i 

October 2020 

TABLE OF CONTENTS 

COMMISSION ORDERS 

10-02-20 BEE B&B, LLC and RELIANT 

CONTRACTING, LLC and PASCO 

SERVICES, LLC 

KENT 2018-0276 Page 729 

10-02-20 BLACKJEWEL, LLC KENT 2018-0316 Page 732

10-14-20 BEDROCK QUARRY, LLC CENT 2019-0270-M Page 736

10-14-20 ARCELORMITTAL MINORCA 

MINE INC. 

LAKE 2020-0006-M Page 738

10-14-20 A-POSITIVE ELECTRIC CO., INC. PENN 2019-0105 Page 740

10-14-20 AMES CONSTRUCTION, INC. WEST 2019-0353 Page 743

10-14-20 BARRICK CORTEZ INC. WEST 2020-0080-M Page 746

10-14-20 AMERICAN ROCK SALT 

COMPANY LLC 

YORK 2019-0068-M Page 748

10-19-20 MID-ILLINOIS QUARRY, LLC LAKE 2019-0256 Page 750

10-19-20 MILESTONE MATERIALS 

DIVISION OF MATHY 

CONSTRUCTION 

LAKE 2019-0360 Page 753

10-19-20 MOUNTAIN COAL COMPANY, 

LLC 

WEST 2019-0339 Page 756
ii 

10-19-20 METTIKI COAL WV, LLC WEVA 2019-0392 Page 758

10-19-20 MEADOWS STONE & PAVING, 

INC. 

WEVA 2020-0057-M Page 761

10-19-20 MARFORK COAL COMPANY, LLC WEVA 2020-0195 Page 764

10-20-20 AMERICAN SAND CO. LLC SE 2019-0207 Page 767

10-20-20 WARRIOR MET COAL MINING, 

LLC 

SE 2020-0143 Page 770

10-20-20 VICTORY ROCK TEXAS, LLC WEST 2020-0090-M Page 774

10-20-20 RAW COAL MINING CO., INC. WEVA 2020-0162 Page 777

10-20-20 MARION COUNTY COAL 

COMPANY 

WEVA 2020-0178 Page 781

10-23-20 VICTORY ROCK TEXAS, LLC CENT 2020-0105-M Page 785

10-23-20 PINTO VALLEY MINING CORP. WEST 2019-0516 Page 789

10-23-20 ROCKWELL MINING, LLC WEVA 2019-0479 Page 793

10-23-20 ROCKWELL MINING, LLC WEVA 2020-0150 Page 796

10-26-20 PROSPECT MINING AND 

DEVELOPMENT COMPANY, INC. 

SE 2016-0193 Page 800

10-29-20 THEODORE OESAU v. ROGERS 

GROUP, INC. 

CENT 2019-0276-DM Page 802
iii 

ADMINISTRATIVE LAW JUDGE DECISIONS 

10-20-20 PEABODY SOUTHEAST MINING, 

LLC 

SE 2019-0075 Page 805

10-21-20 CONSOL PENNSYLVANIA COAL 

CO., LLC 

PENN 2019-0100 Page 834
iv 

No review was granted or denied during the month of October 2020.
COMMISSION ORDERS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

October 2, 2020 

BEFORE: Rajkovich, Chairman; Althen and Traynor, Commissioners 

ORDER

BY THE COMMISSION: 

A representative of Blackjewel, LLC (“Blackjewel”) has filed motions to reopen four 

penalty assessment proceedings and to relieve the operators in those proceedings from Default 

Orders issued to Bee B&B, LLC (“Bee B&B”) (KENT 2018-0276 and 2018-0327), Reliant 

Contracting, LLC (“Reliant”)(KENT 2018-0334), and Pasco Services, LLC (“Pasco”)(VA 2018-

0142)1

 in the above-captioned case. 

Between September 18 and October 16, 2018, the Chief Administrative Law Judge issued 

Orders to Show Cause in response the operators’ perceived failure to answer the Secretary of 

Labor’s Petitions for Assessment of Civil Penalty in these four dockets. By their terms, the 

Orders to Show Cause were deemed Default Orders between October 19 and December 4, 2018, 

when it appeared that the operators had not filed answers within 15 days. 

As a threshold matter, the motions do not make clear the relationship between 

Blackjewel, its representative, Mr. Jacobs, and the three operators whose motions are addressed 

1

 The four motions addressed in this order were filed by the same operator and rely upon 

the same rationale and common facts as a basis for re-opening. For the limited purpose of 

addressing these motions to reopen, we hereby consolidate these four dockets, which involve 

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

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. 

BEE B&B, LLC 

and 

RELIANT CONTRACTING, LLC 

 and 

PASCO SERVICES, LLC 

Docket No. KENT 2018-0276 

A.C. No. 15-15215-462060

Docket No. KENT 2018-0327 

A.C. No. 15-15215-466282

Docket No. KENT 2018-0334 

A.C. No. 15-16855-583

Docket No. VA 2018-0142 

A.C. No. 44-03088-467377

42 FMSHRC Page 729
in this order. If Mr. Jacobs is an owner, partner, officer, or employee of the operators, he is 

permitted to represent them pursuant to Commission Procedural Rule 3(b)(3). If not, he may be 

permitted to represent the operators with the permission of the Commission, pursuant to 

Commission Procedural Rule 3(b)(4). 

 The Secretary has not opposed reopening, and the context suggests there may be an 

ongoing relationship among these parties, Mr. Jacobs, and Blackjewel. But we were given no 

facts supporting that relationship when the motions were filed. We therefore grant the motions to 

reopen conditionally, and we direct either Mr. Jacobs or the parties themselves to file a motion 

explaining the relationship between Mr. Jacobs and the operators named in this order and 

seeking permission to have Mr. Jacobs represent the operators in reopening the motions.2

 

 Permission shall be granted retroactively to the dates the original motions were filed, 

unless the Secretary objects and he demonstrates that permitting said representation would be 

improper.3

 If the motion directed by this order is not filed within 30 days, our conditional grant 

will lapse and these motions to reopen will be deemed denied with prejudice.4 

/s/ Marco M. Rajkovich, Jr. 

 Marco M. Rajkovich, Jr., Chairman 

/s/ William I. Althen 

William I. Althen, Commissioner 

/s/ Arthur R. Traynor, III 

Arthur R. Traynor, III, Commissioner 

2

 If Mr. Jacobs is an owner, officer, partner, or employee of any or all of the operators, a 

simple explanation of that relationship will be sufficient, without a motion for permission to 

represent any operators he would be permitted to represent under Commission Procedural Rule 

3. 

3

 There is an additional problem in KENT 2018-0276. Bee B&B paid the penalty in that 

docket in full on the same day the motion to reopen it was filed. Any motion made in response to 

this order must thus explain why this motion is not moot. 

4

 Because more than one year has elapsed since the orders in these matters became final, 

a new or amended motion that does not address the representation issue will be denied as timely. 

See Fed. R. Civ. P. 60(c)(1). 

42 FMSHRC Page 730
Distribution (by e-mail): 

Joseph G. Jacobs 

Representative 

Blackjewel, L.L.C. 

joe.jacobs@blackjewel.us 

Emily Toler Scott, Esq. 

Office of the Solicitor 

Scott.Emily.T@dol.gov 

Chief Administrative Law Judge Glenn Voisin 

Federal Mine Safety & Health Review Commission 

GVoisin@fmshrc.gov 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

Garris.Melanie@DOL.GOV 

 

42 FMSHRC Page 731
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

October 2, 2020

BEFORE: Rajkovich, Chairman; Althen and Traynor, 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”). 1 On January 16, 2019, the Commission received from 

Blackjewel, LLC (“Blackjewel”) a “request to reopen” a penalty assessment proceeding and 

relieve it from the Default Order entered against it. Similar motions were filed in the other 13 

dockets subject to this order. 

Default was entered against the operator in each of these dockets after the Chief 

Administrative Law Judge issued an Order to Show Cause in response to Blackjewel’s perceived 

failure to answer the Secretary of Labor’s Petition for Assessment of Civil Penalty. By their 

terms, each of the Orders to Show Cause was deemed a Default Order when it appeared that the 

operator had not filed an answer within 15 days.2 

Blackjewel’s motions assert that it had failed to answer the Secretary’s petitions or to 

timely respond to the Show Cause Orders because an employee abruptly left the company. The 

operator’s representative states that he was working on a global settlement agreement of many 

other matters with representatives of the Secretary on March 28 and 29, 2019, when the 

Secretary’s personnel informed him that several of the company’s dockets were in default.3

 The

1

 This operator filed a similar motion, relying upon the same reason as a basis for reopening and stating other common facts, in nine other dockets. For the limited purpose of 

addressing these motions to reopen, we hereby consolidate docket numbers KENT 2018-0316 

and VA 2018-0109, -0130, -0150, -0147, -0151,-0153,-0154,-0155, and -0162, involving similar 

procedural issues. 29 C.F.R. §2700.12. 

2

 The operator did file an untimely answer to the penalty petition in the lead, captioned 

case on November 23, 2018, after the effective date of default imposed by the Chief ALJ’s Show 

Cause Order. 

3

 Each motion to reopen a docket subject to this order recites the same general factual 

circumstances. 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. 

BLACKJEWEL, LLC 

Docket No. KENT 2018-0316 

A.C. No. 000475063

42 FMSHRC Page 732
representative promptly filed separate motions to reopen each of the cases between April 4 and 8, 

2019. 

 The Secretary has filed with the Commission a response to each of the operator’s 

motions and does not oppose the operator’s motion to reopen any of the cases addressed by this 

order. 

 The Judge’s jurisdiction in these matters terminated when the defaults 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 Commission. 

30 U.S.C. § 823(d)(1). Consequently, the Judge’s order in each of these cases has become a final 

decision of the Commission. 

 

42 FMSHRC Page 733
 The operator filed promptly after the operator became aware of the defaults. The operator 

asserts a single, common excuse for all of these defaults.4 Having considered the operator’s 

motion and the Secretary’s response not opposing reopening , we find the general excuse 

sufficient to establish excusable neglect. In the interest of justice, we therefore reopen these 13 

dockets and remand them to the Chief Administrative Law Judge for assignment. However, the 

operator should be aware that failure to attend to its responsibilities under the Act or to explain 

them more thoroughly in the future may result in denial of subsequent motions. 

/s/ Marco M. Rajkovich, Jr. 

 Marco M. Rajkovich, Jr., Chairman 

/s/ William I. Althen 

William I. Althen, Commissioner 

/s/ Arthur R. Traynor, III 

Arthur R. Traynor, III, Commissioner 

4

The operator has two additional pending defaults, KENT 2018-0354 and VA 2018-

0019, that vary factually and procedurally from the issues in this case, and are therefore being 

addressed in separate Commission orders. The operator’s representative also filed four motions 

on behalf of three other operators, each reciting the same basis for re-opening. Those are also 

being addressed in separate orders. 

42 FMSHRC Page 734
Distribution (by e-mail): 

Joseph G. Jacobs 

Representative 

Blackjewel, L.L.C. 

joe.jacobs@blackjewel.us 

Emily Toler Scott, Esq. 

Office of the Solicitor 

Scott.Emily.T@dol.gov 

Chief Administrative Law Judge Glenn Voisin 

Federal Mine Safety & Health Review Commission 

GVoisin@fmshrc.gov 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

Garris.Melanie@DOL.GOV 

42 FMSHRC Page 735
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

October 14, 2020 

BEFORE: Rajkovich, Chairman; Althen and Traynor, 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. (2018) (“Mine Act”). The Commission has received a motion from the operator 

seeking to reopen a penalty assessment which had become a final order of the Commission 

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

that he does not oppose the motion. 

Having reviewed movant’s unopposed motion to reopen, we 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. 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/ Marco M. Rajkovich, Jr. 

 Marco M. Rajkovich, Jr., Chairman 

/s/ William I. Althen 

William I. Althen, Commissioner 

/s/ Arthur R. Traynor, III 

Arthur R. Traynor, III, Commissioner

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 v. 

BEDROCK QUARRY, LLC 

 

Docket No. CENT 2019-0270-M 

A.C. No. 23-02324-486389 

42 FMSHRC Page 736
Distribution (e-mail): 

Ryan D. Seelke 

Attorney for The Bedrock Company 

14146 County Road 4080 

Rolla, MO 65401 

rseelke@gmail.com 

Emily Scott, Esq. 

Office of the Solicitor 

Scott.Emily.T@dol.gov 

Chief Administrative Law Judge Glenn Voisin 

Federal Mine Safety & Health Review Commission 

GVoisin@fmshrc.gov 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

Garris.Melanie@DOL.GOV 

42 FMSHRC Page 737
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

October 14, 2020 

BEFORE: Rajkovich, Chairman; Althen and Traynor, 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. (2018) (“Mine Act”). The Commission has received a motion from the operator 

seeking to reopen a penalty assessment which had become a final order of the Commission 

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

that he does not oppose the motion. 

Having reviewed movant’s unopposed motion to reopen, we 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. 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/ Marco M. Rajkovich, Jr. 

 Marco M. Rajkovich, Jr., Chairman 

/s/ William I. Althen 

William I. Althen, Commissioner 

/s/ Arthur R. Traynor, III 

Arthur R. Traynor, III, Commissioner

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 v. 

ARCELORMITTAL MINORCA MINE 

 INC. 

 

Docket No. LAKE 2020-0006-M 

A.C. No. 21-02449-494501 

42 FMSHRC Page 738
Distribution (e-mail): 

Adele L. Abrams, Esq., CMSP 

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

4740 Corridor Place, Suite D 

Beltsville, MD 20705 

safetylawyer@gmail.com 

Emily Scott, Esq. 

Office of the Solicitor 

Scott.Emily.T@dol.gov 

Chief Administrative Law Judge Glenn Voisin 

Federal Mine Safety & Health Review Commission 

GVoisin@fmshrc.gov 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

Garris.Melanie@DOL.GOV 

42 FMSHRC Page 739
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

October 14, 2020 

BEFORE: Rajkovich, Chairman; Althen and Traynor, 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. (2018) (“Mine Act”). On September 30, 2019, the Commission received from APositive Electric Co., Inc. (“A-Positive”) a motion seeking to reopen a penalty assessment 

proceeding and relieve it from the Default Order entered against it. 

 On August 28, 2019, the then-Acting Chief Administrative Law Judge issued an Order to 

Show Cause in response to A-Positive’s perceived failure to answer the Secretary of Labor’s 

June 27, 2019 Petition for Assessment of Civil Penalty. By its terms, the Order to Show Cause 

was deemed a Default Order on September 18, 2019, when it appeared that the operator had not 

filed an answer within 20 days. 

A-Positive asserts that it responded to the Order to Show Cause but its response was 

returned to it due to an incorrect address. The Secretary does not oppose the request to reopen, 

but requests that A-Positive, having contested the penalty at issue, take its further obligations 

seriously. 

 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 Commission. 

30 U.S.C. § 823(d)(1). Consequently, the Judge’s order here has become a final decision of the 

Commission. 

 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 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 v. 

A-POSITIVE ELECTRIC CO., INC. 

Docket No. PENN 2019-0105 

A.C. No. 36-07416-491552-MFH 

42 FMSHRC Page 740
be guided so far as practicable by the Federal Rules of Civil Procedure”); Jim Walter Res., Inc., 

15 FMSHRC 782, 786-89 (May 1993). 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 will be permitted. See Coal 

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

 Having reviewed A-Positive’s request and the Secretary’s response, we find that APositive’s request to reopen so soon after the due date to respond to the Order to Show Cause 

merits reopening of the case. In the interest of justice, we hereby reopen the proceeding and 

vacate the Default Order. Accordingly, this case is remanded 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. 

/s/ Marco M. Rajkovich, Jr. 

 Marco M. Rajkovich, Jr., Chairman 

 /s/ William I. Althen 

 William I. Althen, Commissioner 

 /s/ Arthur R. Traynor, III 

Arthur R. Traynor, III, Commissioner 

 

42 FMSHRC Page 741
Distribution (e-mail): 

Thomas P. Schilinski 

A-Positive Electric Co., Inc. 

1953 Smith Township State Road 

PO Box 466 

Slovan, PA 15078 

Emily Scott, Esq. 

Office of the Solicitor 

Scott.Emily.T@dol.gov 

Chief Administrative Law Judge Glenn Voisin 

Federal Mine Safety & Health Review Commission 

GVoisin@fmshrc.gov 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

Garris.Melanie@DOL.GOV 

42 FMSHRC Page 742
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

October 14, 2020 

BEFORE: Rajkovich, Chairman; Althen and Traynor, 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. (2018) (“Mine Act”). On November 4, 2019, the Commission received from Ames 

Construction, Inc. (“Ames”) a motion seeking to reopen a penalty assessment proceeding and 

relieve it from the Default Order entered against it. 

 On October 8, 2019, the Chief Administrative Law Judge issued an Order to Show Cause 

in response to Ames’ perceived failure to answer the Secretary of Labor’s July 15, 2019 Petition 

for Assessment of Civil Penalty. By its terms, the Order to Show Cause was deemed a Default 

Order on October 29, 2019, when it appeared that the operator had not filed an answer within 20 

days. 

Ames asserts that it never received the Order to Show Cause. The Secretary does not 

oppose the request to reopen, but requests that Ames, having contested the penalty at issue, take 

its further obligations seriously. 

 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 Commission. 

30 U.S.C. § 823(d)(1). Consequently, the Judge’s order here has become a final decision of the 

Commission. 

 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”); Jim Walter Res., Inc., 

15 FMSHRC 782, 786-89 (May 1993). We have also observed that default is a harsh remedy and 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 v. 

AMES CONSTRUCTION, INC. 

Docket No. WEST 2019-0353 

A.C. No. 04-04674-491494 

42 FMSHRC Page 743
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 will be permitted. See Coal 

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

Having reviewed Ames’ request and the Secretary’s response, we find that Ames’ request 

to reopen so soon after the due date to respond to the Order to Show Cause merits reopening of 

the case. In the interest of justice, we hereby reopen the proceeding and vacate the Default Order. 

Accordingly, this case is remanded 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. 

/s/ Marco M. Rajkovich, Jr. 

Marco M. Rajkovich, Jr., Chairman 

/s/ William I. Althen 

William I. Althen, Commissioner 

/s/ Arthur R. Traynor, III 

Arthur R. Traynor, III, Commissioner 

42 FMSHRC Page 744
Distribution (e-mail): 

Jeff Klante 

California Area Safety Manager 

391 N. Main Street, Suite 302 

Corona, CA 92880 

jeffklante@amesco.com 

Emily Scott, Esq. 

Office of the Solicitor 

Scott.Emily.T@dol.gov 

Chief Administrative Law Judge Glenn Voisin 

Federal Mine Safety & Health Review Commission 

GVoisin@fmshrc.gov 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

Garris.Melanie@DOL.GOV 

42 FMSHRC Page 745
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

October 14, 2020 

BEFORE: Rajkovich, Chairman; Althen and Traynor, 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. (2018) (“Mine Act”). The Commission has received a motion from the operator 

seeking to reopen a penalty assessment which had become a final order of the Commission 

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

that he does not oppose the motion. 

Having reviewed movant’s unopposed motion to reopen, we 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. 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/ Marco M. Rajkovich, Jr. 

 Marco M. Rajkovich, Jr., Chairman 

/s/ William I. Althen 

William I. Althen, Commissioner 

/s/ Arthur R. Traynor, III 

Arthur R. Traynor, III, Commissioner 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 v. 

BARRICK CORTEZ INC. 

 

Docket No. WEST 2020-0080-M 

A.C. No. 26-00827-498902 

42 FMSHRC Page 746
Distribution (e-mail): 

William K. Doran 

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

1909 K Street, N.W., Suite 1000 

Washington, DC 20006 

William.Doran@ogletreedeakins.com 

Emily Scott, Esq. 

Office of the Solicitor 

Scott.Emily.T@dol.gov 

Chief Administrative Law Judge Glenn Voisin 

Federal Mine Safety & Health Review Commission 

GVoisin@fmshrc.gov 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

Garris.Melanie@DOL.GOV 

42 FMSHRC Page 747
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

October 14, 2020 

BEFORE: Rajkovich, Chairman; Althen and Traynor, 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. (2018) (“Mine Act”). The Commission has received a motion from the operator 

seeking to reopen a penalty assessment which had become a final order of the Commission 

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

that he does not oppose the motion. 

Having reviewed movant’s unopposed motion to reopen, we 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. 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/ Marco M. Rajkovich, Jr. 

 Marco M. Rajkovich, Jr., Chairman 

/s/ William I. Althen 

William I. Althen, Commissioner 

/s/ Arthur R. Traynor, III 

Arthur R. Traynor, III, Commissioner

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 v. 

AMERICAN ROCK SALT COMPANY 

 LLC 

 

Docket No. YORK 2019-0068-M 

A.C. No. 30-03255-484824 

42 FMSHRC Page 748
Distribution (e-mail): 

Thomas A. DeSimon 

Harris Beach PLLC 

99 Garnsey Road 

Pittsford, NY 14534 

tdesimon@harrisbeach.com 

Emily Scott, Esq. 

Office of the Solicitor 

Scott.Emily.T@dol.gov 

Chief Administrative Law Judge Glenn Voisin 

Federal Mine Safety & Health Review Commission 

GVoisin@fmshrc.gov 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

Garris.Melanie@DOL.GOV 

42 FMSHRC Page 749
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710

October 19, 2020 

BEFORE: Rajkovich, Chairman; Althen and Traynor, Commissioners

 

ORDER

BY THE COMMISSION: 

 

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

801 et seq. (2012) (“Mine Act”). On May 21, 2019, the Commission received from Mid-Illinois 

Quarry (“Mid-Illinois”) 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). 

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

(“MSHA”) indicate that the proposed assessment was delivered on February 8, 2019, and 

became a final order of the Commission on March 11, 2019. Mid-Illinois asserts that the notice 

of contest was timely sent on March 3, 2019. (Although the operator has not provided proof of 

mailing, records show that MSHA processed payment for the uncontested citations in the same 

assessment a few days later on March 8, 2019.) However, the operator received a delinquency 

notification on May 14, 2019, indicating that MSHA had not received the notice of contest. After 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 v. 

MID-ILLINOIS QUARRY, LLC 

Docket No. LAKE 2019-0256 

A.C. No. 11-00098-482588 

42 FMSHRC Page 750
contacting the phone number provided on the delinquency letter, Mid-Illinois filed a motion to 

reopen on May 21, 2019. Mid-Illinois posits that MSHA did not receive the initial notice of 

contest due to postal service delays, noting that the delinquency letter (dated April 25) had taken 

over two weeks to arrive. The Secretary does not oppose the request to reopen, but urges the 

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

Having reviewed Mid-Illinois’ motion and the Secretary’s response, we find that the 

operator has sufficiently explained its failure to timely contest the citations at issue as the result 

of inadvertence, mistake, and excusable neglect. Mid-Illinois apparently attempted to timely file 

the notice of contest, and filed a motion to reopen within a week of learning that the notice of 

contest had not been received. We note that this is a pro se operator with no history of defaults or 

motions to reopen in the past 24 months, and that the Secretary does not oppose reopening or 

dispute the explanation offered by the operator. 

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/ Marco M. Rajkovich, Jr. 

Marco M. Rajkovich, Jr., Chairman 

/s/ William I. Althen 

William I. Althen, Commissioner 

/s/ Arthur R. Traynor, III 

Arthur R. Traynor, III, Commissioner 

42 FMSHRC Page 751
Distribution: 

Charles Heuerman 

Member Manager 

Mid-Illinois Quarry LLC 

chgravel@yahoo.com 

Emily Scott, Esq. 

Office of the Solicitor 

Scott.Emily.T@dol.gov 

Chief Administrative Law Judge Glenn Voisin 

Federal Mine Safety & Health Review Commission 

GVoisin@fmshrc.gov 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

Garris.Melanie@DOL.GOV 

42 FMSHRC Page 752
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710

October 19, 2020 

BEFORE: Rajkovich, Chairman; Althen and Traynor, 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 16, 2020, the Commission received from Milestone 

Materials Division of Mathy Construction (“Milestone”) a motion seeking to reopen a penalty 

assessment proceeding and relieve it from the Default Order entered against it. 

On December 9, 2019, the Chief Administrative Law Judge issued an Order to Show 

Cause in response to Milestone’s perceived failure to answer the Secretary of Labor’s October 8, 

2019, Petition for Assessment of Civil Penalty. By its terms, the Order to Show Cause was 

deemed a Default Order on December 30, 2019, when it appeared that the operator had not filed 

an answer within 30 days. 

Milestone filed an answer one day after the Order became final. Milestone asserts that the 

answer was inadvertently filed late because counsel was out of the office for the two weeks 

following the issuance of the Show Cause Order. Counsel became aware of the Order upon his 

return to the office on December 31, and promptly filed an answer.1 The Secretary does not 

oppose the request to reopen, but urges the operator to take all steps necessary to ensure that 

future penalty assessments the operator wishes to contest are contested in a timely manner, and 

that such contests are properly filed. 

1

 Milestone alternatively asserts that the penalty contest was timely filed, noting that the 

Order to Show Cause was sent by certified mail and that “[w]hen a party serves a pleading by a 

method of delivery resulting in other than same-day service, the due date for party action in 

response is extended 5 additional calendar days.” 29 C.F.R. § 2700.8(b). However, as indicated 

by the plain language, this extension applies only to responses to party filings, not responses to 

orders issued by Commission Judges. 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. 

MILESTONE MATERIALS DIVISION 

 OF MATHY CONSTRUCTION 

Docket No. LAKE 2019-0360 

A.C. No. 47-03449-497534

42 FMSHRC Page 753
 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 Commission. 

30 U.S.C. § 823(d)(1). Consequently, the Judge’s order here has become a final decision of the 

Commission. 

 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”); Jim Walter Res., Inc., 

15 FMSHRC 782, 786-89 (May 1993). 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 will be permitted. See Coal 

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

 

 Having reviewed Milestone’s request and the Secretary’s response, we find the operator’s 

answer was untimely due to an internal delay in processing the Order to Show Cause, i.e., an 

administrative mistake. To prevent repetition of such a mistake, however, procedures should be 

put in place to ensure that future orders are timely received and processed even when counsel of 

record is unavailable. 

In the interest of justice, we hereby reopen the proceeding and vacate the Default Order. 

