i 

October 2015 

TABLE OF CONTENTS 

COMMISSION DECISIONS 

10-23-15 SANDRA G. MCDONALD v. TMK 

ENTERPRISE SECURITY 

WEVA 2014-387-D Page 2239 

10-28-15 RESOLUTION COPPER MINING, 

LLC 

WEST 2013-319-RM Page 2244 

ADMINISTRATIVE LAW JUDGE DECISIONS 

10-02-15 SPARTAN MINING COMPANY WEVA 2015-407-R Page 2253 

10-05-15 SHERWIN ALUMINA COMPANY, 

LLC 

CENT 2015-0185 Page 2260 

10-14-15 SEC. OF LABOR O/B/O JEREMY 

JONES v. KINGSTON MINING, INC. 

WEVA 2015-1007-D Page 2295 

10-15-15 TRAYLOR MINING, LLC WEST 2014-351-M Page 2307 

10-15-15 JEPPESEN GRAVEL CENT 2014-298-M Page 2319 

10-15-15 DANIEL B. LOWE v. VERIS GOLD 

USA, INC. 

WEST 2014-614-DM Page 2337 

10-21-15 NORTHSHORE MINING COMPANY LAKE 2014-219-M Page 2352 

10-22-15 ALPHA HIGHWALL MINING, LLC, 

and REVELATION ENERGY, LLC 

KENT 2013-142 Page 2393 

10-22-15 CONSOLIDATION COAL 

COMPANY 

VA 2012-42 Page 2396 

10-22-15 CONSOL BUCHANAN MINING 

COMPANY, LLC 

VA 2014-0198 Page 2413 
ii 

10-27-15 LAWRENCE PENDLEY v. 

HIGHLAND MINING CO. AND 

JAMES CREIGHTON 

KENT 2013-606-D Page 2436 

10-28-15 PRODUCTOS DE AGREGADOS DE 

GURABO 

SE 2013-449-M Page 2441 

10-28-15 KEMPTON TRANSPORT, INC. WEST 2014-998 Page 2462 

10-29-15 KOPPER GLO MINING, LLC SE 2014-403 Page 2467 

10-29-15 CR MEYER & SONS COMPANY, 

INC. 

WEST 2014-834-M Page 2479 

10-30-15 JOHN RICHARDS CONSTRUCTION WEST 2015-101-M Page 2490 

ADMINISTRATIVE LAW JUDGE ORDERS 

10-06-15 COEUR ALASKA, INC. WEST 2015-346-M Page 2499 

10-16-15 MATTHEW A. VARADY v. VERIS 

GOLD USA, INC. 

WEST 2014-307-DM Page 2502 

10-20-15 HUNTER SAND & GRAVEL, LLC KENT 2014-566-M Page 2507 

10-21-15 SCOTT D. MCGLOTHLIN v. 

DOMINION COAL CORPORATION 

VA 2014-233-D Page 2511 

10-29-15 DOMINION COAL CORPORATION VA 2015-285 Page 2516 
iii 

Review was granted in the following cases during the month of October 2015: 

Secretary of Labor v. KenAmerican Resources, Inc., Docket No. KENT 2013-211 (Judge Gill, 

August 25, 2015) 

Secretary of Labor v. John Richards Construction, Docket No. WEST 2014-440-M (Judge 

Bulluck, August 25, 2015) 

Sherwin Alumina Company v. Secretary of Labor, Docket No. CENT 2015-151-RM, et al 

(Judge McCarthy, October 5, 2015) 

Review was not denied in any case during the month of October 2015. 

COMMISSION DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1331 PENNSYLVANIA AVENUE NW, SUITE 520N 

WASHINGTON, DC 20004-1710 

October 23, 2015 

SANDRA G. MCDONALD 

 v. Docket No. WEVA 2014-387-D 

TMK ENTERPRISE SECURITY 

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

DECISION

BY THE COMMISSION: 

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

§ 801 et seq. (2012) (“Mine Act”). It involves a complaint of discrimination filed by Sandra G.

McDonald (“McDonald”) against “TMK Enterprise Security” pursuant to section 105(c)(3) of

the Mine Act.1 At issue is whether the Administrative Law Judge erred by finding that “TMK

Enterprise Security” could not have been McDonald’s employer because it was not registered as

a corporation during the period of McDonald’s employment. For the reasons that follow, we hold

that the Judge erred when determining that this entity could not have been McDonald’s

employer. Accordingly, we reverse and remand the Judge’s decision.

I.

Factual and Procedural Background 

The complaint filed by McDonald concerns her employment as a security guard by a 

security services contractor at a mine site operated by Frasure Creek Mining, LLC, during the 

period May 2011 through September 2013. Her employment was terminated on or about 

September 3, 2013. 

On September 13, 2013, McDonald filed a discrimination complaint with the Department 

of Labor’s Mine Safety and Health Administration (“MSHA”) under section 105(c)(2) of the

1 Section 105(c)(3), 30 U.S.C. § 815(c)(3), provides in pertinent part: 

Within 90 days of the receipt of a complaint filed under paragraph 

(2), the Secretary shall notify, in writing, the miner . . . of his 

determination whether a violation has occurred. If the Secretary, upon 

investigation, determines that the provisions of this subsection have not 

been violated, the complainant shall have the right . . . to file an action in 

his own behalf before the Commission[.]

37 FMSHRC Page 2239
Mine Act.2

In this complaint, McDonald named her employer, the security services contractor, as 

“TMK Enterprise Security,” which is listed as a contractor in the MSHA Mine Data Retrieval 

System.

3 MSHA Discrimination Compl.; Mot. to Lift Temporary Stay and to Amend Compl., 

MSJ000002 (records of the MSHA Mine Data Retrieval System). After an investigation, MSHA 

declined to pursue her complaint. Subsequently, on January 7, 2014, McDonald filed a 

discrimination complaint with this Commission under section 105(c)(3) of the Mine Act. That 

complaint also named “TMK Enterprise Security” as the Respondent. 

The Judge scheduled a hearing on the case for November 18, 2014. A few days prior to the 

hearing, counsel for the Respondent sought to withdraw as counsel asserting as good cause a 

disagreement between Mark Toler and George King, whom counsel represented to be the owners 

of the Respondent, regarding the ongoing operation of the business. Counsel also cited the 

Respondent’s financial inability to continue to retain counsel. The Judge granted the attorney’s 

request to withdraw and ordered that the security services business file a notice of appearance 

and specify substitute representation or the pro se appearance of King and/or Toler on or before 

January 14, 2015. The Judge rescheduled the case for hearing on February 10, 2015. 

Unpublished Order (Dec. 3, 2014). On January 14, 2015, King and Toler informed the Judge that 

they intended to proceed pro se and would participate fully in all remaining hearings. 

Unpublished Order (Feb. 3, 2015). 

On January 21, 2015, McDonald filed a motion for default judgment, alleging that the 

Respondent had failed to comply with the Judge’s Order. On January 22, 2015, the Judge 

convened a conference call with the parties. During the call, it was represented that the corporate 

status of “TMK Enterprise Security” was dissolved in June 2009. The Judge then ordered the 

parties to participate in a mediation conference with the Commission’s settlement counsel. The 

mediation was scheduled for January 28, but neither King nor Toler appeared. 

On February 2, 2015, McDonald filed a motion for a temporary stay of the proceeding,

stating, in part, that she intended to file a motion to amend her original complaint to add parties. 

The Judge granted the motion and continued the hearing pending the filing of a motion by 

McDonald to amend her complaint.4 Unpublished Order at 2 (Feb. 3, 2015). On February 18, 

2015, McDonald filed a motion to lift the stay and amend her complaint to add Frasure Creek, 

the operator of the mine, as a Respondent in the matter.

2 Section 105(c)(2), 30 U.S.C. § 815(c)(2), provides in pertinent part, that “[a]ny miner . 

. . who believes that he has been discharged, interfered with, or otherwise discriminated against 

by any person in violation of this subsection may . . . after such violation occurs, file a complaint 

with the Secretary alleging such discrimination.” 

3

In her complaint to MSHA, McDonald also listed her employer’s contractor ID as 

“5GI” which, according to the Mine Data Retrieval System, corresponds to the company “TMK 

Enterprise Security.” MSHA Discrimination Compl.; Mot. to Lift Temporary Stay and to Amend 

Compl., MSJ000002.

4 The Judge did not grant the motion for default judgment, noting that King and Toler 

had informed his law clerk that they intended to proceed pro se and provided assurances that 

they would participate fully in all remaining proceedings. The Judge also noted, however, that 

neither King nor Toler had attended the scheduled mediation conference. Unpublished Order 

(Feb. 3, 2015).

37 FMSHRC Page 2240
On March 12, 2015, the Judge issued an Order denying the motion to amend to include 

Frasure Creek, stating that the Secretary’s initial investigation did not include consideration of 

matters contained in the amended complaint, and that McDonald had failed to comply with the 

statutory prerequisite of initially filing a complaint with the Secretary pursuant to section 

105(c)(2). The Judge also found that the corporate status of “TMK Enterprise Security Services, 

Inc.” had been terminated on June 12, 2009, prior to the relevant period of McDonald’s 

employment (May 2011 through September 2013). McDonald v. TMK Enterprise Security, 37 

FMSHRC 683, 683-85 (Mar. 2015) (ALJ).5 Therefore, the Judge dismissed the proceeding as he 

concluded that “TMK Enterprise Security Services, Inc.” could not have been McDonald’s 

employer during the relevant period of her employment. Instead, he found that “McDonald was 

employed by George King and Mark Toler, the former [principals] of [the corporation], who 

continued to operate their security services business as a non-corporate entity.” Id. at 683.

On March 23, 2015, McDonald filed a “Petition for Reconsideration” requesting that the 

Judge set aside his dismissal order and add King and Toler as Respondents. On March 31, 2015, 

the Commission directed review sua sponte “to determine whether the Judge erred as a matter of 

law in concluding that TMK Enterprise Security could not have been the employer of Sandra 

McDonald because it was not registered as a corporation during the period of McDonald’s 

employment.” Thus, the Direction for Review focused on whether “TMK Enterprise Security,” 

rather than the corporation “TMK Enterprise Security Services, Inc.,” could have been 

McDonald’s employer. 

II.

Disposition

For the reasons that follow, we conclude that the Judge erred in failing to consider 

whether the named respondent, “TMK Enterprise Security,” referred to a “person” meaning “any 

individual, partnership, association, corporation, firm, subsidiary of a corporation, or other 

organization,” pursuant to section 3(f) of the Mine Act, which employed McDonald during the 

relevant period of her employment. 30 U.S.C. § 802(f). 

The Judge found that following the termination of “TMK Enterprise Security Services, 

Inc.” in 2009, George King and Mark Toler continued to operate their security services business 

as a non-corporate entity. A non-corporate entity may constitute an employer under the Mine 

Act. Section 105(c)(1) of the Mine Act, 30 U.S.C. § 815(c)(1), provides, in pertinent part that 

“[n]o person shall discharge or in any manner discriminate against or cause to be discharged or 

cause discrimination against or otherwise interfere with the exercise of the statutory rights of any 

miner.” Section 3(f) of the Mine Act defines the term “person” to mean “any individual, 

partnership, association, corporation, firm, subsidiary of a corporation, or other organization.” 30 

U.S.C. § 802(f). See Meredith v. FMSHRC, 177 F.3d 1042, 1052-56 (D.C. Cir. 1999). Therefore, 

it is clear that a non-corporate entity such as a partnership, association, or other organization may 

qualify as a “person” or employer under section 105(c) of the Mine Act. 

5 The records of the State of West Virginia confirm that the corporate status of “TMK 

Enterprise Security Services, Inc.” had been terminated on June 12, 2009. Mem. in Supp. of Mot. 

for Default J., Ex. C. 

37 FMSHRC Page 2241
The Judge also noted that the relevant period of McDonald’s employment, for the 

purpose of this proceeding, was May 2011 to September 2013. We find that the record 

establishes that King and Toler operated one or more non-corporate security services businesses 

under the name “TMK Security” and/or “TMK Enterprise Security,” which employed McDonald 

during this period.6 

Furthermore, the record indicates that during 2011 through 2013, “TMK Security” was 

the trade name for “Appalachian Enterprise Security Services, LLC.” Pet. for Recons., Ex. 1. 

“Appalachian Enterprise Security Services, LLC” listed King and Toler, the former principals of 

“TMK Enterprise Security Services, Inc.,” among its officers. Id. Upon the termination of the 

corporate status of “TMK Enterprise Security Services, Inc.,” Messrs. King and Toler clearly 

continued to operate in a non-corporate form under the name “TMK Security” and/or “TMK 

Enterprise Security,” without attention to details of corporate law. Therefore, the termination of 

the corporate status of “TMK Enterprise Security Services, Inc.” does not lead to the dismissal of 

the complaint against “TMK Enterprise Security.” The entity, either as a partnership of Toler and 

King or as a trade name for “Appalachian Enterprise Security Services, LLC,” was Respondent’s 

employer during the period applicable to the complaint.7

 

Hence, we hold that the Judge erred when he dismissed the complaint against “TMK 

Enterprise Security.”8

6 In this regard, the “employee disciplinary report” issued to McDonald on September 9, 

2013 bears the letterhead “TMK Security.” Employee Disciplinary Report, issued on Sept. 9, 

2013. However, as noted above, a security entity operated by King and Toler was registered as a 

contractor with MSHA under the name “TMK Enterprise Security.” Significantly, “TMK 

Enterprise Security” filed an Answer to McDonald’s complaint, responded to her interrogatories 

and requests for production of documents, and filed both a motion to dismiss, and a Pre-Hearing 

Report. In the Answer to the complaint, motion to dismiss and response to McDonald’s 

discovery requests, the entity referred to itself as “TMK Enterprise Security.” Answer to Compl. 

at 1-2; Mot. to Dismiss at 1-2; Resp. to Disc. Reqs. at 1-2. In the Pre-Hearing Report, the entity 

referred to itself as “TMK Security.” Resp’t Preh’g Report at 4. Significantly, it was never 

denied that McDonald worked for this entity, or that King and Toler were the principals of the 

entity. 

7 After termination of its corporate form “TMK Enterprise Security” would have been 

operating as a partnership between Messrs. King and Toler or as a trade name for “Appalachian 

Enterprise Security Services, LLC.” Therefore, the complainant may amend her complaint to 

add “Appalachian Enterprise Security Services, LLC,” “TMK Security,” King, and Toler as 

Respondents. 

8

 Not only is “TMK Enterprise Security” listed in the MSHA Mine Data Retrieval 

System, but the Mine Data Retrieval System lists citations issued to the contractor “TMK 

Enteprise Security” in 2013, several years after the termination of the corporation “TMK 

Enterprise Security Services, Inc.” Mot. to Lift Temporary Stay and to Amend Compl., 

MSJ000002. 

37 FMSHRC Page 2242
III. 

Conclusion 

For the reasons stated above, we reverse the Judge and conclude that “TMK Enterprise 

Security” is a “person” pursuant to section 3(f) of the Mine Act. “TMK Enterprise Security” 

continues to be a Respondent in this proceeding and leave is granted for McDonald to amend the 

complaint to add other relevant parties, including King and Toler. The case is remanded for 

further proceedings consistent with this decision. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner 

37 FMSHRC Page 2243
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710 

October 28, 2015 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. Docket Nos. WEST 2013-319-RM 

 WEST 2013-299-M 

RESOLUTION COPPER MINING, LLC 

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

DECISION 

BY THE COMMISSION: 

These proceedings arise under the Federal Mine Safety and Health Act of 1977, 30 

U.S.C. § 801 et seq. (2012) (“Mine Act”). The citation at issue alleges that Resolution Copper 

Mining, LLC, violated 30 C.F.R. § 57.190761

 by operating its personnel conveyance system in 

excess of the maximum speed limitation of 500 feet per minute (fpm). At issue is whether the 

Administrative Law Judge correctly ruled that the personnel conveyance in question was not 

governed by the requirements of section 57.19076. For the reasons that follow, we conclude that 

the Judge erred in rejecting the Secretary of Labor’s interpretation of the standard and vacating 

the citation. Accordingly, we reverse the Judge’s decision and remand the case for further 

proceedings. 

I.

Factual and Procedural Background 

A. Factual Background

Resolution Copper Mining, LLC (“Resolution”) operates the Resolution Mine, an 

underground copper mine in Arizona. On November 28, 2012, an inspector from the Department 

of Labor’s Mine Safety and Health Administration (“MSHA”) issued Citation No. 8596049 to 

Resolution. The citation alleged that the operator violated section 57.19076 by hoisting miners in 

a conveyance vessel at the No. 10 shaft at speeds of up to 1200 fpm, which exceeds the 

maximum allowable speed of 500 fpm when hoisting persons in a bucket. The outcome 

1

 Section 57.19076 requires that “[w]hen persons are hoisted in buckets, speeds shall not 

exceed 500 feet per minute and shall not exceed 200 feet per minute when within 100 feet of the 

intended station.” 30 C.F.R. § 57.19076. 

37 FMSHRC Page 2244
determinative issue was whether the vessel used by Resolution constituted a “bucket” within the 

meaning of section 57.19076. The citation also designated the violation as being “significant and 

substantial” (“S&S”).2

 

Resolution, without objection, sought an expedited proceeding before a Commission 

Administrative Law Judge. The parties agreed that the record would be based upon an 

evidentiary record already developed in a separate, prior proceeding before Department of Labor 

Administrative Law Judge Richard M. Clark, described in detail below. On April 19, 2013, the 

Commission Judge issued a decision vacating the citation. 35 FMSHRC 1072 (Apr. 2013) (ALJ). 

On May 17, 2013, the Commission granted the Secretary’s petition for discretionary review. 

B. Petition for Modification 

The proceeding before Judge Clark arose from a petition for modification of the 

application of section 57.19076 filed by Resolution pursuant to section 101(c) of the Mine Act.3

30 U.S.C. § 811(c). The petition was filed on April 12, 2011, twenty months before the issuance 

of the citation in dispute here. On November 4, 2011, MSHA’s Administrator for Metal and 

Non-Metal Mine Safety and Health (“The Administrator”) issued a Proposed Decision and Order 

denying Resolution’s petition for modification.4 P. Ex. 14. The operator subsequently requested a 

                                                             2

 The S&S terminology is taken from section 104(d)(1) of the Act, 30 U.S.C. § 814(d)(1), 

which distinguishes as more serious any violation that “could significantly and substantially 

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

 

3 Under section 101(c), 30 U.S.C. § 811(c), petitions for modification of mandatory 

standards are handled by the Department of Labor, as opposed to the Commission. The language 

of section 101(c) provides in relevant part: 

Upon petition by the operator or the representative of 

miners, the Secretary may modify the application of any 

mandatory safety standard to a coal or other mine if the Secretary 

determines that an alternative method of achieving the result of 

such standard exists which will at all times guarantee no less than 

the same measure of protection afforded the miners of such mine 

by such standard, or that the application of such standard to such 

mine will result in a diminution of safety to the miners in such 

mine. 

4

 Petitions for modification under the Mine Act are governed by the Secretary’s 

regulations in 30 C.F.R. Part 44. Proposed decisions to grant or deny petitions for modification 

are made by the Administrator. 30 C.F.R. § 44.13. Within 30 days of the Administrator’s 

proposed decision, either party may request a hearing before a Department of Labor 

Administrative Law Judge for an initial decision. 30 C.F.R. § 44.14. Within 30 days of the ALJ’s 

initial decision, either party may file an appeal to the Assistant Secretary for Mine Safety and 

Health. 30 C.F.R. § 44.33. Decisions made by the Assistant Secretary are subject to judicial 

review in the U.S. Courts of Appeals. 

37 FMSHRC Page 2245
hearing before the Department of Labor’s Office of Administrative Law Judges, and the case 

was assigned to Judge Clark. Based on the record developed before him, Judge Clark found that 

the personnel conveyance system used in the No. 10 shaft did not constitute a “bucket” for 

purposes of section 57.19076. DOL ALJ Dec. I at 22 (Oct. 2012). Judge Clark did not reach the 

question of whether Resolution’s petition satisfied the requirements for petitions for 

modification, as set forth in section 101(c). 

On May 31, 2013, the Assistant Secretary for Mine Safety and Health set aside Judge 

Clark’s initial decision on the basis that disputes regarding the interpretation and applicability of 

standards must be resolved before the Commission. DOL Asst. Sec’y Dec. I at 12-17 (May 

2013). The Assistant Secretary remanded the case to Judge Clark to determine whether 

Resolution’s proposed alternative satisfied the standard for petitions for modification. 

On November 6, 2014, Judge Clark subsequently found that the standard was satisfied on 

the basis that the operator’s proposed alternative guaranteed no less than the same measure of 

protection afforded by section 57.19076. As a result, Judge Clark granted the petition for 

modification. DOL ALJ Dec. II (Nov. 2014). 

MSHA subsequently appealed Judge Clark’s decision to the Assistant Secretary. On June 

5, 2015, the Assistant Secretary granted the petition for modification in part with conditions and 

additional safety enhancements and remanded the case for additional findings of fact and further 

proceedings consistent with his decision. DOL Asst. Sec’y Dec. II (June 2015). 

C. The Commission Judge’s Decision

The Commission Judge in the instant case found that the hearing record developed before 

Judge Clark was comprehensive and granted the operator’s unopposed motion for an expedited 

proceeding. 35 FMSHRC at 1073-74. Based upon the record, the Commission Judge found that 

the personnel conveyance used at the No. 10 shaft did not constitute a “bucket” for purposes of 

section 57.19076. Accordingly, he vacated the citation. 

The Judge stated that the term “bucket” is not defined in section 57.19076. He further 

rejected the Secretary’s interpretation that the term “bucket” applies to the personnel conveyance 

at issue in the No. 10 shaft. The Judge acknowledged that an agency’s interpretation of an 

ambiguous regulatory provision is entitled to “controlling deference unless it is plainly erroneous 

or inconsistent with the regulation.” Id. at 1077. However, the Judge refused to defer to the 

Secretary’s interpretation on the grounds that it was unpersuasive and inconsistent with the 

Secretary’s own prior interpretation. Id. at 1078-79. In doing so, he cited United States v. Mead 

Corp., 533 U.S. 218, 221 (2001), and Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944), and 

stated that “[a]n agency’s interpretation that does not carry the force of law may still be worthy 

of receiving another form of persuasive deference or ‘respect.’” Id. at 1077. He further stated that 

the “persuasiveness and consistency of the Secretary’s interpretation must be evaluated to 

determine how much deference should be accorded, if any.” Id. at 1078.

In rejecting the Secretary’s interpretation, the Judge discounted the opinion of the 

Secretary’s expert witness, Thomas Barkand, who testified that Resolution’s “personnel 

37 FMSHRC Page 2246
conveyance” met the definition of a “bucket” primarily because it was suspended from a 

crosshead. Tr. 250. The Judge found that Barkand failed to explain “how the suspension of the 

bucket relate[d] to what is considered a bucket in the safety standard.” 35 FMSHRC at 1078-79. 

The Judge reasoned that “[i]f the Secretary wanted any personnel conveyance suspended from a 

wire rope without the use of a fixed guide to be subject to the 500 fpm speed limit, he could have 

easily said so in the safety standard.” Id. 

In addition, the Judge relied heavily on the definition of “bucket” contained in the 

Dictionary of Mining, Mineral, and Related Terms (DMMRT) in rejecting the Secretary’s 

interpretation. The DMMRT definition states that a “bucket” is “[a]n open-top can, equipped with 

a bail, used to hoist broken rock or water and to lower supplies and equipment to workers in a 

mine shaft or other underground opening.” P. Ex. 4. According to the Judge, Resolution’s

conveyance failed to meet that definition because it had a closed top, a door, and thinner walls; 

was taller; was not used to hoist broken rock or water; and was “specifically designed to only 

hoist miners” and their personal equipment. 35 FMSHRC at 1078. The Judge rejected the 

Secretary’s argument that the definition of “bucket” in the DMMRT should not be relied upon, 

and stated that the DMMRT “is a recognized authority to determine [the] technical usage [of 

mining terms]” and that the technical usage is relevant to determining the term’s meaning. Id. 

Finally, the Judge found the Secretary’s interpretation of section 57.19076 to be 

inconsistent. Quoting from the proposed decision by the Administrator in the separate petition 

for modification proceeding denying the petition, the Judge concluded that MSHA itself 

acknowledged that the “personnel conveyance” was not a bucket. 35 FMSHRC at 1079. 

II. 

Disposition 

A. The Secretary’s Interpretation of Section 57.19076 is Reasonable and Persuasive

Because It Is Supported by the Language and Purpose of the Standard and the

Overall Regulatory Scheme.

The term “bucket” is not defined in the standard or elsewhere in the Secretary’s 

regulations. Further, as applied to the facts of this case (involving the movement of persons), the 

term “bucket” is inherently ambiguous. The Secretary maintains that the conveyance used by 

Resolution is a “bucket” for purposes of section 57.19076 because it is suspended from a 

crosshead and guided by ropes. The issue is whether interpreting the standard in such a way is a 

reasonable and persuasive approach.5

 

5

 It appears that in rejecting the Secretary’s interpretation of section 57.19076, the Judge 

applied the standard of review for deference articulated in Skidmore v. Swift, and held that the 

Secretary’s interpretation lacked the power to persuade. See 35 FMSHRC 1077-78; Skidmore, 

323 U.S. at 140 (holding that deference to decision of administrator varies, depending on a 

number of factors that give power to persuade, if not control). Because we hold that the 

(continued...) 

37 FMSHRC Page 2247
We hold that the Secretary’s approach is reasonable and persuasive because it is 

consistent with the language and purpose of the standard and serves the Act’s promotion of mine 

safety. The clear purpose of the speed limitations in section 57.19076 is to reduce the likelihood 

of death or injury that might result from the impact on persons in a bucket if the bucket strikes 

something while being raised or lowered. The Secretary maintains that the speed of such a 

conveyance, i.e., one that is suspended from a crosshead and guided by ropes, must be limited 

because there will be a lesser degree of control, and this lesser degree of control could cause a 

strike to occur. 

The Secretary’s position is supported by the testimony of expert witness Barkand. 

Barkand testified that the personnel conveyance was a bucket because, like the operator’s muck 

and cement buckets, it was hung from a crosshead by ropes that – as opposed to the mechanism 

that controls a fixed guidance conveyance, such as an elevator – do not “precisely control[ ] the 

travel of the conveyance.” Tr. 248-51. In other words, it was the method of suspension and 

control of the conveyance – in particular, the lesser degree of control – that makes the 

conveyance a “bucket” for purposes of section 57.19076. 

The operator’s argument that Barkand’s testimony fails to support the Secretary’s 

interpretation is unpersuasive. The operator asserts that Barkand failed to relate the rope-guided 

method of suspension for the personnel conveyance to what is considered a “bucket” in the 

safety standard. However, Barkand implicitly testified that the method of suspension could result 

in the “bucket” striking the shaft wall or other obstruction. Specifically, after testifying about 

how guided rope conveyances have a lesser degree of control, he subsequently testified about 

how, in the event of a strike, the kinetic energy transfer would injure miners. Tr. 249-54. Thus, 

Barkand’s testimony supports the Secretary’s interpretation. 

Given the injuries to miners that would occur if the bucket struck an obstruction, it is 

reasonable for the Secretary to require speed limitations on rope-guided personnel conveyances 

to prevent such strikes from occurring while the conveyances are traveling up and down mine 

shafts. Thus, we are persuaded by the Secretary’s interpretation of the term “bucket” as applying 

to personnel conveyances that are not precisely controlled because they are suspended from 

crossheads and guided by ropes.6

5

 (...continued) 

Secretary’s interpretation is reasonable and persuasive, and therefore entitled to deference under 

Skidmore, it is not necessary for us to determine whether the Judge should have applied a more 

deferential standard of review following Auer v. Robbins, 519 U.S. 452, 461 (1997). 

6

 The personnel conveyance at issue is guided and controlled just like any other bucket. 

Tr. 237-38. It is attached to a cross-head and guided like the other buckets at the mine. Id. The 

personnel conveyance in question also looks like a bucket. Tr. 249-50. The Secretary’s Exhibits 

1-3 show three different sorts of buckets used at the Resolution mine. R. Exs. 1-3. The primary

difference between the personnel conveyance and the muck and cement buckets is the addition of

a lid and the fact that there is no side door. But it is guided in the same manner. In contrast, the

(continued...) 

37 FMSHRC Page 2248
The operator argues that, under the regulatory scheme, “guided by ropes” cannot be an 

essential characteristic of a “bucket” that distinguishes it from some other type of conveyance 

because the regulations contemplate the use of guide ropes for hoisting personnel in conveyances 

that are not buckets. For instance, the operator points out that 30 C.F.R. § 57.19019 provides 

strength requirements for guide ropes when such ropes are “used in shafts for personnel hoisting 

applications other than shaft development” (emphasis added). The operator notes, however, that 

under 30 C.F.R. § 57.19049, buckets may not be used for hoisting personnel, except in the case 

of shaft development and inspection, repair and maintenance activities. Thus, if a bucket can 

only be used for shaft development, inspection, repair or maintenance, but guide ropes are 

permitted to be used for hoisting personnel outside of those circumstances, the operator contends 

that it logically follows that the regulatory scheme contemplates the use of guide ropes for 

hoisting personnel in conveyances that are not buckets. Thus, according to Resolution, being 

“guided by ropes” cannot be an essential characteristic of a “bucket” that distinguishes it from 

some other type of conveyance. 

Although this particular point might have some initial appeal, the Secretary has 

ultimately persuaded us that an essential characteristic of a “bucket” in these circumstances is 

that it is “guided by ropes.” Specifically, the Secretary points out that section 57.19000(b)(4) 

states that the hoisting standards (Subpart R of Part 57) do not apply to “wire ropes used for 

elevators.” The Secretary argues that this regulatory delineation between buckets and elevators is 

intended to reflect the fact that a collision or strike is more likely to occur in the case of a 

conveyance that is guided by ropes and attached to a crosshead than in the case of a fixedguidance conveyance, such as an elevator. By contrast, being “guided by ropes” creates 

significant safety risks, and therefore is an essential characteristic of a “bucket.” The Secretary 

argues that these safety risks support the speed limitations in section 57.19076. We agree, and as 

a result, conclude that the Secretary’s interpretation is reasonable and persuasive.7

6

 (...continued) 

“Maryanne” – another type of personnel conveyance used at the mine – operates using a fixedcage guided by a fixed-guide method (similar to an elevator), as opposed to a rope-guided 

method. Tr. 139-140. 

7

 We further note that Resolution’s position is inconsistent with numerous statements in 

the record made by it, along with its consulting engineers, G. L. Tiley & Associates, and its 

independent contractor, Cementation Canada – all of which refer to the personnel conveyance as 

a “bucket.” For example, Petitioner’s Exhibit No. 1, a lengthy PowerPoint presentation, labels 

the conveyances as “buckets” on the computer screen. P. Ex. 1 (p. 5, Monitor: Shaft Information 

and Communications) (referring to “No. 1 Bucket” and “No. 2 Bucket”). G. L. Tiley, 

commissioned to do testing on the conveyance, also refers to the conveyances as “buckets.” P. 

Ex. 7, pages 3-11. In addition, Cementation of Canada, a contractor working with the operator, 

described it in 2007 as a “bucket” in their own diagrams. R. Ex. 4. Furthermore, Cementation’s 

programmable logic controllers and operating description from 2009 do not refer to 

conveyances, but rather to “buckets.” P. Ex. 17, pages 4, 6, 7. These references certainly 

undercut Resolution’s legal position.

37 FMSHRC Page 2249
B. The DMMRT Definition of “Bucket” Is Irrelevant to this Case.

The DMMRT definition of “bucket” relied upon by the Judge does not undermine the 

reasonableness and persuasiveness of the Secretary’s interpretation. In this case, the Judge’s 

reliance on the DMMRT definition is undermined by the Secretary’s safety standards and thus 

has no relevance to this case.8

 Specifically, the DMMRT definition fails to mention any of the 

characteristics of a “bucket” that are relevant to the safety of personnel being hoisted in it. For 

example, the DMMRT definition fails to recognize that when a “bucket” is hoisting personnel it 

must be securely attached to a crosshead.” 30 C.F.R. § 57.19050(a). Further, although the 

DMMRT defines a bucket as “[a]n open-top can, equipped with a bail, used to hoist broken rock 

or water and to lower supplies and equipment to workers in a mine shaft or other underground 

opening,” the Secretary’s standards require a “bucket” that is hoisting personnel to be covered, 

i.e., to “[h]ave overhead protection,” and to have a device that disables the bail. 30 C.F.R. §

57.l9050(b), (d); see also 30 C.F.R. § 57.19045 (“man cages” and “skips” used for hoisting

personnel “shall be covered with a metal bonnet”). Thus, the Secretary’s standards effectively

negate the very characteristics (open-topped and equipped with a bail) by which the DMMRT

defines the term “bucket.”

The DMMRT definition does not even recognize that a “bucket” is commonly used to 

hoist personnel during the sinking of a shaft.9

 The definition mentions lowering supplies and 

equipment to miners but says nothing about carrying personnel. Indeed, the DMMRT definition 

simply describes an ordinary “bucket” and has nothing to do with personnel conveyances. As a 

result, the DMMRT definition is clearly incongruous with the standard being interpreted. 

Finally, the Judge’s finding of fact that the conveyance was taller than the muck and 

cement buckets is inconsequential, given the requirement of section 57.19050(c) that a “bucket” 

used to hoist personnel must be tall enough to “transport persons safely in a standing position.” 

Nor may a “bucket” in which personnel are riding contain “muck, supplies, materials, or tools 

other than small hand tools.” 30 C.F.R. § 57.19071. Thus, these facts have no bearing on whether 

or not the conveyance at issue is a “bucket.” 

8

 As noted above, the DMMRT definition states that a “bucket” is “[a]n open-top can, 

equipped with a bail, used to hoist broken rock or water and to lower supplies and equipment to 

workers in a mine shaft or other underground opening.” P. Ex. 4. Am. Geological Institute, 

Dictionary of Mining, Mineral, and Related Terms 71 (2d ed. 1997). 

9

 The operator’s assertion that this issue is not properly before the Commission because 

the Secretary did not make this argument before the Judge lacks merit. At issue before the Judge 

below was the meaning of the term “bucket” in section 57.19076. The reliability of the DMMRT

definition of “bucket” is central to this issue. Thus, although the points raised on appeal by the 

Secretary are not identical to those raised below, they are “sufficiently related” to those raised in 

support of the Secretary’s interpretation so that the Commission can consider them. See, e.g., 

BHP Copper Inc., 21 FMSHRC 758, 762 (July 1999); Keystone Coal Mining Corp., 16 

FMSHRC 6, 10 n.7 (Jan. 1994). 

37 FMSHRC Page 2250
For all these reasons, we conclude that the DMMRT definition of “bucket” is irrelevant to 

this case. 

C. The Judge Failed to Recognize that the MSHA Administrator’s Allegedly

Inconsistent Previous Interpretation Was Merely a Description of Resolution’s

Legal Position.

The Judge additionally erred in finding the Secretary’s interpretation undeserving of 

deference on the ground that it was inconsistent with the language in the Administrator’s 

proposed decision denying the petition for modification. 35 FMSHRC at 1079. The Judge failed 

to realize that the portion of the Administrator’s proposed decision that he quoted was the 

introduction, in which the Administrator merely described – verbatim – the position stated in the 

operator’s petition for modification. Recitation of that description, in that context, did not mean 

that the Administrator agreed with Resolution’s position. 

The operator’s petition for modification and the Administrator’s proposed decision both 

stated: “The personnel conveyance that this petition is submitted upon is not a ‘bucket,’ but 

rather is an enclosed capsule designed for the transport of personnel.” P. Exs. 5, 14. Similarly, 

the succeeding eight sentences in the Administrator’s proposed decision were all taken verbatim 

from the operator’s petition and all appeared in the Administrator’s proposed decision prior to

the section with the heading “Findings of Fact and Conclusions of Law.” P. Ex. 14. Under that 

heading, the Administrator did not repeat the statement relied on by the Judge, but rather 

addressed the merits of the petition for modification on the assumption that the conveyance was 

a “bucket” for purposes of section 57.19076. This is consistent with the fact that the 

Administrator referred to the conveyance as a “personnel bucket” throughout the entire section. 

P. Ex. 14. Furthermore, the Administrator’s denial of the petition for modification in effect

directed that the standard be applied to the conveyance without modification, which implies that

the Administrator found that the conveyance was a “bucket” for purposes of section 57.19076.

In short, the Judge’s conclusion that MSHA had taken inconsistent positions regarding 

the interpretation of the standard is based on a misreading of the Administrator’s proposed 

decision.

37 FMSHRC Page 2251
III. 

Conclusion 

For the reasons stated above, we reverse the Judge’s decision and rule that section 

57.19076 was violated. We remand the case to the Judge to determine whether to affirm the 

inspector’s S&S designation. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner 

37 FMSHRC Page 2252
ADMINISTRATIVE LAW JUDGE DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9958 / FAX: 202-434-9949 

October 2, 2015 

SUMMARY DECISION

Before: Judge Barbour 

This case is before me upon a Notice of Contest filed by Spartan Mining Company 

(“Spartan”), challenging the issuance by the Secretary of Labor (“Secretary”) of an imminent 

danger order, under section 107(a) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 817(a). The Order was issued on December 30, 2014, at Spartan’s Road Fork No. 51 Mine, an

underground bituminous coal mine located in Wyoming County, West Virginia, when an

inspector for the Secretary’s Mine Safety and Health Administration (“MSHA”) saw a miner

standing alongside a moving continuous mining machine and instructed the miner to

immediately remove himself from the area. In conjunction with the Order and pursuant to section

104(a) of the Act, the inspector also issued Citation No. 9020933 to Spartan.1

The court initially scheduled a June 9, 2015, hearing on this matter. Shortly after the 

notice of hearing was issued, the parties settled all issues related to Citation No. 9020933 and 

requested that the court resolve the remaining issues regarding the imminent danger order on 

summary decision.2

 The parties agreed to submit stipulations of fact and cross-motions for 

summary decision, and the court issued an Order cancelling the June 9 hearing. The parties 

subsequently filed Cross-Motions for Summary Decision with accompanying Briefs (“Sec’y Br.” 

and “Resp’t Br.”) and Joint Stipulations of Fact (“Stip. 1 through 13”), followed by Reply Briefs 

from each side (“Sec’y Reply Br.” and “Resp’t Reply Br.”). The court issued an Order 

1

 Citation No. 9020933 charged the company with a violation of 30 C.F.R. § 

75.220(a)(1), which requires an operator to adopt and comply with an approved roof control 

plan. A provision in Spartan’s approved plan prohibited miners from standing alongside a 

continuous miner when the continuous miner was being trammed, unless it was cutting coal. See

Stip. 10. 

2

 The court approved the settlement on June 24, 2015. Spartan Mining Co., Docket No. 

WEVA 2015-592, Unpublished Order at 2 (June 24, 2015). 

SPARTAN MINING COMPANY, 

 Petitioner 

 v. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) , 

 Respondent 

 CONTEST PROCEEDING 

Docket No. WEVA 2015-407-R 

Order No.: 9020932; 12/30/14 

Mine: Road Fork #51 Mine 

Mine ID No.: 46-01544 

37 FMSHRC Page 2253
Requesting Additional Joint Stipulations on August 5, 2015, and the parties complied by 

submitting three additional Joint Stipulations on September 1, 2015 (“Stip. 14 through 16”). 

Commission Rule 67(b) states: “A motion for summary decision shall be granted only if 

the entire record, including the pleadings, depositions, answers to interrogatories, admissions, 

and affidavits, shows: (1) That there is no genuine issue as to any material fact; and (2) That the 

moving party is entitled to summary decision as a matter of law.” 29 C.F.R. § 2700.67(b). Based 

on the stipulations, I find that there is no genuine issue as to any material fact, and that the 

Secretary is entitled to summary decision as a matter of law. Accordingly, I AFFIRM the Order 

as issued. 

STIPULATIONS 

The court accepts the following stipulated facts to be undisputed. 

1. At all times relevant to this proceeding, Spartan was the “operator” of the Road

Fork #51 mine, Mine ID Number 46-01544, as defined by section 3(d) of the

Mine Act.

2. At all times relevant to this proceeding, the Road Fork #51 mine was a “coal or

other mine” as defined by section 3(h)(1) of the Mine Act.

3. At all times relevant to the proceeding, the Road Fork #51 mine had an effect

on commerce within the meaning of section 4 of the Mine Act.

4. Operations of the Road Fork #51 mine are subject to the provisions of the Mine

Act.

5. This proceeding is subject to the jurisdiction of the Federal Mine Safety and

Health Review Commission and its designated administrative law judges

pursuant to sections 105 and 113 of the Mine Act. Civil penalties are not

imposed for imminent danger orders issued pursuant to section 107(a) of the

Mine Act.

6. By entering into these Joint Stipulations, neither party waives its right to appeal

the Administrative Law Judge’s decision on the Cross Motions for Summary

Decision.

7. Order No. 9020932 was issued by an authorized representative of the Secretary

and was properly served to Spartan on December 30, 2014.

8. On December 30, 2014, during his inspection of the Road Fork #51 Mine,

MSHA Inspector Nicholas Christian observed a continuous mining machine

being trammed forward and in reverse in the #1 entry while the continuous

37 FMSHRC Page 2254
miner operator was positioned alongside the continuous mining machine, which 

is commonly referred to as the “red zone.”3

 

9. Immediately after the continuous miner operator was observed in the “red 

zone,” Inspector Christian removed him from the danger and orally issued 

imminent danger Order No. 9020932 under section 107(a) of the Mine Act. 

10. Paragraph 22 of the MSHA approved roof control plan in place at the Road 

Fork #51 mine on December 30, 2014, states as follows: “When the continuous 

miner is being trammed in the working place or anywhere in the mine other 

than when cutting coal, no person shall be allowed along either side of the 

continuous mining machine.” 

11. The continuous miner operator’s actions that were cited in Order 9020932 were 

in violation of the above referenced provision of the approved roof control 

plan. Inspector Christian also issued Citation No. 9020933 pursuant to section 

104(a) of the Mine Act for a violation of 30 C.F.R. 75.220(a)(1). 

12. Inspector Christian’s decision to issue Order No. 9020932 was based on the 

single incident described in section 8 of the body of the Order and not on 

previous occurrences of a factually similar event.4 

                                                             3

 The Secretary implies that the machine was being operated remotely by the miner who 

was standing alongside it. See Sec’y Br. 18. 

4

 Section 8 of the Order states the following: 

The operator failed to follow the approved roof control plan on the 005-0 

MMU. When observed the miner operator was standing in the red zone along the 

side of the continuous miner in the #1 entry. . . . The miner was being trammed 

back and forward in the heading while the miner operator was positioned along 

side of the miner in the red zone. Upon, the miner operator being removed from 

the danger[, a]n oral imminent danger was issued to the Mine Foreman, at 0900 

hours on this date. After, the miner was de[-e]nergized and measurements were 

taken the miner was 30'' from the rib at the outby end of the pan of the miner and 

31'' at the gauges on the outby end of the miner where the operator was standing. 

The mining height in this location is approximately 50'' therefore restricting the 

miner[’]s ability to stand up right and pos[ing] more of a danger to himself while 

having to bend over that could result in the controls being engaged and also while 

the miner is being trammed while the operator is along side of the machine the 

miner could swing over inadvertently resulting in fatal injuries from crushing 

hazards against the rib. 

Citation #9020933 will be issued in conjunction with this order. 

Resp’t Ex. 1. 

37 FMSHRC Page 2255
13. Spartan disputes that the actions of the continuous miner operator described in

Stipulation No. 8 constitute a “condition” or “practice” as those terms are used

in sections 3(j) and 107(a) of the Mine Act but, for the purposes of this

proceeding, does not dispute that the remaining requirements of sections 3(j)

and 107(a) of the Mine Act have been satisfied.

14. The continuous mining operator was the only miner working in and prohibited

from being in the area around the continuous mining machine while the

machine was energized.

15. After observing the miner tramming the continuous mining machine while

standing alongside it in the “red zone,” the inspector immediately, within a

matter of seconds, removed the miner from danger at that time by flashing his

cap lamp at him (the inspector was approximately 60 feet from the miner when

this occurred). After the inspector did so, the miner immediately shut off the

continuous mining machine and walked over to the inspector. The inspector

then called out for the mine foreman and section foreman, who were nearby.

The foremen responded within a minute and were verbally informed by the

inspector of the issuance of the imminent danger order.

16. The facts in Joint Stipulation No. 8 could have reasonably been expected to

cause death or serious physical harm had the inspector not removed the miner

from the danger.

ANALYSIS 

As the stipulations make clear, on December 30, 2014, Inspector Nicholas Christian 

issued section 107(a) withdrawal Order No. 9020932 directing a continuous mining operator to 

exit the “red zone” alongside a continuous mining machine. Stip. 7-9. Christian had reason to 

believe that the miner could have been killed or seriously harmed had he not acted. Stip. 16. 

Section 107(a) of the Mine Act provides, in pertinent part: 

If, upon any inspection or investigation of a coal or other mine which is subject to 

this Act, an authorized representative of the Secretary finds that an imminent 

danger exists, such representative shall determine the extent of the area of such 

mine throughout which the danger exists, and issue an order requiring the 

operator of such mine to cause all persons . . . to be withdrawn from, and to be 

prohibited from entering, such area until an authorized representative of the 

Secretary determines that such imminent danger and the conditions or practices 

which caused such imminent danger no longer exist. The issuance of an order 

under this subsection shall not preclude the issuance of a citation under section 

104 or the proposing of a penalty under section 110. 

30 U.S.C. § 817(a). Consistent with this statutory directive, Christian identified the existence of a 

danger in the area around the continuous mining machine while it was energized, immediately 

withdrew the miner from the danger by flashing his cap lamp at him, and within a minute orally 

informed the foremen in the area of the issuance of an imminent danger order. Stip. 15. 

37 FMSHRC Page 2256
Section 3(j) of the Act defines “imminent danger” as the “existence of any condition or 

practice in a coal or other mine which could reasonably be expected to cause death or serious 

physical harm before such condition or practice can be abated.” 30 U.S.C. § 802(j). In this 

instance, the danger was abated by withdrawing the miner from the “red zone.” Spartan concedes 

that the facts giving rise to the Order could have reasonably been expected to cause death or 

serious physical harm had the inspector not withdrawn the miner. Stip. 16. The only disputed 

issue presented to the court is whether or not what the inspector observed when he issued the 

Order falls under the meaning of “condition or practice” as found in section 3(j) of the Act. 

Resp’t Br. 1-2. 

As a preliminary matter, Spartan and the Secretary disagree on the appropriate level of 

deference that should be afforded to the Secretary’s interpretation of the terms “condition” and 

“practice.” The Secretary argues that his interpretation is entitled to Chevron deference, whereby 

the court resolves any ambiguity in the statute by deferring to the Secretary’s interpretation so 

long as it is reasonable. Sec’y. Br. 9-11 (citing Chevron U.S.A. Inc. v Natural Res. Def. Counsel, 

Inc., 467 U.S. 837, 842-44 (1984)). Spartan argues that the Secretary’s litigating position in this 

individual case is entitled only to Skidmore deference, which depends solely on the 

persuasiveness of the Secretary’s interpretation. Resp’t Reply Br. 1-7 (citing Skidmore v Swift & 

Co., 323 U.S. 134, 139 (1994); United States v Mead Corp., 533 U.S. 218, 234-37 (2001)). The 

court finds it unnecessary to resolve this dispute. Assuming, arguendo, that the Secretary’s 

interpretation is entitled to Skidmore deference only, the court is nonetheless persuaded by the 

Secretary’s argument that the facts in this matter constituted a “condition or practice” under 

section 3(j). 

 Under section 107(a), MSHA inspectors are charged with a duty of withdrawing and 

prohibiting miners from entering an area in which an imminent danger exists until that danger 

and the “conditions or practices” that gave rise to it no longer exist. Section 3(j) clarifies the 

definition of “imminent danger” by further reference to a “condition or practice,” but neither 

107(a) nor 3(j) defines the phrase “condition or practice.” In the absence of any statutory or 

regulatory guidance, the Secretary has chosen to define a “practice” as an “act or process of 

doing something” and a “condition” as a “mode or state of being,” with both definitions 

encompassing the facts in this case. Sec’y Br. 11-12, 15. The company argues that what 

Christian observed does not constitute a practice because the Secretary has not alleged any 

“customary or routine act that formed the basis for the Order.” Resp’t Br. 7. It further argues that 

what Christian observed does not constitute a condition, since “the conduct described in the 

Order had already occurred when the Order was orally issued.” Resp’t Br. 10. 

The court first looks to apply the ordinary meaning of the disputed terms, given that they 

are not specifically defined by the Act or regulations promulgated under it. See Peabody Coal 

Co., 18 FMSHRC 686 , 690 (May 1996). The dictionary defines “practice” as both “[a] habitual 

or customary action or way of doing something” and “[t]he act or process of doing something; 

performance or action,” while “condition” is defined as a “mode or state of being.” The 

American Heritage Dictionary 383, 1378 (4th ed. 2009). Although it might be reasonable to think 

that allegations of a “practice” would require some evidence of repeat or customary conduct, the 

facts that Christian observed fall squarely under any relevant definition of a “condition” that this 

37 FMSHRC Page 2257
court can identify.5

 The danger caused by the continued operation of the energized continuous 

miner in conjunction with the machine operator’s presence in the “red zone” was an existing 

“state of being” that ceased only after the withdrawal of the miner. 

Spartan’s contention that “the conduct described in the Order had already occurred when 

the Order was orally issued” suggests that the company does not believe that an imminent danger 

order had been issued until the inspector formally notified the foremen in the area, at which point 

the condition had already been abated. Resp’t Br. 10. Accordingly, the company cites to Rag 

Cumberland Res. LP, 22 FMSHRC 994 (Aug. 2000) (ALJ), a case involving a mantrip accident, 

where a Commission Administrative Law Judge (“ALJ”) vacated an imminent danger order that 

was issued well after a miner had already exited the mantrip and reached the surface, and where 

there was no continued threat to miners. Notably, the decision is silent as to whether the MSHA 

inspector who issued the imminent danger order took any steps to remove affected miners from 

the area of danger before the condition had abated or while the collision was impending. Id. at 

997-98. It is not even clear that the inspector would have had any opportunity to do so at that 

point. Id. The instant matter would be analogous to Rag Cumberland if Christian had not acted to 

remove the miner from the impending danger and had not issued a withdrawal order until well 

after the continuous miner operator had already exited the “red zone.” 

It seems to the court that the parties are not so much arguing over the definition of the 

phrase “condition or practice” as they are over the timing and actions required to establish the 

Order itself. The court refuses to take the formalistic approach implicitly endorsed by Spartan, 

which would require inspectors to utter the words “imminent danger order” before withdrawing 

miners. The Mine Act’s legislative history reflects Congress’s view that “the authority under 

[section 107(a)] is essential to the protection of miners and should be construed expansively by 

inspectors and the Commission.” S. Rep. No. 461, 95th Cong., 1st Sess. 39 (1977), reprinted 

in Senate Subcommittee on Labor, Committee on Human Resources, 95th Cong., 2d Sess., 

Legislative History of the Federal Mine Safety and Health Act of 1977 at 1317 (1978) (“Legis. 

Hist.”). Given this history, the court is unwilling to elevate form over substance. 

While it is conceivable that a significant enough delay in the formal notification to an 

operator of an imminent danger order could pose notice or evidentiary problems that would 

justify vacating an order, this case does not involve such facts. The immediacy of the danger in 

the instant matter required an immediate response on the part of the inspector without pausing to 

explain the statutory authority for ordering withdrawal, and the inspector followed up his 

withdrawal order with sufficiently prompt formal notification. Therefore, the court views the 

inspector’s ordering of the continuous miner operator out of the red zone and the oral notification 

to management officials immediately thereafter as one continuous action constituting the 

                                                             5

 At one point, Spartan defines “condition” as “involv[ing] some type of inanimate object 

in a ‘state of being’”. Resp’t Br. 9. While the company provides no authority for this definition, 

and the court is unable to find any definition that focuses specifically on an inanimate object, the 

facts in this matter would still fall under Spartan’s proposed definition. The continuous mining 

machine in the entry was an inanimate object that was central to the danger posed to the 

withdrawn miner. The fact that the withdrawn miner’s hazardous conduct also contributed to the 

danger is immaterial, as the Commission has upheld imminent danger orders caused by a miner’s 

hazardous conduct. See Rochester & Pittsburgh Coal Co., 11 FMSHRC 2159 (Nov. 1989). 

37 FMSHRC Page 2258
imminent danger order itself and finds that the Order was a valid and appropriate response to a 

condition which, as stipulated to by the parties, could reasonably have been expected to cause 

death or serious physical harm before it could be abated. The court concludes therefore that the 

issuance of the 107(a) withdrawal order was proper. 

ORDER 

In accordance with the foregoing, the Secretary’s motion for summary decision is 

GRANTED, Spartan’s motion for summary decision is DENIED, and the withdrawal order 

issued by the Secretary under section 107(a) of the Act is AFFIRMED. 

/s/ David F. Barbour 

David F. Barbour 

Administrative Law Judge 

Distribution: 

Jacob M. Hargraves, Esq., U.S. Department of Labor, Office of the Solicitor, 201 12th Street S., 

Suite 500, Arlington, Virginia 22202 

K. Brad Oakley, Jackson Kelly, PLLC, 175 East Main Street, Lexington, KY 40507

/rd 

37 FMSHRC Page 2259
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

WASHINGTON, DC 20004-1710 

October 5, 2015 

SHERWIN ALUMINA COMPANY, LLC, CONTEST PROCEEDINGS 

Contestant, 

Docket No. CENT 2015-0151-RM 

Citation No. 8778065; 11/13/2014 

v. 

Docket No. CENT 2015-0152-RM 

SECRETARY OF LABOR Order No. 8778066; 11/13/2014 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), Mine: Sherwin Alumina, L.P. 

Respondent. Mine ID No: 41-00906 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) Docket No. CENT 2015-0185 

Petitioner, A.C. No. 41-00906-371548

v. 

SHERWIN ALUMINA COMPANY, LLC, 

Respondent, Mine: Sherwin Alumina, L.P. 

Mine ID: 41-00906 

v. 

UNITED STEELWORKERS, LOCAL 235A 

Intervenor. 

AMENDED DECISION AND ORDER AND ORDER GRANTING SECRETARY’S AND 

INTERVENOR’S JOINT MOTION FOR CORRECTION OF CLERICAL ERROR 

Appearances: Mary Kathryn Cobb, Esq., U.S. Department of Labor, Office of the 

Solicitor, Dallas, Texas, and Derek Baxter and Philip Mayor, Esq., U.S. 

Department of Labor, Office of the Solicitor, Arlington, Virginia (on 

brief) for the Secretary of Labor 

Christopher V. Bacon, Esq., and Samantha D. Seaton, Esq., Vinson & 

Elkins LLP, Houston, Texas for Sherwin Alumina Company, LLC 

Susan J. Eckert, Esq., Santarella & Eckert, LLC, Littleton, Colorado for 

United Steelworkers Local 235A 

Before: Judge McCarthy

37 FMSHRC Page 2260
The Decision and Order that issued on September 24, 2015 is hereby amended pursuant 

to Commission Rule 69(c), 29 C.F.R. 2700.69(c). My original decision at footnote 6 states, “As 

discussed supra, the Secretary also argues that striking miners who are permanently replaced 

should likewise be considered working miners and entitled to have their designated 

representative participate in inspections and conferences.” On September 29, 2015, the Secretary 

of Labor and Intervenor, United Steelworkers, Local 235A, moved for the correction of a clerical 

error in the Decision and Order and noted that the word “not” was inadvertently omitted from the 

quoted sentence. Respondent/Contestant Sherwin Alumina Company does not oppose the 

motion. The unopposed motion is granted. Accordingly, the sentence should read “As discussed 

supra, the Secretary also argues that striking miners who are not permanently replaced should 

likewise be considered working miners and entitled to have their designated representative 

participate in inspections and conferences. ” (emphasis added). 

I. Statement of the Case

This matter is before me upon a Notice of Contest and related Petition for the Assessment 

of Civil Penalty under section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 

U.S.C. § 815(d). 

This is a case of first impression. The precise issue presented is whether Sherwin Alumina 

Company (“Sherwin”) violated section 103(f) of the Mine Act by refusing to allow the properly 

designated representative authorized by miners to accompany MSHA during physical inspection 

of the mine after Sherwin locked out and temporarily replaced the miners during an ongoing, 

economic labor dispute. That refusal prevented the representative from aiding inspections and 

participating in pre-and post-inspection conferences since the lockout. 

Twenty-two years ago, Chairman Holen and Commissioners Backley, Doyle and Nelson 

affirmed Administrative Law Judge Morris’ conclusion that “striking employees ... were not 

miners because they were not working in the mine at the time of the inspection” and held that 

“striking employees ... were not entitled to have their previously designated walk-around 

representative accompany the MSHA inspector during his inspection of the mine.” Cyprus 

Empire Corp., 15 FMSHRC 10, 15 (Jan. 1993). Contestant/Respondent Sherwin Alumina 

argues that Cyprus Empire is controlling Commission precedent, and that under the doctrine of 

stare decisis, I must dismiss and vacate the citation and the concomitant failure-to-abate order at 

issue. Sherwin Br. 1, 21. Sherwin contends that the locked-out employees who designated their 

walkaround representative are no different than the striking employees in Cyprus Empire, 

because they are not actively working in a mine and therefore they are not miners under the plain 

language of section 3(g) of the Act. Id. at 8. In Cyprus Empire, the Commission concluded that 

the “safety purposes of section 103(f) were not diminished in this instance” because the striking 

miners were not working at the time and would be entitled to designate a walkaround 

representative once they returned to work. Id., citing Cyprus Empire, 15 FMSHRC at 14. 

Similarly, Sherwin argues that once the locked-out employees return to work, they too will have 

the right to designate their own representative. In the meantime, Sherwin argues that the lockedout miners’ safety is not being compromised, they continue to have access to safety information 

through MSHA’s District Office, and MSHA’s District Office has discretion to review and alter 

any training that they will receive prior to returning to work. Id., citing Tr. 139, 140, 156-57; 30 

37 FMSHRC Page 2261
C.F.R. part 48. Also, to the extent that section 103(f) serves the secondary purpose of providing 

information regarding ongoing health and safety conditions to the MSHA inspector, Sherwin 

argues that such purpose is better served by offering the inspector unlimited access to speak with 

replacement workers actually working in the mine. Sherwin Br. 8. 

The Secretary argues that Cyprus Empire is not binding, and that the Secretary’s current 

interpretation of sections 3(g) and 103(f) of the Mine Act must replace the Commission’s prior 

interpretation in that case. Sec’y Br. 24, 26, citing National Cable & Telecomm. Ass’n v. Brand X 

Internet Servs., 545 U.S. 967, 983-84 (2005) (Brand X) (permitting agencies to provide 

authoritative interpretations of ambiguous statutory language even after a contrary judicial 

interpretation). The Secretary emphasizes that only the United Mine Workers (as an intervenor), 

and not the Secretary of Labor, advanced the Secretary’s interpretation beyond the trial level and 

appealed the judge’s adverse decision in Cyprus Empire to the Commission. Sec’y Br. 25. 

Hence, the Commission did not have the benefit of considering the Secretary’s current 

interpretation that the statutory definition of the term “miner” in section 3(g) of the Act, defined 

to mean “any individual working in a coal or other mine,” is ambiguous. Accordingly, under 

Chevron, the Secretary’s argues that his interpretation of “miner” in the context of section 103(f) 

to include employees currently locked out or on strike, who have not been permanently replaced 

and reasonably expect to return to work at the end of the labor dispute, is permissible and entitled 

to deference. See Sec’y Br. 7; Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 

467 U.S. 837, 842-44 (1984). The Secretary contends that his current interpretation is consistent 

with the overall remedial purpose of the Act, the specific purposes of the walk-around provision, 

and Commission and judicial precedent giving a broad interpretation to the walk-around 

provision so that a locked-out miner representative can continue to protect the safety and health 

of miners who reasonably expect to return to the mine and resume active work. Sec’y Br. 16-24. 

Intervenor, United Steelworkers Local 235A (“Steelworkers”), agrees with the Secretary 

that the Mine Act’s definition of “miner” under section 3(g) is ambiguous, and should be 

interpreted in the context of section 103(f) to include workers who are on strike or locked out, 

but who reasonably expect to return to the mine at the end of a labor dispute. Intervenor Br. 8. 

The United Steelworkers further asserts that there is no evidence that the Secretary of Labor 

improperly issued the section 104(a) Citation and section 104(b) Order at issue in order to affect 

the balance of power in the labor negotiations between Sherwin and the Steelworkers. Id. at 12-

16. Finally, the Steelworkers argue that including a locked-out miners’ representative in the 

inspection party assists with ensuring, and does not compromise, safety at the mine. Id. at 20-23. 

Early procedural background in this matter was set forth in my January 21, 2015 Order 

Consolidating Proceedings and Denying Motions. Thereafter, a hearing was held in Corpus 

Christi, Texas on February 17, 2015. During the hearing, the parties introduced testimony and 

documentary evidence. Witnesses were sequestered. The Secretary’s Motion in Limine to 

exclude evidence of sabotage was denied. Tr. 16-19. After the hearing, the parties submitted 

briefs and reply briefs. 

For the reasons set forth below, I find that Cyprus Empire does not govern disposition of 

this case because in that matter the Commission left open the prospect of remaining ambiguity in 

the statutory definition of the term “miner” and the Secretary proffered no position to which the 

37 FMSHRC Page 2262
Commission could accord weight. In this case, by contrast, the Secretary persuasively argues that 

in the context of Section 103(f), the statutory definition of “miner” in the phrase “representative 

authorized by his miners” is ambiguous and should include locked out miners, who have been 

temporarily replaced and reasonably expect to return to work at the end of the labor dispute. 

Such miners are still working in a mine, they have just been temporarily prevented from doing so 

during the lockout. 

My decision is limited to the context of a lockout in which locked out miners cannot be 

permanently replaced and may be considered still working in the mine, albeit locked out. As 

such, they retain an ongoing interest in the primary purpose of the Mine Act, to protect the health 

and safety of the miners working in, and not permanently replaced from, the mine. 

The Secretary obviously plays to a larger audience when he abandons his pre-hearing 

“lockout” versus “strike” basis for distinguishing Cypress Empire and instead argues that both 

locked out and striking miners who have not been permanently replaced are still working in the 

context of the walk-around provision because they can reasonably expect to resume active work 

in the foreseeable future, and help protect the safety of temporary replacements during the 

interim labor dispute. Sec’y Br. 30-31. I decline the Secretary’s invitation to extend his current 

interpretation to striking miners, who have not been permanently replaced. In my view, that 

would bog the Commission down in resolving intricate and complex labor relations issues such 

as temporary versus permanent replacement and the nature of the underlying walk out, either an 

economic or unfair labor practice strike, which mandate different outcomes on the permanent 

replacement issue under the National Labor Relations Act. 

An economic strike is one neither prohibited by law or collective-bargaining agreement 

nor caused or prolonged by an employer unfair labor practice and generally has an object of 

enforcing economic demands on the employer. See e.g., NLRB v. Transport Co. of Texas., 438 

F.2d 258, 262 n.6 (5th Cir. 1971). The strike in Cyprus Empire was clearly an economic strike

over the terms of a new collective-bargaining agreement, in which the strikers could have been,

but were not, permanently replaced. Rather, the operator resumed mining operations with

salaried employees. See Cyprus Empire Corp., 13 FMSHRC 1040, 1044 ¶ 13 (ALJ)(“The hourly

employees commenced the strike on or about May13, 1991, related to the negotiations over a

new collective-bargaining agreement.”). There was no mention of any underlying unfair labor

practice.

The Commission has never addressed an unfair labor practice strike, where miners 

striking, at least in part over an unfair labor practice, cannot be permanently replaced and must 

be reinstated to existing positions upon their unconditional offer to return to work even if the 

employer has hired permanent replacements. See, e.g., NLRB v. International Van Lines, 409 

U.S. 48, 50 (1972). The nature of an unfair labor practice strike, however, may turn on 

protracted litigation of the alleged underlying unfair labor practice. Further, a strike that is 

economic at its inception may be converted into an unfair labor practice strike by the employer’s 

subsequent commission of an unfair labor practice. See e.g., Citizens Publ’g & Printing Co., v. 

NLRB, 263 F. 3d 224 (3d Cir. 2001) (false statement that economic strikers had been replaced 

converted strike to unfair labor practice strike). Such difficult legal determinations lie 

exclusively within the technical expertise of the National Labor Relations Board (NLRB). 

37 FMSHRC Page 2263
Thus, rightly or wrongly, Cypress Empire controls in the context of an economic strike in 

which strikers walk off the job and can be permanently replaced, but are entitled to be placed on 

a preferential rehire list.1

 The Commission is certainly free to revisit Cypress Empire, but this 

judge cannot do so.2

 I can, however, differentiate between an offensive lockout, in which an 

operator withholds employment from his miners for the purpose of resisting their demands or 

gaining concessions, but may not permanently replace them, and an economic strike, in which 

miners voluntarily choose to withhold their services and may be permanently replaced. Such 

differentiation is particularly appropriate here in order to resolve whether a lockout renders the 

term “miner” ambiguous in the context of section 103(f)’s walkaround provision. I find that the 

statutory phrase “representative authorized by his miners” in section 103(f) is ambiguous in the 

context of a lockout, and that the Secretary’s interpretation is reasonable, consistent with the 

underlying purpose of the Act and the purposes of the walk-around provision, and entitled to 

deference. 

1 NLRB v. Mackay Radio & Telegraph Co., 304 U.S. 333 (1938)(economic strikers may 

be permanently replaced and denied a request for reinstatement until vacancy arises); Laidlaw 

Corp., 171 NLRB 1366 (1968), enforced, 414 F.2d 99 (7th Cir. 1969), cert. denied, 397 U.S. 920 

(1970)(economic strikers, who unconditionally apply for reinstatement when their jobs are filled 

by permanent replacements, remain employees, and are entitled to full reinstatement upon the 

departure of replacements, unless they have acquired regular and substantially equivalent 

employment or employer can establish that failure to offer full reinstatement was for legitimate 

and substantial business justifications). 

2 Cypress Empire may be criticized for a simplistic failure to reconcile the reasonable 

expectation of reinstatement rights under federal employment statutes such as the National Labor 

Relations Act (NLRA) with the entirely discrete yet compatible purpose of the Mine Act to 

protect the health and safety of miners. In any event, as explained herein, locked out miners, 

cannot be permanently replaced, are entitled to reinstatement at the conclusion of the labor 

dispute, and have specialized and experiential knowledge of health and safety concerns at the 

mine, which knowledge augments the protection of both replacement workers and miners 

entitled to return to work after resolution of a labor dispute. As the Supreme Court has 

recognized, “[w]hen two statutes complement each other, it would show disregard for the 

congressional design to hold that Congress nonetheless intended one federal statute to preclude 

the operation of the other.” POM Wonderful LLC v. Coca-Cola Co., 134 S.Ct. 2228, 2238 (2014) 

(citing J.E.M. Ag. Supply, Inc. V. Pioneer Hi-Bred Int’l, Inc., 534 U.S. 124, 144 (2001) (“[W]e 

can plainly regard each statute as effective because of its different requirements and 

protections”). See also, Wyeth v. Levine, 555 U.S. 563, 578-579 (2009). Compare Sure-Tan, Inc. 

v. NLRB, 467 U.S. 883, 892-93 (1984) (“[c]ounterintuitive though it may be, we do not find any

conflict between application of the NLRA to undocumented aliens and the mandate of the

Immigration and Nationality Act (INA)” since enforcement of the NLRA with respect to

undocumented alien employees is compatible with the policies of the INA). For the reasons

explained herein, given the ambiguity of the statutory term “miner” as one who works in a mine,

one could perceive statutory warrant in the Mine Act for treating an operator’s locked out

employees as “miners,” particularly in the context of section 103(f) dealing with a

“representative authorized by his miners.”

37 FMSHRC Page 2264
Accordingly, based on a careful review of the entire record, including the parties’ posthearing briefs and my observation of the demeanor of the witnesses,3

 I make the following: 

II. Findings of Fact

Sherwin operates a large alumina refinery in Gregory, Texas, which encompasses 1200 

acres. The facility utilizes hundreds of valves and tanks and miles of piping, and usually employs 

about 2,000 miners. Tr. 10, 96-97. Of the 2,000 miners operating the plant in 2014, 450 of the 

“hourly employees” were represented by the United Steelworkers Local 235A (“Steelworkers”) 

under the terms of a collective bargaining agreement set to expire on October 1, 2014. About 

500-600 other miners were contract workers. Tr. 97, 113; Jt. Stip. 10; Jt. Ex. 11, Exh. A.

In June of 2013, Joe Guzman was designated by miners working at Sherwin, as an

authorized representative under Section 103(f) of the Mine Act. Jt. Ex. 19, Stip. No. 12; Jt. Ex 4. 

Guzman typically accompanied MSHA inspectors and provided information to inspectors about 

mine processes and gave them the names of other miners to be consulted. Tr. 28-29. Guzman 

also participated in post-inspection conferences and kept miners apprised of inspection results. 

Tr. 28-29, 31-32, 104-05. There is no evidence that Guzman ever engaged in misconduct or 

sabotage at the Sherwin Mine. 

From September 2013 until the hearing, Sherwin received about 458 citations and about 

119 of them were designated significant and substantial (S&S) violations by MSHA. Tr. 180. 

Around November 2013, in response to the large number of S&S citations, Sherwin submitted a 

corrective action plan (CAP) to MSHA. Tr. 143. About September 2014, MSHA gave Sherwin 

notice that it was a pattern-of-violations (POV) candidate under Section 104(e) of the Mine Act. 

Tr. 61, 141. 

For several months prior to October 2014, Sherwin and the Steelworkers engaged in 

unsuccessful negotiations over a successor collective-bargaining agreement. Jt. Ex. 11, 

Declaration of Paul English, safety, health, and industrial-hygiene manager, at ¶ 3. During 

negotiations, verbal and written hazard complaints to MSHA increased, but only about a 

quarter of them were deemed to have any merit. Tr. 80-83, 129. MSHA, the Steelworkers, and 

Sherwin management and counsel, met in June 2014 to evaluate the CAP plan. Tr. 143. 

Sherwin’s labor relations counsel at the time, Henry Chajet, from Patton Boggs (now merged 

with Jackson Lewis), raised several general allegations of sabotage with MSHA District 

Manager, Michael Davis. Tr. 143-44. 

Indeed, during the summer of 2014, Sherwin documented several incidents of suspected 

sabotage at the facility. Tr. 81, 164, 175. Electrical substation panels and switch house 

cabinets were loosened or unscrewed, and machine guarding was missing or taken off and 

3

 In resolving conflicts in testimony, I have taken into consideration the demeanor of the 

witnesses, their interests in this matter, the inherent probability of their testimony in light of 

other events, corroboration or lack of corroboration for testimony given, experience and 

credentials, and consistency, or lack thereof, within the testimony of witnesses and between the 

testimony of witnesses. 

37 FMSHRC Page 2265
laid on the floor. Tr. 81, 164, 175. Air was turned off on a pneumatic overflow alarm in the 

rod mills. Sherwin purchased a lock to keep the valve open. Tr. 81. Weeks later, the lock was 

cut and the alarm turned off again. Tr. 81. To prevent any further tampering, Sherwin 

enclosed the valve with steel, and welded the enclosure shut. Tr. 81. 

About mid-June 2014, after an anonymous complaint to MSHA, a pile of presumed 

asbestos-containing material (PACM) was dumped on the powerhouse floor, just one day 

after the same area had been examined by MSHA. Tr. 88-90. Also, someone broke into 

several supervisor offices. A safety relief valve was bent, and seemed to have been forced into 

a position that would not allow it to work properly. Tr. 167. A medical lancet was stuck into a 

suction unit in the plant ambulance, resulting in a finger injury to a miner. Tr. 165. 

Photographs of a 1999 explosion at the Kaiser Aluminum and Chemical Corporation 

Gramercy plant in Louisiana were left in the Sherwin administration building with a note 

stating words to the effect that “This could happen to you.” Tr. 165-66.4

 

Absent security cameras in the mine, which likely had to be negotiated with the 

Steelworkers as a change in working conditions under Section 8(a)(5) of the NLRA, Sherwin 

was unable to discover who committed the alleged sabotage. Tr. 176-177. Sherwin reported 

the incidents to government agencies, law enforcement, and several MSHA inspectors. Tr. 88, 

167, 176-79, 185. 

