-Hearing Brief at 18). Respondent noted that some miners had been in to bar 

the area or correct conditions. (Tr. 216, 219, 242, 239). This is not a mitigating factor. Under 

the 104(b) Order issued on May 24, 2014, Respondent was not permitted to access the cited area 

until the spilled material was removed and safe access maintained. Its failure to do so is the crux 

of the citation. Any efforts to cordon off the area were wholly ineffectual. Miners were entering 

the area and leaving footprints. (Tr. 71-74, 216, 241). This condition occurred on two separate 

occasions. (Tr. 70-74, 216). When actions taken to prevent, correct, or limit exposure to hazards 

are grossly inadequate, this is not mitigation. See e.g. Maple Creek Mining, Inc., 26 FMSHRC 

539, 555 (Aug. 2005)(ALJ Bulluck). Therefore, Respondent’s efforts here were not mitigation. 

Next, Respondent argued that a high negligence designation was inappropriate because 

there were only a few footprints in the material. (Respondent’s Post-Hearing Brief at 18). 

However, Inspector Villahermosa credibly testified that there was a “trail” of footprints through 

the area. (Tr. 263). Therefore, the preponderance of the evidence does not support 

Respondent’s assertion. Perhaps more importantly, this was the second time Respondent had 

failed to keep miners from this area. The number of times miners were exposed to danger is far 

more significant that the number of footprints in the material. Finally, the argument seems to be 

that Respondent only violated that May 24, 2014 104(b) Order a little bit and therefore was less 

negligent. This, of course, is not mitigation. Respondent is required to comply with all health 

and safety standards as well as the Order issued pertaining to them. 

 

Next, Respondent argued that it was impossible for the mine to close the plant, because it 

needed to get 20,000 pounds of “clinker” out of the warehouse before the damaged chute could 

36 FMSHRC Page 1427
be serviced. (Respondent’s Post-Hearing Brief at 19). Respondent was never ordered to close 

the entire mine. Respondent was ordered to keep the walkway closed. (Tr. 70-71, 241) (GX27). Respondent could have had full use of the walkway if, at any time, it had demonstrated to 

MSHA an ability to keep the walkway clear and safe for miners or completely barred. This 

could have been as easy as keeping a miner at the walkway to shovel it clean (without climbing 

on top of the material). In fact, Respondent received five extensions in its efforts to achieve this 

goal and was unable to do so. Further, even if Respondent was forced to close its plant, I see no 

reason why this would mitigate its negligence in failing to keep the area clean. Therefore, this is 

not mitigation. 

Finally, Respondent argued the economic situation in Puerto Rico was dire and closing 

the plant would cause hardship. (Respondent’s Post-Hearing Brief at 19). Once again, 

Respondent was not required to close its mine; it was required to keep a single walkway clean or 

barred. More importantly, this argument is completely unrelated to negligence. The economic 

situation could, in fact, be dire and Respondent could still be liable under the Mine Act. 

Respondent presented no evidence that this order or the penalty flowing from it would prevent 

the company from staying in business. Perhaps most importantly, the health and safety of miners 

(the “most precious resource” in the mining industry) is not an economic commodity that 

fluctuates in value with the markets. 30 U.S.C. §801(a). There is no ticker symbol on the Dow 

Jones for miners’ lives. The lives of miners are as valuable in good economic times as bad. I see 

no reason to find mitigation on these grounds. 

In light of the foregoing, I affirm the inspector’s finding of “high negligence.” 

4. Penalty

In light of the fact that the Administrative Law Judge has affirmed the Secretary’s 

citation as issued, it is appropriate to affirm the assessed penalty as issued. Therefore, 

Respondent is hereby ORDERED to pay a civil penalty in the amount of $5,000.00 with respect 

to this violation. 

ORDER

It is hereby ORDERED that Citation/Order Nos. 8629720, 8629721, 8544130, and 

8643560 are AFFIRMED. 

Respondent is ORDERED to pay civil penalties in the total amount of $29,711.00 within 

30 days of the date of this decision.17

 /s/ Kenneth R. Andrews 

Kenneth R. Andrews 

 Administrative Law Judge 

 

 17 Payment should be sent to: MINE SAFETY AND HEALTH ADMINISTRATION, U.S. 

DEPARTMENT OF LABOR, PAYMENT OFFICE, P. O. BOX 790390, ST. LOUIS, MO 63179-0390 

36 FMSHRC Page 1428
Distribution: 

Terrence Duncan, Esq., U.S Department of Labor, Office of the Solicitor, 201 Varick Street 

Room 983 , New York, NY 10014 

Manuel A. Quilichini, Esq., Quilichini Law Offices, PO Box 194321 San Juan, PR 00919-4231 

/tjb 

36 FMSHRC Page 1429
 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

721 19th St., Suite 443 

Denver, CO 80202-2500 

TELEPHONE: 303-844-5266 / FAX: 303-844-5268 

 

 May 23, 2014 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH, 

ADMINISTRATION (MSHA), 

 Petitioner, 

 v. 

WINN MATERIALS LLC, 

 Respondent. 

 

WINN MATERIALS LLC, 

 Contestant, 

 

 

 v. 

 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH, 

ADMINISTRATION (MSHA), 

 Respondent. 

 

 

 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

 CIVIL PENALTY PROCEEDINGS 

 

 Docket No. SE 2013-50-M 

 A.C. No. 40-03094-303407 

 Docket No. SE 2013-64-M 

 A.C. No. 40-03094-304286 

 

 Mine: Winn Materials, LLC 

 CONTEST PROCEEDINGS 

 Docket No. SE 2012-76-RM 

 Citation No. 8637419; 11/17/11 

 

 Docket No. SE 2012-77-RM 

 Order No. 8637420; 11/17/2011 

 Docket No. SE 2012-78-RM 

 Order No. 8637421: 11/17/2011 

 Docket No. SE 2012-79-RM 

 Order No. 8637422; 11/17/2011 

 Docket No. SE 2012-80-RM 

 Order No. 8637423; 11/17/2011 

 Docket No. SE 2012-81-RM 

 Order No. 8637424; 11/17/2011 

 Docket No. SE 2012-82-RM 

 Order No. 8637425; 11/17/2011 

 Mine ID: 40-03094 

 Mine: Winn Materials, LLC 

 

 

36 FMSHRC Page 1430
DECISION

Appearances: Angele Gregory, Office of the Solicitor, U.S. Department of Labor 

618 Church Street, Suite 230, Nashville, TN 37219 for Petitioner 

Justin Winter, Adele Abrams P.C., 

 4740 Corridor Place, Suite D, Beltsville, MD 20705 for Respondent 

Nicholas Scala, Adele Abrams P.C., 

 4740 Corridor Place, Suite D, Beltsville, MD 20705 for Respondent 

Before: Judge Simonton 

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

of Labor, acting through the Mine Safety and Health Administration, against Winn Materials, 

LLC at the Winn Materials mine, pursuant to sections 105 and 110 of the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the “Mine Act” or “Act”). These cases 

include seven citations and orders with a total proposed penalty of $547,100.00. The parties 

presented testimony and documentary evidence at the hearing held in Nashville, TN beginning 

January 8, 2014. 

I. INTRODUCTION 

 

 Winn Materials, LLC (Respondent) operates an above ground limestone aggregate mine, 

the Winn Materials mine (the “mine”) in Clarksville, Tennessee. Tr. 25. The mine is subject to 

regular inspections by the Secretary’s Mine Safety and Health Administration (“MSHA”) 

pursuant to section 103(a) of the Act. 30 U.S.C. § 813(a). The parties stipulated that Winn 

Materials, LLC is the operator of the mine and that its operations affect interstate commerce and 

it is subject to the jurisdiction of the Mine Act. Tr. 9-10. 

 An anonymous caller filed a hazard complaint at 7 PM on November 16, 2011, alleging 

multiple safety violations at Respondent’s Winn Materials mine, including unguarded tail pulleys 

on the “west side” of the plant. Tr. 11, 27. Acting on the report, MSHA Inspector Michael 

Hollis inspected the mine the next afternoon, November 17, 2011. Tr. 34-35. Although Hollis 

was unable to confirm any of the other hazard complaints, he did identify seven tail pulley 

locations that were either inadequately guarded or completely missing the required guard. Tr. 

150. At the time of the inspection, only one of the unguarded belts was allegedly running and no 

workers were observed in the vicinity of any of the missing guards. Tr. 107, 157. However, 

none of the conveyor belts were locked or tagged out prior to the inspection. Tr. 311. On the 

basis of these observations, Hollis issued one 104 (d)(1) citation, five 104 (d)(1) orders for 

alleged violations of 30 CFR § 56.14107(a) and one 104 (d)(1) order for an alleged violation of 

30 CFR § 56.14112(b). Tr. 13-14. During the penalty review process, Hollis eventually 

determined that all of the violations were the result of Respondent’s reckless disregard for the 

Mine Act and worker safety. Tr. 179-80. Hollis and MSHA supervisors also determined that 

36 FMSHRC Page 1431
Citation No. 8637419 and Orders Nos. 8637420 and 8637422 were 110(b)(2) flagrant violations. 

Tr. 13. 

 Respondent filed a notice of contest for each of the seven alleged violations on November 

22, 2011. At hearing, Respondent did not contest any of the underlying violations, but did 

contest the gravity, negligence, unwarrantable failure and flagrant designations. Resp. Br., 1-2. 

Respondent also argued that the assessed penalties are highly excessive. Resp. Br., 2. 

I have prepared a Statement of Law outlining the Commission’s instructions regarding: 1) 

Statute Interpretation; 2) Burden of Proof; 3) Significant and Substantial (S&S) violations; 4) 

Unwarrantable Failure; 5) Flagrant Violations and 6) Civil Penalty and Special Assessment. I 

have followed these guidelines for each of the seven contested violations. As the parties 

generally constructed their arguments regarding the gravity, negligence, 104(d)(1) and 110(b)(2) 

designations in a cumulative fashion within their post-hearing briefs, I have set forth my findings 

by citation element rather than by individual citation. 

For the reasons stated within, I affirm the underlying violation for all seven citations, but 

find that the Secretary failed to show, in light of Respondent’s credible evidence to the contrary, 

that any of the violations were S&S or the result of reckless disregard on behalf of Respondent. 

As such, I have modified all seven citations and orders from 104(d) (1) actions to 104(a) 

citations. Additionally, having found that Citation No. 8637419, Order No. 8637420, and Order 

No. 8637422 were neither S&S nor the result of Respondent’s’ reckless disregard, I have also 

removed the 110(b)(2) penalty designations from these citations. After accounting for these 

findings and considering the six statutory penalty criteria, I have ordered Respondent to pay a 

total civil monetary penalty of $44,000.00. 

II. STATEMENT OF LAW 

A. Statute Interpretation 

The Commission has stated that: 

the operator is entitled to the due process protection available in 

the enforcement of regulations... When a violation of a regulation 

subjects private parties to criminal or civil sanctions, a regulation 

cannot be construed to mean what an agency intended but did not 

adequately express. Laws must give the person of ordinary 

intelligence a reasonable opportunity to know what is prohibited, 

so that he may act accordingly.

Energy West Mining Co., 17 FMSHRC 1317-18 (internal citations omitted). 

 However, the Secretary is not required to provide the operator actual notice of its 

interpretation of a mandatory safety standard, rather: 

36 FMSHRC Page 1432
“the Commission has applied an objective standard of notice, i.e., 

the reasonably prudent person test. The Commission has 

summarized this test as ‘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.” 

Energy West Mining Co., 17 FMSHRC 1318 (internal citations omitted). 

 

 In the context of guarding violations, the Commission has stated, 

“We find that the most logical construction of the standard is that it 

imports the concepts of reasonable possibility of contact and 

injury, including contact stemming from inadvertent stumbling or 

falling, momentary inattention, or ordinary human carelessness. In 

related contexts, we have emphasized that the constructions of 

mandatory safety standards involving miners' behavior cannot 

ignore the vagaries of human conduct. See, e.g., Great Western 

Electric, 5 FMSHRC 840, 842 (May 1983); Lone Star Industries, 

Inc., 3 FMSHRC 2526, 2531 (November 1981). Applying this test 

requires taking into consideration all relevant exposure and injury 

variables, e.g., accessibility of the machine parts, work areas, 

ingress and egress, work duties, and as noted, the vagaries of 

human conduct. Under this approach, citations for inadequate 

guarding will be resolved on a case-by-basis.” 

Thompson Bros. Coal, 6 FMSHRC 2094, 2097 (Sept 1984). 

B. Burden of Proof 

The Commission has long held, “In an enforcement action before the Commission, the 

Secretary bears the burden of proving any alleged violation.” Jim Walter Resources, Inc., 9 

FMSHRC 903, 907 (May 1987); Wyoming Fuel Co., 14 FMSHRC 1282, 1294 (August 1992). 

The Commission has described the Secretary’s burden as: 

the 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 Res. Corp., 22 FMSHRC 1066, 1070 (Sept. 2000); Garden Creek Pocahontas 

Co., 11 FMSHRC 2148, 2152 (Nov. 1989). 

 The Secretary may establish a violation by inference in certain situations. Garden Creek 

Pocahontas Co., 11 FMSHRC 2153. Any such inference, however, must be inherently 

36 FMSHRC Page 1433
reasonable, and there must be a rational connection between the evidentiary facts and the 

ultimate fact inferred. Mid-Continent Resources, 6 FMSHRC 1132, 1138. (May 1984).

If the Secretary has established facts supporting the citation, the burden shifts to the 

respondent to rebut the Secretary’s prima facie case. Construction Materials, 23 FMSHRC 321, 

327 (March 2001) (ALJ Feldman). 

C. Significant and Substantial 

A violation is Significant & 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 an injury or illness of a reasonably serious nature.” Cement Division, National Gypsum 

Co., 3 FMSHRC 822, 825 (Apr. 1981) (holding that S&S language of Section 104(d) of the Mine 

Act was not surplusage and required more than a showing of the violation itself.) 

In order to uphold a citation as S&S, the Commission has held that the Secretary of Labor 

must prove: 1) the underlying violation of a mandatory safety standard; (2) a discrete safety 

hazard—that is, a measure of danger to safety—contributed to by the violation; (3) a reasonable 

likelihood that the hazard contributed to will result in an injury; and (4) a reasonable likelihood 

that the injury in question will be of a reasonably serious nature. Mathies Coal Co., 6 FMSHRC 

1, 3-4 (Jan. 1984). 

 An S&S designation must be based upon the particular facts surrounding the violation 

and must be made in the context of continued normal mining operation. Texasgulf, Inc., 10 

FMSHRC 498, 500 (Apr. 1988); U.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574 (July 

1984). However, the Secretary “need not prove a reasonable likelihood that the violation itself 

will cause injury.” Cumberland Coal Resources, LP, 33 FMSHRC 2357, 2365 (Oct. 2011) 

(holding that failure to maintain emergency equipment was S&S despite low likelihood of 

emergency occurring); See also Musser Engineering, Inc. and PBS Coals, 32 FMSHRC 1257, 

1280-81 (Oct. 2010)(stating that the third element of the Mathies test requires a showing that the 

hazard contributed to by the violation is reasonably likely to result in an injury). 

The Commission has mandated that ALJs perform a full analysis of all four Mathies

factors based on specific evidence, including the likelihood of an injury producing event 

occurring. Wolf Run Mining Co., 32 FMSHRC 1669, 1678 (Dec. 2010). The Commission has 

also maintained that an S&S determination must be based on more than a showing that a 

violation ‘could’ result in an injury. Wolf Run Mining Co., 32 FMSHRC 1678 (quoting Peabody 

Coal Co., 17 FMSHRC 26, 29 (Jan. 1995)). 

 As the Commission decided to analyze the hazards of unguarded tail pulleys on a case-bycase basis in Thompson Bros. Coal, recent S&S determinations involving 56.14107(a) violations 

appear to turn primarily upon the degree of exposure created by the lack of guarding. See e.g. 

Stanley Mineral Resources, 34 FMSHRC 1500, 1507 (ALJ Barbour) (June 2012) (holding 

56.14107(a) a violation was S&S when employee was observed cleaning underneath an 

unguarded pulley with a shovel); Holcomb, 33 FMSHRC 1435, 1447 (ALJ Manning) (June 

36 FMSHRC Page 1434
2011) (holding a 56.1407(a) violation was non- S&S when operator satisfactorily demonstrated 

that all cleaning activities were conducted between shifts). 

D. Negligence 

The Mine Act defines reckless disregard as conduct which exhibits the absence of the 

slightest degree of care, high negligence as actual or constructive knowledge of the violative 

condition without mitigating circumstances; moderate negligence as actual or constructive 

knowledge of the violative condition with mitigating circumstances; and low negligence as 

actual or constructive knowledge of the violative condition with considerable mitigating 

circumstances. 30 CFR § 100.3: Table X. Deliberate action contrary to the Mine Act with the 

conscious knowledge that such activity may seriously endanger workers constitutes reckless 

disregard. Roxcoal, Inc., 36 FMSHRC 625, 634 (ALJ Barbour) (March 2013) (finding reckless 

disregard when electrical foreman disabled safety switch to a high voltage electrical panel so that 

workers could access panel components while they were energized).

E. Unwarrantable Failure 

Section 104(d)(1) of the Mine Act states: 

If, upon any inspection of a coal or other mine, an authorized 

representative of the Secretary finds that there has been a violation 

of any mandatory health standard,... and if he finds such violation 

to be caused by an unwarrantable failure of such operator to 

comply with such mandatory health or safety standards, he shall 

include such findings in any citation given to the operator under 

this Act. 

Unwarrantable failure is defined as aggravated conduct constituting more than ordinary 

negligence. Emery Mining Corp., 9 FMSHRC 1997, 2004 (Dec. 1987). Unwarrantable failure is 

characterized by such conduct as “reckless disregard,” “willful intent”, “indifference,” or the 

“serious lack of reasonable care.” Id. at 2004-04; Rochester & Pittsburgh Coal Co., 13 

FMSHRC 189, 193-94 (February 1991). 

The Commission considers the following factors when determining the validity of 

104(d)(1) and 104(d) (2) orders: (1) the length of time that the violation has existed and the 

extent of the violative condition, (2) whether the operator has been placed on notice that greater 

efforts were necessary for compliance, (3) the operator’s efforts in abating the violative 

condition, (4) whether the violation was obvious or posed a high degree of danger and (5) the 

operator’s knowledge of the existence of the violation. Consolidation Coal Co., 22 FMSHRC 

340, 353 (Mar. 2000). All of the relevant facts and circumstances of each case must be 

examined to determine if an actor’s conduct is aggravated, or whether mitigating circumstances 

exist. IO Coal Co., 31 FMSHRC 1346, 1351 (Dec. 2009). 

36 FMSHRC Page 1435
F. Flagrant Violations 

Under Section 110 (b)(2) of the Mine Act, the Secretary may assess a civil monetary 

penalty of up to $220,000.00 for “flagrant” violations. Section 110 (b) (2) defines a “flagrant” 

violation as 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 USC § 820(b). 

To date, the most comprehensive analysis of Section 110 (b)(2) of the Mine Act is set 

forth in Stillhouse Mining, 33 FMSHRC 778, 802 (March 2011)(ALJ Paez). Relying upon the 

language of the statute, the ALJ stated that the Secretary must show the following four elements 

in order to sustain a 110(b)(2) action: (1) A reckless or repeated failure to make reasonable 

efforts; (2) A known violation of a mandatory health or safety standard; (3a) That substantially 

and proximately caused; or (3b) Reasonably could have been expected to cause; (4) Death or 

serious bodily injury. Stillhouse Mining, 33 FMSHRC 802. 

For the purposes of 110(b)(2) actions, reckless behavior is defined as a conscious or 

deliberate disregard of an unjustifiable risk of death or serious bodily injury. Id. at 805. The 

Secretary need not establish that MSHA had previously cited the operator for the violative 

condition. However, the Secretary does need to demonstrate than an individual “in a position to 

protect employee safety failed to act on the basis of information that gives him knowledge or 

reason to know of the existence of a violative condition.” Cougar Coal, 25 FMSHRC 513, 517 

(Sept. 2003). The likelihood of a resulting serious injury is evaluated under the specific set of 

circumstances present during the violation. Id. 

G. Penalty Assessment 

 It is well established that Commission administrative law judges have the authority to 

assess civil penalties de novo for violations of the Mine Act. Sellersburg Stone Company, 5 

FMSHRC 287, 291 (March 1983). The Act requires that in assessing civil monetary penalties, 

the Commission ALJ shall consider six statutory penalty criteria: 

(1) the operator’s history of previous violations, (2) the appropriateness of such 

penalty to the size of the business of the operator charged, (3) whether the 

operator was negligent, (4) the effect on the operator’s ability to continue in 

business, (5) the gravity of the violation, and (6) the demonstrated good faith of 

the person charged in attempting to achieve rapid compliance after notification of 

a violation. 

30 U.S.C. 820(I). 

36 FMSHRC Page 1436
These criteria are generally incorporated by the Secretary within a standardized penalty 

calculation that includes consideration of negligence and gravity finding and permits proposed 

penalty assessments up to $70,000.00 per citation. 30 CFR 100.3: Table 1- Table XIV. In these 

cases, the Secretary has relied upon 30 CFR 100.5, and submitted specially assessed penalties for 

each citation, relying upon the multiple unguarded pulleys found at the mine as justification for 

the increase in penalty amount beyond the standard penalty calculation. Sec’y Proposed 

Assessment Docket SE 2013-50 & 64: Narrative Findings For A Special Assessment. 

Additionally, the Secretary has relied upon Section 110(b)(2) to designate Citation No. 8637419 

and Order Nos. 8637420 and 8637422 as flagrant violations and assigned penalty amounts in 

excess of the Section 110(a)(1) cap of $70,000.00. Sec’y Proposed Assessment Docket No. SE 

2013-64: Narrative Finding for a Special Assessment; Sec’y Br. 30-31. 

 

 For all penalty assessments, the Secretary bears the burden of establishing the proposed 

penalty is appropriate based upon the statutory criteria of Section 110(i) of the Act. In re: 

Contest of Respirable Dust Sample Alteration Citations, 14 FMSHRC 239, 241 (ALJ Broderick) 

(January 1992) (Order). Similarly, for specially assessed penalties in excess of the standard 

penalty calculation, the Secretary has the burden of establishing the existence of aggravating 

factors to justify such an increase. S&M Construction, Inc., 18 FMSHRC 108, 1052-53 (ALJ 

Koutras) (June 1996); Freeport McMoran Morenci, Inc., 35 FMSHRC 172, 181 (ALJ Miller) 

(January 2013). 

III. PLANT OPERATION 

Respondent’s above ground limestone mine includes a maintenance shop, office, scale 

house, pit quarry, secondary plant and stockpiles. Tr. 25, 203-04. Raw shot rock is transported 

from the quarry pit to the primary crusher. Tr. 191. The majority of the processed shot rock is 

then transported to the secondary plant for further processing into commercial finish products. 

Tr. 192. The secondary plant has a number of conveyor belts, screens, and crushers. Tr. 191, 

218, 235. The secondary plant is divided into a wet and a dry side and different conveyor belts 

can be run independently depending on what products are desired. Tr. 57. It is not necessary for 

all belts to run in order for the plant to “operate”. Tr. 57. The wet side of the plant uses water to 

process the material and the ground surrounding some conveyor belts is saturated to the point 

that is difficult to walk in certain areas. Tr. 307, 314. 

 The secondary plant is staffed by seven or eight workers during a normal shift. Tr. 203-

04. The secondary plant operator controls the plant from an elevated control room where 

switches control all the conveyors and crushers. Tr. 203-04. Two skid steer operators work 

continuously to clean the spillage around crushers and conveyor belts. Tr. 204, 207. The skid 

steer operators are enclosed in a protective cab and use an extended rake attachment to clean 

around underneath the conveyor equipment. Tr. 207; Resp. Ex. 4, 3-4. The skid steer is more 

efficient than manually cleaning by hand. However, with the extended rake, the sensitivity of the 

controls lead to frequent guard damage. Tr. 214, 304, 329-30. 

 

Front end loader operators load out finished product from stockpiles at the perimeter of 

the secondary plant to customer trucks. Tr. 204. A water truck operator applies water to both 

the haul paths and occasionally uses a water cannon to clean out from underneath conveyor belts. 

36 FMSHRC Page 1437
Tr. 208. Due to the high pressure of the water cannon, the water truck does not have to come 

closer than 30’ to the conveyor belt. Tr. 209. No employees walk the secondary plant on a 

regular basis but foot traffic is not specifically prohibited by Respondent’s Safety Policy. Tr. 

209, 215, 274. 

 Routine maintenance and greasing of the conveyor belts is performed between shifts 

while the belts are de-energized. Tr. 200. All conveyor belts are equipped with extended grease 

ports that allow the rollers to be greased without removing the guard. Tr. 223. The maintenance 

team generally travels the secondary plant in a work truck and only approaches a belt for repairs 

after it is de-energized and locked out. Tr. 220. The maintenance crew has the authority to lock 

out belts when needed and is expected to initiate necessary repairs without waiting for upper 

management approval. Tr. 303. 

 A belt is shut down when the control switch at the control tower is turned off and the belt 

is not moving. Tr. 259. A belt is de-energized when the controlling circuit breaker is switched 

off and power is not available to drive the belt even if the control tower switch is put into drive 

mode. Tr. 259. A belt is locked out and tagged out when the controlling circuit breaker is 

switched off and locked out with a physical lock. Tr. 259. Respondent conducts regular weekly 

safety meetings and had discussed lock-out tag-out procedures and conveyor belt safety in the 

months prior to the November 17 hazard complaint. Tr. 197-99; Resp. Ex. 3, 1-6. At the time of 

the inspection, the on-site foreman for the secondary plant was Jeremy Childress. Tr. 188. Sean 

Cotham was the area operations manager with ultimate responsibility for Respondent’s mine at 

the time of the inspection. Tr. 187-88. 

IV. TESTIMONY 

A. The Secretary 

 

Inspector Hollis testified regarding his observations at the mine and interactions with 

Respondent’s management on November 17, 2011. Hollis stated that on Nov 17, 2011, his field 

office notified him of a hazard complaint. Tr. 27. Hollis explained that he reviewed the 

complaint documents and then met with the complainant who asked to remain anonymous. Tr. 

28-29. The complainant claimed, among other allegations, that tail pulleys at the west side of the 

plant were not guarded. Tr. 29; Sec’y Ex. 1. Hollis then traveled to Respondent’s plant and first 

notified Foreman Childress and then shortly thereafter, Operations Manager Cotham of the 

hazard complaint. Tr. 32-33. Hollis, accompanied by Cotham and Childress, proceeded to 

inspect the wet side secondary plant and first identified a missing guard at the tail pulley of the 

“10’s” belt. Tr. 36. Hollis stated that the guard for the 10’s belt was completely missing and that 

he issued Citation No. 8637419 for this condition which is a violation of 56.14107(a). Tr. 41. 

Hollis stated that when he asked Cotham why the tail pulley was not guarded, Cotham 

responded “production needs,” but also indicated that materials had been ordered to replace the 

10s guard. Tr. 62-63. Hollis stated that the 10’s belt was a fluted tail pulley located 6 inches off 

the ground. Tr. 46-47. Hollis explained that fluted tail pulleys are particularly dangerous as the 

flutes will draw a worker’s entire body into the conveyor belt if a worker becomes entangled in 

the belt. Tr. 58-59. Hollis stated that the muddy and sloppy ground around the 10’s belt 

36 FMSHRC Page 1438
increased the possibility of a worker tripping and falling into the unguarded conveyor belt. Tr. 

48. Hollis stated that while the 10’s belt was not running at the time of the citation, Cotham 

informed him the belt was not locked out. Tr. 56. 

Hollis also issued the following orders: 

Order No. 8637420 for the lack of guarding at the wet side return conveyor. Tr. 76. 

Hollis testified that the fluted tail pulley at this location was completely unguarded and located 

approximately two and a half feet above ground level. Tr. 77. Hollis indicated that this 

conveyor belt was not running at the time of the inspection but that the belt was “operable.” Tr. 

78. 

Order No. 8637421 for an alleged violation of 30 CFR 56.14112(b) after observing an 

insufficiently guarded tail pulley on the return wash-plant conveyor belt. Tr. 93, 98. Hollis 

stated that while the sides and top of the conveyor belt guard were intact at this location, the back 

of the guard was missing at the return point and referenced an inspection photo taken of the 

return wash plant conveyor belt. Tr. 93; Sec’y Ex. 13. Hollis stated that the belt was not running 

at the time of the inspection but that the belt was operable. Tr. 98. 