Accordingly, this case is remanded 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. 

/s/ Marco M. Rajkovich, Jr. 

 Marco M. Rajkovich, Jr., Chairman 

 /s/ William I. Althen 

 William I. Althen, Commissioner 

 /s/ Arthur R. Traynor, III 

Arthur R. Traynor, III, Commissioner 

42 FMSHRC Page 754
Distribution (e-mail): 

Josh Schultz, Esq. 

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

jschultz@aabramslaw.com 

Emily Scott, Esq. 

Office of the Solicitor 

Scott.Emily.T@dol.gov 

Chief Administrative Law Judge Glenn Voisin 

Federal Mine Safety & Health Review Commission 

GVoisin@fmshrc.gov 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

Garris.Melanie@DOL.GOV 

42 FMSHRC Page 755
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

October 19, 2020 

BEFORE: Rajkovich, Chairman; Althen and Traynor, Commissioners 

ORDER

BY THE COMMISSION: 

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

801 et seq. (2012) (“Mine Act”). On June 3, 2019, the Commission received from Mountain 

Coal Company (“Mountain Coal”) a motion to reopen the above-captioned case. Mountain Coal 

thereafter requested to withdraw its motion. 

 We hereby grant Mountain Coal Company’s motion to withdraw in Docket No. WEST 

2019-0339. Accordingly, this case is dismissed. 

/s/ Marco M. Rajkovich, Jr. 

 Marco M. Rajkovich, Jr., Chairman 

 /s/ William I. Althen 

 William I. Althen, Commissioner 

 /s/ Arthur R. Traynor, III 

Arthur R. Traynor, III, Commissioner 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 v. 

MOUNTAIN COAL COMPANY, LLC 

 

Docket No. WEST 2019-0339 

A.C. No. 05-03672-486546 

42 FMSHRC Page 756
Distribution (e-mail): 

Christopher G. Peterson 

Fisher & Phillips LLP 

cpeterson@fisherphillips.com 

Emily Scott, Esq. 

Office of the Solicitor 

Scott.Emily.T@dol.gov 

Chief Administrative Law Judge Glenn Voisin 

Federal Mine Safety & Health Review Commission 

GVoisin@fmshrc.gov 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

Garris.Melanie@DOL.GOV 

42 FMSHRC Page 757
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

October 19, 2020 

BEFORE: Rajkovich, Chairman; Althen and Traynor, 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 12, 2019, the Commission received from Mettiki Coal 

WV, LLC (“Mettiki”) 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). 

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

(“MSHA”) indicate that the proposed assessment was delivered on January 15, 2019, and 

became a final order of the Commission on February 14, 2019. Mettiki asserts that the operator’s 

safety director, who had only recently taken on the position, sent the notice of contest to 

Mettiki’s parent company on or about January 17, 2019. He assumed that the notice of contest 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 v. 

METTIKI COAL WV, LLC 

 

Docket No. WEVA 2019-0392 

A.C. No. 46-09028-481238 

42 FMSHRC Page 758
would be forwarded to MSHA, and was unaware that the parent company required authorization 

to act on Mettiki’s behalf. The safety director learned that the notice of contest had not been 

properly filed upon receiving a delinquency notice, on or about April 8, 2019. Mettiki asserts that 

steps have been taken to ensure that such an error will not recur. The Secretary does not oppose 

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

are timely filed. 

 Having reviewed Mettiki’s request and the Secretary’s response, we find that the mistake 

in this instance was the result of a new safety director’s unfamiliarity with internal protocols, and 

is unlikely to be repeated. 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/ Marco M. Rajkovich, Jr. 

 Marco M. Rajkovich, Jr., Chairman 

 /s/ William I. Althen 

 William I. Althen, Commissioner 

 /s/ Arthur R. Traynor, III 

Arthur R. Traynor, III, Commissioner 

 

42 FMSHRC Page 759
Distribution: 

Tyler H. Fields, Esq. 

Corporate Counsel 

Mettiki Coal WV, LLC 

Tyler.fields@arlp.com 

Emily Scott, Esq. 

Office of the Solicitor 

Scott.Emily.T@dol.gov 

Chief Administrative Law Judge Glenn Voisin 

Federal Mine Safety & Health Review Commission 

GVoisin@fmshrc.gov 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

Garris.Melanie@DOL.GOV 

42 FMSHRC Page 760
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

October 19, 2020 

BEFORE: Rajkovich, Chairman; Althen and Traynor, 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 October 18, 2019, the Commission received from Meadows 

Stone & Paving, Inc. (“Meadows Stone”) 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). 

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

(“MSHA”) indicate that the proposed assessment was delivered on April 10, 2019, and became a 

final order of the Commission on May 10, 2019. Meadows Stone asserts that the notice of 

contest was timely mailed on April 24, 2019, but was not received by MSHA’s Civil Penalty and 

Compliance Office in Arlington, Virginia. A check for payment of the uncontested penalties was 

mailed at the same time to MSHA’s address for payment processing in St. Louis, Missouri. The

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 v. 

MEADOWS STONE & PAVING, INC. 

 

Docket No. WEVA 2020-0057-M 

A.C. No. 46-04694-486291 

42 FMSHRC Page 761
Secretary’s records indicate that the notice of contest was improperly mailed with the check to 

the St. Louis address, rather than the Civil Penalty and Compliance Office.1 The Secretary does 

not oppose the request to reopen, but urges the operator to take steps to ensure that future penalty 

contests are timely filed, and are sent to MSHA’s Civil Penalty Compliance Office at the address 

stated in the proposed penalty assessment. 

Having reviewed Meadows Stone’s motion and the Secretary’s response, we find that the 

delay in this instance arose from a mistake in mailing the notice of contest to the wrong address. 

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/ Marco M. Rajkovich, Jr. 

 Marco M. Rajkovich, Jr., Chairman 

 /s/ William I. Althen 

 William I. Althen, Commissioner 

 /s/ Arthur R. Traynor, III 

Arthur R. Traynor, III, Commissioner 

1

 Meadows Stone counters that MSHA must have misplaced the penalty contest, asserting 

that it could not have been improperly mailed to the St. Louis address because the operator did 

not have that address until September. However, the operator successfully mailed the check to 

the St. Louis address in April, at the same time the notice of contest was mailed. 

42 FMSHRC Page 762
Distribution: 

Bernard R. Mauser 

brmauser@justice.com 

Emily Scott, Esq. 

Office of the Solicitor 

Scott.Emily.T@dol.gov 

Chief Administrative Law Judge Glenn Voisin 

Federal Mine Safety & Health Review Commission 

GVoisin@fmshrc.gov 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

Garris.Melanie@DOL.GOV 

42 FMSHRC Page 763
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

October 19, 2020 

BEFORE: Rajkovich, Chairman; Althen and Traynor, 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 January 9 and 10, 2020, the Commission received from 

Marfork Coal Company (“Marfork”) motions seeking to reopen penalty assessments that had 

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

815(a).1

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

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

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

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

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

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

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

reopen final 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).

1

 For the limited purpose of addressing these motions to reopen, we hereby consolidate 

docket numbers WEVA 2020-0195, WEVA 2020-0205 and WEVA 2020-0206 involving similar 

procedural issues. 29 C.F.R. § 2700.12. 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 v. 

MARFORK COAL COMPANY, LLC 

 

Docket No. WEVA 2020-0195 

A.C. No. 46-09091-503553 

Docket No. WEVA 2020-0205 

A.C. No. 46-09212-503556 

 Docket No. WEVA 2020-0206 

A.C. No. 46-09550-503558 

42 FMSHRC Page 764
 Records of the Department of Labor’s Mine Safety and Health Administration 

(“MSHA”) indicate that the proposed assessments were delivered on November 13, 2019, and 

became final orders of the Commission on December 13, 2019. Marfork asserts that the 

employee responsible for processing the notices of contest missed the mailing deadline because 

she was out of the office in early December due to an unforeseen medical issue. Upon her return 

to work, she realized the notices had not been timely filed and contacted counsel. Motions to 

reopen the captioned dockets were then filed within 30 days. The Secretary does not oppose the 

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

timely filed. 

 Having reviewed Marfork’s request and the Secretary’s response, we find that the delay 

in this instance was an excusable mistake arising from unforeseen circumstances. To prevent 

such a mistake from recurring, however, we urge the operator to enact procedures that will 

ensure penalty contests are timely processed even when the normally responsible individual is 

unavailable. 

In the interest of justice, we hereby reopen these matters and remand them 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/ Marco M. Rajkovich, Jr. 

 Marco M. Rajkovich, Jr., Chairman 

 /s/ William I. Althen 

 William I. Althen, Commissioner 

 /s/ Arthur R. Traynor, III 

Arthur R. Traynor, III, Commissioner 

42 FMSHRC Page 765
Distribution: 

Christopher D. Pence, Esq. 

Hardy Pence PLLC 

10 Hale Street, 4th floor 

P.O. Box 2548 

Charleston, WV 25329 

cpence@hardypence.com 

Emily Scott, Esq. 

Office of the Solicitor 

201 12th St. South, Suite 401 

Arlington, VA 22202-5450 

Scott.Emily.T@dol.gov 

April Nelson, Esq. 

Office of the Solicitor 

US Department of Labor 

201 12th St. South, Suite 401 

Arlington, VA 22202-5450 

nelson.april@dol.gov 

Chief Administrative Law Judge Glenn Voisin 

Federal Mine Safety & Health Review Commission 

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

Washington, DC 20004-1710 

GVoisin@fmshrc.gov 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

201 12th Street South, Suite 401 

Arlington, VA 22202 

Garris.Melanie@DOL.GOV 

42 FMSHRC Page 766
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

October 20, 2020 

BEFORE: Rajkovich, Chairman; Althen and Traynor, 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 December 20, 2019, the Commission received from 

American Sand Co. LLC (“American Sand”) a motion seeking to reopen a penalty assessment 

proceeding and relieve it from the Default Order entered against it. 

 

 On October 24, 2019, the Chief Administrative Law Judge issued an Order to Show 

Cause in response to American Sand’s perceived failure to answer the Secretary of Labor’s 

August 23, 2019, Petition for Assessment of Civil Penalty. By its terms, the Order to Show 

Cause was deemed a Default Order on December 16, 2019, when it appeared that the operator 

had not filed an answer within 20 days. 

American Sand asserts that it did not receive the Order to Show Cause because it was 

sent to the wrong address. The Secretary does not oppose the request to reopen. His response 

recites two addresses which might have been proper places of service for the operator’s 

representative, but neither of those is the incorrect address shown on the Order to Show Cause as 

the service address for the order.1

 There is no proof of delivery in the record. 

1

 The incorrect address appears to be the result of a typographical error. 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 v. 

AMERICAN SAND CO. LLC 

 

Docket No. SE 2019-0207 

A.C. No. 40-00798-494965 

42 FMSHRC Page 767
 Having reviewed American Sand’s request, the Secretary’s response, and the record in 

this case, we find that the Order to Show Cause did not result in a final order of default because 

it was never served on the operator. Thus, the operator has not been properly found to be in 

default. Accordingly, the operator’s motion is denied as moot. This case remains open, and is 

remanded 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. 

/s/ Marco M. Rajkovich, Jr. 

 Marco M. Rajkovich, Jr., Chairman 

 /s/ William I. Althen 

 William I. Althen, Commissioner 

 /s/ Arthur R. Traynor, III 

Arthur R. Traynor, III, Commissioner 

 

42 FMSHRC Page 768
Distribution (by e-mail): 

Steven Chambers 

Safety & Compliance Coordinator 

American Sand Company LLC 

steven@claibornehauling.com 

Emily Toler Scott, Esq. 

Office of the Solicitor 

Scott.Emily.T@dol.gov 

Chief Administrative Law Judge Glenn Voisin 

Federal Mine Safety & Health Review Commission 

GVoisin@fmshrc.gov 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

Garris.Melanie@DOL.GOV 

42 FMSHRC Page 769
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

October 20, 2020 

BEFORE: Rajkovich, Chairman; Althen and Traynor, 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 February 28, 2020, the Commission received from Warrior 

Met Coal Mining, LLC (“WMCM”) two motions seeking to reopen penalty assessments that had 

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

815(a).1

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

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

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

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

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

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

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

reopen final 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).

1

 The two motions addressed in this order rely upon the same rationale and common facts 

as a basis for re-opening. For the limited purpose of addressing these motions to reopen, we 

hereby consolidate these dockets, which involve similar procedural issues. 29 C.F.R. §2700.12. 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 v. 

WARRIOR MET COAL MINING, LLC 

 

Docket No. SE 2020-0143 

A.C. No. 01-01247-503726 

Docket No. SE 220-0144 

A.C. No. 01-01401-503727 

42 FMSHRC Page 770
 Records of the Department of Labor’s Mine Safety and Health Administration 

(“MSHA”) indicate that the proposed assessment in SE 2020-0144 was delivered on November 

16, 2019, and became a final order of the Commission on December 18, 2019. MSHA’s records 

show that the proposed assessment in SE 2020-0143 was delivered on November 18, 2019, and 

became a final order on December 18, 2019. 

 The operator’s motions state that it mistakenly mailed the notices of contest in both cases 

to MSHA’s St. Louis office, along with its payment of uncontested penalties, instead of to the 

Civil Penalty Compliance Office. 

 MSHA sent the operator delinquency notices for both assessments on January 31, 2020. 

The operator filed its motions to reopen on February 28. The Secretary does not oppose the 

requests to reopen, but urges the operator to take steps to ensure that future penalty contests are 

timely filed with the proper office. 

 Having reviewed WMCM’s requests and the Secretary’s responses, we find that the 

operator has explained its failure to timely contest the citations at issue as the result of 

inadvertence, mistake, and excusable neglect. The motions were filed promptly after MSHA 

notified the operator of its delinquencies. However, we agree with the Secretary that the operator 

should show greater care in filing contests to citations and orders. In addition to the two motions 

addressed in this order, the operator has filed seven other motions to reopen final orders in the 

past 24 months. The Secretary suggests that he may oppose future motions. Likewise, the 

Commission may deny future motions seeking extraordinary relief from motions that have 

become final. 

42 FMSHRC Page 771
 In the interest of justice, we hereby reopen these matters and remand them 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/ Marco M. Rajkovich, Jr. 

 Marco M. Rajkovich, Jr., Chairman 

 /s/ William I. Althen 

 William I. Althen, Commissioner 

 /s/ Arthur R. Traynor, III 

Arthur R. Traynor, III, Commissioner 

 

42 FMSHRC Page 772
Distribution (by e-mail): 

Guy W. Hensley, Esq. 

Counsel 

Warrior Met Coal, LLC 

guy.hensley@warriormetcoal.com 

Emily Toler Scott, Esq. 

Office of the Solicitor 

Scott.Emily.T@dol.gov 

Chief Administrative Law Judge Glenn Voisin 

Federal Mine Safety & Health Review Commission 

GVoisin@fmshrc.gov 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

Garris.Melanie@DOL.GOV 

42 FMSHRC Page 773
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

October 20, 2020 

BEFORE: Rajkovich, Chairman; Althen and Traynor, 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 November 19, 2019, the Commission received from Victory 

Rock Texas, LLC, (“Victory Rock”) 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). 

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

(“MSHA”) indicate that the proposed assessment was delivered on April 19, 2019, and became a 

final order of the Commission on May 19, 2019. Victory Rock’s motion says that the proposed 

assessment in this matter was delivered after it believed it had successfully contested the citation. 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. 

VICTORY ROCK TEXAS, LLC 

Docket No. WEST 2020-0090-M 

A.C. No. 41-05101-486904

42 FMSHRC Page 774
It says it mistakenly paid the penalty, believing it was due in another case, after receiving 

MSHA’s July 5, 2019, delinquency notice to the operator. 

 The motion includes completed contest and remittance forms, and states that the 

operator’s check for the uncontested penalties was mailed at the same time as its notice of 

contest and was deposited by MSHA. However, the operator does not provide proof of delivery 

of the notice of contest. The Secretary does not oppose the requests to reopen, but urges the 

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

 Having reviewed Victory Rock’s request and the Secretary’s response, we find that the 

operator has sufficiently explained its failure to timely contest the citations at issue as the result 

of inadvertence, mistake, and excusable neglect. The operator states that it was confused about 

the status of its contest, and provides facts that support this contention. This is a pro se operator 

with one other pending motion to reopen and no history of other defaults or motions to reopen in 

the past 24 months. 

 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. 

/s/ Marco M. Rajkovich, Jr. 

 Marco M. Rajkovich, Jr., Chairman 

 /s/ William I. Althen 

 William I. Althen, Commissioner 

 /s/ Arthur R. Traynor, III 

Arthur R. Traynor, III, Commissioner 

42 FMSHRC Page 775
Distribution (by e-mail): 

Scott Cusick 

Director 

Victory Rock Texas, LLC 

scusick@victoryrockusa.com 

Emily Toler Scott, Esq. 

Office of the Solicitor 

Scott.Emily.T@dol.gov 

Chief Administrative Law Judge Glenn Voisin 

Federal Mine Safety & Health Review Commission 

GVoisin@fmshrc.gov 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

Garris.Melanie@DOL.GOV 

42 FMSHRC Page 776
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

October 20, 2020 

BEFORE: Rajkovich, Chairman; Althen and Traynor, 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 December 26, 2019, the Commission received from Raw 

Coal Mining Co., Inc., (“Raw Coal”) two motions seeking to reopen penalty assessments that 

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

U.S.C. § 815(a).1

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

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

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

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

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

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

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

reopen final 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).

1

 The two motions addressed in this order rely upon the same rationale and common facts 

as a basis for re-opening. For the limited purpose of addressing these motions to reopen, we 

hereby consolidate these dockets, which involve similar procedural issues. 29 C.F.R. §2700.12. 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 v. 

RAW COAL MINING CO., INC. 

 

Docket No. WEVA 2020-0162 

A.C. No. 46-0957-503864 

Docket No. WEVA 2020-0163 

A.C. No. 46-06265-503849 

42 FMSHRC Page 777
 Records of the Department of Labor’s Mine Safety and Health Administration 

(“MSHA”) indicate that the proposed assessment was delivered on November 18, 2019, and 

became a final order of the Commission on December 19, 2019. The motions say that the 

contests of the proposed assessments in these matters were both prepared and mailed by regular 

mail in the same envelope on November 21, 2019. The representative says in his motion that he 

discovered that neither case had been recorded as “contested” during a routine search of 

MSHA’s database, and he filed the instant motions to re-open on Dec. 26 – one week after both 

of these assessments had become final orders of the Commission.2

 

 The Secretary does not oppose the requests to reopen, but he rightly characterizes the 

representative’s office procedures as “inadequate,” and urges the operator to take steps to ensure 

that future penalty contests are timely filed. 

 Having reviewed Raw Coal’s requests and the Secretary’s responses, we find that the 

operator has moved promptly for relief. The motion is well-documented and has candidly 

explains the failure to timely contest the citations at issue. The representative is appropriately 

contrite in admitting his error. In light of the pro-active discovery of the error, the swift action 

once the default was noted, the operator’s demonstrated good faith in paying the uncontested 

penalties promptly, and the Secretary’s non-opposition, we find that the motion has demonstrated 

good cause for reopening. However, the operator should heed the Secretary’s admonition against 

the carelessness reflected in this case3 and take seriously its responsibilities under the Act, or 

future motions relying on a similar excuse may be denied. 

 

2

 In support of his motion, the representative also notes that the operator paid part of the 

penalties due in WEVA-2020-0163. MSHA’s records reflect that this payment of $1351 was 

received on November 21, within the 30-day contest period. 

3

 The operator’s representative said he decided not to use certified mail “due to the low 

penalties in the two contested cases.” Leaving aside the fact that a client’s legal matters, once 

entrusted to a party’s representative, are all important and deserving of professional 

management, the penalties in these two dockets totaled more than $7,000. 

42 FMSHRC Page 778
 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/ Marco M. Rajkovich, Jr. 

 Marco M. Rajkovich, Jr., Chairman 

 /s/ William I. Althen 

 William I. Althen, Commissioner 

 /s/ Arthur R. Traynor, III 

Arthur R. Traynor, III, Commissioner 

 

42 FMSHRC Page 779
Distribution (by e-mail): 

James F. Bowman 

Representative 

Raw Coal Mining Co., Inc. 

jimbowman61@hotmail.com 

Emily Toler Scott, Esq. 

Office of the Solicitor 

Scott.Emily.T@dol.gov 

Chief Administrative Law Judge Glenn Voisin 

Federal Mine Safety & Health Review Commission 

GVoisin@fmshrc.gov 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

Garris.Melanie@DOL.GOV 

42 FMSHRC Page 780
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

October 20, 2020 

BEFORE: Rajkovich, Chairman; Althen and Traynor, 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 December 9, 2019, the Commission received from Marion 

County Coal Company (“Marion County Coal”) 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). 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 v. 

MARION COUNTY COAL COMPANY 

 

Docket No. WEVA 2020-0178 

A.C. No. 46-01433-500733 

42 FMSHRC Page 781
 Records of the Department of Labor’s Mine Safety and Health Administration 

(“MSHA”) indicate that the proposed assessment was delivered on October 8, 2019, and became 

a final order of the Commission on November 8, 2019. Marion County Coal’s motion says that it 

mailed an amended notice of contest to MSHA’s payment office in St. Louis, along with the 

payment of uncontested penalties, on October 24.1 It contacted MSHA on November 19 and was 

told the amended notice of contest had not been accepted because it had been mailed to St. 

Louis. The operator immediately mailed the notice of contest to MSHA’s Civil Penalty 

Compliance Office. MSHA sent the operator a delinquency notice on December 23, and the 

operator filed its motion to reopen on January 2, 2020. 

 The Secretary does not oppose the request to reopen. The Secretary’s response notes that 

the operator’s motion claims to have sent notices of contest to St. Louis routinely for 18 months, 

and that the forms were accepted, but he notes that “the proposed assessment clearly provides 

instructions to mail any contest forms to the Civil Penalty Compliance Office, in Arlington, VA, 

for processing.” He urges the operator to take steps to ensure that future assessments are timely 

contested by mailing the forms to the address provided. 

 Having reviewed Marion County Coal’s request and the Secretary’s response, we find 

that the operator has sufficiently explained its failure to timely contest the citations at issue as the 

result of mistake, inadvertence, and excusable neglect. We therefore find it unnecessary to 

address the operator’s suggestion that submitting the amended contest form to MSHA might be 

sufficient to confer jurisdiction upon the Commission.2 

 

1

 The operator’s motion says that the initial notice of contest was also mailed to St. Louis, 

on October 16, and that MSHA nevertheless accepted the form and noted the contest. The 

amended notice added citations and orders to those originally contested in the accepted notice. 

2

 While the proposed assessment form does clearly instruct operators to send contestrelated documents to Arlington, and payments to St. Louis, the mistake the operator made in this 

case is unfortunately common. It is not unreasonable to question whether there might be an 

alternate way of administering the contest and payment process that is less likely to repeatedly 

result in many filers making this same error. 

42 FMSHRC Page 782
 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/ Marco M. Rajkovich, Jr. 

 Marco M. Rajkovich, Jr., Chairman 

 /s/ William I. Althen 

 William I. Althen, Commissioner 

 /s/ Arthur R. Traynor, III 

Arthur R. Traynor, III, Commissioner 

42 FMSHRC Page 783
Distribution (by e-mail): 

Mark E. Heath, Esq. 

Spilman Thomas and Battle, PLLC 

Attorneys for Rockwell Mining, LLC 

mheath@spilmanlaw.com 

Emily Toler Scott, Esq. 

Office of the Solicitor 

Scott.Emily.T@dol.gov 

Chief Administrative Law Judge Glenn Voisin 

Federal Mine Safety & Health Review Commission 

GVoisin@fmshrc.gov 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

Garris.Melanie@DOL.GOV 

42 FMSHRC Page 784
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

October 23, 2020 

BEFORE: Rajkovich, Chairman; Althen and Traynor, 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 23, 2020, the Commission received from Victory 

Rock Texas, LLC, (“Victory Rock”) 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).1

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

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

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

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

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

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

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

reopen final 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).

1

 The motion is dated February 4, but the Commission’s Docket Office did not receive it 

until March 23, 2020. There is no explanation for the discrepancy. We take note of the fact that 

the motion was prepared and filed at about the time the pandemic began to emerge as a generally 

disruptive force. 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 v. 

VICTORY ROCK TEXAS, LLC 

 

Docket No. CENT 2020-0105-M 

A.C. No. 42-02633-501717 

42 FMSHRC Page 785
 Records of the Department of Labor’s Mine Safety and Health Administration 

(“MSHA”) indicate that the proposed assessment was delivered on October 15, 2019, and 

became a final order of the Commission on November 15, 2019. Victory Rock’s motion says that 

the proposed assessment in this matter was delivered while it was awaiting word from MSHA 

about a requested conference of the citations. Victory Rock claims that it returned its notice of 

contest “quickly,” but has provided no proof of mailing or delivery. 

 MSHA sent the operator a delinquency notice on December 30, 2019. On January 9, 

2020, the operator contacted MSHA to question the status of its contest. The operator says it was 

told that MSHA had not received a notice of contest, and that MSHA advised it to file a motion 

to reopen. The Secretary does not oppose the requests to reopen, but urges the operator to take 

steps to ensure that future penalty contests are timely filed. 

 Having reviewed Victory Rock’s requests and the Secretary’s responses, we find that the 

operator has sufficiently explained its failure to timely contest the citations at issue as the result 

of inadvertence, mistake, and excusable neglect. This is a pro se operator with no history of 

defaults or motions to reopen in the past 24 months. The operator’s motion was not filed with the 

Commission until March 23 – more than 30 days after the operator says it learned from MSHA 

that no contest had been filed. However, the motion is dated February 4. While the discrepancy 

is unexplained, there is no indication of bad faith on the operator’s part, and the Secretary does 

not oppose reopening or dispute the facts asserted in the operator’s motion. While we excuse 

this pro se operator’s failure to explain why the motion was not filed within 30 days of discovery 

of its default in this case, the operator must ensure that future motions to reopen are filed 

promptly, or that the failure to do so is adequately explained. 