On Friday, October 10, 2014, the Steelworkers rejected Sherwin’s final offer for a new 

collective-bargaining agreement. Tr. 183. On Saturday, October 11, 2014, Sherwin locked out 

approximately 450 miners represented by the Steelworkers in furtherance of its labor dispute 

with the Steelworkers. Jt. Stip. No. 11. Joe Guzman, and the two miners who designated him 

as their miner representative under section 103(f), were among those miners locked out by 

Sherwin. Tr. 55; Jt. Ex. 19, Stip. No. 13. 

4

 Sherwin opened the door to this tragic accident at trial. Tr. 165-66. I take judicial notice 

that this 1999 explosion injured 29 miners, blinded one, and occurred during a lockout of the 

United Steelworkers when the Kaiser Aluminum plant was being operated by temporary 

replacement workers. MSHA later produced a public report regarding this disaster. See MSHA, 

Report of Investigation, http://www.msha.gov/disasterhistory/gramercy/ report/reportdept.htm. 

Under Commission precedent, judicial notice can be taken of the existence or truth of a 

fact or other extra-record information that is not the subject of testimony but is commonly 

known, or can safely be assumed, to be true. Union Oil, 11 FMSHRC 289, 300 n.8 (Mar. 1989). 

Also, the Commission has recognized that the existence and content of MSHA public documents 

are subject to judicial notice. Brody Mining, LLC, 36 FMSHRC 2027, 2030 n. 4 (Aug. 2014) 

(Inspector General Report); Black Diamond Constr. Inc., 21 FMSHRC 1188, 1202 n. 3 (Nov. 

1999) (MSHA handbook); Jim Walter Resources, 7 FMSHRC 1348, 1355 n. 7 (Sept. 1985)( 

MSHA policy memorandum). 

This disaster occurred about 6 years after Cyprus Empire was decided by the 

Commission. Perhaps that’s why the Secretary of Labor now asks the Commission to reexamine Cyprus Empire. 

37 FMSHRC Page 2266
In anticipation of the lockout, Sherwin had trained management personnel as field 

supervisors and hired hourly, temporary replacement miners, who had done observational 

training in the plant during the month prior to the lockout, but performed no hands-on mining. 

Tr. 184. During the lockout and in response to picketing, Sherwin hired additional security, 

and bussed the temporary replacement workers into the plant. Tr. 42-43. 

Two days after the lockout, Sherwin discovered that about 18 of its 30 hydraulic 

presses, essential equipment used in the clarification process, were damaged by water that had 

been introduced into the hydraulic systems. Tr. 178. On questioning from the undersigned, 

Stephen Hoey, Sherwin’s director of environment, safety and health, acknowledged that either 

the pre-lockout miners represented by the Steelworkers or the post-lockout replacement 

workers could have committed the alleged sabotage of the presses. Tr. 185. 

On October 14, 2014, MSHA inspector Francisco Velma arrived at the Sherwin Mine to 

continue a regular inspection. Jt. Stip. No. 14; Tr. 36. Velma asked Guzman to accompany 

him, but Sherwin (English) informed Velma that it would not permit Guzman to enter the 

mine and assist Velma because of the lockout. Jt. Stip. No. 15. Sherwin provided Velma with 

legal authority (presumably Cyprus Empire) supporting its position. Jt. Stip. No. 15. Velma 

conducted the inspection without Guzman and chose not to cite Sherwin at that time for 

preventing Guzman’s participation, but Velma did not provide any future assurances that 

MSHA would not do so in the future. Jt. Ex. 19, Stip. No. 15. 

On October 20, 2014, MSHA inspector Brett Barrick informed Sherwin that he wanted 

Guzman to accompany him on an MSHA inspection. Jt. Stip. No. 16. English again refused to 

allow Guzman to serve as the designated section 103(f) miners’ walkaround representative. 

English told Barrick that Sherwin was tired of being asked that question and that if MSHA 

persisted, Sherwin would sue MSHA. Tr. 32-33. According to Barrick, English further told 

Barrick that Sherwin was excluding Guzman because he “was no longer an employee of the 

mine.”5

 Tr. 33. English did not deny that he made this statement. I credit Barrick’s testimony 

regarding the exchange, given English’s rather vague and non-specific description of this 

discussion with Barrick, and Sherwin’s failure to proffer Barrick’s notes. Tr. 47, 84-85. 

Barrick completed an inspection without Guzman and did not issue any 103(f) citation 

to Sherwin at that time. Jt. Ex. 19, Stip. No. 16. Barrick credibly testified that he believed that 

Sherwin had violated Section 103(f) on this occasion (October 20) by refusing to permit 

Guzman to accompany the inspection party, but Barrick did not express this view to Sherwin 

because he thought he needed permission from a supervisor to issue such a citation. Tr. 43-44, 

47, 72. Barrick did not provide any assurances to Sherwin that its continued refusal to permit 

Guzman to accompany an MSHA inspector during the lockout would not result in a future 

citation. Jt. Ex. 19, Stip. No. 16. 

5

 English’s statement was not accurate. Guzman remains an employee of Sherwin, but he 

had been locked out and was not actively engaged in mining because of the lockout. 

37 FMSHRC Page 2267
Michael Davis, MSHA’s South Central District Manager for Metal/Nonmetal 

Administration, became aware of Sherwin’s refusal to accord Guzman section 103(f) miner 

representative status shortly after Velma’s October 14, 2014 inspection. Tr. 123. Davis opined 

that Sherwin’s conduct violated section 103(f) and that a citation should be issued. Tr. 123, 

155, 160-61. Davis, however, did not direct Velma or Barrick to issue citations for the 

October 14 or 20 incidents because of adverse Commission precedent (Cyprus Empire) relied 

on by Sherwin. Tr. 124, 154-55. Rather, Davis spoke with superiors at MSHA headquarters to 

determine whether a miners’ representative appointed by locked-out miners should be 

permitted to accompany an MSHA inspector during a lockout, and whether a citation should 

issue. Tr. 155-56, 160-61. 

The Secretary’s interpretation of Section 103(f) in this lockout context was formalized 

in a letter drafted at MSHA headquarters and provided to Davis. Tr. 132-34, 160-61; Jt. Ex. 2. 

Davis signed the letter and gave the letter and consonant citation to Barrick to issue to 

Sherwin should Sherwin continue to deny Guzman the right to accompany Barrick during his 

next inspection during the lockout. Tr. 132-34. 

On November 13, 2014, Barrick returned to the Sherwin mine to perform another 

inspection. Jt. Ex. 19, Stip. No. 17; Tr. 34. Barrick met with English and requested that 

Guzman accompany Barrick as miners’ representative during the inspection. Tr. 34. Barrick 

provided Sherwin with Davis’ letter, which indicated that Sherwin’s refusal to permit 

Guzman to accompany the inspection team contravened section 103(f). Tr. 34-35; Jt. Ex. 19, 

Stip. No. 18; Jt. Ex. 2. Barrick told English that Sherwin had 30 minutes to comply with his 

request or he would issue a 104(a) citation under section 103(f). Tr. 35. English consulted 

with counsel and informed Barrick that Sherwin still refused to permit Guzman to accompany 

the inspection team. Tr. 35. 

Barrick then issued Citation No. 8778065. Tr. 35; Jt. Ex. 19, Stip. No. 19; Jt. Ex. 3. 

That Citation states: 

On November 13, 2014 the mine operator refused to allow the 

miners’ representative to accompany the Secretary in inspection of 

this mine for the purpose of aiding such inspection. This 

constitutes a violation of section 103(f) of the Mine Act. The 

condition has not been designated as “significant and substantial” 

because the conduct violated a provision of the Mine Act rather 

than a mandatory safety or health standard. The Secretary 

respectfully disagrees with the reasoning contained in the Federal 

Mine Safety and Health Review Commission decision in the 

Cyprus Empire Corporation, 15 FMSHRC10 (Jan. 1993), 

addressing section 103(f) of the Act. The Secretary has also 

determined that this case should not appropriately apply to the 

present situation. The interest that underlie the concept of miners’ 

representatives remain important during a lockout, as miners’ [sic] 

who have been locked out have a continued interest in the health 

37 FMSHRC Page 2268
and safety at the mine and miners’ representatives play a crucial 

role in safeguarding this interest. 

Jt. Ex. 3. 

The violation was designated as non-S&S, with no likelihood of injury or illness, no 

lost workdays, and low negligence. Jt. Ex. 19, Stip. No. 7; Jt. Ex 3. The Secretary proposed a 

penalty of $112 for the alleged section 103(f) violation. Jt. Ex. 19, Stip. No. 8. 

Thereafter, Barrick notified English that he would give Sherwin an additional 30 

minutes to abate the Citation No. 8778065 by permitting Guzman to accompany Barrick on 

an inspection, otherwise Barrick would issue a section 104(b)(1) Order for failure to abate. Tr. 

35. Thirty minutes later, when Sherwin continued to refuse to permit Guzman to accompany

the inspection party, Barrick issued Order No. 8778066. Tr. 35; Jt. Ex. 19, Stip. No. 19; Jt.

Ex. 3, pp. 3-4. That Order states:

The mine operator continues to refuse the miner’s [sic] 

representative to accompany the Secretary in inspection of this 

mine for the purpose of aiding such inspection. Mitigating 

circumstances have not been provided that would justify extension. 

Jt. Ex. 3. 

The failure to abate order listed no area affected, which is in accordance with an MSHA 

Interpretive Bulletin (IB) on the issue. Jt. Ex. 3; MSHA Interpretive Bulletin, Section 103(f) 

of the Federal Mine Safety and Health Act of 1977, 43 Fed. Reg. 17,546, (Apr. 25, 1978) 

(“However, actual withdrawal of miners will not ordinarily occur in cases arising under 

section 103(f), because section 104(b) also requires the inspector to determine the extent of 

the area the mine affected by the violation. In most cases, the area(s) of the mine affected by 

an operator’s refusal to permit participation ... under section 103(f) would be a matter of 

conjecture and could not be determined [with] sufficient specificity.”). 

No failure-to-abate penalties were assessed by MSHA, although MSHA’s Section 

103(f) Interpretive Bulletin states: 

“...failure to abate [section 103(f)] violations subjects an operator 

to additional civil penalties for each day during which the failure to 

abate continues. (section 110(b).) Under circumstances where an 

operator refuse[s] to allow participation by a representative of 

miners, each day thereafter during which an inspector is carrying 

out activities covered by section 103(f) will be considered a day 

during which the failure to correct the violation continues, for 

purposes of proposing additional civil penalties.” 

43 Fed. Reg. 17547. 

37 FMSHRC Page 2269
Guzman did not file a discrimination complaint with MSHA alleging that Sherwin’s 

“interference” with his exercise of section 103(f) statutory participation rights violated section 

105(c). See id. at 17,547. 

On December 12, 2014, Sherwin filed a timely notice of contest concerning the Citation 

and Order. Jt. Ex. 5. On December 22, 2014, the Secretary filed a Motion for Expedited 

Proceedings. Jt. Ex. 7. On December 24, 2014, the Secretary filed a Motion for Summary 

Decision. Jt. Ex. 10. Sherwin filed Oppositions to both requests. Jt. Exs. 8 and 10. On 

January 21, 2015, the undersigned set a hearing date for February 17, 2015, ordered expedited 

discovery, and otherwise denied the Secretary’s motion to expedite proceedings. My January 

21, 2015 Order also denied the Secretary’s Motion for Summary Decision. 

On January 23, 2015, after the undersigned inquired during a conference call about 

whether the temporary replacement miners had designated a miners’ representative, some 

temporary replacement miners designated Francisco S. Alvarez as their miners’ 

representative. Tr. 53, 105, 130-31; Jt. Ex. 19, Stip. No. 20; Jt. Ex. 1. Alvarez is a 

management official for CCC Group, a contractor that provides about 100 temporary 

replacement workers for Sherwin. Tr. 107-109, 113. 

Alvarez reports to CCC lead manager, Steve Whitehouse, who reports to English. Tr. 

106-107. English then provides third-hand feedback about MSHA inspections to the

replacement and other non-locked-out miners. Tr. 99, 108, 111-12. At the time of the hearing,

although Alvarez had accompanied inspection teams, he was “on a learning curve” and

generally did not convey information about MSHA inspections directly to the miners as

Guzman had done. Alvarez did not distribute or post MSHA citations and/or orders at control

stations in the Mine, and did not point out hazards to MSHA inspectors. Tr. 98-99, 106-08,

and 110. Barrick credibly testified and the Act provides that the representative of miners is

supposed to assist MSHA in its inspection of the Mine to ensure that the miners have a voice

in the health and safety of the Mine. Tr. 29-30.

Neither the locked out miners nor the temporary replacement miners had the benefit of 

any representative of miners from the time of the lockout on October 11, 2014 until Alvarez’s 

designation on January 23, 2015. Jt. Ex. 19, Stip. 20; Jt. Ex 1; Tr. 75-76, 105-06. MSHA 

records still identify Guzman as a designated miners’ representative. There has been no 

termination of his designation as representative of miners pursuant to 30 C.F.R. § 40.5(a) or 

(b). Tr. 56, 62, 144. Those regulations provide: 

§ 40.5 Termination of designation as representative of miners.

(a) A representative of miners who becomes unable to comply with

the requirements of this part shall file a statement with the

appropriate District Manager terminating his or her designation.

(b) Mine Safety and Health Administration shall terminate and

remove from its files all designations of representatives of miners

37 FMSHRC Page 2270
which have been terminated pursuant to paragraph (A) of this 

section or which are not in compliance with requirements of this 

part. The Mine Safety and Health Administration shall notify the 

operator of such termination. 

III. The Applicable Statutory and Regulatory Framework

As noted, MSHA issued Citation No. 8778065 for an alleged violation of section 103(f) 

of the Mine Act and issued Order No. 8778066 for failure to abate that alleged violation. Jt. Ex. 

3. Section 103(f) provides:

Subject to regulations issued by the Secretary, a representative of 

the operator and a representative authorized by his miners shall be 

given an opportunity to accompany the Secretary or his authorized 

representative during the physical inspection of any coal or other 

mine made pursuant to subsection (a), for the purposes of aiding 

such inspection and to participate in pre- or post-inspection 

conferences held at the mine. Where there is no authorized miner 

representative, the Secretary or his authorized representative shall 

consult with a reasonable number of miners concerning matters of 

health and safety in such mine. Such representative of miners who 

is also an employee of the operator shall suffer no loss of pay 

during the period of his participation in the inspection made under 

this subsection. To the extent that that Secretary or authorized 

representative of the Secretary determines that more than one 

representative from each party would further aid the inspection, he 

can permit each party to have an equal number of such additional 

representatives. However, only one such representative of miners 

who is an employee of the operator shall be entitled to suffer no 

loss of pay during the period of such participation under the 

provisions of this subsection. Compliance with this subsection 

shall not be a jurisdictional prerequisite to the enforcement of any 

provision of this Act. 

30 U.S.C. § 813(f) (emphasis added). 

Section 103(f) grants miners and their representatives the opportunity to participate in 

physical inspections and conferences conducted by MSHA inspectors pursuant to section 103(a) 

for the purpose of observing or monitoring safety and health conditions as part of direct safety 

and health enforcement activity. In enacting section 103(f), Congress made clear that effective 

implementation of the Act depends upon active and orderly participation by miners and 

representatives of miners in the physical inspection process, including both pre and postinspection conferences. Section 103(f)’s “walk-around provision” promotes this goal by ensuring 

that an MSHA inspector will benefit from the assistance and participation of a representative 

authorized by an operator’s miners when conducting inspections and post-inspection 

conferences. See 29 U.S.C. 113(f); Kerr-McGee Coal Corp. v. FMSHRC, 40 F.3d 1257, 1260 & 

n.4 (D.C. Cir. 1994); Utah Power & Light Co. v. Sec’y of Labor, 897 F.2d 447, 451-52, 455

37 FMSHRC Page 2271
(10th Cir. 1990); see also Tr. 29-30, 104-05 (describing how miners’ representative Guzman 

assisted in inspections and post-inspection conferences, thus fulfilling this role). 

The Senate Reports concerning the 1977 Act indicate that the Act’s walk-around 

provisions are intended to enhance miner safety and awareness by assuring that miners are 

apprised of relevant inspection results by their representative. S. Rep. No. 95-181, at 26 (1977), 

as reprinted in 1977 U.S.C.C.A.N. 3401, 3428, reprinted in Subcommittee on Labor of the 

Committee on Human Resources, 95th Cong., 2d Sess. Legislative History of the Federal Mine 

Safety and Health Act of 1977 at 616 (Comm. Print 1978) (“Presence of a representative of 

miners at opening conference helps miners to know what the concerns and focus of the inspector 

will be, and attendance at closing conference will enable miners to be fully apprised of the 

results of the inspection. It is the Committee's view that such participation will enable miners to 

understand the safety and health requirements of the Act and will enhance miner safety and 

health awareness.”). 

The status of walk-around rights provided by section 103(f) is discussed at length in 

MSHA’s Interpretive Bulletin (IB) published on April 25, 1978, which notes: 

Section 103(f) provides an opportunity for the miners, through 

their representatives, to accompany inspectors during the physical 

inspection of the mine, for the purpose of aiding such inspection 

and to participate in pre-or post-inspection conferences held at the 

mine. As the Senate Committee on Human Resources stated, “If 

our national mine safety and health program is to be truly effective, 

miners will have to play an active part in the enforcement of the 

Act.” S. Rep. No. 95-181, 95th Cong., 1st Sess., at 35 (1977).” 

Several important purposes are served by affording representatives 

of miners the opportunity to accompany Mine Safety and Health 

Administration (MSHA) inspectors. Participation by miners’ 

representatives will enhance miner safety and health awareness and 

contribute to greater understanding by miners of the safety and 

health requirements of the Act. In addition, participation in the 

inspection process by representatives of miners will directly aid 

inspection itself by providing information through individuals 

familiar with day-to-day conditions at the mine site. 

43 Fed. Reg. 17546. 

The Mine Act, MSHA regulations, and MSHA’s Interpretive Bulletin are all silent about 

whether a representative of striking or locked-out miners may serve as a representative of miners 

during an inspection that occurs amid a strike or lockout. Through regulation, the Secretary of 

Labor has defined a “representative of miners” as “(1) Any person or organization which 

represents two or more miners at a coal or other mine for purposes of the Act, and (2) 

Representatives authorized by the miners, miners or their representative, authorized miner 

representative, and other similar terms as they appear in the Act.” 30 C.F.R. § 40.1(b)(1) and (2). 

Part 40 of the Code of Federal Regulations contains regulations governing the Representative of 

37 FMSHRC Page 2272
Miners. The regulations contain requirements for the filing of specified identification data to be 

posted at each mine, the designation of persons to exercise the functions of a representative 

under provisions of the Mine Act, and the termination of such representatives. 30 C.F.R. §§ 40.2-

5; see also Utah Power, 897 F.2d at 453. 

The Preamble to the Part 40 regulations expressly rejected narrow interpretations of the 

terms “representative of miners” and broadly interpreted “representative of miners” to encourage 

miner participation in the health and safety of the mine because Congress deemed it vital to have 

miners freely participate in health and safety matters at the mines. 43 Fed. Reg. 29,508 (July 7, 

1978). The Preamble expressly states: 

First, there is no clear statement in the legislative history of the 

Mine Act defining who is to be a representative of miners for a 

specific purpose, nevertheless, Congress believed it was vital to 

have miners freely participate in health and safety matters at the 

mines. Second, the frequent use of the term “representative” 

throughout the Mine Act in different contexts suggests that a broad 

definition would be preferable to a narrow one. Additionally, any 

attempt to limit the manner in which representatives are selected 

would be intrusive into labor/management relations at the mine 

and not in keeping with the spirit of miner participation. Finally, it 

would be very difficult to put forth a more detailed or restrictive 

rule which would be applied to all the varied situations at all 

mines--large and small, union, multi-union and nonunion, coal and 

metal/nonmetal, which would still be equitable in all situations. 

43 Fed. Reg. 29508. 

In rejecting the more narrow NLRB definition of “Representative” based on the “majority 

rule” concept inherent in the context of collective bargaining, “which contemplates only one 

union miner representative at each mine,” MSHA emphasized the following: 

...The purposes of the Mine Act are better served by allowing 

multiple representatives to be designated. This ensures that all 

miners have the opportunity to exercise their right to select the 

representative of their choice for the purpose of performing the 

various functions of a representative of miners under the Act and 

within the framework of each provision. 

 

Finally, based on experience under the Federal Coal Mine Health 

and Safety Act of 1969 and Part 81, it is reasonable to expect that 

miners will choose representatives with a substantial amount of 

experience, and problems are not anticipated with this broad 

37 FMSHRC Page 2273
interpretation of the term representative of miners. If problems do 

arise MSHA will propose appropriate revisions. 

43 Fed. Reg. 29508. 

 I conclude that section 103(f) of the Mine Act, as reinforced by the Preamble to the Part 

40 regulations, authorizes a broad interpretation of the statutory phrase “representative 

authorized by his miners” as set forth in section 103(f) to achieve the statutory purpose of 

facilitating the miners’ voice in health and safety matters at a mine. 

To properly and broadly interpret the phrase “representative authorized by his miners” in 

section 103(f), it is necessary to examine the statutory definition of the term “miner” under 

section 3(g) the Act in the context of section 103(f) of the Act. Section 3(g) of the Act defines 

“miner” as “any individual working in a coal or other mine.” 30 U.S.C. § 802(g) (emphasis 

added). Thus, a “representative authorized by his miners” under section 103(f) is any individual 

who is properly designated by two or more individuals “working” in a mine of an operator. 

It is undisputed that Guzman was properly designated by two or more Sherwin miners 

who were working in the Sherwin mine at the time of the designation. Jt. Ex. 4. That designation 

was never terminated pursuant to MSHA regulation. 30 C.F.R. § 40.5. As further explained 

herein, it would be inconsistent with the fundamental purpose of the Mine Act in protecting 

miner safety and health to terminate that designation by operation of law because a mine 

operator invoked an offensive lockout, thereby preventing his unionized miners from returning to 

work, unless their collective-bargaining representative, who continues to represent locked out 

miners with respect to mandatory terms and conditions of employment, including safety and 

health issues, capitulated to the operator’s demands in a labor dispute. 

The Secretary of Labor has determined that the Act’s definition of “miner” under section 

3(g) in the section 103(f) context is ambiguous, and should be interpreted broadly to include 

workers who are on strike or have been locked out, but who reasonably expect to return to the 

mine at the end of the labor dispute. Jt. Exs. 2 and 16; Sec’y Br. 9-10. Intervenor Steelworkers 

agrees with the Secretary’s “context-specific” interpretation. Intervenor Br. 2, 8. Respondent 

Sherwin disagrees with this interpretation, and posits that miners entitled to a walkaround 

representative during an inspection are only those “actively working in a mine at the present 

time.” Sherwin Br. 8. 

In resolving this dispute, I find that, for better or for worse, the Commission’s decision in 

Cyprus Empire controls in the context of a strike, particularly an economic strike, until 

overruled. It does not, however, bind the undersigned in the context of the instant lockout. 

Rather, I give Chevron step 2 deference to the Secretary’s reasonable interpretation that the 

statutory phrase “representative authorized by his miners” in the context of the walk-around 

provision of section 103(f) includes a representative authorized by miners who are locked out by 

37 FMSHRC Page 2274
the operator.6

 Accordingly, I find that Joe Guzman is a “representative authorized by [Sherwin] 

miners,” who continues to represent “two or more miners at a coal or other mine” pursuant to 30 

C.F.R. § 40.1(b)(1) during the lockout for purposes of section 103(f) walk-around rights. Thus,

on November 13, 2014, Respondent Sherwin violated section 103(f) of the Act by denying

Guzman an opportunity to accompany inspector Barrick, and violated section 104(b) by failing

to abate that violation during a subsequent inspection effort 30 minutes later.

IV. Legal Analysis

A. The Statutory Phrase “Representative Authorized by His Miners”

in Section 103(f) Is Ambiguous

When analyzing the Secretary’s interpretation of the phrase “representative authorized by 

his miners” in section 103(f) of the Mine Act, the Commission applies the two-step approach set 

forth in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-44 

(1984); Performance Coal Co. v. Fed. Mine Safety & Health Review Comm’n, 642 F. 3d 234, 

238 (D.C. Cir. 2011); Simola, emp. by United Taconite, LLC, 34 FMSHRC 539, 543-5 (Mar. 

2012). 

Under that approach, if the statutory language is plain, the Commission must enforce such 

language according to its terms. King v. Burwell, 135 S. Ct. 2480, 2489 (2015); Hardt v. 

Reliance Standard Life Ins. Co., 560 U.S. 242, 251 (2010); Dynamic Energy, Inc., 32 FMSHRC 

1168, 1171 (Sept. 2010). On the other hand, if the statute is silent or ambiguous, the Commission 

asks whether MSHA’s interpretation is reasonable and permissible. Chevron, 467 U.S. at 843-

44; Thunder Basin Coal Co., 18 FMSHRC 582, 584 n.2 (Apr. 1996); Joy Technologies, Inc. v. 

Sec’y of Labor, 99 F.3d 991, 995 (10th Cir. 1996), cert. denied, 520 U.S. 1209 (1997). If the 

Secretary and the Commission have conflicting, reasonable interpretations of the Mine Act, the 

Secretary's interpretations rather than the Commission’s interpretations are entitled to deference 

under Chevron. See, e.g., Joy Technologies, supra, 99 F.3d at 995; see also Sec'y of Labor v. 

Excel Mining, LLC, 334 F.3d 1, 6 (D.C. Cir. 2003); Sec'y of Labor v. Mutual Mining, Inc., 80 

F.3d 110, 113-15 (4th Cir. 1996).

Thus, if a statute is ambiguous, and if the implementing agency's construction is 

reasonable, Chevron requires a federal court to accept the agency's construction of the statute, 

even if the agency's reading differs from what the court believes is the best statutory 

interpretation. National Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 980 

(2005)(Brand X), citing Chevron, 467 U.S. at 843-44, and n. 11. Put differently, a reviewing 

court or tribunal, like the Commission, must “accept [the Secretary’ s reasonable] construction of 

6

 The Secretary’s proffered interpretation of “representative authorized by his miners” is 

admittedly broader than a representative selected by locked-out miners. As discussed supra, the 

Secretary also argues that striking miners who are not permanently replaced should likewise be 

considered working miners and entitled to have their designated representative participate in 

inspections and conferences. The instant matter, however, deals only with locked-out, not 

striking miners, and the deference afforded to the Secretary is therefore limited to the facts 

presented here. It is unnecessary to reach the issue of whether the Secretary’s broader 

interpretation is also entitled to deference. 

37 FMSHRC Page 2275
the [Mine Act], even if the [the Secretary’s] reading differs from what the [Commission] 

believes is the best statutory interpretation.” Id. at 980 (2005)(federal agencies can reverse 

judicial statutory interpretations of ambiguous statutory interpretations under certain 

circumstances); cf., Martin v. OSHRC, 499 U.S. 144, 152-53 (1991)(reviewing court should 

defer to Secretary’s interpretation when the Secretary and the Commission furnish reasonable but 

conflicting interpretations of ambiguous regulation promulgated by the Secretary under the 

Occupational Safety and Health Act). 

Similarly, a reviewing court’s or tribunal’s prior construction of a statute does not trump 

a new and permissible agency construction entitled to Chevron deference, absent clear and 

unequivocal terms of the statute leaving no room for ambiguity and agency discretion. See

Brand X, 545 U.S. at 982; see also NLRB v. Iron Workers Local 103 (Higdon Construction Co.), 

434 U.S. 335, 351 (1978)(agency’s pre-Chevron resolution of conflicting claims represented a 

defensible construction of the statute entitled to considerable deference even though courts may 

prefer a different application; moreover, “[a]n administrative agency is not disqualified from 

changing its mind, and when it does, the courts still sit in review of the administrative decision 

and should not approach the statutory construction issue de novo, and without regard to the 

administrative understanding of the statutes.”). 

In short, deference is given to the Secretary’s interpretation of the Mine Act when that 

interpretation is reasonable. Energy West Mining Co. v. FMSHRC, 40 F.3d 457, 460 (D.C. Cir. 

1994) (citing Chevron, 467 U.S. at 844); Twentymile Coal Co., 36 FMSHRC 2009, 2012 (Aug. 

2014). Chevron deference is usually granted to reasonable statutory interpretations that the 

Secretary advances on behalf of MSHA during litigation before the Commission, even though 

such interpretations are not promulgated in formal rulemaking. Martin v. OSHRC, 499 U.S. 144, 

156-7 (1991); Pattison Sand Co. v. FMSHRC, 688 F.3d 507, 512 (8th Cir. 2012); Olson v. 

FMSHRC, 381 F.3d 1007, 1011 (10th Cir. 2004; Wamsley v. Mutual Mining, Inc., 80 F.3d 110, 

115 (4th Cir. 1996); Sec’y of Labor v. Excel Mining, LLC, 334 F.3d 1, 6 (D.C. Cir. 2003); but see 

North Fork Coal Corp. v. FMSHRC, 691 F.3d 735, 742 (6th Cir. 2012) (only Skidmore deference 

is owed positions taken by the Secretary during enforcement actions). The fact that the Secretary 

has waited since 1993 to exercise his interpretive authority and considered judgment on the 

issues presented in anticipation of the instant litigation, does not lessen the deference owed. See 

Mayo Found. for Med. Educ. & Research v. United States, 562 U.S. 44, 55 (2011). 

Finally, even where the Commission has previously interpreted an ambiguous statutory 

term or ambiguous statutory terms, the Secretary of Labor, on behalf of MSHA, “may, consistent 

with the [Commission’s] holding, choose a different construction, since the agency remains the 

authoritative interpreter (within the limits of reason) . . . .” Brand X, 545 U.S. at 983; see, e.g., 

Sec’y of Labor v. Nat’l Cement Co. of Cal., Inc., 573 F.3d 788 (D.C. Cir. 2009). When the 

Secretary does so, he does not say that the Commission’s prior interpretation was necessarily 

wrong, he simply chooses a different permissible interpretation that is reasonable and consistent 

with the purposes of the Act. See Brand X, 545 U.S. at 983. As further explained below, I find 

that statutory language “representative authorized by his miners” in section 103(f) is ambiguous 

in the context of a lockout and I give deference to the Secretary’s interpretation under Chevron. 

37 FMSHRC Page 2276
In Cyprus Empire, the United Mine Workers of America (UMWA) argued that the 

erstwhile Commission must defer to the Secretary’s interpretation of the statutory term “miner” 

in section 3(g) of the Act as applied to walk-around rights in section 103(f). Cyprus Empire, 15 

FMSHRC at 15. In rejecting this argument, the 1993 Commissioners noted that the Secretary’s 

analogous construction of the term “miner” was rejected as unreasonable by the D.C. Circuit in 

Brock v. Peabody Coal Co., 822 F.2d 1134, 1151 (D.C. Cir. 1987)(Peabody).7 Moreover, those 

Commissioners emphasized that the Secretary did not appeal the judge’s adverse decision or 

otherwise participate in the appeal; that “the wording of the statute sets forth Congress’ intent as 

to the definition of miner; and that “[e]ven if there were remaining ambiguity, the Secretary has 

presented no position to which the Commission could accord weight.” Cyprus Empire, 15 

FMSHRC at 15. In this case, by contrast, the Secretary has clearly exercised his informed 

judgment, after consultation with his client MSHA, to argue before the Commission that the 

definition of “miner” under section 3(g) of the Act is ambiguous in the context of section 103(f), 

and the terms “representative authorized by his miners” in section 103(f) should include miners 

who have been locked out and reasonably expect to return to work at the end of the labor dispute. 

When deciding whether the statutory language “representative authorized by his miners” 

in section 103(f) is plain or ambiguous, the Commission must examine the text of the language 

itself, the specific context in which the words or phrases are used in section 103(f), and the 

broader structure of the statute as a whole. Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997); 

7

 In Peabody, the D.C. Circuit affirmed the Commission’s holding that laid-off 

individuals were not miners for purposes of the training rights granted under section 115 of the 

Act because they were not working in a mine, exposed to the hazards of mining, or employed by 

a mine operator. Peabody, 822 F.2d at 1147-49 (emphasis added). The laid off miners in 

Peabody were contractually entitled under the collective-bargaining agreement to be placed on a 

panel for recall on the basis of “seniority,” which was contractually defined as “length of service 

and the ability to step into and perform the work of the job at the time it was awarded.” Id. at 

1139. The operators passed over some miners at the top of the recall list because they lacked the 

necessary training or work experience to qualify as “experienced miners” and therefore could not 

begin working without first receiving “new miner training.” Id. The court majority concluded 

that the laid-off individuals did not, in failing to obtain safety training, exercise any right granted 

a miner by section 115(a) of the Mine Act. Accordingly, the Secretary’s position that the 

operators refused to employ them because of the exercise of a statutory right thereby engaging in 

prohibited discrimination, was not a reasonable interpretation of sections 105(c)(1) and 115(a) of 

the Act. Id. at 1151. 

In her concurrence, then Judge Ruth Bader Ginsburg astutely observed that one need not 

exclude laid-off miners from the section 3(g) definition of "miner” for all statutory purposes, nor 

did she read the majority opinion to make so sweeping a disposition, and she rejected the 

Secretary's position solely on the language and structure of section 115 of the Act dealing with 

training rights. Id., (Ginsburg concurring). Judge Ginsburg concluded that the word “miner” as 

employed in section 115 could not reasonably be read to encompass persons laid-off because the 

training provisions were directed to miners on the job and could not comprehensively be read to 

accommodate miners “who stand and wait.” Id. at 1152. 

37 FMSHRC Page 2277
King. v. Burwell, 135 S. Ct. 2480, 2484 (2015). As Chief Justice Roberts recently noted in 

upholding the Affordable Care Act tax credits on federal exchanges: 

But often times the “meaning -- or ambiguity-- of certain words or 

phrases may only become evident when placed in context.” Brown 

& Williamson, 529 U.S. at 132. So when deciding whether the 

language is plain, we must read the words “in their context and 

with a view to their place in the overall statutory scheme.” Id., at 

133 (internal quotation marks omitted). Our duty, after all, is “to 

construe statutes, not isolated provisions.” Graham County Soil 

and Water Conservation Dist. v. United States ex rel. Wilson, 559 

U.S. 280, 290 (2010) (internal quotation marks omitted). 

135 S. Ct. at 2489. 

The Supreme Court has also recognized that “... the same words, placed in different 

contexts, sometimes mean different things,” and that identical language may convey varying 

content even when used in different provisions of the same statute. Yates v. United States, 135 

S.Ct. 1074, 1082 (2015) (Ginsburg, J., plurality opinion). Furthermore, the Court has stated that

once a statutory term has an established meaning in some sections of a statute but not in other

sections, the term is ambiguous and each section must be examined to determine whether context

provides further meaning that would resolve the dispute. Robinson, 519 U.S. at 343-44; see also

Brody Mining LLC, 36 FMSHRC 2027, 2036 (Aug. 2014) appeal docketed, No. 14-1171 (D.C.

Cir. Sept. 2014) (deference accorded Secretary’s interpretation of ambiguous term “violation”

where various statutory provisions could only refer to conditions alleged to be violations).

I agree with the Secretary that the present participle “working” as used in section 3(g)’s 

statutory definition of “miner” is ambiguous in the section 103(f) context because it connotes 

both ongoing activity in which the miner is actively engaged in the present, and interrupted 

activity from which the miner may temporarily be absent, but to which he has a reasonable 

expectation of returning. See Sec’y Br. 10-11, citing for comparison, United States v. Hersom, 

657 F.3d 77, 79, n.2 (1st Cir. 2011) (adopting analogous reasoning with respect to the present 

participle “receiving”). For example, the undersigned might accurately say that I am working on 

Monday even though it is the Friday before, as I draft this example. Certainly, a miner who takes 

temporary leave is still working at the mine, although on leave status, and not engaged in work at 

the present moment. Similarly, the Fourth Circuit has recognized that miners who designated a 

union official as their representative while the mine was closed during investigation of an 

accident were “miners [who] currently work at the . . . [m]ine” for purposes of ruling on a 

preliminary injunction. Dep’t of Labor v. Wolf Run Mining Co., 452 F.3d 275, 287 (4th Cir. 

2006). 

In fact, as the Secretary enumerates, the Mine Act frequently uses the word “miner” to 

cover individuals who were working in the mine, but may not be actively working at the time 

that their statutory rights or obligations are triggered. Sec’y Br. 12-13, citing, inter alia, Sections 

105(c)(2), 104(g)(1), 111, 115, 201, 203(c) and (d) of the Mine Act. The Commission in Cyprus 

Empire recognized that the statutorily-defined term “miner” must be interpreted in the context of 

37 FMSHRC Page 2278
the particular section in which it arises to effectuate the safety purposes of each section, but as 

noted, that Commission interpretation did not have the benefit of the Secretary’s new and 

informed judgment in the context of a lockout. 15 FMSHRC at 15; see also KenAmerican 

Resources, Inc., 35 FMSHRC 1969, 1973 (July 2013) (laid-off worker was “miner” for purposes 

of section 105(c)(2)’s anti-discrimination provision distinguishing cases like Peabody where 

laid-off workers were not “miners” under other statutory provisions); 35 FMSHRC at 1975 

(definition of “miner” “cannot be applied literally” throughout the Act)(Chairman Jordan, 

concurring). 

Thus, contrary to Sherwin’s argument, several provisions of the Mine Act would make 

little sense if the term “working,” as used to define “miner,” was confined to times when actual 

mining work was presently being performed. Rather, I find that the term “miner” as used in 

section 3(g) of the Act is ambiguous, and encompasses times when workers are temporarily 

disengaged from the actual act of mining. Accordingly, I reject Sherwin argument that the plain 

meaning of the term “miner” in section 103(f) must mean an individual actually working in the 

mine at the time of the inspection, i.e., “[t]he term ‘working’ . . . refer[s] ‘to action that is 

happening at the time of speaking or a time spoken of.’” Sherwin Br. 10. While such a strict 

construction, as adopted by the Commission in Cyprus Empire, may seem plain when viewed in 

isolation, the Secretary has determined that such a reading is untenable in light of the primary 

purpose of the Mine Act to most effectively promote miner safety and health. Cf. Department of 

Revenue of Oregon v. ACF Industries, Inc., 510 U.S. 332, 343 (1994); see also New York State 

Dept of Social Servs. v. Dublino, 413 U.S. 405, 419-420 (1973) (federal statutes cannot be 

interpreted to negate their stated purposes). Rather, as noted, “the fundamental canon of statutory 

construction [requires] that the words of a statute must be read in their context and with a view 

toward their place in the overall statutory scheme.” Utility Air Regulation Group v. EPA, 134 

S.Ct. 2427, 2441 (2014), citing FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 133

(2000).

Given that the text of the statutory phrase “representative authorized by his miners” in 

section 103(f) is ambiguous as discussed above, the Commission must look to the broader 

structure of the Act to determine whether the Secretary’s current interpretation of the statutory 

walk-around provision produces a substantive effect that is consistent with the overall purpose of 

the Mine Act. Cf., United Sav. Assn. of Tex. v. Timbers of Inwood Forest Associates, Ltd., 484 

U.S. 365, 371 (1988). Ambiguity should be resolved by looking to the context and purpose of 

the walk-around provision and eschewing a construction that would undermine the purpose of 

the provision or lead to absurd results. See, e.g., Sec’y of Labor v. Twentymile Coal Co., 411 F.3d 

256, 261 (D.C. Cir. 2005); Emery Mining Corp v. Sec’y of Labor, 744 F.2d 1411, 1414 (10th Cir. 

1984); Consolidation Coal, 15 FMSHRC 1555, 1557 (Aug. 1993). I conclude that the context 

and structure of the statutory walk-around provision within the Mine Act fully supports the 

Secretary’s interpretation that the designated representative of locked out miners shall be given 

an opportunity to participate in inspections during the lockout because this interpretation is 

reasonable, permissible, and advances the primary purpose of the Act to protect miner safety and 

health. 

37 FMSHRC Page 2279
B. The Secretary’s Interpretation is Consistent with the Overall

Purpose of the Mine Act to Protect Miner Safety and Health and

the Specific Purposes of Section 103(f) by Ensuring the Rights of

Locked-Out Miners to Aid MSHA’s Inspection and Participate in

Pre-and Post-Inspection Conferences

The Mine Act’s overall purpose is to protect the health and safety of the mining 

industry’s most precious resource, the miner. Peabody, 822 F.2d at 1146, citing section 2(a) of 

the Act, 30 U.S.C. § 801(a). Thus, the Mine Act must be interpreted to achieve the overarching 

goal of protecting the safety and health of miners. See United Mine Workers of Am. v. Dep’t of 

Interior, 562 F.2d 1260, 1265 (D.C. Cir. 1977) (“Should a conflict develop between a statutory 

interpretation that would promote safety and an interpretation that would serve another purpose 

at a possible compromise to safety, the first should be preferred.”) 

Section 103(f) plays a critical role in the overall enforcement scheme of the Act and the 

Commission will not restrict 103(f) rights, absent a clear indication in the statutory language or 

legislative history, or appropriate limitation imposed by regulation. SCP Investments, LLC, 31 

FMSHRC 821, 827 (Aug. 2009) (opinion of Commissioners Young and Cohen); Consolidation 

Coal Co., 3 FMSHRC 617, 618 (Mar. 1981). As explained above, the definition of “miner,” as 

set forth in the statutory phrase “representative authorized by his miners” in section 103(f), is 

ambiguous as applied to locked-out miners. The Secretary’s interpretation that the phrase 

“representative authorized by his miners” should include a representative authorized by locked 

out miners is favored and entitled to deference. This is because that interpretation is fully 

protective of mine safety and health and best advances the overall purpose of the Act to protect 

miners, and the specific purposes of section 103(f) in furtherance of that overall statutory goal. 

A fundamental purpose of the walk-around rights set forth in section 103(f) is to 

encourage miner awareness of health and safety concerns. Kerr-McGee, 40 F.3d at 1260, 1264 & 

n.13; Consolidation Coal, 3 FMSHRC 617, 618 (Mar. 1981); S. Rep. No. 95-181, at 28; MSHA

Interpretive Bulletin, 43 Fed. Reg. 17,546, (Apr. 25, 1978). As inspector Barrick testified, this is

the most important aspect of the miners’ representative function. Tr. 29. This fundamental

purpose of section 103(f) is advanced by permitting the authorized representative of locked-out

miners to participate in physical inspections and pre- and post-inspection conferences under

section 103(f). The reason is manifest. Participation by a miners’ representative in physical

inspections and pre and post-inspection conferences permits dissemination of knowledge

concerning safety and health hazards or conditions to other miners throughout the mine,

particularly the locked-out miners, who have a reasonable expectation of returning. Locked-out

miners have an actual and continuing interest in staying abreast of existing, continuing,

developing, or abating safety and health issues at the mine where they reasonably expect to

return and resume the inherently dangerous work of mining. See Performance Coal Co., WEVA

2010-1909, Unpublished Order at 11, (Dec. 17, 2010) (ALJ) (miners who were employed at time

of Upper Big Branch explosion and thereafter were involuntarily relocated to a sister mine have

an ongoing interest in the safety of the mine where they were working and will return to work).8

8

 In Performance Coal, the judge found that “[t]he purpose of . . . section 103(f) is to 

(continued...) 

37 FMSHRC Page 2280
Although lockouts may last for an extended period of time,9

 locked-out miners cannot be 

permanently replaced and have a reasonable expectation or returning to work after the 

conclusion of the lockout because the operator may only hire temporary replacement miners 

during a lockout, not permanent replacement workers that are permissible in the economic-strike 

context, such as Cyprus Empire. See e.g., Ancor Concepts, 323 NLRB 742, 744 (1997) (use of 

permanent replacements is inconsistent with a declared lawful lockout in support of bargaining 

position) enforcement denied on other grounds, 166 F.3d. 55 (2d Cir. 1999); Harter Equipment, 

Inc., 280 NLRB 597 (1986)(absent specific proof of antiunion motivation, employer did not 

violate Section 8(a)(3) and (1) by hiring temporary replacements during offensive lockout), aff’d 

sub nom. Operating Engineers Local 825 v. NLRB, 829 F.2d 458 (3d Cir. 1987)(employer's 

hiring of temporary employees was not unfair labor practice, where employer intended to return 

regular employees to work at conclusion of dispute, employer was in financial straits, and 

employer did not have hostile motive); cf., Harter Equipment, Inc., 293 NLRB 647 (1989) (only 

locked out "employees" in bargaining unit at time of lockout, and not temporary replacements, 

are eligible to vote in subsequent decertification election). Accordingly, the locked-out miners 

legally are still “working” at the Sherwin Mine, much like a miner on vacation or sick leave, 

albeit they will not return to work until the end of the lockout. Given the locked-out miners’ 

reasonable expectation of returning to the Mine at the conclusion of the lockout, they retain an 

8

 (...continued) 

allow miners the opportunity to be involved in the safety and health of the mine where they are 

employed,” and it would “circumvent the purpose of the statute” to deny the miners a 

representative at the closed mine. Performance Coal Co., WEVA 2010-1909, Unpublished Order 

at 11, (Dec. 17, 2010) (ALJ). The judge persuasively reasoned that the “miners who were 

employed at the Mine at the time of the accident have an ongoing interest in the safety of the 

mine where they were working and will potentially return to work. This safety interest is at the 

heart of the statute and regulations.” Id. The judge further concluded that the operator’s “narrow 

reading” of section 103(f) would permit mines “to unilaterally prevent” miners’ involvement in 

safety oversight. Id. 

Similarly here, Sherwin’s interpretation of the phrase “representative authorized by his 

miners” to exclude a lawfully designated, but locked-out representative, unilaterally prevents 

miners’ involvement in safety oversight. In fact, as noted herein, there was no miners’ 

representative permitted to participate in inspections for three months after the lockout, until 

Alvarez was eventually designated after inquiry from the undersigned. By contrast, as in 

Performance Coal, the Secretary’s interpretation of the phrase “representative authorized by his 

miners” fosters the overarching safety interest at the heart of the statute and regulations by 

ensuring that an operator cannot use a lockout to unilaterally preclude miners, through their 

designated representative, from participating in inspections and conferences to help ensure a safe 

mine environment where they reasonably expect to return to work. 

9

 For example, a lockout lasted for two years (1991-92) at the Ravenswood Aluminum 

plant in West Virginia, chronicled by Kate Bronfenbrenner and Tom Juravich in Ravenswood: 

The Steelworkers Victory and the Revival of American Labor (1999), and a lockout lasted for two 

years at the Kaiser Aluminum refinery in Gramercy, Louisiana, during which a tragic explosion 

injured 29 miners on July 5, 1999. MSHA, Report of Investigation, 

http://www.msha.gov/disasterhistory/gramercy/ report/reportdept.htm. 

37 FMSHRC Page 2281
interest in the health and safety of the Mine and should be allowed to have a representative of 

miners participate in section 103(f) walk-around activities because such participation serves the 

statutory purposes set forth in section 103(f) of ensuring the rights of miners to assist MSHA in 

inspections and pre- and post-inspection conferences to maintain the health and safety of all 

miners working in the mine. 

As noted, the Preamble to the Part 40 regulations authorizes a broad interpretation of the 

phrase “representative authorized by his miners” in section 103(f) to achieve the statutory 

purpose of facilitating the miners’ voice in health and safety matters at a mine. 43 Fed. Reg. 

29,508 (July 7, 1978). The Secretary’s interpretation that section 103(f) covers a miners’ 

representative designated by locked-out miners, who cannot be permanently replaced and 

reasonably expect to return to work, is reasonable because it furthers the specific and primary 

“purposes of aiding [MSHA’s] inspection and to participate in pre- or post-inspection 

conferences held at the mine.” See 30 U.S.C. § 813(f); Thunder Basin Coal Co. v. FMSHRC, 56 

F.3d 1275, 1278 (10th Cir. 1995); Kerr-McGee, 40 F.3d at 1263; 43 Fed. Reg. 17,546 (Apr. 25,

1978); cf., KenAmerican Resources, 35 FMSHRC at 1973 (July 2013) (majority panel held that

laid-off worker was “miner” for purposes of section 105(c)(2)’s anti-discrimination provision,

distinguishing cases like Peabody where laid-off workers were not “miners” under other

statutory provisions) (Chairman Jordan, concurring).

Another purpose of the walk-around provision is to assure miners that inspectors will 

uncover violations and hazards. 115 Cong. Rec. S27,287-88 (Sept. 26, 1969), reprinted in 

Subcommittee on Labor of the Committee on Labor and Public Welfare, 94th Cong., 1st Sess.. 

Legislative History of the Federal Coal Mine Health and Safety Act of 1969, at 393 (Comm. 

Print 1975) (statement of Sen. Metcalf introducing walk-around provision amendment in Coal 

Mine Health and Safety Act of 1969) (“[I]t might well happen that that miner working in that 

mine would help the inspector by calling attention to certain safety violations. He is familiar with 

the operation of the mine, and he would be able to represent his fellow union members or his 

fellow mine workers to reveal safety violations.”). Participation in inspections and conferences 

by locked-out miners’ representatives, who reasonably expect to return to work at the conclusion 

of the lockout, helps promote this purpose because such representatives, as demonstrated in this 

case, have site-specific knowledge and expertise to aid the Secretary in ensuring mine safety and 

health during a physical inspection. After all, “... it is reasonable to expect that miners will 

choose representatives with a substantial amount of experience ....” 43 Fed. Reg. 29,508. Such a 

representative will aid MSHA inspectors in their efforts to protect both the current safety of 

temporary replacement miners and the future safety of the locked-out miners when they return to 

work. 

Based on the record evidence presented in this case, it is likely that inspection 

participation by the representative of the locked-out miners will enhance mine safety and health 

more effectively than participation by a representative designated by temporary replacement 

miners, who will typically lack equivalent site-specific experience and technical knowledge, at 

least at the outset of the labor dispute. As explained below, the record in this case suggests that 

the representative designated by the temporary replacement workers at the outset of the lockout 

typically will be on a significant “learning curve,” and therefore will be less qualified to identify 

hazards and assist the inspector by providing site-specific technical knowledge about the mine’s 

37 FMSHRC Page 2282
production processes. It is significant that the temporary workers did not participate in mining or 

actively engage with the mine environment before the lockout began, and instead only observed 

the locked-out workers. Tr. 184. 

On the other hand, the record establishes that since his designation, Guzman had 

significant mine-specific experience and familiarity with the hazardous processes of refining 

alumina under pressure using corrosive chemicals and caustic liquids. Tr. 28-29, 40, 104-05, 

178. Specifically, inspector Barrick testified that the miners’ representative, usually Guzman

unless another representative was substituting, would travel with an inspector “to help us by

providing information, typically on technical or process-type questions that we might have. Also,

he could identify other miners in the area for us. And, of course, his most important job ... is to

take that ... information back to his ... miners and let them know what ... he observed during an

inspection.” Tr. 29. In fact, Paul English, Respondent’s safety, health and industrial hygiene

manager, testified that Guzman would answer an inspector’s questions about mine processes or

how equipment worked, provide an opinion about possible allegations, and point out dangers or

hazards to an inspector. Tr. 104-105. English confirmed that Guzman actively participated in

post-inspection conferences by expressing agreement or disagreement with citations. Tr. 105.

English also testified that Guzman would report inspection results back to the miners and that

Guzman was a full-time miners’ representative pursuant to the corrective action plan (CAP). Tr.

108.

When asked why he would consult a miners’ representative like Guzman about processes 

or technical issues, inspector Barrick testified that “[a] lot of times that miner may have 

performed that work. He has ..., at times, a better understanding of the processes than sometimes 

operational folks will” because he has “a working knowledge of ... some of the processes. And if 

he doesn’t, he knows those that do, and we can get those people. ” Tr. 29. Inspector Barrick 

further testified, “[w]hen we’re evaluating conditions, we want all the facts; we want as much 

information as we can possibly get about what we’re dealing with at that time.” Tr. 29-30. 

Barrick further explained, “... Sherwin is a very complex process; there’s a lot there to learn; 

there’s a lot there to understand. So again, the more people we could involve, you know, in that 

process of trying to garner the right information and make evaluations, and if, indeed we needed 

to, you know, issue citations, that we ... try to do that in a fair manner.” Tr. 30. Barrick also 

credibly testified that the miners’ representative plays a very useful role at closeout conferences, 

particularly through input regarding the appropriate level of abatement to get at the root cause[s] 

for cited conditions. Tr. 30-31. 

Although English attempted to paint a picture that temporary replacement miners’ 

representative, Francisco Alvarez, a management official with replacement contractor CCC 

Group, performed the same or comparable miners’ representative role as Guzman at the time of 

the hearing, I discredit this effort. Tr. 106. Alvarez, the new, post-lockout miners’ representative 

for replacement miners, lacked the same or comparable site-specific technical and process 

knowledge as Guzman since English conceded that Alvarez was “on a learning curve.” Tr. 106. 

In fact, for 105 days during numerous inspections after the commencement of the lockout, no 

miners’ representative was given the opportunity to accompany MSHA inspectors until Alvarez 

was eventually designated on January 23, 2015, after inquiry from the undersigned. This factual 

scenario is antithetical to the encouragement of miner participation in the health and safety of the 

37 FMSHRC Page 2283
mine, which Congress deemed so vital to effective safety and health enforcement. See 43 Fed. 

Reg. 29508. 

When CCC Group manager Alvarez was eventually designated as the replacement 

miners’ representative, he did not report inspection results back directly to miners as Guzman 

had done. Tr. 29, 108. Rather, such information was filtered through English and other Sherwin 

and CCC management before reaching miners. Tr. 108. Nor did Alvarez point out hazards to an 

MSHA inspector, as Guzman had done. Tr. 105, 109-10. Further, when English was asked 

whether English had ever pointed out a hazard to an inspector, English evaded the question. Tr. 

105. I find on this record that Alvarez’s representative role was not comparable to Guzman’s 

representative role, and because Sherwin excluded Guzman from participating in physical 

inspections and conferences during the lockout, the purposes of section 103(f) were flouted for 

more than 3 months. 

 I further find, consistent with the appropriate broad interpretation of the statutory phrase 

“representative authorized by his miners” in section 103(f), that “[t]he purposes of the Mine Act 

are better served by allowing multiple representatives to be designated” in the context of a 

lockout because “[t]his ensures that all miners have the opportunity to exercise their right to 

select the representative of their choice for the purpose of performing” section 103(f) 

representative-of-miner functions. See 43 Fed. Reg. 29508. Thus, Guzman must or “shall be 

given an opportunity to accompany the Secretary or his authorized representative during the 

physical inspection” of the Sherwin mine during the lockout, and Alvarez must or shall be given 

the same opportunity. In the words of section 103(f), “[t]o the extent that the Secretary or 

authorized representative of the Secretary determines that more than one representative from 

each party would further aid the inspection, he can permit each party to have an equal number of 

such additional representatives. However, only one such representative of miners who is an 

employee of the operator shall be entitled to suffer no loss of pay during the period of such 

participation under the provisions of this subsection....” 30 U.S.C. § 813(f). Sherwin’s attempt to 

cabin MSHA’s section 103(f) discretion and “to limit the manner in which representatives are 

selected would be intrusive into labor/management relations at the mine, and not in keeping with 

the spirit of miner participation.” 43 Fed. Reg. 29508. 

During a lockout, the designated miners’ representative cannot effectively keep 

involuntarily locked-out miners apprised of the dynamic, ongoing, and constantly evolving 

safety and health conditions prevalent at the mine, absent participation in physical inspections 

and conferences. It may be too late to wait until the lockout concludes to bring the specialized 

knowledge or concerns of the locked-out miners’ representative to bear on the physical 

conditions, hazards, or dangers prevailing at the mine during the lockout because decisions 

regarding such mine safety issues may be finalized by the time locked-out miners resume active 

work. For example, citations were written during post-lockout inspections from which Guzman 

was excluded. Tr. 99. Therefore, Guzman could neither assist MSHA to understand the alleged 

violations and uncover additional hazards, nor keep the locked-out miners informed about such 

conditions to which they may be exposed when they return to work. Furthermore, Sherwin faced 

the prospect of being placed in POV status and challenging such notice and any subsequent 

section 104(e) withdrawal order during the lockout. Tr. 61, 141. The locked-out miners’ 

representative should be allowed to participate in inspections and conferences related to such 

37 FMSHRC Page 2284
POV proceedings, if any, since the locked-out miners reasonably expect to resume work at the 

Mine. 

Sherwin argues that inspectors can speak to other miners during the lockout. Sherwin Br. 

4. Sherwin also argues that the locked out miners have not been precluded from staying abreast

of safety issues and citations during the lockout because they can access MSHA’s website and

submit Freedom of Information Act (FOIA) requests. Further, Sherwin asserts that the lockedout miners are required to receive part 48 training prior to their return, including training on any

new safety procedures and concerns that have arisen during the lockout. Sherwin Br. 4-5; Tr.

140; 30 C.F.R. part 48. All that may be true, but Sherwin is essentially substituting its own view

of safety and health policy for the expert view of the Secretary of Labor (see Sec’y Reply Br. 5,)

and Sherwin’s reasonable-alternative-means argument is no substitute for Congress’s decision

that a properly designated miners’ representative be granted the opportunity to invoke the

statutory right to accompany inspectors during physical inspections and to participate in pre-and

post-inspection conferences.

Nor, as the Secretary points out, is it sufficient to rely on the ability of the miners’ 

representative to request a hazard inspection under section 103(g) when the lockout ends. Sec’y 

Br. 18-19; but see Cyprus Empire, 15 FMSHRC at 15 (economic strikers, subject to permanent 

replacement, were not entitled to a section 103(f) walk-around representative during the strike 

because they were not presently exposed to hazards and could request an inspection under 

section 103(g) if they returned to work). A section 103(g) hazard inspection focuses on an 

imminent danger or particular violation of a mandatory health or safety standard. 30 U.S.C. § 

813(g)(1) (“a special inspection shall be made as soon as possible to determine if such violation 

or danger exists”). The special inspection may be needed during the lockout and the locked-out 

miners’ representative should be there at MSHA’s discretion for the limited purpose of assisting 

such inspection. If the locked-out miners’ representative is unable to participate and assist in 

regular inspections and conferences during the lockout, he or she may be unaware upon return to 

work of subtle or dynamic changes in the mine environment likely to cause hazards, or unaware 

of particular conditions likely to create hazards. Indeed, hazards themselves may go unnoticed 

before they worsen and increase danger. Such danger is particularly acute at a large alumina 

refinery that encompasses 1200 acres, and utilizes hundreds of valves, tanks, and miles of piping 

(Tr. 96), and Sherwin’s contrary interpretation of section 103(f) does not promote the safety and 

health purposes of the statute. The Gramercy explosion at the Kaiser alumina refinery referred to 

in the record by Sherwin, grounds this concern in reality. Tr. 165-66; see supra, n. 4. 

Consequently, actual participation by the locked out miners’ representative in inspections 

and conferences during the lockout is crucial to maximizing mine safety and health during the 

lockout. As the Secretary persuasively argues on brief: 

“... subsequent review by the [locked out] miners of a cold record 

of citations is no replacement for the robust, eye-witness 

experience the representative has when accompanying the 

inspection team and seeing for him or herself how conditions are 

evolving. Any suggestion that miners can simply get up to speed 

on how conditions at the mine have changed during their 

37 FMSHRC Page 2285
temporary absence by reviewing such records ignores the reality 

that most people learn and retain information better by witnessing 

live events than by reviewing notes. Furthermore, not every 

evolving condition that impacts miner health and safety will be 

something that leads to a citation. Only by accompanying the 

inspection team will the miners’ representative stay apprised of 

conditions that may yet evolve into health or safety hazards. 

Sec’y Br. 18. 

The fact that replacement miners and returning locked-out miners must undergo training 

before commencing work, and that MSHA is able to speak to other miners during the lockout, is 

weak justification for excluding a locked-out miners’ representative from participating in 

physical inspections and pre- and post-inspection conferences. As the Secretary again 

persuasively argues on brief, “[t]elling miners what has happened at a mine after the fact is no 

replacement for their having had a voice in the dialogue in the first place.” Sec’y Reply Br. 5. 

Furthermore, as explained herein, MSHA need not choose from amongst sources of information 

or between designated representatives. Rather, MSHA has discretion to broadly gather 

information from as many sources as possible. Thus, an experienced locked-out miners’ 

representative, such as Guzman, and an inexperienced temporary replacement miners’ 

representative, such as Alvarez, should both be given the opportunity to participate in physical 

inspections and conferences during the lockout, at MSHA’s discretion. Sherwin must give each 

representative the requisite training to fulfill their statutory responsibilities.10 

10 Under 30 C.F.R. §48.3, operators must have an approved training plan that covers, 

inter alia, experienced miner training (30 C.F.R. §48.6) and annual refresher training (30 C.F.R. 

§48.8). Operators may receive citations for failure to properly conduct these trainings. See e.g.,

Emery Mining Corp., 5 FMSHRC 1400 (Aug. 1983)(Commission held a civil penalty was

appropriate when miners did not receive annual refresher training for 15 months in violation of

30 C.F.R. §48.8); Sally Ann Coal Company, Inc., 37 FMSHRC 246 (Feb. 2015)(ALJ

Harner)(citation under 30 C.F.R. §48.6 affirmed). As shown herein, unlike laid-off miners

seeking to invoke training rights under section 115 of the Act, locked-out miners’ representatives

like Guzman remain “miners” for the purposes of the section 103(f) of the Act during the course

of the lockout. Further, a miners’ representative, who works at the mine and regularly assists an

MSHA inspector during inspections, would be “regularly exposed to mine hazards,” and

therefore be a “miner” for training purposes under 30 C.F.R. §48.2. But for Respondent’s

unlawful exclusion of Guzman as the designated miners’ representative under section 103(f) of

the Act, Guzman presumably would not have experienced any lapse of training requirements

after the lockout began. Accordingly, to the extent that any training of Guzman’s has lapsed,

Respondent is responsible for retraining him.

37 FMSHRC Page 2286
The broad discretion conferred on the authorized MSHA inspector when determining the 

statutory participation right during the particular inspection at issue is aptly captured in the 

following passage from MSHA’s Interpretive Bulletin concerning section 103(f) of the Mine 

Act. 

Considerable discretion must be vested in inspectors in dealing 

with the different situations that can occur during an inspection. 

While every reasonable effort will be made in a given situation to 

provide opportunity for full participation in an inspection by a 

representative of miners, it must be borne in mind that the 

inspection itself always takes precedence. The inspector’s primary 

duty is to carry out a thorough, detailed, and orderly inspection. 

The inspector cannot allow inordinate delays in commencing or 

conducting an inspection because of the unavailability of or 

confusion surrounding the identification or selection of a 

representative of miners. Where necessary in order to assure a 

proper inspection, the inspector may limit the number of 

representatives of the operator and miners participating in an 

inspection. The inspector can also require individuals asserting 

conflicting claims regarding their status as representatives of 

miners to reconcile their differences among themselves and to 

select a representative. If there is inordinate delay, or if the parties 

cannot resolve conflicting claims, the inspector is not required to 

resolve the conflict for the miners and may proceed with the 

inspection without the presence of a representative. 

43 Fed. Reg. 17546. In this case, Sherwin unlawfully removed such discretion from inspector 

Barrick when it denied Guzman section 103(f) rights, as requested by Barrick on November 13, 

2014. 

Respondent’s additional argument that the safety interests of the temporary replacement 

workers have been protected during the lockout, and that the interests of the locked-out 

employees will be protected when they eventually return to work is unconvincing and falls short 

of the requisite, broad interpretation of section 103(f) favoring a representative for each group of 

miners, whose interests may not always align. Sherwin’s argument ignores the fact that no 

miners’ representative participated in inspections after the lockout for over three months. 

Fortunately, no accident occurred during this period when the plant was operated with 

replacement workers, who were primarily newly trained miners, with no previous mining 

experience. Tr. 58-59; compare Tr. 165-66 and n. 9 (referring to Gramercy explosion). 

Furthermore, it is arguable in a labor dispute context, such as a lockout, that temporary

replacement workers may be less concerned about appointing an aggressive advocate to 

represent their safety interests and may be more easily intimidated because of their temporary 

status than a permanent, albeit locked-out, miners’ representative. Even if the temporary 

replacement workers are concerned with advocating on safety issues, they likely lack the sitespecific knowledge possessed by permanent workers, as discussed above. Furthermore, the Mine 

Act is concerned about the safety of all miners, both permanent and temporary alike, and 

37 FMSHRC Page 2287
temporary replacement miners are entitled to benefit from the knowledge possessed by lockedout miners and their representative, even if the interests of the two groups do not always align in 

the labor relations context. 

Finally, as noted above, only after inquiry from the undersigned during a pre-hearing 

conference call, did the temporary replacement workers eventually designate a member of the 

replacement contractor’s management team to serve as a representative of miners and report 

through another manager to Sherwin’s safety and health manager, who filtered the message back 

to the rank and file miners. Tr. 107 -08. In effect, two management representatives purported to 

“aid” the MSHA inspectors to uncover hazards during lockout inspections, although neither ever 

apparently pointed out a hazard, while management excluded Guzman, the miners’ 

representative from the locked-out rank and file, who often pointed out hazards. Surely, section 

103(f) was not designed to malfunction this way. 

I discount Sherwin’s attempt to claim that safety has improved because miners 

represented by the Steelworkers were locked out, and that the temporary replacement workers’ 

commitment to safety has resulted in a noticeable improvement in Sherwin’s safety record. 

Sherwin Br. 4. English testified that since the replacement workers began mining there has been 

an increased emphasis on safety, the overall health of the facility has improved, and he has 

received several compliments from various inspectors regarding the replacement workers. Tr. 

86-87. In the absence of any concrete data provided by Sherwin, I must weigh English’s

testimony against inspector Barrick’s testimony regarding the underlying impetus for any

apparent improvement in safety.

Inspector Barrick testified that mine safety had been improving during the year prior to 

the lockout due to several factors. Barrick had seen improvement in 2014, after Sherwin 

developed a corrective action plan (CAP) in September 2013 and re-evaluated workplace 

examination requirements in conjunction with discussions with the MSHA district office. Tr. 38-

39. As noted, the Mine had been informed that it was a POV candidate under section 104(e)

because of its pattern of significant and substantial violations, primarily involving housekeeping

matters such as guarding issues, electrical issues, and safe access issues. Tr. 40, 61, 141. After

the lockout, MSHA changed its historical wall-to-wall inspection procedure to have an inspector

present almost every day to intensify evaluation of small areas. Tr. 39. Sherwin was legally

obligated to provide the temporary replacement miners with comprehensive training prior to their

temporary employment, which it did. Tr. 140, 184; 30 C.F.R. part 48. Although Barrick

acknowledged that the replacement workers had done a good job addressing housekeeping

issues, most of the replacements were new miners with no previous mining experience. Tr. 58-

60. In these circumstances, I reject any argument by Sherwin that mine safety improved because

of the lockout and the exclusion of Guzman in contravention of section 103(f) of the Mine Act.

I also reject Sherwin’s arguments that the Secretary’s interpretation conflicts with federal 

labor policy under the NLRA. Sherwin Br. 19-20. Specifically, Sherwin argues that the 

Secretary’s interpretation purportedly requires an operator to compensate a locked-out miners’ 

representative in contravention of a non-precedential Advice memorandum from the NLRB’s 

Office of General Counsel. Sherwin Br. 19-20, citing Brighton Corp., 1984 WL 47445 (Feb. 29, 

1984) (Advice Memorandum in Case 13-CA-23492). Sherwin further argues that the Secretary’s 

37 FMSHRC Page 2288
interpretation forces Sherwin to allow a locked-out miners’ representative to enter onto 

Sherwin’s private property, and undermines Sherwin’s ability to use an offensive lockout to exert 

lawful economic pressure during a labor dispute. Sherwin Br. 19-20. 

Sherwin’s arguments lack merit. As the Secretary persuasively rejoins on reply brief, 

section 103(f) does not require that a miner’s representative receive pay; rather, it only requires 

that the miners’ representative “suffer no loss of pay during the period of his participation in the 

inspection.” Sec’y Reply Br. 6, citing 30 U.S.C. § 813(f). Since a locked-out miner is not 

entitled to be paid wages and fringe benefits during the lockout, even under the NLRB 

“authority” relied on by Sherwin itself, Sherwin need not pay the locked-out miners’ 

representative for performing section 103(f) functions during the lockout because such a miner 

will not suffer a loss of pay while locked out. Cf. Sec’y Reply Br. 6. Further, Sherwin need only 

pay the temporary replacement representative, not the locked out representative, even though 

both participate in the inspection, because section 103(f) explicitly provides that “only one such 

representative of miners who is an employee of the operator shall be entitled to suffer no loss of 

pay during the period of such participation under the provisions of this subsection.” 30 U.S.C. § 

813(f). 

Sherwin also argues, this time without citation to any NLRA authority, that the 

Secretary’s interpretation forces Sherwin to allow locked-out employees to enter its mine, 

thereby effectively interfering with its lawful right to use the lockout as an economic weapon. 

Sherwin Br. 20. See generally, American Ship Building, 380 U.S. 300, 311 (1965)(employer does 

not violate section 8(a)(1) or 8(a)(3) of the NLRA after a bargaining impasse has been reached 

by temporarily laying off or locking out employees for the sole purpose of bringing economic 

pressure to bear in support of a legitimate bargaining position); Harter Equipment, supra, 280 

NLRB at 597, aff’d sub nom. Operating Engineers Local 825 v. NLRB, 829 F.2d 458 (3d Cir. 

1987). 

The Secretary counters: 

It is unclear how permitting a miners’ representative to enter a 

mine for the exclusive purpose of joining a (supervised) inspection 

team noticeably diminishes an operator’s ability to use “the tools 

that the NLRB has allowed employers and unions to use.” Id. 

[citing Sherwin Br. 20] Even though the Secretary’s interpretation 

has the effect of allowing a union member to enter a mine when he 

would not otherwise be able to, the same was true in Utah Power 

& Light and Kerr McGee, which permitted union representatives 

who are not “miners” to serve as miners’ representatives. As those 

cases hold, the solution is not to invalidate the Secretary’s 

interpretation, but to permit the operator to protest if the miners’ 

representative engages in any (mis)conduct that goes beyond his or 

her role as an advocate for miners’ safety. 

Sec’y Reply Br. 6. 

37 FMSHRC Page 2289
I once again find myself in full agreement with the Secretary of Labor. As the 

Steelworkers persuasively argue on brief, there is no evidence that the Secretary improperly 

issued the Citation and Order at issue to affect the balance of power in the ongoing labor dispute 

or negotiations between Sherwin and the Steelworkers. Steelworkers Br. 12-15. In fact, I 

permitted Sherwin to pursue such inquiry at trial over objection from the Secretary and the 

Steelworkers. Tr. 15. Had there been proof that this was the Secretary’s actual motivation and 

not advancement of miner safety and health, the Secretary would arguably have been acting ultra 

vires. Tr. 15-19; Compare NLRB v. Insurance Agents (Prudential Insurance Co.), 361 U.S. 477 

(1960)(economic weapons are “part and parcel” of peaceful resolution of collective-bargaining 

disputes and NLRB exceeded its power by attempting to regulate the choice of economic 

weapons to equalize disparity in bargaining power). 

Furthermore, Sherwin’s poorly articulated reliance on its private property rights under 

NLRA precedent to trump the statutory rights of an employee miners’ representative to represent 

the interest of locked-out miners, and advance the purposes of mine safety and health under 

section 103(f) during a labor dispute, is not persuasive for several reasons. First and foremost, 

under the Mine Act, such property rights yield to a warrantless MSHA inspection. Donovan v. 

Dewey, 452 U.S. 594, 602 (1981). The miners’ representative participates in an inspection party 

solely to aid that inspection. 30 U.S.C. § 813(f). In the pervasively regulated mining industry, 

the warrantless intrusion of an MSHA inspector and representative “aides” to ensure miner 

safety and health trumps private property rights. Donovan v. Dewey, 452 U.S. at 599-600; 

compare Utah Power & Light Co. v. Sec’y of Labor, 897 F.2d 447, 450 (10th Cir. 1990)(even 

nonemployee union representative entitled to exercise walkaround rights under section103(f)). 

Sherwin has advanced no compelling reason why this result should not hold true for an employee 

miners’ representative like Guzman during a lockout. 