Order No. 8637422 for an unguarded tail pulley at the blend conveyor belt. 102, 105. 

Hollis testified that this conveyor belt was moving rapidly at the time of the inspection and that 

the belt was located approximately two feet above ground level. Tr. 107-108. Hollis explained 

that there was some partial guarding on one side of the conveyor belt but that the majority of the 

tail pulley was unguarded. Tr. 109-110. 

Order No. 8637423 for a partially unguarded tail pulley at the “1/2” belt. Tr. 119. Hollis 

referenced an inspection photo and explained that although the belt had guarding installed, it did 

not fully prevent contact with the bottom of conveyor belt. Tr. 119; Sec’y Ex. 21. Hollis 

believed that workers could fall into the conveyor belt by accident or during greasing or belt 

training operations. Tr. 120. Hollis stated that he did not observe any adjustment bolts at the tail 

pulley, that he did not actually know how the 1⁄2 conveyor belt was adjusted, and that it may have 

been possible to adjust the conveyor belt from the head pulley. Tr. 121. 

Order No. 8637424 for a partially unguarded tail pulley at the “4’s” belt. Tr. 129. Hollis 

referenced an inspection photo and testified that on the right side of the tail pulley, the guarding 

was damaged to the point that a worker could inadvertently contact the conveyor belt and 

become entangled. Tr. 131; Sec’y Ex. 25. In reference to this damaged guarding, Hollis stated 

that “no one is purposely is going to stick their hand in there.” Tr. 131. On cross-examination, 

Hollis stated that the inspection photo did not show the entire guarding and mainly depicted only 

the exposed area of the conveyor belt. Tr. 167-68; Sec’y Ex. 25. 

Order No. 8637425 for an insufficiently guarded tail pulley at the dry side return 

conveyor belt. Tr. 135, 141. Hollis stated that he initially observed the deficient guarding from 

the west side of the plant and walked across to inspect the conveyor more closely. Tr. 142. 

Hollis referenced an inspection photo and explained that there was some limited guarding in 

place at the time of the inspection but that the tail pulley was exposed. Tr. 142; Sec’y Ex. 29. 

36 FMSHRC Page 1439
Hollis also stated that there were footprints within several feet of this conveyor belt and that 

when asked, Mr. Cotham did not offer any explanation regarding the footprints. Tr. 144-45. 

For Order Nos. 8637420-8637425, Hollis stated that Manager Cotham did not offer any 

explanation for the lack of guarding, indicate that the plant was currently shut down, or offer 

evidence of repair plans and/or purchases. Tr. 149, 175. Hollis stated that all of the unguarded 

conveyor belts were very visible and should have been identified during a proper workplace 

exam. Tr. 152-53. 

On cross-examination, Hollis stated that while he observed workers cleaning 

miscellaneous trash around the secondary plant, he did not see or find evidence of workers 

walking near any of the tail pulleys. Tr. 157-58. Hollis also stated that prior to the November 

17, 2011 inspection, Respondent had not received any 104(d) unwarrantable failure orders during 

the mine’s recorded inspection history. Tr. 155. In regards to the 1⁄2 belt cited in Order No. 

8637423, Hollis confirmed that he had previously inspected the mine and had not found a reason 

to issue guarding violations at this belt. Tr. 165-66. Hollis additionally stated that he did not 

observe any belt adjustment or maintenance work at the time of the inspection and did not 

question Respondent’s management regarding their belt maintenance procedures. Tr. 162. 

When questioned by the Court on the difference between high negligence and reckless 

disregard, Hollis stated: 

“Reckless disregard, you know, is – is, again, the operator displays 

essentially a total lack of concern of what they’ve got there... 

High negligence is, okay, I knew about it—the mine operator knew 

about it. They haven’t taken steps to take care of it immediately, 

but they have taken steps to take care of it in the long term, over 

the – a longer period of time. 

They knew about it; they haven’t taken care; but maybe they’ve 

ordered the parts. Maybe they’ve ordered the material to fix it. ...” 

Tr. 181. 

B. Respondent 

 Operations Manager Sean Cotham testified for Respondent regarding the November 17 

inspection and conveyor belt operations at the mine. Cotham confirmed that he accompanied 

Inspector Hollis and he agreed that the tail pulleys cited in Citation No. 8637419 and Order Nos. 

8637420, 8637421, 8637422, and 86374255 were not properly guarded at the time of the 

inspection. Tr. 223, 229,231, 236, 250. For Order Nos. 8637423 and 8637424, Cotham stated 

the guarding present at those tail pulleys had always been installed in that manner and had 

recently been inspected by MSHA in August 2011 without adverse action or warnings. Tr. 244, 

248. 

36 FMSHRC Page 1440
 Cotham stated that he had previously accompanied MSHA inspectors on other 

inspections at other operations and at Respondent’s plant. Tr. 189. However, he testified that he 

had never previously been involved in a hazard complaint or 104(d) unwarrantable failure action. 

Tr. 191, 225. Cotham stated that he informed Inspector Hollis during the inspection that the 

guards had likely been damaged by skid-steer cleaning. Tr. 230. Cotham maintained that neither 

he nor Forman Childress told Inspector Hollis that the guards were not being repaired due to 

“production needs”. Tr. 224. Cotham testified that he was unfamiliar with the consequences of a 

104(d) order and that he decided to say as little as possible after Inspector Hollis informed him 

that he intended to issue 104(d) orders for the missing guards. Tr. 224-25. 

 Cotham also testified in detail regarding conveyor belt operation, clean up, and 

maintenance work at Respondent’s secondary plant. Cotham stated the vast majority of cleanup operations were performed by the two skid steer operators assigned to that specific duty. Tr. 

207. Cotham explained that maintenance and supervision personnel traveled the secondary plant 

in trucks. Tr. 218. Cotham maintained that while foot traffic was not prohibited in the 

secondary plant, there was no reason to walk through the secondary plant. Tr. 217-218. Cotham 

also testified that greasing and routine maintenance tasks were performed between shifts with the 

main electrical disconnect to the plant locked and tagged out. Tr. 216-17. On re-direct, Cotham 

stated that prior to the November 17 inspection, Respondent had both hired an extra maintenance 

worker and purchased additional expanded metal to better respond to ongoing problems with 

damaged guards. Tr. 296. 

 On cross-examination, Cotham maintained that if a bearing had to be replaced mid-shift 

due to sudden breakdown, the entire plant would be shut down for the repair. Tr. 275. Cotham 

explained that the extended grease port was used to avoid taking the guard off during routine 

greasing and that he had never observed anyone grease a conveyor belt while the belt was 

moving. Tr. 289. Cotham did state that at other mines he had observed belts adjusted with the 

tail pulley guard off and the belt running. Tr. 289. However, Cotham maintained that he had 

never directed such work at any mine and he that he had never observed or directed it at 

Respondent’s mine. Tr. 287-88. Cotham also stated that particularly during the night shift, it 

was possible for a skid steer operator to damage a guard without realizing it. Tr. 241-42. 

 Current Quarry Foreman Jimmy Maclin testified regarding repair efforts at Respondent’s 

plant. At the time of the November 2011 inspection, Maclin was the lead mechanic in charge of 

plant and mobile equipment repair. Tr. 301. Maclin testified that no one worked on foot in the 

secondary plant while it was operating. Tr. 302. Maclin stated that equipment was first shut 

down from the operator control room and then physically locked out before inspection and 

repairs were started. Tr. 303. 

 Maclin stated that in the weeks preceding the Novemeber 17, 2011 inspection, 

Respondent had been working long double shifts. Tr. 304. Maclin noted that a substantial 

number of guards had been damaged during this time, particularly during the night shift. Tr. 

305. Maclin testified that he had instructed the skid steer operators to slow down and be more 

careful around the guards. Tr. 305. Maclin also stated the maintenance crew changed the 

attachment system for the guards to decrease damage and also provided additional lighting at the 

secondary plant to increase visibility. Tr. 305-06. Maclin stated that in the weeks preceding the 

36 FMSHRC Page 1441
November 17 inspection, guards were “constantly getting tore up” and guarding repairs were 

necessary every day. Tr. 304-305. 

 Maclin testified that during pre-shift maintenance checks on November 17, the 

maintenance crew observed that the 10’s tail pulley guard was damaged. Tr. 307. Maclin 

testified that the muddy conditions made it difficult to get close to the tail pulley itself, but that 

the crew removed the damaged guard to take measurements and begin repairs. Tr. 307. Maclin 

stated that no other guards were reported damaged that morning. Tr. 308. Maclin stated that the 

secondary plant did operate for approximately an hour until the primary crusher broke down 

when a piece of metal got into the crusher. Tr. 308, 313. Once the primary crusher broke down, 

the operator shut down the secondary plant and the primary crusher itself was both de-energized 

and locked out by the maintenance crew. Tr. 308-09. 

 Maclin confirmed that none of the conveyor belts at the secondary plant were locked out 

until Inspector Hollis directed him to do so at approximately 2:30 PM. Tr. 311-12. However, 

Maclin maintained that the 10’s belt was not running during the Nov 17 morning shift and that 

conditions were so soft at the 10’s belt in particular that it was very difficult for someone on foot 

to get near the 10’s tail pulley. Tr. 314, 317. Maclin stated that prior to November 17, he had 

told Foreman Childress that the mine needed to hire different skid steer operators to avoid 

persistent guard damage, but that he was not aware of any corrective actions taken by Foreman 

Childress. Tr. 321. 

V. ANALYSIS 

A. The Violations 

30 CFR § 56.14107 mandates that: 

(a) Moving machine parts shall be guarded to protect persons from 

contacting gears, sprockets, chains, drive, head, tail, and takeup 

pulleys, flywheels, couplings, shafts, fan blades, and similar 

moving parts that can cause injury. 

(b) Guards shall not be required where the exposed moving parts 

are at least seven feet away from walking or working surfaces 

 30 CFR § 56.14112(b) requires that: 

Guards shall be securely in place while machinery is operated, 

except when testing or making adjustments which cannot be 

performed without removal of the guard. 

 The Secretary has presented testimony and photos demonstrating that tail pulley guards 

were missing, loose, or insufficient at seven different locations. The testimony of Respondent’s 

maintenance foreman Maclin, indicates that the conveyor belts at these locations were not locked 

or tagged out prior to the inspection. Tr. 308-09, 311-12. Thus, the Secretary has presented 

36 FMSHRC Page 1442
sufficient evidence to support his allegations that six separate violations of 30 CFR 56. 14107(a) 

and one violation of 30 CFR 56.14112(b) occurred on Nov 17, 2011 at the Respondent’s mine. 

Respondent has conceded that the missing and incomplete guards violated the cited standards. 

Resp. Br., 1. As such, I AFFIRM the underlying violations contained in Citation No. 8637419 

and Order Nos. 8637420, 8637421, 8637422, 8637423, 8637424, 8637425. 

 I must next determine the following issues: 

 

1) Did the lack of guarding at the tail pulleys create a reasonable likelihood of a serious injury 

and constitute significant and substantial violations? 

2) Did Respondent display a total lack of care in maintaining pulley guards and thus 

demonstrate a reckless disregard for the requirements of the Mine Act? 

3) Were the violations an unwarrantable failure to comply with a mandatory safety standard? 

4) Were Citation No. 8637419 and Order Nos. 8637420 and 8637422 the result of Respondent’s 

flagrant disregard for miner safety? 

B. Significant and Substantial 

 Inspector Hollis testified specifically about the physical conditions of each guard 

individually and the Secretary re-iterated these findings within her post-hearing brief arguments 

concerning the S&S determinations. Sec’y Br., 20-23. However, when testifying about repair, 

greasing, foot traffic, and possibility of injury at the secondary plant, Inspector Hollis testified 

primarily in general terms that applied to all seven of the cited conditions. As such, I have 

combined the S&S analysis of the seven cited conditions in one section. I have considered and 

noted all relevant specific evidence in making my individual S&S findings for each citation. 

Nonetheless, I find that the Secretary has not demonstrated a reasonable likelihood of a serious 

injury resulting at any of the cited locations. 

 I have already found that the Secretary has established the underlying violation in each of 

the seven involved orders. Additionally, as none of the belts were locked out prior to inspection, 

the lack of guarding at these locations contributed to the discrete safety hazard of exposed and 

energized movable parts. 

The Secretary has argued that this exposure was reasonably likely to cause a serious 

entanglement injury through one of three work practices: 1) routine greasing; 2) belt repair and 

adjustment; and 3) accidental trips and falls by workers travelling on foot. Sec’y Br., 18-19. 

Inspector Hollis felt that an injury was likely in this situation, in part, because he had previously 

observed greasing and maintenance operations performed at other mines with the conveyor belt 

moving. Tr. 94-95. 

 However, Operations Manager Cotham credibly testified that the conveyor belts were 

only greased between shifts when the belts were locked and tagged out. Tr. 217. Cotham and 

Maclin also testified that the belt repairs were only made with the belts de-energized and locked 

36 FMSHRC Page 1443
and tagged out. Tr. 192-93; Tr. 302-03. Safety meetings conducted in the months previous to 

the November 17 inspection directing workers to lock and tag out machinery before attempting 

any repairs support this testimony. Resp. Ex. 3, 1-6. 

 Inspector Hollis testified that he did not observe anyone greasing or performing 

maintenance work on an operable or moving conveyor belt during the November 17 inspection. 

Tr. 157. Hollis did not claim to have seen this type of activity in his previous inspections of the 

mine or to have been notified of such activity by other inspectors or inspection records. The 

hazard complaint does not allege that repair work or greasing was being performed on moving or 

energized conveyor belts. Sec’y Ex. 1. 

 Thus, the Secretary has not provided any specific evidence refuting Respondent’s 

credible testimony that greasing was performed through extended grease ports between shifts 

with the belts shut off and repairs were only conducted with the belts locked and tagged out. 

Furthermore, Inspector Hollis stated, that if “a miner de-energized a conveyor and shut it down, 

there’s no entanglement hazard present.” Tr. 159-160. Additionally, Hollis himself testified that 

MSHA regulations allowed belts to be adjusted with the belt moving under controlled conditions 

and that the guard would have to be removed in most situations regardless of whether it had been 

damaged or not. Tr. 96. Cotham similarly testified that when a belt was trained, all other belts 

were locked out to minimize exposure. Tr. 275-76. As such, I find that Inspector Hollis’s 

testimony regarding past observations at other mines are not sufficient to establish the reasonable 

likelihood of an injury occurring during greasing or repair work at Respondent’s mine. 

 Given the evidence referenced above, I find that it was not reasonably likely for an injury 

to occur during greasing or repair work at any of the seven cited locations. Accordingly, I 

proceed to analyzing the likelihood of foot travel occurring at the cited locations and resulting in 

an injury. 

 Respondent argues, in essence, that workers simply do not walk in the secondary plant 

except for repair or greasing work when the belts are shut down and locked and tagged out. Tr. 

206-07, 216-17, 302. The photos entered into evidence demonstrate that Respondent does 

indeed use an enclosed skidsteer with an extended rake to clean underneath tail pulleys. Resp. 

Ex. 4, 3-6. Additionally, Operations Manager Cotham credibly testified, and the Secretary has 

not disputed, that the belts are operated from an elevated control tower. Tr. 206. Cotham further 

testified that pre-shift inspections were conducted by a drive through inspection and that the 

front-end loader operators worked at the outside rim of the secondary plant. Tr. 218, 269. 

Cotham also testified that the only time any workers cleaned the secondary plant on foot was 

“whenever the plant was down, something was broke down. And of course obviously the plant 

would be locked and tagged out.” Tr. 215. 

 Inspector Hollis stated that during his inspection there were workers picking up garbage 

around the secondary plant but he did not see anyone walk or work near the tail pulleys. Tr. 157. 

The presence of workers on foot cleaning miscellaneous trash on November 17 is reasonably 

explained by Maclin’s credible testimony that the primary crusher broke down earlier that day 

and the plant was idled. Tr. 313. Maclin’s testimony that the plant was idled is also 

substantially corroborated by the fact that only one of the seven belts was moving at the time of 

36 FMSHRC Page 1444
the inspection and Hollis did not observe any skid steer traffic. I do note that while the majority 

of secondary plant belts were shut off, it appears Respondent did not follow its own policy in 

locking and tagging out the secondary plant while cleanup work was performed on foot. Tr. 308-

09. However, having already found that the missing and inadequate guards constituted a 

violation, this evidence is most properly considered in my negligence findings. 

 Additionally, the mere presence of workers on foot within some areas of the secondary 

plant does not automatically make a guarding violation reasonably likely to result in an injury. 

An ALJ has previously found guarding violations to be non-S&S when the Secretary did not 

show a likelihood or reason for workers to travel near exposed tail pulleys. Bob Bak 

Construction, 28 FMSHRC 817, 830 (ALJ Manning)(Sept 2006)(finding guarding violation nonS&S when majority of work in area was performed from within protected skidsteers and loaders 

but some foot traffic occurred). A Commission ALJ has even relied upon the 7 foot exception of 

56.14107(b) and entirely vacated a 56.14107(a) citation when the judge credited an operator’s 

testimony that only skid steers were used to clean up accumulations underneath exposed rollers 

while a belt was in operation. C&E Concrete, Inc., 34 FMSHRC 2987, 2991-92 (ALJ 

Tureck)(November 2012) (vacating 56.1407(a) citation and holding that while workers were on 

foot in the general area they did not approach within 30 feet of moving conveyor belt per their 

training). An ALJ has found a guarding violation to be S&S when the majority of cleanup work 

was performed by a skid steer, but in that case the ALJ relied on the fact that the main roadway 

of that mine passed within 10 feet of the exposed pulley, the inspector observed a beaten path 

passing by the exposed pulley, and there was a shovel leaning up against a trailer within five feet 

of the exposed pulley. Crimson Stone, 27 FMSHRC 980, 985-86 (ALJ Melick)(December 

2005). 

 In this case, Inspector Hollis observed workers within the secondary plant cleaning up 

trash, but he did not observe any of them near any of the exposed tail pulleys. Tr. 157. For 

Citation No. 8637419, Inspector Hollis testified that the area surrounding the 10’s tail pulley was 

muddy and sloppy, increasing the possibility of a worker tripping and falling into the exposed 

tail pulley. Tr. 48. However, while Maintenance Foreman Maclin similarly described this area 

as wet and soft, he stated that this condition made it very difficult for workers to approach the 

tail pulley on foot, even if they tried to. Tr. 307, 314. After reviewing the testimony and entered 

photos regarding this area, I find that as workers had no specific reason to approach the 10’s tail 

pulley, the saturated ground conditions made it even more unlikely for workers to travel near the 

10’s tail pulley either inadvertently or purposefully. Sec’y Ex. 5; Tr. 314. 

 Inspector Hollis did observe footprints near an inadequately guarded tail pulley on the 

dry side of the secondary plant. Tr. 144. However, as Manager Cotham credibly testified that 

greasing operations were conducted before every shift with the belt de-energized, the presence of 

footprints at that area is not surprising or indicative of foot travel while the belt was operating. 

Tr. 274-75, 289. 

 The Secretary has argued, in essence, that as Inspector Hollis traveled within several feet 

of the moving belt cited in Order No. 8637422, it is reasonably likely that Respondent’s workers 

could and would have done the same. Sec’y Br., 22. I do not agree. The inspection photo of 

this tail pulley does not indicate that there is a build-up of material or even that the belt is 

36 FMSHRC Page 1445
conveying material. Sec’y Ex. 17. As such, the Secretary has not shown that at this location 

workers had a production reason to approach this conveyor belt. Manager Cotham credibly 

testified that workers were trained and warned about the dangers of pinch points and moving 

conveyor belts. Tr. 197-98. Respondent has introduced records of safety meetings focusing on 

the dangers of conveyor belts in the months prior to the November 17th inspection. Resp. Ex. 3, 

1-6. None of the pictures presented by the Secretary showed trash in the area of the tail pulleys. 

Sec’y Ex. 5, 8, 13, 17, 21, 25, 29. As such, I find that Respondent’s workers on temporary cleanup duty did not have a reason to approach the tail pulleys and had recently been specifically 

warned about the dangers of conveyor belts. Tr. 197-98. Therefore, I find that the Secretary has 

not shown that workers traveled, or would travel, near enough to any of the cited tail pulleys for 

there to be a reasonable likelihood of an injury occurring. 

While the Thompson Bros decision instructed ALJs to consider the vagaries of human 

conduct, including carelessness, in determining whether a guarding violation in fact occurred, the 

Secretary has not shown a confluence of factors existed at any of the cited locations that made an 

injury reasonably likely to occur. Thompson Bros. Coal, 6 FMSHRC 2097 (upholding violation 

and S&S designation when Commission found mechanics were likely to make adjustments with 

engine and unguarded cooling fan running). In making my S&S findings, I am not requiring the 

Secretary to show that it was reasonably likely for a worker on foot to actually contact the 

exposed tail pulley while it was energized. However, the Secretary has not shown anything more 

than a remote possibility of a worker on foot even entering the area around the exposed tail 

pulleys in which in injury could occur. 

 In making this ruling, I am aware Commission precedent emphasizes that a worker’s 

exercise of caution does not mitigate the S&S nature of a violation. Eagle Nest, Inc., 14 

FMSHRC 1119, 1123 ( July 1992)(rejecting ALJ’s ruling that extensive water accumulation 

ranging from 16 to 48 inches deep in an entry way subject to mandatory examinations was non 

S&S because examiner could step cautiously while wading through murky water). However, in 

that case, an examiner had to enter the deep pool of water where injury was reasonably likely to 

occur in order to comply with the inspection requirements of the Mine Act. Id. at 1121. The 

facts of this case present a much different degree of exposure, as the Secretary did not show that 

workers on foot were required or reasonably likely to enter the area in which an entanglement 

injury could occur. Furthermore, the Respondent has presented credible evidence demonstrating 

that workers do not travel on foot near the tail pulleys during operation. Tr. 206-07, 215, 302; 

Resp. Ex. 4, 3-6. 

 Therefore, I find that the Secretary has not established a reasonable likelihood of an 

injury occurring at any of the cited locations. As such, the likelihood of injury for Citation No. 

8637419 and Order Nos. 8637420, 8637421, 8637422, 8637423, 8637424, 8637425 is hereby 

MODIFIED from “reasonably likely” to “unlikely.” Additionally, Citation No. 8637419 and 

Order Nos. 8637420, 8637421, 8637422, 8637423, 8637424, 8637425 are also MODIFIED

from “S&S” to “non-S&S.” 

36 FMSHRC Page 1446
C. Gravity 

For Citation No. 8637419 and Order Nos. 8637420, 8637421, 8637422, 8637423, and 

8637425, Inspector Hollis testified that the exposed fluted tail pulleys at these areas were likely 

to cause a fatal injury if a worker became entangled as a worker’s entire body could be dragged 

in. Tr. 58-59, 76-77, 101, 112, 122-23, 146. For Order No. 8637424, Hollis determined that 

because the wings of the No. 4 tail pulley were bent, that while a worker could lose a hand or 

arm, he did not believe this tail pulley could hold someone in long enough to cause a fatal injury. 

Tr. 133. Respondent did not directly contest the severity of injury designations for these 

citations at hearing or within their post-hearing brief. After reviewing the parties’ testimony and 

inspection photos, I find the Secretary has produced sufficient testimony and evidence for me to 

uphold Inspector Hollis’s severity of injury determinations for all six orders and one citation as 

written. 

D. Negligence 

The Secretary has alleged that the violations found at each of the seven cited locations 

were the result of Respondent’s reckless disregard for the Mine Act and Worker Safety. 

Respondent disputes this finding and argues, in essence, that it acted with, at most, moderate 

negligence for all of the violations. 

 The Mine Act defines reckless disregard as conduct which exhibits the absence of the 

slightest degree of care, high negligence as actual or constructive knowledge of the violative 

condition without mitigating circumstances; moderate negligence as actual or constructive 

knowledge of the violative condition with mitigating circumstances; and low negligence as 

actual or constructive knowledge of the violative condition with considerable mitigating 

circumstances. 30 CFR § 100.3: Table X. The Secretary and Respondent both set forth their 

negligence arguments in a general cumulative fashion. Sec’y Br. 23-27; Resp. Br. 15-17. 

However, I have analyzed the specific circumstances and operator’s level of knowledge 

regarding each location individually and have set forth my negligence findings separately for 

each citation. 

 1. Citation No. 8637419 

 

 Inspector Hollis testified that when he asked Operations Manager Cotham why the missing 

guard at the 10’s belt had not been replaced, Cotham replied “production needs” and indicated 

that he had been aware of the missing guard prior to the inspection. Tr. 62-63; Sec’y Ex. 2, 5-6. 

After reviewing Inspector Hollis’ inspection notes, it appears that Hollis incorporated this 

alleged statement into the text of every other citation. Sec’y Ex 2. 5-6; Sec’y Exs. 7, 11, 15, 19, 

23, 27. Hollis did testify that although he did not observe any ongoing repairs at the time of the 

inspection, Cotham informed him that he had previously instructed his staff to “get the guards 

fixed.” Tr. 63; Sec’y Ex. 2, 4-5. Inspector Hollis’s testimony that Foreman Childress told Hollis 

that he knew guards had been missing for “two to three” days is supported by Hollis’s general 

inspection notes. Tr. 151; Sec’y Ex. 2, 6. 

36 FMSHRC Page 1447
 Cotham testified that he was not aware of the cited missing guards prior to the inspection 

and that he never told Inspector Hollis “production needs” had prevented the guards from being 

replaced. Tr. 223-24. Maintenance Foreman Maclin testified that he first learned that the 10’s 

guard was damaged early on the morning of November 17. Tr. 307. Maclin stated that his 

maintenance crew began fabricating a new guard for this location until repair efforts were 

directed to the primary crusher when it broke down. Tr. 308. Maclin maintained that although 

some areas of the wet plant operated briefly on November 17, the 10’s belt did not run on the 

morning of November 17. Tr. 317. Foreman Childress, who was responsible for pre-shift 

inspections at the secondary plant, did not testify at the hearing. Tr. 326. 

 After reviewing the parties testimony and Inspector Hollis’s inspection notes, I find that 

when Cotham and Childress stated they knew about “guards” being off prior to the inspection, 

they were most likely referring to their general knowledge of the ongoing problem of skid steers 

damaging guards and requiring repair rather than to longstanding knowledge of any specific 

missing guard.. Sec’y Ex. 2, 4-5; Tr. 280; Tr. 304. I also find that any comment from Cotham 

referencing “production needs” was most likely a statement explaining how the guards were 

damaged in the first place, given Cotham’s belief that using skid steers to clean around the tail 

pulleys was both the most safe and efficient method. Tr. 287. It is simply not credible to 

conclude that Cotham, given his reticence and concern about saying something to Hollis that 

would make matters worse, would claim “production needs” trumped safety repairs in such an 

inflammatory and self-incriminating statement. Tr. 255. 

 

 Nevertheless, it is clear that the 10’s guard was completely torn off the tail pulley prior 

to the beginning of the November 17 morning shift. It is unclear whether Foreman Childress 

took any action or even noted this obvious condition during his required pre-shift inspection. Tr. 

256-57. However, Foreman Maclin credibly testified that the maintenance crew began 

fabricating a new guard once they noted the problem during pre-shift maintenance check, and 

maintained that the 10’s belt was not run that morning. Tr. 317. However, neither Childress nor 

Maclin locked and tagged out the 10’s belt or barricaded the belt from access. Tr. 311, 314. As 

such, I am left to determine whether uncompleted repair efforts and a failure to lock and tag out a 

conveyor belt with a known missing guard constitutes reckless disregard for worker safety. In 

these specific circumstances, I find that due to Respondent’s credible evidence of general safety 

measures and specific repair attempts on the 10s guard, the Secretary has not shown that 

Respondent’s management acted with a complete absence of care for worker safety at this 

location. 

 As a general matter, Respondent presented credible and undisputed evidence that it took 

considerable efforts to protect workers from entanglement hazards prior to the November 17 

inspection. Management conducted safety talks emphasizing the importance of avoiding pinch 

points and locking and tagging out conveyor belts when movable parts needed repairs. Tr. 197-

98. Skid steers and water trucks were used for routine cleaning at tail pulleys, distancing 

workers from the tail pulleys. Tr. 204, 209. When night work led to an increase in guard 

damage, additional light towers were brought in as an attempt to prevent further damage. Tr. 