 

42 FMSHRC Page 786
 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/ Marco M. Rajkovich, Jr. 

 Marco M. Rajkovich, Jr., Chairman 

 /s/ William I. Althen 

 William I. Althen, Commissioner 

 /s/ Arthur R. Traynor, III 

Arthur R. Traynor, III, Commissioner 

 

42 FMSHRC Page 787
Distribution (by e-mail): 

Scott Cusick 

Director 

Victory Rock Texas, LLC 

scusick@victoryrockusa.com 

 

Emily Toler Scott, Esq. 

Office of the Solicitor 

Scott.Emily.T@dol.gov 

Chief Administrative Law Judge Glenn Voisin 

Federal Mine Safety & Health Review Commission 

GVoisin@fmshrc.gov 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

Garris.Melanie@DOL.GOV 

42 FMSHRC Page 788
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

October 23, 2020 

BEFORE: Rajkovich, Chairman; Althen and Traynor, 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 September 9 and September 13, 2019, the Commission 

received from Pinto Valley Mining Corp. (“Pinto Valley”) motions seeking to reopen penalty 

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

Mine Act, 30 U.S.C. § 815(a).1

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

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

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

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

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

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

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

reopen final 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).

1

 The two motions addressed in this order rely upon the same rationale and common facts 

as a basis for re-opening. For the limited purpose of addressing these motions to reopen, we 

hereby consolidate these dockets, which involve similar procedural issues. 29 C.F.R. §2700.12. 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. 

PINTO VALLEY MINING CORP. 

Docket No. WEST 2019-0516 

A.C. No. 02-01049-000490002

Docket No. WEST 2019-0535 

A.C. No. 02-01049-000491992

42 FMSHRC Page 789
 Records of the Department of Labor’s Mine Safety and Health Administration 

(“MSHA”) indicate that the proposed assessment in WEST 2019-0516 was delivered on May 13, 

2019, and became a final order of the Commission on June 13, 2019. MSHA’s records show that 

the proposed assessment in WEST 2019-0535 was delivered on June 4, 2019, and became a final 

order on July 5, 2019. In both motions to reopen, Pinto Valley says that it followed a reliable 

procedure to contest citations and orders by certified mail, return receipt requested. 

 Affidavits by the mine’s interim safety superintendent state that the notices of contest 

were timely filed in both cases. In WEST 2019-0516, the affidavit states that the operator made a 

partial payment of $328, which it sent with the notice of contest on May 14. The affidavit 

submitted in WEST 2019-0535 states that the completed notice of contest was mailed on June 4. 

The affidavit in this case also states that a partial payment was made, of $9219.2 Both motions 

include copies of the proposed assessments and completed contest forms. They do not include 

copies of the certified mail receipts, but the affidavits claim that it is common not to receive 

these forms for MSHA filings. 

 MSHA sent the operator delinquency notices, on August 19 for WEST 2019-0535, and 

on August 26 for WEST 2019-0516. The operator filed its motions to reopen on September 9 and 

September 16. The Secretary does not oppose the requests to reopen, but urges the operator to 

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

 Having reviewed Pinto Valley’s requests and the Secretary’s responses, we find that the 

operator has sufficiently explained its failure to timely contest the citations at issue as the result 

of inadvertence, mistake, and excusable neglect. The motions were filed promptly after MSHA 

notified the operator of its delinquencies, and in both cases the operator states that it timely 

mailed the notices of contest, but did not receive a receipt for delivery. The agency received 

partial payment for both dockets. Both motions are well-supported by affidavits and 

documentation. 

 

2

 MSHA’s response to each motion acknowledges receipt of the payments submitted by 

the operator on July 25, 2019. The assessments in both cases had become final by that date. 

42 FMSHRC Page 790
 In the interest of justice, we hereby reopen these matters and remand them 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/ Marco M. Rajkovich, Jr. 

 Marco M. Rajkovich, Jr., Chairman 

 /s/ William I. Althen 

 William I. Althen, Commissioner 

 /s/ Arthur R. Traynor, III 

Arthur R. Traynor, III, Commissioner 

 

42 FMSHRC Page 791
Distribution (by e-mail): 

Donna Vetrano Pryor, Esq. 

Attorney for Pinto Valley Mining Corp. 

Husch Blackwell, L.L.P. 

donna.pryor@huschblackwell.com 

Emily Toler Scott, Esq. 

Office of the Solicitor 

Scott.Emily.T@dol.gov 

Chief Administrative Law Judge Glenn Voisin 

Federal Mine Safety & Health Review Commission 

GVoisin@fmshrc.gov 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

Garris.Melanie@DOL.GOV 

42 FMSHRC Page 792
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

October 23, 2020 

BEFORE: Rajkovich, Chairman; Althen and Traynor, 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 December 9, 2019, the Commission received from 

Rockwell Mining, LLC, (“Rockwell”) 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). 

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

(“MSHA”) indicate that the proposed assessment was delivered on March 4, 2019, and became a 

final order of the Commission on April 4, 2019. Rockwell’s motions say that it had contested the 

citation at issue in this case, but inadvertently paid the penalty when the proposed assessment 

was delivered. It learned of its mistake on April 29 and filed a motion to reopen on May 29, 

2019. 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

 v. 

ROCKWELL MINING, LLC 

 

Docket No. WEVA 2019-0479 

A.C. No. 46-08610-484227 

42 FMSHRC Page 793
 The Secretary does not oppose the requests to reopen, but urges the operator to take steps 

to ensure that future assessments are timely contested. 

 Having reviewed Rockwell’s requests and the Secretary’s responses, we find that the 

operator has sufficiently explained its failure to timely contest the citations at issue as the result 

of excusable neglect. However, we do note that this is the fifth motion to reopen filed by the 

operator in the past 24 months.1 The operator should heed the Secretary’s admonition and take 

seriously its responsibilities under the Act and should be aware that future motions relying on a 

similar excuse may be denied. 

 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/ Marco M. Rajkovich, Jr. 

 Marco M. Rajkovich, Jr., Chairman 

 /s/ William I. Althen 

 William I. Althen, Commissioner 

 /s/ Arthur R. Traynor, III 

Arthur R. Traynor, III, Commissioner 

 

1

 The third and fourth motions to reopen are pending before the Commission. These 

motions rely on different facts and a different rationale for reopening, and the operator is 

represented by a different law firm in those motions, which are being consolidated and addressed 

in another order. 

42 FMSHRC Page 794
Distribution (by e-mail): 

Mark E. Heath, Esq. 

Spilman Thomas and Battle, PLLC 

Attorneys for Rockwell Mining, LLC 

mheath@spilmanlaw.com 

Emily Toler Scott, Esq. 

Office of the Solicitor 

Scott.Emily.T@dol.gov 

Chief Administrative Law Judge Glenn Voisin 

Federal Mine Safety & Health Review Commission 

GVoisin@fmshrc.gov 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

Garris.Melanie@DOL.GOV 

42 FMSHRC Page 795
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

October 23, 2020 

BEFORE: Rajkovich, Chairman; Althen and Traynor, 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 December 9, 2019, the Commission received from 

Rockwell Mining, LLC, (“Rockwell”) two motions seeking to reopen penalty assessments that 

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

U.S.C. § 815(a).1

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

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

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

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

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

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

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

reopen final 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).

1

 The two motions addressed in this order rely upon the same rationale and common facts 

as a basis for re-opening. For the limited purpose of addressing these motions to reopen, we 

hereby consolidate these dockets, which involve similar procedural issues. 29 C.F.R. §2700.12. 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. 

ROCKWELL MINING, LLC 

Docket No. WEVA 2020-0150 

A.C. No. 46-09152-000500943

Docket No. WEVA 2020-0151 

A.C. No. 46-09427-000500948

42 FMSHRC Page 796
 Records of the Department of Labor’s Mine Safety and Health Administration 

(“MSHA”) indicate that the proposed assessment was delivered on October 7, 2019, and became 

a final order of the Commission on November 7, 2019. Rockwell’s motions say that the proposed 

assessments in this matter were delivered while its safety manager – the person responsible for 

processing assessments for action by the corporate safety director – was on vacation. On his 

return, the safety manager was “overwhelmed” and had difficulty catching up. He marked the 

citations that he believed should be contested and forwarded the contest forms to the safety 

director during the first week in November. 

 While the safety director sent the forms to MSHA on November 7, MSHA did not 

receive them until November 13, six days after the proposed assessments had become final 

decisions of the Commission. The Secretary does not oppose the requests to reopen, but urges 

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

 Having reviewed Rockwell’s requests and the Secretary’s responses, we find that the 

operator has moved promptly for relief and has sufficiently explained its failure to timely contest 

the citations at issue as the result of excusable neglect. However, we do note that these are the 

third and fourth motions to reopen filed by the operator in the past 24 months.2 The operator 

should heed the Secretary’s admonition and take seriously its responsibilities under the Act and 

should be aware that future motions relying on a similar excuse may be denied. 

 

2

 The operator has another motion to reopen pending before the Commission, but it relies 

on different facts and a different rationale for reopening. 

42 FMSHRC Page 797
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/ Marco M. Rajkovich, Jr. 

Marco M. Rajkovich, Jr., Chairman 

/s/ William I. Althen 

William I. Althen, Commissioner 

/s/ Arthur R. Traynor, III 

Arthur R. Traynor, III, Commissioner 

42 FMSHRC Page 798
Distribution (by e-mail): 

Johnathan R. Ellis, Esq. 

Colton C. Parsons, Esq. 

Steptoe and Johnson PLLC 

Attorneys for Rockwell Mining, LLC 

jonathan.ellis@steptoe-johnson.com 

colton.parsons@steptoe-johnson.com 

Emily Toler Scott, Esq. 

Office of the Solicitor 

Scott.Emily.T@dol.gov 

Chief Administrative Law Judge Glenn Voisin 

Federal Mine Safety & Health Review Commission 

GVoisin@fmshrc.gov 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

Garris.Melanie@DOL.GOV 

42 FMSHRC Page 799
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

October 26, 2020 

BEFORE: Rajkovich, Chairman; Althen and Traynor, 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. (2018) (“Mine Act”). On August 6, 2019, the Commission received from Prospect

Mining and Development Company, Inc., (“Prospect”) a motion to reopen the above-captioned

case. Prospect thereafter informed the Commission that it no longer had any desire to reopen this

matter.

Accordingly, this case is dismissed. 

/s/ Marco M. Rajkovich, Jr. 

Marco M. Rajkovich, Jr., Chairman 

/s/ William I. Althen 

William I. Althen, Commissioner 

/s/ Arthur R. Traynor, III 

Arthur R. Traynor, III, Commissioner 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. 

PROSPECT MINING AND 

DEVELOPMENT COMPANY, INC. 

Docket No. SE 2016-0193 

A.C. No. 01-03389-405410

42 FMSHRC Page 800
Distribution (e-mail): 

JD Morris 

Safety Director. 

jdmorris@prospectcoal.com 

Emily Scott, Esq. 

Office of the Solicitor 

Scott.Emily.T@dol.gov 

Chief Administrative Law Judge Glynn F. Voisin 

Federal Mine Safety & Health Review Commission 

GVoisin@fmshrc.gov 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

Garris.Melanie@DOL.GOV 

42 FMSHRC Page 801
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

October 29, 2020 

BEFORE: Rajkovich, Chairman; Althen and Traynor, Commissioners 

ORDER

BY THE COMMISSION: 

This discrimination proceeding arises under the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 801 et seq. (2018) (“Mine Act”). On September 3, 2020, Theodore Oesau, by 

counsel, filed a petition for discretionary review challenging a decision by a Commission 

Administrative Law Judge issued on August 4, 2020, dismissing the complaint of discrimination 

brought by Mr. Oesau. 42 FMSHRC 625 (Aug. 2020) (ALJ). 

In his decision, the Judge noted that the Commission would not be monitoring incoming 

physical mail or facsimile transmissions and that parties were encouraged to submit all filings 

through the agency’s electronic filing system. Id. at 640 n.10. The Judge further noted that if a 

party was unable to file through the Commission’s electronic filing system, the party should 

email a copy, and the Commission would file the copy. Id. Contrary to the Judge’s instructions, 

Oesau’s counsel filed the petition by facsimile transmission only. 

The judge’s jurisdiction over this case terminated when he issued his decision on August 

4. 29 C.F.R. § 2700.69(b). Relief from a Judge’s decision may be sought by filing a petition for

discretionary review within 30 days of its issuance. 30 U.S.C. § 823(d)(2); 29 C.F.R.

§ 2700.70(a). The Commission’s procedural rules do permit filing by facsimile transmission. 29

C.F.R. § 2700.5(c)(2). Thus, we find good cause for treating Oesau’s petition as timely filed. See

generally McCoy v. Crescent Coal Co., 2 FMSHRC 1202, 1204 (June 1980).

Due to exigencies created by the COVID-19 pandemic, the Commission has not been 

monitoring incoming mail and facsimile transmissions and did not act on the petition within the 

statutory period for considering requests for discretionary review. 85 Fed. Reg. 50825 (Aug. 18, 

2020). The Judge’s decision became a final order of the Commission 40 days after its issuance 

by operation of section 113(d)(1) of the Mine Act, 30 U.S.C. § 823(d)(1). 

Relief from a final Commission judgment or order is available to a party under Fed. R. 

Civ. P. 60(b)(1) in circumstances such as mistake, inadvertence, or excusable neglect. 29 C.F.R. 

§ 2700.1(b) (Federal Rules of Civil Procedure apply “so far as practicable” in the absence of

applicable Commission rules); e.g., Lloyd Logging, Inc., 13 FMSHRC 781, 782 (May 1991). In

the interest of justice, we reopen this proceeding and consider the merits of the petition. See

North Star Contractors, Inc., 17 FMSHRC 886, 887 (June 1995).

THEODORE OESAU 

v. 

ROGERS GROUP, INC. 

Docket No. CENT 2019-0276-DM 

42 FMSHRC Page 802
Section 113(d)(2) of the Mine Act, 30 U.S.C. § 823(d)(2), provides that review of a 

decision of an Administrative Law Judge may be granted upon specified grounds and upon the 

affirmative vote of two Commissioners. Such review is discretionary. 30 U.S.C. § 823(d)(2)(A). 

However, after consideration by the Commissioners, no two Commissioners voted to grant 

Oesau’s petition. Accordingly, this order reopening the case and denying relief on the merits now 

constitutes the Commission’s final order. The right to obtain review of Commission decisions in 

a United States court of appeals is set forth in 30 U.S.C. § 816(a)(1). 

/s/ Marco M. Rajkovich, Jr. 

Marco M. Rajkovich, Jr., Chairman 

/s/ William I. Althen 

William I. Althen, Commissioner 

/s/ Arthur R. Traynor, III 

Arthur R. Traynor, III, Commissioner 

42 FMSHRC Page 803
Distribution (e-mail): 

Chris W. Burks 

WH Law, PLLC 

chris@wh.law 

Margaret S. Lopez 

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

Margaret.lopez@ogletree.com 

J. Carin Burford

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

carin.burford@ogletree.com

42 FMSHRC Page 804
ADMINISTRATIVE LAW JUDGE DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9900 / FAX: 202-434-9954 

October 20, 2020 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDINGS 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Docket No. SE 2019-0075 

Petitioner A.C. No. 01-02901-481428

v. Docket No. SE 2019-0146 

A.C. No. 01-02901-487211

PEABODY SOUTHEAST MINING, LLC, 

Respondent Shoal Creek Mine

DECISION 

Appearances: Emily Roberts, Esq., and Christopher Smith, Esq., Office of the Solicitor, 

U.S. Department of Labor, Nashville, Tennessee, for Petitioner; 

Arthur Wolfson, Esq., Fisher & Phillips, LLC, Pittsburgh, Pennsylvania, 

for Respondent. 

Before: Judge Bulluck 

These cases are before me upon Petitions for Assessment of Civil Penalty filed by the 

Secretary of Labor (“Secretary”), on behalf of the Mine Safety and Health Administration 

(“MSHA”), against Peabody Southeast Mining, LLC (“Peabody”), pursuant to section 105(d) of 

the Federal Mine Safety and Health Act of 1977 (“Mine Act”), 30 U.S.C. § 815(d). The 

Secretary seeks a total civil penalty of $76,061.00 for three violations of his mandatory safety 

standards. 

A hearing was held in Birmingham, Alabama. The following issues are before me: (1) 

whether Peabody violated the standards; (2) whether the violations were attributable to the level 

of gravity alleged; (3) whether the violations were attributable to the degree of negligence 

alleged; (4) whether the violations were attributable to unwarrantable failures to comply with the 

standards; and (5) the appropriate penalties. The parties’ Post-hearing Briefs are of record. 

For the reasons set forth below, I AFFIRM one citation and two orders, as issued, and 

assess penalties against Respondent. 

I. Joint Stipulations

The parties have stipulated as follows:

1. Peabody Southeast Mining, LLC, 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, 30 U.S.C.

42 FMSHRC Page 805
§ 802(d), at the mine at which the citation and orders at issue in this proceeding were 

issued. 

2. Shoal Creek Mine, Mine ID: 01-02901, is a mine, as defined in section 3(h) of the Mine 

Act. 30 U.S.C. § 802(h). 

3. Operations of Peabody, at the mine at which the citation and orders were issued, are 

subject to the jurisdiction of the Mine Act. 

4. 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. 

5. Shoal Creek Mine is operated by Respondent. 

6. Payment of the total proposed penalty in this matter will not affect Peabody’s ability to 

continue in business. 

7. The individuals whose names appear in Block 22 of the citation and orders were acting in 

an official capacity, as authorized representatives of the Secretary of Labor, when the 

citation and orders were issued. 

8. The citation and orders were issued and served by a duly authorized representative of the 

Secretary of Labor upon an agent of Peabody at the date, time, and place stated in the 

citation and orders, as required by the Act. 

9. Exhibit A, attached to the Secretary’s Petition in Docket Numbers SE 2019-0075 and SE 

2019-0146, contains authentic copies of the citation and orders, with all modifications or 

abatements, if any. 

Tr. 18-20. 

II. Factual Background 

Peabody operates the Shoal Creek Mine (“mine”), an underground coal mine in Adger, 

Jefferson County, Alabama.1

 The mine runs two continuous miner sections and two longwall 

sections over three shifts a day: owl from 11:00 p.m. to 7:00 a.m.; day from 7:00 a.m. to 3:00 

p.m.; and evening from 3:00 p.m. to 11:00 p.m. Tr. 280, 289. Mining at Shoal Creek is a wet 

process, the mine is located near a river, which further contributes to the wet conditions, and it is 

a gassy mine subject to five-day spot inspections. Tr. 37-38, 150, 176, 192-93. 

1

 Drummond Company, Incorporated, (“Drummond”) owned and operated Shoal Creek 

Mine until December 4, 2018, when Peabody Energy took over ownership, and Peabody 

Southeast Mining, LLC, took over operations. Ex. P–16 at 1, 19. 

42 FMSHRC Page 806
On December 11, 2018, at 1:05 p.m., as the H-2 longwall section was actively mining, a 

sizable tear occurred in the H-2 belt, causing coal to spill and belt strings to wrap around belt 

rollers. Tr. 208-09, 213-16. The belt was shut down, the accumulations were cleared from 

underneath the belt and moved to the walkway, and the belt was running coal again by 5:15 p.m. 

Tr. 217-24. At some time after the belt had torn, an anonymous hazard complaint was called in to 

MSHA, reporting “gobbed out” rollers turning in coal in the H-2 belt entry takeup area. Tr. 37-

38. Consequently, on the morning of December 12, MSHA Birmingham field office supervisor 

Thomas Chatham arrived at the mine to conduct an inspection of the H-2 belt, in addition to the 

regularly scheduled five-day spot inspection. Tr. 30-31, 37-38. The inspection party included 

safety supervisor Matt Selman and UMWA representative Steve Miller and, when it reached the 

takeup area of the H-2 belt entry, the belt was running, accumulations were observed around the 

takeup, and the belt was shut down and the take up guarding removed. Tr. 48-55, 72, 109; Ex. 

P–1. Thereafter, when Chatham observed that the accumulations were in contact with the belt 

and rollers, and that belt strings were wrapped around rollers, bearings, and the takeup frame, he 

issued an unwarrantable failure citation to Peabody for accumulations of combustible materials. 

Tr. 49-56, 72-76. Miners were immediately assigned to clean the area and, ultimately, the 

accumulations were removed from the mine by December 17. Tr. 235-238, Ex. P–1. 

On February 19, 2019, MSHA Inspector Darryl Allen conducted an E01 inspection at 

Shoal Creek. Tr. 277, 284. Before entering the mine, he reviewed the examination books and 

identified potential hazards in the West Main No. 4 belt entry, the alternate escapeway for the H2 and H-3 longwall sections. Tr. 286-93, 300-01. The inspection party included Allen’s 

supervisor Thomas Chatham, safety supervisors Brett Clements and Matt Selman, and miners’ 

representative Tim Wise. Tr. 312-13, 459-60. At the beginning of the inspection, Clements drove 

the mantrip to the West Main No. 4 entry and dropped off the inspection party at crosscut 84, 

then entered the escapeway at crosscut 81 where he had parked. Tr. 460-62. The others, walking 

outby crosscut 84, came upon holes, filled with muck and water, between crosscuts 83 and 82 

and met Clements around crosscut 83, and Allen issued a withdrawal order to Peabody for failure 

to maintain the alternate escapeway in passable condition. Tr. 315-19, 345, 461-63, 480-82; Ex. 

P–6. The crew was removed immediately from the affected area, miners were assigned to scoop 

the muck and fill the holes with road mix and gravel, and the order was terminated at 12:35 p.m. 

that afternoon. Tr. 341-43, 466, 490-91; Ex. P–6. 

On March 11, 2019, Inspector Allen returned to Shoal Creek to continue his quarterly 

inspection and, upon arrival, reviewed the examination books and identified accumulations in the 

North Main No. 1 belt entry. Tr. 511-13, 518-39; Ex. P–11 at 1. The inspection party included 

Allen’s supervisor Thomas Chatham, foreman Mike Earl, and miners’ representative Morris 

Studdard. Tr. 545; Ex. P–11 at 1. At the start of the inspection, Allen observed a seized roller 

near crosscut 10, Earl shut down the belt, Allen observed seven more seized rollers while 

continuing inby and issued a citation for the eight seized rollers between crosscuts 10 and 22 1⁄2, 

and he issued another citation for two nonfunctional fire hose outlets. Tr. 541-47, 664-65; Ex. 

P–14(a), (b). Thereafter, upon observing accumulations in the tail area, Allen issued a 

withdrawal order to Peabody for accumulations of combustible materials. Tr. 548-51, 672-73; 

Ex. P–10. The crew was withdrawn immediately from the affected area, miners were assigned to 

remove the coal fines and coal muck from under the tailpiece, walkway, and full width of the 

entry, and the order was terminated the next day. Tr. 587-92; Ex. P–10. 

42 FMSHRC Page 807
III. Findings of Fact and Conclusions of Law 

1. Citation No. 9136082 

Inspector Thomas Chatham issued 104(d)(1) Citation No. 9136082 on December 12, 

2018, alleging an “S&S” violation of section 75.400 that was “reasonably likely” to cause an 

injury that could reasonably be expected to result in “lost workdays or restricted duty,” and was 

caused by Peabody’s “high” negligence and unwarrantable failure to comply with the standard.2

The “Condition or Practice” is described as follows: 

Accumulations of combustible material in the form of loose coal 

and coal fines were allowed to accumulate in the H-2 belt entry. 

Upon inspection of the H-2 belt, accumulations of loose coal and 

coal fines were observed in the belt take up. The coal accumulation 

measured up to 30 inches deep in the take up. The accumulations 

were in contact with turning rollers and the moving H-2 belt. The 

accumulations were also observed in the walkways on the 

walkway and off-walkway side of the belt for the length of the take 

up. The accumulations measured approximately 120 feet long, 21 

feet wide, and up to 30 inches in depth. Also numerous rollers in 

the take up had accumulations of belt string around the end of the 

roller. The belt string had accumulations of loose coal, coal fines, 

and float coal dust in and on the strings. The strings were tightly 

wrapped around the bearing and the belt roller frame. It is 

reasonably likely that miners would receive injuries from smoke 

inhalation that would result in lost work days or restricted duty. 

The air in the H-2 belt entry is used to ventilate the active H-2 

longwall face. The H-2 belt entry is also the alternate escape way 

for the active H-2 long wall. Standard 75.400 was cited 121 times 

in two years at mine 0102901 (121 to the operator, 0 to a 

contractor). This violation is an unwarrantable failure to comply 

with a mandatory standard. 

Ex. P–1. The citation was terminated on December 17, after the operator had removed the 

accumulations from the mine, and rock dusted the area. Ex. P–1. 

A. Fact of Violation 

In order to establish a violation of one of his mandatory safety standards, the Secretary 

must prove that the violation occurred “by a preponderance of the credible evidence.” Keystone 

2

 30 C.F.R. § 75.400 provides 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.”

42 FMSHRC Page 808
Coal Mining Corp., 17 FMSHRC 1819, 1838 (Nov. 1995) (citing Garden Creek Pocahontas 

Co., 11 FMSHRC 2148, 2152) (Nov. 1989)). 

The Secretary maintains that Peabody violated section 75.400, and that longwall outby 

supervisor Joe Bell and fire boss Lee Esch admitted that the cited accumulations created a fire 

hazard. Sec’y Br. at 14. Peabody argues that the cited material was spillage, and that it had a 

“reasonable time” to clean it up. Resp’t Br. at 6-8. 

1. Summary of Testimony 

a. Thomas Chatham 

Inspector Thomas Chatham testified for the Secretary that early on December 12, 2018, 

he was notified of an anonymous hazard complaint that rollers were “gobbed out” and turning in 

coal in the H-2 belt entry takeup area at Shoal Creek, that he expanded his spot inspection to 

include that area, and that the mine was on a five-day spot inspection cycle for methane. Tr. 36-

38. Chatham explained that the H-2 belt entry served as an alternate escapeway for the active H2 longwall, that it ventilated the H-2 longwall working face and that, if a fire were to occur, 

miners at the face or utilizing the escapeway would be exposed to smoke. Tr. 70-71, 75-76, 100. 