As shown above, Respondent’s arguments rely heavily on issues directly related to the 

National Labor Relations Act (NLRA). For the reasons discussed supra, there are adequate and 

independent logical and Mine Act bases for rejecting Respondent’s labor law claims. However, 

even if I address Respondent’s inchoate arguments under the NLRA, I see no reason why 

Guzman’s walkaround rights should be limited. Rather, allowing Guzman to participate in the 

inspection party during a lockout is compatible with the NLRA. 

By its plain terms, the NLRA confers statutory rights on employees, not unions or 

nonemployee organizers. Lechmere, Inc. v. NLRB, 502 U.S. 522, 532 (1992). There, the 

Supreme Court stated: 

Thus, while "[n]o restriction may be placed on the employees' right 

to discuss self-organization among themselves, unless the employer 

can demonstrate that a restriction is necessary to maintain 

production or discipline," [citing NLRB v. Babcock & Wilcox Co., 

351 U.S. 105, 113 (1956)](emphasis added) (citing Republic 

Aviation Corp. v. NLRB, 324 U. S. 793, 803 (1945)), "no such 

obligation is owed nonemployee organizers," 351 U. S. at 113. 

37 FMSHRC Page 2290
Lechmere, 502 U.S. at 533. Thus, under the NLRA, as opposed to the Mine Act, an employer 

need not be compelled to allow nonemployees (usually union organizers) onto its property, 

except in the rare instance where “the inaccessibility of employees makes ineffective the 

reasonable attempts by nonemployees to communicate with them through the usual channels.” 

Id. at 537, citing Babcock, 351 U.S. at 112 (1956). Significantly, in Lechmere, the Court 

reiterated Babcock's admonition that accommodation between employees' statutory rights and 

employers' property rights "must be obtained with as little destruction of one as is consistent with 

the maintenance of the other." Id. at 534, citing Babcock, 351 U. S. at 112. 

In the Mine Act section 103(f) context, the statutory right of a miners’ representative to 

be given an opportunity to accompany the inspector to aid the inspection and to participate in 

pre- or post-inspection conferences held at the mine during a lockout can be maintained with 

little destruction of the employer’s property interests, which already must yield to a warrantless 

inspection. In this case, Guzman, the miners’ representative for the locked-out miners, is still an 

employee, who cannot be permanently replaced, and is exercising a statutory right at the 

discretion of the MSHA inspector under section 103(f) in furtherance of the overall purpose of 

the Mine Act to ensure miner safety and health. 

Finally, Sherwin has failed to establish that the exclusion of Guzman as a miners’ 

representative during a post-lockout inspection is necessary to maintain production or discipline. 

Cf., NLRB v. Babcock & Wilcox Co., 351 U.S. at 113, citing Republic Aviation Corp. v. NLRB, 

324 U. S. at 803. Although given a full opportunity to create a factual record, Sherwin failed to 

offer any evidence that Guzman, or any other miner represented by the Steelworkers, engaged in 

sabotage. Further, Sherwin has not cited a single instance where a miners’ representative has 

engaged in sabotage, an act that is made less likely by the fact that miners’ representatives 

usually join inspection teams that include an MSHA inspector and an operator’s 

representative(s). As noted, the Secretary’s implementing regulations and MSHA’s Interpretive 

Bulletin concerning section 103(f) of the Mine Act give MSHA inspectors’ broad discretion and 

control over proper inspection procedures in order to promote safety and avoid worksite 

disruptions. This is sufficient to counter Sherwin’s unsubstantiated concern about abuse during 

inspections or conferences by locked-out miners’ representatives. Cf., In the Matter of 

Establishment Inspection of Caterpillar Inc., 55 F.3d 334, 339-40 (7th Cir. 1995).11

                                                             11 Although interpreting a differently worded statute, it is instructive that the Seventh 

Circuit and the Occupational Safety and Health Review Commission (OHSRC) have rejected 

similar concerns with respect to strikers invoking the walk-around provision set forth in the 

Occupational Safety and Health Act. That provision, 29 U.S.C. § 657(e), states: 

 “[s]ubject to regulations issued by the Secretary, a representative of the 

employer and a representative authorized by his employees shall be given an 

opportunity to accompany the Secretary or his authorized representative during 

the physical inspection of any workplace under subsection (a) of this section for 

the purpose of aiding such inspection. Where there is no authorized employee 

representative, the Secretary or his authorized representative shall consult with a 

reasonable number of employees concerning matters of health and safety in the 

workplace.” (continued...) 

37 FMSHRC Page 2291
Furthermore, as the Secretary highlights on reply brief, “courts have held that ‘[w]hile . . . 

walk-around rights may be abused by nonemployee representatives, the potential for abuse does 

not require a construction of the Act that would exclude nonemployee representatives from 

exercising walk-around rights altogether. The solution is for the operator to take action against 

individual instances of abuse when it discovers them.’” Sec’y Reply Br. 4, quoting Utah Power 

& Light Co. v. Sec’y of Labor, 897 F.2d 447, 450 (10th Cir. 1990); see also Thunder Basin Coal 

Co. v. FMSHRC, 56 F.3d 1275, 1278 (10th Cir. 1995) (same); Kerr-McGee Coal Corp. v. 

FMSHRC, 40 F.3d 1257, 1264 & n.12 (similar); see also Kerr-McGee Coal Corp. v. Sec’y of 

Labor, 15 FMSHRC 352, 361 (Mar. 1993). Here, Sherwin failed to establish any pre-lockout 

misconduct by Guzman in his role as miners’ representative, and Sherwin deprived itself of the 

opportunity to take post-lockout disciplinary action against Guzman for any misconduct because 

Sherwin unlawfully excluded Guzman from the inspection party. 

Finally, the Secretary’s statutory interpretation in this case, at least in the context of a 

lockout, is consistent with Commission and judicial precedent giving a broad interpretation to the 

walk-around provision to permit miners to designate non-miner, third parties as walk-around 

representatives in order to effectuate the safety purposes of the Mine Act. See Thunder Basin, 56 

F.3d at 1280 (deferring to the Secretary’s interpretation that the Act permits a nonemployee 

union agent to serve as a miners’ representative); Utah Power & Light, 897 F.2d at 450 

(concluding that section 103(f) “confers upon the miners the right to authorize a representative 

for walk-around purposes without any limitation on the employment status of the 

representative”); Kerr-McGee, 40 F.3d at 1263 (granting deference to Secretary’s interpretation 

allowing non-elected labor organization to serve as miners’ representative at non-unionized mine 

because “in view of Congress’ clear concern about miners’ safety, the Secretary’s broad 

interpretation of the term is consistent with congressional objectives.”). These cases demonstrate 

the validity and consistency of the policy concerns supporting the Secretary’s current and 

reasonable interpretation of the Mine Act during a lockout. 

In short, the Secretary’s interpretation recognizes the “important role section 103(f) plays 

in the overall enforcement scheme,” Consolidation Coal, 3 FMSHRC at 618, as well as the key 

11 (...continued) 

Although the OSHA walk-around provision applies to “employees” without reference to whether 

they are “working,” the Secretary has consistently determined that strikers are still employees 

who must be allowed to accompany OSHA inspectors to aid their inspections and ensure that 

inspection procedures are unaffected by labor disputes. See In re: Establishment Inspection of 

Caterpillar Inc., 55 F.3d 334, 338-39 (7th Cir. 1995); Rockford Drop Forge Co. v. Donovan, 672 

F.2d 626, 631-32 (7th Cir. 1982). In Caterpillar, the Seventh Circuit, recognized that “[t]he 

purpose of the [Occupational Safety and Health Act is to inspect for safety hazards and 

violations of OSHA regulations,” and declined to “force employees to choose between 

exercising their National Labor Relations Act right to strike and their OSHA right to accompany 

inspections.” Caterpillar Inc., 55 F.3d at 340, (citing Marshall v. Barlow’s Inc., 436 U.S. 307, 

309 (1978)). Similarly, as the Seventh Circuit in Rockford Drop recognized, “[s]urely [striking] 

employees like these should not be disenfranchised from preserving the safety of the workplace 

where they hope to return.” Rockford Drop, 672 F.2d at 632. 

37 FMSHRC Page 2292
position that both miners and miners’ representatives serve in furthering the “general health and 

safety purposes of the Mine Act,” Thunder Basin, 56 F.3d at 1278. As explained herein, the 

Secretary’s interpretation in the context of a lockout is permissible and fully consistent with the 

Mine Act’s overarching purpose to protect miner safety and health at all times, and with the 

specific purposes of the walk-around provision in furtherance of that primary statutory objective. 

Accordingly, I affirm the 104(a) Citation and 104(b) Order, as written, and I affirm the proposed 

penalty of $112. 

V. Civil Penalty

The Act requires that when evaluating a civil monetary penalty the Commission shall 

consider six statutory penalty criteria: 1) the operator’s history of previous violations; 2) the 

appropriateness of the penalty to the size of the business; 3) the operator’s negligence; 4) the 

operator’s ability to stay in business; 5) the gravity of the violation; and 6) any good faith 

compliance after notice of the violation. Douglas R. Rushford Trucking, 22 FMSHRC 598, 600 

(May 2000). The Commission is not required to give equal weight to each of the criteria, but 

must provide an explanation for a substantial divergence from the proposed penalty under the 

criteria. Spartan Mining Co., 30 FMSHRC 699. 723 (Aug. 2008). 

Here, the Secretary provided a proposed assessment of $112. The Commission has 

frequently recognized that section 110(i) of the Mine Act confers upon the Commission the 

authority to assess all civil penalties provided under the Act. See Wade Sand & Gravel 

Company, Docket No. SE 2013-120-M, slip op. (Sep. 16, 2015); and Mining & Property 

Specialists, 33 FMSHRC 2961, 2963 (Dec. 2011). Neither the Judge nor the Commission is 

bound by the proposed assessment. 29 C.F.R. § 2700.30(b); Wade Sand & Gravel Company, 

supra; Sellersburg Stone Co. v. FMSHRC, 736 F.2d 1147, 1151-52 (7th Cir. 1984) (“[Neither] 

the ALJ nor the Commission is bound by the Secretary's proposed penalties... we find no basis 

upon which to conclude that [MSHA's Part 100 Penalty regulations] also govern the 

Commission.”). However, while the Secretary’s proposed penalty is not binding, the 

Commission has recognized that substantial deviations from the Secretary's proposed 

assessments must be adequately explained using the section 110(i) criteria. Performance Coal 

Co., 2013 WL 4140438, *2 (Aug. 2, 2013); Spartan Mining Co., 30 FMSHRC supra; Cantera 

Green, 22 FMSHRC 616, 620-21 (May 2000). 

In light of the Commission authority described above, I take pains to ensure that my 

penalty assessments are as transparent as possible. As I discussed in my final Big Ridge decision, 

in an effort to avoid the appearance of arbitrariness, I look to the Secretary’s assessment formula 

as a reference point. Big Ridge Inc., 36 FMSHRC 1677, 1681-82 (July 19, 2014) (ALJ). This 

formula is not binding, but operates as a lodestar, since factors involved in a violation, such as 

the level of negligence, may fall on a continuum rather than fit neatly into one of five gradations. 

Further, unique aggravating or mitigating circumstances may call for higher or lower penalties, 

and will be taken into account under my independent analysis of the criteria set forth in section 

110(i) of the Mine Act and Commission precedent. Here, I find that the penalty proposed by the 

Secretary of $112 is consistent with the statutory criteria in section 110(i) of the Mine Act. 30 

U.S.C. § 820(i). Accordingly, I assess a $112 civil penalty against Respondent. If Sherwin 

37 FMSHRC Page 2293
continues to refuse to abate the violation, MSHA may assess daily failure-to-abate penalties. See 

30 U.S.C. § 820 (b)(1), 30 U.S.C. § 813(f), and Interpretive Bulletin 43 Fed. Reg. 17,547, supra. 

 VI. ORDER 

For the reasons set forth above, I AFFIRM Citation No. 8778065 and Order No. 

8778066, as written. It is ORDERED that the operator provide Joe Guzman with any training 

that he needs since the lockout to perform his miners’ representative functions under section 

103(f) of the Mine Act. It is further ORDERED that the operator pay a civil penalty of $112 

within 30 days of this decision.12

/s/ Thomas P. McCarthy 

Thomas P. McCarthy 

Administrative Law Judge 

Distribution: 

Mary Kathryn Cobb, Esq., U.S. Department of Labor, Office of the Solicitor, 525 Griffin Street, 

Suite 501, Dallas, Texas, 75202 and Derek Baxter, Esq., and Philip Mayor, Esq., U.S. 

Department of Labor, Office of the Solicitor, 201 12th Street, Suite 500, Arlington, Virginia, 

22202-5450 (on brief) 

Christopher V. Bacon, Esq., and Samantha D. Seaton, Esq., Vinson & Elkins LLP, 1001 Fannin 

Street, Suite 2500, Houston, Texas 77002 

Susan J. Eckert, Esq., Santarella & Eckert, LLC, 7050 Puma Trail, Littleton, Colorado 80125 

 

                                                             12 Payment should be sent to: Mine Safety & Health Administration, U.S. Department of 

Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390. 

37 FMSHRC Page 2294
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9933 / FAX: 202-434-9949 

October 14, 2015 

DECISION

Appearances: Lucy Chiu, Esq., U.S. Department of Labor, Office of the Solicitor, 

Arlington, VA, for Complainant 

Arthur Wolfson, Esq., Jackson Kelly PLLC, Pittsburgh, PA, for 

Respondent 

Before: Judge Moran 

This case is before the Court upon an application for temporary reinstatement filed by the 

Secretary of Labor on behalf of Jeremy Jones (“Complainant”) pursuant to section 105(c)(2) of 

the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c)(2) (2012). A hearing was 

held on October 7, 2015, in Charleston, West Virginia. As noted below, temporary reinstatement 

matters require a minimal evidentiary burden, with the Secretary being required to show that a 

miner’s complaint is not frivolously brought. Nevertheless, temporary reinstatement is not 

automatic; there is an evidentiary burden which the Secretary must meet. In this instance, for the 

reasons which follow, the Court finds that the Secretary presented too thin an evidentiary reed to 

meet its burden and therefore the Court finds that the application is frivolous. 

Temporary Reinstatement Proceedings 

The law on temporary reinstatements has been long established. The September 8, 2014, 

decision issued by Administrative Law Judge Zielinski provides a good summary and the Court 

borrows liberally from that decision. See Sec’y on behalf of Lear v. Kenamerican Res., Inc., 36 

FMSHRC 2432 (Sept. 2014) (ALJ). As the Judge there noted: 

Section 105(c)(2) of the Act, 30 U.S.C. § 815(c)(2), provides, in pertinent 

part, that the Secretary shall investigate a discrimination complaint “and if the 

Secretary finds that such complaint was not frivolously brought, the Commission, 

on an expedited basis upon application of the Secretary, shall order the immediate 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 on behalf of JEREMY JONES, 

 Applicant, 

v. 

KINGSTON MINING, INC., 

 Respondent. 

TEMPORARY REINSTATEMENT 

 PROCEEDING 

Docket No. WEVA 2015-1007-D 

HOPE-CD 2015-12 

Mine: Kingston No. 2 

Mine ID: 46-08932 

37 FMSHRC Page 2295
reinstatement of the miner pending final order on the complaint.” The 

Commission has established a procedure for making this determination. 

Commission Procedural Rule 45(d), 29 C.F.R. § 2700.45(d), states: 

The scope of a hearing on an application for temporary 

reinstatement is limited to a determination as to whether the 

miner’s complaint was frivolously brought. The burden of proof 

shall be upon the Secretary to establish that the complaint was not 

frivolously brought. In support of his application for temporary 

reinstatement, the Secretary may limit his presentation to the 

testimony of the complainant. The respondent shall have an 

opportunity to cross-examine any witnesses called by the Secretary 

and may present testimony and documentary evidence in support 

of its position that the complaint was frivolously brought. 

 

“The scope of a temporary reinstatement hearing is narrow, being limited to a 

determination by the judge as to whether a miner’s discrimination complaint is 

frivolously brought.” Sec’y of Labor on behalf of Price v. Jim Walter Resources, 

Inc., 9 FMSHRC 1305, 1306 (Aug. 1987), aff’d, 920 F.2d 738 (11th Cir. 1990). 

 

In adopting section 105(c), Congress indicated that a complaint is not 

frivolously brought, if it “appears to have merit.” S. Rep. No. 181, 95th Cong., 1st 

Sess. 36-37 (1977), reprinted in Senate Subcommittee on Labor, Committee on 

Human Resources, 95th Cong. 2nd Sess., Legislative History of the Federal Mine 

Safety and Health Act of 1977, at 624-25 (1978). The “not frivolously brought” 

standard has been equated to the “reasonable cause to believe” standard 

applicable in other contexts. Jim Walter Resources, Inc., 920 F.2d at 747; Sec’y of 

Labor on behalf of Bussanich v. Centralia Mining Company, 22 FMSHRC 153, 

157 (Feb. 2000). 

 

While an applicant for temporary reinstatement need not prove a prima 

facie case of discrimination, it is useful to review the elements of a discrimination 

claim in order to assess whether the evidence at this stage of the proceedings 

meets the non-frivolous test. In order to establish a prima facie case of 

discrimination under Section 105(c) of the Act, a complaining miner bears the 

burden of establishing (1) that he engaged in protected activity; (2) that he 

suffered adverse action; and (3) that the adverse action complained of was 

motivated in any part by that activity. Sec’y of Labor on behalf of Pasula v. 

Consolidation Coal Co., 2 FMSHRC 2786 (Oct. 1980), rev’d on other grounds, 

663 F.2d 1211 (3rd Cir. 1981); Sec’y of Labor on behalf of Robinette v. United 

Castle Coal Co., 3 FMSHRC 803 (April 1981). 

Protected Activity 

A miner’s ability to complain about safety issues is a fundamental right 

afforded and protected by the Act. Complaints made to an operator or its agent of 

37 FMSHRC Page 2296
“an alleged danger or safety or health violation,” is specifically described as 

protected activity in section 105(c)(1) of the Act. 30 U.S.C. § 815(c)(1). In 

addition, the Commission and the courts have recognized that, although not 

explicitly stated in the Act, a miner’s refusal to work in conditions that he 

reasonably believes in good faith to be hazardous is also activity protected under 

the Act. See Bryce Dolan, 22 FMSHRC 171, 176-77 (Feb. 2000), and cases cited 

therein. 

. . . . 

It is well-established that the purpose of a temporary reinstatement 

proceeding is to determine whether the evidence presented by the Secretary 

establishes that the complaint is not frivolous, not to determine “whether there is 

sufficient evidence of discrimination to justify permanent reinstatement.” Jim 

Walter Resources, Inc., 920 F.2d at 744. “It is ‘not the judge’s duty, nor is it the 

Commission’s, to resolve the conflict in testimony at this preliminary stage of the 

proceedings.’” Sec’y of Labor on behalf of Williamson v. CAM Mining, LLC, 31 

FMSHRC 1085, 1088 (Oct. 2009) (quoting Sec’y of Labor on behalf of Albu v. 

Chicopee Coal Co., 21 FMSHRC 717, 719 (July 1999). See also Sec’y of Labor 

on behalf of Billings v. Proppant Specialists, LLC, 33 FMSHRC 2383, 2385 (Oct. 

2011) (resolving conflicts in the testimony, and making credibility determinations 

in evaluating the Secretary’s prima facie case, are simply not appropriate at this 

stage in the proceeding). 

Id. at 2438-40. 

Findings of Fact 

Jeremy Jones, Complainant, testified. He was employed at the Respondent’s Kingston 

No. 2 mine for 2 1⁄2 years as an underground electrician. Jones has been a certified electrician for 

approximately 6 1⁄2 years. Tr. 35. He was part of a five man electrical maintenance crew, which 

included Danny Laverty as the crew supervisor. Tr. 35-36. Greg Shrewsbury was the second-inline supervisor. Tr. 36. Jones has never been disciplined while working at Kingston. Id. 

 Jones viewed himself as a safety advocate at Kingston in that he filled out “running 

right” cards. Tr. 37. It was Kingston, however, that asked him to fill out those cards twice a day. 

Id. Utilizing those cards, he would note “anything that [he] saw that was a safety issue . . . some 

of [those] safety issues, [he] addressed himself, if it was something that [he] could take care of.” 

Tr. 38. Elaborating on the safety issues about which he reported, Jones stated that he 

reported damage to cables. That was almost -- that was a weekly, monthly thing 

that we did. I reported trash a number of times on the [roof] bolt machines. Dust 

bags that were left laying [sic], which is hazardous material. I reported -- just 

normal -- just the normal safety things. I reported the lights on the bolt machine. 

They were being covered, painted, packed around with mud, which caused the -- 

37 FMSHRC Page 2297
caused them to melt and smoke real bad and could have caused a fire or smoke 

underground . . . . 

Tr. 38 (emphasis added). Jones did not feel that the running right cards he submitted were 

actually anonymous, because he believed it would be easy to figure out the submitting 

individuals’ handwriting on them. Tr. 39. When asked if he had the highest submission rate of 

running right cards when compared to the other electricians on his crew, Jones stated that he 

didn’t know how his rate compared to the others. Tr. 39-40. 

 Turning to the issue of covering lights on roof bolting machines, Jones stated that the 

operators of those machines were “painting” the lenses,1 a practice he viewed as hazardous 

because it caused the lights to heat up, melting the globe on the outside and risking a fire. Miners 

did this because the light hurt their eyes. Tr. 40. However, he viewed that practice as unnecessary 

as there is a switch to shut off the lights.2

 Tr. 40-41. The practice created work for Jones, 

requiring him to replace the globe and some of the wiring inside too, because they were getting 

burned up due to the heat retention. Tr. 41. As Jones described this, it “was something that we

had continually complained about, wrote on our maintenance worksheets, and [he] addressed it 

on a number of occasions with [his] supervisors.” Tr. 41 (emphasis added). When the Court 

inquired further about this problem, Jones agreed with the characterization that this problem of 

miners covering the lenses was a continuing issue during the entirety of his employment. Tr. 42. 

Further, Jones added that “when [he] would raise the issue . . . the company would address it

with those [roof bolt] operators.” Tr. 42 (emphasis added). To be sure that it understood Jones’ 

recounting, that is, that it was the Court’s understanding that the mine would address the issue, 

Jones confirmed that the mine did address it, although he then added, “if [he] went high enough.” 

Tr. 42-43. Asked how the mine addressed it, Jones explained that “[t]hey would have a meeting 

with the men, or they . . . would address it in our daily safety meeting before we went 

underground. We had one every day.” Tr. 43. 

During his 2 1⁄2 years at Kingston, Jones would raise the bolter light issue to Greg 

Shrewsbury and Daniel Laverty. Tr. 46. Jones believed that Laverty viewed the issue as simply 

complaining on Jones’ part, not as a safety matter. Id. However, this was Jones’ personal 

interpretation; he offered no remark by Laverty to support his view. Additionally, there was 

nothing unique about Jones’ conduct in reporting this bolter light issue; all the electricians had a 

checklist to note these issues. Tr. 47. Jones stated that, on the occasions when Laverty did not 

address the matter, he would go to Greg Shrewsbury. Id. When he did that, Shrewsbury “would 

immediately call somebody. He would usually call the superintendent or he would call the mine 

foreman, and there were times where he would tell Danny [Laverty] to go look at whatever it 

was that I had . . . an issue with.” Tr. 47-48. Jones felt that Laverty didn’t like his complaints 

 1

 “Painting” was a general description. Jones actually meant that the miners would pack 

mud over the lenses. Tr. 41. Miners creatively tried various methods to cover the bolter’s lights 

because the light bothered their eyes. 

2

 Jones’ electrical crew boss, Laverty, disagreed that one could simply shut off the lights, 

as the lights need to be on in order for the roof bolters to see what they are doing. Tr. 153-54. In 

addition, all the bolter’s lights go off when one flips the light switch. Tr. 155. 

37 FMSHRC Page 2298
about this, and he contended that there were times when Laverty was “short” with him and that 

he would send him to work by himself, instead of working with a group. Tr. 49-50. Often, Jones 

stated, the electricians work as a group, although he acknowledged that some work is done 

individually. Tr. 50. 

 Regarding Jones’ reporting that trailing cables for shuttle cars were being anchored too 

far from dumping points,3

 when asked how often he would raise that issue, he responded, “[t]hat 

was something that we raised quite often. Several times a month, we would have problems.” Tr. 

55 (emphasis added). The Secretary then inquired, “When you say ‘we,’ do you mean you, or 

who [sic] are you talking about?” Id. Jones responded, “[m]e and the other electricians.” Id.

(emphasis added). This issue, as with the others issues Jones had spoken to, occurred “[s]everal 

times a week usually.” Tr. 56. In this regard, Jones noted “we had a cable damage report that we

turned in. So I mean, we turned in cable damage routinely. We had a report that we --”4 Tr. 56 

(emphasis added). Jones typically reported this chronic issue to Laverty and if he was dissatisfied 

with his response, he would tell Greg Shrewsbury about it. Tr. 57. When Jones would raise the 

issue with Laverty his usual response was for Jones to write it in his [i.e., Jones’] paper. Tr. 57-

58. The other electricians on Jones’ team followed the same reporting protocol, including 

elevating it to Shrewsbury if unsatisfied with Laverty. Tr. 58. Jones confirmed that Laverty’s 

approach to this issue was the same to all of the electricians on the team, not just Jones. Tr. 58. 

As for whether Jones raised the cable issue more often than the other members of his electrical 

team, Jones stated, “I don't know how often -- I know that they raised awareness a number of 

times, because I was in the office when they did. But to say that they did it more than me, I really 

can't truthfully say that I did it more than everybody else.” Tr. 59. 

 Next, the claim that roof bolt operators were not disposing of dust bags5 properly was 

addressed. Jones spoke to this issue along with his parallel problem of trash left by roof bolt 

operators on their machines. For these matters, he reported the subject to Danny Helmondollar, 

as that was his area of responsibility. He raised this concern, “quite often,” meaning several 

times a month. Tr. 60. The trash included potato chip bags and items such as boards and bolts 

that were left lying around. Tr. 62. As with the other issues Jones had spoken to, the trash and 

dust bags were chronic problems during his tenure. Tr. 64. Similarly, Jones was not the only one 

who raised these issues. The Court inquired: “And so these other electricians raised the problem 

to the same supervisors? [Jones]: Yeah. Pretty much, yes.” Id.

 3

 Trailing cables were supposed to be anchored at the dumping point and also they were 

to be located in a straight line because otherwise it could run the risk of contact with rib plates 

and run the risk of cutting the cable, presenting a shock hazard. Tr. 55-56. 

4

 Jones’ response was then interrupted by the Secretary. Tr. 56. 

5

 The dust bags refer to bags which collect dust during the operation of the roof bolting 

machines. Tr. 60. Jones’ issue was the proper disposal of such bags once they had been filled and 

removed from the machine. Tr. 62. The bags would then be put in a trash bag, double bagged, 

and then tied up. Tr. 61. Jones’ objection was that the bags were not then being removed from 

the mine. Tr. 61-62. 

37 FMSHRC Page 2299
Having covered Jones’ safety concerns, the Secretary’s Counsel then turned to the 

Complainant’s education about the temporary reinstatement process. Jones disclosed that he first 

learned of the subject when MSHA special investigator Humphrey came to his house. Tr. 64. 

This occurred sometime during early August 2015. Tr. 66. Humphrey was there on an entirely 

different matter having nothing to do with Jones’ issues in this proceeding.6 Tr. 64-65. During 

the conversation of the matter unrelated to Jones’ discrimination complaint, which had not been 

made at that point in time, Humphrey began asking Jones questions about his being laid off and 

Humphrey informed Jones that he had rights. Tr. 65. Within a day of that visit, Jones then filed 

his discrimination complaint. Tr. 66. As Jones expressed it, 

So I didn't -- I did not know -- I knew that if -- if they fired me that, you know, for 

raising safety issues, that I had a case. But I did not know that if I was laid off -- I 

thought that was something totally separate. But Mr. Humphreys brought the law 

book in and showed me that I was still protected by the law, you know, even -- 

even during a layoff, if I felt like that I had been discriminated against. 

Tr. 66. 

Counsel for the Secretary then moved to introduce, for purposes of identification, 

Complainant’s Exhibit 1, albeit for a limited purpose. This potential exhibit was the employee 

evaluation form for Jones, dated January 30, 2015. Tr. 70. Jones then stated that he recognized 

the handwriting on the form to be that of Danny Laverty. Id. The Secretary’s questions related to 

the bottom of the exhibit, where comments were inserted for two subjects: what the employee 

need to improve and “other comments.” Regarding the former, Laverty wrote: “Be more able to 

see the big picture and prioritize what needs to be done, possibly more electrical training.” Tr. 

70; Ex. C-1. Laverty’s comments in the second box, which were hardly critical of Jones, as 

recorded on the form in January 2015, noted: “Works safe, Good about letting me know if he 

spots potential problems.” Ex. C-1. The Court would expressly note Jones was not laid off until 

April 10, 2015, and this evaluation by Laverty, if anything, praised Jones raising potential 

problems.7

 

Jones was then asked about his layoff of April 10, 2015. Jones disclosed that everyone 

knew that something was developing. Tr. 73-74. Jones “had conversations with many of the men, 

and what was going to take place, what did we think was gonna happen.”8

 Tr. 74 (emphasis 

added). The Secretary then rested its case. Tr. 77. 

6

 The subject of Humphrey’s visit to Jones’ home was not disclosed. 

7

 The testimony not having gone well with regard to this exhibit, the Secretary withdrew 

offering it, but it was later admitted in the record. Tr. 72; Tr. 159. When the Secretary rested, its 

case consisted solely of the testimony of the Complainant. No exhibits were entered into the 

record at that point in time. 

8

 Although Jones then expressed his view that if there was a layoff, he would lose his job 

if Laverty had anything to do with it, this was mere conjecture, not credible evidence in any 

respect. Accordingly, it cannot be relied upon to prove anything, other than Complainant’s 

personal perspective and therefore it is of no probative value to the issue before the Court of 

frivolousness. 

37 FMSHRC Page 2300
Following the Secretary’s evidentiary presentation, the Court then asked some questions 

of Jones, prior to Respondent conducting its cross-examination. Through that questioning, it was 

learned that Jones had a total of some 13 years of mining experience with various mines, with 

most of that in underground coal mining. Tr. 79-86. Jones agreed that during all of those years he 

was aware of MSHA’s existence. Tr. 87. On cross-examination, Jones agreed that he worked on 

a maintenance crew for Kingston on the midnight shift. Tr. 89. Kingston is owned by Alpha 

Natural Resources. Tr. 91. Jones also agreed that the Running Right cards were encouraged to be 

filled out and were an Alpha-wide process. Tr. 92. In addition, Alpha did training for this at the 

Running Right Academy. Tr. 92-93. 

In questioning Jones about some of the particulars he raised in his Complaint, 

Respondent’s Counsel first addressed the trailing cables for the shuttle cars. Jones agreed that it 

was part of his job to make sure the cables were maintained in good repair.9

 Tr. 97. As to the 

lights being covered on roof bolters, Jones also agreed that it was part of his job to make sure 

that the lights were not covered up and if they were, it was part of his job to remedy that 

condition. Tr. 100. Sometimes the fix was a simple matter of washing off mud that had been 

applied to the lights, but other times the lights had been painted and this would require new 

globes to be installed. Id. Jones added that this was a cost to the company to replace those globes 

over and over. Id. Therefore, he agreed that the company wanted that practice of covering lights 

to stop. Tr. 101. Jones also agreed that he and the other electricians who were working on the 

maintenance shift would advise the day shift assistance chief, Mr. Shrewsbury, or Jarrod 

Birchfield, the chief electrician of this issue. Tr. 101-03. 

Turning to Jones’ interview with MSHA special investigator Humphrey, which occurred 

on August 3, 2015, Jones agreed that it was at that time that he was advised of the temporary 

reinstatement provision and he learned that he was “protected by the law during a layoff.”10 Tr. 

105-06. Still, while he asserted that he did not know of Mine Act protections when a layoff

occurs, Jones acknowledged that he did know that employees cannot be fired for making safety

complaints. Tr. 106. In fact, that protected right was part of his annual refresher training. Id. He

also admitted that he knew there was a 60 day time frame to make such a complaint, but

maintained that he understood that to apply only to an improper firing and that he did not know a

layoff could be within those rights. Tr. 107. The Secretary then rested. Tr. 115.

Respondent then called Danny Laverty. At the time in issue, Laverty was the third shift 

maintenance foreman. Tr. 129. His coal mining experience spans some 41 years, all of it in 

9

 In yet another example demonstrating that Jones was really no different in raising safety 

concerns than the other electricians he worked with, Complainant told an anecdote of a miner 

who continued to damage the trailing cables. He related that it took a while to get that miner to 

stop that practice, but the key point is that all of his fellow electricians were complaining about 

this individual and that the company took steps to stop the miner from continuing to damage the 

cables. Tr. 111. 

10 Of course, if that is what was conveyed to Jones by MSHA’s Investigator Humphrey, 

that he was protected by the law during a layoff, it was a gross oversimplification of a miner’s 

reinstatement rights. Tr. 106. Layoffs per se are not protected. 

37 FMSHRC Page 2301
maintenance. Tr. 133. The Complainant was part of Laverty’s crew, working in the No. 3 

section. Tr. 130. Laverty described his duties on that shift: 

The purpose of the midnight shift was doing maintenance, checking 

permissibility, keeping the equipment in permissible conditions, making sure the 

equipment was serviced, greased, oil changed, whatever needs to be done, any 

issues or things that might have caused them problems during the production 

shift, to try to fix those. Just a lot of preventive type maintenance . . . . 

Tr. 131. 

Addressing the matter at hand, Laverty explained the work that he and his crew, which 

included Complainant Jones, were to perform: 

[T]hey were -- generally at the start of the shift, they were given a work list to do.

Part of it was generated from previous things that they might not have gotten to

earlier, and some of it would come from things that might have happened during

the shift just prior, for instance, the day shift or evening shift. And also, there

were preventive maintenance programs that would come up as worksheets that

they were also assigned to do. And they would have to . . . sign them, put their

initials on stuff, check things off that they got, not check off things that they didn't

get, kind of a checklist of stuff that they could do. They were expected, what they

got done, to write down and turn it in when they got outside and sign it, put their

names on it.

Tr. 134-35. Laverty agreed that it was common for all his electricians to note their concerns that 

they encountered during their work. Tr. 136. As he expressed it, “Sometimes the only way we 

have of knowing that we have an issue or a problem with something is if somebody will come 

and tell us.” Tr. 138. He agreed that Jones brought items to his attention but the other electricians 

on his crew did so as well, and that Jones activity in this regard was “about the same as anybody 

else.” Tr. 138-39. 

Speaking to the issue of lights on the roof bolter being covered, Laverty acknowledged 

that it has been an ongoing problem and that roof bolter operators should not do that. Tr. 141-43. 

He also agreed that Jones probably brought instances of this occurring to his attention, but there 

was nothing unique about that, as he stated that “probably every [electrician] on that shift has 

come to [him] about -- about the lights.” Tr. 143-44. Laverty did not ignore the issue; there were 

occasions when he would raise it to the chief electrician and to the safety director and it would be 

raised during safety meetings too. Tr. 145. 

As for the issue of trash, as one of Jones’ raised safety concerns, Laverty likewise 

acknowledged that miners leave their lunch trash on top of mining equipment and that it too was 

a continuing problem, presenting a fire hazard. Tr. 146-47. This subject was likewise brought up 

to the miners during meetings. Tr. 148-49. While he couldn’t recall specifically if Jones raised 

the issue, his electricians had generally raised the matter with him. Tr. 146. As for the cable 

issue, another of Jones’ safety concerns, Laverty agreed that electricians brought the condition of 

37 FMSHRC Page 2302
cables to his attention. Tr. 149-50. However, he added that noting damage to cables was part of 

his electrician crew’s job. Tr. 150. Turning to the dust bag issue, Laverty similarly agreed that 

“somebody at some point mentioned to me that guys weren't getting rid of their dust bags 

properly,” but he could not recall which individual noted the matter. Tr. 152. 

Upon cross-examination, Laverty did not agree that Jones was more persistent about 

raising safety issues with him than other miners. Tr. 155. Counsel for the Secretary then revived 

her interest in admitting C-1, an exhibit offered for identification only during the Secretary’s 

case in chief, but then withdrawn. Laverty agreed the exhibit was his employee evaluation of 

Jones, which evaluation he made on January 30, 2015. Tr. 156. It is difficult to determine how 

the evaluation supports the Secretary’s case. As Counsel for the Secretary noted, in Laverty’s 

comments about Jones he wrote: “Works safe and is good about letting me know if he spots 

potential problems.” Tr. 156. The Court took note that the comment reflected that Jones “Works 

safe” and Laverty stated the obvious, that it was not a criticism but rather that it was “a good 

thing, that he works safe.” Tr. 158. Similarly, when asked about his remark that Jones was “good 

about letting me know if he spots potential problems,” that was a positive comment by him about 

Jones. Tr. 158. Exhibit C-1 was then admitted. Tr. 159. 

The Respondent then called Greg Shrewsbury. At the time in issue he was employed at 

the Kingston No. 2 mine, where he was the assistant chief electrician. Tr. 164-65. Shrewsbury 

worked the day shift but this he would interact with those miners completing the night shift, as 

their times overlapped. Tr. 167. Electricians from that night shift would stop by his office as their 

shift ended and note needed parts and things that would require attention. Tr. 167-68. He 

encouraged them to do this because it reduces violations. Tr. 169. Complainant Jones would 

come by his office from time to time, but his visits were not more or less than the other 

electricians. Tr. 169. 

Shrewsbury acknowledged awareness of the issue of lights being covered on roof bolters, 

describing it as a frequent issue and that it would be addressed in safety meetings. Tr. 171. 

Similarly, trash was described as a continuing issue and it too would be addressed at safety 

meetings. The problem would then lessen for a time and then arise again. Tr. 173. 

Discussion 

 The essence of the Secretary’s case is the claim that Complainant made safety 

complaints and that the mine operator, unhappy with Jones’ safety advocacy, inappropriately 

applied its layoff so that Complainant would be laid off. Thus, apart from the late filing, the 

measure of whether this complaint was frivolously brought involves two elements: did Jones 

make safety complaints and, if so, was there a connection established between such complaints 

and the layoff. In a sense, a mine operator has its hands tied in this type of proceeding, as a 

temporary reinstatement proceeding is not the forum to consider competing claims about the 

37 FMSHRC Page 2303
legitimacy of the layoff procedures.11 However, acknowledging the appropriateness of the 

limited inquiry, does not equate with an automatic or reflexive finding that a complainant need 

only assert that he raised “safety concerns” and then couple that with a claim that a mine utilized 

a suspect layoff system, to establish a non-frivolous claim. The act of challenging temporary 

reinstatements should not be preemptively deemed frivolous. The inquiry is whether the 

complaint itself is frivolous. 

In this instance, as noted, two obstacles have to be resolved before factoring the fact of 

the layoff into the analytical mix: Did the Complainant have an excusable basis for his very 

untimely filing of the discrimination complaint and, if he did, did he engage in genuine protected 

activity or was he merely performing his maintenance shift duties as an electrician? The Court, 

as explained below, finds that neither of these predicates was established. 

As has been noted, Complainant, Jeremy Jones, was the Secretary’s sole witness. The 

Secretary presented evidence that Mr. Jones, as the affidavit of the Secretary’s special 

investigator for this matter provides, raised “safety concerns” with Respondent. Whether raising 

“safety concerns” is the equivalent of engaging in protected activity, at least in the context of this 

case, is another matter. Mindful that resolving testimonial conflict is not permitted in temporary 

reinstatement matters, this decision does not engage in such weighing. Instead the decision relies 

upon the Secretary’s evidence and evidence from Respondent’s witnesses which was consistent 

with that testimony. The Court considered each of the witnesses to be credible. 

In the Court’s assessment, Mr. Jones was both an intelligent individual and a credible 

witness.12 As explained, Complainant’s intelligence is a factor which tends to refute his claim, 

making it less likely that he was unaware of his protected activity rights, and more likely that, 

when speaking with the MSHA special investigator, on a matter unrelated to the discrimination 

allegations in this proceeding, that this was an attempt, stimulated by the MSHA investigator, to 

 11 For that reason the Court restricted both sides from introducing details about their 

respective contentions as to the legitimacy and honest implementation of its layoff. Instead, it 

permitted Respondent to make an offer of proof on the subject of the mine’s layoff. Tr. 121-25. 

After all, since the temporary reinstatement proceeding is not the forum to resolve the merits, or 

lack thereof, of the layoff system, it makes little sense to have extended testimony about the 

particulars of the layoff and it application. As the Court expressed during the temporary 

reinstatement hearing, “the bona fides of the layoff is not something I have to reach.” Tr. 121. It 

is sufficient to note that it is a disputed issue, but one that will not be resolved until after a full 

evidentiary hearing on the discrimination claim in chief, a matter several months down the road. 

12 While credible, that does not mean that the Court accepted Jones’ unsupported visceral 

feelings that Laverty didn’t like his raising safety matters. 

37 FMSHRC Page 2304
backfill safety claims and couple those with the unassailable assertion (for now) that there was a 

non-legitimate basis for his layoff.13 

Therefore, when considering the long delay in the filing, Jones’ demonstrated 

intelligence, evidenced by the fact he is an electrician; his long number of years employed in the 

mining industry; the fact that he acknowledged that he was speaking with fellow employees just 

prior to the layoff announcement; and that, despite all that, the idea that he was the victim of 

discrimination did not come to him until he started speaking with an MSHA special investigator 

on a matter unrelated to any yet to be made claim of his own, all combine to make the delay 

unexcused. 

Even assuming that, on any appeal that may occur, a different vantage point about Jones’ 

late filing was reached, the Court concludes that no nexus was established between Jones’ 

expression of his “safety concerns,” and the layoff. To the contrary, Jones’ own testimony 

confirms that his raising of those concerns was indistinguishable from those of the fellow 

electricians on his crew and that, fairly viewed, they were either part of his job to address those 

matters or not genuine safety complaints. However labeled, there is no evidence that Kingston 

did anything other than encourage the miners to bring such concerns to its attention. This was 

true for the trash, the covering of roof bolter lights, the trailing cables, and the running right 

cards. Jones’ own testimony supports each of these conclusions. In fact, with the Secretary’s 

own, single, exhibit, Jones was paid high regard by Mr. Laverty for working safe and letting him 

know if he spotted potential problems. Ex. C-1. It is noteworthy that this occurred in January 

2015, which was at a time several months before the layoff. Therefore, the Court agrees with the 

Respondent that, in a very technical, literal sense, while Jones raised safety issues, they were 

non-viable protected activity in the context that they were made and Kingston took no negative 

action, by words or deeds, in reaction to them. As noted, on this record, Respondent was 

supportive and encouraged employees to raise such matters. 

 

Conclusion 

Accordingly, the Court finds that, on this record, the Complaint has been frivolously 

brought. This does not mean that Complainant may not ultimately prevail in a full trial on the 

merits, a determination about which the Court cannot, and does not, have any opinion at this 

 13 To that point, the Secretary attempted in its Motion in Limine to strike testimony 

regarding Complainant’s job performance and the legitimacy of the layoff, while trying to 

bootstrap the legitimacy of this case by referencing findings in other proceedings in which two 

other miners laid were laid off by Kingston, citing Sec’y on behalf of Brooks v. Kingston Mining, 

37 FMSHRC 1282, 2015 WL 3932760, (June 19, 2015) (ALJ Andrews), and Sec’y on behalf of 

Harper v. Kingston Mining, No. WEVA 2015-816-D, 2015 WL 4512184 (FMSHRC July 14, 

2015) (ALJ Lewis). Of course, each case must stand on its own record, and in no manner does 

this Court second guess or criticize the temporary reinstatements that were ordered in those other 

cases. However, the Court notes that in the case of Brooks, Brooks filed his discrimination claim 

10 days after the layoff, and in Harper, Harper filed his claim 34 days after the layoff, as 

compared to Mr. Jones, who filed his claim nearly 4 months after the layoff and then only upon 

visiting with an MSHA special investigator on a matter unrelated to his own layoff. 

37 FMSHRC Page 2305
juncture. Different scenarios may develop. The Secretary may decide not to pursue a section 

105(c) complaint. If the Secretary does file such an action, it is possible that he may be able to 

demonstrate that the miners’ layoff evaluation was a ruse, implemented for the purpose of 

ridding itself of miners who made safety complaints, a showing that could then contextually 

revive the assessment of Jones’ expressed safety concerns. It is also possible that challenges to 

the legitimacy of the layoff may fail. For now, the issue is limited to frivolousness, a 

determination here made. 

ORDER 

IT IS ORDERED that the Secretary's application for the temporary reinstatement of 

Jeremy Jones IS DENIED. Accordingly, IT IS FURTHER ORDERED that this temporary 

reinstatement proceeding IS DISMISSED.

/s/ William B. Moran 

William B. Moran 

Administrative Law Judge 

Distribution: 

Lucy C. Chiu, Esq., Associate Regional Solicitor, Division of Mine Safety and Health, 201 12th 

Street South – 5th Floor, Arlington, VA 22202-5450 

Arthur Wolfson, Esq., Jackson Kelly PLLC, Three Gateway Center, Suite 1500, 401 Liberty 

Avenue, Pittsburgh, PA 15222 

Jeremy Jones, 1667 Willis Branch Road, Victor, WV 25938 

37 FMSHRC Page 2306
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

721 19th STREET, SUITE 443 

DENVER, CO 80202-2536 

TELEPHONE: 303-844-5266 / FAX: 303-844-5268 

October 15, 2015 

DECISION

Appearances: Beau Ellis, Esq. and Kristi Henes, Esq., Office of the Solicitor, U.S. 

Department of Labor, Denver, Colorado; Dennis Bellfi, Mine Safety and 

Health Administration, U.S. Department of Labor, Denver, Colorado, for 

Petitioner; 

Jason W. Hardin, Esq., Fabian & Clendenin, Salt Lake City, Utah for 

Respondent 

Before: Judge Manning 

This case is before me upon a petition for assessment of a civil penalty filed by the 

Secretary of Labor, acting through the Mine Safety and Health Administration (“MSHA”), 

against Traylor Mining, LLC (“Traylor”) pursuant to sections 105 and 110 of the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the “Mine Act). The parties 

presented testimony and documentary evidence at a hearing held in Denver, Colorado, and filed 

post-hearing briefs. One section 104(d)(1) citation was adjudicated at the hearing. Traylor is an 

independent contractor that was performing work at the Bulldog Mine, which was an 

underground silver mine in Mineral County, Colorado. 

I. DISCUSSION WITH FINDINGS OF FACT

AND CONCOLUSIONS OF LAW 

On June 3, 2013, MSHA Inspector David M. Sinquefield1

 issued Citation No. 8597320 

under section 104(d)(1) of the Mine Act, alleging a violation of section 57.9100(a) of the 

Secretary’s safety standards. (Ex. G-5). The citation alleges that the production supervisor for 

Traylor was injured by the roadheader on a Bobcat excavator when the boom on the excavator 

was accidentally activated by the excavator operator as he was backing out of a mucked out area. 

1

 Inspector Sinquefield has been with MSHA for over eight years. He has investigated 

accidents as well as hazard complaints. Prior to his employment with MSHA, he worked in the 

mining industry from 1976 to 2003. He is trained as a mechanic and has worked on, and 

operated, numerous pieces of mobile equipment. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

v. 

TRAYLOR MINING, LLC, 

 Respondent 

 CIVIL PENALTY PROCEEDING 

Docket No. WEST 2014-351-M 

A.C. No. 05-00413-341975 X940

Bulldog Mine 

37 FMSHRC Page 2307
The citation further states that the supervisor was standing too close to the excavator while 

observing the mucked out area and, as a result, he failed to follow established rules governing 

rights-of-way. The citation states that the supervisor engaged in aggravated conduct because he 

failed to yield the right-of-way to the excavator while it was in operation. 

Inspector Sinquefield determined that an injury was reasonably likely to occur, that the 

violation was of a significant and substantial (“S&S”) nature, and that any injury could 

reasonably be expected to be fatal. He determined that Traylor’s negligence was high and that 

one person would be affected. Section 57.9100(a) provides, in part, that “[r]ules governing 

speed, right-of-way, direction of movement, and the use of headlights to assure appropriate 

visibility, shall be established and followed at each mine[.]” 30 C.F.R. § 57.9100(a). The 

Secretary has proposed a penalty of $52,500 for this citation under the Secretary’s special 

assessment procedure at 30 C.F.R. § 100.5. 

The parties, both at hearing and in their briefs, have represented that Traylor is not 

contesting the fact of violation for Citation No. 8597320, nor is it contesting the S&S or gravity 

findings of the inspector. (Tr. 6-7; Traylor Br. 1; Sec’y Br. 2). Rather, Traylor is only contesting 

the unwarrantable failure and high negligence findings, as well as the specially assessed 

proposed penalty amount. Id. Accordingly, I address only these issues. 

My findings of fact in this decision are based on the record as a whole and my observation of 

the witnesses. Although I have not included a summary of all the evidence presented at the hearing 

in this decision, I fully considered all of the evidence.

Discussion and Analysis 

Summary of the Evidence 

The Bulldog Mine was a single entry underground mine owned by Rio Grande Silver. 

Rio Grande Silver was not involved in the day-to-day operation of the mine. Traylor was 

contracted to excavate a new tunnel to intercept old mine workings at the Bulldog Mine. Traylor 

began work at the mine in July 2012 and ceased work in September 2013. 

Traylor’s typical mining cycle at the mine involved the drilling of shot holes, loading of 

shots, blasting, cleaning up and removing of material, and then providing support. As part of the 

cleanup phase, Traylor utilized a Bobcat excavator with a roadheader attached to the boom to 

trim the ribs, face, top and floor. The subject roadheader consisted of a boom-mounted cutting 

head that was attached to the Bobcat. 

The cited standard requires, in pertinent part, that mines establish and follow right-of-way 

rules in order to provide for the safe movement of mobile equipment. 30 C.F.R. § 57.9100(a). 

Traylor had established a rule via a Job Hazard Analysis (“JHA”) for “[t]rimming/scaling the 

37 FMSHRC Page 2308
perimeter with the Bobcat roadheader.” (Ex. G-7 p. 2.). According to the relevant JHA2

, in 

order to prevent the hazard of personnel being struck by the excavator “[n]o personnel are to be 

forward of the Bobcat blade while trimming.” The JHA further states that the equipment 

operator “shall stop trimming and place roadheader on the ground if personnel need to be in the 

area.” Id. Finally, the JHA provides that the equipment operator must “maintain constant 

awareness of his movements and personnel locations.” Id. 

On May 29, 2013, Lowell Hicks was supervising a crew of miners engaged in the 

cleanup phase of the mining cycle. Michael Reagan, one of the crew members, was operating 

the Bobcat excavator with the roadheader attached. Following a trimming session, Reagan 

stopped the excavator and exited the cab so that he and Hicks could evaluate the situation, take 

measurements, and see if additional trimming needed to be done. After determining that 

additional trimming was needed, Reagan got back into the excavator and trimmed some 

additional rock. Hicks stood beside the excavator cab while Reagan operated it. Reagan then 

stopped the excavator and again discussed the situation with Hicks. After determining that no 

additional trimming was necessary, Hicks went to the back of the excavator and unhooked the 

water line. 

Joseph Dalton, another miner on the crew under Hicks’ supervision, then dragged the 

water line outby so that it would not be run over while the excavator trammed away from the 

face. Reagan, after waiting 20-30 seconds to make sure the water was unhooked, looked over his 

left shoulder from in the excavator cab and saw that the hose had been pulled down the drift and 

Dalton was rolling it up. (Tr. 189). He saw no other miners to his left. Reagan then looked over 

his right shoulder and saw miners outby the excavator down the drift. While Reagan could not 

identify the miners he saw over his right shoulder, he determined that all miners were clear of the 

excavator. He then throttled up the excavator, raised the boom, honked three times, and began to 

tram backwards.3

 Meanwhile, Hicks advanced inby on the left side of the excavator. Reagan did 

not see Hicks go back inby. After moving only a few feet backwards, the excavator shifted as it 

moved over uneven ground. As the excavator shifted, Reagan turned to his right to look behind 

him and, in doing so, his right hand accidently hit the swing lever, causing the boom to swing 

and hit Hicks and the rib. (Tr. 190). Reagan centered the excavator before noticing Hicks lying 

on the ground, at which point he asked Hicks if he had hit him, to which Hicks replied that he 

had been hit. As a result of his injuries, Hicks was evacuated from the mine and ultimately 

transported to a hospital in Denver. 

2

 At hearing, the Secretary introduced a second JHA, (Ex. G-8 p. 21), and seemingly 

planned to allege that Respondent had also violated this JHA. However, the Secretary did not 

advance that theory in his brief and, as noted by Respondent in its brief, Exhibit G-8 does not 

apply to the case at hand. Traylor Br. 1-2 n. 1. 

3

 Reagan testified that the Bobcat excavator was equipped with a backup alarm, which 

was loud enough to hear over the operation of the equipment, and lights on the front and back, 

which were bright enough to see where he was going and provided some bleeding light to the 

sides of the excavator. (Tr. 193). Further, he explained that, because of the length of the boom, 

the excavator could not spin around and drive out forward. Rather, it had to tram backwards to 

exit the face area. (Tr. 193-194). 

37 FMSHRC Page 2309
Inspector Sinquefield traveled to the Bulldog Mine to investigate the accident involving 

Hicks. Sinquefield took notes, photos, and measurements of the scene of the accident. At 

hearing, Sinquefield acknowledged that he did not ask Dalton, Reagan, or anyone else at the 

mine about Hicks’ normal practice during trimming, and that those individuals who worked with 

Hicks would have had firsthand knowledge regarding his usual practice. (Tr. 69). Sinquefield 

traveled to Denver the following day to interview Hicks at the hospital. 

Sinquefield testified that Hicks was lucid, candid, and clear during his interview in the 

hospital. Sinquefield documented his interview with Hicks in his notes. (Ex. G-4). Sinquefield, 

testifying while reviewing his notes, stated that Hicks told him that during the production cycle it 

was normal for him to be forward of the cab during the cleanup phase. He stated that Hicks told 

him that the reason he advanced past the excavator just prior to the accident was because he was 

“in a hurry[.]” (Tr. 36). Further, the inspector stated that Hicks told him that he “messed up 

[and he] shouldn’t have been there while the machine was running.” Id.; (Ex. G-4 p. 7). At 

hearing, on cross-examination, Sinquefield, after stating that there were only inches between the 

excavator cab and the blade, conceded that there may have been two feet between those areas. 

(Tr. 64-65). Further, he agreed that if Hicks was next to the cab, behind the blade, he would not 

have been in violation of the JHA. (Tr. 66-67). 

Sinquefield testified that “anybody forward of the blade” was exposed to the hazard of 

being hit or run over by the excavator. (Tr. 44). While he found that Hicks’ exposure to the 

hazard was limited in time in this instance, he determined that such an accident was reasonably 

likely based on the repeated exposure of the individual since the violative conduct was a normal 

practice. Sinquefield acknowledged that, had this been a “one and done” situation, his finding 

regarding the level of exposure may have been different. (Tr. 45). He explained that similar 

accidents involving mobile pieces of equipment have been fatal and that Hicks was lucky to be 

alive in this instance. (Tr. 47-48). 

Sinquefield testified that he designated the negligence as high because Traylor provided 

no mitigating circumstances to explain why it allowed this practice at the mine. (Tr. 48). 

Sinquefield designated the violation as an unwarrantable failure. (Tr. 49). In reaching 

this determination, he concluded that the conduct posed a very high degree of danger given the 

size and weight of the machine and because Hicks’ conduct was a normal practice. Based on 

Sinquefield’s experience and a review of fatalgrams, he believed that a fatality was likely. (Tr. 

23). He stated that fatalgrams are of great value to operators who can look at them, decide if 

they apply to their mine, and then make sure they take steps to avoid such an accident at their 

own mine. He found that the operator had knowledge of the violation because Hicks, who was a 

supervisor, admitted to him that he was where he should not have been, and that this was a 

procedure that Traylor allowed time and time again. (Tr. 52-53). Further, he found that the 

violation was obvious because Hicks was aware of his position relative to the moving excavator. 

(Tr. 55-56). Finally, the inspector found that, with regard to duration, the violative conduct was 

a common practice that was repeated each time. (Tr. 57). 

Hicks testified that he was hired as a “walker” at the Bulldog Mine in April 2013. His 

position was paid hourly and he did not consider himself to be management, but he was hired in 

37 FMSHRC Page 2310
a supervisory role and directed the work of a crew. (Tr. 156). Prior to being hired, he was 

provided a safety manual, which he read and signed before going through several days of 

orientation and walkthrough training with his supervisor, Duane Monks. Hicks recalled being 

trained on right-of-way and specifically remembered being trained on the JHA. He testified that, 

other than the time of this accident, he could not recall being forward of the excavator blade, it 

was not normal for him to move forward of the excavator cab while it was in operation, and that 

normally, after trimming, he would have been the one to drag the hose back down the drift. (Tr. 

160-161). Hicks explained that the blade of the excavator was roughly three to four feet in front

of the cab. (Tr. 169). In addition, Hicks testified that he had never seen any other Traylor

personnel forward of the blade during trimming. Finally, Hicks testified that, while he was not

disciplined as a result of the accident, he has been on workers compensation since the accident,

and Traylor only worked at the Bulldog Mine for three months after the accident. He was laid

off on August 21, 2013. (Tr. R-30).

Both Reagan and Dalton testified that they worked with Hicks on a daily basis and, with 

the exception of the accident, never saw Hicks or anyone else go forward of the excavator blade 

while it was operating. (Tr. 187-188, 204). Monks, the mine superintendent and Hicks’ direct 

supervisor, testified that he had observed Hicks and other miners as they worked and that he only 

saw the miners walk forward of the blade when the roadheader was on the ground and the 

equipment was off. (Tr. 229). Neither David Pease, the project manager for Traylor Brothers, 

the parent company of Traylor Mining, nor Monks had ever received a complaint about Hicks 

acting in an unsafe manner or in an manner that was inconsistent with the JHA. (Tr. 139, 232). 

 Traylor’s witnesses testified that the safety culture at Traylor was good, with routine 

training regarding rights-of-way and danger zones, including one day where the mine was shut 

down and miners were trained on all of the mobile equipment in the mine, as well as the specific 

JHA provision at issue. (Tr. 185, 191, 201-203). Further, they explained that Traylor’s safety 

program encouraged miners to report violations to management, and miners had in the past 

reported “walkers” for violations. (Tr. 120-121, 207). Pease testified that Traylor had a 

discipline program and had terminated miners, including a “walker,” for safety violations. (Tr. 

120-122).

Reagan explained that, given the length of the boom on the excavator, a person standing 

next to the cab would be safe, as the boom would hit the rib and stop before it would get near an 

individual standing next to the cab. (Tr. 187). Reagan also testified that, at the time of the 

accident, he was certain he had taken steps to make sure he knew where everyone was. (Tr. 

196). Hicks testified that he did not signal to Reagan that he was going forward. Reagan was 

not disciplined as a result of the accident. (Tr. 196-197). 

Both Reagan and Dalton identified Hicks as their direct supervisor. (Tr. 192, 210). 

Dalton confirmed that Hicks had the ability to direct work and reprimand the crew for safety 

violations, however he didn’t believe that Hicks had the ability to terminate miners. (Tr. 211). 

Monks testified that Hicks was in charge of advancing the tunnel and doing it safely. Pease 

testified that Hicks, as a “walker,” was charged with coordinating and supervising the activities 

on the shift, but also stated that Hicks did not have authority to hire or fire, but that his input 

would be given weight. (Tr. 150-151). 

37 FMSHRC Page 2311
Analysis of Negligence and Unwarrantable Failure 

I find that Traylor was moderately negligent and that the violation was not a result of the 

operator’s unwarrantable failure to comply with the mandatory standard. Many of the 

Secretary’s allegations with regard to negligence and unwarrantable failure are based on his 

assertion that Hicks was an agent of the operator and that the violative conduct was not an 

isolated incident, but was normal and occurred on a regular basis. Based on the analysis below, I 

find that the Secretary established that Hicks was an agent of the operator. The Secretary did not 

establish by a preponderance of the credible evidence that Hicks regularly walked in front of the 

blade in violation of the JHA while the excavator was operating. 

The Commission has held that, while “the negligence of an operator’s ‘agent’ is 

imputable to the operator for penalty assessment and unwarrantable failure purposes[,] . . . the 

negligence of a rank-and-file miner is not imputable to the operator for” those same purposes. 

Nelson Quarries, Inc., 31 FMSHRC 318, 328 (Mar. 2009). The Mine Act defines an “agent” as 

“any person charged with responsibility for the operation of all or part of a coal or other mine or 

the supervision of miners in a coal or other mine[.]” 30 U.S.C. § 802(e). In determining whether 

an employee is an agent of the operator, the Commission has “‘relied, not upon the job title or 

the qualifications of the miner, but upon his function, [and whether it] was crucial to the mine’s 

operation and involved a level of responsibility normally delegated to management personnel.’” 

Ambrosia Coal & Constr. Co., 18 FMSHRC 1552, 1560 (Sept. 1996) (quoting U.S. Coal, Inc., 

17 FMSHRC 1684, 1688 (Oct. 1995)) (alteration in original); See also Martin Marietta 

Aggregates, 22 FMSHRC 633 (May 2000). 

I find that Hicks was an agent of Traylor. Hicks testified that he supervised a crew of 

miners and directed their work activity. David Pease, the project manager for Traylor Brothers, 

confirmed that, as a “walker,” Hicks was charged with, among other things, supervising, 

coordinating, and directing work, training and monitoring employees in the proper use of tools, 

and assuring that work was done in a safe manner. (Tr. 150-151). He further confirmed that 

walkers are able to issue verbal and written discipline to miners for safety violations and that 

Hicks’ input would be given weight in a decision to terminate a miner. Id. Traylor’s other 

witnesses confirmed that Hicks was a supervisor. Duane Monks, the project superintendent, 

agreed that Hicks was in charge and was the individual responsible for making sure “the work 

was done and done safely.” (Tr. 234). In addition to the testimonial evidence, the parties also 

introduced documentary evidence that confirms these supervisory responsibilities. (Exs. G-10, 

G-11).

While Respondent argues that Hicks was not an agent because he was paid by the hour, 

was not a member of Traylor’s management, could not hire or fire personnel, and was not 

required to hold certifications required by law, I find these arguments unavailing in light of the 

testimony and documentary evidence discussed above. Traylor Br. 11 n. 5. In addition, while 

Hicks may not have had ultimate authority to terminate an employee, Traylor’s own witnesses 

confirmed that he was able to discipline employees and that his input would be given weight in a 

decision to terminate an employee. I find that Hicks’ function was crucial to Traylor’s operation, 

involved a level of responsibility consistent with that of a person in management, and that he was 

an agent of Traylor. 

37 FMSHRC Page 2312
With regard to whether Hicks’ violative conduct was normal and occurred repeatedly or 

was an isolated incident, I am persuaded both by the testimony and Respondent’s brief that this 

was not a regular occurrence. Traylor, in its brief, argues that the Secretary’s allegation that 

Hicks’ violative conduct was normal and occurred repeatedly is premised upon a 

misinterpretation of the evidence. Taylor Br. 2-3. Specifically, Traylor argues that the Secretary 

misinterpreted a statement made by Hicks to Sinquefield during the interview at the hospital 

following the accident. 

At hearing, Sinquefield, relying upon his field notes taken during his interview of Hicks, 

testified that Hicks told him that it is Traylor’s normal procedure during the cleanup phase for 

Hicks to be at or forward of the cab. (Tr. 36, 61-62, 66; Ex. G-4 p. 7). Traylor asserts that the 

Secretary improperly interpreted this to mean that it was Hicks’ normal practice to be out of 

compliance with the JHA’s requirement that personnel be behind the blade of the excavator 

during the trimming phase. (Ex. G-7 p. 2). While Sinquefield initially testified that there were 

only inches between the cab and the blade on the excavator, he later conceded, after reviewing an 

exhibit showing a photo of what he identified as an identical excavator with a different 

attachment on the boom, that there could be two feet in distance between the cab and the blade. 

(Tr. 63-65; Ex. G-6). Hicks testified that the distance between the cab and the blade was three to 

four feet. (Tr. 169). I find that the photograph, combined with the testimonies of Hicks and 

Sinquefield, show that it was possible for Hicks to be “[at] or forward of [the] cab” while at the 

same time be in compliance with the JHA’s requirement that he be behind the blade. (Ex. G-4 p. 

7)(emphasis added). 

The inspector, on direct examination, was asked who would be exposed to the hazard of 

being hit by the excavator. The inspector replied “[a]nybody forward of the blade, which at this 

time was Lowell Hicks.” (Tr. 44). On cross-examination, Inspector Sinquefield conceded that, 

if Hicks were behind the blade, there would be no violation.4

 (Tr. 66-67). Accordingly, I find 

that the statement made by Hicks to the inspector while he was in the hospital cannot be relied 

upon by the Secretary to establish that it was normal practice for Hicks to be in front of the blade 

of the excavator and in violation of the JHA. Given that no other credible evidence was 

introduced in support of the Secretary’s allegation that it was Hicks’ normal practice to be in 

front of the blade, I find that the Secretary has failed to establish that the violative conduct was a 

common practice. Rather, I credit the testimonies of Traylor’s witnesses that going in front of 

the excavator blade while the excavator was in operation was not a normal occurrence and, based 

on the evidence presented, find that the violative conduct that resulted in Hicks’ injuries was an 

isolated event. (Tr. 186-187, 140, 204, 206, 229). 

 Negligence 

The Commission has recognized that “[e]ach mandatory standard . . . carries with it an 

accompanying duty of care to avoid violations of the standard, and an operator’s failure to meet 

 4 The citation charges Traylor with a violation of section 57.9100(a) because it was not 

following its established right-of-way rules as set forth in the JHA. Whether the JHA 

sufficiently protected miners working around the excavator while it was engaged in trimming 

operations is not an issue that is before me. 

37 FMSHRC Page 2313
the appropriate duty can lead to a finding of negligence if a violation of that standard occurs.” 

A.H. Smith Stone Co., 5 FMSHRC 13, 15 (Jan. 1983). In determining whether an operator has 

met its duty of care, the Commission considers “what actions would have been taken under the 

same circumstances by a reasonably prudent person familiar with the mining industry, the 

relevant facts, and the protective purpose of the regulation.” Jim Walter Res. Inc., 36 FMSHRC 

1972, 1975 (Aug. 2014) (footnote omitted). 

I find that Traylor was moderately negligent. I have already found that Hicks was an 

agent of the mine. Accordingly, his negligence is imputable to the operator for penalty purposes. 

However, I find that, while Hicks’ act of going into the danger zone was ill-advised and resulted 

in a serious injury, a finding of moderate negligence is appropriate. As discussed above, much 

of the Secretary’s case rests on his belief that the violative conduct was a normal practice. For 

reasons set forth above, I find that the Secretary failed to meet his burden of proof on this issue 

of fact. The evidence establishes that Traylor took reasonable steps to ensure that miners did not 

endanger themselves by walking in front of the blade. It provided specific training and had in 

place specific policies to prohibit the exact conduct that resulted in Hicks’ injuries. Each of the 

crew members testified that they were aware of the need to remain behind the blade during 

trimming and that it was not the normal practice of anyone, Hicks included, to go in front of the 

blade. Moreover, I credit the testimonies of Traylor’s witnesses that safety violators were 

appropriately disciplined by this operator. Accordingly, I MODIFY the citation to moderate 

negligence. 

 Unwarrantable Failure 

The unwarrantable failure terminology is taken from section 104(d) of the Act, 30 U.S.C. 

§ 814(d), and refers to more serious conduct by an operator in connection with a violation. In 

Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987), the Commission determined that 

unwarrantable failure is aggravated conduct constituting more than ordinary negligence. Id. at 

2001. Unwarrantable failure is characterized by conduct described as “reckless disregard,” 

“intentional misconduct,” “indifference,” or a “serious lack of reasonable care.” Id. at 2002-04; 

Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991); see also Buck Creek Coal, 

Inc., 52 F.3d 133, 136 (7th Cir. 1995) (approving Commission's unwarrantable failure test). The 

Commission has explained that whether a citation is an “unwarrantable failure” is a question that 

should be evaluated based on the facts and circumstances in each case, and in light of each of the 

following factors: (1) the length of time that the violation has existed; (2) the extent of the 

violative condition; (3) whether the operator has been placed on notice that greater efforts were 

necessary for compliance; (4) the operator’s efforts in abating the violative condition; (5) 

whether the violation was obvious; (6) whether the condition posed a high degree of danger; and 

(7) the operator’s knowledge of the existence of the violation. See Consolidation Coal Co., 22 

FMSHRC 340 (Mar. 2000); IO Coal Co., 31 FMSHRC 1346 (Dec. 2009). All of the relevant 

facts and circumstances of each case must be examined to determine if an actor’s conduct is 

aggravated, or whether mitigating circumstances exist. Consol, 22 FMSHRC at 353. 

In IO Coal Co., 31 FMSHRC at 1346, the Commission emphasized that the length of 

time that the violative condition existed is a “necessary element” of the unwarrantable failure 

analysis. Here, the condition existed only for a very short period of time. As discussed above, 

37 FMSHRC Page 2314
there is no credible evidence that Hicks’ conduct of walking in front of the blade while the 

excavator was in operation was a normal occurrence. Although Hicks’ negligent act resulted in a 

serious injury, had Reagan not accidently hit the joystick that caused the boom to swing, the 

excavator would have continued proceeding outby past Hicks in a matter of seconds to the point 

where Hicks would no longer have been in danger. 

In IO Coal Co., the Commission explained that the “extent of the violative condition is an 

important element in the unwarrantable failure analysis.” Id. The Commission has explained 

that the purpose of this element is to “account for the magnitude or scope of the violation[,]” and 

the judge may analyze it by looking at, among other things, the “extent of the affected area as it 

existed at the time the citation was issued[,]” the number of persons affected, and the time and 

resources required to correct the condition. Dawes Rigging & Crane Rental, 36 FMSHRC 3075, 

3079-3080 (Dec. 2014) (citing E. Associated Coal Corp., 32 FMSHRC 1189, 1195 (Oct. 2010) 

and Watkins Eng'rs & Constructors, 24 FMSHRC 669, 681 (July 2002)); Consolidation Coal 

Co., 35 FMSHRC 2326, 2331 (Aug. 2013). Moreover, a judge should not consider an operator’s 

past practices in connection with the extensiveness factor. Id. In Dawes Rigging the 

Commission found that, because only one miner endangered himself by walking under a 

suspended boom, the violation was not extensive. Id. Here, the Secretary did not directly 

address the extent of the violation in his post-hearing brief but, at hearing in his opening 

statement, the Secretary averred that, while only one miner was injured, other miners were 

affected because these employees saw that their supervisor believed “that breaking the rules was 

okay, until it isn’t and you get hurt.” (Tr. 11). I find that the violation was not extensive in that 

it involved only one miner and was an isolated incident affecting only a small area. 

The Commission has explained that repeated similar violations, even if those prior 

violations were not a result of an unwarrantable failure, and past discussions with MSHA about a 

problem at the mine may serve to put an operator on notice that increased efforts to comply are 

necessary. IO Coal Co., 31 FMSHRC at 1353-1354. The Secretary concedes that MSHA had 

not previously cited Traylor for a violation of the standard or discussed the issue with Traylor. 

He argues that fatalgrams describing mobile equipment accidents put Traylor on notice that 

increased efforts to comply were necessary. Sec’y Br. 12-13. I reject this argument. The 

rationale underlying this aggravating factor is whether the operator has been put on notice of a 

problem at its mine that requires additional efforts to comply. Here, the Secretary did not 

establish that Traylor had been put on notice that increased efforts were necessary. 

In evaluating the operator’s efforts in abating the violative condition the judge should 

examine those abatement efforts made prior to the issuance of the citation or order. 

Consolidation Coal Co., 35 FMSHRC 2326, 2342 (Aug. 2013) (citing IO Coal Co., 31 

FMSHRC at 1356 and Warwick Mining Co. 18 FMSHRC 1568, 1574 (Sept. 1996)). The 

Secretary did not directly address this factor in his brief. Traylor asserts that, while there was no 

opportunity to abate this condition in the time between when Hicks entered the danger area and 

when he was hit, the operator did make “considerable, meaningful efforts on its own initiative to 

abate, eliminate and prevent right-of-way rule violations in advance of issuance of the 

Citation[.]” Traylor Br. 12. I agree that Traylor took steps to prevent just this type of accident 

from happening. The JHA is clearly written and indicates that, in order to avoid the hazard of an 

individual being struck by the Bobcat excavator while it was trimming, no person should be 

37 FMSHRC Page 2315
forward of the blade. (Ex. G-7 p.2). Further, Traylor provided substantial training in the form of 

orientation training, daily safety meetings, and even a full day training on all of the pieces of 

mobile equipment, each of which addressed the mine’s right-of-way rules and the JHA at issue. 