305-06. Due to the increase in guard damage, the maintenance crew began installing quick 

repair panels. Tr. 305-06. While not determinative, I note these measures and Respondent’s 

clean accident and inspection history leading up to this inspection in finding that the Secretary 

36 FMSHRC Page 1448
has not shown that Respondent had a history of operating with indifference to MSHA regulations 

or worker safety. Resp. Br. 17. 

 

 After identifying the missing 10’s guard on November 17, Foreman Maclin apparently did 

not believe the unguarded tail pulley at the 10’s belt needed to be locked and tagged out because 

the belt was not running that morning and miners did not normally work on foot in this area. Tr. 

317, 322. This attitude failed to consider the remote possibility of unplanned foot traffic and the 

10’s belt being inadvertently energized and fell below the high standard of care imposed by the 

Mine Act on operators. However, I find Maclin’s action did not demonstrate a complete absence 

of care for worker safety. Maclin did promptly direct his crew to fabricate a new guard and 

under normal conditions the 10’s guard would have been replaced within several hours if not for 

the primary crusher breaking down. Tr. 308. This type of corrective action, albeit incomplete, 

corresponds with Inspector Hollis’s explanation of the difference between high negligence and 

reckless disregard: 

Reckless disregard, you know, is – is, again, the operator displays 

essentially a total lack of concern of what they’ve got there. ... 

High negligence is, okay, I knew about it—the mine operator knew 

about it. They haven’t taken steps to take care of it immediately, 

but they have taken steps to take care of it in the long term, over 

the – a longer period of time. 

They knew about it; they haven’t taken care; but maybe they’ve 

ordered the parts. Maybe they’ve ordered the material to fix it. 

Tr. 181. 

 The Secretary has urged me to discount Respondent’s testimony regarding ongoing and 

planned guard repairs prior to Hollis’s inspection. The Secretary has essentially argued that as 

Respondent failed to detail these repair efforts during the inspection or closeout meeting, these 

claims lack credibility. Tr. 151, Sec’y Br., 26. I disagree. Inspector Hollis himself testified and 

recorded in his inspection notes that Operations Manager Cotham informed him that he had 

previously requested maintenance workers to repair damaged guards. Tr. 63; Sec’y Ex. 2, 4-5. 

Operations Manager Cotham testified credibly that he was not specifically aware that the 10’s 

guard was missing prior to the inspection, and as he was offsite on the morning of November 17, 

it is not surprising that Foreman Maclin had started repairs, according to company policy, 

without notifying Cotham or other management officials. Tr. 190, 223, 303. At hearing, 

Cotham named Dwight Sisk without hesitation as the extra individual hired prior to the 

November 17 inspection to assist with guard repairs. Tr. 296-97. As such, Cotham and Maclin 

testified with sufficient specificity and corroboration by Inspector Hollis’s own testimony for me 

to conclude that repair efforts had actually started on the 10’s belt prior to Hollis’s inspection. 

 

 Furthermore, although the secondary plant operated some belts for approximately an hour 

before the primary crusher broke down, all evidence indicates that the 10’s belt was deactivated 

and the only workers who may have traveled in that general area were skid steer operators 

enclosed in a protective cab. Tr. 317, 322. The 10’s belt was not running at the time of Hollis’s 

36 FMSHRC Page 1449
inspection while the plant was idled and I have held that the saturated ground conditions made it 

highly unlikely for workers on foot to approach the unguarded tail pulley. Tr. 55, 307. Thus, the 

possibility of injury was extremely remote under these specific circumstances. Most critically, 

as I have held that Respondent made genuine, if incomplete efforts to repair the 10’s guard, I 

find that Respondent did not act with deliberate disregard for an unjustifiable risk of harm. As 

such, the negligence designation for Citation No. 8637419 shall be MODIFIED from “reckless 

disregard” to “high.” 

 2. Order No. 8637420 

 

 Inspector Hollis testified and referenced inspection photos showing that the guard at the 

wetside return conveyor was completely missing. Tr. 76; Sec’y Ex. 9. Although maintenance 

Foreman Maclin testified that he was not aware of any missing guards other than at the 10’s belt, 

the submitted photo depicts a clearly obvious exposed tail pulley. Tr. 308; Sec’y Ex. 9. As such 

I hold that Respondent’s management, notably Foreman Childress, should have identified the 

missing guard during the November 17 pre-shift examination. Tr. 153-54. However, as I have 

held earlier that all cleaning work during operations was performed from within a protective cab 

and workers relied on their training and did not approach the tail pulley on foot when the plant 

was idled, the Secretary has not shown that Respondent deliberately disregarded an unjustifiable 

risk of harm. I also again take note of Respondent’s general proactive measures of conducting 

safety meetings focused on the dangers of moving parts, increasing lighting, and attempting to 

install more resilient guards. While these measures are not sufficient specific mitigating 

circumstances to reduce the negligence level to moderate, they do demonstrate that Respondent 

took measurable efforts in preventing entanglement injuries. As such I hold that the negligence 

designation for Order No. 8637420 shall be MODIFIED from “reckless disregard” to “high.” 

 3. Order No. 8637421 

 Inspector Hollis testified and introduced an inspection photo showing that the back of the 

guard at the 6x16 tail pulley was missing. Tr. 93; Sec’y Ex. 13. In the inspection photo, the tail 

pulley is approximately 6 inches above the ground with the top of and sides of the guard intact 

thus appearing to substantially guard the tail pulley from incidental contact. Sec’y Ex. 13. This 

defect could have been missed during a routine pre-shift examination due to ordinary human 

error or an imperfect inspection angle rather than a total absence of care. Furthermore, the tail 

pulley is set back from the top and side guards approximately six inches and the extended grease 

fitting is clearly intact. Sec’y Ex. 13. As such, it appears that only a deliberate attempt to access 

the tail pulley with the conveyor belt moving in violation of Respondent’s safety provisions 

could result in an injury. I find the fact that this guard was substantially intact and the defect was 

not readily apparent from all angles to be mitigating factors. Therefore, I find that the failure to 

identify and correct this condition shall be MODIFIED from “reckless disregard” to “moderate” 

negligence. 

 4. Order No. 8637422 

 Inspector Hollis testified and introduced a photo showing that the guarding at the blend 

conveyor belt tail was insufficient. Tr. 107; Sec’y Ex. 17. Hollis testified and the inspection 

36 FMSHRC Page 1450
photo appears to show that the blend conveyor belt was running at the time of the inspection. 

The photo shows that there is only some partial guarding on one side of this tail pulley and the 

tail pulley is exposed on the top, bottom, and near side. Sec. Ex. 17; Tr. 107. Operations 

Manager Cotham confirmed that the guard was missing at the time of the inspection but 

maintained that workers did not walk in the area of this tail pulley and all cleaning during 

operations were performed by a skid-steer or water truck. Tr. 236. As noted above, Inspector 

Hollis testified that he did not see any workers walking in the area of any of the cited conveyor 

belts, including the blend conveyor belt at issue in this order. Tr. 157. 

 As both Cotham and Maclin credibly testified that they did not know that this particular 

guard was missing prior to the inspection, I find that Respondent’s management did not have 

actual knowledge that this guard was missing. Tr. 237, 308. However, the area of exposure was 

obvious enough that Respondent’s management, namely Foreman Childress, should have 

identified this condition during the November 17 pre-shift inspection. Tr. 153-54. Still, as 

cleaning operations were performed from within a protective cab and workers relied on their 

training and did not approach the tail pulley on foot when the plant was idled, the Secretary has 

not shown that Respondent deliberately disregarded an unjustifiable risk of harm in failing to 

identify and correct this condition. I also again take note of Respondent’s general proactive 

measures of conducting safety meetings focused on the dangers of moving parts, increasing 

lighting, and attempting to install more resilient guards. While these measures are not sufficient 

specific mitigating circumstances to reduce the negligence level to moderate for this citation, 

they do demonstrate that Respondent took measurable efforts in preventing entanglement 

injuries. As such, I hold that the negligence designation for Order No. 8637422 shall be 

MODIFIED from “reckless disregard” to “high”. 

 5. Order No. 8637423 

 Inspector Hollis testified and introduced an inspection photo showing that while the 1⁄2 tail 

pulley was guarded on the top, sides, and rear, the side guards failed to cover approximately two 

to three inches of the bottom of the tail pulley. Tr. 119; Sec’y Ex. 21. Operations Manager 

Cotham credibly testified that this guard had been in place as pictured during previous 

inspections by Mr. Hollis and other MSHA inspectors as recently as August 2011. Tr. 245-46. 

Hollis confirmed that he had previously inspected Respondent’s plant without issuing guarding 

violations but maintained he would have issued a citation if he had observed this condition. Tr. 

165. After reviewing the inspection photo and the language of the standard, I find that as there is 

a visible area of limited exposure, Inspector Hollis was within his authority to determine that 

additional guarding was needed. However, the bottom rail of the side guard is intact, indicating 

that this guard had not been recently damaged and was likely in this condition during previous 

MSHA inspections. Sec’y Ex. 21. As such, the pre-existing guard reduced the risk of contact all 

but entirely and it was reasonable for Respondent to conclude on the basis of previous 

inspections that the guard was sufficient. Having found that the minor deficiencies of the preexisting guard were not apparent during a regular pre-shift inspection, I hold that the negligence 

designation for Order No. 8637423 shall be MODIFIED from “reckless disregard” to “low.” 

36 FMSHRC Page 1451
 6. Order No. 8637424 

 Inspector Hollis testified and referenced an inspection photo showing that the guarding at 

the 4” tail pulley had an opening in the right side of the guarding. Tr. 130; Sec’y Ex. 25. 

Inspector Hollis did not testify or list in his notes how large this opening was but did state that it 

was large enough to allow for accidental contact. Tr. 130; Sec’y Ex. 24. The inspection photo 

does not show the entire guard or the opening itself, but shows a close-up view of the tail pulley. 

Sec’y Ex. 25. The photo appears to have been taken very close to the guard as the expanded 

metal webbing of the guard is visible in extreme close-up on the left hand side of the photo. 

Sec’y Ex. 25. On cross examination, Inspector Hollis maintained that he did not take the photo 

from inside of the guard and that he took the photo from that point because he wanted to show 

the exposed tail pulley. Tr. 167. Manager Cotham testified that he considered the tail pulley at 

this location substantially guarded, and stated that this guard had been in the same condition 

during recent MSHA inspections and had not been cited. Tr. 248. Although Inspector Hollis 

stated that he believed the opening was large enough for accidental contact to occur, without an 

estimation of the size of the opening or a picture of the opening itself, I cannot conclude that the 

opening was large enough to be readily apparent during a pre-shift inspection. In fact, the 

inspection photo and both parties testimony indicate that the tail pulley was substantially, if not 

completely guarded, and the opening was of limited size and exposure. Sec’y Ex. 25. As the 

Secretary has not shown that the violative condition at this location was readily apparent, I find 

that the negligence designation for Order No. 8637424 shall be MODIFIED from “reckless 

disregard” to “low”. 

 7. Order No. 8637425 

 Inspector Hollis testified and referenced an inspection photo showing that the guarding at 

the dry side return belt was insufficient. Tr. 143; Sec’y Ex. 29. In the inspection photo, only one 

side of the tail pulley is visible but it appears that this belt was only guarded with small side 

guards at the time of the inspection. Sec’y Ex. 29. Manager Cotham credibly testified that he 

was not aware that the guarding was damaged at this area prior to the inspection and stated 

additional guarding was normally present at this location. Tr. 249-50. Cotham’s statement is 

seemingly corroborated by Inspector Hollis testimony that there was some additional guarding 

hanging from the conveyor structure at the time of the inspection. Tr. 143-44. While the partial 

guarding visible in the inspection photo did provide some degree of protection from incidental 

contact, the area of exposure is apparent enough that Respondent’s management should have 

identified this condition during a pre-shift examination. Tr. 153-54. However, the only workers 

who entered this area during operation were skid-steer operators enclosed in protective cabs and 

Respondent had begun efforts to completely rebuild all guards in the secondary plant. Tr. 249, 

297. Thus, the Secretary has not shown that Respondent disregarded an unjustifiable risk of 

harm or acted with a complete absence of care in failing to identify and correct this condition. 

As such, I find that the negligence designation for Order No. 8637425 shall be MODIFIED

from “reckless disregard” to “high.” 

36 FMSHRC Page 1452
E. Unwarrantable Failure 

 

 Section 104(d)(1) of the Mine Act requires a finding that the underlying violation is of a 

significant and substantial nature. 30 U.S.C. 814(d)(1). As I have found that the Secretary failed 

to show that any of the seven violations were S&S, I find that Citation No. 8637419, shall be 

MODIFIED from a 104(d)(1) citation to a 104(a) citation and Order Nos. 8637420, 8637421, 

8637422, 8637423, 8637424, 8637425 shall be MODIFIED from 104(d)(1) Orders to 104(a) 

citations. 

F. Flagrant Violation Penalty Assessment 

 As outlined in the Stillhouse decision, the Secretary may only assess penalties in excess 

of $70,000.00 per citation per Section 110 (b)(2) of the Mine Act when he has shown the 

violation was a reckless or repeated failure to correct a hazard that was reasonably likely to result 

in serious injury. Stillhouse Mining, 33 FMSHRC 802. For the six orders and one citation in 

these dockets before me I have held that Respondent did not act with reckless disregard. I have 

also found that the underlying violations in these actions were not reasonably likely to result in 

an injury. As such, the Secretary has not shown two of the elements necessary to support penalty 

assessments under Section 110(b)(2) of the Mine Act. Therefore, I find that none of the 

violations at issue before me to be flagrant. 

VI. PENALTY 

 In determining the appropriate penalty for a violation, 30 CFR 100.3 generally directs me 

to consider: 

(1) the operator’s history of previous violations, (2) the appropriateness of such 

penalty to the size of the business of the operator charged, (3) whether the 

operator was negligent, (4) the effect on the operator’s ability to continue in 

business, (5) the gravity of the violation, and (6) the demonstrated good faith of 

the person charged in attempting to achieve rapid compliance after notification of 

a violation. 

Additionally, per 30 CFR 100.5, the Secretary determined that all six orders and one 

citation warranted a special proposed penalty assessment with penalties in excess of the standard 

penalty tables contained in 30 CFR 100.3. However, the submitted special assessment narrative 

forms for the citations and orders simply noted that other guarding violations had been identified 

on the same day and restated the gravity and negligence determinations of Inspector Hollis. As 

such, these forms do not provide me with a detailed basis to determine the appropriateness of the 

specially assessed penalties. Still, the Secretary has argued, in essence, throughout the hearing 

and her brief that the multiple guarding violations found at Respondent’s mine demonstrated 

such a high degree of negligence that enhanced penalties are needed. Tr. 13. 

The Secretary’s proposed assessments indicate that the Respondent had a total violation 

rate of 1.2 per inspection day with zero repeat violations of the guarding violations at issue. 

36 FMSHRC Page 1453
Sec’y Proposed Assessment Docket SE 2013-50 & 64, Exhibit A. The Secretary stated at 

hearing that MSHA had previously issued two guarding citations in 2010, but later informed the 

Court that that the two citations were not final when Inspector Hollis issued the November 17 

104(d) citations and orders. The Secretary’s proposed assessment also indicates that 

Respondent’s mine is an average size and that Respondent is a small operator. Sec’y Proposed 

Assessment Docket SE 2013-50 & 64, Exhibit A; 30 CFR 100.3, Table III-IV. Although 

Respondent has argued that the Secretary has proposed unjustifiably high monetary penalties, 

Respondent has not argued or presented any evidence indicating that the proposed penalties 

would affect their ability to continue business operations. I have discussed the gravity and 

negligence of each citation within my analysis. Both parties agreed that Respondent abated the 

violations by constructing and installing appropriate guards by the next day, November 18, 2014. 

Tr. 89; Tr. 316. I also note that Jeremy Childress, the foreman responsible for conducting preshift examinations at the secondary plant at the time of the inspection, was apparently relieved of 

his management duties at some point after the November 17 MSHA inspection. Tr. 251, 322. 

 Using the 30 CFR 100.3 penalty tables as a starting basis, I find that after accounting for 

my gravity and negligence findings, the standard penalty calculation would result in approximate 

penalties of $1,995.00 for Citation No. 8637419, Order Nos. 8637420, 8637422, and 8637425, 

$601.00 for Order No. 8637421, $270.00 for Order No. 8637423, and $121.00 for Order No. 

8637424. However, I believe that increased penalties, specifically due to those guarding 

violations that should have been identified during a diligent pre-shift inspection and because the 

inadequately guarded tail pulleys had not been locked and tagged out at the time of the 

inspection, are warranted in these specific circumstances. After considering all six statutory 

penalty criteria, including the effect on Respondent’s ability to continue operations, I believe that 

the following penalties are appropriate: 

 Citation No. 8637419- $10,000.00 

 Order No. 8637420- $10,000.00 

 Order No. 8637421- $2,500.00 

 Order No. 8637422- $10,000.00 

 Order No. 8637423- $1,000.00 

 Order No. 8637424- $500.00 

 Order No. 8637425- $10,000.00. 

Furthermore, I am confident these penalties further the purpose of the Mine Act in motivating 

Respondent and other operators to adequately conduct pre-shift inspections and promptly lock 

and tag out unguarded tail pulleys, regardless of the likelihood of injury: 

36 FMSHRC Page 1454
 The complete summary of my judgment and penalty determinations is as follows: 

Citation 

No. 

Originally 

Proposed 

Assessment 

Judgment 

Amount Modification 

SE 2013-50 

8637421 $42,600.00 $2,500.00 Reduce Likelihood of Injury from 

“Reasonably Likely” to “Unlikely” 

Remove Significant and Substantial Designation 

Modify 104(d)(1) Order to a 104(a) Citation 

Reduce Negligence from 

“Reckless Disregard ” to “Moderate” 

8637423 $42,600.00 $1,000.00 Reduce Likelihood of Injury from 

“Reasonably Likely” to “Unlikely” 

Remove Significant and Substantial Designation 

Modify 104(d)(1) Order to a 104(a) Citation 

Reduce Negligence from 

“Reckless Disregard ” to “Low” 

8637424 $31,100.00 $500.00 Reduce Likelihood of Injury from 

“Reasonably Likely” to “Unlikely” 

Remove Significant and Substantial Designation 

Modify 104(d)(1) Order to a 104(a) Citation 

Reduce Negligence from 

“Reckless Disregard ” to “Low” 

8637425 $42,600.00 $10,000.00 Reduce Likelihood of Injury from 

“Reasonably Likely” to “Unlikely” 

Remove Significant and Substantial Designation 

Modify 104(d)(1) Order to a 104(a) Citation 

Reduce Negligence from 

“Reckless Disregard ” to “High” 

36 FMSHRC Page 1455
SE 2013-64 

8637419 $129,400.00 $10,000.00 Reduce Likelihood of Injury from 

“Reasonably Likely” to “Unlikely” 

Remove Significant and Substantial Designation 

Modify 104(d)(1) Order to a 104(a) Citation 

Reduce Negligence from 

“Reckless Disregard ” to “High” 

8637420 $129,400.00 $10,000.00 Reduce Likelihood of Injury from 

“Reasonably Likely” to “Unlikely” 

Remove Significant and Substantial Designation 

Modify 104(d)(1) Order to a 104(a) Citation 

Reduce Negligence from 

“Reckless Disregard ” to “High” 

8637422 $129,400.00 $10,000.00 Reduce Likelihood of Injury from 

“Reasonably Likely” to “Unlikely” 

Remove Significant and Substantial Designation 

Modify 104(d)(1) Order to a 104(a) Citation 

Reduce Negligence from 

“Reckless Disregard ” to “High” 

Total $547,100.00 $44,000.00 

36 FMSHRC Page 1456
VII. ORDER 

Winn Materials, LLC is hereby ORDERED to pay the Secretary of Labor the 

total sum of $44,000.00 within 30 days of this order.1 

David P. Simonton 

Administrative Law Judge 

Distribution: (First Class U.S. Mail) 

Angele Gregory, Office of the Solicitor, U.S. Department of Labor 

618 Church Street, Suite 230, Nashville, TN 37219 for Petitioner 

Justin Winter, Adele Abrams P.C., 

4740 Corridor Place, Suite D, Beltsville, MD 20705 for Respondent 

 1

 Payment should be sent to: MINE SAFETY AND HEALTH ADMINISTRATION, U.S. DEPARTMENT 

OF LABOR, PAYMENT OFFICE, P. O. BOX 790390, ST. LOUIS, MO 63179-0390 

36 FMSHRC Page 1457
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 

May 28, 2014 

KIP ALLEN KEIM, 

 Complainant 

 v. 

CORDERO MINING LLC, 

 Respondent 

: 

: 

: 

: 

: 

: 

: 

: 

 DISCRIMINATION PROCEEDING 

 Docket No. WEST 2013-442-D 

 MSHA Case No. DENV-CD-2013-02 

 Mine: Cordero Mine 

 Mine ID: 48-00992 

ORDER GRANTING RESPONDENT’S 

MOTION FOR SUMMARY DECISION

Before:Judge McCarthy 

I. Procedural Background

 This case is before me upon a discrimination complaint filed by Kip Allen Keim, 

(“Keim” or “Complainant”) pursuant to section 105(c)(3) of the Federal Mine Safety and Health 

Act of 1977, 30 U.S.C. § 815(c)(3).1 Complainant’s November 14, 2012 pro se discrimination 

complaint filed with the Mine Safety and Health Administration (MSHA) alleges that on October 

26, 2012, Complainant was fired for making an alleged safety complaint to Respondent’s 

internal reporting hotline. Complainant seeks back pay, compensatory damages for pain and 

suffering to self and family, and reinstatement to his former position as a welder in Cordero’s 

rebuild shop. 

 1

 Complainant’s brother, Ronald E. Keim (“Ron”), filed a separate pro so complaint of 

discrimination against Respondent in Docket No. WEST 2013-537-D. As discussed below, my 

Notices of Hearing consolidated the brothers’ discrimination cases for hearing. Respondent filed 

a Motion for Summary Decision in both cases. On April 16, 2014, I issued a Order Granting 

Respondent’s Motion for Summary Decision in Ron Keim’s discrimination case. In my order, I 

severed the previously consolidated cases and dismissed Ron Keim’s case for failure to establish 

any genuine issue of material fact that the adverse discipline taken against him was motivated, at 

least in part, by any protected activity in which he engaged, or that management harbored any 

animus toward such activity. 

36 FMSHRC Page 1458
 On March 1, 2013, Respondent filed an Answer denying that Keim engaged in any 

protected activity, denying that Keim suffered any adverse action motivated by any protected 

activity, and alleging that Keim was disciplined for unprotected activity, specifically, for 

insubordination. 

 By letter dated January 16, 2013, MSHA determined that the facts disclosed during the 

investigation did not constitute a violation of Section 105(c). By letter dated February 1, 2013, 

Keim appealed MSHA’s determination of no discrimination to the Commission and claimed that 

review would establish that he had been “treated unfairly” and that Respondent’s justification for 

his termination was based on faulty assumptions. 

 This case was assigned to the undersigned on March 28, 2013. The next day, I instructed 

Keim to provide a copy of his original complaint to MSHA, which set forth his allegations of 

discrimination or adverse treatment and any instances of protected activity in which he engaged. 

In response, Keim provided an undated letter addressed to MSHA, and a copy of his statement 

provided to MSHA during the course of its investigation. 

 On May 2, 2013, my office issued a Notice of Hearing for August 27, 2013 in Gillette, 

Wyoming. On August 9, 2013, the hearing location was moved to Casper, Wyoming. In the 

interim, several conference calls were held with the parties regarding pre-hearing issues and 

discovery matters. Upon agreement of all parties, an Amended Notice of Hearing issued on 

August 20, 2013 setting this matter for hearing on October 15, 2013 in Casper, Wyoming. 

 On September 5, 2013, the undersigned ordered the disclosure of all documents related to 

an internal investigation of a related workplace harassment complaint at Cordero Mine. The 

allegations that prompted the investigation blamed Complainant and members of his family for 

creating a hostile work environment and for making threats of violence towards a coworker, 

David Alaniz. After reviewing the documents in camera, it was apparent that the documents 

contained information relevant to these proceedings. Given the sensitive nature of Cordero’s 

investigation, the discovery of such documents was subject to a Confidentiality Order.

 On September 10, 2013, Respondent filed a Motion for Summary Decision, with attached 

exhibits. In its motion, Respondent argued that Keim had not engaged in any protected activity 

and that Keim cannot prove that Cordero had knowledge of his alleged protected activity. 

Respondent submitted affidavits and other supporting documentation showing that between 

September 1, 2012 and February 27, 2013, calls to Cordero’s internal reporting hotline were 

mistakenly routed to The Network, a call-monitoring company employed by Cordero’s former 

owner, Rio Tinto. As such, Respondent argues that it was not aware of the hotline complaint that 

Keim relies on to establish that he engaged in protected activity. Even if Cordero had knowledge 

of the hotline call, Respondent argues that Keim has failed to demonstrate that his hotline 

complaint involves a health or safety concern that would qualify as protected activity under the 

Mine Act. 

36 FMSHRC Page 1459
 On September 20, 2013, a conference call was held with the parties and the undersigned 

to discuss the Motion for Summary Decision and the upcoming hearing. During the call, I 

requested that Respondent provide additional information regarding the processing of Keim’s 

hotline complaint. In particular, Respondent was asked to provide the names of The Network 

employee who took Keim’s call, and the Rio Tinto officials who investigated Keim’s complaint, 

so that they could be subpoenaed to testify at hearing. Counsel for Respondent agreed to look 

into the matter and report back to the undersigned. 

 On September 26, 2013, Respondent filed the First Supplement to its Motion for 

Summary Decision. The First Supplement sets forth Respondent’s general understanding about 

how the call-routing problem was discovered, and argues that Complainant has not offered any 

evidence of Cordero’s hostility to the concerns raised in Keim’s hotline complaint. 

 On September 27, 2013, a subpoena duces tecum was issued to Joseph Foltz, registered 

agent of The Network, upon the application of Respondent. The subpoena ordered The Network 

to produce by October 3, 2013, the name of the individual who took Keim’s hotline call and all 

records, correspondence, emails, and/or documents related to Keim’s call. 

 On September 8, 2013, Keim filed a letter in response to Respondent’s Motion to 

Dismiss. In his letter, Keim sets forth circumstantial evidence that he believes demonstrates that 

Cordero management was aware of his hotline complaint. In particular, Keim alleges that after 

he made his hotline complaint to management, Doug Nutting, human resources site manager for 

Cordero, held an unprecedented meeting with D crew to discuss the issues that Keim had raised 

in the hotline call.2

 Keim also informed the undersigned of personnel changes that Cordero 

made after his termination which Keim believes is somehow evidence of discriminatory intent.3

 

Keim, however, does not offer any evidence directly refuting Respondent’s claim that calls to 

Cordero’s hotline were inadvertently forwarded to a third party, or supporting his assertions that 

the changes in Cordero personnel were related to his termination or to these proceedings. 

 2

 Keim fails to add that Nutting’s meeting with D crew came on the heels of an 

investigation of Alaniz’s hostile workplace complaints made to MSHA and Wyoming mine 

inspectors. At the conclusion of Cordero’s investigation, management informed Alaniz that they 

would discuss “a few concerns with the shop” with the intent “to provide additional training 

regarding what CPE expects.” R. Mot. for Protective Order, Ex. B, at 39.

3

 Keim alleges that Nutting was either terminated or resigned after Keim told 

Respondent’s counsel that Nutting made false representations concerning whether Keim resigned 

or was terminated. Letter from Kip Keim (Oct. 8, 2013). Keim also alleges that his manager, 

Clint Cooper, and supervisor, Tim Bishop, were transferred to new positions at Cordero. Id. 

36 FMSHRC Page 1460
 On October 11, 2013, Respondent filed a Second Supplement to its Motion for Summary 

Decision. The Second Supplement stated that The Network had refused to comply with the 

aforementioned subpoena duces tecum on the grounds that it was unreasonable in scope and gave 

The Network insufficient time to respond. In lieu of the requested information, The Network 

provided the sworn statement of Thomas Kelly, Director of Professional Services. In his 

statement, Kelly sets forth the procedures that The Network’s interview specialists employ when 

speaking to a caller, but Kelly does not provide any additional information related to Keim’s call. 