He testified that he reviewed three consecutive pre-shift reports after the belt tear had occurred, 

and that none noted accumulations or cleanup in the H-2 belt takeup area. Tr. 76, 81-83; Ex. P–5 

at 2-5.3

 Chatham stated that when he arrived at the takeup area, he smelled burning rubber, 

observed accumulations of loose coal and coal fines on the walkway and off-walkway sides of 

the H-2 belt, and that no one was working in the area. Tr. 49-55, 71-72, 109. He stated that the 

belt was turned off and the takeup guards removed, that he observed under the takeup 

accumulations in contact with every takeup roller and the belt, and that belt strings, covered with 

loose coal, coal fines and coal dust, were wrapped around a number of rollers, bearings, and the 

takeup frame. Tr. 49-55, 73, 85-87. By his measurements, the accumulations approximated 120 

feet long, 21 feet wide, and 12 to 30 inches deep. Tr. 71-72. He explained that the belt is coated 

with fire resistant material, that when it is unaligned, the coating can wear off and expose fabric 

strings, and that they gather around rollers and collect coal dust. Tr. 85-86. He also explained 

that non-permissible belt drive motors in the area could cause internal sparks, but acknowledged 

that he did not inspect the motors’ cables, and that methane was only produced outby the cited 

area. Tr. 54, 92, 97. While he noted that a lot of water was present, he stated that the 

accumulations felt dry in a few places and that, based on his observations, he thought that a fire 

was likely to occur. Tr. 58-61, 74. He stated that he spoke to longwall outby supervisor Joe Bell 

and longwall coordinator Randy Deavours about the belt tear, and ascertained that cleaning had 

begun on December 11, but neither mentioned that any cleaning had taken place on December 

12. Tr. 77, 100-06, 111-12; Ex. P–3. He also described the depictions in the photographs that he 

had taken of the H-2 belt takeup area before and after termination of the citation. Tr. 57-68; Ex. 

P–4. In his opinion, spraying is a common cleaning method at Shoal Creek, but not effective, and 

he admitted that he had no personal experience with it or knowledge of whether it had been 

3

 Chatham cited Peabody for an inadequate pre-shift examination of the H-2 belt takeup 

area on December 12, and Peabody subsequently withdrew its contest of that citation. Tr. 80-82; 

Ex. P–2. 

42 FMSHRC Page 809
employed to address this condition. Tr. 78-79, 88-89, 103, 106, 113. Additionally, he stated that 

if cleaning had been scheduled beyond December 11, the belt should have been stopped and the 

takeup guards removed, although he acknowledged that the mine was not required to shut the 

belt down to clean. Tr. 106, 113. He explained that based on the condition and his conversation 

with management about its cleaning efforts, he issued an unwarrantable failure citation, noting 

that the accumulations were the most extensive that he had cited at Shoal Creek during that 

quarter. Tr. 104, 107. 

b. Lee Esch 

Owl shift fire boss Lee Esch testified for the Secretary that the H-2 belt entry was the 

secondary escapeway for the H-2 longwall, that it provided clean air to the working face and 

that, during owl shift on December 12, he conducted his pre-shift examination of the H-2 belt 

takeup area specifically looking for combustible materials in contact with frictional heating 

sources that can dry out wet materials, noting that, previously, he had seen fires in the mine. Tr. 

117-19, 139. He stated that he finished his examination between 5:30 and 6 a.m., and that the 

takeup area was examined around 4 a.m. Tr. 127-29, 138. He explained that he examined the 

takeup from the walkway side, with the guards in place obstructing his view, and that he did not 

record any hazards in the H-2 belt entry; customarily, according to him, examiners did not record 

hazards if they were being worked on, but this practice was scrapped after the inspection. Tr. 

123-26, 140-41. Esch admitted that he had no independent memory of examining the area 

beyond reviewing his notes, that he was not present when Chatham took photographs nor did he 

dispute their authenticity, and that the conditions depicted in them needed to be addressed 

because they could cause a fire. Tr. 124, 135-36. 

c. Joe Bell 

 

Day shift longwall outby supervisor Joe Bell testified for Peabody that he had worked at 

Shoal Creek for about 10 years, and that his team was responsible for cleaning areas outby the 

longwall face, including the H-2 belt takeup area. Tr. 145-49. He explained that longwall mining 

at Shoal Creek is a wet process, and that the H-2 belt takeup is particularly wet due to its location 

in the mine and the belt shortening as the longwall advances, all of which make the area prone to 

accumulations. Tr. 150, 191-92, 224. According to Bell, the belt tear on December 11 created 

“[a] mess . . . the pieces got wound up in a lot of rollers . . . . So there was a lot of things 

wrapped around stuff and then on top of that, the material,” and it took “all hands on deck” to 

clean and repair the belt, with the “mindset . . . to get [the belt] running,” because accumulations 

cannot be pumped onto the belt when it is shut down. Tr. 154-58, 217. He stated that in order to 

clean the spill and get the belt running, the takeup guarding was removed, seven to eight miners 

shoveled the accumulations from under the belt onto the walkway, and the belt was repaired; 

most of the accumulations had been moved onto the walkway by the time that he left, around 4 

p.m. Tr. 157-61. He estimated that, given the extensiveness of the spill and the slow cleaning 

process, it would have taken a few shifts to finish the job. Tr. 196-202. 

By Bell’s account, on December 12, between 7:30 and 8:30 a.m., the H-2 belt was 

running and, with the takeup guards in place obstructing his view while he was working, he did 

not have an opportunity to inspect the takeup, and he observed material and a piece of discarded 

42 FMSHRC Page 810
belt in the walkway. Tr. 163-65, 187-89. He stated that his crew washed the takeup area for 

approximately a half hour, explaining that when the guards are up, shoveling can clear some of 

the accumulations and hosing cleans the rest, and that his crew had planned to pump the material 

onto the belt. Tr. 163-66, 189-91. Thereafter, he stated, longwall coordinator Randy Deavours 

called, assigning him and two miners to attend to a fuel cell hazard elsewhere and, before leaving 

the area, the belt was still running, and he turned off the pump because there was no one to run it. 

Tr. 166-68, 193-94. Bell testified that when he returned to resume cleaning in about an hour, the 

inspection party was there, and he observed the condition at the takeup for the first time; he 

qualified his testimony by stating that he had not looked closely at it earlier because he had been 

focused on clearing material from the walkway, but then admitted that, generally, he had seen it 

earlier in the shift. Tr. 168-74, 193-96. In his opinion, the material on the walkway had washed 

back under the takeup due to the wetness of the area. Tr. 176. Bell agreed with Chatham’s 

narrative of the condition on the face of the citation, and testified to the accuracy of Chatham’s 

photographs, noting that it would be dangerous to run the belt in that condition. Tr. 177-88. His 

testimony as to the photographs of the belt strings was inconsistent, however; he acknowledged 

the depictions as what he had seen upon his departure on December 11 and arrival on December 

12, then denied having seen them at all on December 11, and not until he was with Chatham on 

December 12. Tr. 182-84, 187, 194-96. 

d. Randy Deavours 

Day shift longwall coordinator Randy Deavours testified for Peabody that he oversees 

production and outby supervisors, and that he had worked at Shoal Creek for two years and four 

months. Tr. 204-05. He stated that air from the H-2 belt entry and the primary escapeway 

combined to ventilate the longwall face, and that the primary escapeway provided the majority of 

the fresh air. Tr. 206-08. By his account, the H-2 belt tore at 1:05 p.m., and he immediately went 

to the belt takeup, finding a tear of approximately 30 feet, and an extensive spill of wet coal. Tr. 

209, 213-16. He explained that accumulations cannot be pumped when the belt is off because it 

is needed to carry them out of the mine. Tr. 216-19. He stated that after the belt tore, 

approximately six miners shoveled the accumulations from under the belt onto the walkway, 

finishing around 5:00 p.m., and that the belt was repaired. Tr. 216-19. Deavours testified that the 

belt was restarted at 5:15 p.m., that the longwall made 4 1⁄2 passes during evening shift and 2 

during owl shift, and that production continued into the morning. Tr. 220-24, 238-40; Ex. P–5 at 

22-24, 36. He also testified that cleaning continued from day into evening and owl shifts and 

that, once the belt was running, accumulations were pumped onto it, as well as loaded onto 

wheelbarrows and skid steers and dumped onto it. Tr. 218-24; Ex. P–5 at 22-24, 36. According 

to Deavours, at the beginning of December 12 day shift, he had instructed Bell’s crew to 

continue cleaning the walkway at the belt takeup and that, shortly thereafter, he reassigned them 

to move a fuel cell located too close to a high voltage cable in another area. Tr. 225-29. He 

explained that by the time that Bell’s men arrived at the fuel cell, he had also found 

accumulations in contact with a roller around crosscuts 8 to 10, and that he had assigned another 

outby man to address it. Tr. 227-31. He continued, testifying that he then received a call that 

MSHA had shut down the H-2 belt because of accumulations at the takeup, and that he traveled 

there and observed extensive wet accumulations, acknowledging that he did not touch them. Tr. 

230-34, 241, 243-46. He explained that the area was prone to accumulations, that cleaning in that 

area occurred almost every day and that, based on his experience, he believed that the cited 

42 FMSHRC Page 811
condition was caused by the material left in the walkway washing back under the belt and 

takeup. Tr. 231-34, 241. He opined that the belt should not have been running in that condition, 

and explained that in order to terminate the citation, 10 to 13 man crews, over at least three 

shifts, used wheelbarrows and skid steers to load the belt, that the belt was “bumped” so that it 

could be loaded, and that pumping was not possible because the belt was not running. Tr. 235-

40. 

e. James Barnett 

Evening shift utility miner connection and certified examiner James Barnett testified for 

Peabody that he performed examinations once or twice a week and that, on December 11, he 

conducted a pre-shift examination of the H-2 belt entry around 8 p.m., and that the guards were 

in place and the belt, carrying a lot of water, was conveying coal. Tr. 249-54. He asserted that he 

observed miner Ricky Shubert standing in the walkway hosing coal from under the belt takeup, 

and that he did not make note of accumulations in the H-2 takeup area because cleaning was 

underway. Tr. 252-59; Ex. P–5 at 3. He also stated that he did not observe any contact between 

the accumulations and the rollers or the belt, that he would have stopped the belt had that been 

the case because contact can cause fires, and that he had previously seen mine fires due to 

bearing failure and belt strings. Tr. 252-57. 

2. Analysis 

A violation of section 75.400 occurs “where the quantity of combustible materials is such 

that, in the judgment of the authorized representative of the Secretary, it could cause a fire or 

explosion if an ignition source were present.” Old Ben Coal Co., 2 FMSHRC 2806, 2808 (Oct. 

1980) (“Old Ben II”) (footnote omitted). This judgment is viewed through the objective standard 

of whether a “reasonably prudent person, familiar with the mining industry and the protective 

purposes of the standard, would have recognized the hazardous condition that the regulation 

seeks to prevent.” Utah Power & Light Co., 12 FMSHRC 965, 968 (May 1990), aff’d 951 F.2d 

292 (10th Cir. 1992). 

Peabody launches its challenge to the violation by focusing on the cause of the 

accumulation, i.e., the extensive belt tear, and arguing that given the size of the spill, it had a 

reasonable amount of time to clean it up. Resp’t Br. at 6-8 (citing Old Ben Coal Co., 1 FMSHRC 

1954, 1958 (Dec. 1979) (“Old Ben I”) (noting that “some spillage of combustible materials may 

be inevitable in mining operations”); Utah Power & Light Co., 951 F.2d 292, 295 n.11 (10th Cir. 

1991) (stating that “loose coal . . . . must be cleaned up with reasonable promptness, with all 

convenient speed”); but see Black Beauty Coal Co., 703 F.3d 553, 559 n.6 (D.C. Cir. 2012) 

(rejecting the argument that operators have a “reasonable time” for cleaning before a section 

75.400 citation can be issued)). While the Commission has stated that “[w]hether a spillage 

constitutes an accumulation under the standard is a question, at least in part, of size and amount,” 

(Old Ben I, 1 FMSHRC at 1958) the D.C. Circuit has explained that, although spills can occur 

quickly, accumulations of combustible materials substantial enough to cause or propagate a fire 

are prohibited, even if recent. Black Beauty, 703 F.3d at 558-59, 559 n.6; see Utah Power, 951 

F.2d at 295 n.11; Prabhu Deshetty, 16 FMSHRC 1046, 1049 (May 1994) (rejecting a defense 

based on recentness of a spill). Moreover, the D.C. Circuit has explained that the discussion of 

42 FMSHRC Page 812
“reasonable promptness” in Utah Power is dicta that has not been followed by the 10th Circuit in 

subsequent cases, and that operators are not afforded a reasonable time to clean accumulations 

before a violation of section 75.400 can be found. Black Beauty, 703 F.3d at 558-59, 559 n.6. 

Here, the evidence clearly establishes that there were substantial accumulations of coal in the H2 belt takeup area. Chatham’s account of the condition is largely corroborated by his 

contemporaneous notes and photographs, and even Bell and Esch admitted that it would have 

been dangerous to run the belt in the condition documented by Chatham’s photographs. Ex. P–3 

at 3-4. While the accumulations were the result of a substantial belt tear, they were significant 

enough to require major cleanup efforts before resuming operation of the belt to run coal. 

Peabody also argues that it had cleared the accumulations from underneath the H-2 belt in 

the takeup area, that the material must have washed back, and that cleaning would have 

continued but for the inspection and Bell’s crew being called away. Resp’t Br. at 7-8. While I 

credit that after the belt tear on December 11 at 1:05 p.m., Peabody had moved the 

accumulations under the belt onto the walkway before restarting the belt later that evening, and 

that cleaning had continued during the subsequent evening, owl, and day shifts, the 

accumulations were never completely removed from the belt takeup area and taken out of the 

mine. Notably, on December 12 day shift, Deavours assigned Bell’s men to continue the cleanup 

of the belt takeup area, but then diverted them to another hazard elsewhere. Bell turned off the 

pumps when he left the area, and the belt continued to run. However, even if the outby crew’s 

cleaning had not been subordinated to another task that morning, its efforts would have 

constituted a mere fraction of the 10 to 13 miner crew, working over the course of three shifts, to 

clean up the “mess” and terminate the citation. 

While the record establishes that the H-2 belt takeup area was very wet, the evidence that 

the accumulations were dry in several spots was unrebutted. The Commission has long explained 

that “wet coal accumulations pose a significant danger in underground coal mines” because they 

can dry out through frictional contact with the belt or rollers, and propagate a fire or explosion. 

Mach Mining, LLC, 40 FMSHRC 1, 3-6 (Jan. 2018) (citing Consolidation Coal Co., 35 

FMSHRC 2326, 2329-30 (Aug. 2013); Black Diamond Coal Mining Co., 7 FMSHRC 1117, 

1120-21 (Aug. 1985)). 

Based on the evidence in its entirety, I find that the accumulations of loose coal and coal 

fines, measuring 120 feet long, 21 feet wide, and up to 30 inches deep, were substantial and 

extensive, that they were contacting the H-2 belt and rollers, that belt strings coated in loose coal, 

coal fines, and float coal dust were wrapped around rollers, bearings, and the takeup frame, and 

that the accumulations had dried out in places from frictional contact and, therefore, were 

combustible. Accordingly, I conclude that Peabody violated section 75.400. 

B. Gravity 

The Secretary argues that there was a realistic potential for fire to occur. Sec’y Br. at 14-

16. Conversely, Peabody maintains that an ignition was unlikely because of the wet conditions in 

the mine, the absence of methane in the area, and the unlikelihood of belt drive motor cables 

sparking. Resp’t Br. at 8-10. Peabody also argues that the accumulations would have been 

cleaned up in the context of “continued normal mining operations” and, accordingly, would not 

42 FMSHRC Page 813
have been reasonably likely to cause injury had the inspector not intervened. Resp’t Br. at 8-10 

(citing U.S. Steel, 7 FMSHRC 1125, 1130 (Aug. 1985) (explaining that when considering 

whether a violation is S&S, the evaluation of the reasonable likelihood of injury should be made 

in the context of “continued normal mining operations”)). Finally, Peabody contends that 

Chatham’s claim that he smelled burning rubber should be discounted. Resp’t Br. at 10. 

The Commission has recently restated the four Mathies criteria that the Secretary must 

establish in order to prove that a violation is S&S under National Gypsum: 

(1) the underlying violation of a mandatory safety standard; (2) the 

violation was reasonably likely to cause the occurrence of the 

discrete safety hazard against which the standard is directed; (3) 

the occurrence of that hazard would be reasonably likely to cause 

an injury; and (4) there would be a reasonable likelihood that the 

injury in question would be of a reasonably serious nature. 

Peabody Midwest Mining, LLC, 42 FMSHRC___, slip. op. at 5 (June 2, 2020); see ICG Illinois,

LLC, 38 FMSHRC 2473, 2475-76 (Oct. 2016); Newtown Energy, Inc., 38 FMSHRC 2033, 2038 

(Aug. 2016); Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984); see also Buck Creek Coal, Inc. v. 

FMSHRC, 52 F.3d 133, 135 (7th Cir. 1995); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 

103-04 (5th Cir. 1988) (approving Mathies criteria), aff’g 9 FMSHRC 2015, 2021 (Dec. 1987). 

Resolution of whether a violation is S&S must be based “on the particular facts surrounding that 

violation.” Texasgulf, Inc., 10 FMSHRC 498, 501 (Apr. 1988); Youghiogheny & Ohio Coal Co., 

9 FMSHRC 2007, 2011-12 (Dec. 1987). 

The fact of violation has been established, satisfying the first Mathies criterion, and the 

discrete safety hazard against which section 75.400 is directed is fire or explosion contributed to 

by accumulations of combustible materials. 

The S&S determination must be made at the time that a citation is issued “without any 

assumptions as to abatement;” however, if active abatement is underway at the time of citation 

issuance, the sufficiency of the abatement measures must be considered when determining 

whether a violation contributes to the hazard. See generally Knox Creek Coal Corp., 811 F.3d 

148, 165-66 (4th Cir. 2016); Mach Mining, 40 FMSHRC at 1, 5-6; Paramont Coal Co., 37 

FMSHRC 981, 985 (May 2015); U.S. Steel, 7 FMSHRC at 1130; U.S. Steel Mining Co., 6 

FMSHRC 1573, 1574 (July 1984). In this case, active abatement was not underway at the time of 

inspection. Bell’s crew’s cleaning of the takeup area had been interrupted before Chatham came 

upon the condition, and those efforts were marginal, at best, in light of the significant 

accumulations. Accordingly, based on the cleanup deficiency from belt tear to inspection, I find 

that, in the context of continued normal mining, the accumulations would have existed. 

In cases involving combustible accumulations, the Commission has clarified that when 

considering the second and third steps of the Mathies analysis, “the likelihood of an injury 

resulting depends on the existence of a ‘confluence of factors’ that could trigger the ignition or 

explosion. Factors include any potential ignition sources, the presence or potential for presence 

of methane, float coal dust accumulations, loose coal or other ignitable substance, and the types 

42 FMSHRC Page 814
of equipment operating in the area.” Mach Mining, 40 FMSHRC at 3-4 (citations omitted) (citing 

McCoy Elkhorn Coal Corp., 36 FMSHRC 1987, 1992 (Aug. 2014)); see also Utah Power, 12 

FMSHRC at 971; Texasgulf, 10 FMSHRC at 501-03. Belts and belt rollers contacting 

accumulations can be ignition sources, even absent defects. Mach Mining, 40 FMSHRC at 4-6; 

Buck Creek, 52 F.3d at 135; see Knox Creek Coal Corp., 36 FMSHRC 1128, 1139-42 (May 

2014). Finally, it is well established that a fire in an underground coal mine poses a significant 

risk of injury to miners. Buck Creek, 52 F.3d at 135-36; Black Diamond, 7 FMSHRC at 1120. 

Despite Shoal Creek’s gassy nature, there is no evidence that methane was liberated in 

the H-2 belt takeup area. However, the possibility of sparks emanating from the non-permissible 

belt drive motors was unchallenged, as was the smell of burning rubber, which was consistent 

with the condition observed in the takeup area. Furthermore, the numerous points of frictional 

contact between the accumulations and the belt and several rollers, along with the belt strings 

wrapped tightly around several rollers, bearings, and the frame, had begun to dry out the 

accumulations. Accordingly, I find it reasonably likely that the coal accumulations contributed to 

the occurrence of a fire in the mine, and that the second Mathies criterion has been satisfied. 

Moving on to the third and fourth Mathies criteria, evidence establishing that intake air 

from the primary escapeway, combined with intake air from the H-2 belt entry, would dilute any 

smoke or contaminants reaching the longwall face, does not eradicate the danger of exposing the 

section crew to toxic air at the face and in the alternate escapeway, no matter how minimal the 

contamination. As the Seventh Circuit has expressed in Buck Creek, a finding that “a fire burning 

in an underground coal mine would present a serious risk of smoke and gas inhalation” is a 

common sense conclusion. 52 F.3d at 135-36; see also Black Diamond, 7 FMSHRC at 1120 

(recognizing that “ignitions and explosions are major causes of death and injury to miners”). 

Therefore, based on the evidence established in this case and the relevant precedent, I find that a 

mine fire would be reasonably likely to cause an injury, and a reasonable likelihood that the 

resultant injury would be of a reasonably serious nature, satisfying the Mathies test. Accordingly, 

this violation was S&S. 

C. Unwarrantable Failure and Negligence 

Unwarrantable failure is aggravated conduct constituting more than ordinary negligence, 

characterized by such conduct as “reckless disregard,” “intentional misconduct,” “indifference,” 

or a “serious lack of reasonable care.” CAM Mining, LLC, 38 FMSHRC 1903, 1908-09 (Aug. 

2016); Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991); Emery Mining 

Corp., 9 FMSHRC 1997, 2001-04 (Dec. 1987); see also Buck Creek Coal, 52 F.3d at 136. The 

Commission has recognized the relevance of several factors in determining whether conduct is 

“aggravated” in the context of unwarrantable failure, such as the extensiveness of the violation, 

the length of time that the violation has existed, whether the violation posed a high risk of 

danger, whether the violation was obvious, the operator’s knowledge of the existence of the 

violation, the operator’s efforts in eliminating the violative condition, and whether the operator 

has been put on notice that greater efforts are necessary for compliance. See McCoy Elkhorn, 36 

FMSHRC at 1993 (citing Manalapan Mining Co., 35 FMSHRC 289, 293 (Feb. 2013); IO Coal 

Co., 31 FMSHRC 1346, 1350-57 (Dec. 2009); Cyprus Emerald Res. Corp., 20 FMSHRC 790, 

813 (Aug. 1998), rev’d on other grounds, 195 F.3d 42 (D.C. Cir. 1999)). Each case must be 

42 FMSHRC Page 815
examined on its own facts to determine whether an actor’s conduct is aggravated, or whether 

mitigating circumstances exist. Eagle Energy, Inc., 23 FMSHRC 829, 834 (Aug. 2001) (citing 

Consolidation Coal, 22 FMSHRC 340, 353 (Mar. 2000)). Although some factors may be 

irrelevant to a particular scenario, all relevant factors must be examined. ICG Hazard LLC, 36 

FMSHRC 2635, 2637-38 (Oct. 2014) (citing IO Coal, 31 FMSHRC at 1351). 

The Secretary contends that, given the time that it took to clean up the accumulations, the 

condition was extensive. Sec’y Br. at 16-20 (citing McCoy Elkhorn, 36 FMSHRC at 1993 

(upholding a finding of extensiveness where it took an entire crew four hours to clean up 

accumulations)). Peabody makes the counter argument against extensiveness, in that the 

accumulations were confined mostly to the belt takeup area. Resp’t Br. at 15. In this regard, the 

Commission has explained that extensiveness of the violative condition has traditionally been 

determined by examining the magnitude of the violation as it existed at the time that the citation 

was issued. See Eastern Assoc. Coal Corp., 32 FMSHRC 1189, 1195 (Oct. 2010). The 

accumulations observed by Chatham were 120 feet long, 21 feet wide, and up to 30 inches deep, 

in contact with the belt and numerous rollers, and drying out in places, and belt strings were 

wrapped around rollers, bearings, and the takeup frame. Furthermore, it took 10 to 13 miners, 

over at least three shifts, to clean up the accumulations. Accordingly, this violation was extensive 

and clearly obvious, both aggravating factors. 

The Secretary asserts that accumulations existing for more than a shift, as in this case, 

constitute aggravated conduct. Sec’y Br. at 17 (citing Buck Creek, 52 F.3d at 136 (upholding a 

finding of unwarrantable failure where the accumulations existed for more than one shift after 

identification during a pre-shift examination)). Peabody argues that the condition existed for less 

than 24 hours, and that the accumulations washed back under the belt at some point after they 

had been moved onto the walkway. Resp’t Br. at 14-15. The record establishes that the belt tear 

occurred on December 11 day shift around 1 p.m., and that Peabody cleared the coal from under 

the belt onto the walkway before the belt was restarted on evening shift around 5:15 p.m., but 

that the accumulations were never completely removed from the walkway and taken out of the 

mine until after the citation was issued. Crediting that washback from the walkway occurred at 

some point after the initial cleanup of the spill, it is clear that the accumulations remained in the 

belt takeup area over a period spanning four shifts, from mid-day shifts December 11 to 

December 12. Accordingly, the violation existed for a significant length of time, an aggravating 

factor. 

The Secretary argues that the S&S designation indicates that this condition was highly 

dangerous. Sec’y Br. at 17-19 (citing San Juan Coal, 29 FMSHRC 125, 132-33, 134-35 (Mar. 

2007) (finding that the judge failed to relate facts considered in finding that a violation was S&S 

to the “degree of danger” prong of the unwarrantable failure analysis)). On the other hand, 

Peabody minimizes the danger by contending that the accumulations were wet. Resp’t Br. at 14-

15. The evidence establishes that the accumulations were extensive, drying out due to frictional 

contact with the belt and rollers, and that belt strings, coated with loose coal, coal fines and float 

coal dust, were wrapped around rollers, bearings, and the frame, posing a serious risk of ignition; 

additionally, this belt entry was an alternate escapeway, an essential component of the 

evacuation scheme for the active H-2 longwall in the event of an emergency. Accordingly, I find 

that this condition posed a high risk of danger, also an aggravating factor. 

42 FMSHRC Page 816
The Secretary contends that Peabody had knowledge of the condition because Barnett 

and Esch had examined the area, and Bell’s crew was cleaning there on the day of inspection. 