Moreover, although the Secretary asserts that Traylor did not enforce its right-of-way rules or 

discipline miners for safety violations, I find the contrary to be true. Traylor offered credible 

testimony that one of the reasons Hicks was hired was because the previous walker was 

terminated after committing a safety violation. (Tr. 120). While the Secretary asserts that 

Traylor’s failure to take disciplinary action against Hicks or Reagan is evidence of a lack of 

safety enforcement, I disagree. Sec’y Br. 9. Hicks never returned to the mine following the 

accident and it is debatable whether Reagan’s involvement in the accident amounted to safety 

violation. Reagan offered credible testimony that he did check his surroundings before backing 

up. As a result, I find that Traylor did in fact enforce its safety program. 

The obviousness of the violative condition is an important factor in the unwarrantable 

failure analysis. IO Coal Co., 31 FMSHRC at 1356. The Secretary argues, and I agree, that the 

violative condition was obvious. Hicks was well aware of the need to remain behind the blade of 

the excavator while it was in operation. Sinquefield testified that the only item in his notes from 

the interview of Hicks which was a direct quote was Hicks’ statement that he “messed up” and 

knew he “shouldn’t have been there while the machine was running.” (Tr. 36, 62; Ex. G-4 p. 7). 

Moreover, the area was lit, Hicks knew his position relative to the excavator, the equipment 

operator signaled via honking that he was preparing to move, and the backup alarm would have 

sounded. I find that the violation was obvious. 

The Commission has determined that a high degree of danger posed by a violation is an 

aggravating factor that supports an unwarrantable failure finding. IO Coal Co., 31 FMSHRC at 

1355-1356. The Secretary argues and Respondent concedes that the violative conduct presented 

a high degree of danger. I agree. Hicks’ conduct and the resulting injuries including internal 

bruising and a slight fracture, are evidence of the high degree of danger that accompanies this 

type of conduct. (Ex. G-10). Moreover, I credit the inspector’s testimony that, given the 

proximity of the miner to such a large, heavy machine, and the history of fatalities when mobile 

equipment comes into contact with miners, Hicks “was very lucky not to be dead.” (Tr. 48-49). 

In IO Coal, the Commission reiterated the well settled law that, in addition to actual 

knowledge, an operator’s knowledge of the existence of a violation may be established where the 

operator “reasonably should have known of the violative condition.” 31 FMSHRC at 1356-

1357. Here, I find that, because Hicks was an agent of the operator and, given his 

acknowledgement that he knew he should not have been in area, the operator had actual 

knowledge of the violation. (Tr. 36, 62; Ex. G-4 p. 7). 

After careful consideration of each of the above factors, I find that Traylor did not 

unwarrantably fail to comply with the mandatory standard. While the violative condition was 

obvious, potentially involved a high degree of danger, and was known to the operator through its 

agent, it was not extensive, did not exist for a long period of time, the operator did not have 

notice that greater efforts were necessary for compliance, and it had taken significant steps 

towards preventing an accident of just this kind. Accordingly, I VACATE the unwarrantable 

failure finding and modify the citation to a 104(a) citation. 

37 FMSHRC Page 2316
II. APPROPRIATE CIVIL PENALTY

Section 110(i) of the Mine Act sets forth the criteria to be considered in determining an 

appropriate civil penalty. Traylor had a history of two violations during the 15 months preceding 

the issuance of subject citation, neither of which was designated as S&S, high negligence, or 

unwarrantable failure. (Ex. G-1). Respondent is a small independent contractor that worked 

about 16,361 hours. (Exhibit A to Petition for Assessment of Civil Penalty). The violation was 

abated in good faith. The penalty assessed in this decision will not have an adverse effect upon 

its ability to continue in business. The Respondent stipulated to the Secretary’s gravity finding 

that the violation was reasonably likely to result in a fatal accident, that one person was affected, 

and that the violation was S&S. The negligence findings are set forth above. 

While the Secretary offered testimony and documentary evidence in support of his 

special assessment, given that I have modified the citation to a 104(a) citation with moderate 

negligence, I need not address those arguments. The Secretary did not establish that this 

violation was “particularly serious or egregious[.]” Coal Employment Project v. Dole, 889 F2d. 

1127, 1129-30 (D.C. Cir. 1989). The Special Assessment Narrative Form introduced into 

evidence at hearing shows that, had this citation been regularly assessed, the penalty would have 

been $2,000.00. (Ex. G-14 p. 3). Moreover, if Inspector Sinquefield had determined that the 

violation was the result of Traylor’s moderate negligence, the Secretary’s proposed penalty 

would have been about $436.00, before any reduction for good faith abatement. 30 C.F.R. § 

100.3. In light of my findings set forth above, I find that a penalty of $1,000.00 is appropriate 

for this violation. I have given special consideration to the gravity of the violation in assessing 

this penalty. 

III. ORDER

For the reasons set forth above, Citation No. 8597320 is MODIFIED to a citation issued 

under section 104(a) of the Mine Act and the degree of negligence is reduced to moderate. In all 

other respects the citation is AFFIRMED. Traylor Mining, LLC. is ORDERED TO PAY the 

Secretary of Labor the sum of $1,000.00 within 30 days of the date of this decision. 5

/s/ Richard W. Manning 

Richard W. Manning 

Administrative Law Judge 

5

 Payment should be sent to the Mine Safety and Health Administration, U.S. Department 

of Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390. 

37 FMSHRC Page 2317
Distribution: 

Beau Ellis, Esq., Office of the Solicitor, U.S. Department of Labor, 1244 Speer Blvd., Suite 515, 

Denver, CO 80204-3516 (Certified Mail) 

Jason W. Hardin, Esq., Fabian & Clendenin, 215 South State St. Suite 1200, Salt Lake City, UT 

84111-2323 (Certified Mail) 

RWM 

37 FMSHRC Page 2318
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9950 / FAX: 202-434-9949 

October 15, 2015 

DECISION AND ORDER

Appearances: Robert Alan Kelly, Esq., Office of the Solicitor, U.S. Department of 

Labor, Kansas City, Missouri, for the Petitioner 

Jay A. Jeppesen, Owner of Jeppesen Gravel, Sibley, Iowa, pro se 

Before: Judge Rae 

This case is before me on a petition for assessment of civil penalties filed by the 

Secretary of Labor, acting through the Mine Safety and Health Administration (“MSHA”), 

against Jeppesen Gravel pursuant to sections 105 and 110 of the Federal Mine Safety and Health 

Act of 1977, 30 U.S.C. §§ 815 and 820 (the “Mine Act” or the “Act”). A hearing was held in 

Sioux Falls, South Dakota on July 14, 2015 at which the parties presented testimony and 

documentary evidence. The parties submitted post-hearing closing statements as well. 

I. Background

Jay Jeppesen owns and operates Jeppesen Gravel as an unincorporated sole

proprietorship located in Osceola County, Iowa. The mine has been in business since the 1950s 

operated by Jeppesen’s father until Jeppesen took it over in 1975 and has continued in operation 

to this day. The gravel pit is a part-time endeavor and one of several other businesses Jeppesen 

runs on the property including a borrow pit. On May 1, 2012 and October 12, 2012, inspectors 

for MSHA made inspections of the Jeppesen Pits and issued various orders and citations for 

violations of mandatory safety and health standards. Jeppesen was given a period of time in 

which to abate the conditions. When the inspectors returned to the mine, either the violations had 

not been abated or Jeppesen denied the inspectors entry to the mine to inspect for compliance. 

Jeppesen was ordered to withdraw from any affected areas or equipment, if it had not already

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

v. 

JEPPESEN GRAVEL, 

 Respondent 

 CIVIL PENALTY PROCEEDING 

Docket No. CENT 2014-298-M 

A.C. No. 13-02285-344601

Mine: Jeppesen Pits 

37 FMSHRC Page 2319
been so ordered, as a result. MSHA inspectors Troy Van Wey1

 and Jeffrey Breon2 then returned 

to the mine on July 22, 2013 and issued 18 violations, one of which was vacated prior to hearing. 

Of the 17 remaining, one was issued for a denial of entry and the remainder for operating the 

withdrawn equipment or in the affected areas without termination of the outstanding withdrawal 

orders. For the reasons set forth below I find the violations have been established and the 

penalties are assessed as set forth herein. 

II. Right of Entry Violation

A. Citation 6550468

MSHA inspector Troy Van Wey issued citation 6550468 on October 1, 2012 for a

violation of section 103(a) of the Mine Act. The lengthy narrative portion of this citation reads in 

pertinent part: 

Jay Jeppesen, owner, interfered with the right of entry of MSHA inspectors 

Jeffrey Breon and Troy Van Wey, both authorized representatives of the 

Secretary, as they sought to inspect the Jeppesen Pits mine site pursuant to 

Section 103(a) of the Mine Act. When inspectors attempted to conduct their 

inspection, Mr. Jeppesen stated that they were trespassing onto private property. 

Mr. Jeppesen then contacted the Osceola County Sheriff’s Office to have the 

authorized representatives arrested and told the Inspectors to wait in their van 

until the patrolman arrived instead of beginning the inspection. The Osceola 

Patrol Deputy arrived at the scene and remained there to keep the peace ... Once 

the inspectors began their inspection Mr. Jeppesen and his son, Alan, hindered 

and interfered with the inspection. Jay Jeppesen moved into the close personal 

space of Inspector Van Wey and yelled at him. When Inspector Van Wey asked 

[him] to back up out of his personal space, Alan Jeppesen approached ... from the 

other side and stuck a recording device within one inch of [the inspector’s] face. 

At another point Alan Jeppesen pushed the Federal Inspectors out of the way. 

When Alan was told that if he pushed the Inspectors again it would result in a 

citation for intimidation, Alan responded that he had not pushed the Inspectors but 

if they wanted to see a push, he ... would push both of them and they would know 

they had been pushed ... 

1

 Van Wey has been an MSHA inspector for 10 years, and was assigned as the field 

office supervisor of the Ft. Dodge, Iowa office for four years, including the timeframes pertinent 

to this case. He has conducted approximately 200 mine inspections and has 13 years’ prior 

experience as a miner. Tr. 14-18. 

2

 Breon was an aircraft mechanic in the U.S. Air Force for 11 years upon graduation from 

high school. He has 12 years of experience as a miner and became an MSHA inspector in 2010. 

He has performed approximately 150 inspections of mines. Tr. 106-09.

37 FMSHRC Page 2320
Denial of entry has been a recurring and persistent problem at this operation over 

the years. Most recently on June 11, 2012, citation no. 8668129 was issued to Jay 

Jeppesen for a violation of Section 103(a) of the Mine Act. 

Ex. S-3. The negligence was assessed as the result of reckless disregard with a proposed special 

assessment of $4,000.00. 

Section 103(a) of the Act provides that any authorized representative of the Secretary 

“shall have a right of entry to, upon, or through any coal or other mine” for the purpose of 

making any inspections under the Mine Act. 30 U.S.C. § 813(a). The refusal to permit an 

inspection is a violation of section 103(a) for which a penalty must be imposed. Waukesha Lime 

& Stone Co., 3 FMSHRC 1702, 1703 (July 1981). A denial of entry may occur when an operator 

impedes, interferes with, hinders or delays an inspection of a mine. Veris Gold USA, Inc., 35 

FMSHRC 2977 (ALJ) (Sept. 2013). MSHA inspectors are not required to subject themselves to 

confrontation or physical harm in order to carry out an inspection. Calvin Black Enterprises, 7 

FMSHRC 1151, 1157 (Aug. 1985). The Commission has recognized that “denial of access to an 

MSHA inspector ... is an action not to be taken lightly.” Tracey & Partners, 11 FMSHRC 1457, 

1464 (Aug. 1989). 

Jeppesen has a long and contentious history with MSHA which is relevant to the 

determination of whether Jeppesen’s conduct here rises to the level of a denial of the right of 

entry to the mine as provided by Section 103(a) of the Mine Act and to substantiate the 

negligence and special assessment proposed by the Secretary. A summary of this history, as 

outlined in detail in Judge Manning’s decision in Jeppesen Gravel, 30 FMSHRC 324, 325-30 

(Apr. 2008) (ALJ), bears repeating here. 

As a result of nearly two years of MSHA’s inability to gain Jeppesen’s cooperation in 

filing legal identity papers, consenting to an inspection without intimidating and harassing the 

inspectors, and participating in a Compliance Assistance Visit (“CAV”), the U.S. Attorney’s 

office was contacted for assistance. The end result was that Jeppesen entered into a Consent 

Judgment in November 2004 issued by the U.S. District Court for the Northern District of Iowa 

Western Division in which he was ordered to permit representatives of the Secretary of Labor 

entry to, upon, and through Jeppesen Gravel mines without further direct or indirect interference, 

hindrance, or delay for the purpose of making inspections. It was further ordered that any 

inspector may request the presence of a U.S. Marshall to accompany the inspector should the 

inspector encounter any violation of the Judgment. Ex. S-33. 

Following the entry of the Judgment, in June 2005, MSHA returned to the mine to 

conduct a CAV and Jeppesen failed to cooperate. Several violations were found and the 

inspectors attempted to speak with Jeppesen to discuss remediation of the conditions. Jeppesen 

actively avoided them and continued to operate the mine without making what would have been 

very inexpensive repairs. As a result of his continued refusal to allow inspectors on the property, 

he was issued violations for not abating 104(b) orders in October 2005. In January 2006, an 

Assistant U.S. Attorney accompanied by a U.S. Marshall and an Osceola County deputy sheriff 

went to the mine to encourage Jeppesen’s compliance. The AUSA explained the process for 

contesting citations and made a comment that it would likely cost Jeppesen only $1,500.00 to 

37 FMSHRC Page 2321
abate the outstanding violations. At that point, Jeppesen became confrontational and refused to 

cooperate in an inspection so they left the property. 

In July 2006, MSHA went to the mine to terminate the outstanding violations. Alan 

Jeppesen was present initially but he immediately parked the loader he was using and drove 

away. Jay Jeppesen then arrived and ordered the inspectors off the property. Jeppesen’s actions 

were so severe that the inspectors left to prevent an altercation. In August 2006, MSHA 

attempted to make a compliance visit accompanied by a county deputy sheriff. Jeppesen was 

asked to operate equipment so that the brakes, horns and alarms could be tested. He refused and 

told the inspectors to leave. 

Jeppesen was cited for denial of entry in May 2004, June 2006, July 2006 and August 

2006 as a result of his argumentative and intimidating behavior as described above. Judge 

Manning found Jeppesen had repeatedly harassed and attempted to intimidate MSHA inspectors 

while in performance of their duties. He noted that Jeppesen did not dispute the violations at 

trial. Based upon Jeppesen’s claimed inability to pay the assessed penalties, he was given an 

82% reduction in penalties for the 16 violations. 30 FMSHRC at 336-39. 

On December 11, 2013, Jeppesen entered into a settlement agreement with the Secretary 

that included another violation of 103(a) for denial of entry on June 11, 2012 as well as 36 

additional violations including each of the 16 underlying violations at issue herein. He agreed to 

pay reduced penalties amounting to $28,500.00. Ex. S-37. 

The instant 103(a) violation occurred on October 1, 2012 but was not included in the 

settlement order of December 11, 2013. MSHA inspectors Van Wey and Breon traveled to the 

Jeppesen mine to conduct an inspection. They accessed the property via the gravel road located 

at 719 8th Street, the official mine address provided by Jeppesen to MSHA. Once on site, they 

contacted Jeppesen by cell phone to begin their inspection. Jeppesen, however, did not arrive 

until approximately thirty minutes later and immediately commenced yelling and screaming at 

the inspectors telling them that they were trespassing. He then called 911 and while awaiting the 

arrival of the deputy sheriff informed the inspectors that they were not permitted to begin their 

inspection. The two inspectors waited inside their vehicle for the sheriff to come. When deputy 

sheriff Nate Krikke arrived, Jeppesen instructed him to arrest the two inspectors and tow their 

vehicles from the property. After Van Wey and Breon properly identified themselves to Krikke, 

the deputy told Jeppesen that he would not do so. Jeppesen then attempted to send Krikke away 

but the deputy took it upon himself to remain to keep the peace. Jay Jeppesen continued to harass 

the inspectors by getting up in Van Wey’s face yelling and screaming at him while his son, Alan 

Jeppeson, pointed a video camera in Van Wey’s face and video-recorded the entire inspection. 

Jay Jeppesen continued to yell at the inspectors and raised his arms in the air in an attempt to 

physically prevent their access and to intimidate them.3

 At one point Alan Jeppesen assaulted 

Van Wey by pushing his shoulder into the inspector’s chest while Jay Jeppesen stood by and 

laughed at Van Wey. This incident was verified by Deputy Krikke’s report and testimony. Tr. 

202-06; Ex. S-4. I find the inspectors’ and Krikke’s version of the facts to be credible.

3

 Jay Jeppesen is a tall and heavy man. The inspectors are of average height and weight. I 

find it objectively reasonable that they would feel physically threatened and intimidated by 

Jeppesen’s actions.

37 FMSHRC Page 2322
Jeppesen did not deny the facts as presented by Krikke and Van Wey but asserted at trial 

that he was upset with the manner in which the inspectors arrived on the property. He testified 

that there were children playing outside the house adjacent to the road the inspectors allegedly 

sped down and he was concerned for their safety. Krikke, however, credibly testified that there 

were no children to be seen in the area. Tr. 208. The inspectors testified that they had already 

arrived at the mine and had been waiting approximately 30 minutes when Jeppesen appeared 

which makes it highly unlikely anyone saw the inspectors as they drove past the house. They 

further confirmed that Jeppesen did not raise any concerns about children at the time of the 

attempted inspection; the first time this issue was raised was at trial. Jeppesen’s other objection 

to MSHA’s presence on the property was that they used the 3⁄4-mile-long private road to reach 

the mine. It was his contention that MSHA should be compelled to use a helicopter instead. 

I find that Jeppesen’s assertion that he was fearful for the safety of children was an 

invention conjured up for trial. His opinion that MSHA should arrive by helicopter to perform its 

inspections does not warrant comment. The road used by MSHA is the one provided by Jeppesen 

himself as the legal address of the mine and the only means of access by motor vehicle. 

I find the violation to be very serious particularly in light of the many instances of such 

conduct to the point the Secretary had to request the intervention of the Federal District Court, 

the U.S. Attorney’s Office, the U.S. Marshall service, and the county sheriff’s office to impress 

upon Jeppesen the gravity of his actions and the absolute right of the inspectors to enforce the 

Mine Act. Unfortunately, it appears that Jeppesen has no genuine interest in cooperating with 

MSHA or complying with a federal order. Jeppesen’s conduct was egregious and completely 

uncalled for. He clearly engaged in harassment, intimidation, and threats of physical harm 

towards the two inspectors to prevent or unreasonably delay their entry to the mine. I find the 

violation has been established. 

B. Negligence

The Commission has held “that an operator’s intentional violation constitutes high

negligence for penalty purposes.” Topper Coal Co., Inc., 20 FMSHRC 344, 350 (Apr. 1998) 

(quoting Consolidation Coal Co., 14 FMSHRC 956, 969-70 (June 1992)). It is clear that 

Jeppesen’s conduct on October 1, 2012 was a continuing display of his complete contempt and 

disregard for MSHA’s authority to inspect the mine for health and safety violations and to 

enforce the Act. His conduct was egregious and both his and his son’s actions constituted 

criminal assault and battery on Van Wey as well as a violation of Section 103(a) of the Act. 

Their behavior was designed to intimidate and harass the inspectors and presented a real 

potential for physical harm had it not been for the presence of the deputy sheriff on the property 

during the inspection. There is no doubt Jeppesen’s conduct was intentional and deliberate and 

constitutes recklessness. 

The Secretary has proposed a special assessment for this violation in the amount of 

$4,000.00. Part 100 of the Secretary’s regulations provides MSHA with the authority to waive 

the regular assessment process when certain conditions warrant an enhanced penalty. 30 C.F.R. § 

100.5(a). Such enhanced assessments are designed for particularly serious or egregious 

violations. Coal Employment Project v. Dole, 889 F.2d 1127 (D.C. Cir. 1989). The severity of 

conduct at the most extreme end of the spectrum may involve physical assault of an inspector 

37 FMSHRC Page 2323
resulting in serious injury; however, lesser degrees of conduct may justify a special assessment. 

Here, while no injury occurred, Jeppesen’s conduct rose to the level of an assault on Van Wey 

while his son’s conduct constituted a battery. Jeppesen’s actions were intentionally designed to 

intimidate the inspectors and posed a threat of imminent physical harm. Had it not been for 

Krikke’s arrival, physical harm may well have occurred. Jeppesen’s actions rose to the highest 

level of egregious conduct and the Secretary’s proposed special assessment is well deserved. The 

appropriate penalty will be set forth below. 

III. Violations for “Working in the Face of an Order”

The following 16 violations were issued under Section 104(a)4 of the Mine Act for

“working in the face of a prior order” rather than violations of mandatory health and safety 

standards. Therefore, gravity, significant and substantial,5

 and unwarrantable failure6

designations do not apply. 

Twelve of the underlying violations issued to Jeppesen were originally written as Section 

104(a) citations for violations of mandatory safety standards, five of which were significant and 

substantial (“S&S”). Having failed to abate the cited hazards within the prescribed time period, 

Jeppesen was then issued Section 104(b)7 orders mandating withdrawal from the cited equipment 

and areas until the violations were abated and MSHA was called in to terminate the orders. The 

remaining four are predicated upon Section 104(d) orders8 that were originally assessed as S&S 

and unwarrantable failure violations. On July 22, 2013, when MSHA inspectors returned to the 

mine they found that Jeppesen had continued to use the equipment or areas affected by the prior 

4

 Section 104(a) provides, in pertinent part, that if during an inspection of any mine the 

inspector finds the operator has violated the Act, or any mandatory standard, he shall issue a 

citation to the operator stating the nature of the violation. 30 U.S.C. § 814(a). 

5

 A violation is S&S if it is of such nature as could significantly and substantially 

contribute to the cause and effect of a health or safety hazard. 30 U.S.C. § 814(d). A violation is 

properly designated as S&S if there exists a reasonable likelihood that the hazard contributed to 

will result in an injury or illness of a reasonably serious nature. Cement Div., Nat’l Gypsum Co.,

3 FMSHRC 822, 825 (Apr. 1981). 

6

 Unwarrantable failure is defined as reckless disregard, intentional misconduct, 

indifference, or a serious lack of reasonable care. Emery Mining Corp., 9 FMSHRC 1997, 2003 

(Dec. 1987). 

7

 Section 104(b) of the Mine Act states that upon any follow-up inspection of a mine, if a 

violation has not been totally abated within the prescribed time, an inspector shall determine the 

extent of the area affected by the violation and shall promptly issue an order requiring the 

withdrawal of all persons from the area until it is abated. 30 U.S.C. § 814(b). 

8

 Section 104(d) of the Mine Act is similar to 104(b) in that it requires the inspector to 

issue an order withdrawing all persons from the affected area, but it pertains to violations that are 

S&S and/or an unwarrantable failure to comply with a health or safety standard rather than 

violations that constitute a failure to abate a prior violation. 30 U.S.C. § 814(d). 

37 FMSHRC Page 2324
orders and had not contacted MSHA to terminate any of the orders.9

 These “working in the face 

of a withdrawal order” violations were issued as a result by Inspectors Breon and Van Wey. 

 

Each of the underlying 16 violations were conceded by Jeppesen and incorporated into 

the aforementioned settlement agreement of December 11, 2013. Ex. S-37. Jeppesen did not 

contest any of the withdrawal orders in accordance with Commission Procedural Rule 20.10

Therefore all prior underlying violations and the propriety of any subsequent withdrawal orders 

are admitted and unreviewable at this time. 

 

Jeppesen has raised an overarching claim that he was denied a Compliance Assistance 

Visit (“CAV”) prior to being issued many of the underlying citations herein. Because Jeppesen 

entered into the settlement agreement in December 2013, this issue is now moot. I would, 

nevertheless, find that such a claim does not rise to the level of a defense. Jeppesen neither 

contacted MSHA to request a CAV on any of the underlying citations or orders nor did he 

cooperate in any of the CAVs MSHA attempted to conduct in the past, as outlined in Judge 

Manning’s decision. A CAV is available to an operator at the onset of operations or when putting 

new equipment or a new plant into service. Any violations found are written up in a notice and 

the operator is given an opportunity to correct the conditions. If the corrections are not made in a 

relatively short period of time, the notice becomes a regular citation. Because Jeppesen had been 

in business for 20 to 30 years before the issuance of the initial underlying citations and orders, 

which did not encompass any new equipment recently put into service, he was not entitled to a 

CAV. Tr. 104. Even if he had been, the issue is irrelevant as the conditions went unabated for 

many, many months and would have been converted into regular violations. MSHA’s failure to 

conduct a CAV would not have precluded the issuance of the subsequent withdrawal orders or 

the citations now at issue. 

 

Jeppesen also has raised an inability to pay for the necessary repairs as a reason for not 

having abated the hazards in question. However, an inability to pay is relevant only to the issue 

of penalties, not the necessity to abate the condition. See Asarco, Inc. v. FMSHRC, 868 F2d 1195 

(10th Cir. 1989) (finding that mine operators are strictly liable for violations of safety and health 

standards). 

Additionally, Jeppesen claimed that he was unaware of the requirement to contact MSHA 

in order to terminate a withdrawal order. Tr. 332. I find this claim to be without merit. An 

operator is charged with the responsibility to know, understand and adhere to the Act, the 

mandatory health and safety standards, and all applicable regulations if it is to engage in mining. 

Jeppesen clearly understands the proper procedure for terminating prior citations and orders. He 

has been issued many of both citations and orders in the past as demonstrated by the MSHA 

Violation History Report and prior ALJs’ decisions and settlement order. Jeppesen Gravel, 32 

FMSHRC 1749 (Nov. 2010) (ALJ); Jeppesen Gravel, 30 FMSHRC 324 (Apr. 2008) (ALJ); Exs. 

 9

 Any order issued under any subsection of Section 104 remains in effect until it is 

modified, terminated or vacated by the Secretary or his authorized representative or by the 

Commission or courts. 30 U.S.C. § 104(h). 

10 Commission Rule 20 provides all contests of citations or orders issued under Section 

104 must be filed by the operator within 30 days of receipt. 29 C.F.R. § 2700.20.

37 FMSHRC Page 2325
S-34, 35, 37, 44. He has been given detailed in-person instructions by the U.S. Attorney on how

to properly contest violations. He has been offered the opportunity to participate in close-out

conferences and CAVs by MSHA. In short, he has been provided more opportunities than the

average small mine operator to familiarize himself with the requirements under the Mine Act. He

is clearly not an unintelligent person; he has operated this mine as well as several other

businesses for decades. He was savvy enough to have obtained and submitted a copy of the U.S.

Department of Labor’s “Small Mine Assessment Process Summary” Booklet published by the

DOL and National Mine Health and Safety Academy in his pretrial hearing report. Ex. R-23. I

find Jeppesen’s allegation is disingenuous.

Jeppesen did not seriously contest that he placed the withdrawn areas or equipment back 

into service without having the withdrawal orders terminated. At trial he admitted to having 

operated the mine in August 2012, the screen plant in November 2012, and the wash plant, 

including the cited John Deere tractor, during the two months preceding the July 2013 

inspection. Tr. 72-74, 133-34, 138-39, 143, 150, 180, 269-70. He had been observed operating 

the excavator, wash plant and tractor upon the inspectors’ arrival at the mine on July 22, 2013. 

Tr. 62, 71-72, 131, 134, 236-37, 252, 277, 285. 

Therefore, the only issues remaining are the appropriate level of negligence and the 

proper penalty to assess. 

A. Violations Fully or Partially Abated

Inspector Breon assessed each of the “working in the face of a withdrawal order”

violations as high negligence violations.11 His reasoning was that Jeppesen clearly knew of the 

hazardous conditions cited in the withdrawal orders and in many instances in a citation issued 

prior to the order, yet he then knowingly and intentionally ignored the orders and continued to 

operate the mine before they were terminated. Many of the conditions would have required only 

minimal effort on Jeppesen’s part to make a telephone call for MSHA to terminate the orders. 

 The Secretary has acknowledged that Jeppesen had fully abated four of the violations 

and partially abated another three prior to MSHA’s return visit on July 22, 2013. The Secretary 

concedes that Jeppesen’s actions with regard to the relevant seven citations may be considered in 

mitigation of the high negligence, moderate negligence being more appropriate.12 See Sec’y’s 

Post-Trial Closing Statement 14.

Jeppesen has intentionally and repeatedly thumbed his nose at MSHA’s authority and 

disregarded his responsibility to maintain a safe and healthful working environment, which is 

deserving of a high negligence designation. However, I agree with the Secretary’s recognition 

11 High negligence is appropriate when an operator knew or should have known of the 

violative condition or practice, and there are no mitigating circumstances. 30 C.F.R. § 100.3, 

Table X. 

12 Moderate negligence is appropriate where “the operator knew or should have known of 

the violative condition or practice, but there are mitigating circumstances.” Id.

37 FMSHRC Page 2326
that Jeppesen’s eventual, although late and in some instances insufficient, efforts at compliance 

are a mitigating factor and I find moderate negligence is appropriate. 

The citations modified to moderate negligence and the underlying facts are: 

1. Citation No. 8737364/Ex. S-10 

The original citation, No. 8667978/Docket No. CENT 2013-188-M, was issued on 

October 1, 2012 as a non-S&S 104(a) violation. The cited standard is 30 C.F.R. § 56.12008, 

which requires that electrical cables enter metal frames outfitted with proper fittings or bushings. 

Ex. S-10d. When the inspectors returned on October 22, 2012, they found no attempt to abate the 

citation had been made within the time allotted and issued a 104(b) order taking the 480-volt 

power cable out of service. Ex. S-10e. Inspectors Van Wey and Breon testified that when they 

returned on July 22, 2013, they found that Jeppesen had abated the condition but could not say 

when. 

2. Citation No. 8737367/Ex. S-13 

The original citation, No. 8667980/Docket CENT 2013-188, was issued on October 1, 

2012, as an S&S 104(a) citation. The citation was issued on the blue stacking conveyor for a 

violation of 30 C.F.R. § 56.14107(a) requiring moving machine parts be guarded to prevent 

persons from contacting fan blades, shafts, gears or any other similar parts that could cause 

injury. There were numerous pinch points found as a result of exposed moving parts. Ex. S-13d. 

On October 22, 2012 Breon found that nothing had been done to install guards and a 104(b) 

order was issued. Ex. S-13e. Having returned in July 2013, the inspectors found that a guard had 

been installed; Jeppesen claimed this had been accomplished in October 2012. 

 

3. Citation No. 8737370/Ex. S-16 

The original citation, No. 8668082/Docket CENT 2012-724, was issued on May 1, 2012 

as an S&S 104(a) citation. The citation was issued on a John Deere tractor in violation of 30 

C.F.R. § 56.14107(a), which requires moving machine parts be guarded to prevent persons from 

contacting fan blades, shafts, gears or any other similar parts that could cause injury. Abatement 

was due, as twice extended, by May 26, 2012. Ex. S-16d. On June 11, 2012, a 104(b) order was 

issued when Jeppesen would not permit the MSHA inspector to enter the mine to inspect the 

tractor for compliance with the citation. The tractor was withdrawn from service until an 

inspector could observe the tractor. Ex. S-16e. Upon the return visit in July 2013, the inspector 

found that a guard had been installed to protect the cooling fins and drive belt. Jeppesen stated it 

had been installed two years earlier, which is obviously not true, as the original citation was 

issued just 14 months earlier. 

4. Citation No. 8737372/Ex. S-18 

The underlying citation, No. 8668084/Docket 2012-724, was issued on May 1, 2012 as 

an S&S 104(a) citation under 30 C.F.R. § 56.11001 for a lack of safe access to the water source 

used to prime the dewatering pump. Ex. S-18d. On June 11, 2012, inspectors were refused access 

to the mine to observe the condition and a withdrawal order was issued for the dewatering pump. 

37 FMSHRC Page 2327
Ex. S-18e. When the inspectors returned in July 2013, Jeppesen had abated the condition at some 

unknown time by obtaining water using the excavator bucket rather than by hand. 

5. Citation No. 8737365/ Ex. S-11

The underlying citation, No. 8667979/Docket CENT 2013-188, was issued to Jeppesen 

on October 1, 2012 as an S&S 104(a) violation of 30 C.F.R. § 56.11012 when Breon found the 

west side elevated travelway of the wash plant did not have a railing, barrier or cover over a 

large opening at a height of approximately seven feet above ground level. The top of the ladder 

accessing the area was also not protected in any way. Tr. 93-94; Ex. S-11c. On October 22, 2012 

Breon found that nothing had been done to correct this hazard and he issued withdrawal order 

No. 8737209. Ex. S-11d. Jeppesen at some time prior to the inspector’s return in July 2013 had 

placed a chain across the opening on the travelway, but Breon felt the chain was not sufficiently 

stable, and nothing had been done to protect the ladder. Tr. 97-98. Jeppesen has not fully abated 

the condition to this inspector’s knowledge. Tr. 99. 

6. Citation No. 8737368/Ex. S-14

The underlying citation, No. 8667976/Docket CENT 2013-188, was issued on October 1, 

2012 as an S&S 104(a) violation of 30 C.F.R. § 56.14107(a) for failure to guard the drive belts 

and sheaves on the east and west side of the wash plant. Ex. S-14d. When Jeppesen failed to 

make any corrections, he was issued a withdrawal order on the drive belts and sheaves of the 

wash plant on October 22, 2012. Ex. S-14e. Jeppesen thereafter partially abated the violation by 

guarding the west side of the exposed parts but not the east side. Tr. 172-73.13

7. Citation No. 8737371/Ex. S-17

The first citation, No. 8668083/Docket CENT 2012-724, was issued on May 1, 2012 as 

an S&S 104(a) citation under 30 C.F.R. § 56.14107(a) for failure to provide a guard on the PTO 

shaft of the dewatering pump. Ex. S-17d. A withdrawal order was issued on this equipment for 

failure to abate on June 11, 2012 as a result of Jeppesen denying the inspectors entry to the mine 

to re-inspect the equipment. Tr. 231-32; Ex. S-17e. When Breon and Van Wey returned in July 

2013, they found that Jeppesen had guarded part of the shaft by installing some expanded metal 

to cover the knuckle ends to some extent but not the shaft itself. Tr. 232-33.14

13 Jeppesen questioned the need for a guard on the equipment because he alleged that it 

was over seven feet above the ground. Tr. 174. However, the bottom part of the guarded area 

was clearly within easy arm’s reach when standing on level ground. Tr. 175-77; Ex. S-14e 

photograph 344. The issue is, however, moot at this time as Jeppesen admitted to this violation in 

the December 11, 2013 settlement order referenced herein. Ex. S-37. 

14 Jeppesen questioned whether the shaft required a guard. However, the underlying 

violation was admitted by him and included in the December 11, 2013 settlement agreement and 

is therefore final. Tr. 233-34; Ex. S-37.

37 FMSHRC Page 2328
B. Unabated Violations

Each of the following violations was designated as high negligence for the same reasons

as were all the other “working in the face of a withdrawal order” violations. Jeppesen has 

complete control and responsibility over all operations at the mine including correction of 

hazardous conditions. Tr. 160. Jeppesen knew of the hazards based upon the prior citations, yet 

as of July 2013 he had done nothing to correct them and he had not called MSHA to terminate 

the orders on the ones he had abated. Tr. 149-50. In many instances, the cost or effort involved to 

abate the condition was minimal at best. Tr. 75-76. 

I agree with the Secretary’s assessment of high negligence as stated above based upon 

Jeppesen’s willful failure to abate longstanding hazardous conditions and his complete disregard 

for MSHA’s authority and for safety at his mine with respect to the following citations: 

1. Citation No. 8737363/Ex. S-9

The first citation, No. 8667977/Docket CENT 2013-188, was issued on October 1, 2012 

by Breon as a non-S&S violation 104(a) violation of 30 C.F.R. § 56.12018 because the main 

480-volt electrical disconnect box for the wash plant was not labeled to show what it controlled.

The termination due date was the following day. Ex. S-9d. When Breon returned 21 days later,

the box was not labeled and a 104(b) withdrawal order was issued. Ex. S-9e. On July 22, 2013,

the box was still not labeled, but as stated above, the mine including the wash plant had been in

operation for approximately two months. Tr. 71-74. Eight minutes after this instant citation was

issued, Jeppesen used a Sharpie® marker to label the electrical disconnect at the inspector’s

suggestion. Tr. 71, 74.

Breon noted that Jeppesen could have easily abated the violative condition earlier by 

simply using a marker to label the box but failed to do so in nine months. Tr. 75-76. 

2. Citation No. 8737366/Ex. S-12

On May 1, 2012, Citation No. 8668095/Docket CENT 2012-724 was issued as a nonS&S 104(a) violation under 30 C.F.R. § 56.4201(a)(1)15 for a failure to perform the yearly 

inspection on a fire extinguisher located in the office/electrical van. Ex. S-12d. A withdrawal 

order was issued on June 11, 2012 when Jeppesen refused the inspector’s entry to the mine to 

verify compliance. Ex. S-12e. On July 22, 2013, the extinguisher had not yet been inspected but 

was still available for use. Tr. 158. Van Wey testified that many volunteer fire departments will 

send someone to perform the annual inspections free of charge. Small mine operators often 

purchase a new extinguisher at Walmart and put it into service on the abatement due date. Tr. 

157. Jeppesen had done neither.

15 The proper code section for this violation is § 56.4201(a)(2). However, the narrative 

portion of the citation clearly defines the violation and it was admitted by Jeppesen in the earlier 

settlement order. Ex. S-37.

37 FMSHRC Page 2329
3. Citation No. 8737369/Ex. S-15 

The original order, No. 8667985/Docket CENT 2013-284, was issued on October 2, 2012 

under 30 C.F.R. § 56.9300(a) as a 104(d)(2) violation when Breon found there was no berm in 

numerous locations along the access road around the mine site. The order was issued as an S&S 

violation and an unwarrantable failure, apparently based upon the extensiveness of the violation, 

the number of previous violations, the open and obvious nature of the condition, and the 

likelihood and gravity of injury presented. Ex. S-15d. Jeppesen accepted responsibility for this 

violation as issued. Ex. S-37. When Breon returned to the mine in July 2013, he found that there 

were still extensive areas around the mine lacking berms. Tr. 183. Tire tracks were visible just 

feet away from the drop-off to the plant pond. Tr. 185-86. Jeppesen had the equipment and 

material on-site to easily build berms. There were locations where he could have simply lowered 

the blade of the excavator to the ground and pushed the material up into a berm. It would have 

taken him just a few hours to abate the violation. Tr. 182-83. 

 

4. Citation No. 8737373/Ex. S-19 

The original order, No. 8668101/Docket CENT 2012-787, was issued on May 5, 2012 

under 30 C.F.R. § 56.18002(a) as an S&S, unwarrantable failure 104(d)(1) violation for a failure 

to conduct an adequate workplace examination of the wash plant. Ex. S-19c. Notations on the 

pages of a calendar were being used to record examinations and several obvious and dangerous 

conditions that had been cited over a long period of time had not been addressed. The violation 

was assessed as S&S and unwarrantable failure. Ex. S-19c. Jeppesen admitted to the violation 

and it was incorporated into the December 11, 2013 settlement order. Ex. S-37. When Breon 

returned to the mine in July 2013, Jeppesen was still not conducting workplace examinations of 

the wash plant but continued to use it. Van Wey testified that the Small Mines Workbook is used 

by inspectors to educate new owners of small mines as to the requirements for workplace 

examinations, including the necessity of conducting and documenting these examinations. Tr. 

240-41. The booklet sets forth the standard, suggests the manner in which the operator should 

document the results of the examinations, and informs the operator that the records should be 

maintained for one year on-site. Tr. 240-42. Based upon the volume of open and obvious 

violations found, it was readily apparent to Van Wey that Jeppesen had not been performing the 

examinations. Jeppesen could provide no documentation of having done them. Tr. 243. 

 

5. Citation No. 8737374/Ex. S-20. 

Jeppesen was initially issued Citation No. 8667986/Docket CENT 2013-188 on October 

2, 2012 as a non-S&S 104(a) violation for using an indoor-rated 480-volt electrical cable to 

supply power to the screen plant in violation of 30 C.F.R. § 56.12004. This presented a danger of 

inner conductors being damaged due to weather and mechanical damage. Tr. 254-55. When 

Breon returned three weeks later, Jeppesen had not replaced the cable with an outdoor-rated one 

and a 104(b) order was issued. Tr. 255; Ex. S-20e. Nine months later, in July 2013, Breon found 

Jeppesen had still not replaced the cable. Instead he had sprayed the indoor cable with Flex 

Seal® rubberized coating, which is not designed to protect electrical cables from damage. The 

material came off in the inspector’s hand when he touched it. Tr. 259; Ex. R-14. When 

confronted with this fact, Jeppesen laughed about it and said he had painted the cable black. Tr. 

260. 

37 FMSHRC Page 2330
6. Citation No. 8737375/Ex. S-21

The underlying citation, No. 8667983/Docket CENT 2013-188, was issued as a non-S&S 

104(a) violation on October 2, 2012 for a violation of 30 C.F.R. § 56.4201(a)(1) because the fire 

extinguisher in the electrical van had not been visually inspected at least once each month to 

ensure it was fully charged and operational. Ex. S-21c. The tag on the extinguisher that is 

normally dated and initialed when the inspection is done was missing such demarcations for 

September and October 2012 and thereafter, which resulted in a 104(b) order being issued on 

October 22, 2012 for continued failure to make the visual inspections. Tr. 262-64; Ex. S-21d. 

Jeppesen still had not made the requisite visual inspections and admitted to having no 

documentation of having done any when the inspectors returned ten months later, which led to 

the issuance of the instant citation.16 Tr. 265; Ex. S-21. 

7. Citation No. 8737376/Ex. S-22

The initial record-keeping citation, No. 8668099/Docket CENT 2012-724, was issued as 

a non-S&S 104(a) violation on May 1, 2012 for not having task training records in violation of 

30 C.F.R. § 46.9(g). Ex. S-22d. Five weeks later inspectors returned and asked for the records 

and again Jeppesen could not produce them. Tr. 276. A 104(b) order was issued on June 11, 

2012. Tr. 276; Ex. S-22e. Had Jeppesen mailed or faxed the required documents to MSHA, this 

order would have been terminated without a return visit. Tr. 276. However, he failed to do so and 

on July 22, 2013, when he still had no documentation available, the instant citation was issued. 

Tr. 277. Jeppesen had refresher training records for himself and his son, Alan, dated April 2013 

but not task training records. Tr. 277-78. If an individual mine owner has no employees,17

generally the equipment manufacturer will provide the initial task training. The mine owner 

could certify himself thereafter, but the documentation is still required. Tr. 280. When the 

inspectors returned again in July 2013, Jeppesen still had no task training records of any kind and 

several new pieces of equipment were observed on-site. Tr. 279; Ex. S-22. 

8. Citation No. 8737377/Ex. S-23

The underlying violation, 104(d)(1) Order No. 8668102/Docket CENT 2012-782, was 

issued as an S&S, unwarrantable failure violation on May 2, 2012 in violation of 30 C.F.R. § 

56.14100(a) for not performing adequate examinations of mobile equipment (the excavator). The 

order states that there were numerous longstanding hazardous conditions that were open and 

obvious and were capable of causing serious injuries for which several citations and/or orders 

had been issued in the past. Ex. S-23c. When Jeppesen continued to operate the mobile 

16 As a reason for not having the inspections done, Jeppesen claimed he had not been 

operating the mine from July through October 2012. Tr. 266. However, he documented 

performing workplace examinations in July, August and September of that year. Tr. 269-71. 

Additionally, he conceded this violation in the settlement agreement. Ex. S-37. His claim is not 

credible. 

17 Jeppesen admitted that Alan Jeppesen performs work for him at the mine and is paid 

$85.00 per hour for his work. Jeppesen is therefore required to complete the task training for 

Alan as well as himself.

37 FMSHRC Page 2331
equipment without putting a pre-operation examination program into action, the instant citation 

was issued. Tr. 285. 

9. Citation No. 8737378/Ex. S-24

On May 1, 2012 the initial 104(d)(1) order, No. 8668098/Docket CENT 2012-187, was 

issued under 30 C.F.R. § 56.9300(a) as an S&S and unwarrantable failure violation for failure to 

maintain berms. This violation encompassed one area that was 21 feet long with a drop-off of 4 

feet and another that was 24 feet long with a drop-off of 4 feet. Tire tracks were observed in both 

areas, showing this violation posed a very serious hazard to miners. The same condition had been 

cited numerous times previously. Tr. 286-89; Ex. S-24d. Jeppesen was still operating mobile 

equipment without the berms when the inspectors returned in July 2013. Tr. 289. 

In conclusion, upon the uncontradicted testimony of the inspectors as well as Jeppesen’s 

admissions, I find each of the 16 violations has been established. 

IV. Penalties

Section 110(i) of the Mine Act delegates to the Commission and its judges the authority

to assess all civil penalties de novo. 30 U.S.C. § 820(i). The Act requires that in assessing civil 

penalties the Commission and its judges shall consider the six statutory penalty criteria found in 

Section 110(i): 1) the operator’s history of previous violations; 2) the appropriateness of such 

penalty to the size of the business of the operator charged; 3) whether the operator was negligent; 

4) the effect on the operator’s ability to continue in business; 5) the gravity of the violation; and

6) the demonstrated good faith of the person charged in attempting to achieve rapid compliance

after notification of a violation. Id.

The Secretary has assessed a special penalty for each of the violations in this docket 

based upon Jeppesen’s repeated and persistent violations, his refusal to recognized MSHA’s 

authority, his lack of respect for the health and safety of miners, and his continued use of 

withdrawn equipment and work areas. 

 History of Previous Violations 

The Assessed Violation History Report demonstrates that Jeppesen has a long list of prior 

violations, which is particularly noteworthy for a small mine. Many of the violations are of the 

same mandatory standards cited here. See Exs. S-34, S-35. As set forth above, Jeppesen entered 

into an agreement in December 2013 in which he agreed to settle 37 outstanding violations 

including the 16 violations upon which the violations discussed herein are predicated. Ex. S-37. 

He has been found to have violated Section 103(a) for interfering with the Secretary’s right of 

entry on numerous occasions prior to the violation on October 1, 2012. 

I find the number of prior violations is extremely high for a part-time, small mine. 

37 FMSHRC Page 2332
Gravity of the Violations 

Because the 16 violations for working in the face of a withdrawal order were issued as a 

violation of the Act, by MSHA policy, they are marked non-S&S. Gravity is not relevant to these 

citations. 

With respect to the interference with the right of entry citation, as stated above, I find 

Jeppesen’s actions to have been most egregious and physically threatening to the two inspectors. 

The gravity is very high. 

Negligence 

The negligence has been assessed as stated in the discussion of the violations. The 

Secretary has argued that the negligence for Citation 8737374 in which Jeppesen spray painted 

the electrical cable should be assessed as reckless disregard because the violation reflected an 

attempt to disguise the lack of abatement. I decline to find reckless disregard. The violation was 

initially assessed by the inspector as moderate negligence and raised to high negligence upon 

finding that Jeppesen had sprayed the cable with a rubber sealant. It is not clear that this was 

done in an attempt to fool the inspector. It was more likely an attempt on Jeppesen’s part to not 

spend money on installing proper equipment and to intentionally flaunt MSHA’s authority – his 

modus operandi. I give deference to the inspector’s assessment and find high negligence is 

appropriate. 

Demonstrated Good Faith in Rapid Compliance 

As the nature of the violations herein makes abundantly clear, the thought of making 

efforts to rapidly comply with the mandatory standards has never troubled Jeppesen’s mind. I 

find there has been no good faith effort to comply with the cited mandatory standards. 

 Appropriateness to the Size of the Business and the Ability to Continue in Business 

I find that Jeppesen is a sole proprietor of a very small mine with several prior violations 

of section 103(a) of the Act during the relevant time period. I further find that he has one 

employee, Alan Jeppesen. Jeppesen argued in the instant matter that Alan Jeppesen is not an 

employee but an independent contractor whom he pays $85.00 per hour to perform manual labor. 

Van Wey testified that Alan had participated in at least two inspections he made. Alan was 

actively engaged in the attempt to prevent entry to the mine and Jeppesen had signed off on 

Alan’s annual refresher training in 2013. Tr. 163; Ex. S-4, 257. Jeppesen entered into stipulated 

findings of fact before Commission Judge Melick in November 2010 that Alan was his 

employee. See Jeppesen Gravel, 32 FMSHRC 1749, 1758 (Nov. 2010) (ALJ). Judge Manning 

also determined that Alan Jeppesen was an employee in 2008. All of these factors lead me to the 

conclusion that Alan Jeppesen is and continues to be an employee of Jeppesen Gravel. 

Regarding sole proprietorships, the Commission has held that ability to continue in 

business must take into account the effect of a penalty on the individual’s ability to meet his 

financial obligations. Unique Electric, 20 FMSHRC 1119, 1122-23 (Oct. 1998). The 

37 FMSHRC Page 2333
Commission has also held that in the absence of proof that the imposition of authorized penalties 

would adversely affect the ability to continue in business, it is presumed that no such adverse 

effect will occur. Sellersburg Stone Co., 5 FMSHRC 287, 294 (Mar. 1983). 

Jeppesen asserts that the penalties proposed herein would hinder its ability to remain in 

business. Jeppesen submitted the “Client Copy” of his tax returns for 2013 and 2014 as proof of 

his claim. These uncertified, unfiled documents indicate he took substantial undefined 

deductions on his income taxes for various expenses including cost of goods sold, depletion, 

repairs, “other expenses,” and supplies and depreciation (including over $23,000 in both years 

for unspecified “Cap Repairs”) to reduce his gross income by more than $200,000. Exs. R-20, R21. He offered no testimony, balance sheets, or evidence of liens with regard to his income and 

nothing relating to his income or expenses in 2015. He would not disclose how much of his past 

income and expenses were for the mining business. Tr. 314-15. He offered no explanation for 

why the mining business is part-time rather than full time and submitted nothing to document his 

financial familial obligations. 

I find the evidence of Jeppesen’s financial status is insufficient to prove an inability to 

continue in business. See Spurlock Mining Co. et al., 16 FMSHRC 697 (Apr. 1994) (operator 

failed to introduce “specific evidence” to show penalties would affect ability to continue in 

business); Rock Express, Inc., 36 FMSHRC 2696 (Oct. 2014) (ALJ) (unaudited document with 

non-disclosed assets and future earnings did not meet burden); Uehlin Quarries, 36 FMSHRC 

2281 (Aug. 2014) (ALJ) (summary allegations are not sufficient to reduce penalty even for small 

family-owned business); Ikerd Mining Co., LLC, 35 FMSHRC 3302 (Oct. 2013) (ALJ) 

(incomplete tax return with “other deductions” without specific testimony not sufficient to 

reduce penalties); L&T Fabrication & Constr., 21 FMSHRC 71 (Jan. 1999) (ALJ) (unaudited 

financial records insufficient to reduce penalties). 

Jeppesen has, to the contrary, been able to pay his son and Dave Nasters $85.00 per hour 

each for manual labor. Tr. 320-21. And, despite the sizeable deductions on his unverified income 

tax returns, based upon the unabated conditions the inspectors found that had existed for up to 14 

months, he had not actually made any such expenditure he deducted as costs of goods sold, 

repairs, etc. 

When looking at the initial citations and orders that led to the issuance of the withdrawal 

orders, it is readily apparent that many of the violative conditions could have been eliminated 

with little or no expense at all, making it even more apparent that Jeppesen’s claim of financial 

hardship is a ruse. In one instance, he abated an electrical violation by using a black marking pen 

to label a junction box. In another he used a piece of equipment to gather water to prime a pump 

instead of a handheld bucket. He could have used the equipment on-site to push dirt up to form 

berms around his property but refused to do so. He told the MSHA inspector he did not have a 

guard on machinery because it was his right to put a hand in the fan tail pulley if he wanted to. 

Tr. 152. He could have performed monthly inspections of the fire extinguisher himself at no cost 

and had the annual inspection done at no charge by a fire department. Proper conduction of preoperational examinations and completed training documentation obviously carried no expense as 

well. 

 

37 FMSHRC Page 2334
In reaching a settlement for $28,500.00 in 2013, Jeppesen admitted that he had the ability 

to pay the penalties, yet he has not paid a dime. In fact, he has not paid any of the fines MSHA 

has ever assessed against him since 2004.18

The financial inability criterion under the Act is available to operators who at least in 

good faith try to comply with the mandatory standards of the Act but are limited in the ability to 

pay higher fines. In this instance, Jeppesen attempts to avoid paying any penalties for extremely 

hazardous conditions that have persisted for significant periods of time. In fact, he stated to the 

inspectors repeatedly that each of their citations would only cost him ten cents, apparently 

referring to the fact that another ALJ had significantly reduced the assessed penalties in the past. 

Tr. 145, 151-52. 

I find that Jeppesen has not met his burden of proving that the proposed penalties will 

affect his ability to continue in business. I also find that the Secretary has made his case for 

enhanced specially assessed penalties against Jeppesen Gravel for the demonstrated lack of 

respect for MSHA, the Mine Act, the individual inspectors who are charged with carrying out 

lawful inspections of Jeppesen’s mine, and the miners he employs as independent contractors or 

otherwise. 

I assess the following penalties based upon the relevant criteria set forth in Section 110(i) 

of the Mine Act as discussed above: 

1. Citation No. 6550468 – $4,000.00

2. Citation No. 8737364 – $1,000.00

3. Citation No. 8737367 – $1,000.00

4. Citation No. 8737370 – $1,000.00

5. Citation No. 8737372 – $1,000.00

6. Citation No. 8737365 – $1,000.00

7. Citation No. 8737368 – $1,000.00

8. Citation No. 8737371 – $1,000.00

9. Citation No. 8737363 – $1,000.00

10. Citation No. 8737366 – $1,000.00

11. Citation No. 8737369 – $5,000.00

12. Citation No. 8737373 – $3,000.00

13. Citation No. 8737374 – $1,000.00

14. Citation No. 8737375 – $1,000.00

15. Citation No. 8737376 – $1,000.00

16. Citation No. 8737377 – $3,000.00

17. Citation No. 8737378 – $3,000.00

18 This information is taken from the U. S. Department of Labor’s Mine Data Retrieval 

System at http://www.msha.gov/drs/ASP/MineAction.asp.

37 FMSHRC Page 2335
V. Order

For the reasons set forth above, the citations are AFFIRMED or MODIFIED as

discussed above. Jay Jeppesen, doing business as Jeppesen Gravel, is ORDERED TO PAY the 

Secretary of Labor the sum of $30,000.00 within 60 days of this decision. Payment should be 

sent to: U.S. Department of Labor, Mine Safety and Health Administration, Payment Office, 

P.O. Box 790390, St. Louis, MO 63179-0390.

/s/ Priscilla M. Rae 

Priscilla M. Rae 

Administrative Law Judge 

Distribution:

Robert Alan Kelly, Esq., U.S. Department of Labor, Office of the Solicitor, Two Pershing 

Square, 2300 Main Street, Suite 1020, Kansas City, MO 64108 

Jay A. Jeppesen, Jeppesen Gravel, 719 8th Street, Sibley, IA 51249 

37 FMSHRC Page 2336
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9933 / FAX: 202-434-9949 

October 15, 2015 

Appearances: Daniel B. Lowe, pro se, Elko, Nevada, for Complainant 

David M. Stanton, Esq.,1 Goicoechea, DiGrazia, Coyle, and Stanton, Elko, 

Nevada, for Respondent 

Before: Judge Moran 

DECISION AND REQUEST FOR DIRECTION FROM THE COMMISSION

In this section 105(c)(3) action under the Federal Mine Safety and Health Act of 1977, 30 

U.S.C. § 801 et seq. (2012) (“Mine Act” or “Act”), Complainant, Daniel B. Lowe, has asserted 

that he was fired by Veris Gold USA, Inc., because of safety and health complaints he voiced 

related to his job at Veris’ Jerritt Canyon Mill. A hearing was held in Elko, Nevada, on June 18, 

2015. The Court finds that Veris was motivated to fire Lowe because of his safety and health 

complaints to Veris management and that the record contains no evidence that Complainant’s 

termination was based on any non-safety or health basis. Accordingly, for the reasons which 

follow, Mr. Lowe’s complaint of discrimination is upheld. 

The Elements of a 105(c) Discrimination Claim 

The basics of a discrimination claim under the Mine Act are well-established and clear. 

In order to establish a prima facie violation of section 105(c)(1) of the Mine Act, Complainant 

must prove, by a preponderance of the evidence, (1) that he engaged in protected activity; (2) 

that he suffered an adverse action; and (3) that the adverse action taken against him by the mine 

operator was motivated in any part by that protected activity. In order to rebut a prima facie case, 

the operator must either show that no protected activity occurred or that the adverse action was in 

no part motivated by the miner’s protected activity. Sec’y of Labor on behalf of Pasula v. 

Consolidation Coal Co., 2 FMSHRC 2786 (Oct. 1980), rev’d on other grounds sub nom. 

Consolidation Coal Co. v. Marshall, 663 F.2d 1211 (3rd Cir. 1981); Sec’y of Labor on behalf of

1

 As explained infra, Veris’ attorney, private counsel David Stanton, moved to withdraw 

from representation of Respondent Veris Gold USA, Inc. Attorney Stanton appeared on the 

morning of the first day of the hearing and reiterated his request to withdraw from representing 

Veris, a request made by Veris. The Court had no option but to grant the request and it did so at 

the commencement of the hearing. 

DANIEL B. LOWE, 

 Complainant, 

v. 

VERIS GOLD USA, INC., 

 Respondent. 

 DISCRIMINATION PROCEEDING 

Docket No. WEST 2014-614-DM 

WE-MD 14-04 

Mine: Jerritt Canyon Mill 

Mine ID: 26-01621 

37 FMSHRC Page 2337
Robinette v. United Castle Coal Co., 3 FMSHRC 803 (Apr. 1981). If the operator cannot rebut 

the miner’s prima facie case in this manner, it nevertheless can defend affirmatively by proving 

that (1) it was also motivated by the miner’s unprotected activity and (2) it would have taken the 

adverse action in any event for the unprotected activity alone. The operator bears the burden of 

proof in such an affirmative “mixed motive” defense. Haro v. Magma Copper Co., 4 FMSHRC 

1935 (Nov. 1982). 

The current action is brought under section 105(c)(3) of the Mine Act. That section 

provides that if the Secretary determines that a violation of section 105(c)(1) has not occurred, 

“the [C]omplainant shall have the right . . . to file an action in his own behalf before the 

Commission, charging discrimination.” 30 U.S.C. § 815(c)(3). As the Commission stated in 

Jaxun v. Asarco, LLC, 20 FMSHRC 616, 620 (Aug. 2007), “[t]he Mine Act, the Administrative 

Procedure Act (‘APA’), and the Commission’s Procedural Rules permit a Complainant to 

proceed with an action under section 105(c)(3) of the Mine Act without representation.” 

Findings of Fact 

At the outset of the hearing, Attorney David Stanton, privately retained legal counsel for 

Veris Gold, appeared. The Court noted that Attorney Stanton filed a motion for his withdrawal as 

the Respondent’s representative. Tr. 6. The Court had previously received word of Attorney 

Stanton’s motion to withdraw at the conclusion of the prior week, one day after another section 

105(c)(3) hearing against Veris, Matthew Varady v. Veris Gold USA, Inc., WEST 2014-307-DM, 

had concluded. This Court presided in the Varady discrimination case. That case involved the 

pro se discrimination claim brought Matthew Varady against Veris Gold, and a decision finding 

for Mr. Varady was issued on September 2, 2015. Attorney Stanton represented Veris in the 

Varady discrimination matter for the entirety of the hearing. As noted, infra, the Varady hearing 

did not go well, evidentiary-wise, from Respondent’s perspective, and it was obvious that 

Attorney Stanton correctly gauged the adverse evidentiary consequences of the proceeding, 

owing to the poor credibility of Respondent’s various witnesses. Therefore, it was not a surprise 

to the Court that the attorney moved to withdraw from representation. As the Varady and Lowe 

matters are closely linked, it followed that withdrawal would be sought in the Lowe matter as 

well. 

 Due to the indefinite nature of Attorney Stanton’s initial email request to withdraw his 

representation of Veris, it was not clear whether the attorney’s request was confined to the Lowe 

and Varady matters or whether the attorney was withdrawing completely from all representation 

of Veris. Attorney Stanton was equivocal about his continuing role, in that he indicated that it 

would continue until the bankruptcy monitor in Canada acts. Tr. 6. At the time of and prior to the 

hearing’s start, Veris had been involved in a bankruptcy proceeding. Attorney Stanton confirmed 

that mining would continue at the Veris site and it was his understanding that Veris would 

continue as a legal corporate entity and he represented that the Veris entity would “remain in 

existence for some period of time while the monitor addresses some . . . lingering issues,” 

although he did not know exactly what those issues were. Tr. 8. Emphasizing that the mine 

would be a continuing operation, albeit under a successor, “White Box” or the debtor in 

possession, Attorney Stanton hoped that his legal representation would continue with the new 

ownership. Tr. 9. Thus, it is fair to state that the mining operation and attorneys representing it 

37 FMSHRC Page 2338
would continue to move along nicely, while apparently simultaneously attempting to evade 

responsibility, through bankruptcy legal mechanisms, for acts of discrimination under the Mine 

Act. 

The Court then announced that testimony would be received from Mr. Lowe in this 

matter, as Complainant still had an obligation to present a prima facie case. With Attorney 

Stanton withdrawing from representation of Veris, an act made at the request of Veris, the Court 

advised that it could then find Veris to be in default. Tr. 10. Attorney Stanton stated that he had 

communicated to Veris and to the bankruptcy monitor about the risk of being held in default and 

therefore, he noted, their decision to have him withdraw as counsel was made “with that 

information in mind.” Tr. 11. Therefore, as Attorney Stanton confirmed, Veris and its successor 

understood the risk they assumed by foregoing any defense in the Lowe matter. Id. With Veris’ 

full understanding of the consequences of the requested withdrawal, the Court then granted 

Attorney Stanton’s motion to withdraw from representation and he was then excused from the 

proceeding.2

2

 As noted in Getz Coal Sales, Inc., 2 FMSHRC 2172, 2176 (Aug. 1980) (ALJ): 

The Commission’s rules do not specifically address the question of the 

failure of a party-respondent to appear at a hearing pursuant to notice. Rule 63, 29 

C.F.R. § 2700.63 provides for summary disposition of cases when a party fails to 

comply with an order of a judge or the Commission’s rules. Subsection (b) 

provides that when a respondent is found to be in default in a civil penalty case 

the judge shall enter summary order assessing the proposed penalties a final and 

directing that they be paid. Section 105(d) of the Act provides that a mine 

operator be afforded an opportunity for a hearing in a contested case so that he 

may contest the citation and any proposed civil penalty assessment proposed by 

the Secretary. 

In Broken Hill Mining Co., 19 FMSHRC 477 (Mar. 1997), the judge issued a default 

order because Respondent failed to appear at the hearing, but the judge also stated that the 

Secretary had proven all violations by a preponderance of the evidence after hearing testimony 

from the Secretary. The Commission remanded the case to another judge for clarification of the 

judge’s original preponderance of the evidence determination. Id. On remand, the judge noted 

that “[s]ection 2700.66 of Commission regulations, 29 C.F.R. § 2700.66 (1996), provides that 

when a party does not appear at a hearing, the judge may find the party in default without 

issuing a show cause order.” Broken Hill Mining Co., 19 FMSHRC 751, 751-52 (Apr. 1997) 

(ALJ). At the earlier hearing, following a motion for default judgment from the Secretary, the 

original judge directed that the hearing would proceed with the testimony of the inspectors so 

that there was a factual basis to assess the civil penalty. Id. at 752. After hearing the testimony 

regarding each citation, the judge affirmed the citation. Id. The remand decision also noted that 

[s]ection 2700.1(a) of Commission regulations, 29 C.F.R. § 2700.1 (a), 

provides that the Commission and its judges shall be guided so far as practicable 

by the Federal Rules of Civil Procedure. Rule 55 (a) of the Federal Rules of Civil 

Procedure provides that when a party against whom a judgment for relief is 

(continued...) 

37 FMSHRC Page 2339
The hearing then continued, it being incumbent, as noted above, for Complainant to 

establish a prima facie case, irrespective of Respondent’s election to default. The Court then 

advised that it was confined to the basis of Mr. Lowe’s complaint, as presented to MSHA when 

he filed his complaint, citing Hatfield v. Colquest Energy, Inc., 13 FMSHRC 544 (Apr. 1991). 

Tr. 22. In addition to the complaint itself, a one page document, dated November 22, 2013, there 

is also a statement by MSHA special investigator Kyle E. Jackson. That document, the Court 

noted, identifies some protected activity. While that protected activity is not expressly contained 

within the four corners of Mr. Lowe’s discrimination complaint, the Court stated that, by 

inference, it was part of the complaint to MSHA, as the special investigator had to have been 

informed about such protected activity by Complainant. 

In the complaint proper, Lowe listed the following Veris management individuals as 

responsible for discriminatory action against him: Mr. Kim, Mr. Jones, Mr. Dickson, Mr. Hofer, 

Francois Marlan, Mr. Ward, and Dr. Goodfield. Tr. 25. The Court then noted that the typewritten 

discrimination report filed on November 22, 2013, provides: 

In accordance with the Mining Act of 1977 and by statutory rights of as a miner, 

[Daniel Lowe] was continuously discriminated against in matters of safety and 

health as well as in matters of regulatory compliance. These acts came in the form 

of constant threats of reprisal by members of senior management and/or corporate 

officers in matters of safety and health and regulatory compliance. These include 

threats of termination of employment, termination of my employment, and 

physical threats of violence by a member of senior management to do 

[Complainant, Lowe,] bodily harm when attempting to make safe the Jerritt 

Canyon Mill, as well as all mining operations of Veris Gold USA, Inc. located in 

Elko County, Nevada. 

Tr. 26-27. 

Reviewing that document and guided by the Hatfield decision, the Court noted that the 

first allegation was too vague. Tr. 27. Then, the Court continued to read from the Complaint that 

“[Lowe asserted that he] was given specific direction from senior management/corporate officers 

2

 (...continued) 

sought fails to plead or otherwise defend, the party’s default may be entered. . . . 

In applying Rule 55, the courts have stated that in a default situation all well 

pleaded allegations are taken as true. Benny v. Pipes, 799 F.2d 489, 495 (9th Cir. 

1986), cert denied, 484 U.S. 870, 108 S.Ct. 198 (1987). And when a default 

judgment is entered, facts alleged in the complaint may not be contested. Black v. 

Lane, 22 F.3d 1395, 1399 (7th Cir. 1994). The standard for appellate review of a 

default judgment is whether the trial court committed an abuse of 

discretion. Johnson v. Gudmundsson, 35 F.3d 1104, 1117 (7th Cir. 1994). An 

entry of a default judgment is not an abuse of discretion where a party 

who fails to appear at a scheduled hearing, because such conduct strays from 

recklessness to bad faith. Id. 

Id.

37 FMSHRC Page 2340
to ignore employee safety and health rights under the Mining Act of 1977 and told [his] job was 

to keep the mill manager and assistant mill manager stress-free.” Id. The Court again noted that 

the allegation does not inform “as to specific protected activity nor, [the Court noted] could 

[MSHA] go out and conduct an investigation based on that. If [MSHA] were right at the mine 

they couldn’t know what to ask about, [because the allegation is] too vague.” Id.

Continuing, the Court read: 

Due to [Lowe’s] efforts to make necessary changes at the Jerritt Canyon Mill 

related to safety and health [he] was under constant daily harassment from 

members of the senior management and/or corporate officers in practically any 

matter that pertained to regulatory compliance and the statutory rights of miners 

that would or could interfere with the production of gold. When [Lowe] brought 

forth legitimate and serious safety and health issues or regulatory compliance 

issues with senior management and corporate officers, [he] was either ignored or 

verbally threatened with a reprisal of having [his] employment terminated. At 

present, production and only production of gold is the only thing that senior 

management and corporate officers care about. [Lowe is] seeking immediate 

reinstatement to [his] former position as . . . Mine Safety and Regulatory 

Compliance Manager with full back pay and allowed expenses. 

Tr. 28. Again, the Court advised Complainant at the hearing that “there is nothing . . . alleging 

specific protected activity.” Id.

The Court noted that it did “have the declaration of [MSHA investigator] Kyle Jackson, 

[wherein] Mr. Jackson [stated that] he investigated claims of discrimination.” Tr. 29. The Court 

took note that Jackson couldn’t have just invented claims out of his imagination, and therefore, at 

some point he must have been given information from Mr. Lowe. Id. However, the Court did not 

yet possess such information. It then noted that Jackson stated at page two of his declaration that 

[d]uring the week of November 11, 2013 Mr. Lowe engaged in protected activity 

by reporting housekeeping issues with two lunchrooms at Veris Jerritt Canyon 

Mill to mill manager . . . Kim and assistant mill manager Chris Jones. Mr. Lowe 

reported that one of the lunchrooms had an issue with mercury contamination and 

that another had an issue with dirt on the wall.3

Id. The Jackson declaration continued, “Mr. Lowe also told Mr. Kim and Mr. Jones that Veris 

needed to enforce company policy that employees not enter the lunchrooms wearing 

contaminated clothing.” Id. The Court noted that two instances of protected activity were 

identified: the housekeeping dirt and mercury contamination issues. Tr. 30. Jackson’s statement 

then continued, asserting that “[o]n November 18th Mr. Lowe again engaged . . . in protected 

activity when he sent an e-mail to chief operating officer Graham Dickson reporting that Mr. 

Jones had screamed at miner Cheryl Garcia [with Jones asserting] that Ms. Garcia and Mr. Lowe 

 3

 The Court parenthetically noted that dirt on a lunchroom wall did not sound like much 

of a safety or health violation, although it stated it would keep an open mind about the claim. 

37 FMSHRC Page 2341
were trying to fuck him with the lunchroom housekeeping issue.”4 Id. The Court then noted that 

Mr. Lowe’s employment with Veris was terminated on November 21, 2013. Id.

The Court then summed up the foregoing by noting that the only things that it could take 

cognizance of were the housekeeping issue of dirt on a wall, and the mercury contamination, that 

is, workers entering the lunchroom with contaminated clothing. Id.

Having articulated all that it could find in terms of protected activity presented to MSHA 

when Lowe filed his complaint, the Court inquired if Mr. Lowe had anything else to offer, in 

terms of information presented to MSHA when he filed his complaint. His response was that he 

also alleged that Mr. Jones engaged in reckless driving (speeding) on mine property, that he 

advised Veris of this, and that he was fired not long after that event. Tr. 32-34. However, that 

allegation is not found in the complaint, nor referenced by MSHA investigator Jackson. 

Therefore, it cannot be considered as an independent claim of discrimination for the section 

105(c)(3) complaint. However, it can be considered to demonstrate that Veris, and Jones in 

particular, were angry at Lowe over his lunchroom safety complaint. 

With the cognizable protected activities identified, the Court then received testimony, 

starting with the complainant, Mr. Lowe. Lowe began his employment with Veris on April 19th 

of 2012. Tr. 54. He was hired to address mine safety and regulatory compliance matters.5

 Tr. 55. 

His testimony involving the basis of his discrimination claim began with the lunchroom incident. 

This occurred during an MSHA inspection when dirt was observed on a lunchroom wall and 

high levels of mercury were found in another lunchroom. Tr. 37. Lowe did not believe that 

citations were issued for these conditions; the inspector instead gave the mine an opportunity to 

clean up the conditions. Tr. 38. Lowe was not present when the conditions were found. Tr. 39. 