In addition, the Second Supplement included sworn declarations from Peggy Leonard and Adam 

Bennett, who manage Rio Tinto’s compliance hotline from Brisbane, Australia. 

 Thereafter, the federal government shutdown compelled the rescheduling of the October 

15, 2013 hearing. After consultation with the parties, the undersigned issued an Amended 

Notice of Hearing setting this matter for hearing on February 18, 2014 in Casper, Wyoming. 

 On October 28, 2013, Keim filed a letter in response to Respondent’s Motion for 

Summary Decision and supplements in support thereof. In the letter, Keim called into question 

the credibility of the sworn statements of the employees of Cordero, Rio Tinto, and The 

Network, but did not offer any contrary evidence. In addition, Keim moved that this 

administrative tribunal compel “everyone immediately involved in this case [to submit to] a poly 

graph [sic] test so you know who is telling you the truth.” 

 

 On November 6, 2013, in consideration of Complainant’s pro se status, I issued a 

subpoena duces tecum to Foltz pursuant to my authority under Commission Procedural Rule 

60(a). See 29 C.F.R. § 2700.60. The subpoena ordered The Network to produce the name of the 

individual who took Keim’s hotline call, and all records, correspondence, emails, and/or 

documents related to Keim’s call. On November 14, 2013, The Network filed an objection to the 

subpoena duces tecum on the grounds that it seeks proprietary and confidential information, is 

burdensome and unreasonable, and seeks information that The Network has already produced in 

this matter. 

 On November 21, 2013, Respondent filed its Response in Opposition to Complainant’s 

Motion to Compel Respondent’s Agents to Submit to Polygraph Examination. Respondent 

argued that Complainant’s Motion to Compel should be denied because polygraph evidence is 

unnecessary in Commission proceedings and is inherently unreliable. Respondent further argued 

that Complainant’s letters in response to the Motion for Summary Decision and supplements in 

support thereof failed to include a concise statement of each genuine issue of material fact 

necessary to be litigated, or supporting affidavits or other verified documents. See 29 § C.F.R. 

2700.67(d). 

 During a conference call on January 24, 2014, the parties agreed to reschedule the 

hearing until May 8, 2014 to enable the parties to complete outstanding discovery requests and to 

allow Respondent to depose Thomas Kelly. Additionally, Keim was asked to further explain his 

request that witnesses be compelled to submit to polygraph tests. Essentially, Keim justified his 

36 FMSHRC Page 1461
polygraph motion by arguing that he thought that a polygraph test would likely to lead to the 

discovery of admissible evidence, but that he could not afford to pay for the polygraph tests. 

Finding no authority under the Act, Commission Procedural Rules, or legal precedent for the 

Commission to authorize, much less underwrite, the administration of polygraph tests, 

Complainant’s Motion to Compel was denied orally during the conference call. 

 On February 4, 2014, Respondent filed a Third Supplement to its Motion for Summary 

Decision, attaching the transcript of Respondent’s telephonic deposition of Kelly. Complainant 

did not participate in the deposition, although he was afforded an opportunity to do so. 

 On February 7, 2014, an Amended Notice of Hearing issued setting this matter for 

hearing on May 8, 2014 in Casper, Wyoming. On April 28, 2014, the hearing was continued 

during pendency of my consideration of Respondent’s Motion for Summary Decision and 

supplements in support thereof. 

 For the reasons that follow, Respondent’s Motion for Summary Decision is granted. 

II. Stipulations 

 Pursuant to their respective pre-hearing reports, the parties have agreed to the following 

stipulations: 

 1) Respondent is an operator within the meaning of the Mine Act. 

 

 2) Cordero Mining LLC; Cordero Mine, Mine I.D. No. 48-00992, is subject to the 

jurisdiction of the Federal Mine Safety and Health Act of 1977 (the “Mine Act”), 

30 U.S.C. §§ 801 et seq. 

3) At all times relevant to this proceeding, Complainant, Kip Allen Keim (“Kip 

Keim”), was a “miner” within the meaning of Sections 3(g) and 105(c) of the 

Mine Act, 30 U.S.C. §§ 802(g) and 815(c). 

 

 4) The Administrative Law Judge has jurisdiction in this matter. 

 5) Kip Keim began working at the Cordero Mine on September 11, 2006. 

 6) Kip Keim was a welder at the time of termination in October 2012. 

 7) On or about November 14, 2012, Kip Keim filed a discrimination complaint with 

MSHA under § 105(c) of the Mine Act. 

 8) Kip Keim’s employment was terminated effective October 26, 2012. 

36 FMSHRC Page 1462
III. Factual Background 

 Cordero Mine is a surface coal mine in Gillette, Wyoming. On September 11, 2006, Kip 

Keim and his father, Scott Keim, were hired by Rio Tinto to work as welders in Cordero’s 

rebuild shop. Kip Keim Depo. at 11:9; 15:12-23, 18:10. A year later, Cordero hired Kip’s 

brother, Ron Keim, as a welder in the Cat Rebuild Bay. Id. at 17:24-18:23. 

 In 2009, Cloud Peak Energy Resources, LLC (“CPE”) purchased Cordero Mine from Rio 

Tinto. R. Mem. of Points & Authorities, Ex. A., at 1. Keim alleges that Rio Tinto initially told 

him that he could work on the same crew as his father. Sometime thereafter, however, Keim and 

his father were assigned to separate crews when a mew manager, Bill Hopson, took over. Kip 

Keim Depo. at 19:7-20:9. 

 

 In the years preceding his termination, Keim acted in an unofficial capacity as the 

primary step-up lead for B Crew. Kip Keim Depo. at 22:7-24:20. As unofficial step-up lead, 

Keim would direct B Crew when the leadman and official step-up lead were unavailable or while 

those positions were vacant. Id.; R. Mem. of Points & Authorities, Ex. B., at 3. Serving in an 

unofficial capacity did not require additional training, did not result in a permanent change in pay 

grade, and was not viewed as a desirable position by other welders on B Crew. Kip Keim Depo. 

at 24:14 (“nobody else wanted the headache” of being unofficial step-up lead), 33:6-13. Keim, 

however, did receive an increase in pay during the time he actually worked as leadman. R. 

Mem. of Points & Authorities, Ex. B., at 2. 

 When a position as official step-up lead became available, Keim’s supervisor, Tim 

Bishop, and others encouraged Keim to apply for the job. Kip Keim Depo. at 26:8-14. Keim 

stated in his deposition, however, that he did not seek the promotion or the prerequisite training 

because the pay raise would increase his child support obligations. Id.; Kip Keim Depo. at 

24:13-25:4. Although Chuck Burgess was ultimately promoted to official step-up lead under 

leadman Kent Thurman, Keim continued to serve as unofficial step-up lead when Thurman and 

Burgess were unavailable. Kip Keim Depo. at 39:17-41:6. 

A. The Keim-Alaniz Feud

 David (“Dave”) Alaniz is a welder in Cordero’s rebuild shop. Alaniz was assigned to D 

crew with Keim’s brother, Ron Keim, during 2012. Keim alleges that for three years, welders in 

the rebuild shop have had trouble working with Alaniz. Kip Keim Depo. at 108:18-25. Keim 

states that Alaniz quickly developed a reputation as a “super document-taker” and that he 

regularly brought complaints against his coworkers to the attention of management. Id. In 

particular, Keim alleges that Alaniz’s complaints to management specifically targeted his 

brother, and Keim blames Alaniz’s complaints as the impetus for a disciplinary warning and 

action plan that his brother Ron was given. Kip Keim Depo. at 109:20-110:8. Keim avers that 

he and other miners had made complaints to management about Alaniz’s behavior, but 

management never took any action against Alaniz. Id. at 112:16-113:7; 137:18. 

36 FMSHRC Page 1463
 On or about October 2, 2012, Alaniz filed a letter with MSHA and Wyoming mine 

inspectors complaining of harassment and physical intimidation by Kip, Ron, and Scott Keim. 

R. Mot. for Protective Order, Ex. B, at 3. In his letter, Alaniz sought the aid of inspectors to 

defuse a situation that he believed would “lead to extreme violence without [their] intervention.” 

Id. Alaniz alleged that the Keim family, in particular Ron and Scott, had unfairly disparaged the 

quality of his welds, made threats of violence against him and others, and brought weapons and 

ammunition onto mine property. Id. at 3-8. Alaniz’s letter further alleges that Ron Keim created 

a hostile work environment by playing sexually explicit music in the shop and disparaging 

Matthew Shepard, whose brutal murder in Laramire, Wyoming drew national attention to the 

issue of bias-motivated violence. Id.; see also James Brooke, Gay Man Dies from Attack, 

Fanning Outrage and Debate, N.Y. Times, Oct. 13, 1998, www.nytimes.com/1998/10/13/us/ 

gay-man-dies-from-attack-fanning-outrage-and-debate.html. 

 On October 5, 2012, during the shift change, Ron and several miners complained to Kip 

Keim that “they were just completely sick and tired of [Alaniz’s] crap.” Kip Keim Depo. at 

141:10-17. When Alaniz joined them upstairs, Keim alleges that Alaniz sat on his lunch box, 

exposing his genitals through the holes in his pants. Id. This incident prompted 

Keim to call what he believed to be Cordero’s internal complaint hotline to report Alaniz’s 

behavior. R. Mem. of Points & Authorities, Ex. E. Keim’s hotline complaint, as set forth in the 

Ethics and Compliance Report, states in pertinent part: 

WHO: Caller, KIP KEIM, reported DAVID ALVAREZ.4

WHAT: Bullying/Harassment 

WHEN: ONGOING SINCE 2010, EXACT DATE UNKNOWN 

WHERE: IN THE SHOP, IN THE BREAKROOM 

Incident Description

. . . 

10/5/2012 3:46:10 PM - Original Call

Caller, KEIM, reported that ongoing since 2010, exact date 

unknown, Welder, David ALVAREZ, has created a hostile work 

environment. Keim stated that ALVAREZ is looking for any 

opportunity to sue the company so that he does not have to work 

anymore. KEIM stated that the employees feel that they cannot 

say anything without ALVAREZ finding it offensive and reporting 

them to Human Resources. KEIM stated that the employees have 

been called racist because they were talking about Mexican and 

 4

 Although the Ethics and Compliance Report refers to David Alvarez, it is undisputed 

that Keim’s hotline complaint was referencing David Alaniz.

36 FMSHRC Page 1464
Chinese food.5

 KEIM also stated that ALVAREZ specifically 

picks on the younger employees, names DECLINED. KEIM 

asked ALVAREZ to stop picking on the younger employees and 

ALVAREZ told him, “They are f*cking working here became I let 

them f*cking work here.” KEIM also stated that ALVAREZ has 

done things to purposely provoke the employees to say something 

to him. 

KEIM stated that in 2011, exact date unknown, he reported the 

issues with ALVAREZ to Supervisor, Tim BISHOP. KEIM stated 

that no action was taken by BISHOP. KEIM does not want to 

report BISHOP. 

KEIM stated that several employees will be seeking legal help in 

regards to the issues. KEIM would like for ALVAREZ to be 

terminated. 

How does the caller know about the incident?: Witnessed 

What documentation is available?: None 

Involved Parties

Reported Individuals:

Name: DAVID ALVAREZ 

Title: WELDER 

Management Notified: YES6

 5

 Keim mentions the incident concerning Mexican and Chinese food multiple times in 

his complaints and deposition, but does not give an explanation or provide a context for those 

incidents. See R. Mem. of Points & Authorities, Ex. E, at 1; Kip Keim Depo. at 91:19, 104:4-6, 

107:8-20. According to Cordero’s investigation into Alaniz’s complaints, Alaniz objected to 

comments by his coworkers that perpetuate the racial pejorative that Chinese food always 

contains cat and/or dog meat. R. Mot. for Protective Order, Ex. B, at 16. 

6

 During conference calls with the parties and the undersigned, Keim suggested that the 

words “Management Notified: YES” indicated that the hotline complaint was forwarded to 

Cordero. Read in context of the complete Compliance Report, however, it is clear that these 

words merely restate Keim’s allegations that he had notified Bishop sometime in 2011 of 

Alaniz’s behavior. See R. Third Supplement to Mot. for Summary Decision, Ex. A, at 22:7-24 

(confirming that this section of the report is a summary of the information set forth in the 

incident description). 

36 FMSHRC Page 1465
Date: 2011, EXACT DATE UNK Phone: [blank] 

Name: TIM BISHOP 

Title: SUPERVISOR 

Action Taken: None. 

Involved/Aware Parties: YES 

Name: NAMES DECLINED 

Title: EMPLOYEES 

Role: Alleged Victim 

Title: YOUNGER EMPLOYEES 

. . . 

 Escalation Information

IS ONLY: Is there the potential for a serious threat to life to 

occur in the next 48 hours? NO 

Id.7

 

 The hotline number that Keim called was listed on posters or brochures distributed 

throughout the mine, and Keim believed that such calls would be forwarded to Cordero’s top 

management officials. Id.; Kip Keim Depo. at 90:19-91:3. Due to a routing mistake, however, 

Cordero’s hotline number was directed to The Network, the company that manages the ethics 

and compliance complaint hotline for Cordero’s former owner, Rio Tinto, and not to In Touch, 

the contractor hired to manage CPE’s complaint hotline. R. Second Supplement to Mot. for 

Summary Decision, at 2. 

 On October 6, 2012, Keim’s complaint was forwarded to Adam Bennett, Group Counsel 

Investigator for Rio Tinto in Brisbane, Australia. R. Second Supplement to Mot. of Summary 

Decision, Ex. C. According to Bennett’s sworn affidavit, he was unsure where the complaint 

had originated because the caller specified a Gillette, Wyoming location, but Rio Tinto no longer 

had any mines in Gillette. Id. Bennett was able to locate a Rio Tinto employee with a similar 

name in France. Id. Upon his belief that the call originated in France, Bennett posted a response 

to Keim advising, “Dear caller, the laws of the EU and France do not permit us to accept a 

 7

 The Network instructs interview specialists who document employee hotline complaints 

to employ what they call a “three pass-system.” Thomas Kelly Depo at 8:1-9:18. Under this 

system, the interview specialist begins by asking the caller to explain what happened. Id. Based 

on this initial information, the interview specialist classifies the type of complaint (i.e., 

harassment, fraud, etc.) and will ask the caller additional questions that relate to the complaint’s 

classification. Id. Next, the caller will ask a series of questions that have been requested in 

advance by their client. Id. Throughout the call, the interview specialist repeats back the 

information provided by the caller, allowing the caller an opportunity to confirm the accuracy of 

the interview specialist’s report. Id.

36 FMSHRC Page 1466
speak-OUT report for matters other than financial, accounting, banking, competition/antitrust 

law and anti-bribery. If you wish to continue with this complaint please do so via your normal 

management/HR processes.” Id.

 Although Keim has no evidence that his hotline complaint was forwarded to Cordero, 

Keim believes that Bishop knew about the hotline complaint and was angry at Keim for raising 

his concerns above the heads of his immediate supervisors. Kip Keim Depo. at 153:10-13; 

154:9-11. Keim claims that after the hotline call, he noticed a marked change in Bishop’s 

attitude towards him. Id. at 70:15-17. Keim further alleges that on October 15, 2012, Bishop 

told his father and Chad Zurowski that “he hated that everyone liked [Keim].” R. Mem. of 

Points & Authorities, Ex. B., at 5. 

B. Keim’s Termination

 

 In the six months prior to Keim’s termination, Thurman was out on medical leave, and 

Burgess and Keim were alternating as B Crew lead. R. Mem. of Points & Authorities, Ex. B., at 

3. According to Keim, Burgess had advised Keim in advance that he planned to take off four 

night shifts for a hunting trip beginning on October 19, 2012. Id.; Kip Keim Depo. at 38:16-24. 

 On the morning of October 18, 2012, Keim sent a text to Burgess asking him if he needed 

Keim to fill in as lead. Kip Keim Depo. at 42:7-44:4. Later that day, at 7:10 p.m., Keim 

received a text message from Dan Oliver, another welder on B Crew, stating that Bishop had 

asked Oliver to come in early to work and fill in as step-up lead on October 19, 2012. R. Mem. 

of Points & Authorities, Ex. B., at 4. At 7:24 p.m., Keim received a text from Burgess 

responding, “yes, you do” or “yes, you need to come in.” Kip Keim Depo. at 42:7-44:4. 

 Confused, Keim called Clint Cooper, rebuild shop manager, at 7:27 p.m. to seek further 

guidance. R. Mem. of Points & Authorities, Ex. B., at 4. Cooper, however, was unaware of the 

situation and suggested that Keim should contact Bishop. Id. At about 7:29 p.m., Keim called 

Bishop twice and left a voice mail asking Bishop to explain who was expected to fill in as lead 

the next day. Id.; Kip Keim Depo. at 47:17-48:3. 

 Later that evening, Keim met with Oliver at the Montgomery Bar in downtown Gillette, 

Wyoming. Kip Keim Depo. at 48:4-13. Oliver confirmed that Bishop had sent him a text 

message instructing Oliver to fill in as step-up lead during the evening shift the next day. Id. at 

48:4-7. Oliver, however, drew Keim’s suspicion when he told Keim that Oliver had erased the 

text message from Bishop. Id. at 54:12-55:8. After discussing the problem, Oliver ultimately 

conceded that he did not want to go in as step-up lead and suggested that he would be more 

comfortable if Keim took his place. R. Mem. of Points & Authorities, Ex. B., at 4. Keim recalls 

Oliver saying, “Well, if you want to do it, go ahead.” Kip Keim Depo. at 48:17-20. Keim 

replied, “No problem, dude. I’ve done it before. No problem.” Id. 

36 FMSHRC Page 1467
On October 19, 2012, at 9:40 a.m., Keim received a text message from Bishop 

confirming that he wanted Oliver to fill in as B Crew lead. R. Mem. of Points & Authorities, Ex. 

B., at 4. Keim sent Bishop two follow-up text messages seeking an explanation for the change in 

step-up lead policy and informing Bishop that Oliver did not want to assume the responsibility of 

lead. Id. When Bishop did not respond, Keim decided it was too late to ask Oliver to come in 

early. Instead, Bishop went to the mine at noon to serve as B Crew leadman. Id.; Kip Keim 

Depo. at 49:1-21.8

 

When Keim arrived at the rebuild shop, Cooper came out of his office and told Keim, 

“Yeah, I spoke to Tim [Bishop] and he was telling me that he wants to get more people familiar 

with doing the step-up lead.” Kip Keim Depo. at 59:12-20; 60:9-14. Keim replied, “Oh, that 

makes total sense. You bet. I am so sorry . . . I didn’t even – I didn’t hear back from Tim until it 

was too late.” Id. Keim, however, did not tell Cooper about the text message from Bishop that 

he had received that morning. Id. at 61:8-24. 

After working as step-up lead on October 19, Keim continued to work the position for the 

next two night shifts. Kip Keim Depo. at 38:24. On the morning of October 22, 2012, Bishop 

returned to the rebuild shop to discover that Keim, not Oliver, was filling in as step-up lead of B 

Crew. Id. at 64:11-65:11. Bishop pulled Keim and Oliver aside and asked them why they had 

not followed his instructions. Keim replied that he had done so because he never heard back 

from the texts that he had sent Bishop on October 19, adding “a little bit of communication 

would be great.” Id. According to Keim, Bishop responded by stepping in close, jabbing his 

finger in his chest, and yelling at Keim, “I do not have to communicate with you.” Id.; R. Mem. 

of Points & Authorities, Ex. B., at 4. Keim replied, “ok, if that’s how you want it, that’s fine” 

and walked away in an effort to defuse the situation. R. Mem. of Points & Authorities, Ex. B., at 

4. 

Keim worked the night shift on October 22, 2012, and then was off for three days. Kip 

Keim Depo. at 68:23-69-2. On October 26, when Keim returned to work, Keim was called into a 

meeting with Bishop, Cooper, and Nutting. R. Mem. of Points & Authorities, Ex. D., at 3. 

During the meeting, Keim was given a chance to explain why he had disregarded Bishop’s 

instructions and assumed the role of step-up lead. Kip Keim Depo. at 74:22-76:19. When Keim 

offered his explanation that he had done so because Bishop’s text came too late, management 

asked Keim why he continued to work as step-up lead on subsequent nights. Id. Keim 

responded, “I couldn’t tell you.” Id. At the end of the meeting, management concluded that 

Keim would be suspended and that they would recommend that he be terminated for 

insubordination. R. Mem. of Points & Authorities, Ex. D., at 3. On October 29, 2012, Cooper 

called Keim to tell him that he had been terminated. Id. 

8

 Keim explained that the leadman is required to arrive at the mine at noon, well in 

advance of the start of the evening shift, so that the morning shift can apprise the leadman of the 

status of any ongoing projects. Kip Keim Depo. at 49:1-21. Keim went to bed early the night 

before, but was unsure if Oliver had done so. Id. at 51:6-14; 67:21-67:1. 

36 FMSHRC Page 1468
 

 On or about November 14, 2012, Keim filed a discrimination complaint with MSHA 

alleging that he was terminated because he had engaged in protected activity. R. Mem. of Points 

& Authorities, Ex. C., at 1. In his letter to MSHA, Keim essentially claims that he was fired for 

his October 5 hotline complaint and that the allegations of insubordination were pretextual. R. 

Mem. of Points & Authorities, Ex. D., at 1. Keim’s letter to MSHA explained: 

This is my safety concern: Dave [Alaniz] has created such a hostile 

work environment in the last four years. Clint [Cooper], which is 

our manager and Tim, who is our supervisor, also Doug Nutting, 

head of HR has known about what is going on and to the best of 

my knowledge no action has been taken. Therefore I felt 

compelled to call the hot line. 

The few things that have taken place: start with the mental anguish 

I have witnessed on D crew. It is just unbelievable. It becomes a 

Safety Issue when these young men can not keep their minds on 

the job, because of the constant worry of loosing (sic) their jobs. It 

has gotten so bad that they can’t even text or talk about Mexican 

food at break time, because it offends Dave and he will take them 

to HR. There is documentation of this! With the job of working in 

the Rebuild shop you have to be so alert and focused on the task at 

hand because dealing with the massive size of shovel dippers, 

dragline buckets, and haul truck beds that are unforgiving if 

handled improperly. 

The next concern is on several occasions Dave has come to work 

with holes in improper areas in his clothing which expose his 

genitals. Witness to Dave’s actions are all of D crew and others 

from other crews. Dave looks for anything to take anyone to HR. 

Also Dave has told other co workers and I quote “They f------ work 

here because I f------ let them! Also I will f------ fire any one I 

want.” Meaning everyone who works at CPE. 

With all of this said Dave is still employed with CPE. 

 R. Mem. of Points & Authorities, Ex. D., at 1. 

 In his letter to MSHA, Keim also briefly discussed two other “safety concerns” that 

occurred in 2011. Id. at 2. Keim does not allege that he reported these events to MSHA or 

management. Rather, Keim appears to intend to use these allegations of unsafe practices to show 

that Cordero has attempted to cover up safety hazards and does not discipline miners responsible 

for creating such hazards. Id. 

36 FMSHRC Page 1469
 IV. Principles of Law

A. Summary Decision

 Under Commission Rule 67, “a motion for summary decision shall be granted only if the 

entire record . . . shows: (1) [t]hat there is no genuine issue as to any material facts; and (2) [t]hat 

the moving party is entitled to summary decision as a matter of law.” 29 C.F.R. § 2700.67(b); 

see also Missouri Gravel Co., 3 FMSHRC 2470, 2471 (Nov. 1981) (“[A] party must move for 

summary decision and it may be entered only when there is no genuine issue as to any material 

fact and when the party in whose favor it is entered is entitled to it as a matter of law.”); see also 

Poller v. Columbia Broad. Sys., Inc., 368 U.S. 464, 467 (1962) (holding that summary judgment 

should be entered only when the pleadings, depositions, affidavits, and admissions show no 

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

matter of law).9

 Summary judgment is an extraordinary procedure that must be entered with care because 

erroneous invocation denies a litigant the right to be heard. Thus, when considering a motion for 

summary decision, the judge must draw all “justifiable inferences” from the evidence in favor of 

the non-moving party. FED. R. CIV. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). 

The judge should only grant a summary decision “upon proper showings of the lack of a 

genuine, triable issue of material fact.” Energy W. Mining Co., 16 FMSHRC 1414, 1419 (July 

1994) (quoting Celotex Corp., 477 U.S. at 322). 

 In reviewing the record on summary judgment, I evaluate the evidence in the light most 

favorable to the Complainant. See Hanson Aggregates New York, Inc., 29 FMSHRC 4, 9 (Jan. 

2007) (quoting Poller, 368 U.S. at 473). Any inferences drawn from the underlying facts 

contained in the materials supporting the motion have been viewed in the light most favorable to 

the Complainant. See Hanson Aggregates, 29 FMSHRC at 9 (quoting United States v. Diebold, 

Inc., 369 U.S. 654, 655 (1962)). 

 9

 Summary judgment is proper only if there is no reasonably contestable issues of fact 

that are potentially outcome determinative. See, e.g., Wallace v. SMC Pneumatics, Inc., 103 F.3d 

1394, 1396 (7th Cir. 1997). This standard mirrors the standard for a directed verdict under 

Federal Rule of Civil Procedure 50(a). Under that standard, the trial judge must direct a verdict 

if, under the governing law, there can be but one reasonable conclusion as to the verdict. If 

reasonable minds could differ as to the import of the evidence, however, a verdict should not be 

directed. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-251 (1986) (citing Brady v. S. 

Ry. Co., 320 U.S. 476, 479-480 (1943); Wilkerson v. McCarthy, 336 U.S. 53, 62 (1949)). 

36 FMSHRC Page 1470
B. Commission Discrimination Precedent 

Section 105(c) of the Mine Act prohibits discrimination against miners for exercising any 

protected right under the Mine Act.10 The purpose of the protection is to encourage miners “to 

play an active part in the enforcement of the [Mine] Act” by recognizing that, “if miners are to 

be encouraged to be active in matters of safety and health, they must be protected against any 

possible discrimination [that] they might suffer as a result of their participation.” S. Rep. No. 95-

181 at 35 (1977), reprinted in Senate Subcomm. on Labor, Comm. on Human Resources, 95th 

Cong., Legislative History of the Federal Mine Safety and Health Act of 1977 at 623 (1978) 

(quoted in Sec’y of Labor on behalf of Anderson v. Stafford Constr., 732 F.2d 954, 960 (D.C. 

Cir. 1984)). 

In order to establish a prima facie case of discrimination under section 105(c)(1) of the 

Mine Act, a miner alleging discrimination must show: 1) that he engaged in protected activity, 

and 2) that the adverse action complained of was motivated in part by that protected activity. 

Sec’y of Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 (Oct. 1980), 

rev'd on other grounds, 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); Driessen v. Nevada Goldfields, 

Inc., 20 FMSHRC 324, 328 (Apr. 1998). Such a burden 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.” Jayson Turner v. Nat’l Cement Co. of Cal., 33 FMSHRC 1059, 

1065 (May 2011). To establish a prima facie case, a complainant need only provide evidence 

from which the trier of fact could infer employer retaliation for protected activity. Id. 

In determining whether a mine operator’s adverse action was motivated by protected 

activity, a judge must bear in mind that “direct evidence of motivation is rarely encountered; 

more typically, the only available evidence is indirect.” Sec’y of Labor on behalf of Chacon v. 

Phelps Dodge Corp., 3 FMSHRC 2508, 2510 (Nov. 1981), rev'd on other grounds sub nom. 

Donovan v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983). Factors to be considered in 

assessing whether a prima facie case exists include: 1) the operator’s knowledge of the protected 

activity; 2) hostility or “animus” towards the protected activity; 3) coincidence in time between 

10 Section 105(c)(1) of the Act provides that, “[n]o 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 such 

miner . . . has filed or made a complaint under or related to this Act, including a complaint 

notifying the operator or the operator’s agent, or the representative of the miners at the coal or 

other mine of an alleged danger or safety or health violation in a coal or other mine, or because 

such miner . . . has instituted or caused to be instituted any proceeding under or related to this 

Act or has testified or is about to testify in any such proceeding, or because of the exercise by 

such miner . . . on behalf of himself or others of any statutory right afforded by this Act.” 