Sec’y Br. at 16-20. Peabody counters that it was aware of the condition at the time of the belt 

tear and took remedial action, but makes no representation as to its awareness of the intervening 

washback prior to Chatham’s inspection. See Resp’t Br. at 11-14. 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. See Drummond Co., 

Inc., 13 FMSHRC 1362, 1367-69 (Sept. 1991); Emery, 9 FMSHRC at 2002-04. The record 

establishes that the belt was repaired and the accumulations moved from under it onto the 

walkway prior to resumption of production during the evening shift, and that cleaning continued 

during the succeeding owl and day shifts. Peabody’s general knowledge, that washback occurred 

in the wet takeup area and that the accumulations were never completely removed from the 

walkway and taken out of the mine, has also been established. While Peabody’s washback 

contention has been credited, it has failed to establish when it occurred during the course of 

events. However, Barnett’s observation of hosing under the belt takeup during his evening preshift examination on December 11 should have put Peabody on notice that accumulations were 

back under the belt, notwithstanding the customary non-recording of hazards actively being 

addressed. Likewise, lack of notation of the hazard in the December 12 owl pre-shift report 

raises speculation as to whether the washback under the belt was overlooked or simply not 

recorded because of active spraying. See Ex. P–5 at 2-5. In any case, by day shift on the morning 

of inspection, the dispatchment of Bell’s crew to clean in the takeup area clearly establishes 

Peabody’s knowledge of the “mess” that Chatham would encounter a short while thereafter. 

Accordingly, there are several indicators that lead to a finding that Peabody knew or should have 

known of the ongoing condition, an aggravating factor. 

The Secretary maintains that Peabody’s cleaning efforts were insufficient, given the 

condition. Sec’y Br. at 18-19 (citing San Juan Coal, 29 FMSHRC at 134-35 (explaining that 

“subordination of cleanup efforts to other work may support an unwarrantable failure finding”); 

Peabody Coal Co., 14 FMSHRC 1258, 1260-63 (Aug. 1992) (affirming an unwarrantable failure 

where one miner had been assigned to clean the cited area, but it took five miners four hours to 

abate the violative condition)). Peabody responds that its cleanup efforts were reasonable in light 

of its knowledge of the condition after the spill, the fact that cleanup would have continued, and 

because Chatham’s opinions about the condition and cleanup efforts were erroneous. Resp’t Br. 

at 12-15 (citing Peabody Midwest Mining, LLC, 41 FMSHRC 340, 352 (June 2019) (ALJ) 

(finding that the violation was not unwarrantable based, in part, on the mine’s determination that 

its planned cleanup would eliminate the condition before it became hazardous)). Peabody also 

contends that “good faith” cleanup efforts can mitigate a finding of unwarrantable failure. Resp’t 

Br. at 11-13 (citing Cannelton Industries, Inc., 20 FMSHRC 726, 734 (July 1998); see also 

Peabody Midwest Mining, LLC, 41 FMSHRC 279, 303 (May 2019) (ALJ); Peabody Midwest 

Mining, LLC, 40 FMSHRC 87, 141 (Jan. 2018) (ALJ)). The Commission has stated that when an 

operator has been placed on notice of a problem, the level of priority that it places on abatement 

is relevant, and that the focus is on the operator’s abatement efforts prior to being cited. Enlow 

Fork Mining Co., 19 FMSHRC 5, 13-19 (Jan. 1997). Additionally, good faith cleanup efforts, 

even if based on a mistaken belief, can be a mitigating factor; however, the belief must be 

reasonable under the circumstances. Amax Coal Co., 19 FMSHRC 846, 851 (May 1997); see 

also Cannelton, 20 FMSHRC at 734. Obviously, the cleanup efforts after the belt was restarted 

42 FMSHRC Page 817
did not eliminate the condition, and Deavours’ reassignment of Bell’s crew, on the morning of 

December 12, to address another problem, indicates that Peabody failed to appreciate the 

seriousness of the accumulations and prioritize abatement. This is especially so in light of its 

general knowledge that washback occurred regularly in the H-2 belt takeup area, and given the 

extensiveness of the accumulations left in the walkway. Finally, Peabody raises legitimate 

questions as to Chatham’s understanding of belt operation during cleanup, its use of hoses for 

cleaning, and its cleanup efforts during December 12 owl and day shifts. However, any 

misconceptions that Chatham held about running the belt or hosing as essential components of its 

cleaning process, as well as Peabody’s actual efforts on December 12, have no bearing on 

Peabody’s overall inattention to the magnitude and seriousness of the accumulations, an 

aggravating factor. 

Repeated similar violations may also be relevant to an unwarrantable failure 

determination to the extent that they serve to put an operator on notice that greater efforts are 

necessary for compliance with a standard. Amax Coal, 19 FMSHRC at 851; see also 

Consolidation Coal Co., 23 FMSHRC 588, 595 (June 2001). The Commission has rejected the 

argument that only past violations, involving the same regulation and occurring in the same area, 

may be properly considered when determining whether a violation is unwarrantable. Peabody 

Coal, 14 FMSHRC at 1263. Shoal Creek was cited 121 times for violations of section 75.400 in 

the two years preceding this citation, and 25 times in the quarter. Peabody took control of Shoal 

Creek from Drummond on December 4, 2018 and, at the time of inspection, one section 75.400 

citation had been issued directly to Peabody. Ex. P–16 at 10, 19, 21. Notably, management 

employees Bell and Deavours retained employment with Peabody at Shoal Creek after having 

worked for Drummond. Moreover, it was well known that the area was prone to accumulations 

and washback. Taken together, the evidence establishes that Peabody was on notice that greater 

efforts for compliance were necessary, particularly in the cited area, another aggravating factor. 

After considering all the aggravating factors, I conclude that Peabody was highly 

negligent, and that this violation was the result of its unwarrantable failure to comply with the 

standard. 

2. Order No. 9136320 

Inspector Darryl Allen issued 104(d)(1) Order No. 9136320 on February 19, 2019, 

alleging an “S&S” violation of section 75.380(d)(1) that was “reasonably likely” to cause an 

injury that could reasonably be expected to be “fatal,” and was caused by Peabody’s “high” 

negligence and unwarrantable failure to comply with the standard.4

 The “Condition or Practice” 

is described as follows: 

The alternate escapeway leading from H-3 and H-2 longwall 

sections, to the west service shaft, is not maintained in safe 

condition to always assure passage of anyone, including disabled 

persons. Thick muddy water, containing coal fines, and covering 

4

 30 C.F.R. § 75.380(d)(1) provides that “[e]ach escapeway shall be . . . [m]aintained in a 

safe condition to always assure passage of anyone, including disabled persons.” 

42 FMSHRC Page 818
thick coal muck, has been allowed to accumulate in the West Main 

4 belt entry, (A.E.) from cross cut 82 to 83. The muddy water and 

muck, covering tire ruts, rocks, coal, and other stumbling hazards, 

exists in three low areas of the belt entry between cross cuts 82 and 

83, each measuring approximately 20 ft. in length x the full width 

of the walkway side of the belt entry, and ranging from 12 to 18 

inches deep. A 13 hp. pump is observed suspended in the water at 

cross cut 82, but is not in operation, and will not pump most of the 

thick mud and coal fine material. No pumps or pump lines are 

currently located at the other two low areas. This condition was 

reported to management on 2/18/19 following the 8:00 p.m. to 

11:00 p.m. pre-shift examination, and was entered in the outby preshift records under Hazardous Conditions, or Violation of a 

Mandatory Safety Standard, and was countersigned by the Owl 

Shift Mine Foreman. No corrective actions appear to have been 

taken. The operator has engaged in aggravated conduct 

constituting more than ordinary negligence. This violation is an 

unwarrantable failure to comply with a mandatory standard. 

Standard 75.380(d)(1) was cited 17 times in two years at mine 

0102901 (17 to the operator, 0 to a contractor). This violation is an 

unwarrantable failure to comply with a mandatory standard. 

Ex. P–6. The order was terminated on February 19, after the operator had removed water, coal 

fines, and coal muck from the holes, filled them with road mix and gravel, and cleared a six-footwide travelway in the alternate escapeway. Ex. P–6. 

A. Fact of Violation 

The Secretary contends that Peabody violated the standard because the alternate 

escapeway did not satisfy the “functional passability” test in Utah Power. Sec’y Br. at 33-34 

(citing 11 FMSHRC 1926, 1930 (Oct. 1989)).5

 Conversely, Peabody seeks vacation of the order, 

maintaining that the cited area in the West Main No. 4 belt entry was safe to travel, that three 

miners traveled the area without any problem and, challenging Allen’s account of the condition 

as uncorroborated, that establishment of a violation is largely a factual determination. Resp’t Br. 

at 21-22. 

1. Summary of Testimony 

a. Darryl Allen 

Inspector Darryl Allen testified for the Secretary that, upon arrival at Shoal Creek in the 

early morning of February 19 to conduct a quarterly E01 inspection, he found in the February 18 

evening pre-shift report, “water and muck deep 82 to 83 and 82” in the West Main No. 4 belt 

5

 The “functional passability” test in Utah Power predated section 75.380(d)(1) but, 

nonetheless, includes consideration of disabled miners’ ability to safely utilize escapeways. 

42 FMSHRC Page 819
entry, and that men were assigned to address the issue, but that the work was not completed. Tr. 

277, 284, 286-87, 292-93, 300-01, 305, 309-10; Ex. P–9(a), (b). He explained that the West Main 

No. 4 belt entry is the alternate escapeway for the H-2 and H-3 working faces, and that it is 

subject to examination every shift. Tr. 296-98, 358-59. He stated that Peabody safety supervisor 

Brett Clements transported the inspection party to crosscut 84, where it crossed over to the West 

Main No. 4 belt entry, and that he encountered thick “boot-sucking” muck and water, measuring 

12 to 18 inches, in holes located between crosscuts 82 and 83, each hole stretching the width of 

the walkway for a distance of approximately 20 feet, with tire ruts, coal fines, and rocks 

throughout the area. Tr. 312-13, 316-19, 338-39, 373. He testified that the first hole was filled 

with about 12 inches of water and muck, that the second hole, in which he almost fell, was filled 

with muck higher than the top of his boots, and that the third hole, filled with water and soupy 

muck, was approximately 18 inches deep. Tr. 316-24. He stated that there was a pump in the 

hole by crosscut 82 that was not running, and explained that it was not designed to handle muck. 

Tr. 324, 327-29. By his account, there were no indications that any cleaning had been underway, 

and he speculated that the muck could have accumulated over a period of weeks. Tr. 328-33. 

Consequently, he explained, he issued a withdrawal order because he was concerned about 

miners being impeded or losing balance and falling if they needed to use the escapeway and that, 

because the travelway was too narrow for vehicles, miners would have to travel on foot through 

this condition and then another 1 1⁄3 miles in order to reach the exit. Tr. 297, 311-12, 316-17, 326, 

331-34. Allen also expressed concern about the ability of disabled miners to escape in an 

emergency, noting that navigating the area in the cited condition with a stretcher would be 

dangerous. Tr. 375-77. 

b. Clarence Whitt 

Owl shift pump supervisor Clarence Whitt testified for Peabody that he had worked at 

Shoal Creek for about 16 years, that he typically reviews the fire boss book between 10:20 and 

10:30 p.m., that he records his cleaning assignments on the pre-shift report, and that he is directly 

notified of high priority issues by radio. Tr. 388-98, 400-01. He asserted that he reviewed the 

February 19 evening pre-shift report, that it identified water and muck at crosscut 82 and 

between crosscuts 82 and 83 in the West Main No. 4 belt entry, and that he went directly to that 

area with a pumper and found a hole at crosscut 82, approximately 20 feet long, 8 to 10 feet 

wide, and 8 to 10 inches deep, filled with water and muck, noting that he could not see the 

bottom of the hole. Tr. 396-97, 402-03, 411-15; Ex. P–9(a). As he continued inby, he stated, he 

found a second hole filled with muck, and that he did not walk the length of the hole or over to 

crosscut 83. Tr. 405, 416, 421-22. He stated that thick muck filled both holes, but that he did not 

identify any tripping hazard between crosscuts 82 and 83, and he admitted that he was focusing 

on cleanup when assessing the condition rather than escaping in an emergency. Tr. 416-18, 

421, 428, 432. Whitt also equivocated as to whether the muck was “boot sucking;” having 

testified that it was not, he was referred to his contradictory deposition testimony that it was, then 

was not, admitting that the change in his prior testimony had occurred after conferring with 

counsel. Tr. 406, 420, 425, 430, 431. He explained that the pump cannot remove muck, and that 

it is located at crosscut 82 because the area is low lying and anything uphill drains down to it. Tr. 

402-06, 409, 415-16, 419. He admitted that he did not know the depth of the muck after pumping 

water off the hole at crosscut 82 and acknowledged that, based on his experience, muck takes 

time to build up. Tr. 420, 425, 430-31. He testified that after pumping the water, he was called 

42 FMSHRC Page 820
away to service the main sump, that he never called for anyone to clean up the muck, and that he 

asked Joe Kennedy to check whether the water had built back up in the hole at crosscut 82. Tr. 

403, 418-22. Finally, he explained that mobile equipment, such as skidsteers, was necessary to 

remove muck and, while no equipment was there when he left, he heard over the radio that it was 

on the way. Tr. 418-24. 

c. Joe Kennedy 

Owl shift pump supervisor Joe Kennedy testified for Peabody that he had worked at 

Shoal Creek for over six years. Tr. 433-34. He explained that he and Whitt would review the 

examination records at the beginning of the shift and divide the work, noting that the records are 

important for passing information between shifts. Tr. 434, 443-44, 450. He testified that at the 

beginning of February 19 owl shift, he was working in an area without radio communication, 

that he left there between 4:30 and 5:30 a.m., and that he received a call about the West Main 

No. 4 belt entry. Tr. 436-39. He stated that he proceeded to crosscut 82 and found a little water 

and a lot of muck and that, as he walked the area, he did not need waders and encountered no 

tripping hazards. Tr. 439-41. He testified that he pumped water at crosscut 82 for 15 to 30 

minutes at 6 a.m., then called for someone to scoop the muck because the pumps can only handle 

water, and that he expected it to take place during day shift because there was no mobile 

equipment in the area at the time. Tr. 441-43, 456-57. 

d. Brett Clements 

Brett Clements testified for Peabody that he had been working as a safety supervisor at 

Shoal Creek since 2013. Tr. 458. He stated that he dropped off the inspection party at crosscut 

84, parked the mantrip at crosscut 81 and entered the West Main No. 4 belt entry there, that he 

met the inspection party around crosscut 83, and that he called mine foreman Doug Altizer about 

missing lifeline cones and muck that Allen had identified in the belt entry. Tr. 460-63, 487-89, 

500-01. Explaining that the entry slopes down from crosscut 81 to 82 and that water and muck 

were known to accumulate at that low point, he stated that he encountered a hole filled with 

muck and water at crosscut 82 and another filled with soupy muck between crosscuts 82 and 83, 

approximating both holes at 15 to 20 feet long, about walkway width, and 12 to 13 inches deep. 

Tr. 462, 480-83, 486, 490-91. He asserted that he had no trouble walking through the holes, that 

no water came up over his 16-inch boots, and that he did not encounter any trip and fall hazards, 

noting that he did not recall Allen stumbling. Tr. 462-64. In his opinion, withdrawing the miners 

was unnecessary because the material did not obstruct his travel in the escapeway. Tr. 465. He 

testified about the photographs that he had taken, indicating how high the muck had come up on 

his boots in the holes at crosscut 82 and between crosscuts 82 and 83, and identifying the 

inactive pump in the hole at crosscut 82. Tr. 466-67, 472-76, 496-98; Ex. R–1(a)-(c). He 

explained that soupy muck would need cleaning with a skid steer because it was too thick to 

pump, and stated that he was not present when the order was terminated by scooping with a skid 

steer and filling the holes with road mix and gravel, enabling water to flow down to the pump. 

Tr. 477, 480-486, 490-91, 500. 

42 FMSHRC Page 821
2. Analysis 

Section 75.380(d)(1) requires underground coal mine operators to maintain each 

escapeway in safe condition to assure passage of anyone, including injured miners. Maple Creek 

Mining, Inc., 27 FMSHRC 555, 556-59 (Aug, 2005). Operators must also keep escapeways clear 

for miners to quickly exit the mines in the event of emergencies. Mach Mining, LLC, 35 

FMSHRC 2937, 2942-43 (Sep. 2013) (citing Am. Coal Co., 29 FMSHRC 941, 948, 953-54 (Dec. 

2007)). The Commission has also explained that the proper consideration “is not whether miners 

have been safely traversing the route under normal conditions, but rather the effect of the 

condition of the route on miners’ ability to expeditiously escape a dangerous underground 

environment in an emergency.” Am. Coal, 29 FMSHRC at 950 (citations omitted). Moreover, the 

Commission has noted that “[o]f particular importance in determining whether an escapeway is 

adequate under section 75.380 is the ability of miners to transport an injured miner on a stretcher 

through it.” Maple Creek, 27 FMSHRC at 560. 

While Peabody correctly contends that the question of whether an escapeway is passable 

is largely a factual one, its arguments - - that because Whitt, Kennedy, and Clements walked the 

area between crosscuts 82 and 83 eight times, collectively, without difficultly, escaping miners 

would not be impeded, and that Allen overstated the seriousness of the condition - - are not 

persuasive. See Resp’t Br. at 21-22 (citing Am. Coal, 29 FMSHRC at 948; Maple Creek, 27 

FMSHRC at 559-61; Big Laurel Mining Corp., 37 FMSHRC 2001, 2032 (Sept. 2015) (ALJ)). 

The plain wording of section 75.380(d)(1) makes clear that it contemplates consideration of 

whether disabled miners would be able to pass safely, and is not restricted to able-bodied 

miners who, in this case, were already aware of the condition and not acting in response to an 

emergency.6 See Maple Creek, 27 FMSHRC at 556-57, 560 n.5 (addressing the fact that use of 

an escapeway during an emergency is significantly more dangerous than using the same entry as 

a travelway in a non-emergency situation). 

The evidence clearly establishes that there were three holes spanning the width of the 

walkway, filled with either water standing atop muck or a mixture of water and thick muck, i.e., 

soup, and that there were ruts and rocks throughout the area. While witnesses reported having 

encountered different depths of material in the holes, given the size and irregularities of the 

depressions, in conjunction with evidence lacking in exactitude as to where Allen and each miner 

was standing within them, I credit all testimony on this point, and find that water and muck in 

these holes ranged from 8 to 18 inches deep. Likewise, I credit Allen that one of the holes 

contained deep, boot-sucking muck, simply because the other witnesses may not have walked 

through the exact area in which he barely avoided falling. Regarding the inconsistent testimony 

as to the number of holes in the entry, I credit Allen’s testimony that there were three based on 

his detailed description, supported by his contemporaneous notes, and the fact that neither 

Clements nor Whitt traveled the full length of the cited area. See Ex. P–8 at 2-5. Therefore, based 

on the evidence in its entirety, I find that the conditions in the West Main No. 4 alternate 

6

 Peabody’s cite to American Coal, involving a violation of section 75.380(b)(1) and 

providing guidance on escapeways generally, does not address safe passability of disabled 

miners and, consequently, is not instructive on this point. See Resp’t Br. at 21 (citing 29 

FMSHRC at 948). 

42 FMSHRC Page 822
escapeway would impede miners’ safe passage under emergency conditions, particularly miners 

carrying a stretcher or assisting an injured miner, and that Peabody violated section 75.380(d)(1). 

B. Gravity 

The Secretary contends that this violation was S&S because in an emergency, miners 

were reasonably likely to be delayed, and delay could cause serious injury. Sec’y Br. at 34-36. 

On the contrary, Peabody contends that Cumberland Coal requires consideration of the facts and 

circumstances surrounding an alleged violation of an emergency standard when determining 

whether it is S&S, and that delay was unlikely. Resp’t Br. at 23-24 (citing ICG Illinois, 38 

FMSHRC at 2483 (Althen, dissenting); Mach Mining, 36 FMSHRC at 1530 (Cohen, 

concurring)). Peabody also argues that the muck, water, and holes would have been eradicated in 

the context of continued normal mining and, accordingly, would not have been reasonably likely 

to cause injury had the inspector not intervened. Resp’t Br. at 25-26 (citing U.S. Steel, 7 

FMSHRC at 1130) (explaining that evaluation of the reasonable likelihood of injury should be 

made in the context of “continued normal mining operations”). 

The fact of violation has been established, satisfying the first Mathies criterion, and the 

discrete safety hazard that section 75.380(d)(1) is intended to prevent is impeding or delaying 

miners, including those disabled, in exiting the mine should usage of the escapeway become 

necessary in an emergency. 

The Commission has explained that it is crucial to identify the hazard in the context of 

the occurrence of the envisioned emergency and that, “[b]ecause the particular facts in a case 

may not establish that a violation of an [emergency] standard contributes to a hazard which is 

reasonably likely to result in an injury, not every violation of an [emergency] standard will be 

S&S.” Cumberland Coal Res., 33 FMSHRC 2357, 2369 (Oct. 2011), aff’d 717 F.3d 1020 (D.C. 

Cir. 2013); see also Peabody Midwest, 42 FMSHRC___, slip. op. at 4-6; ICG Illinois, 38 

FMSHRC at 2483 (Althen, dissenting) (“[A]ssuming the existence of an emergency is not the 

same thing as assuming that the violation is S&S . . . . [T]he particular facts surrounding the 

violation must be considered.”). 

The evidence establishes that pump supervisors Whitt and Kennedy pumped water from 

the hole at crosscut 82 on February 19 owl shift. However, at the time of inspection, no action 

had been taken to remove the water or soupy mixtures from the other two holes, much less fill 

them. Accordingly, based on the inadequate remedial efforts leading up to inspection, I find that 

the condition would have existed in the context of continued normal mining. Peabody’s position 

that safe travel in the alternate escapeway would not have been impeded, as evidenced by the 

three miners’ uneventful travel through the cited area, is unavailing. The evidence clearly 

establishes that the water and muck-filled holes in the rutted, and rock strewn terrain, posed trip 

and fall hazards that would be reasonably likely to impede escaping miners, particularly in the 

case of disabled miners being assisted in exiting the mine safely, satisfying, the second Mathies 

criterion. 

Regarding the third and fourth Mathies criteria, any trip and fall hazards impeding and 

delaying safe passage through the alternate escapeway during an emergency would be reasonably 

42 FMSHRC Page 823
likely to prolong miners’ exposure to adverse atmospheric conditions, resulting in, but not 

limited to, respiratory and musculoskeletal injuries of a reasonably serious nature, satisfying both 

criteria. Accordingly, I find that this violation was S&S. 

C. Unwarrantable Failure and Negligence 

In support of the unwarrantable failure charge, the Secretary asserts that the water and 

muck-filled holes in the alternate escapeway were extensive, obvious, and highly dangerous, that 

they had existed since, at least, February 18, that Peabody was aware of the condition, that its 

abatement efforts were inadequate, and that it was on notice that greater efforts were necessary 

for compliance. Sec’y Br. at 36-41. 

Peabody counters that it knew about the condition, that reasonable efforts were made to 

address it in the short time that it had existed, and that further cleaning would have continued. 

Resp’t Br. at 26-27. Peabody also contends that the cited area was traveled numerous times by its 

miners, without incident, indicating that the condition was not as dangerous or extensive as Allen 

believed, and that it was not on notice to expend greater effort to be compliant. Resp’t Br. at 27-

28. 

The evidence establishes that there were three sizable holes, walkway-wide, filled with 

water atop muck or soupy muck, about 20 feet long and 8 to 18 inches deep, in a rutted, rocky 

area of the escapeway, and that the condition was first recorded in the February 18 evening preshift report. This condition was reasonably likely to impede safe passage of miners responding to 

an emergency, and more so miners disabled and in need of assistance, notwithstanding the fact 

that two pump supervisors walked, without incident, through a portion of the area during owl 

shift. Accordingly, I find that the condition was extensive and obvious, and that it had existed for 

at least three shifts, a significant timespan given the highly dangerous nature of unexpected trip 

and fall hazards in the escapeway, and the mandate that it always be maintained to assure safe 

passage of everyone. These are aggravating factors. 

It is clear that Peabody was aware of the hazardous condition since February 18 evening 

shift, and also of the area’s susceptibility to accumulations of water and muck. Moreover, the 

owl shift pump supervisors, having observed the targeted area on February 19, took no action to 

ensure that mobile scooping equipment was delivered to the area on their watch rather than 

relying on the next shift. While Peabody correctly points out that Allen mistakenly believed that 

no cleaning, whatsoever, had occurred before he issued the withdrawal order, it is clear that 

pumping at crosscut 82 was only the initial action necessary to abate the condition. Furthermore, 

termination of the order not only involved removal of the water and muck, but filling the holes, a 

remedial step that it is reasonable to conclude would not have occurred, but for issuance of the 

order. Accordingly, I find that Peabody had knowledge of the condition, and that its abatement 

efforts were insufficient, both aggravating factors. 

Shoal Creek was cited 17 times for violations of section 75.380(d)(1) in the two years 

preceding this order. Peabody took control of the mine on December 4, 2018 and, at the time of 

this order, two section 75.380(d)(1) citations had been issued directly to Peabody at the mine. 

Ex. P–16 at 6-7, 21. Notably, when ownership changed hands, pump supervisors Whitt and 

42 FMSHRC Page 824
Kennedy, and safety supervisor Clements were retained by Peabody and, based on this violation 

history and the importance of maintaining passable escapeways in underground mines, Peabody 

should have appreciated the urgency in abating the condition. Accordingly, I find that Peabody 

was on notice that greater efforts for compliance with this emergency standard were necessary, 

also an aggravating factor. 

After considering all the aggravating factors, I conclude that Peabody was highly 

negligent, and that this violation was the result of Peabody’s unwarrantable failure to comply 

with the standard. 

3. Order No. 9136341 

Inspector Darryl Allen issued 104(d)(1) Order No. 9136341 on March 11, 2019, alleging 

an “S&S” violation of section 75.400 that was “reasonably likely” to cause an injury that could 

reasonably be expected to result in “lost workdays or restricted duty,” and was caused by 

Peabody’s “high” negligence and unwarrantable failure to comply with the standard. See supra at 

4 n.2. The “Condition or Practice” is described as follows: 

Combustible material in the form of wet and dry coal fines and 

coal muck, have been allowed to accumulate in the North Main 1 

belt entry, and are observed in contact with the belt surface and 

belt rollers. The accumulation exists from cross cut 20, inby to the 

belt tail pulley at cross cut 22.5, a distance of approximately 400 ft. 

in length, x 20 ft. wide, and ranging from 6 to 24 inches deep. Coal 

fines are under the belt tailpiece, in contact with the bottom belt, 

and belt tail pulley. The belt has been shut off by the mine 

foreman, due to 8 seized belt rollers being rubbed by the moving 

belt, currently cited between cross cut 10 and the belt tail. Two 

bottom belt rollers are observed buried in packed coal, with only 

the top of the rollers visible on the off walkway side of the belt. 