A day or two later, Cheryl Garcia came to Lowe reporting that Chris Jones had just 

screamed at her, telling her not to fuck him with lunchroom issues, at least according to Lowe’s 

recounting of the event. Tr. 40. Lowe then elevated the issue to his boss, Bill Hofer, but no 

action was taken against Jones. Tr. 41. Following that, Lowe sent himself an e-mail to document 

Jones’ incident with Garcia. Tr. 420. The e-mail, dated November 18, 2013, was sent to Graham 

Dickson, Veris’ Chief Operating Officer. Ex. C-1. The text of the email stated: 

Subject: Employee abuse. Importance: High. Graham, on Friday Dave Jenkins 

came into Cheryl Garcia’s office seeking assistance with decontaminating areas 

using HgX. He said he was going to be cleaning the lunchrooms and he showed 

the janitorial staff how to do this using HgX. Also he stated that once they cleaned 

4

 As to the expletive expression, allegedly made by Mr. Jones, the Court noted that it was 

not cognizable protected activity when one sends an e-mail as described here that Mr. Jones had 

screamed at Cheryl Garcia saying that Ms. Garcia and Mr. Lowe were trying to f--- him. Tr. 30. 

5

 Lowe held that position for about a year and two to three months, but then, in July 2013, 

he was demoted to the position of Compliance Coordinator by Joe Driscoll, who came on as the 

mine’s new general manager. Tr. 55. The demotion only lasted a month and Driscoll was 

terminated from Veris’ employment. Lowe was then reinstated to his original position and 

remained there until his firing. Tr. 57. 

37 FMSHRC Page 2342
the lunchroom they would retest using a Jerome meter. While Dave was in 

Cheryl’s office Chris Jones came in and began screaming at Dave saying, “you 

don’t need to be in here, you are in maintenance, you don’t need to talk to her 

about the mercury issues.” 

Id. Garcia then went to speak with Jones about his outburst, and Jones related that he believed 

she and Lowe were trying to f[---] him over the lunchroom cleanliness issues. Tr. 44. Lowe’s 

email continued, stating that he did “not believe any person should be subjected to this kind of 

behavior when she was only doing her job and doing her job well, and trying to keep our 

employees safe and healthful.” Tr. 45. Dickson did not reply to Lowe’s email. Tr. 47. 

Next, Lowe alleged that Jones drove aggressively very close behind him on Highway 225 

the following morning, November 19th.6

 Tr. 48. Lowe also related that later that day he went to 

the office of HR Manager Dwayne Ward, informing him that he had sent the two emails 

described above and in footnote six. Tr. 52. Lowe expressed to Ward that he thought he might be 

fired because of the emails. Id. According to Lowe, Ward responded that, as it involved Chris 

Jones, there was nothing he could do about the matter. Id. Later that day, Ward spoke to Lowe 

advising him that he would indeed be fired that Thursday. Id. Ward informed Lowe that he was 

being fired because of attorney’s fees incurred by Veris, though he did not understand the 

particulars. Tr. 52-53. Lowe then went into his office and called in Mark Butterfield, who 

confirmed the news Ward had given. Tr. 53. All of those events occurred on the 19th. Id. 

Lowe was next at work on the 21st. Id. On that date Lowe went to Dwayne Ward’s office 

and where he met Tia Monahan, HR technician, and Joe Stoddard, HR recruiter/assistant HR 

manager. Ward then presented a release to Lowe, asking that he sign it. It offered two months of 

severance pay, but Lowe stated that the release took away all his rights and therefore he refused 

to sign it. Tr. 58. That release was entered into the record. Ex. C-3. Lowe stated that the release 

6

 This prompted Lowe to send another email to Dickson, this time copying Bill Hofer. 

The email text of Exhibit C-2 provided: 

Subject: Speeding company vehicle. Importance: High. Graham, while 

traveling northbound on Nevada 225 this morning on the way to work and at 

approximately 6:15 I observed a vehicle coming up behind me at a high rate of 

speed. As I passed where the roads splits the farm the vehicle was literally so 

close to the rear of my vehicle I could not see the vehicle’s headlights. Once I 

passed the farm the vehicle overtook my vehicle and I could see that it was Veris 

Gold light vehicle with the number LV 3907 on the front fender. 

Tr. 50. Lowe estimated the vehicle speed at 85 to 90 mph. Tr. 51. He noted that the 

license LV 3907 is assigned to Chris Jones. Id. Lowe received no email response to his message. 

Id. As noted, this claim cannot be considered, per the holding in Hatfield, as a separate act of 

discrimination. 

37 FMSHRC Page 2343
included the signatures of Tia Monahan and Joe Stoddard on it, bearing witness that Lowe 

refused to sign it.7

 Tr. 59. 

At that time, Lowe stated that he inquired about the basis of his termination, and that 

Ward advised that he didn’t know but that Veris would think up something and let him know. Tr. 

60. The decision was made to have Mark Butterfield then drive Lowe home. Tr. 61. Lowe related

that during discovery for this litigation, Attorney Stanton, Veris’ attorney until the week prior to

the commencement of the Lowe hearing, sent him information and included within that was the

letter from Dwayne Ward stating the reason for Lowe’s termination. Tr. 63. Up until he received

that information from Veris’ attorney, which was over a year after he was terminated, Lowe had

not been apprised of the reason for his firing. Id.

As noted, Lowe asserted that he never received the termination letter until the discovery 

process. The exhibit was admitted as Exhibit C-4, letter from Veris, dated November 21, 2013, to 

Danny Lowe. Tr. 63. Lowe maintained that the letter had errors in it. Again, he stated that he 

never received the letter until disclosed through the discovery process for this litigation, with 

Lowe asserting that the letter had the wrong zip code. Tr. 64. Lowe read the text of the letter into 

the record. It stated: “You are being terminated on Thursday, November 21st, 2013. There are 

several factors that led to this decision. First, you were written up on October the 1st, 2013 for 

not reporting vacation time taken.” Tr. 66. The termination letter continued, “In addition, you 

have had several conversations with Bill Hofer and Graham Dickson on the performance of your 

department and how it has not met the needs of the other departments in addition to not keeping 

normal work hours.” Tr. 67. 

Lowe challenged the accuracy of both those claims. Regarding the alleged failure to not 

report vacation time, Lowe asserted that he sent an email to Bill Hofer, requesting the days off. 

Tr. 66. The claim was that Lowe should have informed Mary Buttes, an administrative aide to 

Graham Dickson, of his planned leave. When Lowe challenged the write-up, Dickson noted that 

the notice to advise Buttes of leave was sent out on two dates. However, upon consulting with 

Veris’ IT Manager, Pablo Cortez, Lowe learned that his name was not on the distribution list and 

therefore he had not been notified of the requirement to inform Ms. Buttes of leave. Id. Lowe 

maintained that the write-up was later rescinded. Tr. 67. 

As to the other claimed basis for his discharge, the claim that the performance of Lowe’s 

department had not met the needs of the other departments and that Lowe had not kept normal 

work hours, Lowe asserted that there had never been any conversation between Hofer, Dickson 

and himself regarding Lowe’s work performance. Id. To the contrary, Lowe asserted that Mark 

Butterfield was prepared to testify that the department managers were happy with his work and 

that the safety department was meeting the mine’s needs. Id. 

Last, Lowe addressed the claim in his termination letter that he was not keeping normal 

working hours. Lowe agreed, but in a different sense than the letter implied, as he maintained 

7

 Near the end of the hearing Lowe was able to locate a copy of his employment release, 

which he refused to sign. Ex. C-3; Tr. 98. Lowe refused to agree to the terms of that document, 

entitled, “Severence Release and Waiver.” On the last page, Lowe’s signature appears, below the 

words “Refused to sign.” Two other signatures appear on that page. Ex. C-3 at 6. 

37 FMSHRC Page 2344
that he essentially worked around the clock at Veris. Tr. 68-69. He stated that there were many 

occasions when his day would begin as early as 3:30 a.m. Tr. 68. In addition, he asserted that 

Graham had changed his hours so that effectively he was on call 24 hours. Tr. 69. 

The letter included a final basis for Lowe’s termination, asserting that “[t]he final 

determining factor of your termination is our accounting department received a bill from [the law 

firm of] Jackson Lewis in November that was for $533,815.18.” Tr. 69. The letter claimed that 

Lowe “incurred all these charges without prior approval and also without reporting it to 

accounting. Therefore, we are terminating you as stated on Thursday, November 23rd, 2013.” Id.

Dwayne Ward’s signature was on the termination letter. Lowe’s response to the claim was that 

the legal fees incurred were justified because he was hired, in part, to get rid of all the citations 

Veris had received, so that it could be released from the potential pattern of violation status, on 

which it had been placed. Tr. 69-70. Lowe stated that he was hired and authorized to incur such 

fees, as part of the effort to address the violations. He stated that he has the affidavit of Guy 

Simpson, who was his original general manager at Veris, and also that of Joseph Welin, 

affirming that Lowe was authorized to incur those legal fees. Tr. 70. It was, Lowe stated, a 

tumultuous time at Veris as the mine had gone through seven or eight general managers. Id.

Except for his brief demotion when Joe Driscoll was a general manager there, everyone knew 

what Lowe was doing vis-à-vis the attorneys. Tr. 70. 

Accordingly, Lowe maintained that his firing stemmed from his confrontation with Chris 

Jones, as described above.8

 Tr. 71. Lowe agreed that the events which ultimately precipitated his 

firing were the lunchroom cleaning issues. 

In testimony supporting Lowe’s recounting of the events, he called Cheryl Garcia as a 

witness. Garcia affirmed that she was with an MSHA Inspector during November 2013 when 

high levels of mercury were discovered in a lunchroom at the mill. Tr. 76. She then notified her 

manager, Complainant Lowe, that the lunchroom would be closed during the mercury cleanup. 

Id. Garcia also emailed Lowe about the process for the cleanup and copied Veris management 

officials Kiedoc Kim and Chris Jones about it. Tr. 78. Not long after, Jones saw Jenkins in 

Garcia’s office and yelled at him, telling him that he was to leave and that he had no business 

being in Garcia’s office. Id. This intemperate interaction prompted Garcia to visit Jones in his 

office, whereupon Jones claimed that she and Lowe were trying to cause trouble for him over the 

lunchroom problems. Id. 

Matthew Varady also testified for Mr. Lowe. Varady stated that in September 2013 he 

was overexposed to chemicals while working at his job in the CIL circuit. Tr. 80. Varady 

contended that he was directed by Kiedoc Kim, Mill Manager, to remain at his CIL job under all 

circumstances or he would be fired. Id. Thereafter, as Varady was feeling ill, Cheryl Garcia, 

upon consultation with Lowe, directed that he see Dr. Matteran for an evaluation of his 

8

 According to the uncontroverted testimony, the conflict between Lowe and Jones had its 

antecedent months earlier, in October 2012, when Jones wanted access to the chlorination 

building. Tr. 71-72. That building had been closed and removed from service. Tr. 72. Jones 

approached Lowe, wanting access to the building, and Lowe advised him as the procedure to be 

employed to gain access. Id. However, Jones ignored the procedure and was discovered entering 

the building through a window. Id. Lowe believed Jones’ act was insubordination. Id.

37 FMSHRC Page 2345
symptoms. Tr. 80-81. Varady learned that the investigation regarding his health problem had 

been stopped and that Lowe advised him that Chris Jones was trying to terminate Varady’s 

employment for making a safety and health complaint. Tr. 81-82. 

Mark Butterfield was then called by Lowe. Butterfield was the safety coordinator at Veris 

during the relevant time. Tr. 83. He reported to Lowe, who was the safety manager. Butterfield 

agreed that Lowe assigned him to investigate the health incident involving Varady at the CIL 

circuit. Id. His investigation began by interviewing Doug Morris, who was the mill 

superintendent at that time. Tr. 83-84. Then he met with the HR Manager, Dwayne Ward, about 

the matter. Tr. 84. Chris Jones then appeared and inquired about the nature of Butterfield’s 

business. Id. Upon learning the subject, he ordered Butterfield to stop the investigation. Id.

Butterfield resisted the order, advising Jones that he was not in his chain of command. Id. Ward 

then intervened, telling Butterfield that the investigation was put on hold until he, Ward, spoke to 

Lowe. Tr. 85. Butterfield advised Lowe of the developments; his investigation never resumed. 

Id. 

Another Veris employee, Shawn Rose, then testified. Rose’s attention was directed to 

November 19, 2013. Rose agreed that Lowe told him that Dwayne Ward had just tipped Lowe 

off, advising Lowe that he was going to be fired. Tr. 87-88. Rose did not know at that time of the 

reason for Lowe’s impending dismissal. Tr. 88. 

Pablo Cortez then testified. Id. Cortez was asked by Lowe about an incident around 

October 2, 2013, in which Lowe asked about the e-mail group system. Tr. 89. Cortez recalled the 

incident, advising that there had been an issue about Lowe’s time off. Id. Veris’ Mary Buttes had 

asked people to advise her if they would be off from work, such as for vacations. Id. Cortez 

recalled that Lowe was not on the e-mail group and therefore was not informed of the request 

that employees were to notify of time off from work. Id. After speaking with Buttes about the 

matter, Cortez then advised Graham Dickson and Dwayne Ward that Lowe was not on the list. 

Id. Cortez blamed himself for the omission. Id.

Tia Monahan testified next. She affirmed her presence in Dwayne Ward’s office on 

November 21, 2013, at the time Lowe was terminated. Tr. 91. She also agreed that she witnessed 

Lowe’s refusal to sign a release regarding that termination. Id. When Lowe asked of Ward the 

official reason for his termination, Monahan related that Ward responded “[t]hat they [Veris] 

would think of something.” Id. Joseph Stoddard also witnessed this exchange, according to 

Monahan. Id. 

Joseph Stoddard was then called as Complainant’s final witness. Tr. 92. Stoddard stated 

that at the time of the matters associated with Lowe’s termination, he was a senior HR manager 

or specialist. Tr. 93. His employment with Veris ended in December 2013. Id. Stoddard was fired 

from Veris at that time. Id. Directed to November 21, 2013, Stoddard agreed that he was in the 

HR Manager’s office on the morning when Lowe was fired and that he also heard the HR 

Manager say words to the effect that they would think of something to support Lowe’s 

termination. Tr. 94. Stoddard further stated that, the week before Lowe’s firing, Ward revealed 

that Veris would be firing Lowe. Id. When Stoddard asked Ward about the reason for doing that, 

Ward said words to the effect that Lowe “got in Chris Jones’s and Mary Buttes’s cross-hairs.” 

37 FMSHRC Page 2346
Tr. 94-95. Although Stoddard asked for more specifics, he stated that Ward “he didn't really have 

an answer for that.” Tr. 95. 

Discussion 

Bearing in mind that Respondent defaulted, waiving its opportunity to defend against the 

claims of Complainant, based on the credible and unrebutted evidence of record, the Court finds 

that Daniel Lowe engaged in protected activity when he complained about the housekeeping 

issues with the two lunchrooms at Veris’ Jerritt Canyon Mill to mill manager Kim and assistant 

mill manager Jones and by his informing those individuals that Veris needed to enforce company 

policy that employees not enter the lunchrooms wearing contaminated clothing. The speeding 

incident, while not a separate basis of protected activity, is instructive to support that Jones was 

angry at Lowe for his complaints about the safety and health housekeeping issues in the 

lunchrooms. Thereafter, on November 21, 2013, Lowe’s employment with Veris was terminated. 

As Veris elected to default at the start of the hearing, despite being fully informed of the 

consequences of that determination, by its then-counsel, Attorney Stanton, the credible record 

evidence establishes that Lowe engaged in the above-described protected activity, that he was 

thereafter fired, and that his termination was motivated by his engagement in that protected 

activity. By virtue of Veris’ default, the record is devoid of any evidence to show that Veris was 

in no part motivated by the miner’s protected activity. Similarly, there is no evidence from Veris 

to show that it would have taken the adverse action in any event for the unprotected activity 

alone. 

Conclusion 

Having found that Daniel Lowe engaged in protected activity and that his employment 

was terminated on November 21, 2013, because of his exercise of that activity, damages may be 

awarded. Reinstatement does not appear to be possible as the Veris operation is now run by a 

new owner. 

Request for Direction from the Commission 

This case has now become complicated by the fact that Veris sought and received 

bankruptcy protection. The hearing in this matter occurred on June 18, 2015. As this decision has 

alluded to, the hearing did not go well for Respondent, Veris Gold, in the companion case of 

Matthew Varady v. Veris Gold, held the week prior to the Lowe matter. No doubt, counsel for 

Respondent recognized that problems similar to those encountered in the Varady matter would 

be present for the Lowe hearing. A harbinger of this, the day after the Varady hearing ended, 

counsel for Veris requested a conference call “to discuss a procedural issue that [he] believe[d] 

affect[ed] both the Varady and Lowe cases.” Email from David M. Stanton, Counsel for Veris 

Gold USA, Inc., to the Court (June 11, 2015, 10:42 EDT). Therefore, it did not come as a 

surprise to the Court that two days after the hearing concluded, Respondent’s attorney advised, 

via email on June 12, 2015, that he was requesting withdrawal from his representation of 

Respondent for both the Varady and Lowe matters. Subsequently, the Court learned that Veris 

has been sold. 

37 FMSHRC Page 2347
Based on news reports, it is the Court’s understanding that the Veris mine resumed 

operations immediately following the ownership change and that most of the same personnel 

continue to work at the mine.9

 It is hoped that, rather than attempt to hide behind successorship 

barriers, the new entity, which literally mines gold, will accept responsibility and pay Mr. Lowe 

such damages as the Court may award, which are expected to be modest. 

In addition, direction is sought from the Commission about how to proceed in this matter 

of first impression. As noted, Veris Gold has been sold. See In re Veris Gold Corporation, No. 

14-51015-gwz (Bankr. D. Nev. June 4, 2015) (order recognizing and enforcing the Canadian sale 

Order).10 This Court recognizes that the Commission has generally held that successorship does 

not eliminate liability for discrimination.11 Bearing in mind that Complainant proceeded pro se

and that the successor entity has never been a party to this matter, the Court, recognizing that it 

cannot act as de facto counsel for Lowe, is uncertain whether it should direct Lowe to file a 

motion to reopen the hearing12 for the purpose of adding the purchaser, WBVG LLC, which is 

wholly owned by WBOX 2014-1 LLC, the DIP Lender, and to 2176423 Ontario Ltd, a company 

 9

 The Elko Daily Free Press reported on June 25, 2015, that Veris Gold Corp. “sold its 

Elko County gold mines Thursday to Jerritt Canyon Gold LLC, but most of the miners will 

remain on the job. The assets sold include the Jerritt Canyon facilities. . . . Jerritt Canyon Gold 

President and CEO Greg Gibson said the majority of the 250 Veris Gold employees at the site 

were hired. . . . Jerritt Canyon Gold is a subsidiary of Sprott Mining which is controlled by 

Canadian billionaire Eric Sprott. Jerritt Canyon Gold owns 80 percent of Veris Gold’s assets and 

the other 20 percent is owned by Whitebox Asset Management, Gibson said. ‘Mining was not 

suspended. Mining will be increased,’ Gibson said. . . . He said the site is on track to produce 

185,000 to 200,000 ounces of gold this year. The sale of the site happened after a Canadian 

bankruptcy court ordered Veris Gold to sell its assets. Veris Gold had filed under Companies’ 

Creditors Arrangement Act in Canada, which is a type of bankruptcy protection, in June of last 

year. It was operating under the protection of the CCAA and the U.S. Bankruptcy Code since 

June 9, 2014.” Marianne K. McKown, Veris Gold sells Jerritt Canyon, Elko Daily Free Press 

(June 25, 2015), http://elkodaily.com/mining/veris-gold-sells-jerritt-canyon/article_9a84e5c1-

c299-5179-8bc6-49f02d15e513.html. 

10 Each of the documents referenced in this section of this decision, all of which were 

transmitted electronically to the Court by then counsel for Veris, Attorney David Stanton, have 

been made part of this record. 

11 See, for example, Sec’y on behalf of Corbin v. Sugartree Corp., 9 FMSHRC 394 (Mar. 

1987), in which the Commission reiterated its successorship doctrine as set forth in Munsey v. 

Smitty Baker Coal Co., 2 FMSHRC 3463 (Dec. 1980), aff’d in relevant part sub nom. Munsey v. 

FMSHRC, 701 F.2d 976 (D.C. Cir. 1983). There, the Commission approved application of nine 

factors to be considered when evaluating the appropriateness of successor liability. 

12 For example, the Commission alluded to such an approach at the appropriate time in 

Simpson v. Kenta Energy, 8 FMSHRC 312 (Mar. 1986). 

37 FMSHRC Page 2348
wholly owned by Eric Sprott, as a party.13 Alternatively, the Court could wait for the Secretary to 

fulfill his obligation to seek a civil penalty and monitor the Secretary’s actions to hold the 

successor liable, while holding a final order in this matter in abeyance until the Secretary’s action 

is completed. Still another route could be to direct the Respondent to bring his judgment before 

the Nevada Bankruptcy court. At paragraph 46 of the Order of the United States Bankruptcy 

Court for the District of Nevada, it states: 

This [District of Nevada United States Bankruptcy] Court shall retain exclusive 

jurisdiction to enforce the terms and provisions of this Order and the Agreement 

in all respects and to decide any disputes concerning this Order and the 

Agreement, or the rights and duties of the parties hereunder or thereunder or any 

issues relating to the Agreement and this Order including, but not limited to, the 

interpretation of the terms, conditions and provisions hereof and thereof, the 

status, nature and extent of the Assets and all issues and disputes arising in 

connection with the relief authorized herein, inclusive of those concerning the 

transfer of the assets free and clear of all Liens, Claims and Interests. This Court 

retains jurisdiction of this proceeding pending the issuance of a final order 

granting relief. 

ORDER 

The concept of damages is to “make whole” a person who has been unlawfully 

discharged. Because Mr. Lowe is not an attorney, the Court offers the following general 

guidance as to allowable damages. Such damages would include reimbursement for expenses in 

seeking reemployment and lost wages plus interest14 from the date of discharge until 

reemployment, if applicable. Because the “make whole” concept of relief does not contemplate a 

windfall to such individuals, any unemployment benefits received for the period between the 

unlawful discharge and the date of new employment, if applicable, are offsets to the damages 

that may be awarded. Litigation-related expenses are awardable. As examples, these would 

include copying expenses; any costs related to subpoenaing witnesses; medical expenses, 

including premiums, that would have been covered by Complainant’s medical insurance, if 

applicable; and lost vacation pay, if applicable. Mileage, telephone calls, and postage are other 

examples of awardable damages. These are examples only. The guiding principle is for a 

complainant to recover the financial reimbursement for items he would have received had his 

employment continued and the expenses in pursuing this litigation, minus benefits received such 

as unemployment compensation. 

13 The reference to owner Eric Sprott is consistent with the reporting in the Elko Daily 

Free Press on June 25, 2015, as reflected in footnote 9, supra. 

14 In Local Union 2274, UMWA v. Clinchfield Coal Co., 10 FMSHRC 1493 (Nov. 1988), 

the Commission directed that in discrimination cases it would use the short-term Federal rate 

applicable to the underpayment of taxes as the rate for calculating interest for periods 

commencing after December 31, 1986. 

37 FMSHRC Page 2349
Some damages are not recognized for relief under the Mine Act. For example, there is no 

authority or precedent for awarding compensatory damages for damage to reputation and/or pain 

and suffering. Bewak v. Alaska Mech., Inc., 33 FMSHRC 2337, 2338 (Sept. 2011) (ALJ); 

Peterson v. Sunshine Precious Metals, Inc., 24 FMSHRC 810, 811-12 (Aug. 2002) (ALJ); 

Casebolt v. Falcon Coal Co., 6 FMSHRC 485, 503 (Feb. 1984) (ALJ). 

Complainant Daniel Lowe is directed to provide his itemized and documented damages 

within 30 days of this decision. 

Commission Rule 44(b), 29 C.F.R. § 2700.44(b), provides that the Judge shall notify the 

Secretary in writing immediately after sustaining a discrimination complaint brought by a miner 

pursuant to section 105(c)(3) of the Act.15 Consequently, the Secretary shall be provided with a 

copy of this decision so that he may file a petition for assessment of civil penalty with this 

Commission. The Secretary of Labor is directed to commence a civil penalty proceeding against 

Veris for this matter. 

So Ordered. 

/s/ William B. Moran 

 William B. Moran 

 Administrative Law Judge 

 

 15 The provision, 29 C.F.R. § 2700.44, “Petition for assessment of penalty in 

discrimination cases,” states, in relevant part: 

(b) Petition for assessment of penalty after sustaining of complaint by 

miner, representative of miners, or applicant for employment. Immediately upon 

issuance of a decision by a Judge sustaining a discrimination complaint brought 

pursuant to section 105(c)(3), 30 U.S.C. 815(c)(3), the Judge shall notify the 

Secretary in writing of such determination. The Secretary shall file with the 

Commission a petition for assessment of civil penalty within 45 days of receipt of 

such notice. 

37 FMSHRC Page 2350
Distribution: 

Daniel B. Lowe, P.O. Box 2608, Elko, NV 89801 

David M. Stanton, Esq., Goicoechea, Di Grazia, Coyle & Stanton, Ltd., 530 Idaho Street, Elko, 

NV 89801 

Veris Gold U.S.A., Inc., HC 31 Box 78, Elko, NV 89801 

Heidi Strassler, U.S. Department of Labor, SOL-Regional Solicitor’s Office, 201 12th Street 

South – 5th Floor, Arlington, VA 22202 

Susan Gillett Kumli, U.S. Department of Labor, Regional Solicitor’s Office, 90 7th Street Suite 

3-700, San Francisco, CA 94103

Bill LeClair, 688 West Hastings Street, Suite 900, Vancouver, BC, V6B 1P1, Canada 

Doug Johnson, Court-appointed Monitor, c/o Ernst & Young, Inc., 700 West Georgia Street, 

Vancouver, BC, V7Y 1C7, Canada 

37 FMSHRC Page 2351
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9958 / FAX: 202-434-9949 

October 21, 2015 

DECISION

Appearances: Sean Allen, Esq., U.S. Department of Labor, Office of the Solicitor, 

Denver, Colorado for Petitioner 

Arthur M. Wolfson, Esq., Jackson Kelly, PLLC, Pittsburgh, Pennsylvania 

for Respondent 

Before: Judge Barbour 

This case is before the court on a petition for the assessment of civil penalty filed by the 

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

(“MSHA”) pursuant to section 105(d) of the Federal Mine Safety and Health Act of 1977 (the 

“Mine Act”). 30 U.S.C. § 815(d). At issue is the validity of 11 alleged violations of the 

Secretary’s mandatory reporting standards for accidents, injuries and illnesses. The standards are 

found in Part 50 of the Code of Federal Regulations and in pertinent part require each operator to 

“investigate . . . each occupational injury at [its] mine,” to “develop a report of each 

investigation” (30 C.F.R. § 50.11(b)), and to complete and mail to MSHA a Mine Accident, 

Injury and Illness Report Form 7000-1 within ten working days of the occurrence of an 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

 v. 

NORTHSHORE MINING COMPANY, 

 Respondent 

 CIVIL PENALTY PROCEEDING: 

Docket No. LAKE 2014-219-M 

A.C. No. 21-00831-341643

Mine: Northshore Mining Co. 

37 FMSHRC Page 2352
“occupational injury.” 30 U.S.C. § 50.20(a).1

 The disputed violations arose out of MSHA’s 

November 2013 audit of records retained by Northshore Mining Company (“Northshore”) and 

records independently made available to MSHA’s auditors. The records involve health related 

incidents that occurred at Northshore’s Silver Bay operation, a facility at which Northshore 

produces and stores and from which it ships iron ore pellets (taconite).2 As a result of the audit, 

safety specialist, Bickel, an authorized representative of the Secretary, issued to Northshore six 

alleged violations of section 50.11(b) and five alleged violations of section 50.20(a). The alleged 

violations were issued under section 104(a) of the Mine Act (30 U.S.C. § 814(a)), and in each 

case Bickel found the alleged violations had no likelihood of resulting in injury or illness to a 

miner and would not cause a miner to lose workdays. The inspector also found that the alleged 

violations of section 50.11(b) were the result of the company’s low negligence and that the 

alleged violations of section 50.20(a) were the result of the company’s moderate negligence. 

The Secretary proposed penalties of $100.00 for each alleged violation of section 50.11(b) and 

$117.00 for each alleged violation of section 50.20(a). 

1

 Section 50.11(b) states in part: 

Each operator of a mine shall investigate each . . . occupational 

injury at the mine. Each operator . . . shall develop a report of each 

investigation . . . . An operator shall submit a copy of any 

investigation report to MSHA at its request. 

30 C.F.R. § 50.11(b). 

Section 50.20(a) states in part: 

Each operator shall maintain at the mine office a supply of MSHA 

Mine Accident, Injury, and Illness Report Form 7000-1. . . . Each 

operator shall report each . . . occupational injury . . . at the mine. 

The principal officer in charge of health and safety at the mine or 

the supervisor of the mine area in which . . .[an] occupational 

injury occurs . . . shall complete or review the form in accordance 

with the instructions and criteria [specified in Part 50]. The 

operator shall mail completed forms to MSHA within ten 

working days after an . . . occupational injury occurs. 

2

 The ore is extracted at Northshore’s Babbit, Minnesota mine in the Mesabi iron range 

and transported approximately 47 miles by rail to the Silver Bay facility. At Silver Bay the ore is 

processed into taconite pellets, stored, and shipped via Lake Superior to buyers in the United 

States, Canada, and elsewhere. Taconite is used in the making of steel. Heart of the North Shore, 

http://www.heartofthenorthshore.com/business/listings.php?id=108, (last visited October 20, 

2015), Tr. 30; See also Tr. 79. Northshore’s Silver Bay facility was described by MSHA safety 

specialist and inspector, Kenneth (“Ken”) Bickel, as operating around the clock, 365 days a year. 

Tr. 30. 

37 FMSHRC Page 2353
The company answered the Secretary’s petition by admitting jurisdiction, but by asserting 

that no violations occurred or, if they did, that the proposed penalties were inappropriate. 

Answer (March 4, 2014) at 1-2. The Commission’s Chief Judge assigned the case to the court 

which ordered the parties to confer to determine if the case could be settled. When counsels 

were unable to resolve their differences, a hearing was scheduled and held in Duluth, Minnesota. 

The primary issue at the hearing was whether the occurrences described in the citations and 

testified to at the trial constituted “occupational injuries” as defined in Part 50.3

 If the various 

incidents were “occupational injuries,” the parties agree the alleged violations existed. If they 

were not, they agree the alleged violations did not occur and the citations should be vacated. 

OCCUPATIONAL INJURIES UNDER PART 50 

As the court has noted previously (Hibbing Taconite Company, 28 FMSHRC 143, 152 

(Mar 2006)), the Commission has directed its judges to follow a specific analytical roadmap 

when deciding if facts fall within a standard. They must look at the “plain language of the 

regulation,” which “[a]bsent a clearly expressed legislative or regulatory intent to the contrary, 

ordinarily is conclusive.” Freeman United Coal Mining Company, 6 FMSHRC 1577, 1578 (July 

1984). Only if the language is ambiguous should they consider the Secretary’s interpretation, to 

which they must defer if it is reasonable and not plainly inconsistent with the regulation. See 

Island Creek Coal Co., 20 FMSHRC 14, 18-19 (Jan 1998). 

 In Freeman the Commission noted that, 

[S]ection 50.2(e) defines an “occupational injury” as “any injury

that occurs at a mine for which medical treatment is administered, or

which results in death or loss of consciousness, inability to perform

all duties on any day after the injury, temporary assignment to other

duties or transfer to another job.”

6 FMSHRC at 1578. 

The Commission stated that although the term “injury” is not further defined, “The 

ordinary meaning of injury is: ‘an act that damages harms, or hurts;’ or ‘hurt damage, or loss 

sustained.’” Webster’s Third New International Dictionary (Unabridged) 1164, (1978). 

6 FMSHRC at 1578-79. 

3

 In Part 50, an “occupational injury” is defined as: 

[A]ny injury to a miner which occurs at a mine for

which medical treatment is administered, or which result in 

death or loss of consciousness, inability to perform all job 

duties on any day after an injury, temporary assignment to 

other duties, or transfer to another job. 

30 C.F.R. §50.2(e). 

37 FMSHRC Page 2354
The Commission further stated that, “The remainder of the definition in section 50.2(e) 

refers only to the location where the injury occurred (‘at a mine’), and to the result of the injury 

(‘medical treatment,’ ‘death,’ etc.).” 6 FMSHRC at 1579. The Commission concluded that, 

“[S]ections 50(2)(e) and 50.20(a), when read together, require the reporting of an injury if the 

injury – a hurt or damage to a miner -- occurs at a mine and if it results in any of the specified 

serious consequences to the miner.” Id.

In the matters at hand, none of the alleged “hurt or damage” to the miners resulted in 

death. The question is whether it led to any of the other specified “serious consequences,” most 

often whether it led to “medical treatment” or to the injured miner’s “inability to perform all job 

duties on any day after an injury.” 30 C.F.R. § 50.2 (e). 

In determining what constitutes “medical treatment” it is helpful to keep in mind that the 

Secretary has listed many medical procedures that he considers reportable, many medically 

related procedures he regards as non-reportable, as well as procedures he regards as nonreportable “first aid.” See 30 C.F.R. § 50.20-3(a)(1) – 3 (a)(8). Among the procedures regarded 

as “medical treatment” are suturing of any wound, treatment of fractures, treatment of infection 

arising out of an injury, treatment of bruises, amputation or the permanent loss of the use of any 

part of the body, and treatment of second or third degree burns. Excluded from “medical 

treatment” are procedures that are diagnostic in nature, visits to health care providers where no 

evidence of injury is found and no medical treatment is given, and preventative procedures such 

as tetanus shots. Recognizing the lack of a “bright line” between treatments that are medical and 

those that are considered first aid, the Secretary has included in the regulations specific examples 

of procedures he views as “first aid” with regard to the treatment of abrasions, bruises, burns, 

cuts, eye injuries, inhalation of toxic or corrosive gases, foreign objects, sprains and strains. See

30 C.F.R. § 50.20-3(a)(1)-3(a)(8). 

THE AUDIT AND THE CITATIONS 

Ken Bickel works in MSHA’s North Central District office located in Duluth, 

Minnesota.Tr. 26, 51. He holds a bachelor’s degree in mining engineering. He has worked for 

MSHA for eight years. Tr. 26, 28. Part of his training to become an authorized representative 

involved training in the requirements for reporting occupational injuries under Part 50. Tr. 29. 

Bickel explained that citations for violations of Part 50 frequently are issued as the result of a 

Part 50 audit, and he described how MSHA conducts such an audit. According to Bickel, the 

company is notified that MSHA personnel (the auditors) are coming to the mine, and the 

company is asked to gather “paperwork” for the auditors to review. Tr. 31. Usually, the MSHA 

team consists of four auditors. Tr. 31. In the case of Northshore’s Silver Bay facility, Bickel was 

not among the four. In fact, he was not “on site” at any time during the audit. Tr. 53. He 

explained, “After the audit team completed [its] work . . . [the auditors] came to the [MSHA] 

district office and we sat down and had a meeting and they presented the information they found 

. . . and then they identified what they felt were possible violations of some of the Part 50 

requirements.” Tr. 32. 

Bickel testified that following the meeting regarding the Northshore audit, he reviewed 

all of the information presented to him by the auditors and determined it established eleven 

“citable offences.” Tr. 32, 33, 53. The materials Bickel reviewed included medical records, 

37 FMSHRC Page 2355
Northshore’s internal reports about specific incidents, and the company’s time sheets showing 

when miners worked and did not work. Tr. 33. After he reviewed the materials, Bickel 

“prepared the citations and delivered them to Northshore.” Tr. 32. 

THE BURDEN OF PROOF 

The Secretary bears the burden of proving the alleged violations by a preponderance of 

the evidence. See ASARCO Mining Company, 15 FMSHRC 1303, 1306-1307 (July 1993) (citing 

Jim Walter Resources, Inc., 903, 907 (May 1987); Wyoming Fuel Co., 14 FMSHRC 1282, 1294 

(Aug 1992)). 4

THE ALLEGED VIOLATIONS

Citation No. Date 30 C.F.R. § 

6556654 11/22/13 50.20(a) 

Citation 6556654 states in pertinent part: 

The operator failed to submit . . . MSHA Form 

7000-1 for an occupational injury sustained 

on 8/3/2012 to employee number (613047), 

a miner working at the . . . [c]ompany, 

within ten working days after the occurrence 

of the injury. The employee sustained a 

concussion that made him loss [sic.] 

consciousness. As of today’s date, a report 

of this injury has not been received by MSHA, 

approximately 450 days past the submittal 

date of the 7000-1 form. Mine management is 

aware of the reporting requirements regarding 

occupational injuries. 

Gov’t Exh. P-2. 

The inspector found that the alleged violation had no likelihood of causing an injury or 

illness and that the failure to report the injury was due to the company’s moderate negligence. 

4

 Because much of the documentary evidence and testimony relates to personal medical 

information and because names of the miners associated with the information are used in many 

of the documents and in the transcript, to protect the miners’ confidentiality, the exhibits and the 

transcript have been sealed by the court. The sealed exhibits and the transcript are fully available 

to the Commission should it review this decision and to any subsequent court of review. 

However, they are not available to the public at large. An order sealing the referenced parts of 

the record was issued by the court prior to the issuance of this decision. Order Sealing Record 

(October 9, 2015). 

37 FMSHRC Page 2356
Citation No. Date 30 C.F.R § 

 6556655 11/22/13 50.11(b) 

Citation No. 6556655 states in pertinent part: 

 The operator’s occupational injury investigation 

 report for the occupational injury occurring on 

 8/3/2012 to employee number (613047) did not 

 include all required information as identified 

 under [§ ]50.11(b). The investigation report did 

 not include (2) the date the investigation began, 

 (8) steps taken to prevent a similar reoccurrence, 

 and (9) identification of any report under [§ ]50.20. 

Gov’t Exh. P-6. 

The inspector found that the alleged violation had no likelihood of causing an injury or 

illness and that the failure to report the injury was due to the company’s low negligence. 

 THE TESTIMONY

Bickel stated that as a result of his inspection of the company’s documents, he concluded 

that the company violated section 50.20(a) and 50.11(b), because an employee suffered a loss of 

consciousness as a result of a mine site incident, and because “loss of consciousness meets . . . 

MSHA’s definition of a reportable . . . occupational injury.” Tr. 34.5 Bickel’s conclusion was 

based in part on his review of the company’s Incident Reporting Form, a company document 

used to report events at the mine that may have or that could have caused an injury to a miner or 

to miners. 6 Tr. 36-37. 

The form asks for a brief description of the incident, and Bickel noted that in describing 

an August 3 incident, the person who completed the form wrote, “Debris fell from overhead and 

hit employee.” Gov’t Exh. P-3. Where a more detailed description is called for, the person 

wrote: 

 A day crew employee called the control room and 

asked them to put the precept in run. This caused 

the hood fan flopgate to flop and sent debris 

falling down to the main part of the fancase. The 

injured Employee was in the main case of the hood 

fan welding on the fan blades when a small piece of 

 5

 As noted previously, 30 CFR 50.2(e) states in part, “Occupational injury means any 

injury to a miner which occurs at a mine for which medical treatment is administered, or which 

results in death or loss of consciousness.” (emphasis added). 

6

 According to Bickel when such an event occurs management personnel investigate and 

one of the investigators completes the form. Tr. 36-37. 

37 FMSHRC Page 2357
debris fell and hit his head. We were in the process of 

getting out of the fan when a large amount of 

debris fell on the employee. Two maintenance 

technicians removed the employee from the fan 

case and proceeded to check the injured employee 

for injuries. He had no apparent injuries, but he 

was brought to the clinic[.] 

Gov’t Exh. P-3 at 2. 

At a place on the form where the person who completes the form is asked to check a box 

denoting the severity of the incident, the person checked, “Report Only.” The person did not 

check, “MSHA Reportable.” Gov’t Exh. 3 at 1. 

Bickel also reviewed progress notes from the Bay Area Health Center in Silver Bay, a 

clinic run by Duluth’s St. Luke’s Hospital. The notes, which are dated August 3, 2012, the date 

of the incident, were given to Bickel by the audit team. Tr. 37-38; Gov’t Exh. P-4. The notes 

were prepared by a physician’s assistant, Charles Wall. 7

 Tr. 38. The notes state: 

 Patient seen urgently from local iron ore processing 

plant, he was welding inside a fan motor . . . when a 

large piece of ore ash fell . . . landed on top of his head 

and [on the] left side of his neck. Patient is uncertain of 

loss of consciousness, however, there is a distinct [gap] 

in [his] timeline. He is alert and oriented x4. No initial 

complaints however left side of neck became very painful 

during examination. 

Gov’t Exh. P-4 at 1. 

 In additional comments, Wall stated: 

 Patient remembers being hit on top of head 

 (wearing hard hat), he then reports hearing his 

name being yelled . . . loud[ly] by coworker 

and being pulled out of the fan motor by his 

leg, was confused initially by yelling. 

Described feelings of “cobwebs” in my head, 

he admits to incomplete recall of events 

following trauma. Coworker present reports 

no witnesses to loss of consciousness as . . . 

taconite dust from debris prevented visualizing 

patient. 

Gov’t Exh. P-4 at 2. 

 7

 Although Bickel reviewed Wall’s notes, Bickel never spoke with Wall; nor did Bickel 

know if anyone on the audit team spoke with Wall. Tr. 54. 

37 FMSHRC Page 2358
In assessing the Employee’s condition Wall stated, “Head injury, closed, with concussion 

. . . . Probable loss of consciousness.” Gov’t Exh. P-4 at 2. Wall also noted that he had 

“[a]ctivated EMS” and that the Employee was being transferred by ambulance to the emergency 

room of St. Mary’s Hospital in Duluth. Gov’t Exh. P-4 at 2; Tr. 55-56. 

Bickel explained why Walls’s progress notes (Gov’t Exh. P-4) influenced him to 

conclude the incident was reportable under Part 50: 

I thought [it was] . . . important 

because [i]t state[s] . . . that the patient was 

uncertain of loss of consciousness but that there 

were gaps in his timeline. Apparently, he wasn’t 

thinking . . . clearly after [the incident] happened. 

And then on the next page, it states that he 

remembers being hit on top of the head and 

he was wearing a hard hat but then reports 

hearing his name being yelled and very loud by 

[a] coworker and [being] pulled out of the fan

motor by his legs and he was confused

initially by the yelling, and he describes feeling

cobwebs in his head, admits to incomplete

recall of events.

Tr. 39. 

Bickel further stated he found it significant that: 

[The injury to the Employee] was assessed as 

being a head injury, closed, which . . . I assume . . . 

means there wasn’t any blood, but with a concussion 

and also probable loss of consciousness. [T]he 

other thing that may have been somewhat 

important, he was transported to the facility 

by an ambulance, which kind of indicated to 

me that it was potentially serious. 

Tr. 39-40. 

Bickel did not review any subsequent documents from St. Mary’s. Tr. 56. However, 

Northshore offered a note of the St. Mary’s Emergency Department attending physician, Andrea 

Boehland. Dr. Boehland states in part that the Employee was, “[A]t work today at taconite plant 

in Silver Bay when [a] 40 pound clump of dried taconite mud fell 30 feet from a smoke-stack 

silo and hit him on the head, breaking apart on impact. No [loss of consciousness].” Resp. Exh. 

6 at 1. 

Bickel did not have Dr. Boehland’s note when he decided to issue the citations. Tr. 61. 

Bickel maintained that in a Part 50 audit the operator is required to provide medical records to 

37 FMSHRC Page 2359
MSHA and that because he did not see Boehland’s note, Northshore “apparently [did] not . . . 

provide all the documentation concerning [the] incident.” Tr. 61. 

Bickel further testified that he also looked at notes made by Kathy Cattles, a member of 

the audit team. Bickel understood that Cattles “reviewed some of the documents and . . . 

identified this incident as a possible occupational injury and gave this information to the lead 

person on the audit team for further investigation.” Tr. 42. Bickel used Cattles’ notes because 

they “sort of verified some of the information that was contained in some of the other 

documentation.” Id. When he was asked what that information was, he stated: 

 Possible loss of consciousness . . . some 

of the facts pertaining to the incident, where 

the material fell [,] . . . that he was very anxious, 

that after [the] incident occurred he was . . . 

unable to count back from 100 or spell 

“world” backwards. It indicated to me that . . . he 

wasn’t thinking clearly after it happened. 

Tr. 42. 

Bickel summarized MSHA’s position as to the two alleged violations, “In the definition 

section in Part 50, it describes loss of consciousness or an accident where a loss of consciousness 

occurs as a reportable injury. So based on that, I felt it was a reportable injury.” Tr. 50. Bickel 

was asked by the court, “And it’s as simple as that?,” and he responded, “Yeah.” Id. 

Kathy Cattles is an MSHA training specialist in MSHA’s EFS Group.8

 Tr. 65 As such, 

she participates in Part 50 audits. Id. Cattles explained that Part 50 audits are conducted between 

June and August. Tr. 66. She described the purpose of a Part 50 audit as making sure the audited 

company has correctly complied with Part 50. Tr. 67. Essentially the audit is a “verification 

process.” Id. 

Cattles recalled that in November 2013 she was part of the team that went to Northshore. 

It was the third audit in which Cattles participated, but her first at Northshore. Tr. 75. As Cattles 

remembered, the auditors checked the accident records given to the team by the company and 

reviewed pertinent information from hospitals, doctors, and ambulance providers. Tr. 68. The 

team also conducted interviews with two groups of miners; one was a representative group of all 

miners and the second was miners who had been injured or “potentially injured.” Id. Cattles’ job 

during the audit was to monitor the records looking for injuries she believed were reportable and 

then determine if the injuries had been reported as required. Tr. 69. 

With regard to the subject Employee, Cattles reviewed Northshore’s Incident Reporting 

Form (Gov’t Exh. P-3) and Wall’s Progress Notes (Gov’t Exh. P-4). Tr. 71-72. The documents 

raised questions in Cattles’ mind as to whether the injury that occurred as a result of the August 3 

 8

 Cattles testified that, “EFS” stands for “Education Field, Small Mines” and among her 

duties are conducting Part 50 audits and monitoring operators’ training plans. Her primary office 

is in Gillete, Wyoming. Tr. 65. 

37 FMSHRC Page 2360
incident was reportable. In her notes, she wrote “loss of consciousness?” Tr. 75-76; Gov’t Exh. 

P-5. She testified that she gave her notes to the audit team leader (Gov’t Exh. P-5). The team

leader reviewed the materials. Tr. 72. She “guessed” the team leader then wrote a summary of

the information and turned it over to the MSHA District Manager, who together with Bickel,

decided whether or not to issue citations based on the materials. Tr. 72-73.

The Employee, a railroad car repairman, testified for Northshore.9 The Employee stated 

that although he normally works at the Babbit Mine, in August 2012, he temporarily worked at 

the Silver Bay facility during the plant’s shutdown. Tr. 79. The Employee recalled that on 

August 3, he was working on a hood fan at the pelletizer. There, iron ore concentrate is made 

into pellets that then are transferred by a conveyor to a furnace were they are dried. Tr. 81-82. 

During the shutdown one of the furnace’s hood fans had to be repaired. The Employee described 

how he accessed a confined space inside the furnace to weld the fan’s blades. Tr. 82. The 

Employee was the only person in the chamber, although there was another employee working in 

an adjacent chamber and an additional employee outside the chamber. Tr. 83. The Employee 

testified that he was wearing a welding helmet, a hard hat, welding gloves, a welding jacket and 

steel-toe boots. Tr. 84. The Employee described what happened: 

About 25 to 30 feet above me, there was a flop 

gate that opens and closes . . . [to control] the 

draft from the fan . . . and there was an 

electrician functioning the flop gate, opening it 

and closing it to test it, and there was built up 

concentrate up above that got knocked loose 

and it came down. 

Tr. 84. 

According to the Employee, falling concentrate hit his shoulders and back and “a little bit 

came down on [his] head.” Tr. 85. The concentrate broke apart when it struck the Employee 

making the area very dusty. It also smashed a flood light inside the chamber. Tr. 85. The 

Employee testified that the blow from the falling material staggered him. Tr. 86. He stated, “It 

got very dark all of a sudden and I got almost knocked down to my knees. I was able to get up 

right away and I turned around and I saw the access panel and I went to climb out, and . . . [the 

other employees] helped me out.” Tr. 86. He maintained that he did not lose consciousness. Id. 

He was sure of this because he recalled hearing the other employees hollering and one said, 

“[Q]uick, get him out of there.” Id. They then grabbed his arms and pulled him out of the 

chamber. The Employee stated that he was “shook up” and that he “sat down and leaned up 

against the side of the panel just to make sure [he] was okay.” Id. 

Shortly thereafter the Employee’s supervisor, John Jones, arrived. Tr. 87. Jones asked 

the Employee what happened. The Employee explained, and Jones said, “[W]e [had] better take 

you to the clinic to get checked out.” Tr. 87. The Employee and Jones walked to Jones’ pickup 

9

 Northshore owns and operates the railroad that transports ore from its Babbit Mine to 

its Silver Bay facility. Tr. 80. 

37 FMSHRC Page 2361
truck and Jones drove the Employee from the plant to the clinic in Silver Bay, a seven to ten 

minute trip. Id. 

The Employee stated that at the clinic Wall gave him three “mind questions” to see if the 

Employee was “able to think properly.” Tr. 89. First, he asked the Employee to count backwards 

by sevens. Tr. 89. The Employee testified that he did not perform very well. Tr. 89. He 

acknowledged that he was not strong in math. Tr. 89-90. Wall then asked the Employee to spell 

the word, ”world” backwards. The Employee said that “was a little easier, but I . . . still had 

trouble.” Tr. 90. Finally, Wall gave the Employee a pencil and paper and asked him to draw the 

numbers on a clock and make the hands point to seven minutes past an hour. Tr. 91. The 

Employee stated, “that one was fine.” Id. 

When he was cross examined, the Employee was asked to direct his attention to Wall’s 

report that the Employee “[d]escribed [feeling] ‘cobwebs’ in [his] head.” Gov’t Exh. P-4 at 2; Tr. 

98. The Employee was asked, “Did you tell that to Mr. Wall?” Id. The Employee answered that 

he did not remember. Id. He further was asked to look at Wall’s statement that the Employee, 

“admits to incomplete recall of events following trauma” (Gov’t Exh. P-4 at 2), and he was asked 

if that is what he told Wall. Tr. 98. The Employee responded, “Yes.” Tr. 99. The Employee 

further agreed that Wall told him he had a “probable loss of consciousness.” 10 Id. Wall also told 

him that he might have a concussion. Tr. 92. Therefore, Wall sent the Employee to the ER in 

Duluth. Id. 

At the hospital in Duluth the Employee had a CT scan. In addition, his right foot was “xrayed,” and the Employee was examined by emergency room doctor, Andrea Boehland. Tr. 93. 

According to the Employee, Dr. Boehland told him that the scan and x-ray were “clear” and that 

she “couldn’t find anything wrong.” Id. The Employee also testified that Dr. Boehland did not 

tell him he had a concussion. Tr. 94. He stated that he was “not sure” what Dr. Boehland’s 

diagnosis was, but the Employee remembered Dr. Boehland telling him not to drive that night 

and to stay at someone else’s house “in case of any complications.” Id.

The incident happened on a Friday. The employee’s normal work schedule was Tuesday 

through Friday. Tr. 96. The Employee stayed with his mother and father on Friday night. 

Saturday, he returned to the plant, picked up his car and drove 56 miles to his house. Tr. 96. On 

Tuesday, he returned to work as scheduled. Tr. 96-97. 

Scott Blood is the company’s senior safety representative at the Silver Bay facility. As 

such, he is responsible for administering the company’s safety program and for handling 

workers’ compensation claims. Tr. 102. Blood has held the post of senior safety representative 

for over 20 years. Id. Blood explained the procedures at the mine with regard to investigating 

work place incidents: “[W]henever there’s an incident, we do an initial investigation of the 

site . . . interviewing the employee, and then on the follow-up for that, I also handle the reporting 

for MSHA and also handle the work comp aspect.” Tr. 103. 

When asked to explain his role in determining if an injury is reportable to MSHA, Blood 

replied: “[A]fter doing the . . . physical investigation, as well as discussing what happened with 

 10 On redirect the Employee was asked, “And just to be clear, did you lose 

consciousness?,” and he answered, “No, I did not.” Tr. 101. 

37 FMSHRC Page 2362
the employee, we get the medical note that’s available . . . if they did treat, we get that, and then 

we will sit down and review those findings and compare it to the standard to determine if it’s 

reportable.” Tr. 103. 

With regard to the incident involving the subject Employee, Blood testified that on the 

morning of August 3 he was in his office at the plant when he received a telephone call 

informing him that the Employee had been hit by debris in the area of the hood fan. Tr. 104. 

Blood immediately set out for the area, but by the time he reached it, Jones and the Employee 

had left for Silver Bay. Id. Blood stated that he spoke with the two miners who worked in the 

area with the Employee so he could “kind of get a feel for what happened.” Tr. 104. Blood 

maintained that during the conversation he asked if the Employee had lost consciousness. Tr. 105 

(“I know what the requirements [for reportable injuries] are and that’s something I’m thinking 

about right away.” Id.) The miners told him, “No.” Tr. 106. They explained that there was “a 

big cloud of dust and they yelled for him right away just to make sure that they had contact with 

each other.” Id. 

Blood stated that he then drove to the clinic to speak with the Employee. Tr. 104-106. He 

was concerned about what further might need to be done. He stated that, “[T]he clinic . . . 

[doesn’t] provide anything from an emergency standpoint, x-rays, CT scans, so we’re looking at 

what we need to do . . . as far as . . . further medical treatment.” Id. According to Blood, when 

he arrived at the clinic, Wall, told him that he (Wall) was sending the Employee to Duluth for a 

CT scan, “[j]ust as a precaution.” Id. Blood stated that he asked the Employee to call him that 

evening. The Employee called, and Blood remembered the Employee telling him that an x-ray 

of his foot showed “nothing broken . . . just a bruise” and that “he was released back to work 

with no restrictions.” Tr. 107. 

Blood also identified a Report To Work Ability form he received from the clinic in Silver 

Bay. Tr. 108; Co. Exh. R-3. Blood needed the document to complete workers’ compensation 

paperwork. It was transmitted to him by fax four days after the incident. Tr. 110-111. The 

report states that the Employee “is able to work without restrictions,” (Co. Exh. R-3.), which, 

Blood maintained, is exactly what happened. Tr. 108. “His next scheduled shift was . . . the next 

week and he came in for that.” Id, see also Tr. 113. 

THE VIOLATION

The sole question is whether the Secretary proved that on August 3, 2012, the Employee 

suffered an “occupational injury” as defined in section 50.2(e). “If the Secretary did,” the injury 

should have been reported by Northshore in compliance with sections 50.20(a) and 50.11(b), 

something the parties agree did not happen. 

Although the testimony concerning the allegations occupies over 100 pages of the 

transcript, the issue can be disposed of in a few paragraphs. Inspector Bickel was clear that he 

issued the citation because there was a “loss of consciousness.” Tr. 34. Any injury resulting in a 

“loss of consciousness” is specified as an “occupational injury” (30 C.F.R. § 50.2(e)) and hence 

is reportable. “Loss of consciousness” is defined in part as “the subject’s suspension of his 

conscious relationships with the outside world, during a time generally lower than 3 minutes.” 

Heart & Vessels, http://www.heart-vessels.com/cardiovascular-diseases/loss-consciousness.php. 

37 FMSHRC Page 2363
(last visited October 20, 2015). “Loss of consciousness” is also defined as, “The occurrence of a 

loss of the ability to perceive and respond.”

Mnemonic Dictionary, http://www.mnemonicdictionary.com/?word=loss+consciousness (last 

visited October 20, 2015) 

The Secretary did not prove that after being hit on the head by falling debris, the 

Employee lost his conscious relationship with the outside word and/or his ability to perceive and 

respond. Indeed, the evidence goes the other way. Bickel testified that he was influenced by 

Wall’s note that the Employee suffered a ‘[p]robable loss of consciousness.” Gov’t Exh. P-4 at 2; 

Tr. 55-56; see also Tr, 39-40. He was further influenced by the fact that the Employee was 

confused immediately after the accident, that the Employee reported to Wall that he felt 

“cobwebs in his head,” and that he admitted to Wall an “incomplete recall of events.” Tr. 39-40; 

Gov’t Exh. P-4 at 2. Wall’s description of the loss of consciousness as “probable” falls short of 

establishing what the Employee actually experienced, and “confusion,” “cobwebs” and 

“incomplete recall” after the accident might or might not be evidence of a loss of conscious 

relationship with the Employee’s surroundings or of his loss of ability to perceive and respond. 

Wall’s was the first examination of the Employee and he made his assessment without the 

benefit of diagnostic tools such as a CT scan. Later that day, when the Employee was examined 

by a doctor who had the results of a previously ordered CT scan, the doctor reported the scan 

was negative and that there was no loss of consciousness (“LOC”). Resp. Exh.6 at 2. 

More important, the Employee, the only person with first-hand knowledge of what he 

experienced, testified he did not lose consciousness. Tr. 86. The credibility of his testimony is 

buttressed by the unrefuted testimony of the things that occurred and the actions he took 

immediately after the concentrate fell on him: being almost knocked to his knees, getting up, 

perceiving it was dark, hearing the other employees hollering to him, and traveling to the access 

panel. Tr. 85-86. These things strongly imply that after the accident the Employee retained the 

ability to perceive his situation and to respond appropriately, and for these reasons, the court 

finds that the Secretary fell short of proving the Employee suffered a loss of consciousness. 

Nor did he prove or even allege the other indices of an “occupational injury.” There was 

no showing the Employee was unable to perform any of his job duties when he reported for work 

without restrictions on his next scheduled work day, Tuesday, August 7. Tr. 96-97; 108, 113; 

Resp. Exh. R-3. Nor was there a showing that “medical treatment” was administered as a result 

of the accident. The x-ray and CT scan received by the Employee at St. Mary’s Center 

Emergency Department, both of which showed nothing amiss, were diagnostic in nature, and 

since no evidence of injury was found they were not “medical treatment.” Resp. Exh. R-6 at 2; 

30 CFR § 50.20-3(a). 

The citations will be vacated. 

Citation No. Date 30 C.F.R. § 

6556656 11/22/13 50.20(a) 

37 FMSHRC Page 2364
The citation states: 

The operator failed to submit the Mine Accident, 

Injury and Illness Report (MSHA Form 7000-1) for 

an occupational injury sustained on 2/6/13 to 

employee number (30486), a miner working at 

the Northshore Mining Company, within ten 

working days after the occurrence of the injury. 

The employee sustained a back injury that 

resulted in two lost workdays. As of today’s date, 

a report of that injury has not been received 

by MSHA, approximately 270 days past the 

submittal date of the 7000-1 form. Mine 

management is aware of the reporting 

requirements regarding occupational 

injuries. This is the second citation for this 

standard during this audit. 

Gov’t Exh. P-7. 

The inspector found the alleged violation had no likelihood of causing an injury or illness 

and that the failure to report the injury was due to the company’s moderate negligence. Gov’t 

Exh. 7. 

 Citation No. Date 30 C.F.R. § 

6556657 11/22/13 50.11(b) 

 The citation states in pertinent part: 

 The operator’s occupational injury investigation 

 report for the occupational injury occurring on 

 2/6/13 to employee number (30486) did not 

 include all required information as identified 

 under 50.11(b). The investigation report did 

 not include (2) the date the investigation began, 

 (8) steps taken to prevent a similar reoccurrence, 

 (9) identification of any report under 50.20. 

 This is the second citation for this standard 

 during this audit. 

Gov’t Exh. P-14. 

The inspector found the alleged violation had no likelihood of causing an injury or illness 

and that the failure to report the injury was due to the company’s low negligence. Gov’t Exh. 7. 

37 FMSHRC Page 2365
THE TESTIMONY 

Bickel explained his reason for issuing the citations, “[B]ased on the information 

provided to me, the [E]mployee . . . sustained a back injury that resulted in lost work, which 

meets MSHA’s definition of an occupational injury.” Tr. 116. Among the information Bickel 

considered was the company’s Incident Reporting Form. Gov’t Exh. 8; Tr. 117. He noted that 

the form quoted the Employee as stating, “I turned to get out of my desk and felt a sharp pain in 

my back.” Gov’t Exh. P-8 at 2. According to Bickel, the statement “kind of establishes that . . . 

[the incident] occurred at work.” Tr. 117. He also noted that the form quotes the Employee as 

stating, “I did not have an issue until 5:00 p.m. when I got to Duluth and had a tough time getting 

out of my car.” Gov’t Exh. P-8 at 2. In addition, he observed that on the form where the 

Employee is asked to describe the extent of her injury, the Employee wrote, “Sore back and will 

not know the exten[t] until time has past.” Id.; Tr. 118. 

Bickel further reviewed a work assessment form from St. Luke’s Medical Clinic in 

Duluth. Tr. 120; Gov’t Exh. P-9. The form is dated February 7, 2013, the day after the incident. 

Gov’t Exh. P-9. The form is signed by Craig L. Gilbertson, MD. On the form Dr. Gilbertson 

diagnoses the Employee as suffering from a “work-related, acute low back injury.” Gov’t Exh. 

P-9. He further states that the Employee, “[h]as been advised to remain off work from 2/7/13

through 2/18/13” and that her “[w]ork ability will be re-evaluated on 2/18/13.” Id.; Tr. 119-120.

Bickel further found relevant the office visit notes of Dr. Brian Konowalchuk, a 

physician in the Occupational Medicine Clinic of Essential Health in Duluth. Tr. 121; Gov’t Exh. 

P-9 at 2-3. On February 11, 2013, five days after the incident, the employee visited Dr.

Konowalchuk at the clinic. Dr. Konowalchuk states that the Employee:

reports that on the date of injury while working 

at Northshore . . . she was performing her usual 

activities. She reports some interesting events one of 

which was moving some pillars and then later putting 

some boxes on a high shelf. She did not notice anything 

unusual, but sometime later that day was standing 

up trying to get out of a chair she noted immediate 

onset of back pain. The pain intensified over the next 

couple of days. [S]he went to her primary care 

provider and was placed on work restrictions and rest. 

She has been out of work since the 18th [11] and 

she would like to return to work. 

Gov’t Exh. 9 at 2. 

11 The reference to February 18 is clearly an error on the doctor’s part. The sentence 

should read, “She has been out of work since the 8th.” See Tr. 139-140. 

37 FMSHRC Page 2366
 Dr. Konowalchuck further states: 

I am going to start her on some physical 

strengthening. I have encouraged her to 

discontinue muscle relaxants if not helpful. 

I will see her . . . this Friday. For now I have 

released her to light duty work. Hopefully 

we can get her back to regular duty work 

within a week. We will see. 

Gov’t. Exh. P-9 at 3. 

Bickel testified that his decision to issue the citations was also influenced by the Duluth 

Clinic’s Report of Work Ability Form. Tr. 122; Gov’t Exh. P-9 at 4. The form indicates that on 

February 15, nine days after the incident, Dr. Konowalchuk released the Employee to work 

without restrictions.12 Gov’t Exh. P-9 at 4; Tr. 122. The fact that she was released to work 

without restrictions indicated to Bickel that the Employee’s duties previously had been 

restricted as a result of her back injury. Tr. 123. Bickel noted that the “definition of 

occupational injury includes not just lost work days, but time where the employee’s on the job 

doing different functions or is restricted in [job] duties [e.g., ‘light duty work’] [b]ecause of the 

injury.” Tr. 121-122. 

According to Bickel, the company’s bi-weekly salary report for February 3, 2013, 

through February 16, 2013, confirms the Employee missed work because of the incident. Gov’t 

Exh. P-10. The incident occurred on Wednesday, February 6. The following day, Thursday, 

February 7, the Employee worked one hour and a half, and then went to the hospital to have her 

back checked. Her pay record shows that she was excused from work with pay on Friday, 

February 8, on Monday, February 11, and on Tuesday, February 12. Tr. 128, 129; Gov’t Exh. 

10. Because the Employee was excused from work with pay those days, Bickel concluded her 

work absences were “probably due to her back injury.” Tr. 129. Bickel noted that the doctor 

she saw on February 7, Dr. Craig Gilbertson, recommended the employee be off work from 

February 7 through February 18. Tr. 129; Gov’t Exh. 10 at 1. In Bickel’s opinion, the 

Employee missed work, “[b]ecause she had a sore back.” Tr. 129. 

Bickel also confirmed that he reviewed a document issued by the Essential Health 

Clinic, a clinic located in Hibbing, Minnesota. Tr. 131; Gov’t. Exh. P-11. The document 

contains the copy of an email from Scott Blood to Kim Yuretich, an employee of the clinic. 

The email was sent by Blood to Yuretich on November 7, 2013. The subject of the email is 

“Northshore Mining Employee [Appointment].” Gov’t Exh. P-11. In the e-mail, Blood states 

that the Employee told him that she felt a “twinge” in her lower back when she got up to leave 

work on Wednesday, February 6, and that as the evening went on “she felt a more constant pain 

in her low back area.” Gov’t Exh. P-11. Blood further states that the Employee, “was able to 

come to work this morning [Thursday, Feburary 7] for a couple of hours but the pain persisted. 

 12 Doctor Konowalchuk dates the form “11 Feb 2013,” but this appears to be another 

error in that the form states he saw the employee at 3:00 p.m. on February 15, 2013. Gov’t Exh. 

P-9 at 4. 

37 FMSHRC Page 2367
She made an appointment with a Dr. Gilbertson . . . [who] took x-rays and provided her with 

muscle relaxants and pain killers.” Tr. 132. Dr. Gilbertson authorized her to stay off work until 

February 18th. Gov’t Exh. P-11. Blood continues that the Employee made an appointment with 

Dr. Konowalchuk on February 11 at the Essential Health Clinic in Duluth. Id.; Tr. 132. Bickel 

testified that he viewed the document as, “further evidence of what happened, that [the 

Employee] sustained the injury on Wednesday, it got worse overnight and she went to the 

doctor on Thursday . . . and then . . . he . . . made the recommendation to stay off work till 

February 18th.” Tr. 132. 

Bickel identified Kathy Cattles’ notes of November 14, 2013. He testified that prior to 

issuing the citations, he reviewed the notes. Tr. 134; Gov’t Exh. P-12. The notes indicated to 

Bickel that the Employee’s medical records raised the question in Cattles’ mind as to whether 

the Employee’s injury was reportable.13 Tr. 134-135; Gov’t Exh. 12. He also reviewed notes 

taken by Cattles documenting an interview with the Employee. Tr. 135; Gov’t Exh. G-13. The 

Employee, Cattles, MSHA investigator, Jeff Hoblick, and Scott Blood, were present during the 

interview. Tr. 135. Cattles’s notes state the Employee was asked, “Did you take days off 

because of [your] back?” and quotes the Employee answering, “Yes.” Gov’t Exh. 13; Tr. 135. 

Bickel stated, “[A]ny accident or incident that results in time off for [an] employee due to [an] 

injury is reportable.” Tr. 136.

On cross examination, Bickel clarified that a reason why he concluded the injury to the 

Employee was reportable was because the Employee missed three days of work. 

Question. I believe your testimony was that you determined there was a reportable 

injury based on [the employee] missing three days. Is that correct? 

Answer. Yeah. She missed work on Friday, Monday, and Tuesday. 

Tr. 139. 

However, Bickel also agreed that simply seeing a doctor following an injury did not 

make the injury reportable. Tr. 139. 

Kathy Cattles confirmed that she reviewed Northshore’s Incident Reporting Form 

(Gov’t Exh. P-8), the doctors’ notes contained in Government Exhibit P-9, the Employee’s biweekly salary time report (Gov’t Exh. P-10), and the copy of the email from Scott Blood to 

Kim Yuretich (Gov’t Exh. P-11). Tr. 141-142. The documents raised a question in her mind 

whether the incident on February 6 was reportable. Tr. 142. After she reviewed the documents 

she gave them to MSHA team leader Jeff Hoblick who put a “summary sheet together and gave 

[it] to the [MSHA] district manager.” Tr. 143. The citations followed. Tr. 143-144. 

Cattles also testified that she and Hoblick interviewed the Employee on November 20, 

2013. Cattles stated, “[W]e asked [the Employee] if she took days off because of . . . her back, 

and she said yes.” Tr. 145. 

13 Cattles’ notes state in part “Off wk 2/7 – 2/18; muscle relaxant & pain killer[.] 

Reportable?” Gov’t Exh. P-12. 

37 FMSHRC Page 2368
Scott Blood identified the Employee as a warehouse technician who is responsible for 

“receiving outside orders . . . making item counts, comparing them to the actual purchase 

requisitions, and . . . maintaining the inventory levels . . . in our warehouse for our maintenance 

and operating supplies.” Tr. 151. According to Blood, the Employee is seated 60 percent of her 

day and her job involves only occasional lifting. Tr. 152. During February 2013 the Employee 

worked Monday through Thursday from 5:30 a.m. to 3:30 p.m. Id. 

Blood noted that the day of the incident, February 6, 2013, was a Wednesday. Tr. 156. 

Blood stated that he became aware of the injury to the Employee when she called him on 

February 7, around 5:00 p.m. The call was made after her appointment with Dr. Gilbertson in 

Duluth. During the call she told Blood that although she came to work on February 7, 

“She . . . wasn’t feeling right so she called and made an appointment with . . . [Dr. 

Gilbertson].” Id. The Employee marked her time card to indicate she worked a couple of hours 

on February 7 (Thursday) before she left Silver Bay and drove to Duluth. Tr. 157. Blood stated 

that when he spoke with the Employee he told her that the company was “going to set her 

up . . . with a back specialist [for an evaluation] as soon as [it] could get her in, which happened 

to be the next Monday [February 11].” Tr. 158; see also Tr. 159. The back specialist was Dr. 

Konowalchuk. Tr. 158. The Employee was not scheduled to work on February 8, a Friday. Tr. 

159. 

After the Employee saw Dr. Konowalchuk on February 11, she spoke with Blood and 

told him that, “Dr. Konowalchuk thought she was . . . able to return to work the following day 

and do . . . [the] functions of her job.” Tr. 160. Blood did not think the Employee would 

require any accommodations because her normal job was, as he described it, “very sedentary or 

light duty.” Id. The Employee came to work on February 12, but after a short time she became 

emotionally distressed and she was sent home for the day.14 Tr. 161. 

Referring to the Employee’s Bi-Weekly Salary Time Report (Gov’t Exh. P-10), Blood 

explained that the entry for Friday, February 8, showing 8 1⁄2 hours of “excused with pay” time 

was “merely a paperwork entry to make sure she [got] to 40 hours for the week.” Tr. 163. He 

again noted that she was not scheduled to work on Friday and therefore she did not work on 

February 8. 15 Tr. 163 He also noted that the employee was excused from work but paid the 

14 According to Blood, some time before the February incident the Employee suffered a 

personal trauma that was unrelated to her job, but that affected her emotionally at times when she 

was on the job. The company made allowances for her when she became emotionally upset. Tr. 

153, 160-161. 

15 On cross examination Blood expounded on the reason the Employee’s time card for 

February 8 indicated the employee was allowed 8 1⁄2 hours of excused with pay time. Tr. 171; 

Gov’t Exh. 10. Blood stated: 

[T]hey put eight . . . and a half hours of excused with pay 

there [on Friday] just to make her whole for the week. She . . . 

did not work on Friday. She was not scheduled to work on 

Friday. That’s a . . . clerical connotation to get her to 40 

hours for the week. We explained that to the investigators 

and I don’t know if they understood. 

Tr. 171. 

37 FMSHRC Page 2369
next Monday when she had the appointment with Dr. Konowalchuk. The following day, 

February 12, was the day she was sent home because she experienced emotional difficulties. 

Tr. 164. Finally, according to Blood, on Wednesday, February 13, and Thursday, February 14, 

the Employee worked her regular 10 hour days. Id. On Friday, February 15, the Employee had 

a follow-up appointment with Dr. Konowalchuk. The company allowed her four hours of 

excused pay for the appointment. Id.

Blood was present during the interview MSHA personnel had with the Employee. He 

described the Employee as “very defensive . . . very unresponsive and sarcastic.” Tr. 167. 

Blood was asked about Cattles’ note documenting the interview and indicating the Employee 

was asked, “Did you take days off because of [your] back?” and indicating she answered, 

“Yes.” Gov’t Exh. P-13; Tr. 167. Blood maintained, “That’s not how . . . [the Employee] 

responded.” Tr. 167. He stated, “They asked her if she missed work due to her back injury,” 

and she answered, “[T]hat is what happened if the timecard says that.” Tr. 178.16

Blood testified he did not report the Employee’s back injury to MSHA because in his 

opinion the employee, “never . . . miss[ed] any time due to the actual work injury.” Tr. 168. He 

added, “And she was able to do all of the requirements of her job when she was there. Id. 