36 FMSHRC Page 1471
the protected activity and the adverse action; and 4) disparate treatment of the complainant. 

Chacon, 3 FMSHRC at 2510. 

 A mine operator may rebut the prima facie case by showing either that no protected 

activity occurred or that the adverse action was not motivated in any part by the protected 

activity. Pasula, 2 FMSHRC at 2799-800. If the mine operator cannot rebut the prima facie 

case in this manner, it nevertheless may defend affirmatively by proving that it was also 

motivated by the miner's unprotected activity and would have taken the adverse action for the 

unprotected activity alone. Id. at 2800; Robinette, 3 FMSHRC at 817-18; see also E. Assoc. 

Coal Corp. v. FMSHRC, 813 F.2d 639, 642 (4th Cir. 1987). The Commission has also held that 

judges may conclude that [such] justification is so weak, so implausible, or so out of line with 

normal practice that it was a mere pretext seized upon to cloak discriminatory motive. Chacon, 3 

FMSHRC at 2516. 

V. Analysis 

 A miner engages in protected activity when, inter alia, making a complaint “under or 

related to” the Mine Act. 30 U.S.C. § 815(c). The Mine Act provides that no miner shall be 

discriminated against when making a complaint of an “alleged danger or safety or health 

violation . . . .” Id. Keim alleges that his termination was motivated by a complaint made to an 

internal hotline that Cordero promotes as a means of voicing concerns to management.11 After 

careful examination of Keim’s hotline complaint, however, I find that the concerns that Keim 

attempted to share with management do not relate to violations of health and safety standards or 

more generally to the safety of his fellow miners. Rather, Keim’s concerns were that of a 

personality dispute arising from an ongoing conflict between members of the Keim family and 

Dave Alaniz. Even viewing the facts in the light most favorable to Keim, Keim has failed to 

show that he engaged in protected activity, a necessary element to establish a prima facie case of 

discrimination under the Act. 

 While Keim’s post-termination complaint to MSHA is couched in terms of a safety 

complaint, Keim’s underlying hotline complaint did not voice any safety or health concerns. The 

complaint report compiled by The Network did not mention that Keim believed that Alaniz 

posed a danger to the health and safety of miners. R. Mem. of Points & Authorities, Ex. E. 

Instead, the report was classified as a bullying/harassment complaint, where Alaniz had created a 

hostile work environment by zealously bringing complaints about coworkers to human resources. 

 11 Keim’s concerns about Alaniz’s exposed genitals falls beyond the scope of this 

administrative tribunal’s inquiry. Keim has not expressed a belief that the holes in Alaniz’s 

pants posed a safety risk to himself or others. Rather, Keim alleges that Alaniz’s purposely 

exposed himself thereby creating a hostile work environment. Without passing on the validly of 

Keim’s concerns, it is noteworthy that such matters, if related to a protected class, appear to fall 

within the purview of Title VII to the Civil Rights Act of 1964, not the Mine Act. 

36 FMSHRC Page 1472
Id. The only instance where safety was even mentioned was in a question posed by The Network 

operator. That is, when Keim was asked by the interview specialist whether Alaniz’s behavior 

created a potentially serious threat to life in the next 48 hours, Keim replied, “No.” Id. 

 It was not until Keim complained to MSHA that his hotline complaint morphed into a 

potential safety complaint whereby Keim expressed concern that the young men in the Rebuild 

shop were unable to “keep their minds on the jobs, because of the constant” fear of losing their 

jobs when Alaniz complained about them to management.12 Keim cannot transform a 

quintessential personality dispute into a protected activity simply by invoking the word “safety” 

in his subsequent complaint to MSHA. For this reason alone, Keim is unable to establish that he 

engaged in protected activity under the Mine Act prior to his termination. 

 Even if Keim’s hotline complaint could be construed as an attempt to characterize 

Alaniz’s behavior as a safety concern, it is apparent that his hotline complaint was not “under or 

related to” the Mine Act. For Keim’s complaint to fall within the protection of the statute, the 

subject of his complaint must concern an “alleged danger or safety or health violation” under or 

related to the Mine Act. Any claim of protected activity not grounded in an alleged violation of 

a health or safety standard must result in some hazardous condition or practice that the operator 

is responsible to correct. See Bryant v. Clinchfield Coal Co., 4 FMSHRC 1380, 1421 (1982) 

(ALJ) (citing Kaestner v. Colorado Westmoreland, Inc., 3 FMSHRC 1994 (1981)(ALJ)). 

 Keim’s hotline complaint did not allege that Alaniz was violating a mandatory safety or 

health standard nor did it allege a hazardous condition or practice that Cordero was responsible 

for correcting. In his hotline complaint, Keim requested that management terminate Alaniz 

because of Alaniz’s zealous reporting of alleged obscene, racist, anti-gay, and threatening 

comments and actions to management, Wyoming mine safety inspectors, and MSHA. There is, 

however, nothing inherently unsafe about Alaniz reporting such issues to management, 

Wyoming mine safety inspectors, or MSHA. In fact, such reporting is clearly endorsed by the 

Mine Act or other legislative schemes established to encourage and protect employees who 

bring workplace complaints to management or state or federal officials. See, e.g., Civil Rights 

Act of 1964 § 704(a), 42 U.S.C. § 2000e-3(a); National Labor Relations Act §§ 7, 8, 29 U.S.C. 

§§ 157, 158(a)(1). 

 In these circumstances, extending the protections of the Mine Act to Keim would 

frustrate both the Mine Act and Title VII since Keim essentially seeks the termination of Alaniz, 

an activity unprotected under the Mine Act, because Alaniz engaged in arguably protected 

activity under Title VII. In the same breath, Keim seeks both the protections afforded to miners 

under section 105(c), while simultaneously asking management to terminate Alaniz for 

exercising Alaniz’s rights to bring workplace complaints to the attention of management and 

 12 As noted, Keim’s MSHA complaint also alluded to unrelated safety concerns that arose 

back in 2011, but Keim did not report these concerns to management or MSHA. 

36 FMSHRC Page 1473
inspectors. While Congress directed the courts and the Commission to construe “protected 

activity” broadly, the term should not be interpreted to thwart the Act’s objectives or those under 

other federal laws. Cf. Collins v. FMSHRC, 42 F.3d 1388, 1994 WL 683938, at *5 (6th Cir. 

1994) (unpublished per curiam table decision) (finding that a miner did not engage in protected 

activity when he documented safety hazards “for the sole purpose of protecting his own job 

should he ever be confronted with his own violations”). The Commission does not sit as a super 

grievance board to judge the industrial merits, fairness, reasonableness, or wisdom of an 

operator’s employment policies, except when those policies conflict with rights granted under 

section 105(c) of the Mine Act. See, e.g., Delisio v. Mathies Coal Co., 12 FMSHRC 2535, 2544 

(Dec. 1990) (citing Sec’y of Labor on behalf of Price & Vacha v. Jim Walter Res., Inc., 12 

FMSHRC 1521, 1532 (Aug. 1990)); Mullins v. Beth-Elkhorn Coal Corp., 9 FMSHRC 891, 899 

(May 1987) (citing Local Union No. 781, Dist. 17, UMWA v. E. Assoc. Coal Corp., 3 FMSHRC 

1175, 1179 (May 1981)). 

 In sum, Keim did not engage in protected activity under the Mine Act. 

V. Order

 Complainant, Kip Allen Keim, has failed to establish any genuine issue of material fact 

that he engaged in protected activity under the Mine Act. Accordingly, Respondent’s Motion for 

Summary Decision is GRANTED. This case is DISMISSED with prejudice. 

 /s/ Thomas P. McCarthy 

 Thomas P. McCarthy 

 Administrative Law Judge 

Distribution: 

 

Kristin R.B. White, Esq., Jackson Kelly, PLLC, 1099 18th Street, Ste. 2150, Denver, CO 80202 

Kip A. Keim, P.O. Box 3172, Gillette, WY 82717 

/tjr 

 

36 FMSHRC Page 1474
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 

May 29, 2014 

 

DECISION AND ORDER

Before: Judge Gill 

 This case is before me upon a petition for assessment of a civil penalty under section 

105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). Pursuant to 

Section 2700.67 of the Federal Mine Safety and Health Review Commission’s Procedural Rules, 

30 C.F.R. § 2700.67, Respondent, James River Coal Service Co. (“James River”), moved for 

summary decision on the grounds that there is no genuine issue of material fact and Respondent 

is entitled to summary decision as a matter of law. Having considered Respondent’s Motion for 

Summary Decision, Petitioner’s Response, Respondent’s Reply, and the deposition transcripts, I 

hereby GRANT Respondent’s Motion for Summary Decision. 

FACTS AND ISSUES

On March 30, 2010, Mine Safety and Health Administration (“MSHA”) Inspectors James 

Daniels and Robert Ashworth traveled to James River’s Bear Branch Surface Mine to continue 

an ongoing quarterly inspection. Tr. 10 (Daniels).1

 The operations at the mine were almost 

completed and the company was finishing up its reclamation work. Tr. 5-6 (Ashworth); Tr. 6 

(Slone). The only electrical equipment present at the mine was a light plant with a ground rod 

located in the parking lot and a portable welder located on the back of a truck. Tr. 25-26, 32 

(Daniels); Tr. 14-15 (Ashworth). 

Daniels and Ashworth reviewed the record book for the monthly examinations of 

electrical equipment and determined that an examination had been entered for March 2010 and 

for April 2010. Tr. 12 (Daniels). Upon noticing the April entry, Daniels and Ashworth 

 1

 Citations to the deposition transcript will be denoted by “Tr.,” followed by the page 

number(s), with the name of the deponent in parentheses.

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

 v. 

JAMES RIVER COAL SURFACE 

 COMPANY, 

 Respondent 

: 

: 

: 

: 

: 

: 

: 

: 

: 

:

 CIVIL PENALTY PROCEEDING 

Docket No. KENT 2010-1284 

A.C. No. 15-19053-222236 

Mine: Bear Branch Surface 

36 FMSHRC Page 1475
contacted Kevin Slone, Mine Foreman. The record book for the monthly electrical examinations 

is not required to be counter-signed, and Slone was not aware that an entry had been made for 

April. Tr. 15, 17 (Daniels); Tr. 7-8 (Ashworth); Tr. 9, 14 (Slone). James River telephoned the 

electrical examiner, who was not on the mine property at the time, and asked him to come to the 

mine to provide an explanation. Tr. 8 (Jackson). 

 When the examiner arrived at the mine site, he explained that he had conducted an 

examination of all of the electrical equipment at the mine on March 28, 2010. He was not able to 

explain why the examination book already contained an entry for April. Tr. 13-14 (Daniels). As 

a result, Daniels issued 104(d)(1) Citation No. 8358737 (the Citation”), alleging a violation of 30 

C.F.R. Section 77.502. The narrative of the Citation states as follows: 

The certified electrician is not conducting adequate monthly 

electrical exams at this mine site. The record book for the monthly 

examination of electrical equipment indicates that the certified 

electrician conducted a monthly electrical exam for the following 

electrical installations and equipment: office building (not in use at 

this time), welders (o.k. at inspection), light plant (o.k. at 

inspection) and ground rod (o.k. at inspection). The record 

indicates that this examination was conducted 4-2010. Section 

110(f) of the “Federal Mine Safety and Health Act of 1977” states 

that “whoever knowingly makes any false statement, presentation, 

or certification in any application, record, report, plan or other 

document filed or required to be maintained pursuant of [sic] this 

act shall upon conviction be subject to a civil penalty, 

imprisonment or both.” The certified electrician recorded an 

electrical examination for the month of April, 2010 in the record 

book as per today, 3-30-2010. 

Section 77.502 of the MSHA regulations requires that electrical equipment be frequently 

examined. 30 C.F.R. § 77.502. Section 77.502-2 defines “frequently” for purposes of 

Section 77.502 as “at least monthly.” 30 C.F.R. § 77.502-2; Tr. 12 (Daniels) (“It’s a monthly 

exam, so he just has to do it once a month.”). Respondent contends that, because an electrical 

examination was performed in March and because the April examination was not yet due, no 

violation of Section 77.502 occurred. 

DISCUSSION AND CONCLUSIONS OF LAW

Daniels and Ashworth confirmed that Section 77.502 requires monthly examinations of 

the electrical equipment, meaning that an examination must be conducted once per calendar 

month. Tr. 12 (Daniels); Tr. 17-18 (Ashworth). There is no dispute that the examiner performed 

an adequate examination of all of the electrical equipment for the month of March. Tr. 26 

(Ashworth). The inspectors had also conducted an examination of all of the electrical equipment 

within a couple of days prior to March 30 and there were no violations or hazards on any of the 

electrical equipment. Tr. 31-32 (Daniels); Tr. 13-14 (Ashworth). 

36 FMSHRC Page 1476
Ashworth testified as follows: 

Q. So for the month of May it wouldn’t be a violation until you had passed the 

last day of May? 

A. A monthly exam requirement he can do it on the first day of one month, and 

the very last day of the next month and he’s not violated 30 CFR. 

Q. Okay. So for May it wouldn’t be a violation until June 1st? 

A. Right. 

Q. So for April it wouldn’t be a violation until May 1st? 

A. Right. 

Tr. 16-17 (Ashworth). Likewise, Daniels testified that Respondent did not violate Section 

77.502 because a March examination was conducted and the Citation was issued before the 

month of April had even begun. Tr. 23-24 (Daniels). 

The Citation was premised upon the allegation that an April examination had not been 

conducted, even though the examination book reflected an entry for April. I conclude that, 

because an examination had been conducted in March, and because Respondent still had the 

entire month of April to perform an electrical examination, Respondent did not violate Section 

77.502. See, e.g., Secretary v. Consolidation Coal Co., 4 FMSHRC 1610, 1613 (Aug. 1982) 

(ALJ) (holding that the standard requiring monthly examinations is not violated where, at the 

time the citation was issued, four days were left in the calendar month and the exam could be 

performed during that timeframe). 

ORDER

Citation No. 8358737 is VACATED and this case is DISMISSED with prejudice. 

 /s/ L. Zane Gill 

 L. Zane Gill 

 Administrative Law Judge 

Distribution: 

 

Willow Fort, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street, Suite 

230, Nashville, TN 37219 

Melanie J. Kilpatrick, Esq., RAJKOVICH, WILLIAMS, KILPATRICK & TRUE, PLLC, 3151 Beaumont 

Centre Circle, Suite 375, Lexington, KY 40513 

36 FMSHRC Page 1477

ADMINISTRATIVE LAW JUDGE ORDERS
36 FMSHRC Page 1478
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9933 / FAX: 202-434-9949 

May 1, 2014 

ORDER DENYING STAY and FURTHER ORDER REGARDING DAMAGES 

Before: Judge Moran 

In this section 105(c)(3) discrimination proceeding under the Federal Mine Safety and 

Health Act of 1977, 30 U.S.C. § 801 et seq., (2012) (“Mine Act,” or “Act”) the Court issued its 

Decision on Liability on March 31, 2014. That decision directed the parties “to confer in order 

to determine if there can be agreement as to the terms of relief for Mr. Fred Estrada. Section 

105(c)(3) of the Act provides, in pertinent part: [‘]Whenever an order is issued sustaining the 

complainant's charges under this subsection, 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 ... for, or in connection with, the institution and prosecution of such 

proceedings shall be assessed against the person committing such violation.’ Some issues 

related to the relief were raised by Complainant’s Counsel in its post-hearing brief.1

 

1

 The Decision on Liability added in a footnote that “Complainant’s post-hearing brief addresses 

the subjects typically included for the relief aspects of established discrimination claims. In this regard it 

lists the following: ‘1. Expunge from Mr. Estrada's personnel file any negative references relating to this 

matter. 2. Reimburse Mr. Estrada for all reasonable and related economic losses or expenses incurred in 

the institution and litigation of this case. This amount shall include damages in an amount equal to full 

backpay, all employment benefits, attorneys' fees and costs, all medical and hospital expenses and any 

and all other damages suffered and incurred by Complainant as a result of his discriminatory discharge. 

Furthermore, interest shall be added to backpay and other expenses, from the date of discharge until the 

date of payment, at the adjusted prime rate announced semi-annually by the Internal Revenue Service. 

3. Post this decision at all of its mining properties in conspicuous, unobstructed, places where notices to

employees are customarily posted, for a period of 60 days. 4. Restore Mr. Estrada to his former position 

as a bird hazer or to a similar position, at the same rate of pay, same shift assignment, and with the same 

or equivalent duties.’ It then addresses the procedural aspects related to determining if an agreement can 

be reached on these issues: The Parties are ORDERED TO CONFER within 21 days of the date of this 

decision for the purpose of arriving at an agreement on the specific actions and monetary amounts 

(...continued) 

 FRED ESTRADA, 

 Complainant 

v. 

RUNYAN CONSTRUCTION, 

 Respondent 

: 

: 

: 

: 

: 

: 

: 

: 

:

 DISCRIMINATION PROCEEDING 

Docket No. CENT 2013-311-DM 

SC-MD 2013-06 

Mine ID 29-00159 

Mine: Tyrone Mine 

36 FMSHRC Page 1479
Typically, reinstatement to Mr. Estrada’s former position, if sought, back pay with an 

appropriate interest rate, medical expenses, if any, benefits, such as pension contributions, if any, 

and lost overtime, are among the remedial matters that may be present. In addition, the remedies 

typically also include: expungement from Fred Estrada’s personnel file of all references to the 

unlawful disciplinary action taken against him, including any such references to the events and 

circumstances associated with his wrongful termination from any other records maintained by 

the company; and a posting of this decision at all of its mining properties where Runyan 

operates, placed in conspicuous, unobstructed places where notices to employees are customarily 

posted, for a period of 60 days, together with a posting by Runyan at such properties that it will 

not violate the Mine Act.” Decision on Liability at 25-26. 

Unnecessary delay has followed. Respondent filed a Motion to Stay on April 17, 2014. 

The Court responded, via email, on April 18, 2014, advising that “[i]t is probably true that parties 

are free to file petitions for discretionary review as they choose, but it is my understanding that 

any petition for discretionary review filed by Runyan is premature, as my decision was not a 

final decision, and that such petition will be denied on that basis. Rather my decision was titled 

as the Court’s ‘Decision on Liability.’ Further, the Court noted in that decision that it ‘retains 

jurisdiction in this matter until the specific remedies to which Mr. Estrada is entitled are resolved 

and finalized. Following the issuance of the final order, this case will be referred to MSHA for 

assessment of a civil penalty. [footnote omitted] Accordingly, this decision will not become 

final, and therefore not appealable, until an order granting specific relief and awarding monetary 

damages has been entered. Counsel are directed to discuss the issues of the appropriate relief 

and to report the results of their discussions in writing to the Court within 20 calendar days of the 

date of this order.’ As the Commission noted recently in Secretary obo Shemwell v. Armstrong 

Coal Company, 2013 WL 4140416 at *1 (June 2013), ‘Ordinarily, a judge's decision finding a 

violation under the Mine Act is not final until the judge issues a penalty against the operator 

under section 105(d) of the Mine Act, 30 U.S.C. § 815(d). In his Decision in this case, quoted 

above, Judge Feldman explicitly stated that the decision does not become final until the judge 

issues a Decision on Civil Penalty and Supplemental Decision on Relief. Thus, the Commission 

lacks jurisdiction to entertain Armstrong's Petition for Discretionary Review and must reject it.’ 

Though the Commission’s decision was speaking broadly to the subject of petitions for 

discretionary review, their Shemwell decision happened to involve a discrimination matter too. 

Accordingly, [the Court’s] instructions in the email [ ] sent earlier today remain[s] intact. In that 

earlier email to the parties [the Court] stated: Runyan’s Motion to Stay is DENIED.” 

1

(...continued) 

Runyan shall undertake and pay to carry out this Order. If an agreement is reached, it shall be 

submitted with 30 days of the date of this decision. If an agreement cannot be reached, the parties are 

FURTHER ORDERED to submit their respective positions, concerning those issues on which they 

cannot agree, with supporting arguments, case citations and references to the record, within thirty (30) 

days of the date of this decision. For those areas involving monetary damages on which the Parties 

disagree, they shall submit specific proposed dollar amounts for each category of relief. If a further 

hearing is required on the remedial aspects of this case, the Parties should so state. C’s Br. at 33-34. The 

Court views this as a reasonable outline for the parties to use in their discussions.” Decision at n.39. 

36 FMSHRC Page 1480
Subsequent to the Court’s April 18, 2014 email, the Commission issued an Order, dated 

April 29, 2014, denying Runyan’s “document entitled “Petition for Discretionary Review.” 

Entitled was the correct description as the Commission noted that such filing was premature, 

agreeing with this Court’s April 18th email Order which made that observation, as noted above.2

 

The Court’s March 31st decision on liability instructed the parties to “discuss the issues of 

the appropriate relief and to report the results of their discussions in writing to the Court within 

20 calendar days of the date of this order.” On April 21, 2014, Counsel for Mr. Estrada provided 

a “Joint Update to the Court,” advising that it would advise the Court by May 2, 2014 whether a 

settlement could be achieved. 

The Court orders that, absent a complete settlement as to all aspects of damages by 

May 2, 2014, the parties are to email a joint submission to the Court by Friday, May 16, 2014, 

setting forth each category of damages. For each separately identified category of damages, the 

parties are to note whether there is an agreement and to separately list the amount agreed upon 

for each category. In instances, if any, where there is a dispute as to the dollar amount for a 

given category of damages, the parties are to identify whether the dispute concerns the subject of 

category being included as damages and/or whether the dispute is limited to the dollar amount. 

Accordingly, the parties are to identify is there are factual disputes pertaining to any given 

category of damages or whether the dispute is strictly over a legal determination, challenging the 

appropriateness of inclusion of a particular item of damages. In this regard, the Court notes that 

damages are discussed in Simpson v. Kenta Energy, Inc. 7 FMSHRC 272, 278-285 (Feb. 

1985)(ALJ) and that the decision may provide some guideposts for the parties. That decision 

addresses back pay, any interim earnings and interest, computed on a quarterly basis, attorney’s 

fees, including the appropriate hourly rate, hours reasonably expended, and various other 

expenses incurred. Other items may include: medical expenses that would have been covered by 

the Complainant’s medical insurance, if applicable; unemployment compensation payments; 

vacation pay, if applicable; Fred Estrada’s reasonable expenses associated with the November 

19, 2013 hearing; and whether reinstatement is sought. Further, the Commission has spoken to 

the computation of backpay and interest in UMWA v. Clinchfield Coal Co., 10 FMSHRC 1493 

(1988). The need for a hearing to resolve factual disputes over damages is a rare event. 

SO ORDERED.

/s/ William B. Moran 

William B. Moran 

Administrative Law Judge 

2

 The Commission also preemptively advised the Respondent that had it instead attempted to seek 

interlocutory review, which was the correct way to seek review of the Court’s Decision on Liability, it 

would conclude that the conditions for such review would not be met. Commission Order at 2, citing 

Rule 76(a)(2), 20 C.F.R. § 2700.76. 

36 FMSHRC Page 1481
Distribution: 

Ben Furth, Esq., The Furth Law Firm, P.A., The Furth Building, 780 South Walnut # 5, Las 

Cruces, NM 88001 

Jason M. Nutzman, Esq., Dinsmore & Shohl, LLP, 900 Lee Street, Suite 600, Charleston, WV 

25301 

Nathan Gonzales, Esq., Gonzales Law, 925 N. Hudson, Silver City, NM 88061 

 

36 FMSHRC Page 1482
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 

May 7, 2014 

ORDER TO SUBMIT AUDIO TAPE AND TRANSCRIPT 

FOR IN CAMERA INSPECTION

Before: Judge Lewis 

These discrimination proceedings are before me under section 105(c) of the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. § 815(c). On April 16, 2014, Respondent filed a 

Motion to Compel Production of Audio Recording. The Motion arose after Complaint, 

Christopher Pulliam, refused to produce an audio recording in response to Respondent’s 

discovery request. On April 24, 2014, Complainant filed an Omnibus Response to Respondent’s 

Motion to Compel Production of Audio Recording and Motion for Protective Order.1

The Complainant referred to 29 C.F.R. §2700.61 (“Rule 61” or the “miner informant 

rule”), 29 C.F.R. §2700.62 (“Rule 62” or the “miner witness rule”), and 29 C.F.R. §2700.5(d) 

(“privacy considerations”) as the basis for refusing to produce the requested audio tape. 

Complainant argues that the miner’s name is on the recording, as well as his or her distinctive 

voice, and that disclosing such information would expose the miner to instant retaliation. The 

1

 In addition to arguing against production of the audio tape, Complainant’s response also argues 

against Respondent’s pending Motion for Protective Order, which was also filed on April 16, 2014. 

CHRISTOPHER PULLIAM, 

 Complainant, 

v. 

STERLING MATERIALS, 

 Respondent 

DEBORAH L. PULLIAM, 

 Complainant, 

v. 

STERLING MATERIALS, 

 Respondent 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

:

 DISCRIMINATION PROCEEDINGS 

Docket No. KENT 2013-1045 

MSHA Case No.: SE-MD 13-26 

Docket No. KENT 2014-238 

MSHA Case No.: SE-MD 13-25 

Mine ID: 15-18068 

Mine: Sterling Materials 

36 FMSHRC Page 1483
Complainant states that it intends to play the tape at the hearing, as well as call the person 

speaking on the tape as a witness. 

Complainant’s presentation of Rule 61 and Rule 62 for purposes of not producing the 

audio tape is problematic and often conflates the two privileges. The miner informant rule only 

applies to the government, and may not be asserted by a private party. In Bright Coal Co., the 

Commission stated that the “informer’s privilege is the well-established right of the government

to withhold from disclosure the identity of persons furnishing information of violations of the 

law to law enforcement officials.” 6 FMSHRC 2520, 2522 (Nov. 1984) (emphasis added); see 

also Asarco, Inc., 12 FMSHRC 2548 (Dec. 1990) (reaffirming the rule in Bright Coal Co.). The 

Commission further stated that the “purpose of the privilege is to protect the public interest by 

maintaining a free flow of information to the government concerning possible violations of the 

law and to protect persons supply such information from retaliation.” Bright Coal, 6 FMSHRC at 

2522-2523 (emphasis added). In the instant case there is no indication that the tape is a 

recording of a miner acting as an informant to the government. Therefore, the reliance on Rule 

61 is inapposite. 

In drafting the Mine Act, Congress repeatedly placed in the statute provisions that protect 

miners from discrimination. In addition to Rules 61 and 62, Section 105(c) protects miners in 

making health and safety complaints, as well as engaging in other protected activities. 30 U.S.C. 

§815(c). Additionally, §103(g)(1) protects the names of miners and representatives of miners

when making complaints to the Secretary concerning violations of the Act or imminent dangers 

in the mine. 30 U.S.C. §813(g)(1). Though the miner informant rule may only apply to the 

Secretary, Congress made clear that as a general policy matter, miners who report violations of 

the Act should be protected.2

 Complainant makes it clear that it “fully intends to play this tape at the trial, and call this 

person as a witness.” Complainant’s Response, at 9. Therefore, it is more properly Rule 62 that 

is at issue. Rule 62 states, “A Judge shall not, until 2 days before a hearing, disclose or order a 

person to disclose to an operator or his agent the name of a miner who is expected by the Judge 

to testify or whom a party expects to summon or call as a witness.” Rule 62 applies to all miners 

who are called as witnesses, and are not limited to miners who are informants. Secretary of 

Labor obo Richard M. Bundy v. Kennecott Utah Copper Corp., 2002 WL 1969243, *6. 

Complainant uses Rule 62 as a blanket exception from releasing any information on the audio 

tape. However, “it is the name of the informant, not the contents of his statements, that is 

protected, unless disclosure of the contents would tend to reveal the identity of an informant.” 

MSHA v. Don Dewild & Keith Buescher, Employed by Mobile Premix Sand & Gravel, 19 

FMSHRC 220 (Jan. 1997) (ALJ) (emphasis added). 

Complainant’s reliance on Rules 61 and 62 in turning over any of the contents of the 

audio tape is misplaced. Though the miner witness rule certainly applies in this instance, it only 

protects the name and identifying information of the miner. Based on the submissions of the 

2

 It should be noted that participating in a Commission proceeding is a “protected activity” under 

the Mine Act, and if any miner suffers discrimination as a result, he or she would have recourse under 

Section 105(c). 

36 FMSHRC Page 1484
parties, this Court is not able to determine what part of the contents of the tape should be turned 

over to the Respondent at this stage. As such, an in camera review of the materials is necessary. 