Two of the seized belt rollers are observed near the tail piece at 

structure nos. 432 and 441. The bottom belt has been running on 

top of packed damp to dry coal fines from the tail pulley to cross 

cut 22, a distance of approximately 100 ft. in length. Coal 

accumulation at the North Main 1 belt tail has been reported by 

belt examiners and entered in the examination records for 8 

consecutive shifts, from 3/8/19 during the 12:00 to 2:00 p.m. exam 

to 3/10/19 during the 8:00 to 10:00 p.m. exam. During the most 

recent pre-shift examination conducted this morning, 3/11/19 

between 4:00 and 7:00 a.m., the examiner reported 3 frozen rollers 

including one roller that was broken. During today’s inspection at 

approximately 11:00 a.m., these damaged rollers, and others, are 

still observed being rubbed by the moving belt. No miners are 

observed in the area at the time of inspection, and no corrective 

actions of reported conditions have been taken. The mine foreman 

has shut the belt off and called for a belt crew to begin corrective 

42 FMSHRC Page 825
actions. Standard 75.400 was cited 131 times in two years at mine 

0102901 (131 to the operator, 0 to a contractor). This violation is 

an unwarrantable failure to comply with a mandatory standard. 

Ex. P–10. The order was terminated on March 12, after Peabody removed the coal fines and coal 

muck from under the tailpiece and walkway. Ex. P–10. 

A. Fact of Violation 

The Secretary maintains that Peabody mine foreman Mike Earl, by and large, confirmed 

Allen’s account of the condition. Sec’y Br. at 23. Peabody argues that because the material noted 

in the records had been cleaned recently, it was spillage rather than prohibited accumulations and 

that, given its wetness, it was not combustible. Resp’t Br. at 34-35 (citing Utah Power, 951 F.2d 

at 295 n.11 (noting that operators must clean “loose coal” with “reasonable promptness”); 

Consolidation Coal Co., 33 FMSHRC 385, 395-96 (Feb. 2011) (ALJ) (stating that cited material 

must be combustible in order to establish a violation of section 75.400.)). 

1. Summary of Testimony 

a. Darryl Allen 

Inspector Darryl Allen testified for the Secretary that he continued the quarterly E01 

inspection of Shoal Creek on March 11 around 7:00 a.m., and that he believed that 

accumulations in the North Main No. 1 tail area, identified in 11 consecutive pre-shift and onshift reports, had not been fully addressed since March 7, noting that the condition had been 

recorded inconsistently as “hazardous” and “non-hazardous.” Tr. 511, 518-539, 600-05; Exs. 

P–11 at 1, P–12 at 36-56. He testified that, upon arrival at the North Main No. 1 belt entry, he 

identified a seized roller near crosscut 10, that foreman Mike Earl stopped the belt, that 

continuing inby, he identified seven more seized rollers and issued a citation for eight seized 

rollers between crosscuts 10 and 22 1⁄2, and that he also issued a citation for two nonfunctional 

fire hose outlets. Tr. 541-48. He stated that around crosscut 20 until around crosscut 22 1⁄2, he 

found rib-to-rib accumulations of coal fines and coal muck, 6 to 24 inches deep, that the belt was 

in contact with coal accumulations in two places in the tail area for approximately 20 feet and 

100 feet, respectively, and that two rollers were completely impacted by coal in the tail area. Tr. 

541, 548-55, 557, 561, 572, 612; Exs. P–11, P–13(c)-(k). Allen described his photographs of the 

conditions, acknowledging that the exact locations depicted were unclear. Tr. 559-76, 617; Exs. 

P–13 (a)-(k), P–14 (a), (b). He asserted that he had touched the accumulations, and that they 

were drying out at points of contact with the belt and rollers. Tr. 555-56, 565-67. By his account, 

no cleaning was occurring when the inspection party reached the affected areas, and no mobile 

cleaning equipment was present. Tr. 557. He estimated that cleaning would have required a crew 

of miners using shovels and mobile equipment, but acknowledged that MSHA has no specific 

requirements as to cleaning methods. Tr. 557-58, 590, 615. Based on the extensiveness of the 

accumulations, he opined that they could have existed for multiple weeks, and that the mine was 

aware of them from the records. Tr. 588-90. He acknowledged that when he returned to the cited 

area on March 12, four to five feet of material had been cleared from underneath the belt, and 

that some of it could have been noncombustible, such as fire clay. Tr. 591-94. Allen also 

42 FMSHRC Page 826
testified about previous accumulations violations at Shoal Creek, stating that he had “tried to 

work with the mine” to prevent them, but that “they just didn’t seem to improve any.” Tr. 576-

84, 595-96, 616; Ex. P–15(a)-(f). 

b. Chris Robertson 

Owl shift foreman Chris Robertson testified for Peabody that he had worked at the mine 

for about 10 years, that his schedule included alternate weekends, that weekends are used 

typically for maintenance, although the mine runs coal on Saturday sometimes, that the belts do 

not operate when the mine is not producing, and that the belt is not examined in its entirety 

during shifts when it is not running. Tr. 622-24, 626-28. He stated that he reviews the records at 

the beginning of his shift to identify hazards and assign workers, and explained that Peabody’s 

examiners designate hazardous conditions either (“HC”) for high priority, or (“HS”) for lower 

priority non-hazardous health and safety conditions, and that the records reflect when a shift 

refers unaddressed issues to the next shift. Tr. 624, 626-28; Ex. P–12. He explained that the tail 

area was prone to accumulations, and that a full-time miner was stationed there to monitor 

accumulations. Tr. 658-62. Robertson reviewed the records from March 7 evening shift through 

March 11 owl shift, and testified that the belt was not running from Saturday, March 9 owl shift 

until Monday, March 11 owl shift, that the accumulations noted were not hazardous because 

there was no friction when the belt was not running, and that accumulations cannot be removed 

from the mine when the belt is shut down. Tr. 630-41; Ex. P–12 at 37-54. He stated that the belt 

was restarted between 3:00 and 5:00 a.m. on March 11, that the accumulations were cleaned at 

his direction during that shift, and that his account was based on his review of the records rather 

than his memory. Tr. 625, 629-39, 643-45; Ex. P–12 at 37-55. He noted that the accumulations 

identified in the March 11 owl pre-shift report were at crosscuts 23 and 24, not 22 where the 

tailpiece is located, that a sump, catching water and coal fines from the tail area near crosscuts 22 

and 23, can be clogged by muck and coal, and that accumulations must be washed from under 

the belt when it is running, then scooped onto it to be taken out of the mine. Tr. 639-41, 647-53; 

Ex. P–12 at 56. He noted that when the belt is shut down, it can be “bumped,” i.e., intermittently 

started and stopped quickly, for loading, but that it needs to run in order to take accumulations 

out of the mine. Tr. 645-50. Finally, he acknowledged that accumulations in contact with turning 

rollers can dry out, but opined that because the tail area is always wet, that would not happen. Tr. 

642-43, 651. 

c. Mike Earl 

Day shift mine foreman Mike Earl testified for Peabody that he worked at Shoal Creek 

from 2003 to 2006 and, currently, since 2009. Tr. 656. He explained that all coal transported out 

of the mine travels on the North Main No. 1 belt, that the sump helps control accumulations 

around the tail area, and that a full-time employee is stationed there because the belt entry is 

susceptible to water and accumulations, which can occur quickly. Tr. 657-62. He testified that on 

March 8, he reviewed the owl pre-shift report for that day, noted the hazardous accumulations at 

crosscut 22 in the North Main No. 1 belt entry, and that he countersigned the report which 

indicated that men had been assigned. Tr. 675-76; Ex. P–12 at 38. Earl stated that at the 

beginning of his shift on March 11, he reviewed the record and delegated work assignments, then 

joined the inspection party. Tr. 655, 662, 669, 675-77. According to him, the inspection party 

42 FMSHRC Page 827
entered the North Main No. 1 belt entry at crosscut 6 and, walking inby, found the seized roller 

around crosscut 10, which had been noted in the examination record, and he turned off the belt 

and called Johnathan Aaron to fix it. Tr. 663-69. He stated that as the inspection party 

approached the tailpiece, beltline attendant Aaron Thrasher was washing material from under the 

belt between crosscuts 22 and 23, that he told Thrasher to turn off the water, and that he did not 

recall any mobile equipment in the area. Tr. 664-66, 670. His testimony was inconsistent as to 

where the cited accumulations began and, ultimately, he stated that he could not remember, but 

that they could have started anywhere between crosscuts 20 and 22 1⁄2, that they stretched 80 to 

100 feet, and that there were coal fines on rollers and accumulations in contact with the belt. Tr. 

664, 667-68, 671-73. He acknowledged that cleaning would require spraying by more than one 

miner, and that the belt would have continued running if he had not shut it down when the 

inspection party reached crosscut 10. Tr. 674, 678. He also testified that the order was terminated 

by cleaning that continued from day shift through evening and owl shifts. Tr. 678-79. 

d. Johnathan Aaron 

Day shift dewater supervisor Johnathan Aaron testified for Peabody that he supervised 

the tail area of the North Main No. 1 belt and delivered equipment, explaining that he would 

review examination records and delegate work, and that on March 11 day shift, he assigned 

Aaron Thrasher to change rollers at crosscuts 20 and 21 and clean accumulations in the tail area, 

noting that he would need to spray and use a skid steer. Tr. 682-87, 700; Ex. P–12 at 56. He 

testified that the skid steer was down, that while he and Thrasher were repairing it, Mike Earl 

called him about a seized roller at crosscut 10, that he left Thrasher working on the skid steer and 

that, subsequently, Thrasher went to clean the tail area. Tr. 688-91, 696-700, 713-14; Ex. R–2. 

According to Aaron, he did not become aware of the extensiveness of the accumulations at the 

tailpiece until Allen found them. Tr. 691, 699, 713-14. He explained that the belt department has 

10 skid steers, 7 Lo Tracs,7

 and 2 loaders, that not all mobile equipment is available at any given 

time and that, immediately after the order was issued, 10 miners terminated the order using 

loaders, skid steers, and Lo Tracs. Tr. 701-04, 711-15; Ex. R–2. 

2. Analysis 

Restated, a violation of section 75.400 occurs “where the quantity of combustible 

materials is such that, in the judgment of the authorized representative of the Secretary, it could 

cause a fire or explosion if an ignition source were present.” Old Ben II, 2 FMSHRC at 2808. 

Although Shoal Creek is a wet mine and the tail area in the North Main No. 1 belt entry is 

particularly wet, the unrebutted evidence that the accumulations were drying out in several 

places belies Peabody’s contention that the accumulations were non-combustible. Furthermore, 

its contention, that the accumulations were spillage because of recent occurrence, is also 

unavailing. See Black Beauty, 703 F.3d at 558-59, 559 n.6 (explaining that operators are not 

afforded a reasonable time to clean accumulations before a violation of section 75.400 can be 

found, and that accumulations of combustible materials substantial enough to propagate a fire are 

7

 Lo Tracs are mobile equipment used by Peabody to remove material from underneath 

the belts. Tr. 702. 

42 FMSHRC Page 828
prohibited, even if recent). Accordingly, based on the evidence in its entirety, I find that there 

were accumulations of coal fines and coal muck, from around crosscut 20 to 22 1⁄2, entry-wide, 

that there were several points of contact between the accumulations and the belt, that two rollers 

were completely impacted by coal, that eight rollers, some in the tail area, were seized, and that 

some accumulations had dried out due to frictional contact and, therefore, were combustible. 

Accordingly, I conclude that Peabody violated section 75.400. 

B. Gravity 

The Secretary argues that, given the realistic potential for fire to occur, the violation was 

S&S. Sec’y Br. at 23-25. Peabody maintains that an ignition was unlikely to occur because of the 

wet conditions in the mine and absence of methane, and further, that its active cleanup was 

interrupted by Allen. Resp’t Br. at 36-37. 

The fact of violation has been established, satisfying the first Mathies criterion, and the 

discrete safety hazard against which section 75.400 is directed is fire or explosion contributed to 

by accumulations of combustible materials. 

The evidence establishes that beltline attendant Aaron Thrasher was assigned to clean the 

tail area at the beginning of March 11 day shift, but was delayed because the skid steer was 

down, and that he was repairing it with dewater supervisor Johnathan Aaron when the inspection 

started. Ultimately, Thrasher went to the tail area to clean without a functioning skid steer. While 

Allen did not see any cleaning underway in the tail area, I credit that Thrasher was spraying 

under the belt when the inspection party reached the area, and that he stopped cleaning at Earl’s 

direction. Notably, it took 10 miners, cleaning with hoses and mobile equipment through the day, 

evening, and owl shifts, to remove the accumulations. Accordingly, based on Peabody’s scanty 

allocation of manpower and mobile equipment for cleanup prior to issuance of the order, I find 

that the accumulations would have existed in the context of continued normal mining. Despite 

Shoal Creek’s gassy nature, there is no evidence that methane was liberated in the cited area. 

However, based on the evidence of extensive accumulations in contact with the belt and rollers, 

multiple seized and impacted rollers, and accumulations drying out due to frictional contact, I 

find that the coal accumulations contributed to the reasonable likelihood of a fire in the mine, 

and that the second Mathies criterion has been satisfied. 

The evidence also establishes that in the event of a mine fire, at the very least, the fulltime miner stationed at the tail area would be exposed to smoke-filled air. Moreover, fire burning 

in the underground coal mine would present a serious risk of smoke and gas inhalation, resulting 

in injuries of a reasonably serious nature, satisfying the third and fourth Mathies criteria. See

Buck Creek, 52 F.3d at 135-36; see also Black Diamond, 7 FMSHRC at 1120. Accordingly, I 

find that this violation was S&S. 

C. Unwarrantable Failure and Negligence 

In support of the unwarrantable failure designation, the Secretary asserts that the 

accumulations were extensive, obvious, and highly dangerous, that they had existed for at least 

11 shifts preceding inspection, that Peabody had knowledge of the condition, that its efforts to 

42 FMSHRC Page 829
abate it were inadequate, and that it was on notice that greater efforts were necessary for 

compliance. Sec’y Br. at 25-29. 

Peabody contends that the unwarrantable failure designation is inappropriate because the 

accumulations in the North Main No. 1 belt entry, noted in the March 8 owl pre-shift report, 

were cleaned during the next evening shift and recorded as non-hazardous in the pre-shift report, 

then partially cleaned during March 9 owl shift, and fully cleaned during March 11 owl shift. 

Resp’t Br. at 38-41. Peabody also maintains that the cited accumulations were new, having 

existed for less than a shift, that they were not extensive, and that it was not on notice that greater 

efforts for compliance were required. Resp’t Br. at 40-42. 

The evidence establishes that coal accumulations, rib-to-rib, spanning an area from 

around crosscut 20 to crosscut 22 1⁄2, were in contact with the belt and rollers, that two rollers 

were completely impacted by them, that multiple rollers, some in the tail area, were seized, and 

that some of the accumulations had dried out. This extensive and obvious condition created a 

serious risk of ignition, and was highly dangerous. These are aggravating factors. 

Examination records indicate that the accumulations in the North Main No. 1 belt entry 

tail area began on Thursday, March 7 evening shift and continued throughout the weekend, and 

that some cleaning in the tail area had occurred during March 8 evening, and March 9 and 11 

owl shifts. Foreman Chris Robertson’s testimony that the tail area was completely cleaned on 

March 11 owl shift is undercut by the extensiveness of the coal accumulations in contact with the 

belt and rollers, the rollers completely impacted with coal, and the seized rollers that the 

inspection party encountered later that morning, a condition reasonably likely to have developed 

over several shifts. Moreover, if accumulations are commonplace in the tail area, as Peabody 

contends, one full-time miner stationed there would seem reasonable to monitor them, but would 

constitute insufficient manpower to keep them in check. In light of the credible observations of 

the accumulations and the evidence as a whole, I find that the area was not completely cleaned 

during March 11 owl shift, and that what did occur did not even put a dent in the condition. 

Nevertheless, crediting Peabody’s assertion - - that the condition was not hazardous for the better 

part of the weekend when the belt was not running - - does not negate that it became hazardous 

when it was not fully abated before production resumed on March 11 owl shift. Accordingly, I 

find that the accumulations existed, to varying degrees, since March 7 evening shift until the 

inspection on March 11 day shift, and that Peabody was aware of it, both aggravating factors. 

The evidence indicates that some cleaning in the North Main No. 1 belt entry had 

occurred during multiple shifts on March 8, March 9, and March 11, and that Thrasher had been 

spraying under the tail without any mobile equipment when the area got inspected. Notably, it 

ultimately took 10 miners, cleaning with hoses and mobile equipment over a period of three 

shifts, to terminate the order, a sizeable work crew compared to the lone miner hosing the area. 

Accordingly, I find that Peabody’s efforts fell far short of what was required to abate the 

hazardous condition, and this is an aggravating factor. 

The Commission has emphasized that “past discussions with MSHA about an 

accumulation problem serve to put an operator on heightened scrutiny that it must increase its 

efforts to comply with the standard.” San Juan Coal, 29 FMSHRC at 131 (quoting Consolidation 

42 FMSHRC Page 830
Coal, 23 FMSHRC at 595); see also Amax Coal, 19 FMSHRC at 851. Shoal Creek Mine had 131 

section 75.400 violations in the past two years and, although Peabody took control of the mine 

on December 4, 2018, at the time of this order, 20 section 75.400 violations had been issued 

directly to Peabody. Exs. P–10, P–16 at 6-7, 21. Additionally, Allen had tried to assist 

management in preventing coal accumulations during prior inspections, and the record 

establishes that shift foremen Chris Robertson and Mike Earl had also worked at Shoal Creek 

under the prior ownership. Accordingly, I find that Peabody was on notice that greater efforts for 

compliance with this standard were necessary, another aggravating factor. 

After considering these aggravating factors, I conclude that Peabody exhibited a high 

degree of negligence, and that this violation was the result of its unwarrantable failure to comply 

with the standard. 

IV. Penalties 

While the Secretary has proposed a total civil penalty of $76,061.00, the judge must 

independently determine the appropriate assessment by proper consideration of the six penalty 

criteria set forth in section 110(i) of the Mine Act: 

(1) the operator's history of previous violations; (2) the 

appropriateness of the penalty to the size of the business of the 

operator; (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) whether good faith was demonstrated in 

attempting to achieve prompt abatement of the violation. 

30 U.S.C. § 820(i); See Sellersburg Co., 5 FMSHRC 287, 291-92 (Mar. 1983), aff’d 736 F.2d 

1147 (7th Cir. 1984). Additionally, the Commission has recognized the difference between 

regularly and specially assessed proposed penalties, requiring that judges explain divergences 

from regularly assessed penalties but not those specially assessed, and avoid using special 

assessments as anchoring points in setting penalties. Solar Sources Mining, LLC, 42 FMSHRC 

181, 190-202, 198 n.25 (Mar. 2020); see also American Coal Co., 933 F.3d 723, 727 (D.C. Cir. 

2019) (explaining that the Secretary is under no obligation to “prove” his decision to propose a 

special assessment rather than a regular assessment). 

Two of the three charges in this proceeding involve serious accumulations violations. 

While the Secretary has based his proposed penalty for the violation in the H-2 belt entry on 

application of his Part 100 penalty points, the proposed penalty for the arguably similar violation 

in the North Main No. 1 belt entry has been specially assessed. One plausible explanation for this 

difference in approach is that the 104(d)(1) citation in the H-2 belt takeup area preceded the 

104(d)(1) order in the North Main No. 1 tail area by a mere three months, clearly placing 

Peabody under heightened scrutiny to prevent recurrent violations. 

Applying the Sellersburg penalty criteria, and based on a review of MSHA’s online 

records, I find that Peabody is a large operator. The record also indicates that Peabody 

demonstrated good faith in achieving rapid compliance after notice of the violations, and 

42 FMSHRC Page 831
consideration of the Assessed Violation History Reports follows for the one citation and two 

orders. The parties have stipulated that imposition of the proposed penalties will not adversely 

affect Peabody’s ability to remain in business. Jt. Stip. 6. The remaining criteria involve 

consideration of the gravity of the violations, and Peabody’s negligence in committing them, 

factors that have already been discussed fully. Therefore, considering my findings as to the six 

penalty criteria, the penalties are set forth below. 

1. Citation No. 9136082 (SE 2019-0075) 

It has been established that this S&S violation was reasonably likely to cause an injury 

that could reasonably be expected to result in lost workdays or restricted duty, and that it was 

caused by Peabody’s high negligence and unwarrantable failure to comply with the standard. In 

the fifteen-month period preceding issuance of this citation, 87 violations of section 75.400 

issued to Shoal Creek became final orders of the Commission. Ex. P–16 at 10, 19, 21. Because of 

the overlap in Drummond and Peabody management when Shoal Creek ownership changed 

hands, as well as evidence that accumulations violations were problematic at the mine and the 

cited area was prone to accumulations, I find the violation history aggravating. The Secretary has 

proposed a regularly assessed penalty of $3,161.00 for this serious violation. Applying the civil 

penalty criteria, I find that a penalty of $7,500.00 is appropriate. 

2. Order No. 9136320 (SE 2019-0146) 

It has been established that this S&S violation was reasonably likely to cause an injury 

that could reasonably be expected to result in a fatality, and that it was caused by Peabody’s high 

negligence and unwarrantable failure to comply with the standard. In the fifteen-month period 

preceding issuance of this order, 12 violations of section 75.380(d)(1) issued to Shoal Creek 

became final orders of the Commission. Ex. P–16 at 6-7, 21. Because of the overlap in 

Drummond and Peabody management when Shoal Creek ownership changed hands, I find the 

violation history aggravating. The Secretary has specially assessed a penalty of $57,700.00 for 

this serious violation. Applying the civil penalty criteria, I find that a penalty of $38,500.00 is 

appropriate. 

3. Order No. 9136341 (SE 2019-0146) 

It has been established that this S&S violation was reasonably likely to cause an injury 

that could reasonably be expected to result in lost workdays or restricted duty, and that it was 

caused by Peabody’s high negligence and unwarrantable failure to comply with the standard. In 

the fifteen-month period preceding issuance of this order, 88 violations of section 75.400 became 

final orders of the Commission. Ex. P–16 at 10, 19, 21. Because of the overlap in Drummond 

and Peabody management when Shoal Creek ownership changed hands, along with the recent, 

serious accumulations violation in the H-2 belt entry and MSHA’s emphasis on accumulations 

prevention at the mine, I find the violation history aggravating. The Secretary has specially 

assessed a penalty of $15,200.00 for this serious violation. Applying the civil penalty criteria, I 

find that a penalty of $15,000.00 is appropriate. 

 

42 FMSHRC Page 832
ORDER 

WHEREFORE, it is ORDERED that Citation No. 9136082, and Order Nos. 9136320 

and 9136341 are AFFIRMED, as issued, and that Peabody Southeast Mining, LLC, PAY a civil 

penalty of $61,000.00 within 30 days of the date of this Decision.8 ACCORDINGLY, these 

cases are DISMISSED. 

/s/ Jacqueline R. Bulluck 

Jacqueline R. Bulluck 

Administrative Law Judge 

Distribution: 

Emily Roberts, Esq., & Christopher M. Smith, Esq., U.S. Department of Labor, Office of the 

Solicitor, 618 Church Street, Suite 230, Nashville, Tennessee 37219 

Roberts.Emily.O@dol.gov; Smith.Christopher.M@dol.gov

Arthur Wolfson, Esq., Fisher & Philips, LLP, Six PPG Place, Suite 830, Pittsburgh, 

Pennsylvania 15222 

awolfson@fisherphillips.com 

8

 Payment should be made electronically at Pay.Gov, a service of the U.S. Department of 

the Treasury, at https://www.pay.gov/public/form/start/67564508. Alternatively, send payment 

(check or money order) to: U.S. Department of Treasury, Mine Safety and Health 

Administration, P.O. Box 790390, St. Louis, MO 63179-0390. Please include Docket and A.C. 

Numbers. 

42 FMSHRC Page 833
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 

October 21, 2020 

AMENDED DECISION AND ORDER1

Appearances: John M. Strawn, Esq., & Kenneth J. Polka, CLR, Office of the Solicitor, 

U.S. Department of Labor, Philadelphia, Pennsylvania, for the Secretary 

of Labor 

Patrick W. Dennison, Esq., Fisher & Phillips, LLP, Pittsburgh, 

Pennsylvania, for the Respondent 

Before: Judge Lewis 

STATEMENT OF THE CASE 

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

et seq. (the “Act” or “Mine Act”). A hearing was held in Pittsburgh, Pennsylvania. The parties 

subsequently submitted briefs which have been fully considered in reaching the within decision. 

LAW AND REGULATIONS 

Section 314 (b) of the Act and Section 75.1403 of the Regulations provide: 

Other safeguards adequate, in the judgment of an authorized representative of the 

Secretary to minimize hazards with respect to transportation of men and materials 

shall be provided. 

1

 This order has been amended to include the technical citation numbers associated with 

the safeguards at issue herein. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner, 

v. 

CONSOL PENNSYLVANIA COAL CO., 

LLC, 

 Respondent. 

 CIVIL PENALTY PROCEEDING 

 Docket No. PENN 2019-0100 

A.C. No. 36-07230-490127

 Mine: Bailey Mine 

42 FMSHRC Page 834
Section 75.1434 Retirement Criteria provides: 

Unless damage or deterioration is removed by cutoff, wire ropes shall be removed 

from service when any of the following conditions occurs: 

(a) The number of broken wires within a rope lay length, excluding filler wires, 

exceeds either— 

(1) Five percent of the total number of wires; or 

(2) Fifteen percent of the total number of wires within any strand; 

(b) On a regular lay rope, more than one broken wire in the valley between 

strands in one rope lay length; 

(c) A loss of more than one-third of the original diameter of the outer wires; 

(d) Rope deterioration from corrosion; 

(e) Distortion of the rope structure; 

(f) Heat damage from any source; 

(g) Diameter reduction due to wear that exceeds six percent of the baseline 

diameter measurement; or 

(h) Loss of more than ten percent of the rope strength as determined by nondestructive testing. 