Thus, upon returning on February 11, she experienced no change in her job duties. Tr. 178, see 

also Tr. 172. Further, according to Blood, on the 7th of February the Employee left work on her 

own to see a doctor. He also explained that when he described the Employee’s condition in his 

e-mail to Kim Yuretich (Gov’t Exh. P-11) he was trying “to give Dr. Konowalchuk or his staff

a little description on what’s going on so they know ahead of time what to ask about or to look

for.” Tr. 176-177. Blood acknowledged that Dr. Gilbertson had authorized the employee to

“remain off work from 2/7/13 through 2/18/13” (Gov’t Exh. P-9), but Blood stated that

Gilbertson is, “an emergency room doctor who [does] nothing but x-rays, and so that’s why we

sent her to a back specialist: to get a better opinion on what was going on.” Tr. 177. Counsel

for the Secretary and Blood then engaged in the following exchange:

Question: But you rely on doctors to make the determination 

 whether an employee . . . is able or unable to 

 work. Isn’t that right? 

Answer: Correct. 

Question: And this Dr. Gilbertson is a doctor? 

Answer: Yes. 

Question: And he did make the recommendation 

 that [the Employee] be off for 11 days? 

Answer: Yes. And Dr. Konowalchuk made the 

 right call in saying that it was merely a 

sprain and she was just “fine,” so in our 

 experience dealing with back injuries, 

16 The Employee was not called as a witness by either party. 

37 FMSHRC Page 2370
 you get a much better evaluation from 

 a doctor who works specifically with 

 back injuries versus somebody who’s 

 an emergency room treating physician. 

Tr. 178. 

 THE VIOLATION 

As with the other contested citations, the validity of the subject citations stands or falls on 

whether the Employee suffered an “occupational injury” as defined in section 50.2. It is clear 

from the testimony that Bickel issued the citations because he believed the Employee missed 

three days of work due to the injury to her back, (Tr. 136, 139) and because an occupational 

injury is defined in part as an “inability to perform all job duties on any day after an accident.” 

See Tr. 123. If Bickel was right as to any of the days, and/or if he was right about the Employees 

inability to perform her job duties, the citations are valid. 

The analysis needs to go no further than February 7, the day following the onset of the 

back injury. On that day, the Employee came to work on time, worked two hours and then left to 

see a doctor. She was described by Scott Blood as “not feeling right.” Tr. 156. It is reasonable 

to infer that she left to see a doctor about pain in her back caused by her injury the previous day. 

The inference is supported by Dr. Gilbertson’s diagnosis of “acute low back injury” and by his 

advice to her to remain off work for up to eleven days. Gov’t Exh. P-9. He would not have 

delivered the diagnosis and advice had the consequences of the injury been benign. As a result, 

the court concludes the Employee missed eight hours of work on February 7 due to her back 

pain, a cause that was recognized by Blood when he told the Employee later that day that he 

would “set her up with . . . a back specialist as [he] soon as I could get her in.” Tr. 158. Clearly, 

the pain was a concern that both the Employee and Blood decided required prompt attention. 

Bickel stated that seeing a doctor following an injury does not make the injury reportable. 

The court does not doubt the sincerity of Bickel’s belief. Tr. 139. However, if the day following 

an injury an employee misses work because the consequences of the injury cause her or him to 

seek immediate treatment for the injury and thus, within the words of the definition, the 

employee “is unable to perform all job duties on any day after the accident,” (30 C.F.R. § 

50.2(e)), then, in the court’s view, the “lost workday is the direct consequence of the injured 

miner’s inability to work as a result of the injury.” Consolidation Coal Co., 11 FMSHRC 996, 

972 

This is exactly what happened with regard to the Employee. The court finds that on 

February 7, the day after the accident, the Employee sought treatment because, her back pain 

compelled her to seek relief. As a result, for 8 hours (she worked 10 hour days) she was 

“unable to perform all job duties.” 30 C.F.R. § 50. The Employee could not be both on the job 

in Silver Bay and seeking treatment in Duluth. She had to choose, and in order to alleviate her 

pain she chose to seek treatment rather than to perform all job duties on the day after the 

accident. Therefore, her February 6 injury should have been reported. 

37 FMSHRC Page 2371
Bickel also believed the Employee missed work on Friday, February 8, two days after 

the accident, because of the injury to her back, but he was wrong. Tr. 139. Blood consistently 

and credibly testified that during February 2013, the Employee was not scheduled to work on 

Friday. Tr. 152, 159, 163, 171. His testimony was not refuted. The Employee cannot be found 

to have missed work on a day when she was not scheduled to work. 

Finally, Bickel thought the Employee missed work because of her injury on Monday, 

February 11, and Tuesday, February 12. Tr. 139. Bickel was correct about Monday, February 

11. Blood himself made an appointment for the Employee with a back specialist on Monday,

February 11. Tr. 158-159. It was, Blood stated, “as soon as [I] could get her in.” Tr. 158.

There was a pain-related sense of urgency about the appointment, and the visit to the specialist

was directly related to the Employee’s on-the-job injury on February 6. The employee was

absent from work all day on February 11 and thus was unable “to perform all job duties on [a]

day after [the] injury.” § 50.2(e). For this reason too, the injury should have been reported.

However, Bickel’s belief that the Employee missed work on Tuesday, February 12, 

because of her February 6 injury (Tr. 139) is unsubstantiated. Although the Employee was 

asked if she took days off because of her back, whether she answered, “Yes” (Tr. 145), as 

Cattles maintained, or, “[T]hat’s what happened if the timecard said that” (Tr. 167), as Blood 

maintained, no conclusion can be drawn from either response as to February 12. The question 

asked is imprecise and either answer is indeterminate. Further, the Secretary did not refute 

Blood’s testimony that the Employee was sent home from work on February 12 because of her 

emotional state, a condition unrelated to her February 6 injury. Tr. 153, 160-161. 

An additional basis for finding the violations might have been the treatment the 

Employee received when she saw a doctor on February 7. The record establishes that the 

doctor provided her with pain killers and muscle relaxants. Tr. 139; Gov’t Exh. P-11. 

However, the record does not establish whether the painkillers and muscle relaxants were 

prescription or nonprescription, and it makes a difference. In general, the use of prescription 

medications is regarded as “medical treatment” under Part 50, making the injury triggering the 

use reportable. The use of nonprescription medications is regarded as “first aid,” making the 

injury triggering the use non-reportable. See 39 C.F.R. § 50.20-3. 

Therefore, while the court finds a violation, it does so based on its conclusion the 

Secretary established on Thursday, February 7, and Monday, February 11, the Employee’s 

absences from work and thus her inability to perform all her job duties were the result of her 

February 6 injury.17

GRAVITY AND NEGLIGENCE 

The parties agreed that the gravity of the violations and the negligence of the company 

were as found by the inspector. Tr. 15-16. Accordingly, the court finds that the violations were 

17 The company’s assertions that the visits to doctors on February 7 and February 11 

were not reportable because they were “diagnostic in nature” (Resp. Br. 21, 23), misses the point 

that the cause of the visits was the Employee’s pain that resulted from the February 6 injury and 

her need to seek treatment for that pain. 

37 FMSHRC Page 2372
not serious and that the violation of section 50.20(a) (Citation No. 6556656) was due to the 

company’s moderate negligence and the violation of section 50.11(b) (Citation No. 6556657) 

was due to the company’s low negligence. Gov’t Exh. P-7, Gov’t Exh. P-14. 

 Citation No. Date 30 C.F.R. § 

6556660 11/22/13 50.20(a) 

 The citation states: 

 The operator failed to submit the Mine Accident, Injury, 

 and Illness Report (MSHA Form 7000-1) for an occupational 

 injury sustained on 5/29/2013 to employee number 

(611711), a miner working at the Northshore Mining 

 Company, within ten working days after the occurrence 

of the injury. The employee sustained a lower back 

 injury that caused him to miss one scheduled work day. 

 As of today’s date, a report of this injury has not been 

 received by MSHA, approximately 180 days past the 

 submittal date of the 7000-1 form. Mine management 

 is aware of the reporting requirements regarding 

 occupational injuries. This is the fourth citation for 

 this standard during this audit. 

Gov’t Exh. P-23. 

Bickel found that the alleged violation had no likelihood of causing an injury or illness 

and that the failure to report the injury was due to the company’s moderate negligence. Gov’t 

Exh. 23. 

 Citation No. Date 30 C.F.R. § 

6556661 11/22/13 50.11(b) 

 The citation states: 

 The operator’s occupational injury investigation report 

 for a miner at the Northshore Mining Company for 

 the occupational injury occurring on 5/29/2013 to 

 employee number (611711) did not include all required 

information as identified under 50.11(b). The 

investigation report did not include (2) the date the 

investigation began, (8) steps taken to prevent a 

similar reoccurrence, and (9) identification of any 

report under 50.20. This is the fourth citation for this 

standard during this audit. 

Gov’t Exh. 29. 

37 FMSHRC Page 2373
Bickel found that the alleged violation had no likelihood of causing an injury or illness 

and that the failure to report the injury was due to the company’s low negligence. Gov’t Exh. P29. 

 THE TESTIMONY 

The citations were triggered by an event that occurred at the mine on May 29, 2013. The 

company’s Incident Reporting Form states that the Employee stepped down to work on a screen 

and strained his back. Tr. 182; Gov’t Exh. P-24. The form also states that as a result of the 

incident the Employee experienced, “Pain on the right side from lower back to the front.” Tr. 

182; Gov’t Exh. P-24 at 2. Bickel understood that the Employee “was doing routine 

maintenance . . . removing grizzlies.” Tr. 182. Bickel explained that “[g]rizzlies are screens” and 

from the description of the incident he supposed the Employee was picking up and moving the 

grizzlies. Id.

Bickel identified a four page report from a chiropractor who saw the employee on May 

30, 2013, the day after the incident.18 Tr. 186; Gov’t Exh. P-25. The chiropractor’s diagnosis 

was “lumbosacral strain/sprain with radiculopathy.” Gov’t Exh. P-25 at 2. On the report, the 

chiropractor checked the box stating, “Employee is able to work without restrictions as of” but 

did not fill in a date. Tr. 187-188; Gov’t Exh. P-25 at 3. The chiropractor’s report also states that 

the Employee scheduled a return visit to the doctor on the following day, May 31, 2013. Tr. 188; 

Gov’t Exh. P-25 at 2, 3. After the follow-up visit, the chiropractor checked the box on the form 

in front of the statement: “Employee is able to work without restrictions as of” and the 

chiropractor filled in a date, “June 3, 2013.” Tr. 188; Gov’t Exh. P-25 at 4. Bickel was asked by 

the Secretary’s counsel, “Based on this documentation [(Gov’t Exh. P-25]), does this lead you to 

believe there was . . . evidence that there was a reportable injury.“ Bickel replied, “Yeah, 

because it’s documentation that he did actually go to the chiropractor.” Tr. 189. 

Bickel testified that the audit team interviewed the Employee. The team gave Bickel a 

list of questions the team members asked and answers the Employee gave. Tr. 190-191; Gov’t 

Exh. P-26. The most significant question and answer in Bickel’s opinion was, ”Do you 

remember if you worked the day after the accident?” The team characterized the Employee’s 

response as, “Took the day off because of sore back & went to chiropractor.” Tr. 191; Gov’t 

Exh. P-26. Bickel further noted that the audit team asked the Employee whether the day after the 

accident was a scheduled vacation day, and the Employee responded, “No.” Id. The Employee’s 

reported answers indicated to Bickel that the Employee “didn’t work . . . [the day after the 

accident] because he had a sore back and he went to the chiropractor because of it.” Tr. 192. 

Bickel also identified a copy of the Employee’s electronic time card for May 18 through 

June 2, 2013. Gov’t Exh. P-27; Tr. 193. Bickel received a copy of the card from the audit team. 

Tr. 194. Bickel interpreted the time card as confirming that the Employee came to work on May 

29 but did not come to work on May 30, the day after the incident. Tr. 195. Summing up what 

all of the documents indicated, Bickel stated, “I determined that [the Employee] hurt his back 

 18 The report came to Bickel’s attention after he wrote the citations. Indeed, Bickel saw 

the report for the first time the day prior to the hearing. The report was among the documents 

turned over to the Secretary by the company as a result of discovery. Tr. 185. 

37 FMSHRC Page 2374
bad enough on . . . [May 29] that he didn’t go to work on the 30th and took that day to go to . . . 

see the chiropractor and that it caused him to miss a day of work, and that’s a reportable injury.” 

Tr. 195; see also Tr. 204. 

Bickel testified that he also reviewed Cattles’ notes. Tr. 196; Gov’t Exh. P-28. The notes 

stated the Employee saw a doctor on May 30, 2013, and also on the following day. Gov’t Exh. P28. In Bickel’s view, the notes gave him “information that [the Employee] did go to the

chiropractor on May 30th, the day that he did not work.” Tr. 196.

Bickel agreed with counsel for the company that, “merely because one medical 

professional might say something or merely because somebody visits a medical professional 

doesn’t necessarily make an injury reportable by itself.” Tr. 202. However, Bickel noted that the 

definition of “occupational injury” includes the phrase “inability to perform all job duties on any 

day after an injury” (30 C.F.R. § 50.2(e)), and he concluded this phrase applied to the Employee. 

Tr. 208-209. 

The Employee, a maintenance mechanic who during May 2013 was assigned to work at 

the crusher, was called to testify by the company. Tr. 225-226. His regular weekly work 

schedule during May was four 10 hour days, Monday through Thursday. Id. The Employee 

testified that on May 29 he was taking out the upper screen panels on the crusher and putting in 

new panels. Tr. 227, 238. The job is performed once a week. Tr. 238. After the parts are 

removed from the crusher they are dropped into a work box. The box is located below the 

Employee. Tr. 227. The Employee stated that toward the end of his shift on May 29, he stepped 

down from where he was working, and he stepped into the box. As he did so he felt a “pull” and 

pain in his right hip. Id. It felt like his hip “pop[ped] . . . a little bit.” Tr. 228. The Employee 

mentioned what happened to a miner with whom he worked, but because the “pop” “[d]idn’t 

seem like anything major,” the Employee did not mention the incident to his supervisor. Tr. 228-

229. Rather, he finished his shift and went home. At the time he felt, “all right.” Tr. 229.

The following day, May 30, was a Thursday. In the morning the Employee felt about the

same as he had the night before. So, he drove to work. Id. When he got to the facility he spoke 

with his supervisor and told him if there was not a heavy workload that day, he would take the 

day off to see a chiropractor.19 Tr. 230. The Employee maintained he would have worked on 

May 30 if he was needed. He testified, “If the workload was heavy, I would have stayed[.]” Tr. 

234. As evidence that he would have stayed on the job had there been a lot of work, the

Employee, who lives 60 miles from Silver Bay, stated, “I wouldn’t have drove 60 miles . . . to

tell . . . [my supervisor] that I was going to take the day off. I would have just took the day off if

I was hurt.”20 Tr. 230.

19 This was not the Employee’s first visit to a chiropractor. He had seen one when he 

hurt his back while working for another company. Tr. 231. 

20 Putting it another way, the Employee testified if he had not felt able to work he, 

“would have just called in and told [his supervisor] what happened and took the day off.” Tr. 

232.

37 FMSHRC Page 2375
According to the Employee, he explained what happened, and the supervisor told the 

Employee it was okay with the supervisor if the Employee took the day off, but first the 

supervisor wanted to talk to Scott Blood. Tr. 231. After the supervisor spoke with Blood, the 

Employee was asked to complete an Incident Reporting Form before he left to see the 

chiropractor. Tr. 234-235, 237; Gov’t Exh. P-24. The Employee stated that although his 

supervisor helped him complete the form, he, the Employee, provided all of the information on 

the form. Tr. 235. 

The Employee then left the facility and drove to the chiropractor. After a session with 

the chiropractor, the Employee testified that he felt “a little bit” better. Tr. 232. He emphasized, 

however, that his discomfort “wasn’t that major to start with.” Tr. 232-233. In addition to seeing 

the chiropractor on May 30, he also saw the chiropractor again on May 31. Tr. 235-236. The 

Employee was next scheduled to report to work on Monday, June 3, which he did. Tr. 233. 

The day the Employee took to go to the chiropractor (May 30) was treated by Northshore 

as a vacation day. Tr. 239-240. Northshore’s employees get up to 3 days of paid time off if they 

are excused from work by a doctor. According to the company, the Employee elected to take the 

day as a vacation day. If he had to go to a doctor for a work-related injury, the company would 

have given him a paid day off to do it and he would not have had to take a vacation day. Tr. 242. 

However, because the Employee maintained he could work, but nonetheless elected to go to the 

chiropractor, the company viewed the day as a vacation day. Tr. 244-245. 

 THE VIOLATION 

 The existence of the alleged violations depends on whether the May 29 incident was 

reportable. The record unequivocally establishes that on May 29 the Employee hurt his back 

while at work (Tr. 182-183, 228); and that on the following day he left work in order to be 

examined and treated by a chiropractor for a “strained back” resulting from the previous day’s 

incident and causing “[p]ain on the right side from [his] lower back to the front,” Tr. 230-231; 

Gov’t Exh. P-24 at 12. The examination included an assessment of spinal “tenderness” and a 

“soft tissue evaluation.” Gov’t Exh. P-25. The doctor diagnosed the employee as suffering from 

a “lumbosacral strain/sprain with radiculopathy” and scheduled the Employee for a follow up 

visit the next day (May 31), an appointment the employee kept.21 Tr.187; Gov’t Exh. P-25 at 2. 

The visit to the chiropractor on May 30 might have constituted medical treatment had the 

Secretary established such treatment was administered, but he did not. At most the record 

establishes that on May 30 the doctor engaged in a physical examination that was diagnostic in 

nature. The Secretary’s regulations explaining the differences between “medical treatment” and 

“first aid” clearly place diagnostic examinations outside the parameters of “medical treatment.” 

30 C.F.R. § 50.20-3(a). The court recognizes that the Employee testified he felt “a little bit” 

better after his May 30 visit, but the record does not indicate why he felt that way. Tr. 232. Was 

 21 Radiculopathy is most commonly exhibited as lower back pain, at times radiating 

down the leg. Its cause is nerve damage. See Spine Universe, 

http://www.spineuniverse.com/conditions/back-pain/low-back-pain/lumbar-radiculopathy-lowback-leg-pain. (last visited October 20, 2015). 

37 FMSHRC Page 2376
it the result of treatment he received? The employee was not asked, and the doctor’s records do 

not indicate what, if any, treatment was given. See Gov’t Exh. P-25 at 1-2. For these reasons the 

court concludes the Secretary did not establish that the injury resulted in medical treatment. The 

question then is whether he proved the injury resulted in the inability of the Employee to perform 

all of his job duties on any day after May 29 due to a condition resulting from the May 29 

incident, and the court finds he did not. 

May 29, 2013, was a Wednesday. The Employee’s next scheduled work day was May 

30. On that day the Employee sought and was given time off to visit the chiropractor. The

problem for the Secretary is that the record does not support finding that the “lost workday is the

direct consequence of the injured miner’s inability to work as a result of the injury.”

Consolidation Coal Co., 11 FMSHRC at 972. The Employee’s testimony that he could and

would have worked if the day’s workload required it was credible. Tr. 230, 232, 234. Being well

acquainted with the joys of commuting, the court finds the Employee’s statement that he would

not have driven 60 miles to his job site if he knew he could not work to be inherently reasonable

and supportive of the Employee’s credibility. Tr. 230. Unlike the Employee discussed with

regard to Citations No. 6556660 and 6556661, the court concludes the subject Employee’s postincident condition was not one of discomfort or pain keeping him from working and causing him

to seek prompt medical relief. Rather, his condition was, as he testified, one wherein he knew he

“did something,” something that “was nothing major.” Tr. 229. For the Employee, securing

medical treatment was secondary to fulfilling his obligations to his employer and visiting the

chiropractor on May 30 was not the direct consequence of the Employee’s inability to work as a

result of the May 29 incident. Rather, the court concludes it was the direct consequence of

Northshore not having a heavy work schedule on May 30. For these reasons, the court finds that

the May 29 incident was not reportable and that the Secretary did not prove the alleged

violations. 22

Citation No. Date 30 C.F.R. § 

6556666 11/22/13 50.20(a) 

 The citation states: 

The operator failed to submit the Mine Accident, 

Injury and Illness Report (Form 7000-1) for an 

occupational injury sustained on 12/24/2012 

to employee number (612047), a miner working at 

the Northshore Mining Company, within ten working 

days after the occurrence of the injury. The 

employee sustained a laceration injury that required 

medical treatment. As of today’s date, a report of 

this injury has not been received by MSHA, 

22 The court focuses on May 30 because it agrees with Northshore that the Employee’s 

visit to the chiropractor on Friday, May 31 is not relevant. Resp. Br. 35 n.27. As Bickel noted, 

the Employee was not scheduled to work on Fridays and there is no evidence that Friday, May 

31, was an exception. Tr. 226. 

37 FMSHRC Page 2377
 approximately 600 days past the submittal date of 

 the 7000-1 form. Mine management is aware of 

 the reporting requirements regarding occupational 

 injuries. This is the sixth citation for this standard 

 during this audit. 

Gov’t Exh. P-30. 

Bickel found that the alleged violation had no likelihood of causing an injury or illness 

and that the failure to report the injury was due to the company’s moderate negligence. Gov’t 

Exh. P-30. 

Citation No. Date 30 C.F.R. § 

6556667 11/22/13 50.11(b) 

 The citation states: 

 The operator’s occupational injury investigation 

report for a miner at the Northshore Mining 

Company for the occupational injury occurring 

on 12/24/2012 to employee number (612047) 

did not include all required information as 

identified under 50.11(b). The investigation 

report did not include (2) the date the 

investigation began, (3) investigators 

names, (8) steps taken to prevent a 

similar reoccurrence, and (9) identification 

of any report under 50.20. This is the 

sixth citation for this standard during this 

audit. 

Gov’t Exh. P-34. 

Bickel found that the alleged violation had no likelihood of causing an injury or illness 

and that the failure to report the injury was due to the company’s low negligence. Gov’t Exh. 

P-34. 

 THE TESTIMONY

Bickel testified he cited the company because a subject Employee sustained a laceration 

to his face that required medical treatment. Tr. 247. Before issuing the citations Bickel reviewed 

the company’s Incident Reporting Form. Tr. 247-248; Gov’t Exh. 31. He testified the form 

didn’t “contain a lot of information” aside from the fact that it stated the Employee injured both 

of his lips. Tr. 248. While this was “not enough information . . . to base a citation on . . . it 

indicated [to Bickel that he] should look into [the incident] some more.” Id. So, Bickel reviewed 

a record of the Employee’s visit to the Emergency Room (the “ER”) of the Lake View Medical 

37 FMSHRC Page 2378
Clinic on December 24, the same day as the incident.23 Gov’t Exh. 32. Bickel testified that the 

record: 

gives what happened to the patient where 

he was struck by a piece of metal . . . in the 

lips while he was working, resulting in a 

lacerated upper and lower lip . . . . The 

assessment for his injury is that there is [sic.] 

lip lacerations and then a discussion of 

what the plan should be where the doctor 

or the person seeing him suggested closing 

the wounds using sutures and they ended 

up using butterfly stitching to close the 

wound.[24 ] 

Tr. 248-249. 

Bickel also noted that on page 2 of the record, ER doctor, Jonathan Edel, states: 

I tried to discuss with the patient the fact that 

I would recommend suturing with dissolvable 

sutures for treatment of the lower lip laceration. 

I also explained that the upper lip laceration 

was superficial and would not require sutures. 

I further explained . . . that suturing for the lower 

lip laceration would provide a more reliable 

closure. However the patient stated that he did 

not want sutures. I did explain to the patient that 

this is certainly a closure option, although [it] is 

not an optimal closure option. However, because 

the lower lip laceration was non-gaping in its . . . 

23 Located in Two Harbors, Minnesota, the Lake View Medical Clinic is part of St. 

Luke’s Health Care System, Duluth, Minnesota. The Clinic offers, primary care, specialty care 

and urgent care. St. Luke’s, http://www.slhduluth.com/Find-a-Location/Lake-View-MedicalClinic.aspx (last visited October 20, 2015). 

24 Although Bickel used the term “butterfly stitching,” the emergency room record uses 

the term, “steri-strips.” Tr. 249; See Gov’t Exh. 32 at 2. “Steri-Strips” is a brand name for a type 

of adhesive bandage that is also referred to as a “butterfly closure.” Wikipedia – The Free 

Encyclopedia, https://en.wikipedia.org/wiki/Butterfly_closure (last visited October 20, 2015). 

An internet entry for “Butterfly closures” explains, “Butterfly closures are adhesive bandage 

strips which can be used to close small wounds. They are applied across the laceration in a 

manner which pulls the skin on either side of the wound together. Butterfly closures may be 

used instead of sutures . . . in some injuries, because they lessen scarring and are easier to care 

for.” Id. 

37 FMSHRC Page 2379
configuration, I [thought] it would be possible to 

[S]teri-[S]trip the lower lip laceration given the

patient’s strong preferences for no suturing . . . . 

The patient again stated that he would strongly 

prefer closure by [S]teri-]S]trips. The patient’s lip 

lacerations [were] cleansed . . . and then irrigated . . . 

The wounds were then re-approximated and closed with 

[S]teri-[S]trips. The patient was provided with wound

care instructions. The patient was instructed to return

to the ER should he note any signs . . . of wound

infection . . . . [The] patient was discharged from 

the ER in stable condition. 

Gov’t Exh. 32 at 2. 

Bickel further noted that the ER record describes the lower lip laceration as 1 cm long 

and the upper lip laceration as 0.5cm long. Gov’t Exh. 32 at 1. According to Bickel, the use of 

Steri-Strips to close the wound means that the injury was reportable, and he based the citations 

on the fact that the strips were used.25 Tr. 252, 257. He maintained the strips were the same as 

butterfly closures. Tr. 257. 

The Employee testified that he is a crusher operator at the plant and that one of his duties 

is to maintain equipment. In December 2012, he worked “swing shifts.” Tr. 259. On a “swing 

shift” he works some days and some nights. Id. He worked the night shift on Christmas 

Eve/Christmas Day 2012 (6:00 p.m. to 6:00 a.m.). Tr. 260. Around 10:30 p.m. on Christmas Eve 

he was using an impact wrench to take a bolt out of part of an ore crusher when a piece of the 

wrench socket broke off.26 The metal flew into the Employee’s face where it struck and cut the 

Employee’s lips. Tr. 261. 

The Employee described the cuts as “just . . . little slit[s]” Id. The cut on the upper lip, 

which did not bleed, was, “almost like a scratch.” Tr. 262. The cut on the lower lip, which also 

did not bleed, was “a little deeper” than the cut on the upper lip. Id. The Employee explained 

that eight years before he had been in an automobile accident and had badly cut his lower lip and 

chin. The cuts were repaired with what the employee described as “cosmetic surgery.” Tr. 263. 

The surgery resulted in a scar on his lower lip. The lower lip cut he received on December 24 

was “right on the scar.” Tr. 263. It “followed the same line.” Id. The Employee testified that he 

had been hit other times in the area of the scar, and the hits usually caused the area to reopen. Id. 

25 Counsel for the Secretary: And was the basis of these citations, that Steri-Strips were 

used? 

Witness Bickel: Yes. 

Tr. 257. 

26 The Employee described the wrench as the “[s]ame thing you’d see on NASCAR that 

take a tire off.” Tr. 261. 

37 FMSHRC Page 2380
As a result, whenever he received a cut on his lower lip, he always had the area cleaned and 

taped with Steri-Strips, which are less intrusive than sutures. Id. According to the Employee a 

Steri-Strip is not the same thing as a butterfly bandage.27 Tr. 264. 

After the incident and before he went to the ER, the Employee testified that he contacted 

his acting supervisor, Ryan Christianson. Tr. 264-265. Upon learning what happened, 

Christianson called Scott Blood and described the situation to Blood. Blood told Christianson to 

send the Employee to the clinic ER (Tr. 276), which Christianson did. Tr. 265. In addition to 

speaking with Christianson, the Employee told Scott Blood about the incident. Id. Blood asked 

the Employee to let him know what happened at the ER. Id. 

The Employee described his ER visit as follows: 

[T]he nurse cleaned up [the cuts] and the doctor

[(Dr. Edel)] came in, looked at it, and asked me

about my chin and what the scar was and stuff,

and we talked a little bit and I told him I was

taped in the past and he said you could tape it.

Tr. 266. 

The Employee remembered the doctor telling him taping the cuts “would work, as long 

as you keep it clean.” Tr. 267. The Employee stated that the doctor taped his lower lip with two 

Steri-Strips and his upper lip with one Steri-Strip. Id. When asked about the doctor’s statement 

in the emergency room record (Gov’t Exh. 32 at 2) that “suturing for the lower lip laceration 

would provide a more reliable closure” (Id.), the Employee maintained that the statement was not 

accurate, that the doctor “did not push for stitches or sutures or nothing.” Tr. 268. The Employee 

was adamant that the doctor did not tell him it was necessary to have the cut sutured and did not 

try to convince him to have the procedure done. Tr. 269. Rather, the doctor agreed to use SteriStrips.28 Id. 

After the ER visit, the Employee returned to work. Id. Upon arriving at the plant, the 

Employee told Scott Blood that his lips had been taped and that he could resume his job. Tr. 276. 

The Employee completed the rest of his shift. Tr. 270. He also worked the following day, which 

27 Scott Blood, in addition to being the mine’s safety director, is an EMT on the Silver 

Bay Fire and Rescue Squad. Tr. 274. He testified that as an EMT he used both butterfly 

bandages and Steri-Strips numerous times. Tr. 274-275. He described a butterfly bandage as “a 

closure that is designed to pull a wound together and maintain access to that wound so you can 

see that it’s . . . healing properly.” Tr. 274. He described a Steri-Strip as “a piece of bandage or 

tape, sticky tape that’s designed to cover a wound to keep it clean.” Tr. 275. Like the Employee, 

he maintained that a butterfly bandage is not the same as a Steri-Strip. Id. 

28 As the Employee recalled, the doctor said sutures or stitches “as far as cosmetic . . . 

would be better but a strip would work as long as I followed the guidelines of keeping it clean.” 

Tr. 271. 

37 FMSHRC Page 2381
was his next regularly scheduled shift. Tr. 269. The employee wore the Steri-Strips for 

approximately five days. Tr. 271. The Employee believed the strips were effective. He stated 

that after they came off, his lips looked the same as they did before the incident. Tr. 272. 

Scott Blood was asked why he decided the incident was not reportable. Blood stated that 

he made his decision based on three things: (1) the treatment the Employee received; (2) page 3 

of the ER record (Gov’t Exh. P-32 at 3[29]); and; (3) speaking with the Employee. Tr. 277. 

Kathy Cattles identified her “handwritten notes on [the] possible injury.” Tr. 217; Gov’t 

Exh. P-33. Prior to writing her notes, Cattles testified that she reviewed Northshore’s Incident 

Reporting Form. Tr. 217; Gov’t Exh. P-31. She also reviewed the ER record. Tr. 218; Gov’t 

Exh. P-32. According to Cattles, the thing that caught her attention was that the Employee was 

injured on December 24 and visited a doctor the same day. Tr. 223. 

 THE VIOLATION

As with all of the other violations, the question of whether the subject citations are valid 

hinges on whether the Employee suffered an “occupational injury” as defined in section 50.2(e). 

It is beyond dispute that the Christmas Eve incident meets parts of the definition. “Injury” is 

defined in part as, “Damage or harm done to or suffered by a person or thing.” The American 

Heritage Dictionary of the English Language,” Fourth Edition (2009) at 902. The incident 

resulted in an “injury” in that a metal piece of the wrench hit the Employee in the face cutting his 

lips and thus causing “[d]amage or harm to” the Employee. Id. There is really no dispute about 

this. There is also no dispute that the Employee was a miner and that the incident occurred at a 

mine. The incident did not result in death, loss of consciousness, or the inability of the 

Employee to perform his job duties or in his transfer to another job. Therefore, the only question 

is whether the treatment the Employee received at the ER was “medical treatment” as the term is 

defined in the regulations. 

As previously noted, the Secretary has differentiated between “medical treatment” and 

“first aid.” 30 C.F.R. § 50.20-3(a). For “cuts and lacerations” (the type of injuries the Employee 

experienced) “first aid” is in part limited to “cleaning a wound, soaking, applying antiseptic and 

nonprescription medication and bandages on the first visit.” 30 C.F.R. § 50.20-3(a)(4)(i) 

(referencing 30 C.F.R. §50.20-3(a)(1)(i)). The criteria also state that “butterfly [bandages]” used 

for “cosmetic purposes only can be considered first aid,” but that “butterfly [bandage] closures 

for non-cosmetic purposes, [and] sutures (stitches)” are among the things included in “medical 

treatment.” 30 C.F.R. § 50.20-3(a)(4)(;) 50.20-3(a)(4)(ii). 

The question must be resolved within the context of the Employee’s Christmas Eve visit 

to the ER, and in the court’s opinion, the issue is not a close call. First, the court finds Dr. Edel’s 

 29 Page 3 constitutes the employee’s discharge instructions. The instructions note that 

the Employee was examined for facial lacerations and that rather than stitches, Steri-Strips were 

used to close the wounds. The instructions also admonish the patient to keep the wound and/or 

dressing clean and dry and to watch for signs of infection. Gov’t Exh. P-32 at 3. Blood testified 

that he did not see pages 1 and 2 of the ER record until he participated in the Part 50 audit. Tr. 

277. 

37 FMSHRC Page 2382
assessment to be highly persuasive. Gov’t Exh. P-32. The doctor examined the Employee and 

then diagnosed the Employee as having two lacerations, one superficial on his mid-upper lip and 

a more serious “non-through and through laceration on [his] mid-lower lip.” Id. at 1. Dr. Edel 

recommended “suturing with dissolvable sutures for the lower lip laceration” as a treatment that 

would provide “a more reliable closure.” Id. at 2. The upper lip, in Dr. Edel’s opinion “was 

superficial and would not require sutures.” Id. In the event, because the Employee insisted, Steri 

Strips were applied to both lacerations.30 Id., Tr. 267. Had the laceration to the Employee’s 

lower lip been sutured, the suturing would have been reportable “medical treatment.” 30 C.F.R. § 

50.20-3(a)(4)(ii). The court deems the Steri Strip that was applied to his lower lip as equivalent 

to the sutures. Sutures were the preferred medical course, and it would undermine the purpose of 

the reporting requirements to allow a layman’s choice of a medically less desirable procedure to 

render the treatment non-reportable. 

Second, the court finds the use of the Steri Strip on the Employee’s lower lip was in fact 

“medical treatment” because it was not applied solely for “cosmetic purposes” but primarily to 

close the laceration on his lower lip. It was for all intents and purposes equivalent to, though less 

effective than, the use of sutures. 

GRAVITY AND NEGLIGENCE

The parties agree that the gravity of the violations and the negligence of the company 

were as found by Bickel. Tr. 15-16. Accordingly, the court finds that the violations were not 

serious and that the violation of section 50.20(a) (Citation No. 6556666) was due to the 

company’s moderate negligence and the violation of section 50.11(b) (Citation No. 6556667) 

was due to the company’s low negligence. Gov’t Exh. P-30, Gov’t Exh. P-34. 

Citation No. Date 30 C.F.R. § 

6556658 11/22/13 50.20(a) 

 The citation states: 

The operator failed to submit the Mine Accident, 

Injury and Illness Report (MSHA Form 7000-1) for an 

occupational injury sustained on 5/23/2013 to 

employee number (612889), a miner working at the 

Northshsore Mining Company, within ten working 

days after the occurrence of the injury. The 

employee sustained an eye injury that required 

medical treatment. As of today’s date, a 

30 The court does not credit the Employee’s testimony that Dr. Edel did not try to 

convince the Employee to have his lower lip sutured. The doctor’s assessment, dictated at 6 

minutes before midnight on December 24, when the just past ER events were fresh in the 

doctor’s mind, convinces the court otherwise. Gov’t Exh. P-32 at 2. Moreover, although Dr. 

Edel may not have told the Employee it was “necessary to have a stitch,” (Tr. 269), sutures were 

in his informed opinion the best medical option, and the court believes this opinion was clearly 

conveyed to the Employee. Gov’t Exh. P-32 at 2. 

37 FMSHRC Page 2383
 report of this injury has not yet been received by 

 MSHA, approximately 180 days past the submittal 

 date of the 7000-1 form. Mine management is 

 aware of the reporting requirements regarding 

occupational injuries. This is the third citation for 

this standard during this audit. 

Gov’t Exh. P-15. 

Bickel found that the alleged violation had no likelihood of causing an injury or illness 

and that the failure to report the injury was due to the company’s moderate negligence. Gov’t 

Exh. P-15. 

Citation No. Date 30 C.F.R. § 

6556659 11/22/13 50.11(b) 

 The citation states: 

 The operator’s occupational injury investigation report 

 for the occupational injury occurring on 5/23/2013 to 

 employee number (612889) did not include all required 

 information as identified under 50.11(b). The investigation 

 report did not include (2) the date the investigation 

 began, (8) steps taken to prevent a similar reoccurrence, 

 and (9) identification of any report under 50.20. This is 

the third citation for this standard during this audit. 

Gov’t Exh. P-22. 

Bickel found that the alleged violation had no likelihood of causing an injury or illness 

and that the failure to report the injury was due to the company’s low negligence. Gov’t Exh. P22. 

 THE TESTIMONY 

The incident triggering the citations was “an eye injury that required medical 

treatment.” Tr. 284; Gov’t Exh. P-15. Bickel noted that prior to issuing the citations he 

reviewed an Incident Reporting Form dated May 23, 2013. Tr. 285; Gov’t Exh. P-16. The form 

indicates on May 23, 2013, the subject Employee was working at the oiling station on the west 

side of Furnace 12 when a small piece of dirt lodged in his right eye.31 Tr. 285; Gov’t Exh. P16 at 1, 2. The form also states that the Employee’s right eye was “[i]mmediately flushed . . . 

with [a] saline solution [and] then [with] tap water.” Gov’t Exh. P-16 at 4. 

 31 The Form describes the object as a “small fragment of dirt or something.” Gov’t Exh. 

P-16 at 2. Bickel described the foreign body as, “apparently taconite dust.” Tr. 285 

37 FMSHRC Page 2384
Bickel also reviewed a discharge instruction form from the Lake View Clinic ER. The 

form is dated May 23, 2013. Tr. 287; Gov’t Exh. P-17. The document indicates that the 

Employee visited the clinic on May 23 and that “he was given instructions to use artificial tears 

every three to four hours and . . . wear dark glasses and return for further treatment if it’s 

needed.” Tr. 286-287; see Gov’t Exh. P-17 at 1. Bickel considered the instruction to be “part 

of the evidence [he] looked at to see what type of treatment [the Employee] received.” Tr. 287. 

Bickel also looked at a follow up report from the clinic. Tr. 287, Gov’t Exh. P-17 at 3. 

The report is dated May 29, 2013, six days after the initial incident. Tr. 287. In the report the 

attending physician diagnoses the employee as having a “corneal FB [(‘foreign body’)]” in his 

right eye and states that the foreign body was removed. Tr. 287; Gov’t Exh. P-17 at 2. The 

Employee was prescribed Ibuprofen and Tylenol every six hours if needed, was advised to keep 

his right eye closed, and was restricted from work for the rest of the day. Gov’t Exh. P-17 at 2. 

An additional document from the clinic entitled “Urgent Care Note” further describes the 

employee’s May 29 visit to the facility. In the document Dr. Joel Thompson, who saw the 

Employee on May 29, states: 

This patient was seen by Dr. Cohen last week for a 

foreign body that dropped into his right eye on 

05/23/2013. . . . Dr. Cohen found a small round 

peripheral corneal body in the interior portion of 

the cornea and removed that with tetracaine 

anesthesia. [The Employee] was sent home and 

told to return if he did not get complete clearance 

of it. The patient is doing so now after six days of 

continued discomfort. It has not affected his 

vision. 

Gov’t Exh. P-17 at 3. 

Bickel believed Dr. Thompson’s findings upon examining the Employee to be relevant. 

The doctor wrote, “The right eye is irritated. [The Employee] has a brown, rust type lesion just 

at the edge of his visual axis at 6 o’clock. There is no other foreign body on the cornea. After 

tetracaine anesthetic was applied his symptoms were alleviated.” Gov’t Exh. P-17 at 3; Tr. 288. 

In addition, Bickel found the procedure Dr. Thompson performed on the Employee to be 

significant. Dr. Thompson stated, “With control, a slit lamp and eye foreign body spud, we 

were able to remove the rust foreign body near completely below the right eye visual axis. In 

so doing it did cause some blurring of his vision.” Gov’t Exh. P-17 at 3; Tr. 288. Bickel 

described a “foreign body spud” as “an instrument that has . . . different shaped ends, 

depending on what they want to do with it.” Tr. 289. Bickel understood that it was used to 

scrape foreign bodies off the eye. Id.

In Bickel’s opinion, Dr. Thompson’s description of the procedures he used to remove 

the foreign body (Gov’t Exh. P-17 at 3) was a basis for determining the Employee suffered an 

occupational injury. Bickel stated that the doctor’s comments documented the Employee, 

had something in his eye for six days, it was bothering 

him for six days, and that to remove it they couldn’t just 

37 FMSHRC Page 2385
flush it out or . . . use a cotton swab or something. They had 

to use . . . an instrument to remove it because it was lodged in 

the eye enough that they had to use that foreign body 

spud to do it. Tr. 289. 

Bickel further found the company’s “Report on Workability” to be relevant. Gov’t Exh. 

P-18; Tr. 290. The report states that the Employee was unable to work on May 29, 2013, and 

that he returned to work with no limitations on May 30. Id. Bickel stated that the document 

provided evidence that the Employee was unable to work on May 29 because he underwent a 

corneal scraping. Tr. 292. 

Prior to issuing the citations Bickel reviewed Kathy Cattles’ notes dated November 14, 

2013. Tr. 293; Gov’t Exh. P-20. It was significant to him that Cattles questioned if the incident 

of May 23 resulted in a one day work restriction. Tr. 293; Gov’t Exh. P-20. Bickel also found 

it significant that the Employee’s time card, which was provided to him by the audit team, 

indicated that the Employee was allowed six hours of “PT” on Wednesday, May 29.32 

According to Bickel, the six hours “appeared to be a doctor appointment.” Tr. 294; see also Tr. 

296-297; Gov’t Exh. P-21. 

Bickel was asked by the court to sum up why he thought the Employee experienced an 

“occupational injury.” He responded: 

 [O]ne, he required medical treatment because he had 

 material in his eye that could not be removed just by 

 flushing it. They actually had to use an instrument to -- 

 it was embedded in the eye enough that they had to 

scrape it out, and I felt that met the definition of a 

medical injury. And the second reason is on the 29th, 

it appeared that he was on restricted work duty . . . . 

[A]n injury that results in restricted work duty meets 

the definition of an occupational injury. 

Tr. 301. 

On cross examination, Bickel admitted that he never had seen a foreign body spud. 

Tr. 302. (“I’ve seen pictures of them, but no, I haven’t seen them.” Id.) He further agreed that 

for there to be a reportable eye injury, a foreign body has to be “embedded” in the eye because, 

“That’s the language used in the standard.” Id. If the foreign body is not embedded, the 

treatment to remove the foreign body qualifies as non-reportable “first aid,” not as reportable 

“medical treatment.” Tr. 302-303. Finally, he agreed that if an employee misses time at work 

for “first aid,” the incident causing the time off is not reportable. Tr. 303. 

Kathy Cattles identified her notes that related to the eye injury. Tr. 219; Gov’t Exh. P 20. 

The notes state the injury occurred on May 23, 2013, at 7:30 a.m. Gov’t Exh. P-20. They also 

state that the injury resulted in two doctor’s visits. Id. Cattles asked the auditors to confirm the 

 32 Bickel was not sure but thought “PT” stood for “part time.” Tr. 294. 

37 FMSHRC Page 2386
Employee visited a doctor on May 23, and on May 29, and to look into whether the doctor gave 

the Employee one day of restricted work. She also suggested the auditors ask the Employee 

about his work schedule. Id.

Cattles testified that prior to writing the notes she reviewed the company’s Incident 

Reporting Form. Tr. 219; Gov’t Exh. P-16. She also looked at the ER Adult Discharge 

Instruction form that pertains to the Employee’s May 23 visit. Tr. 220; Gov’t Exh. P-17. 

Further, she reviewed a company document entitled, “Report of Workability. ” Tr. 220; Gov’t 

Exh. P-18. Finally, she reviewed the discharge instruction form that is dated May 29, 2013, and 

which states in part that the Employee suffered an eye injury, that he is unable to work on May 

29, 2013, but that he can return to work with no limitations on May 30. Tr. 220; Gov’t Exh. 18. 

Cattles turned the documents over to the leader of MSHA’s audit team who in turn gave them to 

the MSHA district manager. Tr. 220. Subsequently, the citations were issued. 

Scott Blood testified that the Employee was terminated approximately 10 months before 

the hearing and that he (Blood) did not know where the Employee lives. Tr. 305. According to 

Blood, when the Employee worked for Northshore, he was a lube technician in the pellet plant, 

a job that required him to keep equipment greased. Id. On the morning of May 23, 2013, Blood 

was in his office when he received a telephone call from the Employee. The Employee told 

Blood he had something in his eye and that he had tried unsuccessfully to flush it. The 

Employee came to Blood’s office and Blood looked at his eye. Blood could not see anything 

but told the Employee that he, Blood, would take the Employee to the Lake View Clinic ER. 

Tr. 305-306. After they arrived at the ER, the Employee was seen by a doctor while Blood 

waited in an outer room. Blood testified that subsequently he asked the Employee what 

happened. The Employee told Blood the doctor looked in his eye, flushed it a little, could not 

see anything, and was discharging the Employee. Tr. 306. According to Blood, after leaving 

the ER, the men drove back to the plant where the Employee resumed his regular job. Tr. 307. 

Northshore’s counsel asked Blood to look at the ER Adult Discharge Instruction 

relating to the employee’s May 23 visit. Tr. 307; Gov’t Exh. P-17. One of the instructions was 

for the Employee to use 3 drops of “artificial tears” every three to four hours. Gov’t Exh. P-17 

at 1. Blood was asked if “artificial tears” is a prescription medication. Blood responded that it 

is an “over the counter” product. Tr. 307. 

The company’s counsel also showed Blood the Employee’s time card. Tr. 307-308. 

Gov’t Exh. P-21. Blood testified that after Thursday, May 23, the next scheduled work day for 

the employee was Monday, May 27, but because the 27th was Memorial Day, the Employee 

was next scheduled to work on Tuesday, May 28. Tr. 308. However, the Employee did not 

report for work on May 28 because, according to Blood, the Employee had “flexed his 

schedule” to work 10 hour days Wednesday (May 29), Thursday (May 30) and Friday (May 

31). Tr 309. The three days, plus Memorial Day, gave the Employee a 40 hour week. Thus, 

the Employee was only expected to work Wednesday through Friday after Memorial Day, not 

Tuesday through Friday. Tr. 309. 

On Wednesday, May 29, the Employee worked four hours and then was given six hours 

of personal time. Tr. 309-310, Gov’t Exh. P-21. The Employee left the facility after four hours 

of work and did not tell Blood or anyone else at the facility that he was going to see a doctor. 

37 FMSHRC Page 2387
Tr. 317. Blood was asked about the notation on the Employee’s time sheet for Wednesday, 

May 29, that reads, “Allowed Time PT – Dr Occ 520 6.0.” He explained that “PT” stands for 

“personal time” and that, “Each employee gets 24 hours of . . . personal time allotted to them in 

a given year that they can use at their discretion. It’s not something they need to schedule in 

advance.” Tr. 310. According to Blood, the timecard shows the Employee used six hours of 

personal time on May 29, time that he happened to use to see a doctor. Id. The Employee came 

back to work on May 30 with no restrictions. Tr. 310-11. 

Blood testified that on the morning of May 30 the Employee came to his office, dropped 

off his doctor’s note from the day before, and told Blood he went to the doctor on May 29 

because his eye still felt irritated. Tr. 311. The Employee stated that the doctor identified a 

“particle” in his eye. Tr. 311. Blood stated that the Employee referred to the implement used to 

remove the “particle” as a “Q-tip,” but Blood maintained the correct term for the tool is a 

“foreign body spud.”33 Tr. 312. Because of his EMT training Blood was familiar with foreign 

body spuds. He stated that they “used to take objects out of an eye.” Tr. 312. Blood described 

such a spud as “noninvasive” in that the spud “just takes a superficial piece off the eye.” Tr. 

313. Blood distinguished the “noninvasive” procedure experienced by the Employee from the

procedure required when a particle is embedded in the eye. The latter experience was

described by Blood as a “surgical procedure.” Tr. 314. Blood understood that when the

employee first went to the ER on May 23, the attending doctor could not find anything to

remove. It was on May 29 that the doctor used “a magnifying glass and was able to find

something and swept it out.” Tr. 315. Blood stated that he determined the incident was not

reportable because the Employee, “missed no work, . . . was not restricted in any way, and

there was no embedded object in [the Employee’s] right eye.” Id.

THE VIOLATION 

The court finds that the Secretary did not prove the alleged violations. The record 

establishes that the Employee missed work on May 29 to seek treatment for the presence of a 

corneal foreign body injury that he received on May 23. In the court’s view it is immaterial 

that the six hours of work the Employee missed to see the doctor was charged to him as 

personal time. It is the reason for taking the time off that is important. On May 29 the 

Employee took time off to seek and to receive treatment for his injury and in so doing he was 

unable to perform his job duties. However, the court agrees with Northshore that taking time 

off from work to visit a doctor does not necessarily make an injury reportable. Resp. Br. 31; Tr. 

139. Even though by so doing the Employee literally exhibited an “inability to perform all of

his job duties on any day after the injury” [(i.e., on May 29)] (30 C.F.R. § 50.2(e)), in the case

of an eye injury, the Secretary still must prove the visit resulted in medical treatment [34]. The

33 A “spud” is defined as, “A blunt triangular knife used for removing foreign bodies 

from the cornea.” The American Heritage® Medical Dictionary (2007, 2004 ) Houghton Mifflin 

Company. http://medical-dictionary.thefreedictionary.com/spuds (last visited September 11, 

2015). 

34 To hold otherwise would make meaningless the Secretary’s distinction between 

medical treatment and first aid (30 C.F.R. §50.20-3) since the purpose of the distinction is to 

render “nonreportable” injuries resulting in first aid. 

37 FMSHRC Page 2388
Secretary failed because he did not prove the Employee received “medical treatment” on May 

29. 

In distinguishing between “medical treatment” and “first aid” for eye injuries, the 

Secretary specified that the removal of foreign material that is embedded in the eye is “medical 

treatment” and the removal of foreign material that is not embedded is “first aid.” 30 C.F.R. § 

50.20-3(a)(5). The court recognizes that at first blush there is something bizarre about holding 

a corneal foreign body that is impervious to flushing and artificial tears and that remains on the 

cornea for six days and is removed with a “blunt triangular knife” (see n. 36) is not 

“reportable.” However, it is a fact that there are two types of corneal foreign bodies, those that 

lie on the surface of the eye’s cornea and those that are embedded in the cornea,35 and the 

Secretary has legally recognized the distinction. 30 C.F.R. § 50-20-3(a)(5). There is no way to 

definitively conclude from the record whether the foreign body that afflicted the Employee’s 

right eye was lodged on the surface of his cornea or was imbedded in it. The medical records 

do not say and treating physicans were not called as witnesses and apparently were not 

deposed. See Gov. Exh. P-17. Thus, there is no way to determine whether the treatment he 

received on May 29 was “medical treatment” and his absence from work was reportable. 

OTHER CIVIL PENALTY CRITERIA

The company’s undisputed history of previous violations shows that in the 15 months 

before the subject citations were issued, the company paid a total of 229 violations. Gov’t Exh. 

P-1. While this is a large history, its impact is somewhat moderated by the fact that the vast

majority of the previous violations were not significant and substantial contributions to mine

safety hazards. The parties did not stipulate as to the size of the operator, but the court takes

note of the fact that in proposing penalties for the subject violations the Secretary found the

operator to be large, something Northshore does not dispute. See Petition for Assessment of

Civil Penalty, Exhibit A (March 4, 2014); 30 C.F.R. § 100.3(b). The parties stipulated that any

penalties assessed will not impair the company’s ability to remain in business and that the

company demonstrated good faith in abating the cited conditions. Tr. 15 (referencing

Stipulations 7, 6).

35 “A corneal foreign body is a piece of material on or embedded in the transparent 

structure at the front of the eye (cornea). Corneal foreign bodies are usually minor ocular 

trauma. A corneal foreign body often occurs when some force (e.g., wind or back draft from a 

power tool) blows a small particle into the eye that becomes lodged in the surface layer of the 

cornea (corneal epithelium). Often the particle is made of metal, glass, or organic material. 

Superficial corneal foreign bodies are much more common than deeply embedded corneal 

foreign bodies. Corneal foreign bodies are a common occupational hazard, causing ocular 

morbidity and loss of time from work.” Reed Group, MD Guidelines, 

http://www.mdguidelines.com/foreign-body-cornea/definition (last visited October 20, 2015). 

37 FMSHRC Page 2389
 ASSESSMENTS 

Citation No. Date 30 CFR § Proposed Assessment Assessment

6556654 11/22/13 50.20(a) $117 $0 

The court has found that the Secretary did not prove the violation. A penalty cannot be 

assessed. 

Citation No. Date 30 CFR § Proposed Assessment Assessment

6556655 11/22/13 50.11(b) $100 $0 

The court has found that the Secretary did not prove the violation. A penalty cannot be 

assessed. 

Citation No. Date 30 CFR § Proposed Assessment Assessment

6556656 11/22/13 50.20(a) $117 $117 

The court has found that the violation occurred. Based on the agreement of the parties 

the court also has concluded the violation was not serious and was due to the company’s 

moderate negligence. Given these findings and the other civil penalty criteria the court finds 

the Secretary’s proposed assessment is appropriate and it assessed Northshore $117 for the 

violation. 

Citation No. Date 30 CFR § Proposed Assessment Assessment

6556657 11/22/13 50.11(b) $100 $100 

The court has found that the violation occurred. Based on the agreement of the parties 

the court also has concluded the violation was not serious and was due to the company’s low 

negligence. Given these findings and the other civil penalty criteria the court finds the 

Secretary’s proposed assessment is appropriate and it assessed Northshore $100 for the 

violation. 

Citation No. Date 30 CFR § Proposed Assessment Assessment

6556660 11/22/13 50.20(a) $117 $0 

The court has found that the Secretary did not prove the violation. A penalty cannot be 

assessed. 

Citation No. Date 30 CFR § Proposed Assessment Assessment

6556661 11/22/13 50.11(b) $100 $0 

The court has found that the Secretary did not prove the violation. A penalty cannot be 

assessed. 

37 FMSHRC Page 2390
Citation No. Date 30 CFR § Proposed Assessment Assessment

6556666 11/22/13 50.20(a) $117 $117 

The court has found that the violation occurred. Based on the agreement of the parties 

the court also has concluded the violation was not serious and was due to the company’s 

moderate negligence. Given these findings and the other civil penalty criteria the court finds 

the Secretary’s proposed assessment is appropriate and it assessed Northshore $117 for the 

violation. 

Citation No. Date 30 CFR § Proposed Assessment Assessment

6556667 11/22/13 50.11(b) $100 $100 

The court has found that the violation occurred. Based on the agreement of the parties 

the court also has concluded the violation was not serious and was due to the company’s low 

negligence. Given these findings and the other civil penalty criteria the court finds the 

Secretary’s proposed assessment is appropriate and it assessed Northshore $100 for the 

violation. 

Citation No. Date 30 CFR § Proposed Assessment Assessment

6556658 11/22/13 50.20(a) $117 $0 

The court has found that the Secretary did not prove the violation. A penalty cannot be 

assessed. 

Citation No. Date 30 CFR § Proposed Assessment Assessment

6556659 11/22/13 50.11(b) $100 $0 

The court has found that the Secretary did not prove the violation. A penalty cannot be 

assessed. 

 ADMITTED VIOLATION 

Citation No. Date 30 CFR § Proposed Assessment Assessment

6556663 11/22/13 50.11(b) $100 $100 

At the beginning of the hearing, Counsel for the Secretary stated his understanding that 

the company had withdrawn its contest of the citation. Tr. 11. Counsel for the company did not 

disagree, and the court concludes the violation existed as charged. The court also affirms 

Bickel’s gravity and negligence findings. The Secretary’s proposed penalty is assessed. 

37 FMSHRC Page 2391
ORDER

Citations No. 6556654, 6556655, 6556660, 6556661, 6556658 and 6556659 ARE 

VACATED. Within 30 days of the date of this decision, Northshore is ORDERED TO PAY 

the Secretary a civil penalty of $534, and upon payment of the penalty this case is 

DISMISSED.

36

/s/ David F. Barbour 

David F. Barbour 

Administrative Law Judge 

Distribution: (Certified Mail) 

Sean J. Allen, Esq., U.S. Department of Labor, Office of the Solicitor, 1244 Speer Boulevard, 

Suite 216, Denver, Colorado 80204 

Arthur M. Wolfson, Esq., Jackson Kelly, PLLC, Three Gateway Center, Suite 1500, 401 

Liberty Ave., Pittsburgh, Pennsylvania 15222 

/db 

36 Payment shall be sent to the: MINE SAFETY AND HEALTH ADMINISTRATION 

U.S. DEPARTMENT OF LABOR, PAYMENT OFFICE, P.O. BOX 790390, ST. Louis, Mo 

63179-0390. 

37 FMSHRC Page 2392
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVENUE NW, SUITE 520N 

WASHINGTON, D.C. 20004

October 22, 2015 

DECISION APPROVING SETTLEMENT 

AND 

ORDER TO PAY 

Before: Judge Feldman 

These consolidated civil penalty and contest proceedings are before me based on a 

petition for assessment of civil penalty filed by the Secretary of Labor (“Secretary”) under 

section 105(d) of the Federal Mine Safety and Health Act of 1977, as amended (“the Act”), 30 

U.S.C. § 815(d), against the Respondent, Alpha Highwall Mining, LLC (“Alpha Highwall”).

ALPHA HIGHWALL MINING, LLC, 

 and REVELATION ENERGY, LLC, 

 successor in interest, 

 Contestant, 

 v. 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

Petitioner 

 v. 

ALPHA HIGHWALL MINING, LLC, 

 and REVELATION ENERGY, LLC, 

 successor in interest, 

Respondent 

CONTEST PROCEEDINGS 

Docket No. KENT 2012-1207-R 

Citation No. 8270168; 05/29/2012 

Docket No. KENT 2012-1208-R 

Citation No. 8270169; 05/29/2012 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 2013-142 

A.C. No. 15-19621-301671

Mine: Bucyrus Highwall Miner #76 

37 FMSHRC Page 2393
On March 11, 2015, the parties filed a joint motion to approve settlement naming 

Revelation Energy, LLC (“Revelation Energy”) as the successor in interest to Alpha Highwall. 

The parties’ settlement terms included a substantial reduction to the initial proposed civil penalty 

from $90,000.00 to $5,000.00. The substantial reduction in civil penalty is based, in large part, 

on the modification of 104(d)(1) Citation No. 8270168 and 104(d)(1) Order No. 8270169 to 

104(a) citations, to reflect that the cited conditions were not attributable to unwarrantable 

failures. In further support of the substantial reduction in civil penalty, Revelation Energy, as the 

successor in interest to Alpha Highwall, has agreed to implement improved safety measures at 

the mine site: 

In addition to the payment of [the agreed-upon $5,000.00 civil penalty], 

[Revelation Energy] by virtue of its acquisition [of Alpha Highwall’s liability], 

[has] agreed to spend at least $55,000 to purchase handheld two-way radios, 

cameras for the highwall miners, and shelters for the miners at [surface] mines 

operated by Revelation Energy [some of which were previously-operated by 

Alpha Highwall]. The handheld radios will be provided to the miners who work at 

the [surface] mines and the cameras and shelters will be installed on the highwall 

miners operated by Revelation Energy. [Revelation Energy] has agreed to 

purchase this equipment, and to install the equipment, at the mines by July 15, 

2015. By this date, [Revelation Energy] has also agreed to provide the Secretary 

with receipts showing that the equipment was purchased. [Revelation Energy] has 

also agreed to update its ground control plan to specify that the equipment will be 

purchased and installed by July 15, 2015, and that the equipment will be 

maintained in good working order thereafter. 

Jt. Mot. to Approve Settlement, at 2 (Mar. 11, 2015). 

On April 9, 2015, I issued an Order Holding the Joint Motion to Approve Settlement in 

Abeyance, 37 FMSHRC 970 (Apr. 2015) (ALJ), contingent upon documented compliance by 

Revelation Energy of the acquisition and installation of the subject equipment specified in the 

parties’ settlement terms, as well as the required modification of Revelation Energy’s ground 

control plan. 

On September 30, 2015, the Secretary filed a Motion for Final Order Approving 

Settlement asserting that: 

Respondent has provided the Secretary with documentation and evidence 

demonstrating its implementation of the required cameras, shelters, and two-way 

radios, and has supplied the necessary revisions to its ground control plan. The 

Secretary is satisfied with Respondent’s compliance and requests that the 

administrative law judge approve the joint settlement filed on March 11, 2015. 

Mot. for Final Order Approving Settlement, at 2 (Sep. 30, 2015). 

 

37 FMSHRC Page 2394
I have considered the representations and documentation submitted in this matter and I 

conclude that the proffered settlement is appropriate under the criteria set forth in Section 110(i) 

of the Act. WHEREFORE, the motion to approve settlement IS GRANTED, and pursuant to 

the parties’ agreement, Alpha Highwall Mining, LLC, and Revelation Energy, LLC, ARE 

ORDERED to pay the $5,000.00 civil penalty within 30 days of this Order in satisfaction of the 

two citations at issue.1 Upon receipt of timely payment, the captioned matter IS DISMISSED. 

/s/ Jerold Feldman 

Jerold Feldman 

Administrative Law Judge 

Distribution: 

Anthony M. Berry, Esq., U.S. Department of Labor, Office of the Solicitor, 618 Church Street, 

Suite 230, Nashville, TN 37219 

Charles Bellomy, Esq., Christopher Pence, Esq., Hardy Pence PLLC, 500 Lee Street East, Suite 

701, P.O. Box 2548, Charleston, WV 25329 

/acp 

1

 Payment should be sent to the Mine Safety and Health Administration, U.S. 

Department of Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390. Please 

include the Docket No. and A.C. No. noted in the above caption on the check.

37 FMSHRC Page 2395
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9950 / FAX: 202-434-9949 

October 22, 2015 

DECISION AND ORDER

Appearances: Eric Johnson, Esq., Office of the Solicitor, U.S. Department of Labor, 

Nashville, Tennessee, for the Petitioner 

Billy R. Shelton, Esq., Jones, Walters, Turner & Shelton PLLC, 

Lexington, Kentucky, for the Respondent 

Before: Judge Rae 

I. STATEMENT OF THE CASE

These cases are before me upon two petitions for assessment of civil penalties filed by 

the Secretary of Labor (“the Secretary”) pursuant to section 105(d) of the Federal Mine Safety 

and Health Act of 1977, as amended, (“the Mine Act”), 30 U.S.C. § 815(d). At issue are three 

citations issued to mine operator Consolidation Coal Company (“Consol”) under section 104(a) 

of the Mine Act: Citation 8189820 in Docket Number VA 2012-42 and Citations 8202408 and 

8197859 in Docket Number VA 2013-192. 

A hearing was held in Kingsport, Tennessee on November 18, 2014, at which time 

testimony was taken and documentary evidence was submitted. The parties also filed posthearing briefs. I have reviewed all of the evidence at length and have cited to the testimony, 

exhibits and arguments I found critical to my analysis and ruling herein without including a 

detailed summary of the testimony given by each witness. Based upon the entire record and my 

observations of the demeanor of the witnesses, I uphold or uphold and modify each of the 

citations as set forth below. 

II. BACKGROUND

The three citations at issue in this docket were issued at different times by different 

MSHA inspectors at the Buchanan Mine #1, which is a large underground coal mine located in 

Buchanan County, Virginia. The factual circumstances surrounding each of the alleged 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

v. 

CONSOLIDATION COAL COMPANY, 

 Respondent 

 CIVIL PENALTY PROCEEDINGS 

Docket No. VA 2012-42 

A.C. No. 44-04856-269664

Docket No. VA 2013-192 

A.C. No. 44-04856-311828

Mine: Buchanan Mine #1 

37 FMSHRC Page 2396
violations are set forth in the body of my decision below. The parties have stipulated to the 

following facts: 

1. During all times relevant to this matter, Consolidation Coal Company (Respondent) was

the operator, as defined in Section 3(d) of the Mine Act, 30 U.S.C. § 802(d), of the

Buchanan No. 1 mine, Mine ID No. 44-04856.

2. The Buchanan No. 1 mine is a “mine” as that term is defined in Section 3(h) of the Mine

Act, 30 U.S.C. § 802(h).

3. At all material times involved in this case, the products of the Buchanan No. 1 mine

entered commerce or the operations or products thereof affected commerce within the

meaning and scope of Section 4 of the Mine Act, 30 U.S.C. § 803.

4. Respondent is large in size, having produced 5,654,353 tons of coal at its Buchanan No. 1

mine in 2011 and 3,506,216 tons in 2012.

5. The proceeding is subject to the jurisdiction of the Federal Mine Safety and Health

Review Commission and its designated Administrative Law Judges pursuant to Sections

105 and 113 of the Mine Act, 30 U.S.C. §§ 815 and 823.

6. MSHA Inspectors Jason D. Hess, William G. Ratliff, and Paul E. Smith, whose

signatures appear in Block 22 of Citation Numbers 8202408, 8189820, and 8197859,

respectively, were acting in their official capacity and as authorized representatives of the

Secretary of Labor when they issued the citations.

7. The citations at issue in this proceeding were properly served by duly authorized

representatives of the Secretary of Labor, Mine Safety and Health Administration, upon

an agent of Respondent.

8. The total proposed penalties for the citations will not affect Respondent’s ability to

continue in business.

Joint Exhibit 1; Tr. 6.1

III. LEGAL PRINCIPLES

A. Gravity/Significant & Substantial (S&S) Designation

An S&S violation is a violation “of such nature as could significantly and substantially

contribute to the cause and effect of a ... mine safety or health hazard.” 30 U.S.C. § 814(d). A 

violation is properly designated S&S “if, based upon the particular facts surrounding the 

violation, there exists a reasonable likelihood that the hazard contributed to will result in an 

injury or illness of a reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 

822, 825 (Apr. 1981). 

In Mathies Coal Company, the Commission set forth the following four-part test to 

determine whether a violation is properly designated S&S: 

1

 In this decision, the abbreviation “Tr.” refers to the transcript of the hearing. The 

Secretary’s exhibits are numbered S-1 to S-11 and the Respondent’s exhibits are numbered R-3 

and R-4. 

37 FMSHRC Page 2397
In order to establish that a violation of a mandatory safety standard is significant 

and substantial under National Gypsum, the Secretary of Labor must prove: (1) 

the underlying violation of a mandatory safety standard; (2) a discrete safety 

hazard – that is, a measure of danger to safety – contributed to by the violation; 

(3) a reasonable likelihood that the hazard contributed to will result in an injury;

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

serious nature.

6 FMSHRC 1, 3-4 (Jan. 1984); accord Buck Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 135 (7th 

Cir. 1995); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103 (5th Cir. 1988); Consolidation 

Coal Co. v. FMSHRC, 824 F.2d 1071, 1075 (D.C. Cir. 1987). The inspector’s judgment is also 

an important element of an S&S determination. Wolf Run Mining Co., 36 FMSHRC 1951, 1959 

(Aug. 2014); Mathies, 6 FMSHRC at 5. The S&S determination must be based on the particular 

facts surrounding the violation at issue. Peabody Coal Co., 17 FMSHRC 508, 511-12 (Apr. 

1995); see, e.g., Wolf Run, 36 FMSHRC at 1957-59.

It is the third element of the S&S criteria that is the source of most controversies 

regarding S&S findings. This element is established only if the Secretary proves “a reasonable 

likelihood the hazard contributed to will result in an event in which there is an injury.” U.S. Steel 

Mining Co., 6 FMSHRC 1834, 1836 (Aug. 1984). Evaluation of the reasonable likelihood of 

injury should be made assuming “continued normal mining operations,” U.S. Steel Mining Co., 6 

FMSHRC 1573, 1574 (July 1984), i.e., the evaluation should be made “in consideration of the 

length of time that the violative condition existed prior to the citation and the time it would have 

existed if normal mining operations had continued.” Black Beauty Coal Co., 34 FMSHRC 1733, 

1740 (Aug. 2012); Rushton Mining Co., 11 FMSHRC 1432, 1435 (Aug. 1989). 

The S&S nature of a violation and the gravity of the violation are not synonymous. 

Gravity is generally expressed as the degree of seriousness of the violation. The gravity 

assessment and a finding of S&S are frequently based upon the same or similar factual 

circumstances, Quinland Coals, Inc., 9 FMSHRC 1614, 1622 n.11 (Sept. 1987), but the focus of 

the inquiries differs. The Commission has pointed out that the focus of the gravity inquiry “is not 

necessarily on the reasonable likelihood of serious injury, which is the focus of the S&S inquiry, 

but rather on the effect of the hazard if it occurs.” Consolidation Coal Co., 18 FMSHRC 1541, 

1550 (Sept. 1996). 

B. Negligence

Negligence is conduct that falls below the standard of care established under the Mine

Act. Under the Mine Act, an operator is held to a high standard of care and is required to be on 

the alert for conditions and practices that may cause injuries and to take necessary precautions to 

prevent or correct them. 30 C.F.R. § 10.0(d). Moderate negligence is defined by the Secretary as 

having occurred in connection with a violation when “[t]he operator knew or should have known 

of the violative condition or practice, but there are mitigating circumstances.” Id. § 100.3, Table 

X. If the mitigating circumstances are “considerable,” the Secretary considers the level of

negligence to be low. Id.

37 FMSHRC Page 2398
IV. FINDINGS OF FACT AND ANALYSIS

A. Citation Number 82024082 (Ventilation Plan Violation)

1. The Violation

This citation was issued by MSHA Inspector Jason D. Hess3 on November 9, 2012 and 

alleges the operator violated the mandatory health and safety standard at § 75.370(a)(1) by 

failing to maintain the required number of operable water sprays on a continuous mining 

machine, in contravention of the mine’s approved ventilation plan. Ex. S-1. The Secretary has 

proposed a penalty of $1,203.00 for the alleged violation. 

The cited safety standard provides that each operator of an underground coal mine shall 

develop and follow a ventilation plan that is designed to control methane and respirable dust in 

the mine and is approved by the MSHA district manager. 30 C.F.R. § 75.370(a)(1). Once a 

ventilation plan has been approved and adopted, its provisions are enforceable at the mine as 

mandatory safety standards. Martin County Coal Corp., 28 FMSHRC 247, 254 (May 2006). 

The ventilation plan for the Buchanan Mine #1 requires continuous mining machines to 

utilize a specified configuration of 38 dust control sprays that are strategically placed around the 

machine in blocks in order to wet the machine’s ripper drums, tamp down dust, and facilitate air 

movement. Tr. 36-40, 45, 91; Ex. S-3. A certain number of sprays must remain operable during 

each cut. Part 1.R of the ventilation plan provides in pertinent part: 

Prior to starting every cut on all CM [continuous miner] sections, the water sprays 

on the miner will be visually examined to insure that all 38 sprays are operating. 

Once the cut has started, a minimum of 80% of the sprays which are supposed to 

be operating for that cut must be maintained (no less than 50% of the sprays in 

each spray block must be operating). 

Ex. S-3 at 3. These requirements are reiterated in Part 3.A.5.a and in Part 10, Sketch 9 of the 

ventilation plan. Ex. S-3 at 6, 19. 

Inspector Hess discovered a violation of the ventilation plan while he was investigating a 

methane ignition that had occurred on the 20 Right development panel during the evening 

2

 The citations were not presented at trial in numerical or chronological order. They are 

addressed herein in the order in which they were presented at trial. 

3

 Hess worked in the mining industry as an equipment operator, electrician, and foreman 

for eleven or twelve years before he was hired by MSHA to serve as a coal mine inspector in 

April 2007. He underwent about 22 weeks of training at MSHA’s Mine Academy in Beckley, 

West Virginia to receive his Authorized Representative card. Since early 2012 he has served as a 

ventilation specialist, in which capacity he reviews mine ventilation plans, assists operators in 

developing such plans, and advises the district manager on ventilation issues. He also holds 

collateral training and certification as an accident investigator. Tr. 16-20.