Therefore, it is ORDERED that Complainant shall, within 7 days from this Order, 

transcribe the audio tape and submit both the tape and transcription for in camera review. The 

transcription of the audio tape shall be on done on pages with line numbers, and Complainant 

may submit to this Court a recommendation of information to be redacted should the judge rule 

in favor of the Motion to Compel, with reference to specific line numbers. Each 

recommendation should be accompanied by a specific reason, which the judge will consider in 

making a final decision. 

/s/ John Kent Lewis 

John Kent Lewis 

Administrative Law Judge 

Distribution: 

Kenneth R. Reed, PSC, 241 Elm Street, Ludlow, Kentucky 41016 

Kevin L. Murphy, Esq., & Jeffrey Landen, Esq., Graydon Head, 2400 Chamber Center Dr., Suite 

300, Ft. Mitchell, KY 41017 

Richard G. Griffith, Esq., Josheph A. Bilby, Esq., & Elizabeth S. Muyskens, Esq., 

Stoll Keenon Ogden PLLC, 300 West Vine Street, Suite 2100, Lexington, KY 40507 

/mzm 

36 FMSHRC Page 1485
1

 Respondent mistakenly cited Citation No. 8378383 instead of the correct Citation

Number 8378384. 

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

May 13, 2014

SECRETARY OF LABOR

 MINE SAFETY AND HEALTH

 ADMINISTRATION (MSHA),

 Petitioner

v.

ALDEN RESOURCES, LLC,

 Respondent

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

CIVIL PENALTY PROCEEDINGS

Docket No. KENT 2013-959

A.C. No. 15-17691-325489-01

Docket No. KENT 2013-960

A.C. No. 15-17691-325489-02

Docket No. KENT 2013-563

A.C. No. 15-17691-313350

Docket No. KENT 2013-118

A.C. No. 15-17691-331536

Mine: No. 3

ORDER DENYING RESPONDENT’S MOTION FOR SUMMARY DECISION

Before: Judge McCarthy

These cases are before me upon four Petitions for Assessment of Civil Penalties under

section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). This

matter is set for hearing in London, Kentucky on June 24, 2014.

On April 28, 2014, Respondent filed a Motion for Summary Decision concerning

Citation No. 8378384 in Docket No. KENT 2013-960.1

 Respondent alleges that on undisputed

facts, the defective lifeline violation of 30 C.F.R. § 75.380(d)(7)(vii) cited in Citation No.

8378384 does not form the basis for an “inadequate pre-shift examinations” violation under 30

C.F.R. § 75.360(b)(1) because it does not involve the presence of methane, lack of oxygen

and/or improper airflow, and does not involve hazardous conditions and/or violations relating to

the nine mandatory health or safety standards in paragraph 75.360(b)(11). R. Mot., 2. 

On May 5, 2014, the Secretary filed a Response in Opposition. The Secretary alleges

that the mine’s lifeline was missing several components for nine days, that the defective and

deficient lifeline was a hazardous condition that exposed miners to fatal injuries, and that mine

examiners did not recognize the hazardous conditions and were not performing adequate

36 FMSHRC Page 1486
examinations as required by 30 C.F.R. § 75.360(b)(1). The Secretary argues that 30 C.F.R. §

75.360(b)(1) requires Respondent to look for hazardous conditions and not simply for the

presence of methane, lack of oxygen and/or improper airflow (and/or the violations of the nine

standards referenced in § 75.360(b)(11)), as Respondent contends. Sec’y Opp., 2-3. 

Commission Rule 67(b), 29 C.F.R. § 2700.67(b), provides that: “[a] motion for summary

decision shall be granted only if the entire record, including the pleadings, depositions, answers

to interrogatories, and affidavits, shows: (1) That there is no genuine issue as to any material

fact; and (2) That the moving party is entitled to summary decision as a matter of law.” The

Commission has long held that:

Summary decision is an extraordinary procedure. If used improperly

it denies litigants their right to be heard. Under our rules, a party

must move for summary decision and it may be entered only when

there is no genuine issue as to any material fact and when the party

in whose favor it is entered is entitled to it as a matter of law.

Missouri Gravel Co., 3 FMSHRC 2470, 2471 (Nov. 1981) (footnote omitted). It “is authorized

only ‘upon proper showings of the lack of a genuine, triable issue of material fact.’” Energy W.

Mining Co., 16 FMSHRC 1414, 1419 (July 1994) (quoting Celotex Corp. v. Catrett, 477 U.S.

317, 327 (1986)). 

Genuine issues of material fact and law exist, including the legal issue of whether the

Secretary’s interpretation of 30 C.F.R. § 75.360(b)(1) is entitled to Auer deference. See Auer v.

Robbins, 519 U.S. 452, 461 (1997). Accordingly, Respondent’s Motion for Summary Decision

is DENIED. 

/s/ Thomas P. McCarthy 

Thomas P. McCarthy

Administrative Law Judge

36 FMSHRC Page 1487
Distribution:

Ryan Pardue, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite

800, Denver, CO 80202-5710

Billy R. Shelton, Esq., Jones, Walters, Turner & Shelton, PLLC, 151 N. Eagle Creek Drive,

Suite 310, Lexington, KY 40509

Peggy Langley, CLR, U.S. Dept. Of Labor, MSHA, 3837 S. U.S. Hwy 25E, Barbourville, KY

40906

Adron Wilson, CLR, U.S. Dept. Of Labor, MSHA, 3837 S. U.S. Hwy 25E, Barbourville, KY

40906

Gary W. Oliver, CLR, U.S. Dept. Of Labor, MSHA, 3837 S. U.S. Hwy 25E, Barbourville, KY

40906

Sam Brashears, Alden Resources, LLC, 332 W. Cumberland Gap Parkway, Ste. 100, Corbin, KY 

40701

36 FMSHRC Page 1488
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9933 / FAX: 202-434-9949 

 May 13, 2014 

 

ORDER DENYING MOTION FOR APPROVAL OF SETTLEMENT UPON 

SECRETARY’S MOTION FOR RECONSIDERATION 

Before: Judge William B. Moran 

Introduction 

Quis custodiet ipsos custodes? Who will guard the guardians? 

The Secretary has again filed its motion for settlement of this matter. The motion does 

not alter the terms of the original settlement motion, nor does it provide further explanation to 

justify its terms. Instead, the Secretary contends that it need not amend its motion and that the 

Court and the Commission must accept it as originally presented. The Secretary believes that the 

Commission’s role in reviewing proposed penalties, which have been contested before it, is a 

perfunctory and hollow process. The words of section 110(k) of the Mine Act, 30 U.S.C. § 

820(k), the legislative history for that provision, and the decisions of the Federal Mine Safety 

and Health Review Commission each refute that claim. 

Additionally, of grave concern, and by itself a compelling demonstration of the need for 

the Commission’s continued substantive oversight of settlements, per section 110(k), the 

Secretary’s Motion contains not a single word about the safety and health of miners. The 

absence of any mention in its motion as to the impact which removal of Commission oversight 

would have on the protection of miners, highlights that the Commission’s substantive role in the 

review of settlements, as specifically directed by Congress, must remain intact. To protect 

miners, as Congress recognized, it is the Commission which must guard the guardians. Thus, for 

the reasons which follow, upon the Court’s reconsideration of this seriously misguided motion, 

the settlement is once again DENIED. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

 v. 

THE AMERICAN COAL COMPANY, 

 Respondent 

: 

: 

: 

: 

: 

: 

: 

: 

:

 CIVIL PENALTY PROCEEDING 

Docket No. LAKE 2011-13 

A.C. No. 11-02752-232235 

Mine: New Era Mine 

36 FMSHRC Page 1489
The Secretary’s Motion for Reconsideration and Supporting Brief1

The Secretary’s Motion announces that it has “reviewed all of the citations, the 

inspector’s notes, and the exchange of positions between the parties during the original 

negotiations . . . [and that it] fully endorses the settlement as originally proposed . . . [and that it 

further] moves for the Court to reconsider its legal conclusions that Section 110(k) compels the 

Court to reject the proposed settlement for lack of factual support, and [the Court’s conclusion] 

that Section 110(k) does not permit the Secretary to negotiate settlement agreements structured 

as a uniform percentage reduction of civil penalties.” Motion at 1 (emphasis added). 

 At least at the start of its motion, the Secretary does acknowledge the words of the Mine 

Act which pertain to this issue, noting that section 110(k) of the Mine Act provides, as applicable 

here:2

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. 

30 U.S.C. § 820(k). 

 The Secretary goes on to relate that the mine operator and the Secretary, acting through a 

conference and litigation representative (“CLR”) reached an agreement which called for an 

across-the-board cut in each of the 32 citations involved with this docket and for which they 

admit each of the 32 citations were cut by 30 percent. Once the Court rejected the settlement 

motion, the Secretary transferred the docket to an attorney within the Solicitor’s Office. That 

attorney, in turn, filed the subject motion for reconsideration. 

In maintaining that the original settlement motion should be upheld, the attorney stated 

that she “exercised her professional judgment, . . . 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.” Motion at 4. In the larger context, 

however, the Secretary is contending that section 110(k) does not impede its authority to 

“negotiate settlement agreements structured as a uniform percentage reduction of civil penalties.” 

Id. at 4. 

To deal with the language of section 110(k), which literally provides that there can be no 

compromise, mitigation or settlement except with the approval of the Commission, the Secretary 

simply dismisses those words, contending that they don’t count because the section “does not 

 1

 It should not come as a surprise that the Respondent does not oppose the Secretary’s Motion. 

After all, the original motion was a joint enterprise. 

2

 The balance of the provision, which is not pertinent here, goes on to state that “[n]o penalty 

assessment which has become a final order of the Commission shall be compromised, mitigated, or 

settled except with the approval of the Court.” 

36 FMSHRC Page 1490
provide any meaningful standards for judicial review.” The Secretary then obfuscates the 

separate roles that it and the Commission have in settlements, by asserting that “Section 110(k) 

[ ] cannot be read to prevent the Secretary from negotiating, or the Commission from approving, 

settlements [structured as a uniform percentage reduction of civil penalties].”3

 Motion at 4. 

 In its naked attempt to make the command of section 110(k) meaningless, the Secretary 

asserts that any attempt by the Commission to go beyond its “role,” either through its precedent 

or procedural rules, is an ultra vires act. Under the Secretary’s reading of the section, the 

Commission’s “approval” role is “simply a procedural mechanism to ensure that [ ] settlement 

agreements negotiated by the Secretary are clear, transparent to the public, and in accordance 

with any otherwise applicable law.”4

 

 Elaborating upon its contentions, the Secretary speaks first to its argument that section 

110(k) provides no meaningful standards to limit the Secretary’s prosecutorial discretion to settle 

Mine Act enforcement actions. In support of this, the Secretary begins in an odd manner, by 

noting that for other statutory schemes, an agency’s enforcement authority is within its absolute 

discretion and that generally that discretion is unreviewable. Motion at 6. Of course, this issue 

is about the Mine Act’s statutory scheme, not some other schemes. Carrying this rather unusual 

argument further, the Secretary adds that, why were it not for section 110(k), it would not even 

have to be making this argument, as the general rule that the enforcement agency’s discretion is 

unreviewable would apply. This is pure gobbledygook but it does not deter the Secretary from 

proceeding down that path with its irrelevant observations that other agencies, such as EPA and 

OSHA, can settle their enforcement actions without review. 

 Returning to the Mine Act, which is the subject of this litigation, the Secretary nods that 

its foregoing arguments don’t apply “if Congress has otherwise provided.” This brings the 

Secretary back to the nettlesome language of section 110(k). Effectively conceding that the 

general rule is not applicable because of that section, the Secretary then maintains that the 

provision is without effect unless the statute indicates an intent5

 to circumscribe the general rule 

of unfettered agency discretion and the statute also provides “meaningful standards for defining 

the limits of that discretion.” Motion at 8. 

 Accordingly, it is the Secretary’s position that if that statutory provision provides no 

“meaningful standards” for judicial review, then the provision becomes a nullity and the 

Commission’s role is reduced to a meaningless standard of review, requiring it to approve any 

negotiated agreement as long as its terms are stated (i.e. “transparent”) and providing that the 

 3

 The bracketed language replaces the “settlements like the one proposed here” wording 

employed by the Secretary in its motion because it more precisely describes the type of settlement the 

Secretary believes is unreviewable, notwithstanding Congress’ words in section 110(k). 

4

 Ironically, the Secretary’s statement that settlements must be “in accordance with any otherwise 

applicable law” apparently excludes section 110(k) as an applicable provision. 

5

 Thereafter, the Secretary avoids further discussion of the “intent” argument, focusing instead on 

its “meaningful standards” contention. 

36 FMSHRC Page 1491
agreement is “in accordance with any otherwise applicable law,” whatever that means.6

 Only 

where the provision “provides ‘clearly defined factors’ to guide an enforcement agency’s 

decision [may] the presumption of unreviewability [ ] be overcome,” says the Secretary. Motion 

at 9. 

Noting that the second sentence of section 110(k) employs the same language when an 

Article III court is reviewing a final order of the Commission—that no such Commission penalty 

assessment shall be compromised, mitigated, or settled except with the approval of the Court—

the Secretary submits that the Commission should act “as a generalist court,” and not examine 

the Secretary’s prosecutorial discretion. Id. at 10. Beyond that section, the Secretary asserts that 

the Act’s overall structure supports its contention that “the decision to settle” is within its 

prosecutorial discretion.7

 

The Secretary, continuing with its theme that, if there is an absence of meaningful 

standards, then the Commission’s section 110(k) review authority is titular and its review under 

that provision ministerial, then asserts that section 110(i) of the Mine Act, the provision setting 

forth the Commission’s authority to assess all civil penalties under the Act, cannot be a source of 

such meaningful standards. That section, it must be noted, states that, in assessing civil 

monetary penalties, the Commission is to 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 what amounts to a representation that, in the Court’s view, crosses an ethical line for 

the limits of proper advocacy, the Secretary, distinguishing the Commission’s statutory role in 

assessing civil penalties from its statutory role in approval of proposed penalties, asserts that 

section 110(k) “governs the Commission’s ‘approval’ of ‘proposed penalties . . . compromised, 

mitigated, or settled’ by the Secretary.” Motion at 11. (ellipsis and italics in the Secretary’s 

Motion). This gross rewording and reordering of section 110(k) so distorts Congress’ command 

that it must be repeated here that the section actually provides: “No proposed penalty which has 

6

 The Secretary displays the emptiness of the hollow “in accordance with any otherwise 

applicable law” phrase, as it offers no examples of its effect. 

7

 The Court would note that the Secretary’s decision to settle is not mutually exclusive from the 

Commission’s authority to review settlements to determine if their approval is consonant with the Mine 

Act’s overarching goals. 

36 FMSHRC Page 1492
been contested before the Commission under section 815(a) of this title shall be compromised, 

mitigated, or settled except with the approval of the Commission.”8

 

The Secretary’s Brief continues to knock down straw men, asserting that the “role of an 

adjudicator is typically narrower when reviewing a proposed compromise because the 

adjudicator cannot assume from the existence of the compromise that the enforcement agency’s 

underlying allegations are correct, or that the regulated entity did in fact fail to meet its statutory 

obligations.” Motion at 12. This contention, as with many of the Secretary’s arguments, 

sidesteps the language of section 110(k). Further, the Commission makes no assumption from 

the proposed settlement. Rather, it requires that the basis to support it be supplied, not merely 

that it be asserted to be meritorious. Continuing to miss the point, the Secretary notes that 

“parties are free to admit or to deny the fact of a violation in settlement agreements.” Id. at 13 

(citing Amax Lead Co., 4 FMSHRC 975, 977 (1982) (“Amax Lead”)). 

From this, the Secretary deduces that “a Commission administrative law judge cannot 

apply Section 110(i) to contested citations to determine whether the compromise penalty is 

‘appropriate’ in light of the statutory penalty factors because the allegations . . . cannot be 

treated as if they were findings of fact and conclusions of law after trial.” But, no one is 

contending that the allegations are being so treated. Instead, the Commission, per section 110(k), 

must be advised as to the basis for the compromise so that it can fulfill its statutory obligation 

and Congress’ expressly stated concern that settlements not be based on the need to save 

litigation and collection expenses and that those factors should play no role in determining 

settlement amounts. See legislative history references, infra. Further, the Commission, in the 

cited 1982 Amax Lead decision, there noted “it is clear that section 110(k) confers upon the 

Commission the statutory authority either to approve or reject settlements in contested penalty 

 8

 In trying to divorce the applicability of the statutory criteria for assessing a civil penalty from 

proposed penalties contested before the Commission, as those criteria provide obvious and explicit factors 

for assessing civil penalties, the Secretary asserts that those criteria cannot provide a meaningful standard 

in the context of section 110(k) approvals by the Commission. Motion at 12. In the latter situation, the 

Secretary contends that the Commission’s role is limited to “simply approv[ing] or reject[ing] the 

compromise before it. . . .” Id. Despite this assertion, the Secretary acknowledges that the parties “may 

agree to disagree about the factual or legal disputes giving rise to the proceeding in the first place.” Id. 

But that is exactly the point—the parties’ settlement motion needs to relate the factual or legal disputes 

that underpin their decision to settle. Here, the Secretary acknowledges implicitly that such disputes 

don’t exist, or at least they don’t see fit to inform the Commission about them. Instead, on the basis of 

the Secretary’s unenlightening review, it contends only that “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 to trial” need to be asserted in order for its 30% across-the-board reduction to be 

justified. Of course, Congress has specifically stated that such considerations are not to be part of the 

equation where settlements are concerned. It is also noted that the requirement to provide the factual 

and/or legal basis for a settlement motion is not burdensome and that settlement motions routinely

provide this kind of information. See Appendix to this Order, infra. It is through the submission of that 

information, factual, and/or legal, that the Commission is able to appreciate the basis for the presented 

compromise or mitigation and thereby carry out Congress’ direction of its role in such matters. 

36 FMSHRC Page 1493
proceedings. As we observed in Co-op Mining Company, 2 FMSHRC 3475, 3475-3476 (1980), 

‘[S]ection 110(k) of the Mine Act places an affirmative duty upon us to oversee settlements.’” 

Amax Lead, 4 FMSHRC at 977. The focus in Amax Lead was over the inclusion of exculpatory 

language, but consistent with this Court’s earlier remarks about the Commission’s role in 

approving settlements, in affirming the judge’s rejection of the settlement the parties submitted 

to him, its review of the proposed settlement included whether it would weaken the agency’s 

enforcement capabilities and thereby “jeopardize the health and safety of miners.” Id. at 978 

(emphasis added). 

Thus, unlike the Secretary’s present motion, bereft as it is of any stated concern for the 

health and safety of miners, the Commission, now for more than 34 years, has kept its eye on the 

overriding focus of the Mine Act, our Nation’s miners, just as Congress intended. 

Apart from the discussion of the Commission’s decision in Black Beauty Coal Company, 

34 FMSHRC1856 (Aug. 2012), little more needs to be discussed about the Secretary’s Motion. 

It does contend that its analysis of section 110(k) trumps the Commission’s procedural rule 

regarding settlements, 29 C.F.R. §2700.31, again on its theory that no procedural rule can rescue 

the lack of meaningful standards for limiting its prosecutorial discretion to settle. As this is 

simply a rehash of its earlier argument, it need not be addressed a second time. Similarly, 

section “II” of its Motion is nothing more than a wind up of its earlier stated contentions.9

 

Motion at 18-19. 

9

 As part of the process of reviewing the Secretary’s Motion, the Court of course reviewed cases 

cited by the Secretary in support of its claims. A few of those are discussed, briefly, but the bottom line is 

that the Court considers those cases as inapposite or distinguishable. Heckler v. Chaney, 470 U.S. 

831(1985), for example, involved a decision not to take enforcement action. The Commission 

acknowledges that the decision to vacate a citation is not reviewable. Thus, the “presumption of 

unreviewability,” which presumption the Court does not apply in any event where the Mine Act is 

concerned, was raised in Heckler v. Chaney only in that limited context. Besides, the Court emphasized 

that its decision was “only presumptively unreviewable; the presumption may be rebutted where the 

substantive statute has provided guidelines for the agency to follow in exercising its enforcement powers. 

Thus, in establishing this presumption in the APA, Congress did not set agencies free to disregard 

legislative direction in the statutory scheme that the agency administers. Congress may limit an agency's 

exercise of enforcement power if it wishes, either by setting substantive priorities, or by otherwise 

circumscribing an agency's power to discriminate among issues or cases it will pursue. How to determine 

when Congress has done so is the question left open by Overton Park.” Id.at 832-833. 

As another example, in Secretary of Labor v. Twentymile Coal Co., 456 F 3d 151 (D.C. Cir. 

2006), the Court was addressing a very different context, namely the Secretary’s authority to cite either 

the owner-operator, the independent contractor, or both for a contractor’s violation. That decision also 

focused on the charging decision and the court there noted that “the decision to prosecute is particularly 

ill-suited to judicial review.” Id. at 157. (emphasis added). Remembering that that the decision to 

prosecute is a special category, the D.C. Cir. also noted that “there is a strong presumption that agency 

action is reviewable . . . [and that] [i]n Overton Park, the Supreme Court declared that this exception to 

the presumption of reviewability applies ‘in those rare instances where statutes are drawn in such broad 

terms that in a given case there is no law to apply. 401 U.S. at 410’ ” and further that “[i]n determining 

“whether a matter has been committed solely to agency discretion, [the court] consider[s] both the nature 

of the administrative action at issue and the language and structure of the statute that supplies the 

(...continued) 

36 FMSHRC Page 1494
 Applying its construction of section 110(k), the Secretary concludes its Motion by 

asserting that it meets its test for approval, per its definition of that test. In this last section, the 

Secretary continues to mischaracterize the 110(k) review process, asserting that “evaluating the 

wisdom or sufficiency of the compromise is not the adjudicator’s role.” Motion at 20. The 

Commission does not evaluate the wisdom of the compromise, but it does require that the basis 

for it be provided. This is routinely done and this Court has reviewed many, many, such 

submissions where the information is easily supplied. Examples of this follow in the Appendix 

to this Order. 

Further Discussion 

I. The Commission’s Decision in Black Beauty Coal Company, 34 FMSHRC 1856 

(Aug. 2012). 

Although the Secretary has attempted to overcome the Commission’s Decision in Black 

Beauty Coal, its arguments are not worthy of prolonged discussion, as that decision cogently sets 

forth the basis for the Commission’s role where proposed penalties have been contested before it. 

Reduced to its essence, the Secretary contends that the legislative history is now old, as if it had a 

shelf life expiration date on it. The motion also tells half the story about that history, focusing on 

Congress’ remarks about the process being “carried out in public” and “on the record.” Motion 

at 16. Apparently, the Secretary has the authority to pick and choose which parts of the 

legislative history are too old for it, while simultaneously pointing to old sections it likes. Or it 

may view the Congressional expressions as reflecting some sentient moments, followed by 

lapses into a fog. See Motion at 17 (asserting that Congress contradicted itself from one sentence 

to the next). 

In its decision in Secretary of Labor v. Black Beauty Coal Co.,34 FMSHRC 1856, 2012 

WL 4026640 (Aug. 2012) (“Black Beauty”), the Commission concluded that it “is clearly 

authorized by the Mine Act to review a proposed settlement of a contested penalty and to require 

parties to submit the factual support necessary for that review. Although the Commission's 

review authority may not extend to certain areas of the Secretary's enforcement authority, 

Congress emphatically authorized the Commission to review proposed settlements of contested 

penalties and to assess all penalties provided under the Act.” Id. at 1860. 

9

(...continued) 

 applicable legal standards for reviewing that action.” Id. at 156 (citing Drake v. FAA, 291 F.3d 

59, 70 (D.C. Cir 2002)). 

Other cases cited by the Secretary are simply inapplicable to the matter at hand. For example, 

Swift v. United States, 318 F. 3d 250 (D.C. Cir 2003) involved a qui tam action alleging False Claim Act 

violations. Though holding that there was no implication of judicial review of the government’s decision 

to dismiss the action, it is hardly instructive to the Mine Act or the provision in issue. Other cases, such 

as Drake v. Federal Aviation Administration, 291 F. 3d 59 (D.C. Cir), finding that the FAA’s action “was 

equivalent to a decision not to commence an enforcement action” are of that unhelpful ilk. Id. at 70. 

36 FMSHRC Page 1495
In reaching that conclusion, the Commission first took note that “the plain language of 

section 110(k) of the Mine Act explicitly authorizes the Commission to review a proffered 

settlement of a contested penalty . . . [and that section] unambiguously sets forth the 

Commission's exclusive authority to approve the compromise, mitigation or settlement of 

penalty after it has been contested.” Id. at 1860-1861. That plain language is enough to 

eviscerate the Secretary’s entire argument in its Motion.10

While the plain language ends the Secretary’s contentions, the Commission went on to 

observe that the “legislative history of section 110(k) explains that Congress intended the 

 10 In UMWA v. Maple Creek Mining, 29 FMSHRC 583, 2007 WL 2161858 (July 2007), the 

Commission spoke to the plain meaning issue, noting: “Although the parties do not refer to the terms of 

the Mine Act to support their competing positions, we must start there to determine whether Congress 

spoke directly to the question presented. 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). Moreover, ‘in ascertaining 

the plain meaning of the statute, the court must look to 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). 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. 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 Commission is clearly charged with administering the provisions of sections 

105(a) and 105(d) of the Mine Act, which address the challenge of enforcement actions of the Secretary, 

the initiation of cases before the Commission, and the Commission's administration of hearings 

concerning the validity of those enforcement actions. See Emerald Mines Co. v. FMSHRC, 863 F.2d 51, 

53, 56-59 (D.C. Cir. 1988) (where language of Mine Act was indecisive, court deferred to Commission's 

interpretation of section 104(d) regarding the issuance of withdrawal orders). As the Supreme Court 

stated in Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 214 (1994), the Commission was established as 

an independent review body to ‘develop a uniform and comprehensive interpretation’ of the Mine Act 

(citing Hearing on the Nomination of Members of the Federal Mine Safety and Health Review Comm'n 

before the Senate Comm. on Human Res., 95th Cong. 1 (1978)). Moreover, the question of how the 

procedures set forth in sections 105(a) and 105(d) are to mesh and how the Commission will conduct 

hearings involves a major policy component, which the Commission is uniquely qualified to establish. 

Section 111 is also one of the provisions of the Mine Act the Commission is ‘charged with 

administering.’ 30 U.S.C. § 821 (‘The Commission shall have the authority to order compensation due 

under this section ....’); Clinchfield Coal Co. v. FMSHRC, 895 F.2d 773, 775-80 (D.C. Cir. 1990). 

Consequently, we need not defer to another agency's interpretation of the statutory language at issue 

here.” Id. at *5-*6. Here, the Secretary concedes that the language is plain about the Commission’s role 

but that Congress’ words were meaningless and empty. 

36 FMSHRC Page 1496
settlement of a penalty to be a transparent process that is open to public scrutiny and that the 

Commission is authorized to approve contested penalties offered for settlement [and that] [t]he 

Senate Report recognized, in particular, the importance of an Administrative Law Judge's review 

of a proposed settlement of a penalty: 

In addition to the delay in assessing and collecting penalties, another factor which 

reduces the effectiveness of the civil penalty as an enforcement tool under the Coal Act is 

the compromising of the amounts of penalties actually paid. In its investigation of the 

penalty collection system under the Coal Act, the Committee learned that to a great 

extent the compromising of assessed penalties does not come under public scrutiny.... 

Even after a Petition for Civil Penalty Assessment has been filed by the Solicitor with the 

Office of Hearings and Appeals, settlement efforts between the operator and the Solicitor 

are not on the record, and a settlement need not be approved by the Administrative Law 

Judge. 

Black Beauty, 34 FMSHRC at 1861 (citing 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 Commission then explained that “Congress intended that the settlement of a penalty 

be open to scrutiny in order to better serve the purpose of civil penalties, that is, to encourage 

operators’ compliance with mandatory standards, noting that [t]he Senate report provided: ‘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.’ Id. at 1862 (citing Senate Report at 

632). 