FINDINGS OF FACT AND CONCLUSION OF LAW 

The findings of fact are based on the record as a whole and the undersigned’s careful 

observation of the witnesses during their testimony. In resolving any conflicts in the testimony, 

the undersigned 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 undersigned 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 undersigned’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). 

JOINT STIPULATIONS 

1. The Bailey Mine (“Mine”) is subject to the jurisdiction of the Federal Mine 

Safety and Health Act of 1977 (“Act”). 

2. The Mine is owned and operated by Respondent, Consol Pennsylvania Coal 

Company, LLC. 

3. The presiding Administrative Law Judge has jurisdiction over the abovecaptioned proceedings pursuant to Section 105 of the Act. 

4. The parties stipulate to the authenticity of their exhibits, but not to the relevance 

or truth of the matters asserted therein. 

 

42 FMSHRC Page 835
5. The subject citations and safeguards were served by a duly-authorized 

representative of the Secretary upon agents for Respondent on the dates and 

times and the placed stated therein. 

6. Respondent demonstrated good faith in abating the alleged conditions after the 

issuance of the safeguards and citations. 

7. The penalties proposed on the Exhibit A attached to the Petition for Assessment 

for Citation Nos. 9076455 and 9076456 are incorrect. The Petitioner agreed to 

reduce the gravity of the citations to no likelihood, no lost workdays, non-S&S, 

and also the negligence to none at a pre-penalty settlement conference. The 

proposed penalties should have been $135 for each citation. The mine tonnage, 

controller tonnage and number of violations represented in the Exhibit A 

attached to the Petition for Assessment are correct. 

8. Payment of the total proposed penalty of $270 in this matter will not affect 

Respondent’s ability to continue in business. 

T. 4-62

SUMMARY OF TESTIMONY 

WITNESSES

Joseph A. Vargo 

 At the time of hearing, Inspector Vargo had worked for MSHA for over 12 years. T. 13. 

He initially worked as a coal mine inspector and later in 2012 had been working as an electrical 

specialist. Prior to working for MSHA, Vargo had worked as a coal miner for approximately 30 

years.3

 T. 14. 

 Inspector Vargo had issued a technical citation to Respondent arising from Vargo’s 

issuance of a safeguard (No. 9076448) in connection with unsafe conditions observed at the 

operator’s slope track and hoist on August 13, 2018. T. 15-18; see also P-1. 

Inter alia, Vargo had noted a wear pad on the slope that had been worn down 

approximately one and three quarters inches. T. 17. 

2

 “T” refers to the hearing transcript. “P” refers to the Secretary’s exhibits. “R” refers to 

Respondent’s exhibits. “SB” refers to Secretary’s post hearing brief and “RB” refers to 

Respondent’s post hearing brief. 

3 See T. 13-15 for detailed description of Vargo’s mining experience and specialized 

certifications. 

42 FMSHRC Page 836
 The purpose of the wear pads was to keep the hoist rope from coming into contact with 

anything that could cause damage to the rope. T. 19. The slope hoist rope should not come into 

contact with any abrasive material such as gravel, rock, slate, or coal that would cause it damage. 

T. 20. Excessive wear of the wire rope could lead to the potential of the rope breaking, sending 

anyone in the car to the bottom at an excessive rate of speed. T. 21-22. 

 The regulations require that non-destructive testing of the rope—either through 

measurements or x-rays—be performed every six months. T. 22. The concern is that, during the 

six month interval, broken wires or metallic loss might not be detected by visual examination. T. 

23. 

 At hearing, photographs were admitted into evidence, which depicted wear on the slope 

pads in August 2018, leading to the safeguard in question being issued. T. 23-28; P-5. 

 There were approximately 100 wear pads on the slope track, which had a 14-degree 

grade. T. 29, 44. Water could get into the valleys of the steel hoist rope, causing corrosion. T. 29. 

There were numerous escalation reports indicating the rope was either kinked or damaged. T. 30; 

see also P-9. Photographs of the hoist rope, taken in August 2018, revealed what appeared to be 

broken wires in the middle of the rope. T. 32; see also P-5. Photographs also revealed the rope 

being in contact with coal, and slate/rock mixture. T. 33; P-5. Materials on the tracks during the 

hoist lowering or raising could cause brake damage and loss of control. T. 39-40. Someone not 

riding in a car could be exposed to a slip and fall hazard. T. 41. 

 On cross-examination, Inspector Vargo agreed that he had no experience working on 

hoists prior to coming to MSHA. T. 45. He also testified that he had never worked on a hoist 

slope during his MSHA career. T. 45. His training regarding hoists came from a 1⁄2 day training 

at the mining academy and annual refresher training. T. 46. 

 Vargo had not issued any safeguards between 2007 and August 2018. T. 27. The 

safeguards at issue were his first issuances. T. 47. 

 In order to issue a safeguard there must be an actual hazard with respect to the 

transportation of men and materials and the hazard must not already be covered by a mandatory 

safety standard. T. 47-48. 

 Vargo had found the hazard associated with Safeguard No. 9076448 to involve damage 

and wear to the slope rope. T. 48. He testified that wear pads were cut through or missing. T. 48. 

There was contact with steel grating, and trough rollers were not turning. T. 48. There was 

metallic loss and distortion found in the rope. T. 48. 

 Vargo found that the hoist rope was compliant with the mandatory standards addressing 

hoist rope retirement criteria on August 7, 2018. T. 51. 

 A hoist rope, pursuant to § 75.1434, must be removed from service when the number of 

broken wires within a rope lay length, excluding filler wires, exceeds 5% of the total number of 

wires, or 15% of the total number of wires within any string. T. 52. Also pursuant to § 75.1434, a 

42 FMSHRC Page 837
rope must be retired or reterminated if its diameter reduction exceeds 6% of the initial baseline. 

T. 53. 

 Vargo had not issued a citation under § 75.1434 (h) because the standard specified a loss 

of more than 10% of rope strength and the rope strength loss was not as yet beyond 10%. T. 55. 

 Vargo testified that a hazard existed, even though the slope rope was still compliant with 

the standard, because the rope “was right at the borderline.” T. 56. One more trip could have put 

it over the borderline. T. 56. Everything that the rope was in contact with was abrasing the wire, 

the hoist rope. T. 56. 

 Although Vargo had recommended that wear pads be replaced, he did not record such in 

his notes. T. 58. 

 Wear pads were approximately 24” by 24” by 2” thick. T. 59. In his August 15, 2018 

citation, Vargo noted a wear pad worn down to 1 3⁄4”. T. 59; see also P-2. Vargo had not recorded 

in his notes that he had observed that 50-60 wear pads were worn or missing. T. 60. He had been 

told of such by a mine foreman. T. 60. Vargo himself had taken no measurements of the pads. T. 

61. 

 Vargo had not inspected the slope on August 7, 2018. He had inspected the slope hoist, 

the brakeman car, the slope hoist building, and the remote hoist building. T. 61-62. 

 MSHA had not published any directives as to when wear pads should be replaced. T. 64. 

A wear pad that was worn down one and three quarter inches would not be serving its function. 

T. 64. The photographs in Exhibit P-5 depicted the slope rope as it looked when it was not in 

operation. T. 65. 

 Vargo agreed that the slope rope would be exposed to rain and snow at times. T. 72. He 

believed that the two furthest trough rollers inby receive the most stress. T. 73. However, he 

conducted no further inquiry to determine whether this was so. T. 73. He further had not 

determined how much, if any, the two static rollers contributed to slope rope deterioration. T. 74. 

 There was no mention of the slope rope contacting concrete in the safeguard or Vargo’s 

notes. T. 78. 

 Exhibit P-8 contained reports of the slope hoist being down for more than 30 minutes. 

Vargo agreed that the March 9, 2018 report concerning braking system lock-up had nothing to do 

with rope deterioration. T. 78-79. Another report indicating that the hoist had gone down also 

was not associated with slope rope issues. T. 79; P-8, 3. Vargo further agreed that a kink in a 

hoist rope could happen to a new rope. T. 80. 

 On August 13, 2018, Vargo determined that the entire length of the rope contacted 

material, rock, coal, slate, gravel, and water. T. 85. Vargo further stated that this was not unusual 

for a slope rope. T. 86. 

42 FMSHRC Page 838
 As to Safeguard No. 9076449, Vargo had observed mine supplies along the slope. He did 

not know whether any of the material actually contacted the slope car. T. 87; P-4. He had seen 

some material in the middle of the track contacting the rope but had not noted such in the 

safeguard. T. 87. Although he slipped on a roof plate while walking the slope, he had again not 

noted such in the safeguard. T. 88-89. Vargo agreed that no one regularly walked the slope. T. 

89. He further agreed that, provided supplies were against the rib and not contacting the slope 

car, they would not create a clearance issue or hazard. T. 89-90. 

 In reference to the summary of safeguards, Vargo agreed that there was no written 

explanation as to what requirements were called for in order to have “properly maintained” wear 

pads and rollers under Safeguard No 9076448. T. 91-92; R-18. The “above mentioned material” 

in the safeguard referred to slate, rock, gravel, mud, coal, and water. T. 92. Vargo again agreed 

that having supplies pushed against the rib in the slope, which did not contact the slope car 

would not be a violation of Safeguard No. 9076449. T. 93. Vargo further agreed that an 

individual walking up the slope belt would have a handrail to hold onto. T. 95. 

 On redirect Vargo further clarified that mine operators are provided with the full text of 

safeguards that have been issued and not just the summary of safeguards as contained in R-18. T. 

96. 

 Slope wear pads are not doing their jobs if they don’t keep the hoist rope off the ground 

and from contact with other materials. T. 97. 

 At the time of Vargo’s hoist rope inspection in August 2018, Bailey Mine’s next nondestructive test (“NDT”) was scheduled for October 2018. T. 98. Vargo, however, agreed the 

mine operator changed or reterminated portions of their ropes between the times of the 

mandatory six month non-destructive tests. T. 99. He additionally agreed that Baily Mine 

conducted daily visual rope exams that included the hoist rope. T. 99. 

Michael Snyder 

 At the time of hearing, Michael Snyder had worked for MSHA for 33 years. T. 103. 

 He described various photographs taken at Bailey Mine on August 17, 2018, contained in 

Exhibit P-5. T. 104. These included: the hoist rope (P-5, 1 and 2); the rear of the brakeman car to 

which the hoist rope was attached (P-5, 3); the hoist rope running through debris (P-5, 4); the 

hoist rope drum (P-5, 5); wear pads covered with debris (P-5, 6); another photo of the rope from 

a longer perspective, running on top of the cross ties (P-5, 7); another view of the rope cutting 

through the wear pads into the dirt (P-5, 8). T. 104-108. 

 The rope was 1 5/8” in diameter and the wear pads about 2” thick. T. 108. A nondestructive examination was taken of the rope at the worst section T. 108. The non-destructive 

test was “right at ten percent loss of metallic area.” T. 108. Three physical diameter 

measurements were “right at approximately six percent.” T. 108. 

42 FMSHRC Page 839
 The hoist rope diameter measurements had been taken “at the worst spot” of 1.572, 1.571 

and 1.572—1.571 being the smallest diameter reading. T. 110; see also P-6. By dividing 1.71 by 

1.67, there was found to be a 5.93% diameter reduction.4

 T. 110. Any reduction exceeding 6% 

met the regulation retirement criteria. T. 110. While the diameter had not yet exceeded the 

regulation, “it was right at the edge.” T. 110. 

 There had been a non-destructive test performed on April 21, 2018—about one month 

after the rope had been installed. T. 111. Given that the next scheduled 6-month examination was 

set for October 21, 2018, and the inspection at-issue was on August 7, 2018, it would be 6 weeks 

before the hoist rope would have been examined again. T. 111. 

 Lubrication allows the hoist rope wires to “move freely around.” T. 111. Exhibit P-5 

contained a photograph taken on August 7, 2018 of the spool showing a dry rope. T. 111-112. 

Areas having lubrication would appear darker. T. 113. 

 Exhibit P-7 contained the memo sent to the district manager of the Mine Safety and 

Health Administration Russell Riley by Snyder, detailing the August 7, 2018 non-destructive test 

findings. T. 114. Based on his observations and testing, Snyder recommended that more frequent 

non-destructive examinations be conducted—every 4 months rather than 6-month intervals. T. 

115. 

 On cross-examination Snyder agreed that there were no violations or hazards found in 

respect to the hoist rope on August 7, 2018. T. 119-120. 

 In determining whether there is diameter reduction exceeding six percent of the baseline 

diameter measurement, pursuant to § 75.1434 (g), calipers could be used. T. 120-131. The hoist 

rope strength was “right at the limit” but “compliant” within the limits of § 75.1434 (h). T. 122. 

The hoist rope also did not meet the broken wires retirement criteria contained in § 75.1434 (a). 

T. 124. If a non-destructive test reveals more than a 10% loss of rope strength or a distortion of 

rope structure, the entire rope may not require changing out, but instead only require a 

retermination.5

 T. 125. 

 Snyder was not aware that the operator reportedly conducted a daily examination of the 

hoist rope. T. 126-127. He agreed that approximately 350 feet of hoist rope was reterminated on 

August 7, 2018. T. 129. The rope itself was approximately 3,000 feet long. The rope (after the 

retermination) was not changed out in entirety. T. 130. Snyder had recommended wear blocks be 

installed to keep the hoist rope off the ground between the head shiv and the top of the slope. T. 

131-132. Snyder was not aware of any criteria for determining whether a wear pad is worn out. 

T. 132. Nor was he aware of anything published by MSHA in reference to such. T. 132-133. The 

wear pads protect the rope by allowing the rope to cut through them. T. 133. Until the rope cuts 

4

 The Transcript erroneously states the diameter reduction as 1.71 in one instance, where 

it should read 1.571. T. 110 

5

 A retermination was described as when one takes a portion of the rope and installs a 

new portion to the existing rope with zinc oxide. T. 125. 

42 FMSHRC Page 840
the pad in two, the rope remains off the ground and does not sustain additional abrasion which 

would accelerate its wear. T. 133. 

 When the slope rope is in actual operation, the tension in the rope would be different. T. 

135. As the conveyance travels down the slope, the rope tension is going to increase by the 

weight of the rope that travels down the slope. T. 136. 

 Snyder disagreed that the life of a slope rope depended upon factors that included its 

frequency of use. T. 137. If the rope hoist is properly maintained, “it lasts longer.” T. 137. 

 Snyder was not present at Bailey Mine on August 13, 2018, when Vargo conducted the 

inspection that resulted in the issuance of the August 15, 2018 safeguard. T. 138. 

 When the hoist rope was reterminated, it was still in compliance but close to meeting the 

retirement criteria. T. 139. Both old and new ropes can develop kinks, especially when they are 

abused or mishandled. T. 139-140. 

 Snyder’s degree was in mine engineering, and he testified that he was neither a structural 

steel engineer nor a civil engineer. T. 141. Mine engineering did not specifically teach students 

about wire rope. T. 141. 

 Visual examination of a rope hoist can reveal clusters of broken wires, inadequate 

lubrication, deformation to the rope. T. 142. Snyder noted no reported hazards in the 

Respondent’s log book following the operator’s last 14-day examination on March 29, 2018. T. 

142-143. 

 Snyder did not have the authority to issue citations. T. 143. The multiple areas of concern 

regarding the hoist rope motivated Snyder to advise the operator to remove a portion of the rope. 

T. 144. 

 In reference to the safeguard at Exhibit P-2, Snyder observed some of the same 

conditions on August 7, 2018. T. 144. Anything that adds friction to the rope—as it is observed 

dragging through rock, gravel, slate, and coal—is going to accelerate its wear. T. 145. Snyder did 

not believe that as the rope moves down the slope, more tension would be created on the wear 

pads or rollers. T. 146. The tension would be constant. T. 146. To perform the electromagnetic 

test, the rope would need to be in motion. T. 146. 

 Prior to his August 7, 2018 inspection Snyder clarified that the last 14-day test would not 

have been conducted as early as March. T. 147. 

 Snyder had visited Baily’s slope and other coal mine slopes in the past and had observed 

coal and rock going down the slopes. T. 147. He also agreed that the slope was exposed to 

outside elements, including rain and snow. T. 148. 

42 FMSHRC Page 841
Craig Elson 

 Craig Elson worked for Consol Energy at the Crabapple Portal and had done so for 

approximately 18 years. T. 152. At the time of hearing, he worked as assistant master mechanic, 

overseeing underground and surface maintenance. T. 152.6

 A slope hoist is used to haul material in and out of a coal mine. T. 155. In case of an 

elevator malfunction, a hoist can also be used to transport individuals. T. 156. The slope hoist at 

the Crabapple Portal is operated by a hoistman. T. 156. Different types of cars are loaded with 

supplies. T. 156. They will then be hoisted through the track switch, taken off the hoist car and 

delivered to where needed throughout the coal mine. T. 156. The hoist rope is attached to a 

brakeman car; supply cars are coupled to the brakeman car.7

 T. 156. 

 The total length of rope at the Crabapple Portal is 3,000 feet. T. 157. From the pit mouth 

to slope bottom is approximately 1600 feet to 1800 feet.8 T. 157. The slope rope is attached to a 

drum; the drum winds or unwinds causing the supplies to be dropped or raised.9

 T. 157-158. All 

the cars, including brakeman car and supply car, are on a track. T. 157. 

 When Elson worked as a surface electrician, he would line up hoist rope tests, including 

non-destructive tests, 30-day tests, 60-day tests conducted by Frontier-Kemper. T. 158. He was 

also involved with any of the examinations involving the rope and hoist. He would address any 

breakdowns with the rope or car, drum room electrical issues, verbal frequency driver operation, 

and any communication problems from the top to the bottom of the slope. T. 158. 

 Sensors (called “tags”) are placed at the pit mouth and near the bottom of the slope and 

on top of the brakeman car so that the exact location of the car based upon a mathematical 

footage calculation can be determined. T. 158-159. 

 The hoist operator has a computer in front of him containing the location information. T. 

159. There is another computer at the main hoist house containing the same information. T. 159. 

 

 Elson did not escort the inspector on the date the safeguard (P-2) was issued. T. 160. 

Kevin Wilson, now retired, had done so. T. 160. Elson was working on August 7, 2018, when the 

hoist rope was examined by MSHA tech support. T. 160. A caliper is used to determine whether 

there is diameter loss exceeding 6% of the baseline. T. 161. Not every rope is identical in 

diameter size, there being a few tenths of difference between various ropes. T. 162. 

6 See TT 152-155 for other mining positions held and certifications received. 

7

 A brakeman car is used to hoist individuals. T. 156. 

8

 Pit mouth “is the opening in the earth where you go from surface to underground in the 

beginning of the tunnel on your 22 degree decline into the coal mine.” T. 157. 

9

 The drum is also called a “drum room.” Tr. 157-158. 

42 FMSHRC Page 842
 The hoist rope, when examined on August 7, 2018, was not beyond the retirement 

criteria. T. 163. MSHA did not issue any citations on August 7, 2018. T. 163. After the August 7, 

2018 inspection Consol took out 350-foot of the rope that was approaching retirement criteria.10

T. 163. The rope was earlier changed on December 14, 2017, and March 29, 2018. T. 163-165; 

see also R-1. 

 A non-destructive test was also performed in April 2018 by a subcontractor, Evergreen. 

T. 166; see also R-2. In conducting the NDTs, Evergreen utilizes a two-piece machine placed 

around the hoist rope. T. 167. The hoist car is run at a set speed; the rope is x-rayed twice, once 

down and once back. T. 167. 

 A review of Evergreen’s certificates of inspection from April 23, 2016, through April 21, 

2018, did not reveal that the Baily Crabapple slope rope had, at any point, met the retirement 

criteria. T. 168; R-2. The rope, however, was reterminated or changed between the nondestructive test dates. T. 168-169. Rope changes would be required in order to maintain three 

wraps on the drum: a 3,000 foot rope can be reterminated only so many times to stay within 

those specs to have the required number of wraps. T. 169. Some of the reasons for retermination 

or changing the ropes would be kinks, deformation and broken strands. T. 169. 

 In addition to the 6 month NTDs, Consol conducts a visual examination of the hoist rope 

every 14 days during which the hoistman inspects the entire length of the cable for any kind of 

deformation or broken strand. T. 169. The hoistman also visually examines the hoist rope every 

24 hours. T. 170-171; see also R-3. 

 Additionally, there is a weekly permissibility examination performed, during which 

mechanics check all the safeties, connection points of the rope, anything electrical with the 

brakeman car itself, including brakes, lights, and batteries. T. 171-172; see also R-4. 

 During the examination of the slope car, “all the safeties” are checked. T. 172. The 

brakes are engaged to verify that they all set properly; batteries are checked for voltage; all lights 

and communications are checked. T. 172. The operator also checks for overspeed, mismatched 

speed, roll back.11 T. 172; see also R-4. 

 Once a shift before the hoist is operated, a hoistman also conducts an examination. T. 

173-174; see also R-5. He checks the car brakes, the connection point of the rope—“basically 

just making sure everything is in safe operating condition.” T. 174. 

 If during the daily slope car checklist a deficiency is found, the car would be taken out of 

service and MSHA would be notified of such by the shift supervisor. T. 175. 

 Referring to Safeguard 9076448, wherein it was reported that the wear pad that the slope 

rope hoist rides on top of was worn down approximately 1 3⁄4”, Elson noted that the wear pads at 

10 Ketchum Construction, a subcontractor, actually performed the work. T. 163. 

11 For example, if the hoist rope would break, the car would go into overspeed. The 

brakes would be locked to the rail, avoiding a runaway car. T. 172-173. 

42 FMSHRC Page 843
Bailey Mine were sometimes 2” thick and sometimes 2 1⁄2” thick. T. 176. There are 

approximately 80 wear pads on the slope, which are designed to protect the rope. T. 176. Due to 

undulations in the mine floor, pads do not wear out at the same rate. T. 176-177. Rope tension 

also affected pad wear. T. 177. A fully loaded train with seven cars caused a higher tension on 

the rope than a brakeman car alone which could have sags in the rope. T. 177. 

 When a wear pad became worn through at Bailey Mine, it was either changed out or 

turned 90 degrees. T. 178. By turning the pads diagonally, double life could be gotten out of one 

pad. T. 178. Elson estimated that during his approximate six years as electrical supervisor on the 

surface, there were at least six occasions when the pads were turned or changed out. T. 178. 

 Elson discussed the two trough rollers, approximately 40 feet inby the slope track 

opening, that were reported to not be turning. See also Safeguard No. 9076448. There were 

seven trough rollers at the pit mouth, a couple outside the pit mouth and a few more inby the 

mouth. T. 178-179. The trough rollers were used to keep the rope over the knuckle. T. 179. The 

slope track was approximately 22 degrees. T. 179. The actual slope track on the surface before 

getting to the pit mouth opening was less. T. 179. During the transition over the crest, the trough 

rollers held the rope up off the surface, “concrete material or whatever.” T. 179. Rollers are made 

of steel and are exposed to the weather. T. 179. They are subject to “wash back”: water gets on 

the belt; coal is loaded onto the water; as it starts up the slope, the water will wash the coal 

backwards and make a “mess.” T. 179-180. 

 Elson opined that the rollers at Crabapple Portal were not subject to the same wear or 

tension. T. 180. The third trough roller would take the most pressure or force. T. 181. On August 

13, 2018, this roller was turning. T. 181. The two inby rollers, which were reported in the 

safeguard not to be turning, were numbers six and seven out of seven total rollers. T. 181. 

 The slope hoist rope does sometimes come into contact with gravel, rock, slate, mud, 

coal, and water—as reported in the safeguard. T. 181. While the operator does its best to prevent 

such contact, there is approximately 300 feet of cable exposed to the weather at all times. T. 181. 

 Elson disagreed with the assertion in the safeguard that the hoist rope had been removed 

from service “multiple times” for excessive wear. T. 181-182; see also P-2. On two occasions a 

non-destructive test was conducted. T. 182. Although the rope was below the retirement age, it 

was decided to change it out. T. 182. This was not done because of excessive wear; the majority 

of time it was “for kinks in the rope, distortion.” T. 182. 

 In reference to Safeguard No. 9076449 noting various mine supplies on both sides of the 

tracks (P-4), Elson did not know of any material contacting the slope car as it dropped down. T. 

182. Nobody normally walked the hoist slope. T. 182-183. If for whatever reason, one were to 

walk out of the mine, one would use the slope belt rather than the slope track because of the high 

velocity of air coming down the slope track—over 9,000 CFM. T. 183-184. 

 Elson disagreed that having mine supplies in the slope entry constituted a hazard. T. 184. 

42 FMSHRC Page 844
 In reference to the wear pads depicted in the final photograph in P-5, Elson agreed that 

these pads were rectangular in shape and would have to be changed out—unlike the square wear 

pads on the slope. T. 185. Elson further agreed that a second rectangular wear pad depicted in the 

P-5 final photograph would require replacement. T. 186. 

 If wear pads are covered with material and the rope is dragging through the material the 

wear pad is not serving its purpose. T. 186; see also P-5. The examination reports in R-1 

disclosed the need to replace the hoist rope before six months had elapsed. T. 188. A non-turning 

roller would add more frictional wear than a turning roller. T. 188-189. 

 There are three LED lights that face the track and route which, in combination with cap 

lights, aid visibility at night. T. 192-193. However, Elson conceded that the nighttime darkness 

on midnight shift would affect visibility. T. 190; see also R-3. The escalation reports, where 

problems were noted, all came during daylight hours rather than midnight hours. T. 191. 

 Elson did not possess a hoistman card or a hoistman certification nor had he ever 

physically worked on wire ropes. T. 189. 

 Usage of the slope rope would affect its life. T. 192. The rope changes reported in R-1 

were between NDTs, establishing the operator was not only changing the rope when a NDT was 

performed. T. 192. 

Michael Tennant 

 Michael Tennant had worked for Respondent for approximately 20 years, being 

employed at Baily Mine for 18 years.12 T. 194. Tennant had been working as a safety supervisor 

for Baily Mine in August 2018. T. 195. 

 Exhibit P-1 was a technical violation issued in response to a letter submitted to District 

Manager Russell Riley in connection with the safeguard issued on August 13, 2018. T. 196. 