37 FMSHRC Page 2399
production shift on November 8, 2012. Tr. 20, 93. Continuous miner operator Will Reedy had 

been performing a cleanup run in the No. 1 entry (i.e., clearing the slag and spilled cuttings from 

the working place after taking a cut of coal) when a large piece of sandstone had fallen from the 

mine roof. Tr. 27. As Reedy was using his continuous miner to cut the sandstone slug, an orange 

flame had flared up at the continuous miner and traveled across the floor and up the coal rib 

before Reedy was able to extinguish it with the wash-down hose. Tr. 28, 67, 100. 

Inspector Hess arrived at the mine several hours later to investigate the cause of the 

ignition. Although the Buchanan Mine #1 is an extremely gassy mine, Reedy denied obtaining 

any abnormal methane readings or noticing anything else out of the ordinary before the ignition. 

Tr. 21-22, 26, 65-66. Air readings taken after the ignition had revealed methane concentrations 

of 0.3 to 04.%, which are normal levels for this mine, and Hess confirmed that the ventilation 

system in the working place was functioning as intended. Tr. 32-35, 115. The sole exception was 

that when a baffle curtain that had been hung after the ignition was taken down, methane 

accumulated in the roof cavity left behind by the sandstone slug. Tr. 32-35, 68-71. Hess 

speculated that when the slug fell, methane had been released from the roof and pulled down into 

the working place, where it had accumulated to a concentration of greater than 5% and combined 

with oxygen to produce a combustible mixture that was ignited when the continuous miner’s drill 

bits sparked on the sandstone while cutting it. Tr. 78, 80. 

When Hess examined the continuous miner for conditions that could have contributed to 

the ignition, he observed that 8 of the machine’s 38 water sprays were clogged and inoperable. 

Ex. S-1. Each spray is set into a recess on the surface of the machine. Tr. 48. Hess discovered 

that coal was packed into some of the recesses such that a screwdriver was needed to remove the 

clogged spray assemblies, and they still would not spray even after they had been cleaned and 

reattached, indicating internal clogging. Tr. 48-49. Based on these observations, Hess issued the 

citation, which was terminated about forty minutes later when the inoperable sprays had been 

cleaned. Ex. S-1. 

The fact that eight of the sprays were clogged means that only thirty sprays were operable 

during the last cut unless one or more of the inoperable sprays somehow became clogged while 

the machine was sitting idle after the cut, as suggested by Consol. Resp.’s Post-Hr’g Br. 18. Hess 

indicated this was highly unlikely. He saw no way the sprays could have become completely 

packed with coal during the brief amount of time the machine was cutting the sandstone slug or 

while it was idled afterward. Tr. 49, 62, 87, 90. I agree with his assessment. It is much more 

likely that the sprays became clogged with coal dust while the machine was cutting coal earlier 

in the shift. Consol presented testimony from Donald Sparkman, manager of safety for the 

company’s Central Appalachian operations, that the mine and the continuous miner had been out 

of service for about two months until five days before the ignition, which could have allowed 

particles to accumulate in the water lines due to the corrosive, acidic nature of the water at the 

mine. Tr. 151-54. However, even accepting Sparkman’s suggestion that the sprays became 

clogged when the bumping of the machine as it was cutting the sandstone dislodged accumulated 

sediment in the water lines, this would have occurred while the machine was operating, not after 

it had been shut off. Tr. 90. I find that while the continuous miner was cutting the sandstone slug, 

only 30 of its 38 sprays (78.9%) were operable. This was a violation of the ventilation plan’s 

requirement that 80% of the sprays be maintained during every cut. 

37 FMSHRC Page 2400
In addition, the operator violated the requirement that 50% of the sprays in each spray 

block remain operable during every cut. All four of the sprays in the two ripper side spray 

blocks, which are located on either side of the ripper head, were completely clogged. Ex. S-1; Tr. 

40, 44. Furthermore, only one of the three sprays in the right pan side spray block was 

functioning. Ex. S-1; Tr. 44-45. Counsel for the Respondent has called attention to the fact that 

Inspector Hess said the pan side sprays were on left side of the machine during a deposition but 

later said they were on the right. However, Hess credibly explained that he simply made a 

mistake during the deposition because he was referring to a mirror-image sketch of the 

continuous mining machine at the time. Tr. 39, 55-59, 81; see Ex. S-3, Part 10, Sketch 9 (bearing 

legend “Right side miner shown, left side miner is mirror image”). Regardless, the ventilation 

plan’s 50% requirement was violated by the fact that neither of the ripper side spray blocks 

contained a single operable spray. 

Because two of the ventilation plan’s requirements were violated, a violation of § 

75.370(a)(1) occurred. 

2. Gravity and S&S Findings

Parties’ Positions 

Inspector Hess marked this violation as S&S and reasonably likely to cause an injury that 

would result in lost workdays or restricted duty for two miners. Ex. S-1. Hess believed that the 

inoperable sprays, and particularly the complete failure of all the sprays in both of the ripper side 

spray blocks, had caused the November 8 ignition. Tr. 37-38, 46, 51, 89. Although the ignition 

did not result in any injuries, Hess believed that a greater quantity of fuel could have easily 

allowed a fire to propagate back to burn the miner operator and the nearby hauler operator, or the 

ignition could have even led to a fatal explosion. Tr. 50-53. 

Consol argues that the S&S designation is inappropriate because the Secretary has failed 

to establish that an injury-causing event was reasonably likely and therefore has failed to satisfy 

the third Mathies element. Resp.’s Post-Hr’g Br. 17-18. 

S&S Analysis 

A violation of a mandatory safety standard occurred, satisfying the first element required 

to sustain an S&S finding under the Mathies test. 

The second Mathies element, the existence of a discrete safety hazard contributed to by 

the violation, is also satisfied because this violation contributed to the discrete hazard that an 

ignition, fire, or explosion would occur. As explained by Inspector Hess, who was a ventilation 

specialist with more than fifteen years of experience in underground mining at the time he issued 

this citation, the violative condition contributed to the likelihood of an ignition both by impairing 

the system by which the continuous miner’s drill bits are wetted down and by inhibiting the air 

movement that is needed to sweep dust and gases away from the face area and to prevent 

methane from accumulating to ignitable levels around the continuous miner while it is working. 

Tr. 36-38, 45-47, 91. Hess was especially concerned about the complete inoperability of all the 

sprays in both ripper side spray blocks. One of the functions of these particular sprays is to create 

37 FMSHRC Page 2401
a Venturi effect that aids the mine’s ventilation system by pulling air across the continuous 

mining machine. Tr. 37-38, 91. In addition, these sprays keep the outside ring of bits cool on the 

ripper head. Tr. 37, 46. The loss of these two functions contributed to the discrete hazard that 

methane would accumulate around the machine while it was in service and would be ignited by a 

spark from the hot drill bits, leading to an ignition, fire, or explosion. 

For violations that contribute to the hazard of an ignition, fire, or explosion, the third 

Mathies element is satisfied when a “confluence of factors” existed that could have triggered an 

ignition, fire, or explosion with continued normal mining operations. Paramont Coal Co. 

Virginia, LLC, 37 FMSHRC 981, 984 (May 2015); Texasgulf, Inc., 10 FMSHRC 498, 501 (Apr. 

1988). Such factors include the presence of potential ignition sources, such as nearby equipment 

that might spark or create frictional heat, and the presence of any substances that are ignitable or 

that could provide a fuel source to propagate a fire or explosion, such as methane or 

accumulations of coal dust. See, e.g., Consolidation Coal Co., 35 FMSHRC 2326, 2338-41 (Aug. 

2013) (upholding S&S finding for ventilation violation when ignition sources and methane were 

present). 

An ignition actually occurred in this case. Hess attributed the ignition to the loss of 

function of the continuous miner’s side sprays, for the reasons discussed above. Given Hess’s 

convincing testimony and his training and experience as a ventilation specialist, I credit his 

opinion in this regard and find that the hazard contributed to by this violation resulted in an 

actual ignition. 

 

Even if an ignition had not actually occurred, a confluence of factors existed at the time 

of the violation that was reasonably likely to trigger an ignition or fire. The Buchanan Mine #1 

liberates twelve million cubic feet of methane per day, making it the gassiest mine in its MSHA 

district and placing it on a five-day methane spot inspection cycle under section 103(i)4

 of the 

Mine Act. Tr. 21-22, 155, 207. The mine also has a history of methane ignitions and two 

explosions have occurred there in the past ten years. Tr. 52, 64, 155, 176, 207. The violation 

occurred at the working face, where methane is known to liberated, and a large rock had 

separated from the roof just before the violation, which likely released methane. Methane was 

present and available to mix with oxygen in the ambient air and serve as a fuel source for a fire. 

Ignition sources were also present. Although Hess did not identify any permissibility violations, 

the face equipment in use at this location could have generated heat and sparks with continued 

normal mining operations. In particular, the continuous miner’s drill bits were likely to generate 

sparks as they were cutting sandstone, which sparks easily and was present in the mine roof in 

the area where the violation occurred. Tr. 117, 143-44, 150, 154-55. The violation increased the 

likelihood that a spark produced by the miner’s drill bits would lead to an ignition or fire because 

the clogged sprays would not have been able to properly cool the outer ring of drill bits, 

extinguish sparks, and move air across the machine to prevent methane from accumulating. 

Because a confluence of factors existed which were reasonably likely to trigger an ignition or 

fire with continued normal mining operations, the third Mathies element is satisfied. 

 4

 Section 103(a) mandates that whenever a mine “liberates excessive quantities of 

methane or other explosive gases,” the Secretary shall perform a spot inspection of the mine at 

least once every five days. “Excessive quantities” of gases are defined as more than one million 

cubic feet of gases liberated during a 24-hour period. 30 U.S.C. § 813(i). 

37 FMSHRC Page 2402
Turning to the fourth Mathies element, a fire at the working face would be reasonably 

likely to cause serious or fatal injuries, such as burns or injuries from smoke inhalation, to any 

miners working there. See McCoy Elkhorn Coal Corp., 36 FMSHRC 1987, 1992-93 (Aug. 2014) 

(noting “common sense” proposition that an ignition or fire in an underground coal mine 

presents a risk of serious injury). 

Because the four Mathies criteria are met, this violation is S&S. 

Gravity Analysis 

This was a serious violation because it exposed at least two miners, the continuous miner 

operator and the nearby hauler operator, to potentially fatal injuries from a fire. 

3. Negligence

Inspector Hess charged Consol with moderate negligence because he believed that mine 

management was not taking the initiative to ensure the continuous miner’s sprays were being 

properly cleaned throughout the shift. Tr. 53-54. Consol does not directly dispute the moderate 

negligence designation, but has presented testimony that continuous miner operators are trained 

to follow a sandstone cutting plan and to always check the machine’s sprays before beginning a 

cut and that miner operator Reedy was a competent employee who would have followed these 

requirements. Tr. 92, 110, 116-18, 132-33, 144. 

I agree with Hess. Under the ventilation plan, Consol is responsible for checking the 

condition of the continuous miner’s sprays before each cut is made. Mine management should 

have been particularly alert to the need to keep the sprays clean because they were aware that the 

water at the mine carried particulate matter that could clog the water lines and that the 

continuous miner had been idled for two months before being placed back in service recently. Tr. 

111, 131-32, 151-54. Based on the amount of material clogging the exterior of the sprays and the 

level of compaction described by Hess, it is evident that the sprays were not checked before the 

sandstone slug was cut and had been clogged since at least the previous cut, leading to a methane 

ignition. Miner operator Reedy and section foreman Tommy Proffitt are to be commended for 

reacting quickly and appropriately to contain the fire, reflecting proper training, and fortunately 

no one was injured. Tr. 113-14. However, the miners’ after-the-fact actions were not appropriate 

measures on management’s part to guard against the violation occurring in the first place. I find 

that moderate negligence is appropriate under the circumstances. 

B. Citation Number 8197859 (Accumulation Violation)

1. The Violation

This citation was issued by MSHA Inspector Paul E. Smith5 just before noon on

December 5, 2012 and alleges that there was an accumulation of combustible materials in the 

5

 Inspector Smith worked in the mining industry for more than twenty years as an 

(continued...) 

37 FMSHRC Page 2403
form of float coal dust along the No. 3 belt flight on the 21 Right section, in violation of the 

mandatory health and safety standard at § 75.400. Ex. S-4. The Secretary has proposed a penalty 

of $19,793.00 for the alleged violation. 

The cited standard states: “Coal dust, including float coal dust deposited on rock-dusted 

surfaces, loose coal, and other combustible materials, shall be cleaned up and not be permitted to 

accumulate in active workings, or on diesel-powered and electric equipment therein.” 30 C.F.R. 

§ 75.400. Recent, minor coal spillages may be exempted from the regulation, but if “the quantity

of combustible materials is such that ... it could cause a fire or explosion if an ignition source

were present,” the regulation has been violated. Old Ben Coal Co., 2 FMSHRC 2806, 2808 (Oct.

1980); see Black Beauty Coal Co. v. FMSHRC, 703 F.3d 553, 558-59 (D.C. Cir. 2012).

Inspector Smith issued this citation after traveling the mine on the morning of December 

5 to inspect the mine’s water system and carbon monoxide (CO) monitoring system. Tr. 160-61. 

Accompanied by assistant general maintenance foreman Elmer Deel and one other miner, Smith 

traveled underground and visited each of the working sections. Tr. 161, 197-200. The last section 

the inspection party visited was the 21 Right section, which was actively producing coal at the 

time. Tr. 200, 219. The men entered the section through the belt/track intake entry, rode to the 

end of the track in a mantrip, and walked to the dumping point so that Smith could check the CO 

sensor and water pressure at the belt tailpiece. Tr. 200; Ex. S-5 at 12-15. 

Inspector Smith testified that as he was walking back out of the entry, he noticed that the 

area underneath the belt flight was “pretty dark.” Tr. 162. This can be a sign of inadequate rock 

dusting, since properly rock-dusted surfaces should be white (the color of rock dust) or gray (the 

color of rock dust mixed with coal) rather than black. Tr. 164, 192, 206, 222. Looking more 

closely, Smith observed an eight-foot-wide layer of float coal dust resting along the belt structure 

and the mine water line for a distance of eleven crosscuts, or approximately 1,650 feet, with a 

few short gaps. Tr. 162-64. By measuring the accumulated material with a tape measure and a 

pocket screwdriver serving as a dipstick, Smith determined the accumulation ranged in depth 

from paper-thin to an eighth of an inch thick. Tr. 163. The National Institute of Occupational 

Safety and Health determined in a 2006 study6

 that a paper-thin layer of float coal dust is 

substantial enough to propagate a fire or explosion if it is not mixed thoroughly with rock dust. 

Tr. 162. Accordingly, Smith issued a citation identifying a hazardous condition. 

Consol argues that the citation should be dismissed because its three witnesses testified 

they saw no evidence of a 1,650-foot-long coal dust accumulation. Resp.’s Post-Hr’g Br. 18-19. 

However, two of Consol’s witnesses, section foreman Terry Hamilton and ventilation foreman 

Ricky Rose, did not actually observe the cited area during the operative timeframe. Hamilton 

was working inby at the face at the time the citation was issued and expressly denied observing 

5

 (...continued) 

equipment operator, foreman, and electrician before he was hired by MSHA in 2008. He trained 

at the Mine Academy and received his Authorized Representative card in March 2009. He 

inspects underground and surface coal mines. Tr. 157-59. 

6

 “Float Coal Dust Explosion Hazards,” DHHS (NIOSH) Pub. No. 2006-125 (Apr. 2006), 

available at www.cdc.gov/niosh/mining/UserFiles/works/pdfs/2006-125.pdf.

37 FMSHRC Page 2404
the cited accumulation. Tr. 219-20. Rose testified he saw no float coal dust during the pre-shift 

examination for the cited area, but he had performed the exam six hours before the citation was 

issued. Tr. 188, 191. Foreman Deel was the only witness who was present when Inspector Smith 

issued the citation and who saw the material that Smith deemed to be an accumulation. 

Deel, who has more than forty years of coal mining experience, opined that the citation 

was unwarranted because the area under the belt flight “was real lightly gray and there [weren’t] 

any real deposits that I could see.” Tr. 196, 203. His testimony raises factual disputes as to the 

composition and extensiveness of the cited material. However, there was testimony from both 

Smith and Consol’s witnesses that the cited area had not been rock dusted in accordance with the 

mine’s normal rock dusting schedule because the track duster that was ordinarily used in that 

area had broken down. Tr. 168, 202, 210. Deel conceded he did not know when the area had last 

been dusted. Tr. 210. These facts lend credence to Smith’s assertion that float coal dust had been 

allowed to accumulate on previously rock dusted surfaces, which can occur quickly along belt 

lines. Tr. 169. The accumulated material may have contained some rock dust, but only a small 

amount of float coal dust is needed for an ignition, as conceded by foreman Deel. Tr. 206. I 

credit Smith’s testimony that the accumulation was dark enough to indicate it was mostly coal 

dust and that the amount of coal dust present was substantial enough to cause or propagate a fire 

or explosion if an ignition source were present. 

 

I find that a violation of § 75.400 occurred. 

2. Gravity and S&S Findings 

Parties’ Positions 

Inspector Smith marked this violation as S&S and reasonably likely to cause fatal injuries 

to twelve miners. Ex. S-4. His concern was that if a “methane event” were to occur in the face 

area and travel to the belt entry, the accumulated float coal dust could cause a powerful dust 

explosion that would endanger the entire twelve-man crew working on the section. Tr. 166-68. 

Consol argues that the third Mathies factor is not met, and therefore the violation is not 

S&S, because there were no ignition sources or methane in the cited area and the area was 

properly rock dusted, making the likelihood of an ignition or explosion minimal or nonexistent. 

Resp.’s Post-Hr’g Br. 19-20. 

S&S Analysis 

A violation of a mandatory safety standard occurred, satisfying the first Mathies element. 

The violation contributed to the discrete hazard that an ignition, fire, or explosion would 

occur and would be propagated along the belt entry. As the Commission has long recognized, 

float coal dust serves as a fuel source for fires and explosions because it is combustible and is 

easily placed into suspension in the air, allowing it to propagate explosions in enclosed spaces. 

See, e.g., Utah Power & Light, Mining Div., 12 FMSHRC 965, 970 (May 1990), aff’d, 951 F.2d 

292 (D.C. Cir. 1991). Thus, float coal dust that has not been adequately mixed with rock dust so 

as to render it inert increases both the risk of and the dangers posed by an ignition, fire, or 

37 FMSHRC Page 2405
explosion. The accumulated float coal dust observed by Inspector Smith clearly had not been 

adequately mixed with rock dust because it was dark in color and it was located in an area that 

had not been rock dusted according to schedule. The accumulation was approximately 1,650 feet 

long, eight feet wide, and ranged from paper-thin to an eighth of an inch deep, which was 

substantial enough to cause or propagate a fire or explosion. Although the coal dust was not 

heavily deposited in some spots and was slightly damp in others, Inspector Smith explained that 

an explosion could jump over any gaps and a fire could easily dry out the damp patches. Tr. 164, 

167. Considering all of the facts, I find that the accumulation of float coal dust contributed to the

hazard of a mine fire or explosion, satisfying the second Mathies element.

However, the third Mathies element is not satisfied. As noted above in my discussion of 

Citation Number 8202408, the pertinent inquiry is whether consideration of all the facts 

surrounding the violation reveals that a confluence of factors existed that could have triggered an 

ignition, fire, or explosion with continued normal mining operations. In arguing that the 

“confluence of factors” test is met, the Secretary points to factors such as the mine’s history of 

methane liberation and ignitions, the sandstone strata in the mine’s roof, and the 1,650-foot 

distance spanned by the cited accumulation. Sec’y’s Post-Hr’g Br. 16-19. Yet the Secretary has 

failed to identify any likely ignition sources. Consol’s witnesses testified and Inspector Smith 

conceded that there were no ignition sources in the cited area or at the dumping point, which was 

450 feet away. Tr. 174-75, 178, 190, 203, 221. The Secretary has echoed Inspector Smith’s 

concern that a methane ignition at the working face would travel into the belt entry, and from 

there a fire or explosion could be propagated by the accumulated float coal dust. Sec’y’s PostHr’g Br. 16. But Smith was “not really sure” how far the accumulations were from the face and 

could not say whether ignition sources were present there because he had not traveled inby the 

dumping point. Tr. 164-65, 173, 181. Consol’s witnesses testified there were no permissibility 

problems or excess methane at the face that day and sandstone was not being mined. Tr. 207-08, 

219. The absence of these conditions decreases the likelihood of an ignition occurring at the face.

Even if an ignition were to occur at the face, Deel testified that the accumulations were more

than 900 feet away, and Inspector Smith offered no facts or explanation as to how an ignition

could have blown outby more than 900 feet to the cited area to ignite the accumulated coal dust.

Tr. 206. In short, although the accumulated coal dust contributed to the hazard of a mine fire or

explosion by supplying a potential fuel source, there is no evidence of any ignition sources that

could have caused the coal dust to combust. Furthermore, there was likely rock dust from the

mine’s routine rock dusting regimen mixed in with the coal dust. After considering all the

evidence, I find that the Secretary has failed to establish a confluence of factors existed that were

reasonably likely to trigger an ignition, fire, or explosion.

Because the third Mathies element is not satisfied, this violation is not S&S. 

Gravity Analysis 

The gravity of this violation is serious in that the float coal dust could have propagated a 

mine fire or explosion, which could have caused serious or fatal injuries to all twelve miners on 

the section, if an ignition source had been present. 

37 FMSHRC Page 2406
3. Negligence

Inspector Smith charged the operator with moderate negligence in connection with this 

violation because the cited area had not been rock-dusted on schedule even though there were 

four rock dusting machines at the mine. Tr. 168; Ex. S-4. However, the Secretary concedes that 

mitigating factors existed in that the area had been examined six hours earlier and float coal dust 

can accumulate quickly. Sec’y’s Post-Hr’g Br. 20; Tr. 169. 

I find that the negligence associated with this violation is more properly described as low. 

The cited layer of coal dust was paper-thin at some points and only an eighth of an inch deep at 

its thickest, indicating it had existed for a short period of time. In addition, Deel indicated that 

the belt was not being run while the rock duster was down. Tr. 202, 211-12. Under these 

circumstances, the mine operator’s negligence was low. 

C. Citation Number 8189820 (Roof Control Violation)

1. The Violation

This citation was issued by MSHA Inspector W. Gregory Ratliff7 on July 14, 2011 and 

alleges that the inspector observed a cut of coal that exceeded the maximum depth allowed under 

the mine’s roof control plan, in violation of § 75.220(a)(1). Ex. S-6. The Secretary has proposed 

a penalty of $3,405.00 for the alleged violation. 

The cited safety standard provides in pertinent part: “Each mine operator shall develop 

and follow a roof control plan, approved by the District Manager, that is suitable to the 

prevailing geological conditions, and the mining system to be used at the mine.” 30 C.F.R. § 

75.220(a)(1). As is the case for ventilation plan provisions, the provisions of a mine’s approved 

roof control plan are enforceable as mandatory safety standards at the mine. Martin County Coal 

Corp., 28 FMSHRC at 254. 

The provision at issue in this case is Part 1, Section K of the mine’s approved roof control 

plan, which provides that the standard cut depth at the mine is 20 feet. Ex. S-8 at 3. Although 

cuts up to 25 feet deep may be taken under some circumstances when a prescribed set of 

procedures is followed, Subsection K.7 limits cut depth to 20 feet in certain situations, including 

in the presence of “[a]ny detectable condition which is known to indicate the presence of adverse 

roof conditions.” Id. at 4. 

Ratliff issued this citation after traveling to the mine around 5:00 AM on the morning of 

July 14 to investigate an unrelated complaint. Tr. 227-28. Company safety inspector Robert 

Baugh accompanied him into the mine. Tr. 286. While Ratliff was conducting an imminent 

danger run on the 17 Right development panel, he observed adverse roof conditions and a cut 

7

 Inspector Ratliff has worked for MSHA as a coal mine inspector since February 2008. 

He worked in the mining industry as an equipment operator, shop foreman, and fireboss for 

approximately 24 years before being hired by MSHA in 2007 and subsequently completed about 

a year of field training and coursework at the Mine Academy to become certified as an inspector. 

Tr. 225-26. 

37 FMSHRC Page 2407
that appeared to exceed 20 feet in depth in a crosscut that was being developed between the No. 

3 and No. 2 entries. Tr. 229. The crosscut had punched through to the No. 2 entry and the roof 

had partly collapsed. Tr. 267-69, 291. Miners were in the process of bolting the unsupported roof 

using 6-foot resin bolts. Tr. 241, 259-60. Ratliff said he waited until the cut was bolted then 

measured it with a tape measure, which revealed a depth of 23.5 feet measured from the last row 

of roof bolts (which contained several damaged bolts) and 26 feet measured from the next-to-last 

row. Tr. 229-30, 244; Ex. S-11. He cited the condition at 11:38 AM and the citation was 

terminated at 2:00 AM the next day with notation that the roof had been supported. Ex. S-6. 

The citation states that the cut depth was limited to 20 feet due to adverse roof conditions 

in the previous cut. Both Ratliff and Baugh observed adverse conditions in the cited area in the 

form of cracks in the mine roof, cracks in test holes from the prior cut, and areas where the roof 

had fallen. Tr. 232-33, 287, 306. Baugh speculated that the adverse conditions may not have 

been detectable until after the cut had been taken and the roof had fallen. Tr. 309. However, 

section foreman Hamilton, who was in charge on the section when the cut was taken, testified 

that he would not have knowingly taken a 22 or 23 foot cut in that area. Tr. 271-72. The area was 

being bolted on a “tiger pattern” and extra bolts were being added between rows, which are 

measures taken to increase roof support under adverse conditions. Tr. 312-13. I find that the cut 

depth was limited to 20 feet under the mine’s approved roof control plan due to adverse roof 

conditions in the area. 

Because the cut depth was limited to 20 feet, Inspector Ratliff’s 26-foot and 23.5-foot 

measurements could each support a finding that the roof control plan was violated. Consol’s 

witnesses have disputed these measurements on several grounds. 

First, Consol’s witnesses testified that Ratliff had measured from the wrong row of roof 

bolts in obtaining the 26-foot figure. Tr. 303. The depth of a cut is measured starting from the 

last full row of undamaged roof bolts installed on the previous cut. Tr. 230, 278, 308. Ratliff took 

the prudent course of measuring from the next-to-last row of bolts because at least two of the 

bolts in the last row were damaged. Tr. 234. However, Hamilton said he had checked the area 

before the cut was initiated and all the roof bolts were intact at that time, meaning that the last 

row should have been used as the starting point for measuring the cut. Tr. 269-70. I find 

Hamilton’s testimony to be credible. The bolts were likely dislodged or otherwise damaged by 

the roof fall or by the continuous miner as it was trimming the roof afterward, as Hamilton and 

Baugh stated. Tr. 269-70, 292-93. The cut depth should be measured from the last row of bolts 

because it was fully intact when the cut was taken. 

Consol’s witnesses also disputed Inspector Ratliff’s finding that the cut was 23.5 feet 

deep when measured from the last row of bolts. Foreman Hamilton had initially projected the cut 

would be 19 feet deep but later learned that his calculation was off by one foot due to a 

misplaced spad. Tr. 270-78; see Ex. R-4. He testified that the cut had not been fully bolted until 

the day after the citation was issued, at which time he had measured it and found it to be just a 

few feet deeper than projected. Tr. 280. Similarly, Baugh testified that he had returned to the 

cited area the day after the citation was issued when the roof was fully supported, which allowed 

him to walk into the cut and take measurements along each wall and along the centerline. He 

found that the cut was 22 feet deep along each wall and 22 feet 4 inches deep down the middle 

37 FMSHRC Page 2408
and memorialized these findings in a detailed six-page report that contains four demonstrative 

drawings. Tr. 294-95; Ex. R-3. Baugh conceded that a 22-foot cut violates the roof control plan 

but opined that this cut may have been compliant until the roof fell and caused the face to 

collapse with it, thereby extending the depth of the cut. Tr. 308. This scenario is possible, but 

there is no clear evidence that it occurred. Based on the available evidence, I find that the cut was 

between 22 and 23.5 feet deep, in violation of the mine’s approved roof control plan.

 

Because the roof control plan was violated, a violation of § 75.220(a)(1) occurred. 

 

2. Gravity and S&S Findings 

Parties’ Positions 

Inspector Ratliff assessed this violation as S&S and reasonably likely to fatally injure two 

miners. Ex. S-6. He explained that the violation contributed to the hazard of the roof “breaking 

back in through the adverse conditions” to the bolted areas where miners were working, which 

could allow miners to be struck by falling rock weighing approximately 150 pounds per square 

foot. Tr. 239-40. 

 Consol contends that it was unlikely a roof fall would travel far enough outby the cited 

area to cause injury because no miners would come close to the cited area before the roof was 

bolted except the roof bolters, who are protected by the ATRS (automated temporary roof 

support) systems on their machines. Resp.’s Post-Hr’g Br. 20-21. 

S&S Analysis 

A violation of a mandatory safety standard occurred, satisfying the first Mathies element. 

This violation contributed to the discrete safety hazard of a roof fall occurring due to the 

extended span of unsupported roof at an intersection. Thus, the second Mathies element is 

satisfied. 

However, the third Mathies element is not satisfied. The Secretary has not established 

that a roof fall was likely to result in injury in this case. It is unlikely that miners would have 

accessed the area affected by the hazardous condition because they work a substantial distance 

back from the unsupported roof and are not permitted to enter the “red zone” beyond the next-tolast row of bolts. Tr. 307. The continuous miner operator normally stands at least 20 feet back 

from the last row of bolts and is not permitted to go beyond the next-to-last row of bolts even 

when performing gas checks. Tr. 297-98, 314. Miners generally are not allowed underneath the 

last row of bolts except to extend ventilation, in which case the continuous miner’s ripper head 

must be placed against the roof to exert upward pressure, or to operate the roof bolting machine, 

in which case the ATRS provides supplemental roof support. Tr. 298. Moreover, the mine was 

employing a tiger bolting pattern in the cited area at the time of the violation, meaning that 

additional resin bolts had been installed to support the top and to combat any existing adverse 

roof conditions. Tr. 312-13. This supplemental roof support decreased the likelihood that a roof 

fall originating in the extended cut would be able to spread into or significantly affect the bolted 

roof areas behind it. Inspector Ratliff provided no explanation as to how a crack or roof fall 

37 FMSHRC Page 2409
would work its way back to where miners were located given the supplemental roof support and 

tiger bolting pattern that was being used. Furthermore, assuming that normal mining operations 

had continued without being interrupted by the issuance of the citation, the hazardous condition 

would not have exposed miners to danger for a lengthy period of time because the unsupported 

roof was already being bolted by the time Inspector Ratliff arrived. Based on all the foregoing 

facts, I find that the hazard contributed to by this violation was not likely to result in an injurycausing event with continued normal mining operations. 

Because the third Mathies element is not met, this violation is not S&S. 

Gravity Analysis 

The gravity of this violation is serious in that the cited condition contributed to the risk of 

a potentially life-threatening roof fall which could affect miners working at the face such as the 

roof bolters or the miner operator. 

3. Negligence

Inspector Ratliff charged the operator with moderate negligence because he believed an 

on-shift examiner should have noticed the condition. Tr. 241; Ex. S-6. I agree with his 

assessment. Members of mine management were aware of adverse roof conditions and that when 

a crosscut breaks through into an entry, there is an increased risk that coal will fall away from the 

ribs and face, extending the depth of the unsupported roof. Tr. 272, 281, 296, 308. It is not 

unusual at the mine to reduce cut depth in order to avoid leaving a lengthy stretch of unsupported 

top next to a small column of coal that is likely to collapse. Tr. 272, 283. Here, the circumstances 

known to mine management should have spurred them to reduce the cut depth to less than 20 

feet, but they failed to take this measure. Moderate negligence is appropriate under these 

circumstances. 

V. PENALTIES

The Commission has reiterated in Mize Granite Quarries, Inc., 34 FMSHRC 1760, 1763-

64 (Aug. 2012): 

Section 110(i) of the Mine Act grants the Commission the authority to assess all 

civil penalties provided under the Act. 30 U.S.C. § 820(i). It further directs that 

the Commission, in determining penalty amounts, shall consider: 

The operator’s history of previous violations, the appropriateness of such penalty 

to the size of the business of the operator charged, whether the operator was 

negligent, the effect on the operator’s ability to continue in business, the gravity 

of the violation, and the demonstrated good faith of the person charged in 

attempting to achieve rapid compliance after notification of a violation. 

30 U.S.C. § 820(i). 

37 FMSHRC Page 2410
The Commission and its ALJs are not bound by the penalties proposed by the Secretary, 

nor are they governed by MSHA’s Part 100 regulations, although substantial deviations from the 

proposed penalties must be explained using the section 110(i) criteria. See Sellersburg Stone Co.,

5 FMSHRC 287, 293 (Mar. 1983). In addition to considering the 110(i) criteria, the judge must 

provide a sufficient factual basis upon which the Commission can perform its review function. 

See Martin County Coal Corp., 28 FMSHRC at 247. 

Size of Operator; Ability to Continue in Business; Violation History 

The parties have stipulated that Consol is large in size, having produced more than five 

million tons of coal in 2011 and more than three million tons of coal in 2012, and that the 

penalties proposed by the Secretary will not impair Consol’s ability to remain in business. Joint 

Exhibit 1. Consol has an average, moderate number of prior violations that is proportionate to its 

size. See Exs. S-9, S-10. 

Good Faith 

The Secretary credited Consol with good faith in abating all three violations at issue in 

this case. Good faith is also reflected in the portion of each citation that describes the actions 

taken to abate the condition and in the testimony regarding the operator’s abatement efforts. 

Negligence and Gravity 

The gravity of each violation and Consol’s negligence with respect to the violations are 

discussed at length within the body of my decision above. 

37 FMSHRC Page 2411
Conclusion 

After considering the six statutory penalty criteria, I assess the following penalties for the 

three violations at issue in this case: 

Citation Number 8202408 (ventilation violation) - $1,203.00 

Citation Number 8197859 (accumulation violation) - $1,700.00 

Citation Number 8189820 (roof control violation) - $1,500.00 

ORDER 

Consol is hereby ORDERED to pay the sum of $4,403.00 within thirty (30) days of the 

date of this Decision and Order.8 

/s/ Priscilla M. Rae 

Priscilla M. Rae 

Administrative Law Judge 

Distribution: 

Eric Johnson, Esq., U.S. Department of Labor, Office of the Solicitor, 211 Seventh Avenue 

North, Suite 420, Nashville, TN 37219 

Billy R. Shelton, Esq., Jones, Walters, Turner & Shelton PLLC, 151 N. Eagle Creek Drive, Suite 

310, Lexington, KY 40509 

8

 Payment should be sent to: Mine Safety and Health Administration, U.S. Department of 

Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390. 

37 FMSHRC Page 2412
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9958 / FAX: 202-434-9949 

October 22, 2015 

DECISION AND ORDER

Appearances: Robert S. Wilson, Esq., Office of the Solicitor, Department of Labor, 

Arlington, Virginia and David A. Steffey, Conference and Litigation 

Representative, Mine Safety and Health Administration, District 5, 

Norton, Virginia for Petitioner 

Billy R. Shelton, Esq., Jones, Walters, Turner & Shelton PLLC, 

Lexington, Kentucky for Respondent 

Before: Judge McCarthy 

I. Statement of the Case

This case is before me upon a petition for assessment of a civil penalty under section 

105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). Docket No. VA 

2014-0198 involves five citations, Nos. 8208302, 8208448, 8208450, 8208451, and 8196366. At 

the outset of trial, the parties filed a Joint Motion to Approve Partial Settlement of Citation Nos. 

8208302 and 8208448.1

 Tr. I, 20-23. Citation Nos. 8208450, 8208451, and 8196366 remain in 

dispute.

1

 I have reviewed the parties’ Joint Motion for Partial Settlement as placed on the record 

at the hearing. The parties request that Citation No. 8208448 be modified to reduce the level of 

negligence from “moderate” to “low” and that the proposed penalty of $108 be found 

appropriate. The parties also request that Citation No. 8208302 be modified to delete the 

“significant and substantial” designation, reduce the level of negligence from “moderate” to 

“low,” and reduce the civil penalty from $807 to $500. Tr. 20-22. I have considered the 

representations and documentation submitted. I conclude that the proffered settlement is 

appropriate under the criteria set forth in section 110(i) of the Act. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

v. 

CONSOL BUCHANAN MINING 

 COMPANY, LLC, 

 Respondent 

 CIVIL PENALTY PROCEEDING 

Docket No. VA 2014-0198 

A.C. No. 44-04856-344491

Mine: Buchanan Mine #1 

37 FMSHRC Page 2413
The primary issues presented are whether MSHA had jurisdiction to inspect the guard 

house and bulldozer respectively cited in Citation Nos. 8208450 and 8208451, whether the 

auxiliary fan violation alleged in Citation No. 8196366, as amended at trial, significantly and 

substantially contributed to the cause and effect of a respirable-dust health hazard and/or 

methane-ignition safety hazard, and whether that alleged violation was reasonably likely to result 

in a fatal injury. 

A hearing was held on January 26 and 27, 2015 in Abingdon, Virginia. The parties 

introduced testimony and documentary evidence.2

 Witnesses were sequestered. 

For the reasons set forth below, I find that MSHA properly exercised jurisdiction when 

inspecting the guard house and bulldozer cited in Citation Nos. 8208450 and 8208451, 

respectively. I find that the penalties proposed by the Secretary of $108 for Citation No. 8208450 

and $108 for Citation No. 8208451 are consistent with the statutory criteria in section 110(i) of 

the Mine Act. 30 U.S.C. 820(i). 

I also find that the auxiliary fan violation alleged in Citation No. 8196366, as amended at 

trial to allege a fatal as opposed to permanently disabling injury, significantly and substantially 

contributed to the cause and effect of a methane ignition hazard, which was reasonably likely to 

result in a fatal injury in this gassy mine. Accordingly, I find it unnecessary to decide whether 

that same violation also significantly and substantially contributed to the cause and effect of a 

respirable-dust health hazard that was reasonably likely to result in a fatal injury. Based upon my 

independent assessment of the record evidence, I find that the penalty proposed by the Secretary 

of $1203 for Citation No. 8196366 should be increased to $2,678 consistent with the statutory 

criteria in section 110(i) of the Mine Act and my finding that the severity of gravity increased 

from permanently disabling to fatal. 30 U.S.C. 820(i). Accordingly, I assess a total civil penalty 

of $2,894 for the three remaining violations found herein. 

2

 P. Exs. A-C and P. Exs. 1-30 were received into evidence. Tr. 15-18, 226, 431. R. Exs. 

1-7 were also received into evidence.

37 FMSHRC Page 2414
Based on a careful review of the entire record, including the parties’ post-hearing briefs 

and my observation of the demeanor of the witnesses,3

 I make the following: 

II. Findings of Fact Concerning Citation Nos. 8208450 and 8208451 

A. Stipulations 

The parties stipulated to the following: 

1. The Administrative Law Judge and the Federal Mine Safety and Health Review 

Commission have jurisdiction to hear and decide these civil penalty proceedings pursuant 

to Section 105 of the Federal Mine Safety and Health Act of 1977. 

2. Consol Buchanan Mining Company, LLC [Consol Buchanan] is the owner and operator 

of the Buchanan Mine #1. 

3. Operations of the Buchanan Mine #1 are subject to the jurisdiction of the Act. 

4. The proposed penalty amounts that have been assessed for the violations at issue pursuant 

to 30 U.S.C. § 820(a) will not affect the ability of Consol Buchanan to remain in 

business. 

5. Consol Buchanan does not dispute that the MSHA Inspectors listed in Item 22 of the 

citations at issue were acting in their official capacity and as authorized representatives of 

the Secretary of Labor when each of the citations involved in this proceeding were 

issued. 

6. True copies of each of the citations that are at issue in this proceeding along with all 

continuation forms and modifications, were served on Consol or its agents as required by 

the Act. 

7. Each of the violations involved in this matter were abated in good faith. 

8. Government Exhibit 1 is an authentic copy of Citation No. 8208450, with all 

modifications and abatements, and may be admitted into evidence for the purpose of 

establishing its issuance and not for the purpose of establishing the accuracy of any 

statements asserted therein. 

9. Government Exhibit 2 is an authentic copy of Citation No. 8208451, with all 

modifications and abatements, and may be admitted into evidence for the purpose of 

establishing its issuance and not for the purpose of establishing the accuracy of any 

statements asserted therein. 3

 In resolving conflicts in testimony, I have taken into consideration the demeanor of the 

witnesses, their interests in this matter, the inherent probability of their testimony in light of 

other events, corroboration or lack of corroboration for testimony given, experience and 

credentials, and consistency, or lack thereof, within the testimony of witnesses and between the 

testimony of witnesses. 

37 FMSHRC Page 2415
10. Government Exhibit 3 is an authentic copy of Citation No. 8196366, with all

modifications and abatements, and may be admitted into evidence for the purpose of

establishing its issuance and not for the purpose of establishing the accuracy of any

statements asserted therein.

11. With respect to Citation No. 8196366, Consol Buchanan does not contest the fact of

violation, but does contest the gravity determinations, whether the violation was

significant and substantial, the level of negligence, and the appropriateness of the

proposed penalty amount.

12. For purposes of Section 110(i) of the Act, the proposed penalty amounts are appropriate

given the operator’s history of violations and the size of the operator.

P. Ex. C. See also Tr. 9-10, 15.4

B. Background Facts Concerning Citation Nos. 8208450 and 8208451

Citation Nos. 8208450 and 8208451 are the first citations ever issued at Consol

Buchanan’s VP-8 stockpile site (VP-8). Tr. 201-02. VP-8 was an abandoned mine that originally 

consisted of two separate mines, VP-5 and VP-6. Tr. 453. These mines were owned and operated 

by Island Creek Coal Co., a subsidiary of Consol Energy, Inc., until Consol Buchanan, another 

subsidiary, purchased them sometime before 2006 and combined them under the Mine ID of VP5. Tr. 204-05, 453-54. The combined property, renamed VP-8, was placed in abandoned status in

2006. Tr. 203-04, 453-55. The VP-8 site purportedly remained abandoned until the time of the

citations at issue. Tr. 438-39, 455-57, R-5.

The record establishes that Consol Buchanan began using VP-8 to stockpile clean coal 

about a year or two after purchasing the site from Island Creek. Tr. 371, 401. When the 

Buchanan Mine #1 produced more coal than was needed to ship immediately, clean coal was 

taken from the Buchanan Prep Plant to the Permac facility, a site two miles down the road, which 

could hold about 120,000-130,000 tons of coal. Tr. 69, 399. Once the Permac facility was full, 

excess coal was taken to VP-8, which could hold up to 150,000 tons of coal. Tr. 50-51, 69. 

VP-8 is situated on the other side of a hill from the Buchanan Prep plant, less than two 

miles away as the crow flies, and a four or five mile drive around the hill. Tr. 200, 240-41. The 

site has two access points. A lower gate is located closest to the coal stockpile and was most 

often used by coal trucks and other stockpile equipment. An upper gate primarily serviced 

vehicles traveling to gas and oil operations up the hill, although the coal stockpile was also 

accessible through this gate. Tr. 65-67, 95-96. 

4

 It should be noted that the parties agreed to two additional stipulations in this matter. P. 

Ex. C. However, those stipulations deal with Citation No. 8208302, which was included in the 

Joint Motion for Partial Settlement. Therefore, it is not necessary to include them here. Further, 

Respondent’s stipulations regarding the appropriateness of the civil penalty dealt with the 

proposed penalties as they were before subsequent modification of Citation No. 8196366 at 

hearing, as will be discussed infra. 

37 FMSHRC Page 2416
Consol Energy, Consol Buchanan’s parent corporation, contracted with G4S Security to 

provide security for all equipment kept at the site. Tr. 322-23. G4S manned a guard house just 

inside the upper gate, about 500-600 feet from the coal stockpile. Tr. 214. The original guard 

house was replaced with a newer building sometime between October 2013 and January 2014. 

Tr. 260-61, 290-93. MSHA inspector Mark Tuggle was the first to inspect the new guard house 

in January 2014. Tr. 257. 

Coal trucks from the preparation plant typically accessed VP-8 by the lower gate, but 

they would use the upper gate when the stockpile became too large. Tr. 133-34, 138. Although 

the G4S security guards stationed at the upper gate did not stop coal trucks, they stopped all 

other vehicles going to the coal stockpile, including equipment operators, mine foremen, 

contractors, and state and federal inspectors, who were required to sign in and out of the 

property. Tr. 100, 104, 108-09, 297-98, 340-41, R-3. Besides monitoring traffic at the upper gate, 

the guards occasionally made rounds at the stockpile area, and they were required to check the 

lower gate after hours to make sure it was locked. Tr. 100-01, 316-17. The guards were 

responsible for the security of the stockpile equipment. Tr. 218-19, 323. The guards also 

provided annual MSHA hazard training for workers at the site. Tr. 98-99, 103-04, 320-21, 405-

06, 434-45. The guard house itself provided power to a nearby fuel tank used to fuel the 

stockpile equipment. Tr. 214, 262-64, 296, 431-32. 

At least by 2012, MSHA began inspecting the VP-8 stockpile. MSHA inspector Wes 

Clevinger added the VP-8 stockpile site to MSHA’s Information Tracking System (ITS) during 

an inspection in 2012, although it may have been in the system before that time. Tr. 129-33, 228, 

257, 302-04. Clevinger inspected VP-8 several times beginning in 2006. Tr. 122-23. He and 

other MSHA inspectors inspected the site regularly between 2012 and 2014. Tr. 122-23, 176-77, 

192-93, 239-40. Clevinger examined the old guard house in 2012. Inspector Robbie Bowers

examined the old guard house on March 19 and September 5, 2013. Inspector Tuggle examined

it on October 17, 2013. Tr. 134-37, 206-07, 244, 249, P. Ex. 18, 19. Clevinger and Tuggle also

inspected the fuel tank, whenever it was present. Tr. 157-58, 243-44, 249-52, 262; P. Ex. 19.

Throughout all of these inspections, VP-8 was treated as an adjunct facility of the 

Buchanan Mine #1 ID, although it remained in “abandoned” status. Tr. 453; R. Ex. 5. No 

representative of Consol Buchanan ever raised any objection to the inspections, or suggested that 

action should be taken to officially attach VP-8 to the Buchanan Mine #1 ID. Tr. 127, 180-81, 

358, 471-72. No evidence was presented at hearing to show that any loading or unloading took 

place at the VP-8 site between August 2, 2013 and September of 2014, but at the time Tuggle 

issued the instant citations in January 2014, coal was stockpiled at the site. Tr. 391-92, 435-36. 

Tuggle wrote Citation Nos. 8208450 and 8208451 during his inspections on January 16 

and 17, 2014, respectively. Tr. 261; P. Exs. 1 & 2. Citation No. 8208450 alleges a violation of 30 

C.F.R. § 77.904, which states:

Circuit breakers shall be labeled to show which circuits they 

control unless identification can be made readily by location. 

37 FMSHRC Page 2417
The Citation narrative states: 

The circuit breakers installed in the breaker box of the new guard 

house at the VP#8 location [are] not labeled to show which circuits 

they control. The circuits [cannot] be readily identified without use 

of a meter or similar device. 

P. Ex. 1. 

Tuggle testified that all the wiring was in good shape and the breaker box was covered, 

but the electricians who wired the guard house should have known that the circuit breaker was 

not labeled. Tr. 267, 268-69. Since the power cords leading from the circuit breaker were in the 

guard house wall, there was no way to identify where they went. Tr. 265. This created the 

possibility that someone performing electrical work would fail to de-energize the correct circuit 

and would receive an electrical shock. Tr. 267-68. 

 

Tuggle designated Citation No. 8208450 as non-S&S because he determined that the 

violation was not reasonably likely to result in injury or illness. P. Ex. 1. Tuggle designated 

gravity as lost work days because most workers wear rubber boots or other insulation, and were 

likely to receive only a non-fatal shock. Id.; Tr. 268. Tuggle designated Respondent’s negligence 

as moderate. P. Ex. 1. A Buchanan Prep Plant electrician abated the violation. Tr. 268-69. 

MSHA proposed a civil penalty of $108. 

 During the same inspection, Tuggle issued a separate citation, not at issue here, for an 

undated fire extinguisher in the guard house. Tr. 253. Respondent did not contest that citation, 

and paid the penalty proposed by the Secretary.5

 Tr. 252-53. 

 Also on January 16, 2014, Tuggle noticed a bulldozer before leaving the VP-8 site. Tr. 

269. Although the bulldozer was not locked and tagged out, Tuggle was unable to fully inspect 

it because there was no operator available to operate it for him. Tr. 269-70. 

The next day, January 17, 2014, Tuggle returned to the VP-8 site to inspect equipment 

remaining on the site, including the bulldozer. Tr. 269-70. Upon examination of the bulldozer, 

Tuggle wrote Citation No. 8208451 alleging a violation of 30 C.F.R. § 1110, which states: 

Firefighting equipment shall be continuously maintained in a 

usable and operative condition. Fire extinguishers shall be 

examined at least once every 6 months and the date of such 

examination shall be recorded on a permanent tag attached to the 

extinguisher. 

 5

 This fact is especially significant, as will be discussed infra, because of Respondent’s 

adamant objection to jurisdiction in this case. 

37 FMSHRC Page 2418
The condition or practice section of Citation No. 8208451 states: 

The fire extinguisher provided on the Caterpillar D8N dozer (S/N 

9TC1395) has not been examined since June 2013 or 7 months. 

Additionally, the on-board fire suppression system has not been 

examined since July 2012 or 18 months ago. Both tags were 

checked and have same dates of July 2012. Proper examination of 

fire fighting equipment is necessary to ensure fire fighting 

equipment is being maintained in a usable condition for use when 

necessary. The operators normal cycle for the contract fire 

suppression company is due in February 2014. This is a spare 

dozer and not regularly used. The fire extinguisher and fire 

fighting system is charged and could be used if necessary. 

P. Ex. 2.

Tuggle designated the citation non-S&S because he determined that the violation was 

unlikely to result in injury or illness. P. Ex. 2. Tuggle designated the gravity as unlikely to result 

in a lost-work-days injury because the fire extinguisher was charged and could be used, despite 

the stale inspection date. Tr. 276. Tuggle designated Respondent’s negligence as moderate. P. 

Ex. 2. MSHA proposed a civil penalty of $108. P. Ex. A. 

Tuggle testified that normal use of a bulldozer causes it to heat up, and that substances 

such as antifreeze oil and hydraulic fluid may provide fuel for a fire. Tr. 276-77. He further 

testified that regular inspections of the fire extinguisher helped to ensure the safety of equipment 

operators in the event of a fire. Tr. 277. 

The dozer had recently undergone repairs, and had been returned to the VP-8 site about a 

week before Tuggle inspected it. The dozer had not been locked and tagged out. Tr. 269, 271-73, 

276, 278-79. After it was returned to the VP-8 site from the repair shop, the dozer’s blade and 

hoses had been reattached, and superintendent Paul Danko instructed equipment operator Mike 

Bradshaw to run the dozer to try it out. Tr. 62-63, 275, 278-79, 380, 421-22 P. Exs. 21, 22; but 

see Tr. 433.6

 However, the Secretary failed to establish that the dozer had actually been operated 

after its repair and prior to issuance of the citation. Tr. 59, 349, 424. 

On the day the citation was issued, the dozer was situated near the guard house, facing 

the stockpile. Tr. 274, 288, 418-19. At that time, there was no work being done on the stockpile, 

although there was coal stockpiled there. Tr. 288, 435-36. 

6

 Danko denied that he gave this instruction. Tr. 433. However, Bradshaw’s testimony to 

the contrary was corroborated by testimony from Tuggle, as well as by Tuggle’s notes. Tr. 275; 

P. Ex. 21. I credit Bradshaw’s clear recollection that Danko instructed him to run the dozer to try

it out, as corroborated by Tuggle’s notes. Moreover, irrespective of this credibility resolution, I

find that the dozer was capable of being operated, which finding is bolstered by other evidence

in the record. See 10-11, infra.

37 FMSHRC Page 2419
III. Legal Analysis Concerning Citation Nos. 8208450 and 8208451

A. MSHA Jurisdiction Was Proper Over the VP-8 Site

Consol Buchanan does not dispute that the conditions alleged in Citation Nos. 8208450

and 8208451 constituted violations of the cited standards. Respondent put on no evidence to 

undermine the citations at trial, and made no arguments on the issue in its post-hearing brief. R. 

Br. 9. I credit inspector Tuggle’s uncontested testimony regarding the fact and gravity of the 

violations, and I find that the Secretary has met its burden of proof on these issues. Specifically, I 

find that the breaker box in the guard house was unlabeled and that the fire extinguisher on the 

dozer had an expired inspection date. Tr. 267-69, 276. Further, I find that each citation was nonS&S, and unlikely to result in lost workday/restricted duty injuries. Tr. Tr. 268, 276, P. Ex. 1&2. 

Despite conceding the facts of the violations, Consol Buchanan argues that MSHA lacked 

jurisdiction to inspect and issue citations for the guard house and the bulldozer. R. Br. 9. 

Specifically, Respondent argued that while the definition of a “mine” under the Mine Act should 

be “very broad,” jurisdiction should not be asserted in a way that is “contrary to common sense.” 

R. Br. 9-10 citing Southern Nevada Paving, 2008 WL 4287781, *8 (Aug. 2008). In short, it

argues that assertion of jurisdiction over VP-8 is patently irrational.

MSHA derives its jurisdiction over the nation’s mines and miners from the Mine Act, 

which states, in pertinent part: 

Each coal or other mine, the products of which enter commerce, or 

the operations or products of which affect commerce, and each 

operator of such mine, and every miner in such mine shall be 

subject to the provisions of this Act. 

30 U.S.C. § 803. The Mine Act defines the reach of the term “mine” broadly to 

include: 

C) . . . structures, facilities, equipment, machines, tools, or other

property . . . used in, or to be used in . . . the work of preparing

coal. . . .

30 U.S.C. § 802(h)(1). The Mine Act also defines what constitutes the “work of 

preparing coal”: 

“work of preparing the coal” means the breaking, crushing, sizing, 

cleaning, washing, drying, mixing, storing, and loading of 

bituminous coal, lignite, or anthracite, and such other work of 

preparing such coal as is usually done by the operator of the coal 

mine. 

30 U.S.C. § 802(i) (emphasis added). 

37 FMSHRC Page 2420
The Secretary cites Commission and Circuit Court precedent for the proposition that 

MSHA’s jurisdiction must be broadly interpreted. For instance, the Third Circuit has emphasized 

Congressional intent that “‘what is considered to be a mine and to be regulated under this Act’ 

was to be given the broadest possible interpretation and that doubts were to be resolved in favor 

of inclusion of a facility within the coverage of the Act.” Marshall v. Stoudt’s Ferry Preparation 

Co., 602 F.2d 589, 892 (3d Cir. 1979) (quoting S.Rep.No.181, 95th Cong., 1st Sess. 1, 14, 

reprinted in 1977 U.S.C.C.A.N. 3401, 3414). The D.C. Circuit echoed this observation in 

Donovan v. Carolina Stalite Co., 734 F.2d 1547, 1553-54 (D.C. Cir. 1984) (“Because the Act 

was intended to establish a ‘single mine safety and health law, applicable to all mining activity,’ 

its jurisdictional bases were expanded accordingly to reach . . . ‘structures . . . which are used or 

are to be used in the . . . preparation of the extracted minerals.’” S.Rep. No. 461, 95th Cong., 1st 

Sess. 37 (1977); S.Rep. No. 181, 95th Cong., 1st Sess. 14 (1977), U.S. Code Cong. & Admin. 

News 1977, 3401, 3414.); see also RNS Services Inc. v. Secretary of Labor, 115 F.3d 182, 185 

(3d Cir. 1997) (“The storage and loading of coal is a critical step in the processing of minerals 

extracted from the earth in preparation for their receipt by an end-user, and the Mine Act was 

intended to reach all such activities.”); United Energy Servs., Inc. v. Fed. Mine Safety & Health 

Admin., 35 F.3d 971, 975 (4th Cir. 1994) (“[T]he proper focus of our analysis is on the safety of 

mining operations and . . . we should construe broadly the Act’s coverage to achieve this 

goal.”)(citing S.Rep. No. 181, 95th Cong., 1st Sess. 1, 14, reprinted in 1977 U.S.C.C.A.N. 3401, 

3414.). 

The Commission has also consistently given broad and inclusive interpretation to the 

jurisdictional limits of the Act. See Secretary of Labor (MSHA) v. Pyramid Mining, Inc., 16 

FMSHRC 2037, 39 (1994) (“The legislative history of the Mine Act and the Federal Coal Mine 

Health and Safety Act of 1969 recognize the hazards presented by abandoned mining areas and 

address the health and safety of non-miners as well as miners.”); Secretary of Labor (MSHA) v. 

Jim Walter Resources, 22 FMSHRC 21, 22 (2000) (holding that a common supply shop, which 

was not located at any mine site and lacked a Mine ID, was subject to Mine Act jurisdiction). 

The Secretary argues that the VP-8 coal stockpile fits within this broad interpretation of 

Mine Act jurisdiction. I agree. Even the most creative legal mind would be hard pressed to find 

that a coal stockpile does not fall within “lands, . . . structures, facilities, . . . or other property . . . 

used in” the “storing, and loading” of coal. 30 U.S.C. § 802(h)(1), (i). The site’s abandoned 

status and the confusion over the Mine ID do not suffice to defeat jurisdiction. Pyramid Mining, 

16 FMSHRC at 39; Jim Walter Resources, 22 FMSHRC at 22. Indeed, jurisdiction is even more 

soundly established here than in those cases because the VP-8 site has not been abandoned, and 

the stockpiling of clean coal plays a more direct, integral and essential part of the mining process 

than the role played by a supply shop. 

Nevertheless, even assuming MSHA jurisdiction over the VP-8 site generally, Consol 

Buchanan argues that MSHA lacked jurisdiction over the guard house and the bulldozer cited in 

Citation Nos. 8208450 and 8208451, respectively. For the reasons set forth below, I find that 

MSHA properly exercised jurisdiction to inspect the guard house and the bulldozer, and that 

Citation Nos. 8208450 and 8208451 were properly issued, as written. 

37 FMSHRC Page 2421
1. Jurisdiction Was Proper Over the Guard House

With regard to the guard house, Consol Buchanan argues that jurisdiction over the VP-8 

site should be restricted to “areas where the coal was being stockpiled and the areas associated 

with the stockpiling of coal.” R. Br. 9. But Consol Buchanan effectively admitted MSHA’s 

jurisdiction over the guard house by paying the penalty on the fire extinguisher citation issued 

there by Inspector Tuggle during the same inspection.7

 Tr. 252-53. Even apart from this 

settlement admission, I find that Citation No. 8208450 was properly issued, as written, since the 

guard house was used in, and its presence in part resulted from, the work of storing and loading 

coal at the VP-8 stockpile, and because the guards working in the guard house provided MSHA 

hazard training. 

In its brief, Respondent argues that the guard house was located on a separate and distinct 

area of the VP-8 site, and that the guard house and the work of the guards who manned it, were 

not “integral” or “necessary” to the work of stockpiling coal. R. Br. 9-10. These arguments lack 

merit. The guard house itself and the guards who manned it were located on the VP-8 site and 

directly involved in the work done at the stockpile. 

Specifically, the circuit breaker in the guard house cited by inspector Tuggle was used to 

provide power to the tank that fueled stockpile equipment. Tr. 263-64. Similarly, employees and 

equipment engaged in loading, unloading, and storing coal occasionally used the upper gate to 

access the stockpile, especially when it was full. Independent contractors, like Cleco, signed in at 

the guard house and assisted in coal operations. Tr. 394-95; R. Ex. 3 (1/7/14, 1/8/14, 1/10/14). 

Also, the G4S guards stationed at the upper gate had important roles in the stockpiling process. 

Specifically, these guards would patrol the stockpile and provided security for the equipment at 

the stockpile. Tr. 218-19, 323. They also provided annual MSHA-required, site-specific hazard 

training to workers at the site. Tr. 321. Accordingly, I find that these guards were agents of 

Respondent, lodged with apparent authority to hold themselves out to third parties as responsible 

for MSHA training and security at the site. Tr. 218-19, 321-23; Restatement (Second) of Agency 

§§ 8, 27 (1958); see also Martin Marietta Aggregates, 22 FMSHRC 633, 637-638 (May 2000)

7

 Furthermore, Consol Buchanan has been on notice of MSHA’s claim of jurisdiction 

over the VP-8 site since at least 2011, when the first inspection occurred. Tr. 177-78; P. Ex. 14. 

As noted above, at no point since then did Respondent object to or question MSHA’s jurisdiction 

to inspect VP-8. The testimony of Donald Sparkman, a previous MSHA field office supervisor 

and current Consol Buchanan safety manager, does not help Respondent’s position. Tr. 449, 451-

52. Sparkman testified that he thought that MSHA lacked jurisdiction over the VP-8 site, but

suggested that jurisdiction might be appropriate if a Mine ID were properly and officially

attached to the site. Tr. 463, 471-72. Despite testifying that he was aware that this process would

need to be initiated by the operator, Sparkman failed to initiate this process when he left MSHA

to go to work for Consol Buchanan. Tr. 470-71, 472; see also 30 C.F.R. §§ 41.10-41.13

(regulations dealing with operators requirement to provide notifications regarding legal identity

of a mine). If Sparkman thought that MSHA was improperly exercising jurisdiction after he

began working for Consol Buchanan, the fact that he neither raised any objection nor tried to

correct the situation by seeking a VP-8 Mine ID looks like an effort to preserve a technical

jurisdictional argument in case of litigation. It was Sparkman, after all, who first raised the

jurisdictional issue in this case. Tr. 464-65, 467-68.

37 FMSHRC Page 2422
(reading the statutory definition of “agent” under 30 U.S.C. § 802(e) “agent” to include someone 

with responsibilities normally delegated to management personnel, with responsibilities that are 

crucial to the mine’s operations, and who exercises managerial responsibilities at the time of the 

negligent conduct). Therefore, I conclude that jurisdiction was proper over the guard house as an 

integral part of the VP-8 stockpile site. 

Having determined that the guard house was an integral and necessary part of the mine 

stockpile, it is also evident that miners in the guard house, including electricians, could be 

exposed to safety hazards within the purview of the Mine Act. Those hazards would include 

electrocution or shock hazards posed by de-energizing an unlabeled circuit breaker in the guard 

house. Tr. 263-64, 267-68. See W.J. Bokus Indus., Inc., 16 FMSHRC 704, 708 (Apr. 1994) 

(MSHA properly cited equipment (gas cylinders) in a storage garage shared by a sand and gravel 

operation and an asphalt plant because cited equipment was “used or [was] to be used in mining 

and ... could affect miners in the garage.”); Jim Walters Resources, 22 FMSHRC 21 (Jan. 2000) 

(central supply shop located between one and six miles from closest coal extraction site is a mine 

under section 3(h)(1) because a mine includes “facilities and “equipment” used or to be used in 

mining operations or coal preparation facilities). 

Accordingly, I find that Citation No. 8208450 was properly issued, as written, and that 

the proposed penalty of $108 is appropriate under the criteria set forth in section 110(i) of the 

Act. 

2. Jurisdiction Was Proper Over the Bulldozer

With regard to Citation No. 8208451, Consol Buchanan contends that the cited bulldozer 

was not in service at the time of the citation. I find that that the bulldozer was available for use 

and was not locked and tagged out.8

 Commission case law has consistently held that if 

equipment in violation of MSHA regulations “has not been rendered inoperable [and] is located 

in a normal work area, fully capable of being operated, that constitutes ‘use.’” Wake Stone Corp.

36 FMSHRC 825, 828 (2014) (quoting Ideal Basic Indus., Cement Div., 3 FMSHRC 843, 845 

(1981)) (internal quotations omitted); see also Alan Lee Good, 23 FMSHRC 995, 997 (2001) 

(finding that even equipment not to be used on a particular shift must be maintained in functional 

condition if not tagged out of operation); Mountain Parkway Stone, Inc., 12 FMSHRC 960, 963 

(1990) (finding that “use of the equipment” existed where truck was not tagged out and was in 

turn-key condition). The Commission has found that allowing equipment to stay “parked in a 

primary working area could allow operators easily to use unsafe equipment yet escape citation 

merely by shutting it down when an inspector arrives.” Ideal Basic 3 FMSHRC at 845. 

 In Wake Stone, the Commission held that vehicles “located in a normal work area, . . . 

capable of being used, and [not] locked and tagged out . . . were in ‘use’ at the time of 

8

 The dozer was available for operation. The blade and hoses had been reattached, it was 

on the lot where it had previously been operated, and it had not been locked and tagged out of 

service. Tr. 59, 269-70, 274. Operator Bradshaw, prep plant foreman Case, and superintendent 

Danko all considered the dozer to be available for use once the blade and hoses had been 

reattached. Tr. 62-63, 275, 421-22. 

37 FMSHRC Page 2423
inspection.” Id. at 4. Here, the dozer was located on the VP-8 site, where it had previously been 

used to move coal on the stockpile.9

 Tr. 59. In fact, it had been sitting at VP-8 for about a week 

after its return from the repair shop. Tr. 271-73, 278-79. Superintendent Danko’s testimony 

established that, like the equipment in Mountain Parkway, the dozer was fully capable of being 

used. It was “ready to go” after the blade and hoses had been reattached. Tr. 421-22. Further, 

inspector Tuggle testified that in order to use the dozer, someone would only have to “open the 

door and start it.” Tr. 274. Finally, irrespective of whether the dozer was not ‘logged back in,’ as 

the operator sought to establish,10 the dozer was not locked and tagged out of service, as 

Commission precedent in Wake Stone requires. Tr. 381-83, 274. 

The record establishes that no pre-operational inspection of the dozer was performed 

during the week that it sat at VP-8 without being locked and tagged out after it was returned from 

the repair shop.11 Tr. 283-84. The fact that Respondent may have performed a pre-operational 

check before running the dozer, however, is no basis for vacating the violation. The Commission 

specifically rejected that argument in Wake Stone Co., 36 FMSHRC at 828-29, and reinforced 

the rule that equipment that is not locked and tagged out of operation and parked for repairs must 

be maintained in functional condition. The Commission reasoned that “requiring that operators 

continuously keep machinery in operational condition encourages more vigilance with regard to 

instituting and enforcing effective maintenance procedures.” Wake Stone, 36 FMSHRC at 829. 

For all of the above reasons, I find that the bulldozer was “used in, or [was] to be used in” 

the work of “storing, and loading” coal under the Act. Therefore, I find that MSHA had 

jurisdiction over the bulldozer at the VP-8 site. I conclude that Citation No. 8208451 was 

properly issued, as written, and that the proposed penalty of $108 is appropriate under the criteria 

set forth in section 110(i) of the Act. 

IV. Findings of Fact and Legal Conclusions Concerning Citation No. 8196366 

A. Background Facts 

 Consol Buchanan Mine #1 is a large mine that employs about 600 miners, who work on 

three shifts. Tr. 481, 482-83. In 2013 and 2014, the mine had eleven mechanized mining units 

(MMUs) and used continuous miners and a longwall in super sections for production operations. 

Tr. 482. The mine is on a five-day spot inspection schedule under section 103(i) of the Mine Act 

because it emits high methane levels exceeding one million cubic feet of methane every 24 

 9

 The dozer was left near the upper gate, 50-60 feet from the fuel tank that was powered 

by the guard shack. Tr. 274. 

10 Foreman Case testified that he did not think the bulldozer had been put back on the 

active inventory log, or “back into service.” Tr. 381. However, he admitted that he wasn’t “100 

percent sure” if this was true. Tr. 383. 

11 Superintendent Danko did look over the dozer shortly after it was delivered, but only to 

make sure that it was delivered back on site and had the blade back on it. Tr. 446; see also Tr. 

418-19. 

37 FMSHRC Page 2424
hours. Tr. 483; 30 U.S.C. § 103(i). The Consol Buchanan Mine #1 liberates between ten and 

eleven million cubic feet of methane every 24 hours. Tr. 483. The mine has had face ignitions 

while cutting sandstone on some of the older panels. Tr. 601. 

On the morning of January 27, 2014, MSHA health inspector Mark Deel arrived at the 

Mine to conduct an E01 inspection for respirable dust at mechanized mining unit (MMU) 015. 

Tr. 481, 485-86. Deel and the 015 MMU crew entered the Mine about 7:30 a.m. Tr. 485-86. 

After attending a safety briefing with section foreman David Remines, Deel began an imminent 

danger run on 015 MMU at about 8:30 a.m. Tr. 486-88, 585-86. Deel measured between 0% to 

0.4% methane throughout the section. Tr. 498-99, 509. 

During his imminent danger run, Deel traveled down the #2 entry to inspect the #2 and 

#1 face, and to check the dust parameters on the continuous miner in the #2 entry. Tr. 508. The 

#2 entry is an intake air passage, used to ventilate the face with clean air. Tr. 494. Once air 

passes down the #2 entry to the face, it is routed back up the #1 entry, away from working 

miners. Tr. 494-95. At this point, it is designated as return air, since it carries coal dust and 

methane away from the face. Tr. 496, 563.12 

At the time of Deel’s inspection, there were two auxiliary fans in the #1 entry, just outby 

the last open cross cut. Tr. 508, 519-20; P. Ex. 26. The dog box, a curtain extending across the #1 

entry to adjust return air pressure, was situated just inby between the auxiliary fans and the last 

open crosscut. Tr. 495, 526; P. Ex. 26. Ventilation tubing ran all the way from the #1 face, past 

the dog box, and up to the fans. Tr. 568-69; P. Ex. 26. 

It took Deel approximately 45 minutes to inspect the #2 and #1 face, after which he 

traveled back up the #2 entry. Tr. 509, 539. While doing so, Deel observed a cloud of rock dust 

in the crosscut between the #1 and #2 entries. Tr. 489, 540, 546, 548. The Secretary stipulated 

that the dust observed was rock dust, not coal dust, but Deel testified and the Secretary alleges 

that coal dust would have been generated during continued normal mining operations and mixed 

with the rock dust creating a respirable dust hazard that would contribute to pneumoconiosis, a 

permanently disabling disease that eventually causes death. Tr. 541, 619. Upon inspection, Deel 

discovered that positive pressure in the #1 return air passage had allowed the check curtain in the 

crosscut to fall slack, opening a gap approximately one foot by five feet, through which return air 

was entering the #2 intake passage. Tr. 526. 

12 Foreman James Belcher pithily summarized the critical distinction between intake air 

and return air: 

Q: Okay, so if I understand you correctly, you cannot use return air to 

ventilate a working face? 

A: No, that is bad air. 

Tr. 563. 

37 FMSHRC Page 2425
At approximately 10 a.m., Deel wrote Citation No. 8196366 for a violation of 30 C.F.R. § 

75.331(a)(4), which states: 

(a) When auxiliary fans and tubing are used for face ventilation,

each auxiliary fan shall be— (4) Located and operated to avoid

recirculation of air.

The Citation’s condition or practice narrative states: 

The auxiliary fans being used to ventilate the faces of 015 MMU 

are not being located and operated to avoid recirculation of air. 

When examined return air was being allowed to recirculate into the 

intake air ventilating the 015 MMU through a check curtain 

located 1 crosscut outby the last open crosscut. This condition is 

allowing methane and rock dust to be emitted into the intake 

atmosphere. 0.3% ch4 was detected coming through the curtain 

from the return entry. Four miners are currently working inby this 

condition on the 015 MMU. This condition creates the hazards of a 

methane ignition and exposure to respirable dust that would result 

in permanently disabling injures (sic) or disease. Upon continued 

normal mining coal dust would be ventilated from the working 

faces and allowed to recirculate into the intake air. 

P. Ex. 3.

Deel designated the citation S&S because he determined that the violation contributed to 

a health hazard that was reasonably likely to result in a permanently disabling injury, and he 

determined that four workers were affected, as a result of Respondent’s moderate negligence. Tr. 

499, 515, 538, P. Ex. 3. At trial, the Secretary moved to amend the gravity designation to 

reasonably likely to result in a fatal injury and to allege both a health and safety violation. That 

motion was granted.13 Tr. 25-29. MSHA initially proposed a civil penalty of $1203, prior to the 

amendment. 