The Commission then observed that Congress specifically addressed that section 110(k) 

was part of the Mine Act “[i]n order to ensure penalties serve as an effective enforcement tool, 

prevent abuse, and preserve the public interest, [and for that reason] Congress authorized the 

Commission to approve the settlement of civil penalties.” In this regard, the Senate Report 

explains: 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.... By imposing these requirements, the Committee intends 

to assure that the abuses involved in the unwarranted lowering of penalties as a result of off-therecord negotiations are avoided. It is intended that the Commission and the Courts will assure 

that the public interest is adequately protected before approval of any reduction in penalties. 

Id. (emphasis in Commission Decision). 

 Given the plain statutory language, not to mention the affirmatory legislative history, the 

Commission observed that “[t]o carry out this responsibility, the Judge must have information 

sufficient to establish that the penalty reduction does, in fact, protect the public interest.” Id. 

The Commission took pains to explain the Congressional design for this provision, noting 

that it “has long recognized, after ‘an operator contests the Secretary's proposed assessment of 

36 FMSHRC Page 1497
penalty, . . . Commission jurisdiction over the matter attaches.’ Sellersburg Stone Co., 5 

FMSHRC 287, 291 (Mar. 1983), aff'd, 736 F.2d 1147 (7th Cir. 1984) (emphasis in original). It is 

clear that the Commission's jurisdiction attaches to a proposed penalty after it has been contested 

due to the language of section 110(k), which specifies that ‘[n]o proposed penalty which has 

been contested before the Commission under section 105(a)’ shall be settled without the 

approval of the Commission. 30 U.S.C. § 820(k) [ ]. In addition, section 110(i) designates the 

Commission as the agency authorized to ‘assess all civil penalties provided in this Act.’ 30 

U.S.C. § 820(i) [ ]. The assessment of such penalties clearly includes contested penalties that are 

the subject of a settlement agreement.” Id. 

The Commission then noted that with “this statutory mandate to approve or disapprove 

proposed penalty reductions, [it] has promulgated procedural rules which require parties to 

submit factual support for a proffered settlement agreement.” Black Beauty, 34 FMSHRC at 

1862-1863 (emphasis added). Driving home the point that has apparently eluded the Secretary 

in this motion, the Commission explained that its “Procedural Rule 31 provides that a ‘proposed 

penalty that has been contested before the Commission may be settled only with the approval of 

the Commission upon motion,’ and expressly requires a party seeking the approval of a 

settlement to submit ‘[f]acts in support of the penalty agreed to by the parties.’ 29 C.F.R. § 

2700.31(b)(3). Rule 31 further provides that any ‘order by the Judge approving a settlement shall 

set forth the reasons for approval and shall be supported by the record.’ 29 C.F.R. § 2700.31(c). 

Rule 65 provides in part that a ‘Judge may require the submission of proposed findings of fact.’ 

29 C.F.R. § 2700.65. Thus, a Judge's authority to reasonably request additional information to 

justify a proposed settlement is fully supported by both the Act and the Commission's procedural 

rules.” Id. at 1863. 

Following that explication, the Commission then spoke to “[w]hether a Judge may 

consider the deterrent purposes of the statutory penalty scheme in reviewing a settlement 

proposal.” Id. at 1864. It observed in that regard that “that section 110(k) “contains no explicit 

restrictions on what a Commission Judge may consider when reviewing a settlement proposal. 

Thus, Congress provided a broad mandate to the Commission (and its Judges), charging it with 

reviewing and approving all settlements of penalty cases pending before it and imposing no 

explicit limits on what should be considered in this review.” Id. at 1865. 

Unlike the Secretary, who contends that the Commission cannot look to the obvious 

relevance of the statutory penalty criteria in section 110(i),11 the Commission noted the 

importance of penalties as deterrence to future violations. Speaking particularly to a key 

contention of the Secretary in this motion for reconsideration, the Commission pointed out that 

the legislative history anticipated the claim, noting that “[w]hile the reduction of litigation and 

collection expenses may be a reason for the compromise of assessed penalties, the Committee 

 11 That section expressly provide that “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.” 30 U.S.C. §820(i). (emphasis added). 

36 FMSHRC Page 1498
strongly feels that since the penalty system is not for the purpose of raising revenues for the 

Government, and is indeed for the purpose of encouraging operator compliance with the Act's 

requirements, the need to save litigation and collection expenses should play no role in 

determining settlement amounts.” Id. at 1866 (quoting Senate Report at 629-33) (re-ordered 

emphasis added by this Court). 

Given all those considerations, the Commission concluded that the assessment of a civil 

“penalty is ‘is bounded by proper consideration of the statutory criteria and the deterrent purpose 

underlying the Act's penalty assessment scheme.’” Id. at 1866-1867 (quoting Sellersburg Stone, 

5 FMSHRC at 294). Clearly Congress viewed civil penalties as a mechanism to promote 

operator compliance with health and safety mandates, to discourage operators from violating 

health and safety regulations and laws in the future. 

II. The Settlement Denial in this matter 

 

The Secretary concedes that in some instances there are modifications to civil penalty 

contests but, repeating its arguments, contends that it also has the “prosecutorial discretion to 

negotiate percentage-reduction settlements” and that it is under no obligation to do more than to 

announce that the Commission. Motion at 22. 

 Apart from the fact that the Secretary’s own civil penalty assessment regulations provide, 

per section 30 C.F.R. § 100.7(b)(2), that “[w]hen MSHA receives the notice of contest, it advises 

the Federal Mine Safety and Health Review Commission (Commission) of such notice [and that] 

[N]o proposed penalty which has been contested before the Commission shall be compromised, 

mitigated or settled except with the approval of the Commission.” The Secretary’s Motion, as 

noted, asserts that the Commission’s approval authority is a ministerial task. That a uniform 

across-the-board reduction is within the Secretary’s authority to present to the Commission and 

with the Commission, according to the Secretary, unauthorized to do anything except approve 

such a settlement, as long as it is clear and transparent to the public, the Secretary, without more, 

may always enter a uniform percentage reduction, apparently of any amount.12 

 Remembering that the Secretary has merely asserted that its across-the-board, 

unelaborated, 30% reduction is justifiable, it is worth examining the context in which this claim 

is made by returning from the theoretical realm to the real world of the citations involved here. 

A few examples from the citations will be noted, but one should bear in mind that none of the 32 

citations have been modified; there is no contention, for example, that the citations’ descriptions 

of the conditions or practices are challenged or just plain wrong. Nor is there a contention that 

the gravity or negligence should really be something other than what the issuing inspector 

marked for any of those citations. Instead, the Secretary contends that the private exercise of its 

professional judgment, the private valuation of the proposed compromise associated with that 

judgment, the prospects of coming out better, or worse, after a full trial, and the Secretary’s 

 12 Here, it happens to be a 30% reduction but there is no indication that Secretary would be 

hindered from a higher percentage across-the-board reduction, and those too would not require more 

information from the Secretary than it offers here. 

36 FMSHRC Page 1499
resources that would need to be expended in going through a trial, combine to justify this 30% 

uniform reduction. 

 The following examples of some of the citations within this docket serve to demonstrate 

the need for additional information in order for the Commission to carry out Congress’ directive 

under section 110(k). In the Court’s original decision denying the settlement motion, it noted the 

absence of any legitimate basis to reduce any of the citations and the motion admitted this, 

announcing that there were no changes in gravity or negligence for any of the 32 citations. The 

court’s original decision, denying the settlement motion, noted that included within these were: 

* A haul truck seriously leaking oil, a condition which was made worse because its 

engine could not be shut down (Citation 8424013); the inspector listed the violation as 

significant and substantial; 

* Up to 5 feet of water, rib to rib, in a longwall bleeder (Citation 8424511) was cited as a 

violation of the mine’s approved ventilation plan. That plan required water pumps when water 

depth exceeded 12 inches and the effectiveness of the system was gauged by the depth not 

exceeding 24 inches of water. More than a week later, with more pumps having been installed, 

the water level still exceeded the standard and it took nearly a month (from July 29 to August 24) 

to remove the water; 

* Inadequate roof and rib support, a problem which had been cited some 107 times at this 

mine in the past 2 years, (Citation 7579878). The inspector listed the condition as a significant 

and substantial violation, noting that the ribs were rashing out, and also that the distance from the 

last row of roof bolts was six to seven feet. With these findings, the inspector concluded that the 

roof and ribs were inadequately supported to protect miners from falls; 

*Another roof control violation was found, as set forth in Citation 8159274. This 

condition, the result of a rib roll, involved an excessive entry width continuing for 20 feet. The 

Inspector listed the violation as significant and substantial. Abatement required the installations 

of 6 x 6 posts; 

*Still another roof control violation, identified as significant and substantial, was found. 

(Citation 8427401). This one, also the result of rib rashing, found ineffective rib bolts, bolts 

more than six feet away from the ribs and one that was seven feet from a rib corner. As with 

Citation 7579878, this standard had been cited at this mine more than one hundred times in the 

past two years. 

*An outdated escapeway map and an incompletely installed life line in the primary 

escapeway (Citations 8424508 and 8424509). The importance of escapeway life lines cannot be 

gainsaid; 

*Coal accumulations up to 20 inches in depth, and 18 feet wide for a distance of 165 feet, 

and another, similar, such situation was found as set forth in Citations 8424967 and 8424502. 

Regarding Citation 842967, the inspector listed the violation as significant and substantial, 

noting that the accumulations existed over the full width of conveyor belt and were packed under 

36 FMSHRC Page 1500
the drive and snub rollers for a distance over 10 feet with a 12 inch depth. The belt had to be 

removed from service; 

*Two diesel powered scoops were being used to transport a loading machine without the 

use of proper couplings, as set forth in Citation 8418394. The practice was in violation of a 

safeguard which had been issued eight years earlier and which safeguard had been cited 72 times 

in the past two years at this mine. As in 2002, a belt chain, which is not a proper coupling, was 

being used. Both the Inspector and his supervisor recommended a special assessment, but the 

recommendation was turned down by the District Manager. Therefore, it was this regularly 

assessed violation for which the Secretary seeks an unexplained 30% reduction; 

*An oxygen tank pressure gauge was not maintained in safe condition, as it lacked a 

protective cover and when that gauge was tested, its needle did not move. (Citation 8424002) 

Listing the violation as significant and substantial, a new set of gauges had to be installed on the 

tank; 

*An energized power cable for a shuttle car was found to have two holes so that it was no 

longer adequately insulated. (Citation 7579858) For one of those holes, exposed, energized 

inner bare wires were present. The Inspector listed the violation as significant and substantial 

with a permanently disabling injury reasonably to be expected; 

 The point of describing these violations is not to establish that the proposed penalties 

could not be reduced. Rather, it is to demonstrate that information is needed to justify any 

reductions. This Court has explained that, under a “principle of proportionality,” the greater the 

reduction sought for a proposed penalty, the greater the amount of information that should be 

provided to explain the basis for the reduction. In the Court’s estimation, contrary to the 

Secretary’s assertion, not altering any of the citations is a factor cutting against the across-theboard reduction, as opposed to supporting it. The practical effect of the Secretary’s position, that 

it may blithely present across-the-board percentage reductions, without justifying such 

reductions beyond its “because we can” mantra, effectively creates a new provision within Part 

100. Besides contravening section 110(k)’s language, any mining company litigator would 

understandably insist that it too should have such reductions applied to proposed penalties under 

the vagaries of litigation and expenses of trial theory of penalty reduction. 

 

Conclusion 

In the Court’s estimation, the Secretary’s Motion for Reconsideration with its supporting 

brief is effectively an exhibit. By the submission of that exhibit, it is an admission against 

interest, unwittingly demonstrating that it does not grasp Congress’ plain expression of its will 

regarding proposed penalties which are contested before the Commission and its directive that no 

such matters may be compromised, mitigated, or settled except with the Commission’s approval. 

With no mention of the best interests of miners, nor reference to its client, the Mine Safety and 

Health Administration, nor any mention of Congress’ concern about the deterrent effects of 

penalties, the Secretary, in what is little more than a power play, has demonstrated a disregard 

for any of these voices and by so doing underscored the wisdom of Congress’ command that the 

Commission must approve such matters. 

36 FMSHRC Page 1501
In addition, the Court has researched the provision which the Secretary seeks to 

eviscerate and has found no like statutory provision employing such terms. Nor, it is noted, has 

the Secretary pointed to such a like statutory provision for any other agency. Therefore, it is 

concluded that the section 110(k) provision is unique among federal agency statutes. Perhaps 

that is why Congress took pains to explain, in the legislative history, what was already plain in 

the text of the statute. That it is unique should not come as a surprise because the Federal Coal 

Mine Health and Safety Act of 1969, the Federal Mine Safety and Health Act of 1977 (Mine 

Act), and its most recent iteration, in 2006, with the Mine Improvement and New Emergency 

Response Act (MINER Act), were all prompted by mining disasters. These disasters moved 

Congress in each instance to re-examine the federal safety and health mining laws, brought about 

ever more serious Congressional treatment of mining, and formed the basis for the statement that 

mine safety laws and standards have been written in blood. These Congressional changes to our 

Nation’s mine safety laws included that the Commission, through section 110(k), be entrusted to 

guard the guardians, where proposed penalties contested before the Commission are sought to be 

compromised, mitigated, or settled. 

 Accordingly, upon reconsideration, the Secretary’s Motion for Reconsideration is 

DENIED. Within 30 (thirty) days of this Order, the Secretary is directed to either submit a 

supported motion for approval of settlement or to prepare for trial on the matters in this docket. 

SO ORDERED. 

 /s/ William B. Moran 

 William B. Moran 

 Administrative Law Judge 

 

36 FMSHRC Page 1502
APPENDIX

Settlement Example 1 

UNITED STATES OF AMERICA 

 FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 Pennsylvania Avenue NW, Suite 520N 

Washington, DC 20004-1710 

SECRETARY OF LABOR, MINE SAFETY 

AND HEALTH ADMINISTRATION 

(MSHA: 

 Petitioner, 

 

 v. 

 

RIDGEWOOD TRUCKING, INC., 

 Respondent. 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

: 

CIVIL PENALTY PROCEEDINGS 

DOCKET NO. KENT 2011-1521 

A.C. NO. 15-05484-000264844 VP2 

Mine: Prep Plant 

DOCKET NO. KENT 2011-1522 

A.C. NO. 15-18978-000264876 VP2 

Mine: Buckeye Highwall Miner 

DOCKET NO. KENT 2011-1523 

A.C. NO. 15-19542-000264895 VP2 

Mine: Bear Branch Mine 

MOTION TO APPROVE SETTLEMENT AND ORDER PAYMENT

The Acting Secretary certifies that prior to filing this Motion, a copy was provided to 

Respondent, Ridgewood Trucking, Inc., through its representative for review, and Respondent 

consents to the granting of the Motion and the entry of the proposed Decision Approving 

Settlement and Order to Pay filed herewith. The Acting Secretary hereby moves as follows: 

1. These matters arise from inspections of the Prep Plant, Buckeye Highwall Miner, and 

Bear Branch Mine (“the Mines”: conducted in June and July 2011. At the time of the inspections, 

Respondent was a contractor at the Mines. These dockets are comprised of 

Respondent’s contest of seventeen (17: citations issued during those inspections pursuant to the 

Federal Mine Safety and Health Act of 1977 (“the Act”:, as more specifically set forth in the 

paragraphs below. The civil money penalties for the citations were assessed at $25,651.00. 

36 FMSHRC Page 1503
2. With respect to Citation Nos. 8395302, 8370015, 8370018, 8395504, 8344550, 

8344551, 8344554, and 8344555, Respondent has agreed to accept these citations as written and 

pay the penalties as assessed. The specific penalties identified in paragraph 5, below. 

3. Discovery and preparation for the hearing in this matter has revealed the following as 

to the parties’ positions regarding the remaining citations at issue in these dockets: 

(a: Citation Nos. 8370014, 8370016, and 8370017: Respondent was cited for 

violations of 30 CFR § 77.404(a:. Specifically, the International coal haulers, Unit Nos. 36 (VIN 

46194:, 44 (VIN 552866:, and 35 (VIN 469192: were not maintained in safe operating condition. 

The Unit No. 36 International coal hauler had an exhaust leak in the second coupling after the 

turbo charger and the left side tie rod end, attached to the driver’s side wheel unit, was worn and 

loose (Citation No. 8370014:. On the Unit No. 44 International coal hauler the right side tie rod 

end had excessive vertical movement (Citation No. 8370016:. On the Unit No. 35 

International coal hauler the rear right side drag link was excessively worn and loose and the rear 

inner tire showed signs of the inner side wall separating from the tire (Citation No. 8370017:. 

Regarding Citation No. 8370014, Respondent argues that the tie rod was not worn and only one 

person drives the truck. Regarding Citation No. 8370016, Respondent argues that the tie rod was 

not excessive, some slack is normal, and only one person drives the truck. Regarding Citation 

No. 8370017, Respondent argues that one worn tire out of eighteen does not create an unsafe 

condition and only one person drives the truck. Respondent therefore argues that the gravity and 

persons affected were lower than that asserted by the Secretary. Petitioner reviewed the citations, 

the surrounding evidence, and each party’s arguments. Without conceding Respondent’s 

arguments, but given the conflicting evidence and the associated litigation risk, the Acting 

Secretary has agreed to reductions of the proposed civil money penalties. The specific penalty 

reductions are identified in paragraph 5, below. 

(b: Citation No. 8395503, 8395506, and 8395508: Respondent was cited for 

violations of 30 CFR § 77.1605(b:. Specifically, the right front tandem-axle brake shoe assembly 

and brake drum on the blue International coal hauler (Company No. 38, Vin # 463195: 

(Citation No. 8395503:, the left front tandem-axle brake shoe assembly and brake drum on the 

red Western Star coal hauler (Company No. 1: (Citation No. 8395506:, and the right rear 

tandem-axle brake shoe assembly and brake drum on the red Western Star coal hauler (Company 

No. 28, Vin # 356615: (Citation No. 8395508: were saturated with oil, apparently from defective 

axle seals. Respondent argues that all other braking systems were operating and therefore it was 

not reasonably likely that a reasonably serious injury would occur. Respondent therefore argues 

that the gravity was lower than that asserted by the Secretary. Petitioner reviewed the citations, 

the surrounding evidence, and each party’s arguments. Without conceding Respondent’s 

arguments, but given the conflicting evidence and the associated litigation risk, the Acting 

Secretary has agreed to reductions of the proposed civil money penalties. The specific penalty 

reductions are identified in paragraph 5, below. 

(c: Citation No. 8395507: Respondent was cited for a violation of 30 CFR § 

77.404(a:. Specifically, on the red Western Star coal hauler, Company No. 1, the trailing end of 

the left side steering system drag link contained excessive movement at its connection point with 

the left front wheel spindle and the rear yoke of the front drive shaft of the drive line assembly 

36 FMSHRC Page 1504
was cracked in the area where the universal joint is held in place. Respondent argues that this 

citation was duplicative of Citation No. 8395506. Respondent therefore argues that the citation 

should be vacated. Petitioner reviewed the citation, the surrounding evidence, and each party’s 

arguments. Without conceding Respondent’s arguments, but given the conflicting evidence and 

the associated litigation risk, the Acting Secretary has agreed to a reduction of the proposed civil 

money penalty. The specific penalty reduction is identified in paragraph 5, below. 

 (d: Citation No. 8344552: Respondent was cited for a violation of 30 CFR § 

77.404(a:. Specifically, there was a crack in the frame on both sides of the red International Pay 

Star tandem coal truck, Unit No. 29, where the hoist jack is located. Respondent argues that it 

was unlikely that a reasonably serious injury would occur and that the inspector notes that only 

the driver should have known. Respondent therefore argues that the gravity and negligence were 

lower than that asserted by the Secretary. Petitioner reviewed the citation, the surrounding 

evidence, and each party’s arguments. Without conceding Respondent’s arguments, but given the 

conflicting evidence and the associated litigation risk, the Acting Secretary has agreed to a 

reduction of the proposed civil money penalty. The specific penalty reduction is identified in 

paragraph 5, below. 

(e: Citation No. 8344553: Respondent was cited for a violation of 30 CFR § 

77.1104. Specifically, there was an accumulation of oil on both sides of the engine of the red 

International Pay Star tandem coal truck, Unit No. 46. Respondent argues that it was unlikely a 

fire would occur and that the inspector notes that only the driver should have known. 

Respondent therefore argues that the gravity and negligence were lower than that asserted by the 

Secretary. Petitioner reviewed the citation, the surrounding evidence, and each party’s 

arguments. Without conceding Respondent’s arguments, but given the conflicting evidence and 

the associated litigation risk, the Acting Secretary has agreed to a reduction of the proposed civil 

money penalty. The specific penalty reduction is identified in paragraph 5, below. 

4. The Acting Secretary has considered the criteria set forth at Section 110(i: of the Act 

and has determined that the proposed penalties are appropriate in light of these criteria and 

promote the purpose of the Act. Information pertaining to the operator’s history of previous 

violations and size is contained in Exhibit A, which was filed by the Secretary along with the 

petition in the above-captioned proceeding. 

5. The following chart summarizes the citations and associated penalties and the 

reductions to the penalties, as applicable. The penalty reductions are to be effective upon the 

approval of this settlement agreement by the Federal Mine Safety and Health Review 

Commission. 

Citation 

No. Modification to Citation Proposed Penalty 

Amended 

Penalty 

DOCKET NO. KENT 2011-1521 

8395302 N/A $207.00 $207.00

8370014 N/A $2,901.00 $1,422.00

8370015 N/A $585.00 $585.00

8370016 N/A $2,901.00 $1,422.00

8370017 N/A $2,901.00 $1,422.00

36 FMSHRC Page 1505
Citation 

No. Modification to Citation Proposed Penalty 

Amended 

Penalty 

8370018 N/A $285.00 $285.00

Subtotal: $9,780.00 $5,343.00

DOCKET NO. KENT 2011-1522

8395503 N/A $1,795.00 $990.00

8395504 N/A $121.00 $121.00

8395506 N/A $1,795.00 $990.00

8395507 N/A $3,996.00 $2,001.00

8395508 N/A $1,795.00 $990.00

Subtotal: $9,502.00 $5,092.00

DOCKET NO. KENT 2011-1523

8344550 N/A $540.00 $540.00

8344551 N/A $540.00 $540.00

8344552 N/A $2,678.00 $1,107.00

8344553 N/A $1,944.00 $896.00

8344554 N/A $127.00 $127.00

8344555 N/A $540.00 $540.00

Subtotal: $6,369.00 $3,750.00

Total Amended Penalty: $14,185.00 

6. The parties have agreed that no modifications to the citations are to be made. 

7. Respondent agrees to withdraw its contest to the penalties as modified herein. 

Respondent’s withdrawal of its contest is to be effective upon the approval of this settlement by 

the Commission. 

8. Respondent is/was a contractor at a surface coal mine. 

9. Respondent exhibited good faith in abating the cited violations. 

10. Payment of the proposed penalties will not impair Respondent’s ability to continue in 

business. 

11. The parties agree to bear their own attorney's fees, costs, and other expenses incurred 

by the parties in connection with any stage of the above referenced proceedings, including 

attorney's fees which may be available under the Equal Access to Justice Act, as amended. 

12. Upon the Commission’s approval of this settlement, the Acting Secretary further 

agrees that the total penalty amount shall be payable in twenty-four (24: installments. The first 

payment in the amount of $615.00 will be due on October 1, 2013. Subsequent payments, in the 

amount of $590.00 each, will be due on the 1st day of each month thereafter. Failure to make any 

payment within 30 days after its due date may result in the entire, unpaid balance becoming 

immediately due and payable, together with such court costs as may be incurred by the U.S. 

Department of Labor in collecting such amounts, pursuant to the practices and procedures of the 

36 FMSHRC Page 1506
Mine Safety and Health Administration, U.S. Department of Labor, Payment Office. Payments 

shall be made by Respondent to the MINE SAFETY AND HEALTH ADMINISTRATION, U.S. 

DEPARTMENT OF LABOR, PAYMENT OFFICE, P. O. BOX 790390, ST. LOUIS, MO 

63179-0390. The Assessment Control Numbers and Docket Numbers, as set forth in the heading 

of this document, shall be included on each payment. Payments shall be considered to be 

“made,” as that term is used in this paragraph, on the date payment is placed in the U.S. mail, 

first class postage prepaid. 

WHEREFORE, the parties move the Commission to approve the above settlement 

agreement pursuant to 29 C.F.R. § 2700.31, Rules of Procedure, FMSHRC, and to order 

payment of the amended proposed penalties of $14,185.00 as set forth in the payment plan 

described above. 

Respectfully submitted this 18th day of July, 2013. 

M. Patricia Smith 

Solicitor of Labor 

James E. Culp 

Regional Solicitor 

John Rainwater 

Associate Regional Solicitor 

Gregory W. Tronson 

Manager, Denver Backlog Project 

 Natalie E. Lien 

 Trial Attorney 

 U. S. Department of Labor 

 Attorneys for Petitioner 

 

36 FMSHRC Page 1507
Settlement Example 2 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

HILDA SOLIS, Secretary of Labor, : CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH : (JUDGE WILLIAM MORAN:

ADMINISTRATION (MSHA:, : 

 : DOCKET NO. WEVA 2011-1449 

Petitioner, : A.C. NO. 46-05121-249736 

 : 

v. : DOCKET NO. WEVA 2011-1451 

 : A.C. NO. 46-05121-249736 

 : 

ROCKSPRING DEVELOPMENT INC., : MINE: CAMP CREEK MINE 

 : 

 Respondent. : 

JOINT MOTION TO APPROVE SETTLEMENT

The parties propose the following settlement of the civil money penalties in the 

subject cases, as set forth below. 

I

The Secretary proposed penalties totaling $13,992 against Rockspring 

Development Inc. (hereinafter referred to as the Respondent: for the violations alleged in Docket 

Number WEVA 2011-1449. The parties have agreed to settle that docket for penalties totaling 

$8,500. The Secretary proposed penalties totaling $56,621 for the violations alleged in Docket 

Number WEVA 2011-1451. The parties have agreed to settle that docket for penalties totaling 

$40,000. These dockets do not contain any citations that are the subject of a notice of contest. 

II

The Respondent is very large in size, producing 2,986,909 tons of coal in 2010. 

III

The proposed penalty is appropriate to the size of the Respondent’s business and 

will not affect the operator’s ability to continue in business. 

IV

 The Respondent demonstrated good faith in attempting to achieve rapid 

compliance after notification of the violations. 

V 

The parties have agreed that the Respondent’s history of previous violations has 

not affected the terms of this Joint Motion to Approve Settlement. 

36 FMSHRC Page 1508
VI 

The Respondent, as demonstrated by the signature of its representative or attorney 

set forth below, certifies that it has reviewed the provisions of this Joint Motion to Approve 

Settlement and agrees to the statements and representations herein and to the amount of the 

penalty compromise. On this basis, the Respondent waives its right to the five-day notice 

requirement set forth in 29 C.F.R. § 2700.31(d:(3: and requests that the Administrative Law 

Judge enter an immediate order approving the parties’ proposed settlement of the citations at 

issue in these cases. 

VII 

Docket Number WEVA 2011-1449

 The Secretary originally proposed penalties totaling $13,992 for the violations 

alleged in Docket Number WEVA 2011-1449, and the parties have agreed to settle that docket 

for penalties totaling $8,500. 

 The Respondent has agreed to pay the penalty proposed by the Secretary for the 

violation alleged in the following citation: 

Citation Number Penalty

8116757 $6,996 

The basis for the settlement of the remaining citation at issue in this docket, including the 

individual settlement amount, is set forth below: 

 Citation Number 8116755 30 U.S.C. § 876(b:(2:(F:(ii: 

 Basis of compromise of penalty: Negligence. 

At hearing, the Respondent would present evidence that there is an exception in its 

emergency response plan which provides, “zones of discontinuous communications 

coverage may exist for limited distance and/or duration throughout the working section in 

areas such as, but not limited to, behind pillars around equipment, etc.” It argues that this 

exception excuses its failure to provide communication in the outside entries of the #2 

section. Therefore, it argues that the level of negligence is mischaracterized and should 

be modified to “moderate negligence,” and the number of persons affected should be 

modified to “7 persons,” with a corresponding penalty reduction. 

 

The Secretary, in reply to the Respondent’s statements and contentions, states that she 

recognizes that they raise factual and legal issues which can only be resolved by a 

hearing before the Commission or by the parties reaching a compromise of the penalty 

proposed by the Secretary or by a modification of the characterization of the citation to 

reflect a lower level of gravity or negligence or both. Therefore, she agrees to modify this 

citation to “moderate negligence,” and “7 persons affected,” and to accept a reduced 

penalty. 