Exhibit P-3 was a similar technical citation for a different safeguard issued on August 13, 2018. 

T. 197. 

 Tennant was aware that Inspector Vargo intended to inspect the Crabapple slope, hoist, 

and rope on August 13, 2018. T. 197. He discussed Vargo’s issuance of the safeguards and 

conveyed his disagreement with such. T. 198. 

 Exhibit R-7 was a list of dates that Tennant reported to MSHA that Crabapple hoist had 

been down in 2016, 2017, and 2018. T. 200. Tennant had created the document to rebut the 

safeguard assertion that the Crabapple hoist had been taken down multiple times for wear on the 

rope.13 T. 200. On none of the dates reported in 2016 had the hoist been taken out of service for 

12 See TT 194-195 for full resume. 

13 The full title of the document, which was partially obscured, read “reportable 

Crabapple Hoist Car.” T. 200. “Reportable” meant anytime the elevator was inoperable for more 

than 30 minutes in which case MSHA had to be notified. T. 200. 

42 FMSHRC Page 845
excessive wear. T. 201. On October 22, 2016, the operator did take the hoist out of service 

because it was “close enough to the non-destruct.” T. 201. 

 In reference to R-8 (Request for Health and Safety Conference), Tennant had requested 

conferences on the safeguards issued. T. 203. 

 As to Safeguard No. 9076448, Tennant disagreed that there was any specific hazard 

presented. T. 206. The slope hoist rope was “in fine shape.” T. 2016. Nobody’s life was in 

danger; no equipment was in danger. T. 207. 

 As to Safeguard No. 9076449 (P-4) Tennant again did not believe any specific hazard 

was presented by mine supplies on the side of the slope tracks. T. 207. He was unaware of any 

car coming into contact with any of the cited material. T. 207. There was already a safeguard at 

the mine that required 24 inches clearance. T. 207-209; see also R-10 Re slip and fall hazard. 

 As compared to track haulage, the slope car only went to the bottom area of the mine. T. 

210. The slope car was moved by the hoist rope; track cars were pulled by a locomotive. T. 211; 

see also R-10, Safeguard No. 3670427. 

 Tennant contended that if the hazard presented was a “slip and trip” hazard, Safeguard 

No. 3670427 already addressed such. T. 212; R-10. If the hazard was derailment, there had been 

nothing observed by Vargo of materials coming into contact with the slope car. T. 212. 

 Supplies in the slope entry or on the slope itself did not present a hazard unless they came 

into contact with a car. T. 212-213. 

CONTENTIONS OF THE PARTIES

 As to Safeguard No. 9076448 (P-2), the Secretary contends that the Respondent failed to 

address various unsafe conditions involving the slope hoist rope at the Crabapple Portal of Bailey 

Mine. These hazardous conditions included: multiple worn wear pads on the slope track; the 

hoist rope running into steel grating for approximately six feet; two trough rollers that would not 

turn when the hoist rope was in contact with them; the hoist rope being dragged through gravel, 

rock, slate, mud, coal, and water; excessive wear and damage to the hoist rope; the slope hoist 

rope’s removal from service multiple times for excessive wear. 

 As to Safeguard No. 9076449 (P-4), the Secretary contends that the Respondent 

improperly allowed the accumulation of debris and supplies on both sides of the slope track. 

 As to Safeguard No. 9076448, Respondent contends that the alleged transportation 

hazards associated with the Crabapple hoist rope were already covered by mandatory safety 

standards at 30 C.F.R. § 75.1430 through § 75.1438. As such, the safeguard was facially invalid 

because there was no actual mine specific transportation hazard not (already) covered by a 

mandatory safety standard. Respondent alternatively contends that, even if the safeguard was 

facially valid, there were no actual transportation hazards existent at any of the pertinent times 

within. The Respondent makes a similar argument with regards to Safeguard No. 9076449, 

42 FMSHRC Page 846
arguing that it is invalid because there was no actual mine specific transportation hazard, and that 

the safeguard did not adequately articulate the hazard or the conduct required of the operator to 

remedy such hazard. 

 As to Safeguard No. 9076449, at hearing the Respondent contended that any alleged 

transportation hazard associated with the track was already covered by an existing mandatory 

safety standard (Safeguard No. 3670427) and that, in the alternative the Secretary failed to prove 

the existence of any actual transportation hazard associated with the slope track. 

ANALYSIS

Issue I: Was Safeguard No. 9076448 facially invalid in that the contemplated transportation 

hazard—hoist slope rope failure due to excessive wear and tear—was already covered 

by existing mandatory safety standards at 30 C.F.R. §§ 75.1430 through 75.1438? 

Issue II: Assuming Safeguard No. 9076448 was not facially invalid, did the Secretary carry his 

burden of proving the existence of an actual transportation hazard? 

Issue III: Assuming the Secretary carried his burden of proof, did he properly articulate the 

conduct required of the operator to remedy the hazard? 

Issue IV: Was Safeguard No. 9076449 facially invalid in that the contemplated safety hazards 

associated with the slope hoist track were already covered by prior Safeguard No. 

3670427? 

Issue V: Assuming Safeguard No. 9076449 was not facially invalid, did the Secretary carry his 

burden of proving the existence of any actual transportation hazard? 

Issue VI: Assuming the Secretary carried his burden of proof, did he properly articulate the 

conduct required of the operator to remedy the transportation hazard? 

I. Safeguard No. 9076448 was facially invalid in that the contemplated transportation 

hazard—hoist rope failure due to wear and tear—was already covered by mandatory 

safety standards found at 30 C.F.R. §§ 75.1430 through 75.1438. 

 At hearing and in his post hearing brief the Respondent contended that a safeguard may 

not be issued if there are already existing mandatory standards addressing the transportation 

hazard alleged. See also RB 7-11. Cyprus Cumberland Resources Corp., 19 FMSHRC 1781, 

1784– 85 (Nov. 1997), citing Southern Ohio Coal Co., 14 FMSHRC 1, 8 (January 1992) 

(“SOCCO II”)) (“In order to issue such a safeguard, an inspector must determine that there exists 

an actual transportation hazard not covered by a mandatory standard and that a safeguard is 

necessary to correct the hazardous condition.”). 

 The Secretary did not dispute this proposition at hearing. Inspector Vargo responded 

affirmatively when asked at hearing, “would you also agree with me that to issue a safeguard, the 

actual hazard with respect to the transportation of men and materials you determined to have 

42 FMSHRC Page 847
existed must also not be covered by a mandatory standard?” T. 48. Rather, the Secretary cited to 

the applicable sections of the Act and regulations establishing MSHA’s authority to issue minespecific safeguards to minimize hazards with respect to the transportation of men and materials 

and Commission case law in support of such. See, inter alia, SB 4-5, citing § 314 (b) of the Act, 

30 C.F.R. § 75.1403 of the regulations, and the Commission holding at Pocahontas Coal Co. 

LLC, 38 FMSHRC 157, at 157 (Feb. 2016). 

 However, the general authority of MSHA inspectors to issue transportation safeguards on 

a mine-to-mine basis is not at issue.14 Rather, Respondent has challenged Coal Mine Inspector 

Vargo’s issuance of this particular safeguard on the basis that mandatory safety standards in Part 

75 of 30 C.F.R. already address the alleged transportation hazard posed at Baily Mine. 

 As to this threshold question, this Court finds that the existent safety standards in Part 75 

of 30 C.F.R. §§ 75.1430 through 75.1438 do address the transportation hazard alleged to have 

existed at the operator’s Crabapple Portal. 

 This Court begins its analysis by considering what was the specific transportation hazard 

alleged. 

 The hazard as described in Safeguard No. 9076448 was “wear and damage (to) the hoist 

rope.” P-2, Section 8, Condition or Practice. At hearing, CLR Polka stated that the safeguard had 

been issued to protect miners from being exposed to the hazards of “the rope wearing out before 

it is expected and increasing the likelihood of an accident related to (the) rope failure.” T.8. 

Similarly, Inspector Vargo testified that his “main concern” in issuing the safeguard was damage 

and wear to the slope rope. T. 48. 

 At hearing there was much testimony directed toward various hoist slope conditions, 

including worn or missing wear pads, static trough rollers; the hoist rope’s exposure to the 

elements; the hoist rope’s contact with steel grating or concrete; and the hoist rope dragging 

through gravel, rock, slate, mud, coal, and water. See P-2, see also T. 17, 18, 20, 28, 33, 41, 70, 

73, 74. Such conditions may or may not constitute hazards in and of themselves. However, 

clearly the ultimate transportation hazard contemplated in Safeguard No. 9076448 was hoist rope 

failure due to excessive wear and tear. Such hazard is already covered in the cited regulations 

under Wire Ropes in Title 30 of the regulations, §§ 75.1430 through 75.1438. Said sections 

address in detail when damaged or deteriorated wire hoist ropes should be repaired or replaced in 

order to avoid rope failure. 

Inter alia, these sections specifically provide that “wire ropes...used to hoist” (§ 75.1430) 

shall be subject to “minimum rope strength” values (§ 75.1431), “initial measurement” (§ 

75.1432), “examinations,” including biweekly visual examination and 6 month non-destructive 

testing (§ 75.1433), “retirement criteria,” including rope diameter reduction and rope strength 

loss percentages (§ 75.1434), “end attachment retermination,” (§ 75.1437) and “end attachment 

14 Likewise, the question is not, as Secretary seems to imply, whether a safeguard is 

invalid because it addresses hazards that exist at other mines. See SB 5, Citing Oak Groves Res., 

LLC, 35 FMSHRC at 2013. 

42 FMSHRC Page 848
replacement” (§ 75.1438). These regulatory standards go to the heart of what constitutes 

excessive hoist rope wear and tear and render the within safeguard as duplicative and 

preemptive. 

 Considering, therefore, the record in toto and Respondent’s persuasive arguments on 

point, this Court finds Safeguard No. 9076448 to be facially invalid. The ALJ, however, 

recognizes that this a close question.15 Accordingly this Court will further consider whether the 

Secretary carried his burden of proving that an actual transportation hazard existed when CMI 

Vargo issued the safeguard and whether MSHA had properly articulated the conduct required of 

the operator to remedy such hazard with specificity. 

II. The Secretary failed to carry his burden of showing that an actual transportation hazard 

existed at the time in question. 

As discussed intra, neither of Secretary’s witnesses had testified that any of the 

retirement criteria were met under § 75.1434 on the dates Snyder performed his non-destructive 

test nor the dates Vargo conducted his inspections or issued the safeguard. T. 51, T. 55, T. 85. 

Vargo opined that an actual transportation hazard existed because the hoist rope was 

“right at the borderline.” T. 56. Similarly, Snyder testified the rope was “right at the limit.” T. 

122. There is a speculative quality to these opinions which renders them problematic. According 

to Vargo’s and Snyder’s rationales, although the hoist rope was still compliant with all 

applicable wire rope regulations, a transportation hazard nonetheless presently existed because at 

some looming time the rope would become non-compliant and fail. Such reasoning implicates 

fundamental norms of due process. The reasoning also improperly imports the Commission’s 

assumption of continued mining operations in determining reasonable likelihood, to the analysis 

of whether a violation existed. See Black Beauty Coal Co., 34 FMSHRC 1733, 1740 (Aug. 

2012), aff'd sub nom. Peabody Midwest Mining, LLC v. FMSHRC, 762 F.3d 611 (7th Cir. 

2014).16 

In considering whether the Secretary carried its burden of proving an actual hoist rope 

transportation hazard existed, this Court has considered the weight to be accorded Vargo and 

Snyder’s testimony. The Secretary cites Vargo’s 30 years of mining experience and urges that 

“great weight’ be given their testimony “due to their specific experience and training regarding 

the issues in this case...” SB 4. 

15 Arguably, the MSHA inspector may have been properly exercising his statutory and 

regulatory authority under Section 314 (b) of the Act and Section 75.1403 of the regulations 

notwithstanding the Part 75 Wire Ropes standards discussed within. This is not an instance where 

the overreach of authority is manifested with refulgent clarity such as, for example, Martin 

Luther’s accusation of Pope Leo X’s usurpation of jurisdiction over Purgatory. 

16 The following analogy may not be on all fours. However, this Court wonders if the 

Secretary’s witnesses would accept—with equal equanimity—the finding of a Highway Patrol 

Officer that they were guilty of speeding because they were traveling at 64 miles per hour in a 65 

MPH zone and would be presumably going over the speed limit shortly. 

42 FMSHRC Page 849
This Court notes, however, that while Inspector Vargo had decades of experience in 

mining, he had little direct experience working on hoist slopes. On cross-examination, Vargo 

conceded he had never worked on slope hoists or with hoist ropes prior to joining MSHA in 

2007. T. 45. He had no hoist-related certifications. T. 45-46. He had not performed actual work 

on slopes while at MSHA. T. 45. He had received “probably half a day” training on slopes at the 

Mine Academy. T. 46. He had never issued a safeguard prior to the issuance of the within 

safeguards. T. 47. 

Vargo was unable to corroborate some of his testimony with his contemporaneous notes. 

T. 58-61; see also P-2. He had failed to take photographs on the date(s) of his observations, 

documenting such. T. 61. He also had failed to take actual measurements as to the depth of the 

grooves on the wear pads. T. 61. He was uncertain as to actual number of trough rollers that were 

located on the hoist. T. 72. Although he believed that the two inby rollers cited in the safeguard 

bore the most pressure, he had not inquired to confirm such. T. 72. 

Inspector Vargo was also unable to determine how much—if any—contributory effect 

non-turning trough rollers would have on overall hoist rope erosion.17 T. 72; P-2. He was 

unaware that Respondent had contracted wire rope specialists to perform work on the hoist rope 

days before he had issued the safeguard. 

Inspector Snyder’s mining engineering discipline did not involve any education in wire

ropes. T. 141. Like Mr. Vargo, Michael Snyder had found no violations of the hoist rope on 

August 7, 2018. T. 51, 55, 110-120. He found the rope to be “right at the limit” but compliant. T. 

122. He conceded that rope strength loss of 10% could be remedied by reterminating the affected 

section rather than changing out the entire rope. T. 125-126. He was unaware that the operator 

was also conducting daily examinations of the hoist rope. T. 127. He further agreed that, prior to 

the issuance of the safeguard, 350 feet of the hoist rope had been reterminated on August 7, 

2018. T. 129-130. Snyder had not considered at the time the rope had been reterminated, whether 

it was safe to operate despite the worn wear pads.18 T. 132. 

On the other hand, Craig Elson, the operator’s assistant master mechanic, had job 

experience with hoist operations. T. 157-158. He testified that the hoist rope had been 

reterminated on August 7, 2018, days prior to the August 15, 2018 issuance of the within 

safeguard. T. 163, 165. Elson further gave unrebutted testimony that, as long as there were three 

remaining wraps on a drum [see also § 75.1436 (b)], portions of the rope could be cut out, still 

allowing it to remain compliant and not thereby requiring the entire hoist rope to be replaced. T. 

125-126. He also noted that there were daily visual examinations of the hoist, as well as the 14-

day examinations. T. 170; see also R-3. Elson noted that wear pads wore out at different rates 

due to undulations in the floor. T. 177. He further testified that the third trough roller (which was 

turning during Vargo’s inspections) would be sustaining the most pressure or force—not the two 

17 As noted infra Elson maintained that the two non-turning trough rollers would not be 

bearing the most pressure exerted by the hoist rope—rather the third roller, which was turning, 

would. 

18 Though finding Snyder to be an honest individual, this Court also found Snyder to be 

purposely unresponsive to some of Respondent’s counsel’s questions.

42 FMSHRC Page 850
inby static trough rollers described by Mr. Vargo in the safeguard. T. 180-181. Unlike Vargo, 

Elson knew the exact number of trough rollers located on the slope hoist. T. 181. 

As to Vargo’s assertion in Safeguard No. 9076448 that the slope rope had been removed 

from service multiple times for excessive wear, Mr. Elson testified that this was inaccurate. T. 

182. The majority of times that the rope was removed was for kinks or distortions—not wear or 

tear.19 See R-7. 

The Operator’s safety supervisor, Michael Tennant, also disagreed with Vargo’s 

characterization, submitting a written summary detailing the dates that the Crabapple hoist was 

reported “down” to MSHA. T. 199-201; R-7. The hoist had been reported down only two times

in 2018, prior to Vargo’s August 7, 2018 inspection, one of which was for car brake issues and 

one for kinks, neither time for wire rope wear and tear. R-7. 

Neither of the Secretary’s witnesses gave persuasive testimony as to the nature or rate of 

wear/tear to the hoist rope caused by the various alleged hazardous conditions that they 

described. 

This Court concludes that the Respondent’s witnesses knew as much as or more than 

Secretary’s witnesses regarding the actual operation of the slope hoist and was ultimately left 

uncertain as to the accuracy of the Secretary’s contentions that actual transportation hazards 

existed. 

As trier-of-fact and trier-of-law, this Court was unable to find that the Secretary proved 

his case by the preponderance of the evidence. 

III. The Secretary failed to articulate the hazard and conduct required of the operator to 

remedy the contemplated hoist rope hazard with specificity. 

Even if the Secretary had carried his burden of establishing the existence of an actual 

transportation hazard, this Court is also persuaded by Respondent’s argument that the Secretary 

failed to articulate the hazard and conduct required of the operator with specificity. See RB, pp. 

14-16. 

At hearing, the Secretary’s witnesses acknowledged that many of the conditions cited at 

the slope hoist—exposure to the elements, the presence of gravel, rock, slate, mud and water—

were commonly found at mines throughout the country. T. 86. 

This Court was not enlightened by Secretary’s hearing presentation as to how such 

conditions could be specifically remedied.20 

19 Kinks may be found in even new wire ropes. T. 80, 139. 

20 See also Respondent’s arguments on point at RB, pp. 15-16. 

42 FMSHRC Page 851
At hearing legitimate questions were also raised as to the effect of tension on the rope 

when the hoist was in operation and whether during operation the rope actually came into contact 

with debris. See, inter alia, T. 132-135. 

CMI Vargo noted in his safeguard that “all wear pads that the hoist rope travels over be 

properly maintained.” P-2. However, Vargo gave vague and inconsistent testimony as to what 

constituted "proper maintenance” T. 62-64, T. 91.21 MSHA has not published any specific 

guidelines as to wear pad maintenance or replacement. T. 64, T. 132-133. 

At hearing and in the safeguard, Vargo had noted that a wear pad had been worn down 

approximately 1 3⁄4 inches. P-2. This was an estimate as Vargo had failed to take actual 

measurements of the groove or, indeed, the actual thickness of the wear pad in question. At 

hearing it was indicated that wear pads wore out at different rates, that wear pads were of 

different shapes, including square and rectangular shapes, and that they were of varying 

thickness. See, inter alia, T. 176-178. Given all these variables this Court concludes that the 

operator was given insufficient notice as to when a particular pad or group of pads actually 

needed to be replaced. 

This Court does not have the authority or inclination to dictate what specific guidelines 

should have been placed in MSHA’s safeguard regulating hoist ropes at Baily Mine. However 

this Court suggests that the remedies for repair or replacement of such items as wear pads or 

trough rollers should have some specificity. For example, a wear pad measuring 2 1⁄2 inches in 

thickness should be replaced or rearranged when it is worn down to 1⁄4 inch thickness.22

Similarly, notice of specific criteria as to when the number and position of static rollers pose a 

transportation hazard should be afforded to the mine operator.23 As to the condition of hoist rope 

removal from service “multiple times,” the ALJ suggests that a specific number of times within a 

specific time period for a specific cause be clearly set forth in the safeguard. 

In summary this Court further finds that the safeguard was fatally deficient in articulating 

the hazard and conduct of the operator to remedy such hazard with specificity. For the foregoing 

reasons, Safeguard No. 9076448 violation should be vacated. 

 

21 In its brief the Respondent persuasively reviewed Vargo’s contradictory testimony. 

RB, at pp. 15-17. 

22 At hearing Secretary’s witness, Mr. Snyder, implied that a wear pad could serve its 

function until it was actually cut in half. T. 132-133. 

23 In his brief Respondent persuasively argues that neither the safeguard nor Mr. Vargo 

detailed what it meant for rollers to be “properly maintained” or to “turn freely” or how operator 

was to achieve the mandate. RB, p. 16. 

42 FMSHRC Page 852
IV. Safeguard No. 9076449 does not address transportation hazards covered by a previous 

safeguard issued at Baily Mine. 

Unlike Safeguard No. 9076448, this Court concludes that Safeguard No. 9076449 is 

facially valid in that the specific transportation hazards which Inspector Vargo sought to prevent 

were not already covered by an existing mandatory safety standard. 

In reaching the within conclusion, this Court was persuaded by the arguments raised in 

Secretary’s brief as to the differing hazards contemplated in Safeguard Nos. 3070427 and 

9076449. See also SB, 8-10. 

Respondent has contended that Safeguard No. 3670427, issued at Baily Mine in March 

2001, already addressed the safety hazards contemplated in the MSHA inspector Safeguard No. 

9076449, issued in August 2018. T. 210-211. 

This Court does not agree. The Secretary’s arguments against such preemption are 

persuasive. See also SB, 8-10. 

At hearing Baily Mine’s safety supervisor, Michael Tennant, agreed that Safeguard No. 

3670427 dealt specifically with track haulage. T. 210. On cross-examination, he conceded that 

the safeguard did not address such hazards as hoist car derailment. 

Considering also that Safeguard No. 9076449 dealt with a different area of the mine, the 

slope hoist area, as opposed to track haulage areas, that track cars are moved by locomotives and 

slope cars by a hoist rope, and given the different transportation described infra, this Court finds 

Safeguard No. 9076449 to be facially valid. 

V. The Secretary failed to carry its burden of proving that an actual transportation hazard 

contemplated in Safeguard No. 9076449 existed at the time of MSHA’s inspection(s). 

Safeguard No. 9076449 indicated that various mining supplies and discarded items were 

seen on both sides of the slope tracks. P-4, Section 8. The Secretary contends that these 

conditions created various hazards. See also SB, 9-10. There would be a slip and trip hazard 

presented to miners traveling on foot such as examiners, track cleaners, and miners using the 

track slope as an emergency route. T. 38-39, 44, 183. Debris could fall into the hoist car’s brake 

clamps and track, preventing the cars from stopping, creating a struck-by hazard for miners in 

the hoist cars, including examiners and miners working in the slope track or working at the 

bottom of the slope track. T. 40-41. There being no seat belts, miners might be thrown out of the 

hoist cars. T. 39. Debris could come into contact with the rail and the hoist car wheels and could 

cause a derailment. T. 39-43. The hoist rope could abrade against debris in the slope track and 

create additional excessive wear. T. 39-41. A struck-by hazard would be created for miners 

working in or at the base of the slope track or for miners riding in hoist cars. T. 30-41. 

At hearing, however, Mr. Vargo offered little evidence that the supplies and debris 

described in the safeguard were actually in contact with the slope track, brakes or slope cars, or 

42 FMSHRC Page 853
slope hoist.24 On cross-examination, Vargo admitted that he did not know whether any material 

was actually contacting the slope car. T. 87. 

As to many of the alleged hazards, Vargo offered little in the way of corroborative 

support. He had failed to take measurements to determine how close material was to the track. T. 

87. While testifying that there was material in some areas contacting the slope rope, no such 

observations were recorded in the safeguard or his contemporaneous notes. T. 87; see also P-4. 

Similarly, as to whether material presented a slip and trip hazard, Vargo again failed to 

note such in the safeguard or his notes.25 T. 88. This led to Vargo having to split hairs in his 

testimony. His explanation that he hadn’t said “slipped” or “tripped”, but only that he slipped 

was somewhat confusing. T. 89. This Court found it an open question as to whether Vargo and 

his escort had slipped because of the steepness of grade or because of material in the space 

between the track and supplies. Given that it is Secretary’s burden to establish each operative 

fact, this Court specifically finds that the Secretary failed to carry such burden as to the existence 

of an actual slip and trip or slip and fall hazard. 

This Court finds the Respondent’s arguments as to the absence of actual transportation 

hazards to be persuasive and holds that it is correct. See also SB at 17-18. 

VI. Assuming the Secretary did carry his burden of proof, the Secretary failed to properly 

articulate the conduct required of the operator to remedy the contemplated transportation 

hazards. 

This Court agrees with Respondent’s argument that Safeguard No. 9076449 is invalid 

because it contains vague and non-specific remedies that do not adequately address or provide 

adequate notice of the conditions and how the operator is to remedy the contemplated 

transportation hazard. See RB, p. 18. 

The safeguard directs that the slope track be “kept free of these mine supplies and other 

supplies that are hoisted in and out of the mine.” T. 93; P-4. Given that supplies are hoisted in 

and out of the mine, the safeguard provides insufficient direction as to how the slope track 

should be kept free of such. Considering Vargo’s testimony that supplies or materials located in 

the slope which do not contact the slope car are not hazardous, the safeguard provides 

insufficient notice as to what remedies should be undertaken to avoid the contemplated 

transportation hazards.26 

 

24 The issue of slope rope damage has already been discussed above. 

25 This Court also notes there may be an issue as to whether a slip and fall hazard 

constitutes a hazard with respect to transportation under § 75.1403. 

26 For example should there be a certain clearance distance maintained between the 

haulage track and any supplies, materials, debris along the track? 

42 FMSHRC Page 854
For the foregoing reasons, Safeguard No. 9076449 violation should be vacated. 

ORDER

 It is the ORDER of this Court that Citation Nos. 9076455 and 9076456 and respective 

associated Safeguard Nos. 9076448 and 9076449 are hereby VACATED and DISMISSED. 

 /s/ John Kent Lewis 

John Kent Lewis 

Administrative Law Judge 

Distribution: 

John Strawn, Esq., Office of the Solicitor, U.S. Dep. of Labor, The Curtis Center, 170 S. 

Independence Mall West, Suite 630E, Philadelphia, PA 19106-3306 strawn.john@dol.gov 

Kenneth J. Polka, CLR, 631 Excel Drive, Suite 100, Mt. Pleasant, PA 15666 

polka.kenneth@dol.gov 

Patrick W. Dennison, Esq., Fisher & Phillips, LLP, 6 PPG Place, Suite 830, Pittsburgh, PA 

15222, pdennison@fisherphillips.com 

/mzm 

42 FMSHRC Page 855