36 FMSHRC Page 1509
Amount of the penalty proposed by the Secretary: $6,996. 

Amount of the penalty agreed on by the parties: $1,504. 

Docket Number WEVA 2011-1451

 The Secretary originally proposed penalties totaling $56,621 for the violations 

alleged in Docket Number WEVA 2011-1451, and the parties have agreed to settle that docket 

for penalties totaling $40,000. 

 The Respondent has agreed to pay the penalties proposed by the Secretary for the 

violations alleged in the following citations: 

Citation Number Penalty

8118642 $1,412 

8118643 $1,203 

8122264 $3,143 

8118645 $807 

8122273 $873 

8122277 $1,111 

8127165 $3,143 

8122279 $1,530 

8122280 $807 

8122281 $1,530 

8122283 $946 

8127164 $3,143 

8122284 $873 

8122285 $873 

8122287 $1,026 

8122286 $873 

8122289 $1,944 

8127168 $2,901 

The bases for the settlement of the remaining citations at issue in this docket, including the 

individual settlement amounts, are set forth below: 

 Citation Number 8118640 75.503 

 Basis of compromise of penalty: Gravity. 

The Respondent would present evidence at hearing that the leads were insulated and only 

the outer jacket was torn on the rear light of the #4 maintenance ride, located on the #4 

section. Therefore, it argues that this citation should be modified to reflect a 

characterization of this violation as “not significant and substantial” and that the proposed 

penalty should be reduced in light of this characterization. 

36 FMSHRC Page 1510
 

The Secretary recognizes that Respondent has raised factual and legal issues which can 

only be resolved by a hearing before the Commission or by the parties reaching a 

compromise of the penalty proposed by the Secretary or by a modification of the 

characterization of the citation to reflect a lower level of gravity or negligence or both. 

The Secretary has decided to remove the S&S designation from this citation, and believes 

that removal of the S&S designation here is consistent with her enforcement 

responsibility under the Mine Act. Further, the Secretary agrees to modify the citation to 

“unlikely” and to accept a reduced penalty. 

Amount of the penalty proposed by the Office of Assessments: $1,026. 

Amount of the penalty proposed by the parties: $526. 

 Citation Number 8122266 75.1713-7(c: 

 Basis of compromise of penalty: Gravity. 

The Respondent would present evidence at hearing that although the first aid supplies on 

the #5 working section were individually wrapped in airtight plastic bags and stored in 

the bin. Therefore, it argues that this citation should be modified to reflect a 

characterization of this violation as “not significant and substantial,” “1 person affected,” 

and that the proposed penalty should be reduced in light of this characterization. 

 

The Secretary recognizes that Respondent has raised factual and legal issues which can 

only be resolved by a hearing before the Commission or by the parties reaching a 

compromise of the penalty proposed by the Secretary or by a modification of the 

characterization of the citation to reflect a lower level of gravity or negligence or both. 

The Secretary has decided to remove the S&S designation from this citation, and believes 

that removal of the S&S designation here is consistent with her enforcement 

responsibility under the Mine Act. Further, the Secretary agrees to modify the citation to 

“unlikely,” “1 person affected,” and to accept a reduced penalty. 

Amount of the penalty proposed by the Office of Assessments: $4,689. 

Amount of the penalty proposed by the parties: $3,611. 

 Citation Number 8122268 75.400 

 Basis of compromise of penalty: Gravity. 

The Respondent would present evidence at hearing that the 995-volt motor and pump on 

the coal feeder, located on the #2 section, would not get warm enough to ignite 

combustible material. Therefore, it argues that this citation should be modified to reflect a 

characterization of this violation as “not significant and substantial” and that the proposed 

penalty should be reduced in light of this characterization. 

36 FMSHRC Page 1511
 

The Secretary recognizes that Respondent has raised factual and legal issues which can 

only be resolved by a hearing before the Commission or by the parties reaching a 

compromise of the penalty proposed by the Secretary or by a modification of the 

characterization of the citation to reflect a lower level of gravity or negligence or both. 

The Secretary has decided to remove the S&S designation from this citation, and believes 

that removal of the S&S designation here is consistent with her enforcement 

responsibility under the Mine Act. Further, the Secretary agrees to modify the citation to 

“unlikely” and to accept a reduced penalty. 

 

Amount of the penalty proposed by the Office of Assessments: $1,412. 

Amount of the penalty proposed by the parties: $1,212. 

 Citation Number 8122270 75.400 

 Basis of compromise of penalty: Gravity. 

The Respondent would present evidence at hearing that the operating temperature of the 

pump motor compartment of the #8358 Fletcher roof bolter, located on the 014 MMU of 

the #2 section, does not get hot enough to ignite coal or hydraulic oil. Therefore, it argues 

that this citation should be modified to reflect a characterization of this violation as “not 

significant and substantial” and that the proposed penalty should be reduced in light of 

this characterization. 

 

The Secretary recognizes that Respondent has raised factual and legal issues which can 

only be resolved by a hearing before the Commission or by the parties reaching a 

compromise of the penalty proposed by the Secretary or by a modification of the 

characterization of the citation to reflect a lower level of gravity or negligence or both. 

The Secretary has decided to remove the S&S designation from this citation, and believes 

that removal of the S&S designation here is consistent with her enforcement 

responsibility under the Mine Act. Further, the Secretary agrees to modify the citation to 

“unlikely” and to accept a reduced penalty. 

 

Amount of the penalty proposed by the Office of Assessments: $1,530. 

Amount of the penalty proposed by the parties: $250. 

 Citation Number 8122271 75.400 

 Basis of compromise of penalty: Gravity. 

The Respondent would present evidence at hearing that the operating temperature of the 

pump motor compartment of the #7320 Fletcher roof bolter, located on the 011 MMU of 

the #2 section, does not get hot enough to ignite coal or hydraulic oil. Therefore, it argues 

that this citation should be modified to reflect a characterization of this violation as “not 

36 FMSHRC Page 1512
significant and substantial” and that the proposed penalty should be reduced in light of 

this characterization. 

 

The Secretary recognizes that Respondent has raised factual and legal issues which can 

only be resolved by a hearing before the Commission or by the parties reaching a 

compromise of the penalty proposed by the Secretary or by a modification of the 

characterization of the citation to reflect a lower level of gravity or negligence or both. 

The Secretary has decided to remove the S&S designation from this citation, and believes 

that removal of the S&S designation here is consistent with her enforcement 

responsibility under the Mine Act. Further, the Secretary agrees to modify the citation to 

“unlikely” and to accept a reduced penalty. 

 

Amount of the penalty proposed by the Office of Assessments: $1,530. 

Amount of the penalty proposed by the parties: $252. 

 Citation Number 8122274 75.400 

 Basis of compromise of penalty: Gravity. 

The Respondent would present evidence at hearing that the operating temperature of the 

pump motor compartment of the #35 Powell scoop, located on the #2 section, does not 

get hot enough to ignite coal or hydraulic oil. Therefore, it argues that this citation should 

be modified to reflect a characterization of this violation as “not significant and 

substantial” and that the proposed penalty should be reduced in light of this 

characterization. 

 

The Secretary recognizes that Respondent has raised factual and legal issues which can 

only be resolved by a hearing before the Commission or by the parties reaching a 

compromise of the penalty proposed by the Secretary or by a modification of the 

characterization of the citation to reflect a lower level of gravity or negligence or both. 

The Secretary has decided to remove the S&S designation from this citation, and believes 

that removal of the S&S designation here is consistent with her enforcement 

responsibility under the Mine Act. Further, the Secretary agrees to modify the citation to 

“unlikely” and to accept a reduced penalty. 

 

Amount of the penalty proposed by the Office of Assessments: $1,530. 

Amount of the penalty proposed by the parties: $251. 

 Citation Number 8122275 75.1403 

 Basis of compromise of penalty: Fact of violation. 

The Respondent would present evidence at hearing that the underlying safeguard 

(Number 7154568: was improperly issued because it fails to identify the hazard at which 

36 FMSHRC Page 1513
it is directed. It further argues that the underlying safeguard does not identify any hazard, 

and thus makes the safeguard and subject citation invalid. Therefore, it argues that this 

citation should be modified to reflect a characterization of this violation as “not 

significant and substantial” and that the proposed penalty should be reduced in light of 

this characterization. 

The Secretary recognizes that Respondent has raised factual and legal issues which can 

only be resolved by a hearing before the Commission or by the parties reaching a 

compromise of the penalty proposed by the Secretary or by a modification of the 

characterization of the citation to reflect a lower level of gravity or negligence or both. 

The Secretary has decided to remove the S&S designation from this citation, and believes 

that removal of the S&S designation here is consistent with her enforcement 

responsibility under the Mine Act. Further, the Secretary agrees to modify the citation to 

“unlikely” and to accept a reduced penalty. 

 

Amount of the penalty proposed by the Office of Assessments: $1,026. 

Amount of the penalty proposed by the parties: $526. 

 

Citation Number 8122276 75.400 

 Basis of compromise of penalty: Fact of violation. 

The Respondent would present evidence at hearing that the loose coal along the ribs and 

cross-cuts in the track entry near the #2 working section was material produced in the 

normal course of mining, and not an accumulation for the purpose of 30 C.F.R. § 75.400. 

Therefore, it argues that this citation should be modified to reflect a characterization of 

this violation as “not significant and substantial” and that the proposed penalty should be 

reduced in light of this characterization. 

 

The Secretary recognizes that Respondent has raised factual and legal issues which can 

only be resolved by a hearing before the Commission or by the parties reaching a 

compromise of the penalty proposed by the Secretary or by a modification of the 

characterization of the citation to reflect a lower level of gravity or negligence or both. 

The Secretary has decided to remove the S&S designation from this citation, and believes 

that removal of the S&S designation here is consistent with her enforcement 

responsibility under the Mine Act. Further, the Secretary agrees to modify the citation to 

“unlikely” and to accept a reduced penalty. 

 

Amount of the penalty proposed by the Office of Assessments: $1,657. 

Amount of the penalty proposed by the parties: $379. 

 

 

36 FMSHRC Page 1514
Citation Number 8123746 75.1505(b: 

 Basis of compromise of penalty: Gravity. 

The Respondent would present evidence at hearing that, although the refuge alternative 

was shown in the wrong location on the escapeway map for the #005 section, everyone 

on the working section had been trained on the location of both escapeways. Therefore, it 

argues that this citation should be modified to reflect a characterization of this violation 

as “not significant and substantial” and that the proposed penalty should be reduced in 

light of this characterization. 

 

The Secretary recognizes that Respondent has raised factual and legal issues which can 

only be resolved by a hearing before the Commission or by the parties reaching a 

compromise of the penalty proposed by the Secretary or by a modification of the 

characterization of the citation to reflect a lower level of gravity or negligence or both. 

The Secretary has decided to remove the S&S designation from this citation, and believes 

that removal of the S&S designation here is consistent with her enforcement 

responsibility under the Mine Act. Further, the Secretary agrees to modify the citation to 

“unlikely” and to accept a reduced penalty. 

 

Amount of the penalty proposed by the Office of Assessments: $3,143. 

Amount of the penalty proposed by the parties: $307. 

Citation Number 8123747 75.1505(a:(3: 

 Basis of compromise of penalty: Gravity. 

The Respondent would present evidence at hearing that although the refuge alternative 

was shown in the wrong location on the escapeway map for the #005 section, everyone 

on the working section had been trained on the location of both escapeways. Therefore, it 

argues that this citation should be modified to reflect a characterization of this violation 

as “not significant and substantial” and that the proposed penalty should be reduced in 

light of this characterization. 

 

The Secretary recognizes that Respondent has raised factual and legal issues which can 

only be resolved by a hearing before the Commission or by the parties reaching a 

compromise of the penalty proposed by the Secretary or by a modification of the 

characterization of the citation to reflect a lower level of gravity or negligence or both. 

The Secretary has decided to remove the S&S designation from this citation, and believes 

that removal of the S&S designation here is consistent with her enforcement 

responsibility under the Mine Act. Further, the Secretary agrees to modify the citation to 

“unlikely” and to accept a reduced penalty. 

 

Amount of the penalty proposed by the Office of Assessments: $3,143. 

36 FMSHRC Page 1515
Amount of the penalty proposed by the parties: $308. 

Citation Number 8116759 75.512 

 Basis of compromise of penalty: Gravity. 

The Respondent would present evidence at hearing that the door to the starting box, used 

to supply 480 volts to the #4-B belt head, was closed, but simply did not have a lock. It 

further argues that there was no methane in any areas of the working section as supported 

by the examination reports. Therefore, it argues that this citation should be modified to 

reflect a characterization of this violation as “not significant and substantial” and that the 

proposed penalty should be reduced in light of this characterization. 

 

The Secretary recognizes that Respondent has raised factual and legal issues which can 

only be resolved by a hearing before the Commission or by the parties reaching a 

compromise of the penalty proposed by the Secretary or by a modification of the 

characterization of the citation to reflect a lower level of gravity or negligence or both. 

The Secretary has decided to remove the S&S designation from this citation, and believes 

that removal of the S&S designation here is consistent with her enforcement 

responsibility under the Mine Act. Further, the Secretary agrees to modify the citation to 

“unlikely” and to accept a reduced penalty. 

 

Amount of the penalty proposed by the Office of Assessments: $3,143. 

Amount of the penalty proposed by the parties: $1,864. 

Citation Number 8122282 75.1731(b: 

 Basis of compromise of penalty: Fact of violation. 

The Respondent would present evidence at hearing that this citation is duplicative of 

Citation Number 8122280 because both enforcement actions addressed the same 

condition and required the same action to abate. It further argues that aligning the 5a belt 

cured the cited condition. Therefore, it argues that this citation should be modified to 

reflect a characterization of this violation as “not significant and substantial” and that the 

proposed penalty should be reduced in light of this characterization. 

 

The Secretary recognizes that Respondent has raised factual and legal issues which can 

only be resolved by a hearing before the Commission or by the parties reaching a 

compromise of the penalty proposed by the Secretary or by a modification of the 

characterization of the citation to reflect a lower level of gravity or negligence or both. 

The Secretary has decided to remove the S&S designation from this citation, and believes 

that removal of the S&S designation here is consistent with her enforcement 

responsibility under the Mine Act. Further, the Secretary agrees to modify the citation to 

“unlikely” and to accept a reduced penalty. 

 

36 FMSHRC Page 1516
Amount of the penalty proposed by the Office of Assessments: $807. 

Amount of the penalty proposed by the parties: $307. 

 Citation Number 8122290 75.517 

 Basis of compromise of penalty: Negligence. 

At hearing, the Respondent would present evidence that the bare red lead wire on the 

480-volt power cable on the #58 scoop charger had likely occurred since the previous 

electrical examination. Therefore, it argues that the level of negligence is 

mischaracterized and should be modified to “low negligence,” with a corresponding 

penalty reduction. 

 

The Secretary, in reply to the Respondent’s statements and contentions, states that she 

recognizes that they raise factual and legal issues which can only be resolved by a 

hearing before the Commission or by the parties reaching a compromise of the penalty 

proposed by the Secretary or by a modification of the characterization of the citation to 

reflect a lower level of gravity or negligence or both. Therefore, she agrees to modify this 

citation to “low negligence,” and to accept a reduced penalty. 

Amount of the penalty proposed by the Secretary: $946. 

Amount of the penalty agreed on by the parties: $446. 

 Citation Number 8127167 75.333(h: 

 Basis of compromise of penalty: Gravity. 

The Respondent would present evidence at hearing that the small holes in the stoppings 

on the left side return of the 9 south belt line had no effect on the mine ventilation. 

Therefore, it argues that this citation should be modified to reflect a characterization of 

this violation as “not significant and substantial” and that the proposed penalty should be 

reduced in light of this characterization. 

 

The Secretary recognizes that Respondent has raised factual and legal issues which can 

only be resolved by a hearing before the Commission or by the parties reaching a 

compromise of the penalty proposed by the Secretary or by a modification of the 

characterization of the citation to reflect a lower level of gravity or negligence or both. 

The Secretary has decided to remove the S&S designation from this citation, and believes 

that removal of the S&S designation here is consistent with her enforcement 

responsibility under the Mine Act. Further, the Secretary agrees to modify the citation to 

“unlikely” and to accept a reduced penalty. 

 

Amount of the penalty proposed by the Office of Assessments: $2,901. 

36 FMSHRC Page 1517
Amount of the penalty proposed by the parties: $1,623. 

VIII 

Each party agrees to bear its own fees and other expenses incurred by such party 

in connection with any stage of this proceeding including, but not limited to, attorney fees and 

costs which may be available under the Equal Access to Justice Act, as amended. 

IX

It is the parties’ belief that approval of this settlement is in the public interest and 

will further the intent and purpose of the Federal Mine Safety and Health Act, as amended. 

Therefore, the parties request that this Motion be granted and that an order approving settlement 

and directing payment, according to the parties' agreement, be issued. 

 Respectfully submitted, 

 M. PATRICIA SMITH 

 Solicitor of Labor 

 STANLEY E. KEEN 

 Regional Solicitor 

 CHRISTIAN P. BARBER 

 Supervisory Trial Attorney 

/s/ Patrick W. Dennison /s/ J. Malia Lawson 

PATRICK W. DENNISON J. MALIA LAWSON 

Attorney Attorney 

Rockspring Development Inc. U.S. Department of Labor 

Attorney for Respondent Attorneys for the Secretary 

 

36 FMSHRC Page 1518
Settlement Example 3 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

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

Washington, D.C. 20004-1710 

Telephone: (202: 434-9971/ Fax: (202: 434-9949 

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING 

 MINE SAFETY AND HEALTH : 

 ADMINISTRATION (MSHA:, : Docket No. WEVA 2010-468 

Petitioner : A.C. No. 46-08885-202527 

v. : 

 : Mine: Poplar Ridge No. 1 Deep Mine 

 : 

BROOKS RUN MINING CO., LLC, : 

Respondent : 

 : 

ORDER APPROVING SETTLEMENT

Before: Judge Moran 

These cases are before the Court upon a petition for assessment of a civil penalty under 

Section 105(d: of the Federal Mine Safety and Health Act of 1977 (the “Act”:. The Secretary 

has filed a Motion for Decision and Order Approving Settlement to which Respondent has 

agreed. The Court has considered the six statutory civil penalty criteria contained at § 110(i: of 

the Federal Mine Safety and Health Act of 1977, as amended, 30 U.S.C. § 820(i:, and finds that 

the proposed penalty amount is appropriate. It is hereby ORDERED that: 

1. The citations and orders involved in these cases are affirmed, modified, or vacated 

as follows: 

Citation No. 8089450 was issued to the Respondent on October 20, 2009 and alleged a violation 

of 30 C.F.R. § 75.517 and 104(a: of the Act, 30 U.S.C. § 814(a:. The Secretary determined that 

the violation was reasonably likely to cause an injury; that an injury from the cited condition 

could reasonably be expected to result in lost workdays or restricted duty; that the violation was 

significant and substantial; that one person was affected; and that the operator’s conduct in the 

violation demonstrated a moderate degree of negligence. The Secretary assessed a penalty of 

$499.00. The Respondent contends that the likelihood of injury and level of negligence alleged 

are excessive, and states that at hearing it would present evidence that the individual leads of the 

allegedly damaged cable were insulated, that there was no damage to the inner power or ground 

conductors and that the condition had existed for only a short time and would have been 

discovered during the next examination. In light of the contested evidence, the Secretary has 

agreed to modify the likelihood from “reasonably likely” to unlikely,” to modify the citation 

from “significant and substantial” to not significant and substantial,” to modify the negligence 

from “moderate” to “low,” and to reduce the penalty to $275.00. 

36 FMSHRC Page 1519
Citation No. 8089451 was issued to the Respondent on October 22, 2009 and alleged a violation 

of 30 C.F.R. § 75.220(a:(1: and 104(a: of the Act, 30 U.S.C. § 814(a:. The Secretary determined 

that the violation was reasonably likely to cause an injury; that an injury from the cited condition 

could reasonably be expected to result in lost workdays or restricted duty; that the violation was 

significant and substantial; that two persons were affected; and that the operator’s conduct in the 

violation demonstrated a moderate degree of negligence. The Secretary assessed a penalty of 

$540.00. The Respondent contends that the likelihood of injury alleged is excessive, and states 

that at hearing it would present evidence that the roof in the cited entry was too high for the 

automated temporary roof support system to effectively control the roof, the roof conditions were 

good and the top was solid, stable and secure and that any roof sloughage was addressed by the 

installation of “pizza pans” and 6-foot torque tension bolts. The parties agree that this citation 

will remain as issued with no modifications, but in light of the contested evidence, the Secretary 

has agreed to reduce the penalty to $475.00. 

Citation No. 8089453 was issued to the Respondent on October 22, 2009 and alleged a violation 

of 30 C.F.R. § 75.1101-2 and 104(a: of the Act, 30 U.S.C. § 814(a:. The Secretary determined 

that the violation was unlikely to cause an injury; that an injury from the cited condition could 

reasonably be expected to result in lost workdays or restricted duty; that the violation was not 

significant and substantial; that eight persons were affected; and that the operator’s conduct in 

the violation demonstrated a moderate degree of negligence. The Secretary assessed a penalty of 

$285.00. The Respondent contends that the level of negligence and the number of persons 

alleged to have been affected are excessive, and states that at hearing it would present evidence 

that the deluge-type fire suppression system only provided substantial protection, covering 42 of 

the 50 feet of conveyor belt that it was supposed to cover, and that air flowed outby across the 

belt and therefore only one supply man and one belt man would have been affected. In light of 

the contested evidence, the Secretary has agreed to modify the negligence from “moderate” to 

“low,” to modify the number of persons affected from “eight” to “two,” and to reduce the penalty 

to $100.00. 

Citation No. 8071617 was issued to the Respondent on October 23, 2009 and alleged a violation 

of 30 C.F.R. § 75.1914(h:(1: and 104(a: of the Act, 30 U.S.C. § 814(a:. The Secretary 

determined that the violation was unlikely to cause an injury; that an injury from the cited 

condition could reasonably be expected to result in lost workdays or restricted duty; that the 

violation was not significant and substantial; that eight persons were affected; and that the 

operator’s conduct in the violation demonstrated a moderate degree of negligence. The Secretary 

assessed a penalty of $285.00. The parties agree that this citation will remain as issued with no 

modifications. Accordingly, the Respondent has agreed to pay the proposed penalty of $285.00. 

Citation No. 8089455 was issued to the Respondent on October 30, 2009 and alleged a violation 

of 30 C.F.R. § 77.400(a: and 104(a: of the Act, 30 U.S.C. § 814(a:. The Secretary determined 

that the violation was reasonably likely to cause an injury; that an injury from the cited condition 

could reasonably be expected to result in lost workdays or restricted duty; that the violation was 

significant and substantial; that one person was affected; and that the operator’s conduct in the 

violation demonstrated a moderate degree of negligence. The Secretary assessed a penalty of 

$499.00. The Respondent contends that the likelihood of injury alleged is excessive, and states 

that at hearing it would present evidence that visibility and lighting were good and that there 

were no tripping hazards along the walkway where the cited roller was located, and that the mine 

36 FMSHRC Page 1520
had chained off the area around the walkway to prevent miners from coming into contact with 

the roller. In light of the contested evidence, the Secretary has agreed to modify the likelihood 

from “reasonably likely” to unlikely,” to modify the citation from “significant and substantial” to 

not significant and substantial,” and to reduce the penalty to $300.00. 

Citation No. 8089456 was issued to the Respondent on November 4, 2009 and alleged a 

violation of 30 C.F.R. § 75.370(a:(1: and 104(a: of the Act, 30 U.S.C. § 814(a:. The Secretary 

determined that the violation was unlikely to cause an injury; that an injury from the cited 

condition could reasonably be expected to result in lost workdays or restricted duty; that the 

violation was not significant and substantial; that ten persons were affected; and that the 

operator’s conduct in the violation demonstrated a moderate degree of negligence. The Secretary 

assessed a penalty of $392.00. The Respondent contends that the level of negligence alleged is 

excessive, and states that at hearing it would present evidence that the alleged reverse in the 

direction of airflow had resulted, unbeknownst to mine management, from recent adjustments to 

the ventilation controls that accompanied a move to a new section and simply had not yet been 

corrected. In light of the contested evidence, the Secretary has agreed to modify the negligence 

from “moderate” to “low,” and to reduce the penalty to $250.00. 

Citation No. 8089458 was issued to the Respondent on November 4, 2009 and alleged a 

violation of 30 C.F.R. § 75.1502 and 104(a: of the Act, 30 U.S.C. § 814(a:. The Secretary 

determined that the violation was unlikely to cause an injury; that an injury from the cited 

condition could reasonably be expected to result in lost workdays or restricted duty; that the 

violation was not significant and substantial; that ten persons were affected; and that the 

operator’s conduct in the violation demonstrated a moderate degree of negligence. The Secretary 

assessed a penalty of $392.00. The Respondent contends that the level of negligence alleged is 

excessive, and states that at hearing it would present evidence that the alleged condition -- 

inadequate volume of the automatic fire sensor and warning device system -- had not existed 

during the most recent weekly examination. The parties agree that this citation will remain as 

issued with no modifications, but in light of the contested evidence, the Secretary has agreed to 

reduce the penalty to $325. 

Citation No. 8089459 was issued to the Respondent on November 6, 2009 and alleged a 

violation of 30 C.F.R. § 75.517 and 104(a: of the Act, 30 U.S.C. § 814(a:. The Secretary 

determined that the violation was reasonably likely to cause an injury; that an injury from the 

cited condition could reasonably be expected to result in lost workdays or restricted duty; that the 

violation was significant and substantial; that one person was affected; and that the operator’s 

conduct in the violation demonstrated a moderate degree of negligence. The Secretary assessed 

a penalty of $499.00. The Respondent contends that the level of negligence alleged is excessive, 

and states that at hearing it would present evidence that the alleged condition -- damaged outer 

jackets of cables -- did not exist at the time of the last weekly examination and that the cable’s 

ground fault wire was working properly. In light of the contested evidence, the Secretary has 

agreed to modify the negligence from “moderate” to “low,” and to reduce the penalty to $300.00. 

36 FMSHRC Page 1521
Citation/Order No. Assessment Amount Settlement Amount

8089450 $499.00 $275.00

8089451 $540.00 $475.00

8089453 $285.00 $100.00

8071617 $285.00 $285.00

8089455 $499.00 $300.00

8089456 $392.00 $250.00

8089458 $392.00 $325.00

8089459 $499.00 $300.00

Totals $3,391.00 $2,310.00

2. The proposed penalty amounts are reasonable given the circumstances 

surrounding the violations. 

3. The criteria set forth at Section 110(i: of the Act have been considered and the 

penalties are appropriate in light of these criteria and promote the purposes of the Act. The 

gravity of the violations and the operator’s alleged negligence are set forth above. The violations 

were abated in good faith. Information pertaining to the operator’s history of previous violations 

and size are contained in Exhibit A which was filed by the Secretary along with the petition in 

this matter. Payment of the proposed penalties will not adversely affect the operator's ability to 

continue in business. 

4. Each party agrees to bear its own attorney’s fees, costs and other expenses 

incurred by such party in connection with any stage of the above-referenced proceeding 

including but not limited to, attorney’s fees and costs which may be available under the Equal 

Access to Justice Act, as amended. 

 5. Within 30 days of the date of this Order, Respondent shall send a check in the amount 

of $2,310.00, made payable to “U.S. Department of Labor/MSHA” to P.O. Box 790390, St. 

Louis, MO 63179-0390. 

 /s/ William B. Moran

 William B. Moran 

 Administrative Law Judge 

 

36 FMSHRC Page 1522
Distribution: 

Matthew D. Ross, Esq., MSHA Litigation Backlog Project, Office of the Solicitor, U.S. 

Department of Labor, 1100 Wilson Blvd., 22nd Floor, Arlington, VA 22209-2247 

ross.matthew@dol.gov 

Kelby T. Gray, Esq., Dinsmore & Shohl LLP, PO Box 11887, Charleston, WV 25339 

kelby.gray@dinsmore.com 

Distribution: 

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

8th Floor, Chicago, IL 60604 

Gary Broadbent, Esq., Murray Energy Corporation, 46226 National Road, St. Clairsville, OH 

43950 

/cts 

36 FMSHRC Page 1523