At the time of the citation, mining had not yet begun on the section. The four miners, 

whom Deel observed working inby the cited condition, were preparing for the shift and cleaning 

their equipment. Tr. 487, 496, 515. These miners included two roofbolt operators, a continuous 

miner operator, and a section foreman. Tr. 501. 

Deel testified that under continued normal mining conditions, the recurrent recirculation 

of return air into the intake air passage would increase the level of methane and coal dust at the 

13 Deel marked the citation as a health violation, but not a safety violation. Tr. 485, 541-

42; P. Ex. 3. The Secretary moved to amend the citation to allege a safety violation as well. That 

motion was also granted. Tr. 28-30. Deel testified that he should have marked the citation as both 

a safety and health violation, but as a health specialist, he only marked the health violation box 

out of habit and oversight. Tr. 485, 541-42. I credit Deel’s reasonable explanation as Respondent 

did not undermine this testimony on cross. Tr. 516. 

37 FMSHRC Page 2426
face over time. Tr. 494-96, 500, 524-25, 541-42. Therefore, without abatement of the cited 

condition, the hazards of exposure to respirable dust and methane ignition would worsen over 

time. Tr. 499-500, 503-04, 529-30, 538. High levels of respirable coal dust increase the 

likelihood that miners will develop pneumoconiosis or black lung disease. Tr. 503, 541, 565. 

Float coal dust also contributes to the likelihood that a methane ignition will result in fatal injury, 

since coal dust can propagate an explosion. Tr. 503-04, 567. 

Inspector Deel determined that Respondent’s negligence was moderate. He testified that 

“The Mine Act requires the mine operator to have a high standard of care. They’ve got to be on 

the lookout for hazards and to correct those hazards.” Tr. 502. Deel determined that the level of 

dust that was “caked” near the back side of the check curtain indicated that the condition had 

existed for some time, and should have been noted during the pre-shift examination. Tr. 502-03. 

Deel’s notes indicate that the condition existed for at least 4 hours and should have been noted 

on the previous shift. P. Ex. 25, p. 11. 

On cross examination, Respondent established that 45 minutes earlier, Deel and the 

section foreman had walked by this area and did not see any problem with dust emanating 

around the curtain. Tr. 509. Further, Respondent established that any coal dust recirculating 

would have been “peppered with” and mixed with rock dust and fallen to the ground prior to 

exiting through the curtain. Tr. 520-21. 

 Remines testified that he met Deel at the crosscut when Deel was taking his methane 

reading. Tr. 588. Remines testified that he did not see any dust at the check curtain in the 

crosscut where Deel testified that he had observed a cloud of dust; however Remines did 

acknowledge the negative pressure situation and the gap in the check curtain.14 Tr. 589, 608-09. 

Remines further testified that after meeting back up with Deel, he immediately walked to 

the dog box in Entry #1, observed that it had been knocked out of place, and readjusted it. Tr. 

589-91, 609. As soon as the dog box was adjusted by Remines, the pressure differential created 

by the auxiliary fans was rectified, and the hole in the check curtain closed. Tr. 526, 589-90. 

Meanwhile, after taking the methane reading, Deel measured the gap in the curtain. Deel 

was unable to collect any other data before Remines adjusted the dog box, after which the curtain 

closed. Tr. 528. 

 Section foreman James Belcher worked the night-owl shift before Deel arrived on the 

015 MMU. Tr. 555-56. Belcher testified that after the end of his shift, between 4:30 a.m. and 

 14 In resolving this conflict, I credit Deel’s clear recollection of the rock dust, as 

corroborated by his notes, which state “dust was observed coming around check curtain between 

1 and 2 entries ... a hole is present between the curtain and the outby rib measuring 1.5 feet x 5 

feet with dust coming through the hole ... [d]ust is present on the back side of the stopping that is 

1⁄2 built indicating the condition existed on the previous shift.” See P. Ex. 25. 

37 FMSHRC Page 2427
6:00 a.m., Belcher performed a pre-shift examination of the section.15 Tr. 556, 560; R Ex. 6. 

Belcher testified that he inspected the check curtain and crosscut cited in Citation No. 8196366, 

as well as the dog box and the auxiliary fans, but he observed no recirculating dust or other 

hazards. Tr. 556, 557, 575. 

Respondent presented evidence that the Buchanan Mine #1 engages in certain practices to 

mitigate the risks posed by respirable dust and methane ignition. While mining is ongoing, the #1 

entry is constantly rock dusted by dusters attached to the auxiliary fans. Tr. 520, 521, 559-60, 

573. Rock dust eliminates float coal dust by mixing with it and then dropping out of the air. Tr.

573-73, 593-94. Further, the air pressure in entry #2 is kept at a high volume to dilute methane.

Tr. 518-19, 596-97.

In addition, each continuous miner is equipped with methane detectors located five feet 

outby the ripper head. Tr. 511-12, 529. When the methane monitors detect one percent methane, 

they give a visual warning. Tr. 511, 525. At one and a half percent, the continuous miner shuts 

down. Tr. 511-12. However, it is possible for methane monitors to become clogged or lose 

calibration. Tr. 530-31, 616. Furthermore, even when the methane monitors are functioning 

properly, ignition remains possible because methane at the face can rise to ignition levels before 

detection by the monitors. Tr. 534. 

The Buchanan Mine also uses a technique known as “core holing” to map the type of 

rock present in the roof in front of the continuous miner. Tr. 605-07. Core holing indicates when 

the roof is sandstone, which tends to spark, as opposed to slate, which does not tend to spark. Tr. 

513, 601-03. The roof was slate at the time of Deel’s inspection. Tr. 602. Although Remines 

personally has never experienced any problems with the core holing technique, he acknowledged 

on cross examination that sandstone roof tends to come and go, that core holing is not always an 

accurate predictor of when sandstone is present, that float dust suspended in the air is explosive, 

and that trailing cables become damaged during continuous mining. Tr. 604-05, 607-08. 

Deel observed potential ignition sources inby the cited condition, such as trailing cables 

and continuous miner bits, but he did not examine the cables for damaged jackets or exposed 

leads. Further, Deel conceded that cables that are properly maintained are not ignition sources 

and that the cited area had adequate air volume and was properly rock dusted. Tr. 501, 512, 535-

36. 

15 While I acknowledge Belcher’s testimony here, I credit Deel’s testimony that the 

condition had existed for about four hours. Although Belcher testified that there were no hazards 

between 4:30 and 6:00 a.m, Deel did not issue the citation until four hours later at 10 a.m. 

Further, Deel pointed to specific and compelling evidence that rock dust had accumulated and 

caked near the back of the curtain. I find that the condition existed for about four hours after 

section foreman Belcher completed his pre-shift at 6 a.m. 

37 FMSHRC Page 2428
B. Citation No. 8196366 Was a Significant and Substantial Violation and Would Affect 

Four Miners 

 Consol Buchanan does not specifically dispute the existence of a violation or the 

designation of moderate negligence.16 Rather, Respondent focuses its challenges on the S&S 

designation and the appropriateness of the proposed penalty. R. Br. 12. 

The Mine Act describes an S&S violation as one “of such nature as could significantly 

and substantially contribute to the cause and effect of a coal or other mine safety or health 

hazard.” 30 U.S.C. § 814(d)(1). The Commission has held that a violation is S&S “if, based on 

the particular facts surrounding the violation, there exists a reasonable likelihood that the hazard 

contributed to will result in an injury or illness of a reasonably serious nature.” Cement Div., 

Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). Consistent with the language of section 

104(d)(1), it is the contribution of a violation to the cause and effect of a hazard that must be 

significant and substantial. U.S. Steel Mining Co., 6 FMSHRC at 1575. “The fact that injury [or a 

condition likely to cause injury] has been avoided in the past or in connection with a particular 

violation may be ‘fortunate, but not determinative.’” U.S. Steel IV, supra, 18 FMSHRC at 867, 

quoting Ozark-Mahoning Co., 8 FMSHRC 190, 192 (Feb. 1986). See also Elk Run Coal Co., 27 

FMSHRC 899, 906-07 (Dec. 2005); Blue Bayou Sand & Gravel, Inc., 18 FMSHRC 853, 857 

(June 1996). 

To establish an S&S violation under National Gypsum, the Secretary must prove the four 

elements of the Commission’s subsequent Mathies test: (1) the underlying violation of a 

mandatory safety standard; (2) a discrete safety hazard – that is, a measure of danger to safety – 

contributed to by the violation; (3) a reasonable likelihood that the hazard contributed to will 

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

reasonably serious nature. See Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote 

omitted); accord Buck Creek Coal, supra, 52 F.3d 133, 135 (7th Cir. 1995) (recognizing wide 

acceptance of Mathies criteria); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103 (5th Cir. 

1988) (approving use of Mathies criteria). An S&S determination must be based on the particular 

facts surrounding the violation and in the context of continued normal mining operations. 

Texasgulf, Inc., 10 FMSHRC 498, 500 (Apr. 1988) (quoting U.S. Steel Mining Co., 6 FMSHRC 

1573, 1574 (July 1984)). 

The first Mathies element is satisfied here. As noted, Consol Buchanan did not 

specifically contest the existence of the violation alleged in Citation No. 8196366 at trial or in its 

post-hearing brief. In any event, the record evidence establishes a violation of 30 C.F.R. § 

75.331(a)(4) because auxiliary fans used for face ventilation were not operated to avoid 

recirculation of air. Rather, probative record evidence establishes that during continued normal 

mining operations, the auxiliary fans located outby the last open crosscut in the Number 1 return 

air entry would allow return air from the working faces to recirculate methane and respirable 

 16 Although Respondent initially contested the negligence determination and number of 

people affected in its answer and pre-hearing report, it did not mention these issues in its opening 

statement at trial, nor did it make argument on these issues in its post-hearing brief. Tr. 36-41; R. 

Br. 12. In any event, I affirm the moderate negligence determination and the fact that four 

miners were affected by violation, as set forth below. 

37 FMSHRC Page 2429
coal dust (mixing with rock dust) back through a “damaged” check curtain located one crosscut 

outby the last open crosscut into the Number 2 entry intake air course that ventilated 015 MMU. 

Tr. 494-96, 500, 503, 541-42; see also P. Ex. 3. As Deel credibly testified, “... the check curtain 

in the crosscut between Number 1 and Number 2 had an opening because the pressure from the 

auxiliary fans which were inby in the Number 1 Entry caused a positive pressure in the Number 

1 Entry and just caused the curtain to fall slack and away from the rib.” Tr. 526. This created an 

opening in the check curtain allowing methane and rock dust to be emitted back into the intake 

atmosphere. Tr. 525-26; P. Ex. 3. Accordingly, I find that the Secretary has established the fact 

of the violation by a preponderance of the evidence. 

With regard to the second Mathies element, the Secretary need only identify a discrete 

safety or health hazard associated with the putative S&S violation. Highland Mining Co., 34 

FMSHRC 3434, n. 5 (Dec. 2012). The instant increase in respirable coal dust or methane 

recirculating to the face contributed to both a health and a safety hazard. Based on the evidence 

presented at hearing, I find that under continued normal mining conditions and without any 

presumption of abatement, the violative condition contributed to the discrete safety hazard of a 

methane ignition and to the discrete health hazard of respirable dust exposure. Tr. 500. 

Continued normal mining operations would release coal dust and methane into return air at the 

face. Tr. 503-04, 530, 541. Without abatement of the positive pressure caused by the auxiliary 

fans at the “damaged” check curtain, respirable dust and methane would have continued to 

“circle the block” and been recirculated to the face, where miners worked. Tr. 500, 524-25, 526, 

530, 541. I credit Deel’s testimony that there was a cloud of rock dust near the crosscut between 

the Number 1 and Number 2 entries and that the dust was “caked” near the back side of the 

check curtain. 17 Tr. 502-03, 539-40, 546. Further, float coal dust combined with increased 

methane levels and the presence of potential ignition sources creates the safety hazard of a 

methane ignition and propagation. Tr. 503-04. 

Respondent contends that the violation did not contribute to any discrete safety or health 

hazard. R. Br. 13. Specifically, Respondent argues that its safety measures, including rock 

dusting, ventilation practices, methane monitors, and core holing, would have prevented the 

hazards from ever materializing. Respondent characterizes these safety measures as part of 

continued normal mining operations. R. Br. 13. For the following reasons, I reject Respondent’s 

argument.18 

17 Whether coal dust was reasonably likely to have made it through the curtain and 

actually been recirculated given its likely mixture with rock dust before that point reaches the 

third Mathies factor and not the instant inquiry into whether a discrete health hazard was created 

by the violation. 

18 On March 23, 2015, after the close of the hearing, the Secretary filed a Notice of 

Supplemental Authority. In that notice, the Secretary provided a copy of Judge Paez’s decision in 

Mach Mining, LLC, 37 FMSHRC 614 (Mar. 2015). According to the Secretary, that case was 

substantially similar to the instant matter. The Secretary noted that Judge Paez rejected the 

operator’s argument in that case that it took additional remedial safety measures and found that 

an S&S designation was appropriate despite low measured levels of methane. Respondent filed a 

Response to the Secretary’s Notice of Supplemental Authority. In it, Respondent argued that 

(continued...) 

37 FMSHRC Page 2430
The Commission has consistently held that the adoption of redundant safety measures to 

mitigate or extinguish a hazard does not change the fact that a hazard may pose a serious risk to 

miners. Buck Creek Coal Co. v. FMSHRC, 52 F.3d 133, 136 (7th Cir. 1995); Consolidation Coal 

Co., 35 FMSHRC 2326, 2330 (Aug. 2013); Cumberland Coal Resources, LP., 33 FMSHRC 

2357, 2369 (Oct. 2011) (redundant, mandatory safety protections to not constitute a defense to an 

S&S determination). Respondent’s redundant safety measures such as ventilation practices, 

methane monitors, rock dusting and core holing do not change the fact that methane ignition and 

overexposure to respirable coal dust pose serious risks to miners in this gassy mine. 

Respondent’s redundant safety measures aim to mitigate or detect these hazards. They do not 

eliminate them. Accordingly, I find that the second Mathies element is satisfied. 

With regard to the third Mathies element, the Secretary demonstrated that the cited 

condition or violation contributed to the hazard of methane ignition which was reasonably likely 

to result in an injury. The Commission has held that where the violation contributes to the hazard 

of methane explosion or ignition, “the likelihood of an injury resulting from the hazard depends 

on whether a ‘confluence of factors’ exists that could trigger an explosion or ignition.” McCoy 

Elkhorn Coal Corp., 36 FMSHRC 1987, 1992 (Aug. 2014)(quoting Texasgulf, Inc., 10 

FMSHRC 498, 501 (Apr. 1988)). Such factors may include potential ignition sources, the 

presence of methane, the presence of float coal dust or loose coal, and the type of equipment 

operating in the area. Paramont Coal Company Virginia LLC, 2015 WL 3526151, at *3 (May 

2015); Utah Power & Light Co., Mining Div., 12 FMSHRC 965, 970-71 (May 1990); Texasgulf, 

10 FMSHRC 498, 501-03 (Apr. 1988). 

Here, the mine has had face ignitions while cutting sandstone on some of the older 

panels. Tr. 601. Although the roof was slate at the time of Deel’s inspection (Tr. 602), foreman 

Remines acknowledged that sandstone roof tends to come and go and that core holing is not 

always an accurate predictor of when sandstone is present. Tr. 604-05, 607. A methane content 

of 0 to .4 percent was already present at the faces and .3 percent methane was present at the 

check curtain prior to the start of mining operations. Tr. 524. Deel credibly testified on cross 

examination that when the .4 methane at the face mixed with the .3 methane at the curtain to 

create .7 methane and then recirculated through intake air and around the block, the buildup of 

methane would increase. Tr. 500, 524-25. As noted, under normal continued mining operations, 

more methane would be released from the face, along with coal dust. Given the gassy nature of 

the mine, a sudden buildup of methane could reasonably be expected to occur. In fact, Congress 

has recognized that methane can accumulate rapidly. S. Rep. No. 91-411 at 59, reprinted in 

Legis. Hist. 1969 Act at 185. Deel credibly testified that “... inby the methane monitor, when 

you start cutting coal, emitting methane, and it gets above the end of the or into the explosive 

range before the methane monitor can pick it up.” Tr. 534. If methane was continually 

recirculated during continuous normal mining operations from return air through the check 

18 (...continued) 

Judge Paez’s decision was not binding, that other ALJ decision had made different findings, and 

that Judge Paez was dealing with a violation of a ventilation plan rather than an auxiliary fan 

violation. As will be discussed infra, in the instant matter Respondent’s remedial efforts and the 

low level of methane were immaterial to the ultimate determination. While Judge Paez’s decision 

was well-reasoned and persuasive, my findings here largely rest on the credible facts presented 

and the cases cited herein. 

37 FMSHRC Page 2431
curtain to intake air because of the auxiliary fan violation, a rapid methane buildup to a 5 percent 

explosive level was even more likely. 

Furthermore, Deel observed several potential ignition sources inby the cited condition, 

specifically trailing cables and continuous miner bits. Tr. 501. Respondent argues that there was 

no evidence that actual ignition sources were present, such as exposed leads or pieces of 

sandstone roof that had fallen to the mine floor. Tr. 535-36, 600-01. However, the Commission 

has long held that the Secretary need not establish the presence of an imminent danger or actual 

ignition source in order to uphold an S&S designation. Elk Run Coal Co., 27 FMSHRC 899, 906 

(Dec. 2005); Cement Division, National Gypsum Co., 3 FMSHRC 822, 828 (Apr. 1981). The 

presence of potential ignition sources is sufficient under the confluence of factors test. Cf., Buck 

Creek Coal, Inc. v. FMSHRC, 52 F.3d 133, 135 -136 (7th Cir. 1995)(affirming judge’s S&S 

determination at 16 FMSHRC at 542, that a tail roller that was completely covered and turning in 

combustible coal fines could easily become an ignition source that could cause a fire if the roller 

became heated, despite the apparent absence of evidence that the tail roller was hot or that any 

defects in the roller were present); Knox Creek Coal Corp., 36 FMSHRC 1128, 1133-34 (May 

2014)(permissibility violations led to deteriorating conditions that were reasonably likely to 

create an ignition hazard in a gassy mine). Accordingly, considering the specific facts and 

circumstances of this case, I conclude that there was a sufficient confluence of factors to 

establish that the auxiliary fan violation contributed to a hazard of a methane ignition that was 

reasonably likely to result in an injury. 19 

Concerning the fourth Mathies factor, I find a reasonable likelihood that any injury 

resulting from the reasonable likelihood of a methane explosion would be of a reasonably serious 

nature and result in a fatality. As the 2010 Upper Big Branch tragedy reminds us, during 

continued normal mining operations, the ignition of methane and any subsequent propagation 

can lead to a fire or explosion, potentially crushing workers under heavy rocks, or burning them 

to death. See Pinnacle Mining Co., 36 FMSHRC 1918, 1923 (July 2014); Knox Creek Coal 

Corp., 36 FMSRHC 1128, 1134, 1137 (May 2014); Black Diamond Coal Mining Co., 7 

FMSHRC 1117, 1120 (Aug. 1985) (recognizing that “ignitions and explosions are major causes 

of death and injury to miners”). Therefore, I find that the fourth Mathies element is satisfied. 

For all of the above reasons, I find that the violation alleged in Citation No. 8196366 

significantly and substantially contributed to the cause and effect of a discrete safety hazard of 

methane ignition that was reasonably likely to result in a fatality. Therefore, I affirm the S&S 

Citation, as amended at trial. 

As noted, Deel observed four miners working inby the cited condition, preparing for the 

shift and cleaning their equipment. Tr. 487, 496, 515. They were the two roofbolt operators, a 

 19 I am persuaded by the testimony elicited by Respondent that coal dust particles in the 

air would mix with heavier rock dust and fall to the ground prior to recirculation of the air. (Tr. 

520-21, 573). However, having determined that the violation was reasonably likely to contribute 

to an injury as a result of a methane ignition, I find it unnecessary to decide whether the auxiliary 

fan violation also contributed to a health hazard of inhalation of respirable dust that was 

reasonably likely to result in an injury by contributing to the development of black lung disease. 

37 FMSHRC Page 2432
continuous miner operator, and a section foreman. Tr. 501. Accordingly, I conclude that Deel 

reasonably determined that four miners were affected by the violation. 

C. The Violation was the Result of Respondent’s Moderate Negligence

Further, I conclude that Deel reasonably determined that Respondent’s negligence was

moderate. As Deel testified, “The Mine Act requires the mine operator to have a high standard of 

care. They’ve got to be on the lookout for hazards and to correct those hazards.” Tr. 502. 

Indeed, the Mine Act imposes a high standard of care on foremen and supervisors. Midwest 

Material Co., 19 FMSHRC 30, 35 (Jan. 1997) (holding that “a foreman ... is held to a high 

standard of care”)); see also Capitol Cement Corp., 21 FMSHRC 883, 892-93 (Aug. 1999) 

(“Managers and supervisors in high positions must set an example for all supervisory and 

nonsupervisory miners working under their direction, ” quoting Wilmot Mining Co., 9 FMSHRC 

684, 688 (Apr. 1987); S&H Mining, Inc., 17 FMSHRC 1918, 1923 (Nov. 1995) (heightened 

standard of care required of section foreman and mine superintendent). 

Although the Secretary’s definitions of terms in Part 100 are not binding on the 

Commission, they nonetheless provide guidance. See Wade Sand & Gravel Co., ____ FMSHRC 

___, slip op. at 4 (Sept. 16, 2015). Relevant to the discussion here, MSHA defines negligence by 

regulation in the civil penalty context as “conduct, either by commission or omission, which falls 

below a standard of care established under the Mine Act to protect miners against the risks of 

harm.” Negligence is further defined as “the failure to exercise a high standard of care.” 30 

C.F.R. § 100.3. The level of negligence is properly designated as moderate when “[t]he operator

knew or should have known of the violative condition or practice, but there are mitigating

circumstances.” 30 C.F.R. § 100.3, Table X. The level of negligence is properly designated as

low when there are considerable mitigating circumstances surrounding the violation. 30 C.F.R. §

100.3, Table X (emphasis added).

For the reasons previously stated in my final Big Ridge decision, I find MSHA’s penalty 

regulations and the manner in which the Secretary applies them in proposing a penalty to provide 

useful guidance. See Big Ridge Inc., 36 FMSHRC , slip op. at 4-6 (July 19, 2014) (ALJ); see 

also Wade Sand & Gravel, supra, slip op. at 7, n. 1 (Chairman Jordan and Commissioner 

Nakamura concurring). Based on the testimony and briefs, I do not find considerable mitigating 

circumstances that would justify reducing the negligence designation from moderate to low. 

Respondent highlights none. In these circumstances, I find that the Secretary properly 

designated the level of negligence as moderate. 

In this regard, I have credited Deel’s testimony that the condition had existed for about 

four hours. Although section foreman Belcher testified that there were no hazards between 4:30 

and 6:00 a.m. when he concluded his pre-shift examination, Deel did not issue the citation until 

four hours later at 10 a.m. Further, Deel pointed to specific and compelling evidence that rock 

dust had accumulated and caked near the back of the curtain. I find that the condition existed for 

about four hours after section foreman Belcher completed his pre-shift at 6 a.m. Accordingly, I 

conclude that Respondent should have known of the condition at least prior to Deel’s discovery, 

particularly since a section foreman was working inby the cited condition. The moderate 

negligence designation was appropriate. 

37 FMSHRC Page 2433
D. Civil Penalty 

I independently assess the civil penalty pursuant to the criteria in section 110(i) of the 

Mine Act. The Buchanon Mine is a large underground coal mine that produces over 2,000,000 

annual tons of coal. P. Ex. A. It has a low history of previous violations during the prior 15-

month period. P. Ex. A and 28. The parties stipulated that the proposed penalty amounts that 

have been assessed for the violations at issue pursuant to 30 U.S.C. § 820(a) will not affect the 

ability of Consol Buchanan to remain in business. MSHA determined that Respondent 

demonstrated good-faith in attempting to achieve rapid compliance after notification of the 

violations. P. Ex. A. I have found that the operator was moderately negligent for each violation 

found. I have affirmed the gravity determinations for Citation Nos. 8208450 and 8208451, and 

increased the severity of gravity with respect to the severity of injury expected in Citation No. 

8196366 from permanently disabling to fatal. Accordingly, I find that the penalties proposed by 

the Secretary of $108 for Citation No. 8208450 and $108 for Citation No. 8208451 are consistent 

with the statutory criteria in section 110(i) of the Mine Act. 30 U.S.C. 820(i). Based upon my 

independent assessment of the record evidence, I find that the penalty proposed by the Secretary 

of $1203 for Citation No. 8196366 should be increased to $2,678 consistent with the statutory 

criteria in section 110(i) of the Mine Act and my finding that the severity of gravity increased 

from permanently disabling to fatal. 30 U.S.C. 820(i). Accordingly, I assess a total civil penalty 

of $2,894 for the three violations found herein. 

V. ORDER 

WHEREFORE, the parties’ Joint Motion for Approval of Partial Settlement made on 

the record is GRANTED. 

For the reasons set forth above, I AFFIRM Citation Nos. 8208450 and 8208451, as 

written. I further AFFIRM Citation No. 8196366, as amended at trial to allege that the auxiliary 

fan safety violation under section 75.331(a)(4) was reasonably likely to result in a fatal injury to 

four miners working inby as a result of Respondent’s moderate negligence. 

It is ORDERED that the operator pay a total civil penalty of $3,502 for the violations 

found herein within 30 days of this decision. 

/s/ Thomas P. McCarthy 

 Thomas P. McCarthy 

 Administrative Law Judge 

37 FMSHRC Page 2434
Distribution: 

Robert S. Wilson, Esq., U.S. Department of Labor, Office of the Solicitor, 1100 Wilson Blvd., 

Arlington, VA 22209 and David A. Steffey, Conference and Litigation Representative, Mine 

Safety and Health Administration, Norton District Office, Wise County Plaza, 2nd Floor 

P.O. Box 560, Norton, Virginia 24273 

Billy R. Shelton, Esq., Jones, Walters, Turner & Shelton PLLC, 151 N. Eagle Creek Dr., Suite 

310, Lexington, KY 40509 

37 FMSHRC Page 2435
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 27, 2015 

DECISION ASSESSING CIVIL PENALTIES 

AGAINST HIGHLAND MINING CO. AND JAMES CREIGHTON 

AND ORDER TO PAY 

This case is before me upon a complaint of discrimination brought by Lawrence Pendley 

(“Complainant”), a miner, against Highland Mining Co. and James Creighton, (“Respondents”), 

pursuant to § 105(c)(3) of the Federal Mine Safety and Health Act of 1977 (“Mine Act”), 30 

U.S.C. § 815(c)(3). 

On February 12, 2015, I issued a decision finding that Pendley had been discriminated 

against by the Respondents. Pursuant to Commission Rule 44(b), 29 C.F.R. §2700.44(b), a copy 

of the decision was sent to the office of the Regional Solicitor for assessment of civil penalty.1

On May 27, 2015, the Secretary Petitioned for assessment of civil penalties in the amount of 

$20,000.00. The Respondent timely answered on June 26, 2015. 

On August 1, 2015, James Creighton filed an Answer to the Petition for Assessment of 

Civil Penalty. In his Answer, Creighton stated that he retired on September 21, 2013 after having 

been found disabled by the Social Security Administration. He further stated that he has not 

worked any job since that time, and that due to his retirement and disability, “a monetary penalty 

would have an extreme hardship on my family and myself.” He moved this Court to reconsider 

the monetary penalty assessed by the Secretary. 

The Secretary submitted a Brief in Support of Civil Penalty Assessment and Opposition 

to Joint and Several Liability and Motion to Amend the Pleadings on August 27, 2015. In this 

pleading, the Secretary moved to amend the pleadings to clarify that it was assessing a penalty of 

$19,500.00 against Highland Mining Co. and $500.00 against James Creighton. It argued that the 

penalty assessed against Highland was appropriate under the criteria set forth in Section 110(i)

1

 The decision was sent to the wrong office of the Solicitor in error, which led to a delay 

in the Secretary’s assessment of civil penalty. 

LAWRENCE PENDLEY, 

 Complainant, 

v. 

HIGHLAND MINING CO. AND JAMES 

CREIGHTON, 

 Respondent. 

 DISCRIMINATION PROCEEDING 

Docket No. KENT 2013-606-D 

MSHA Case No.: MADI-CD 2010-07 & 11 

Mine: Highland No.9 

Mine ID: 15-02709 

37 FMSHRC Page 2436
and Commission precedent. However, since there was no case law concerning the application of 

Section 110(i) criteria to individuals, it suggested applying the criteria set forth under Section 

110(c) and Commission case law interpreting that Section. Applying the 110(c) analysis, the 

Secretary argued that the penalty assessed against Creighton was appropriate. 

On September 01, 2015, Highland submitted its brief opposing the penalty assessment. It 

argued that the penalty assessed against Highland should be substantially reduced because (1) the 

theory of liability was based upon the conduct of an hourly employee, (2) the Complainant was 

not an employee, (3) the Complainant placed himself in the area where Creighton was working, 

and (4) the mine is no longer in operation. 

For the following reasons, I find that a civil penalty of $19,500.00 against Highland is 

appropriate, but reduce the penalty assessed against Creighton to $250.00. 

The Civil Penalty of $19,500.00 Against Highland is Appropriate 

The principles governing the authority of the Commission’s administrative law judges to 

assess civil penalties de novo for violations of the Mine Act are well established. Section 110(i) 

of the Mine Act delegates to the Commission and its judges the authority to assess all civil 

penalties provided in the Act. 30 U.S.C. 820(i). The Act delegates the duty of proposing 

penalties to the Secretary. 30 U.S.C. §§ 815(a), 820(a). The Act requires that in assessing civil 

monetary penalties, the Commission and its judges shall consider the six statutory penalty 

criteria listed in §110(i) of the Act: 

[1] the operator’s history of previous violations, [2] the appropriateness of such penalty to 

the size of the business of the operator charged, [3] whether the operator was negligent, 

[4] the effect on the operator’s ability to continue in business, [5] the gravity of the 

violation, and [6] the demonstrated good faith of the person charged in attempting to 

achieve rapid compliance after notification of a violation. 

30 U.S.C. § 820(i). MSHA obo Perry Poddey v. Tanglewood Energy, Inc., 18 FMSHRC 1315 

(Aug. 1996) (Applying 110(i) criteria to Respondent in discrimination case.) 

 In the instant case, the Secretary seeks civil penalties from Highland in the amount of 

$19,500.00. Given all of the evidence, as well as my findings contained in the underlying 

Decision, I find that this penalty is appropriate. 

In assessing a $19,500.00 penalty, I have given full consideration to the Section 110(i) 

criteria. With regards to Highland’s history of previous violations, according to MSHA’s Mine 

Data Retrieval System, in the 15 months prior to the violation date of March 30, 2009, Highland 

had 618 violations over 977 inspection days. Furthermore, in addition to the instant case, 

Pendley filed two separate discrimination complaints with the Commission, on February 25, 

2010 and March 25, 2010, which resulted in a finding of discriminatory acts by Highland. 

In 2009, when the acts relevant to this matter took place, the size of the operator’s 

business can be considered large. The 2009 production totals for the mine were 3,676,615 tons of 

37 FMSHRC Page 2437
coal, and the controller produced 28,356,573 tons of coal. These figures place both the mine and 

the operator in the largest category of the tables provided in 30 C.F.R. §100.3(b). 

In the instant case, Highland exhibited negligence in its failure to act or cease 

interference with Pendley’s rights. As detailed in the underlying Decision, Superintendent 

Millburg knew of the contentious history between Pendley and Creighton, and was informed of 

Creighton’s conduct, and he chose to do nothing to stop it. While it is true that he watched 

security footage of the interaction, he did not take the next step of instructing Creighton not to 

interfere with Pendley’s rights. 

With regards to the operator’s ability to continue in business, there is nothing in the 

record that indicates that such a fine would adversely affect its ability to stay in business. 

I further find that the gravity of the conduct by Highland was serious and supports the 

Secretary’s proposed penalty. As described in more detail in the underlying Decision, miners’ 

representatives serve an important function in ensuring a safe and healthy environment for 

miners. I found significant interference with Pendley’s rights by management—when 

Creighton’s conduct was ignored, as well as withholding of materials from Pendley. I find that 

such conduct demonstrated a disregard for miners’ representative rights, and were sufficiently 

serious to support the Secretary’s proposed penalties. Furthermore, there was no evidence of 

good faith abatement in the record. 

Based on these reasons and the underlying Decision, I find that a penalty of $19,500.00 

against Highland is appropriate. 

The Civil Penalty of $500.00 Against Creighton is Reduced to $250.00 

Though there is no Commission caselaw concerning the criteria to use when assessing a 

penalty against an individual in a discrimination case, the Commission has provided guidance for 

assessing individual penalties in the 110(c) context: 

The Supreme Court has held that, in interpreting a single enactment, courts should give 

the statute “the most harmonious, comprehensive meaning possible.” Weinberger v. 

Hynson, Westcott and Dunning, Inc., 412 U.S. 609, 631-32 (1973). Interpreting sections 

110(c) and 110(i) harmoniously, we hold that, in keeping with our prior holding that 

“findings of fact on the statutory penalty criteria must be made,” Sellersburg, 5 FMSHRC 

at 292 (emphasis added), Commission judges must make findings on each of the criteria 

as they apply to individuals. The criteria regarding the effect and appropriateness of a 

penalty can be applied to individuals by analogy, and we find that such an approach is in 

keeping with the deterrent purposes of penalties assessed under the Mine Act. In making 

such findings, judges should thus consider such facts as an individual's income and 

family support obligations, the appropriateness of a penalty in light of the individual's job 

responsibilities, and an individual's ability to pay. Similarly, judges should make findings 

on an individual's history of violations and negligence, based on evidence in the record 

on these criteria. Findings on the gravity of a violation and whether it was abated in good 

37 FMSHRC Page 2438
faith can be made on the same record evidence that is used in assessing an operator's 

penalty for the violation underlying the section 110(c) liability. 

Sec’y v. Sunny Ridge Mining Company, Inc. & Mitch Potter & Tracy Damron, employed by 

Sunny Ridge Mining Company, Inc., 19 FMSHRC 254, 272, (Feb. 1997). The goal of statutory 

harmony, deterrent purposes of penalties, and general reasoning employed by the Commission in 

Sunny Ridge Mining, applies equally to penalties assessed against individuals in the 

discrimination context. Based on an application of the 110(i) criteria by analogy, I find that the 

appropriate penalty assessed against Creighton is $250.00. 

As detailed in the underlying decision, as well as Judge Barbour’s decision in Sec’y obo 

Pendley v. Highland Mining, 34 FMSHRC 3406 (Dec. 27, 2012) (ALJ), Creighton had a long 

history of issues with Pendley that go back as far as 2005. These allegations of discrimination 

included threats, destruction of property, and physical violence. For one individual, this conduct 

represents a long history of previous violations. 

In the underlying decision, I found that Creighton purposefully interfered with Pendley’s 

rights as a miners’ representative. Therefore, he exhibited a total absence of any standard of care. 

Furthermore, Creighton’s actions were intended to interfere with Pendley’s walkaround rights, 

which are essential for ensuring health and safety in the mine. Therefore, the level of gravity was 

high. And there was no good faith abatement of the conduct by Creighton. Up until the date of 

the hearing, Creighton continued to construct elaborate excuses for how his conduct was 

appropriate. 

However, in spite of Creighton’s egregious conduct, there is one factor that counsels a 

reduction in penalty. Creighton retired from mining on September 21, 2013, and has not worked 

any job since that time. He has been found disabled by the Social Security Administration. 

Creighton has stated that due to his limited income, “a monetary penalty would have an extreme 

hardship on my family and myself.” Based upon this information, I find that a $250.00 penalty 

would reasonably serve as a deterrent. 

Therefore, it is hereby ORDERED that Respondent Highland Mining pay a civil penalty 

in the amount of $19,500.00 for its violation of Section 105(c) of the Act, within thirty (30) days 

of the date of this decision.2

2

 Payment should be sent to: MINE SAFETY AND HEALTH ADMINISTRATION, 

U.S. DEPARTMENT OF LABOR, PAYMENT OFFICE, P. O. BOX 790390, ST. LOUIS, MO 

63179-0390 

37 FMSHRC Page 2439
 It is further ORDERED that Respondent James Creighton pay a civil penalty in the 

amount of $250.00 for his violation of Section 105(c) of the Act, within thirty (30) days of the 

date of this decision.3

 

Upon receipt of these payments, this case is hereby DISMISSED.

4

/s/ Kenneth R. Andrews 

Kenneth R. Andrews 

Administrative Law Judge 

Distribution: 

Dana L. Ferguson, Esq., U.S. Dept. of Labor, Office of the Solicitor, 201 12th St. South, Suite 

500, Arlington, VA 22202 

Tony Oppegard, Esq., P.O. Box 22446, Lexington, KY 40522 

Wes Addington, Esq., Appalachian Citizens’ Law Center, 317 Main St., Whitesburg, KY 41858 

Melanie J. Kilpatrick, Esq., Rajkovich, Williams, Kilpatrick & True, PLLC, 3151 Beaumont 

Centre Circle, Suite 375, Lexington, KY 40513 

Jack Creighton, 324 Bell Hite Drive, Morganfield, KY 42437 

/mzm 

 3

 Payment should be sent to: MINE SAFETY AND HEALTH ADMINISTRATION, 

U.S. DEPARTMENT OF LABOR, PAYMENT OFFICE, P. O. BOX 790390, ST. LOUIS, MO 

63179-0390 

4

 Following the two prior Decisions on February 12, 2015 and September 21, 2015, this 

constitutes the final Decision of the ALJ in this matter. 

37 FMSHRC Page 2440
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 28, 2015 

 

DECISION AND ORDER 

Appearances: Terrence Duncan, Esq., U.S. Department of Labor, Office of the Solicitor, 

New York City, New York, for the Secretary 

Damaris Delgado-Vega, Esq., Ortiz & Ortiz, San Juan, Puerto Rico, for 

the Respondent 

Before: Judge Lewis 

STATEMENT OF THE CASE

 This case is before the undersigned ALJ based upon a petition for assessment of civil 

penalty filed by the Secretary of Labor against Respondent, Productos de Agregados de Gurabo 

pursuant to 104(a) and 105(d) of the Federal Mine Safety Act of 1977, 30 U.S.C. §815(d). 

 Following inspection of Respondent’s mine, an MSHA inspector issued Citation No. 

8723601 for lack of safe access to a conveyor’s greasepoint in violation of 30 C.F.R. §56.11001. 

The inspector alleged a miner had stated that miners accessed the greasepoint by climbing the 

plant’s conveyor belt. At hearing, the miner denied making the assertion. This decision turns on 

the uncorroborated, out-of-court statement alleged by the inspector and whether such testimony 

can constitute substantial evidence in the face of testimonial denial of the out-of-court statement 

by the alleged declarant. For the following reasons, I find that the out-of-court statement lacked 

sufficient indicia of reliability to support the citation as written. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner, 

 v. 

PRODUCTOS DE AGREGADOS DE 

GURABO, 

 Respondent. 

 CIVIL PENALTY PROCEEDING 

Docket No. SE 2013-449-M 

A.C. No. 54-00316-323193 

Mine: Productos de Agregados de Gurabo 

37 FMSHRC Page 2441
PROCEDURAL HISTORY

This case has a rather thorny procedural history. 

On April 12, 2013, MSHA Inspector Isaac Villahermosa conducted an inspection of the 

Productos de Agregados de Gurabo (“P.A.G.”) surface mine, wherein he issued Citation No. 

8723601 under Section 104(a) of the Federal Mine Safety and Health Act of 1977 (“the Mine 

Act”). MSHA assessed a civil penalty of $873.00 on May 29, 2013. P.A.G. timely contested the 

assessment on June 7, 2013 and the case was designated for simplified proceedings on July 17, 

2013. 

In a December 30, 2013 filing, the Respondent challenged the citation on jurisdictional 

grounds, alleging that, inter alia, P.A.G.’s business did not affect interstate commerce within the 

meaning of §3(b) of the Mine Act and, as a result, MSHA lacked the jurisdiction to cite 

Respondent’s mine.1 On March 18, 2014 the Secretary moved to discontinue simplified 

proceedings. The Solicitor argued the Respondent’s jurisdictional arguments necessitated 

discovery more complex than simplified proceedings would allow. On April 9, 2014, this Court 

ordered simplified proceedings discontinued. 

The Solicitor submitted a request to the Court for two subpoenas to depose P.A.G. staff 

on June 26, 2014. These subpoenas were served on July 7, 2014. The Respondent’s counsel 

moved on August 6, 2014 for a protective order from the Secretary’s subpoena requests and 

further moved for sanctions against the Secretary’s counsel. Respondent argued that the 

Secretary’s counsel’s responses to interrogatories were deliberately obfuscatory and, as such, the 

Respondent was unprepared for depositions. On August 8, 2014 the Secretary’s counsel 

responded, arguing that the motions were both untimely and they mischaracterized the Solicitor’s 

response to discovery requests. Given Respondent’s jurisdictional assertions and the parties’ 

discovery disputes, this Court conducted a pre-hearing conference on August 8, 2014. During 

this conference, this Court, inter alia, agreed to bifurcate the proceedings so that the threshold 

issue of jurisdiction could be addressed initially. This Court further agreed to certify any 

interlocutory ruling regarding jurisdiction for review by the Federal Mine Safety and Health 

Review Commission (FMSHRC) as involving a controlling question of law, the immediate 

review of such which would materially advance the final disposition of the proceedings. 

On August 11, 2014, this Court issued the following orders: ORDER BIFURCATING 

HEARING; ORDER TO CONFER REGARDING MATERIAL FACTS; ORDER GRANTING 

REQUEST FOR LIMITED DISCOVERY; ORDER DENYING REQUEST FOR 

PROTECTIVE ORDER; ORDER DENYING REQUEST FOR SANCTIONS. In said order(s) 

this Court specifically directed that the parties confer as to whether they could agree to all 

material facts regarding operation of P.A.G. as to the issue of jurisdiction. If no genuine issue of 

material fact existed, the parties were directed to file cross motions for summary decision on the 

question of jurisdiction. If the parties could not agree to all material facts, an initial hearing 

would be held limited solely to the question of jurisdiction. 

1

 Though not captioned as such, the filing was essentially a Motion to Dismiss. 

37 FMSHRC Page 2442
As to Respondent’s extensive discovery requests regarding the bases of MSHA’s asserted 

jurisdiction over the subject mine, this Court found that the Productos de Agregados de Gurabo 

operation met the definition of “coal or other mine” as set forth in §3(h)(1) of the Mine Act and 

that the Commonwealth of Puerto Rico was clearly included as a “state” under §3(c) of the Mine 

Act. Discovery regarding jurisdiction was therefore limited to whether the mine was engaging in 

“commerce” as that term was defined in §3(b) of the Mine Act.2

The Respondent ultimately abandoned its jurisdictional challenge in a filing on March 12, 

2015.3

In an effort to resolve the underlying citation without the necessity of a hearing in Puerto 

Rico, this Court appointed a mediator to assist the parties to reach a possible settlement. A 

telephonic mediation was held on March 30, 2015. Despite the parties’ best efforts, a settlement 

could not be reached. 

On April 6, 2015 the Respondent petitioned the Court to conduct a personal “ocular” 

inspection of the P.A.G. mine site, and on April 23, 2015 the Secretary’s counsel filed a 

memorandum opposing the Respondent’s request. On April 24, 2015, the Court denied 

Respondent’s petition for an “ocular” inspection of the P.A.G. mine site. 

A hearing was held on April 29 and 30, 2015 in Carolina, Puerto Rico. At the conclusion 

of the hearing the Court ordered counsel to submit post-hearing briefs. On July 6, 2015 the 

Secretary’s counsel requested and was granted an extension to file a post-hearing brief. 

Similarly, on July 29, 2015, the Respondent requested and was granted an extension to file a 

post-hearing brief. The Secretary’s counsel filed a post-hearing brief with the Court on August 5, 

2015. The Respondent filed a memorandum of law petitioning the court to vacate Citation No. 

8723601 on August 10, 2015. The Secretary’s counsel’s reply brief to the Respondent’s August 

10 memorandum was filed with the Court on August 13, 2015. The Respondent filed a reply to 

the Secretary’s post-trial brief on August 17, 2015. 

STIPULATIONS

 At hearing the parties entered the following joint stipulations into the record: 

1. The Federal Mine Safety and Health Review Commission has jurisdiction over these 

proceedings and over Respondent, P.A.G. 

 2 See also Respondent’s extensive pleadings, including interrogatories, regarding the 

issue of jurisdiction at Resp’t’s Doc., Dec. 30, 2013, Sec’y’s Resp. to Resp’t’s Interrogs., sets one 

and two, Jul. 14, 2014, Resp’t’s Notice of Appearance and Mot. for the Limited Purpose of 

Requesting a Protective Order from the Subpoena for the Dep. Scheduled for Aug. 14, 2014, and 

Sanctions Against Sec’y’s Att’y, Aug. 6, 2014, et. al. 

3

 During various prehearing conferences this Court expressed its opinion that, 

notwithstanding various Puerto Rican statutes prohibiting the export of alluvium materials from 

the Rio Grande de Loiza, P.A.G.’s overall mining operations clearly involved interstate 

“commerce” as broadly defined in §3(b) of the Act. 

37 FMSHRC Page 2443
2. Isaac Villahermosa conducted an inspection of P.A.G.’s mine on April 12, 2013. 

3. Isaac Villahermosa issued Citation No. 8723601 at the end of his inspection of 

P.A.G.’s mine on April 12, 2013. 

4. The citation issued by Inspector Villahermosa on April 12, 2013 was modified by 

Inspector Villahermosa that same day in response to an observation or comment by 

Mr. Calixto Frias. 

5. Productos de Agregados de Gurabo timely contested the citation and its related 

penalty. 

6. Inspector Villahermosa took the photos that accompanied Citation No. 8723601. 

7. P.A.G. has never been cited for the condition alleged in Citation No. 8723601 as a 

violation of safe access. 

8. Inspector Villahermosa, during his inspection of P.A.G.’s mine on April 12, 2013, did 

not witness the act of a miner climbing over the guardrails of the ladder platform to 

reach the conveyor, then bend over to grease the conveyor roll. 

9. Respondent Productos de Agregados de Gurabo was/is the owner-operator of the 

Productos de Agregados de Gurabo mine. 

10. Respondent P.A.G. was or is a mine within the meaning of Section 4 of the Federal 

Mine Safety and Health Review Act, 30 U.S.C. §804, and has/had products which 

entered into state commerce and/or operations or products which affected interstate 

commerce within the meaning of Section 4 at the time of the violation alleged in the 

citation. 

11. Respondent P.A.G.’s mine was/is subject to the jurisdiction of the Federal Mine 

Safety and Health Act of 1977, as amended, 30 U.S.C. §801, et seq. at the time of the 

violation alleged in the citation. 

12. At the conclusion of the inspection, Inspector Villahermosa issued Citation No. 

8723601. The citation alleged that Respondent violated the Mine Act regulation 30 

C.F.R. §56.1100. 

Tr. 124-6. 

SUMMARY OF THE TESTIMONY AND RECORD

Productos de Agregados de Gurabo is a Puerto Rico-based surface mining concern, 

refining alluvium materials, mostly sand and gravel, from a nearby flood plain and river channel. 

37 FMSHRC Page 2444
GX-4.4

 P.A.G. began operations on October 1, 1989, and Calixto Frias is its Chief Executive 

Officer. GX-6, GX-4. Located about twenty miles south of San Juan, P.A.G.’s operation is a 

small one, consisting of two plants, Plant No.1 and Plant No. 2, each with a loader, feeder, 

conveyor, and sifting apparatus overseen from one administrative office; trucks are also used on 

site for transporting raw and processed materials. Tr. 53-5, 207-9. In total, P.A.G. employed 

three miners in April of 2013. Tr. 202-3. 

On the morning of April 12, 2013, Inspector Isaac Villahermosa conducted a general 

inspection of the P.A.G. mine.5

 Following his inspection, Villahermosa issued to Calixto Frias, 

C.E.O. of P.A.G., Citation No. 8723601 for lack of safe access for maintenance of the main

conveyor head of Plant No. 1, in violation of 30 C.F.R. §56.11001. Tr. 40. Frias, acting in his

capacity as C.E.O. of P.A.G., timely contested the citation on June 7, 2013. GX-3.

Villahermosa arrived on-site at P.A.G. at approximately 7:00 am on April 12, 2013. Tr. 

97-8. Villahermosa was accompanied by Isaias Delgado, an equipment operator employed by

P.A.G. 6 Tr. 24-5.

During the inspection of Plant No. 1, Inspector Villahermosa noticed what he believed to 

be an unsafe distance between the greasepoint of the conveyor and the elevated platform that 

provided access to the conveyor.7 Tr. 27. Inspector Villahermosa testified that upon mounting the 

platform, he visually observed that the greasepoint was three to four feet distant horizontally 

4

 Exhibits submitted by the Secretary are designated “GX.” Those exhibits submitted by 

the Respondent are designated “RX.” These correspond to the exhibits submitted into the record 

prior to and during hearing. This Court’s attachments are designated “CX.” 

5

 Isaac Villahermosa has over eight years of experience as an MSHA inspector, with 

roughly 250 inspections conducted as of April 29, 2015. Tr. 23. Prior to beginning work with 

MSHA, Villahermosa served with the United States Navy as a safety inspector and competent 

person for 22 years before receiving an honorable discharge. Tr. 51. Villahermosa is one of two 

MSHA inspectors for the entire territory of Puerto Rico, supported by one supervisor, Luis 

Valentín. Tr. 52, 285. 

6

 Isaias Delgado has been employed by P.A.G. as an equipment operator since 2001. Tr. 

321, GX-4. He completed his formal education at the 10th grade level. Tr. 248. 

7

 The conveyor of Plant No. 1 is a Powerscreen Model Chieftain 5 x 10. This machine is 

loaded with unprocessed alluvium, either collected from a flood plain or a dredged from a river 

bed, and then used to filter the alluvium into fine grain and oversized materials, both of which 

are then deposited by the filter into separate piles. GX-4. Model Chieftains are equipped with a 

conveying arm that extends at least ten feet into the air diagonally; this arm uses a running 

conveyor belt to transport the alluvium. GX-5. The conveying arm has two bearings at its 

uppermost point that facilitate the rolling of the conveyor belt’s pulley. GX-5. These bearings 

require periodic maintenance, including manual greasing, which at P.A.G. occurred roughly 

every two weeks during periods of regular activity. Tr. 46. This greasing is performed with a 

hand-operated grease gun. 

37 FMSHRC Page 2445
from the platform’s railing. Tr. 33. Inspector Villahermosa testified that he asked Mr. Delgado 

just how greasing was performed, given the distance from the platform to the greasepoint on the 

bearing. Tr. 28. According to Villahermosa’s testimony, Delgado replied, “In order to get to the 

pulley I climb up to the conveyor.” Tr. 28-9. After further questioning on just where one would 

mount the conveyor in order to climb up its incline, Delgado allegedly took Inspector 

Villahermosa down to ground level and pointed out the span of a metal support beam, running 

just beneath the beginning of the conveyor belt, which he used as a foothold when climbing onto 

the belt itself. Tr. 28-9, GX-2. 

Mr. Delgado denied under oath that any conversation of this sort ever took place. Tr. 213. 

He testified that in order to reach the greasepoint, he had to reach outward from the platform 

with his arms out, but said he had no difficulties doing so from the platform. Tr. 222-3, 246. Mr. 

Delgado testified that while he and Inspector Villahermosa had spoken during the inspection, the 

first he heard of the allegation that he told Villahermosa he climbed the conveyor was after the 

citation was issued. 8 Tr. 206, 246-7. 

While at Plant No. 1, Villahermosa took three photographs of the conveyor. The first 

depicted the metal support beam that Delgado allegedly identified as the beginning step for the 

climb up the conveyor. Tr. 29, GX-2. The second, taken from ground level, depicts the conveyor 

belt as it rises upward. Tr. 29, GX-2. The third depicts the bearing in question and was 

apparently taken from the platform itself. Tr. 29, GX-2. Inspector Villahermosa testified he took 

these photographs “to show the areas where the greasepoint was unreachable.” Tr. 29. He made 

no measurements to determine how far the bearing was from the platform. Tr. 73. He did not ask 

Mr. Delgado to sign a document memorializing the statements the equipment operator had 

allegedly made to the inspector. Tr. 120. Inspector Villahermosa did not attempt to reach out 

from the platform to access the bearing, but visually estimated the distance between the platform 

and bearing.9 Tr. 60. Inspector Villahermosa never witnessed Delgado, or any other employee of 

P.A.G., actually climb the conveyor itself. Tr. 101. 

After photographing the conveyor, Inspector Villahermosa notified Mr. Delgado that the 

bearings needed to be reached with extension hoses to allow easier greasing from the conveyor 

platform and that this abatement needed to take place within ten minutes. Tr. 143. Once Mr. 

Delgado made clear his intent to comply with all instructions, including halting production at 

Plant No. 1 until abatement took place, Villahermosa granted P.A.G. an extension to complete 

abatement. Tr. 143-4. 

Calixto Frias arrived on-site toward the end of Villahermosa’s inspection. Tr. 38. At this 

time, Inspector Villahermosa issued Citation No. 8723601 to Frias personally. Tr. 39. The 

8

 At one point under questioning about his reaction to Villahermosa’s description of their 

conversation during inspection of Plant No. 1, Delgado offered, “The thing is, I didn’t go up the 

conveyor.” Tr. 235. Mr. Delgado’s somewhat confused testimony might be the result of a 

difficulty navigating the murky shoals of courtroom examination instead of a deliberate effort at 

confusing the issue. 

9 Inspector Villahermosa testified at hearing he was 5’6” in height (but appeared to be 

somewhat shorter to this Court). Tr. 68.

37 FMSHRC Page 2446
citation alleged that safe access was not provided for maintenance of the bearings on the 

conveyor of Plant No. 1, that miners accessed the greasepoint by climbing the conveyor belt 

itself, and that a fall while climbing the conveyor could lead to serious injury or death if a miner 

struck the concrete beneath the conveyor. GX-2, Tr. 45. The potential for an accident if a miner 

were to fall from the conveyor, as well as the frequency of the greasing (every two weeks during 

peak periods), led Inspector Villahermosa to conclude the violation was significant and 

substantial (S&S). GX-2, Tr.46. Upon receipt of the citation, Frias contested the issuance’s 

language alleging the operator had been cited twice previously for the same condition but made 

no other argument as to the citation’s validity. GX-2, Tr. 39. Villahermosa modified the citation 

to read “standard,” rather than “condition.” Tr. 39-40,152. Inspector Villahermosa told Mr. Frias 

that extension hoses would have to be affixed to the bearings of the conveyor of Plant No. 1 to 

abate the violation alleged in the citation. Tr. 167. 

Frias did not take Villahermosa to Plant No. 1 to dispute the citation in detail or point out 

existing safe access areas. Tr. 41. Frias testified that he received the citation, informed Inspector 

Villahermosa of his intent to challenge the citation’s validity, but did not have time to fully 

process the entire text of the citation itself. Tr. 322. Mr. Frias testified that it was only after 

Inspector Villahermosa had left the office that he had time to “analyze and understand what the 

allegation was,” by which point Villahermosa was no longer available to discuss the citation. Tr. 

322-3. Mr. Frias expressed fear of retaliation as a further reason for his failure to contend with

Inspector Villahermosa on the morning of April 12. Tr. 202.

Following the receipt of the citation Frias went out later the same day and purchased 

extension hoses and had the hoses installed on the bearings of the conveyor of Plant No. 1. Tr. 

157-8. At hearing, Frias testified that the hoses purchased to abate the violation were threaded

into the greasepoints of the conveyor by standing on the same platform Villahermosa cited for

unsafe access. Tr.188-9. Frias did not disclose any difficulties that his employees had in greasing

the head pulley with grease guns alone.10 Tr. 188-9.

Sometime after April 12 Mr. Frias and Mr. Delgado spoke about the citation. Mr. Frias 

testified that he waited at least a day before approaching Mr. Delgado to discuss just what 

happened that led to the citation. Tr. 170. In testimony Frias remarked upon Inspector 

Villahermosa’s “perturbing” effects on his staff during and after inspections and said that “I 

didn’t want Isaias [Delgado] to feel at that time that I was questioning him or blaming him or 

saying anything that might perturb him.” Tr. 204. For his part, Mr. Delgado asserted that he was 

told about the violation the next day, April 13, 2013, and that the conversation touched only 

upon the installation of the greasehoses. Tr. 218-9. 

Within two weeks, Inspector Villahermosa returned and noted the proper installation of 

the extension hoses. He concluded the violation had been abated. Tr. 41-2. 

Approximately one year after the events of April 12, 2013, Inspector Villahermosa issued 

another, unrelated citation to P.A.G., prompting Mr. Frias to call on the local MSHA field office. 

Tr. 196. There Mr. Frias spoke to Luis Valentín, Inspector Villahermosa’s supervisor. Tr. 196, 

10 There was some question during testimony as to whether Mr. Delgado and Mr. Diaz, 

another employee of P.A.G., installed the greasehoses, or if Mr. Diaz alone installed the hoses. 

37 FMSHRC Page 2447
285-6. Mr. Frias complained of Villahermosa’s most recent citation and Citation No. 8723601,

believing they were “becoming a pattern of irregularities.” Tr. 196. At hearing Mr. Valentín

testified that Inspector Villahermosa had something of a reputation for his problematic

“delivery” of citations and that his style of inspection had garnered comment from operators

before, but Valentín had never personally seen Villahermosa behave improperly while on the

job. Tr. 299, 307.

At hearing, Inspector Villahermosa was presented with photographs taken by the 

Respondent that appeared to depict safe access to the backside of the conveyor from the 

platform. Tr. 340, RX 1-8. Inspector Villahermosa was uncertain as to whether the photographs 

accurately depicted Plant No. 1’s setup when he issued Citation No. 8723601. Tr. 340-1. 

At hearing, Inspector Villahermosa described how his third photograph, depicting the 

bearing of the conveyor, was taken. GX-2. At first he asserted it was taken while in front of the 

conveyor as if the platform lacked access to the backside.11 Tr. 77-8. Later Villahermosa stated 

that the platform in question did “come out some,” and he was standing in that space when he 

took his third photograph. Tr. 82-3. 

At hearing, the Secretary introduced into evidence enhanced copies of Inspector 

Villahermosa’s original notebook entries concerning the inspection. Tr. 139. Inspector 

Villahermosa testified that the duplicates accurately reflected the notes he took during the 

inspection on April 12, 2013. Tr. 145-6. One page of the notebook possessed certain 

irregularities that led the Respondent to question the authenticity of the exhibit. Tr. 145-6. The 

Court, after experiencing difficulty aligning the enhanced version with the unenhanced version 

already in the record, requested Inspector Villahermosa’s original notebook for examination. Tr. 

141, 148.12 Ultimately, the Secretary supported his case by Villahermosa’s testimony alone and 

without the benefit of the inspector’s field notes. CX-3. 

11 At no point in the record does Inspector Villahermosa assert directly that the platform 

had no access to the backside, but his language throughout his testimony is suggestive of this. Tr. 

56, 69, 80. That Villerhermosa implied there was a lack of access to the backside of the conveyor 

is confirmed by his own statement that “I said it didn’t go down the side. I didn’t say it didn’t 

come out some.” Tr. 83, emphasis added. This relatively minor detail assumes greater 

importance when one considers that the citation at issue alleged unsafe access to the greasepoint. 

Villahermosa later testified that he could not be sure if safe access to the backside did exist. Tr. 

83. Villahermosa testified further that if he had seen safe access to the backside, he would have

instead cited Respondent for improper guarding. Tr. 342. Villahermosa’s testimony suggests the

inspector himself was unsure at hearing if safe access existed, but chose to rely on Delgado’s

alleged out-of-court statement to support his citation.

12 As discussed infra, the Solicitor agreed to have the original notebook, located in an 

MSHA district office in Birmingham, Alabama, mailed to the Court within approximately twenty 

days. Tr. 148. Twenty one days later, the Solicitor authored a letter to the Court averring that 

UPS records showed the notebook, sent by overnight mail, had been delivered to the New York 

Solicitor’s Office. Somehow the package, and the original notebook with it, had disappeared 

(continued...) 

37 FMSHRC Page 2448
CONTENTIONS OF THE PARTIES

The Respondent contends that the Secretary has failed to meet its burden of proof, 

asserting that the citation’s factual basis has not been proven by a preponderance of the evidence. 

P.A.G. further contends that Isaias Delgado’s alleged remark is an uncorroborated hearsay 

statement that cannot alone sustain the violation. P.A.G. also contends that insufficient notice 

was provided by the citation itself because it did not include Delgado’s alleged statement. 

Additionally, P.A.G. argues that the Secretary’s additional corroborative evidence is not, in fact, 

corroborative. P.A.G. argues, in the alternative, that if the citation is found valid, it does not 

satisfy the Mathies standard as a significant and substantial violation. 

The Secretary contends that a preponderance of the evidence establishes that P.A.G. 

failed to provide and maintain a safe access for the conveyor of Plant No. 1 and that the violation 

should be affirmed as S&S and one of high negligence. He argues that Isaias Delgado told 

MSHA Inspector Isaac Villahermosa that routine maintenance was performed by climbing the 

conveyor belt of Plant No. 1. The Secretary also contends that Isaias Delgado and Calixto Frias’s 

testimony is not credible. He further argues that, even if the Court chooses to disregard Mr. 

Delgado’s alleged statement to MSHA Inspector Villahermosa, there is sufficient additional 

corroborative evidence to support the citation as issued. He maintains that the citation itself 

provided adequate notice of the alleged violation to P.A.G. 

FINDINGS OF FACT AND CONCLUSIONS OF LAW

On April 12, 2013, MSHA Inspector Isaac Villahermosa issued Citation No. 8723601 to 

Respondent. The inspector alleged that: 

A safe access was not provided for maintenance of the main conveyor head pulley 

in plant # 1. Miners access area by climbing on the conveyor belt when required 

for maintenance. Miners can sustain serious or fatal injuries if they fell from 

approximately 5 to 10 feet to the floor. The mine operator had been cited 2 times 

previously for this condition.13 

GX-2 §8. 

30 C.F.R. §56.11001, “Safe access,” provides that: 

Safe means of access shall be provided and maintained to all working places. 

12 (....continued) 

after delivery -- certainly, in the Solicitor’s words, “the unlikeliest of occurrences.” Letter from 

Terence Duncan, Senior Trial Attorney, Secretary of Labor, to the undersigned (May 20, 2015) 

see CX-3. 

13 The citation was later modified to read “standard” in place of “condition” at Calixto 

Frias’s objection. See supra. 

37 FMSHRC Page 2449
Burden of Proof and Standard of Proof 

The Secretary must prove the basis of a violation by a preponderance of the evidence. Jim 

Walter Resources, Inc., 28 FMSHRC 983, 992 (Dec. 2006), RAG Cumberland Resources, Corp.,

22 FMSHRC 1066, 1070 (Sept. 2000), Jim Walter Res., Inc., 9 FMSHRC 903, 907 (May 1987). 

This includes every element of the citation. In re: Contests of Respirable Dust Sample Alteration 

Citations: Keystone Mining Corp., 17 FMSHRC 872, 878 (Aug. 2008). 

Commission precedents have held that “[t]he burden of showing something by a 

‘preponderance of the evidence’ the most common standard in the civil law, simply requires the 

trier of fact ‘to believe that the existence of a fact is more probable than its nonexistence.’” RAG 

Cumberland Resources Corp., 22 FMSHRC 1066, 1070 (Sept. 2000), quoting Concrete Pipe & 

Products of California, Inc. v. Constr. Laborers Pension Trust for S. California, 508 U.S. 602, 

622 (1993). 

The United States Supreme Court has held that “[b]efore any such burden can be satisfied 

in the first instance, the factfinder must evaluate the raw evidence, finding it to be sufficiently 

reliable and sufficiently probative to demonstrate the truth of the asserted proposition with the 

requisite degree of certainty.” Concrete Pipe & Products of California, Inc. v. Constr. Laborers 

Pension Trust for S. California, 508 U.S. 602, 622 (1993). The assessment of evidence is a 

process of weighing, rather than mere counting: “[T]here is a distinction between civil and 

criminal cases in respect to the degree or quantum of evidence necessary to justify the [trier of 

fact] in finding their verdict. In civil cases their duty is to weigh the evidence carefully, and to 

find for the party in whose favor it preponderates.” Lilienthal's Tobacco v. United States, 97 U.S. 

237, 266 (1877).14 

14 “What is the most acceptable meaning of the phrase, proof by a preponderance, or 

greater weight, of the evidence? Certainly the phrase does not mean simple volume of evidence 

or number of witnesses. One definition is that evidence preponderates when it is more 

convincing to the trier than the opposing evidence. This is a simple commonsense explanation 

which will be understood by jurors and could hardly be misleading in the ordinary case.” 2 

McCormick On Evid. § 339 (7th ed.), emphasis mine. Indeed the notion of justice being an 

assessment by weighing has ancient roots, extending at least as far back as the Iliad’s Book 

XXII: “Then, at last, as they were nearing the fountains for the fourth time, the father of all 

balanced his golden scales and placed a doom in each of them, one for Achilles and the other for 

Hektor.” HOMER, THE ILIAD, BOOK XXII, trans. Samuel Butler, 1898. 

37 FMSHRC Page 2450
While the Secretary must prove the elements of a citation by a preponderance of the 

evidence, this Court’s factual determinations must be supported by substantial evidence.15 The 

Commission has recognized out-of-court statements may constitute substantial evidence. MidContinent Res., Inc., 6 FMSHRC 1132, 1135-37 (May 1984). 

The Hearsay Evidence Presented By the Secretary was Not Sufficiently Probative 

or Trustworthy so as to Support a Finding of a §56.11001 Violation 

It is undisputed that Inspector Villahermosa did not personally witness any miner or 

miners improperly climbing upon the conveyor to gain access to the main conveyor belt 

assembly and/or being unable to safely access the greasepoint at issue. Tr. 101. Rather, in issuing 

his citation, Villahermosa primarily relied upon the alleged hearsay statements of P.A.G. miner, 

Isaias Delgado. Tr. 28-9. Thus, this Court is confronted with the critical question as to whether 

the Secretary has been able to carry his burden of proof by relying upon the alleged out-of-court 

statements of Isaias Delgado. 

The alleged oral statements of Delgado appear to meet the classic definition of hearsay: 

an out-of-court declaration that a party offers to prove the truth of the matter asserted. FED. R.

EVID. 801(c). 

Although Commission procedural rules explicitly allow for the admission of hearsay 

evidence, this Court does harbor reservations regarding the use of such to serve as the primary 

basis to support a finding of a mandatory safety standard violation. Nonetheless, as noted supra, 

the Commission has held properly admitted hearsay evidence, deemed to be sufficiently relevant 

and material in nature, and the reasonable inferences drawn from such, may constitute substantial 

evidence so as to uphold an ALJ’s finding of violation. See Mid-Continent Res., Inc., 6 

FMSHRC 1132. See also Sec. of Labor v. R.E.B., 20 FMSHRC 203, 206 (Mar. 1998) (regarding 

the Court’s obligation to determine whether hearsay evidence is reliable and entitled to any 

probative weight.) 

This Court has carefully considered the Commission’s directives in Mid-Continent in 

evaluating the hearsay evidence presented by the Secretary in the case sub judice and is 

constrained to find that such evidence was not “surrounded by adequate indicia of probativeness 

and trustworthiness” so as to be able to sufficiently support a finding of violation. See MidContinent, at 1136. 

15 When reviewing the finding of fact by a lower court, the Commission will decline to 

disturb the determination if is supported by substantial evidence. Wolf Run Mining Co., 32 

FMSHRC 1669, 1687 (Dec. 2010), U.S. Steel Mining Co., 8 FMSHRC 314, 319 (Mar. 1986). 

This test of factual sufficiency has been a part of Commission jurisprudence since its inception, 

required by the plain text of the Mine Act itself. 30 U.S.C. § 823(d)(2)(A)(ii)(I). Substantial 

evidence has been described by the Commission as “such relevant evidence as a reasonable mind 

might accept as adequate to support [the judge's] conclusion.”Rochester & Pittsburgh Coal Co., 

11 FMSHRC 2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 

229 (1938)).

37 FMSHRC Page 2451
The Commission in Mid-Continent rejected a per se rule that evidence may not be 

considered to be substantial for purposes of review merely because it bears a hearsay label. 

Rather, the Commission held that the underlying probative value of the hearsay evidence had to 

be carefully evaluated against various case specific factors: 

Although no single test can be established to evaluate the role of hearsay in determining 

whether substantial evidence supports a judge's finding, we measure the probative value 

of such evidence by weighing it against various factors, which, when added together, may 

tip the scale for or against a determination that substantial evidence is present. For 

example, we look to whether the out-of-court declarant, whose statement is reported at 

the hearing by another, had an interest in the outcome of the case and thus a reason to 

dissemble. Richardson v. Perales, 402 U.S. at 402–03. We also examine whether the outof-court statement rests on personal knowledge gained from firsthand experience. 402 

U.S. at 403. If there is more than one reported statement, we inquire whether the 

statements are consistent. 402 U.S. at 404. We also find significant whether the party 

against whom the statement was used exercised the right of subpoena so as to crossexamine the out-of-court declarant. 402 U.S. at 404. We likewise determine whether the 

making of the statement was denied or whether its contents were declared untrue. And we 

examine the content of any contradictory or corroborating evidence. School Board of

Broward County, Florida v. H .E.W., 525 F.2d 900, 907 (5th Cir.1976). Our aim is to 

determine if, given all of these factors, there is “such relevant evidence as a reasonable 

mind might accept as adequate to support [the judge's] conclusion.” Consolidated Edison 

Co. v. NLRB, 305 U.S. 197, 229 (1938). 

Mid-Continent Res., Inc., 6 FMSHRC 1132, 1136-37, 1984. 

 In Mid-Continent, the ALJ permitted testimony regarding out-of-court declarations made 

by a mine foreman to two MSHA Inspectors concerning the improper installation by an 

unqualified individual of a cover plate which was part of a causative chain leading to an 

explosion and the Court primarily relied upon such hearsay evidence in concluding that there had 

been a violation of a mandatory safety standard. No contrary evidence was presented by the mine 

operator. 

The hearsay evidence presented sub judice was far more problematic. 

The out-of-court declarant in Mid-Continent was a foreman, presumed to know what he 

and his miners were doing. See Mid-Continent, at 1137. As discussed intra Delgado was a rank 

and file miner with a limited education and no supervisory role. 

 In Mid-Continent the out of court declarant had not been subpoenaed by the operator to 

rebut at hearing what he was reported to have said by the inspectors. Mid-Continent, at 1137. As 

discussed infra, Delgado appeared and testified on behalf of the Respondent, not endorsing 

Villahermosa’s version of their conversation. 

 In Mid-Continent, there were two inspectors who gave consistent testimonial accounts as 

to what the out-of-court declarant purportedly said. Here, Villahermosa had no such fellow 

37 FMSHRC Page 2452
corroborating inspector nor any other witness supporting what he had allegedly heard Delgado 

say. 

 In Mid-Continent, the Respondent essentially did not defend against the Secretary’s 

evidence that an unqualified person had installed the coverplate. In the case sub judice the 

operator mounted a vigorous defense of the citation that there was unsafe access, offering both 

testimony and photographic evidence that miners could safely access the conveyor pulley by 

means of guarded stair-wells and safely grease the pulley by standing on an adjoining platform. 

Tr. 182-5, 188-9. 

 In Mid-Continent, the fact that an explosion had taken place not only raised an inference 

of a possible safety violation but, given that the explosion was fatal in nature, understandably 

raised questions regarding the Respondent’s witnesses’ willingness to be altogether forthcoming. 

See Mid-Continent at 1138. There were no such compelling circumstances impacting upon 

Respondent’s witnesses’ willingness to tell the truth. 

Delgado’s Out of Court Statements 

 In his brief, the Secretary suggests that Delgado’s statements were not hearsay but were 

admissible non-hearsay pursuant to sections 801(d)(2)(A) and (D) of the Federal Rules of 

Evidence.16 Given the above cited Commission case law allowing for the admission of hearsay 

evidence, such evidentiary distinction may be of little import. However, this Court observes that 

the commentary to Rule 801 states that “the hearsay problem arises when the witness on the 

stand denies having made the statement or admits having made it but denies its truth.” See

subdivision D, FED. R. EVID. 801(d)(2). 

 This is, of course, precisely what took place at hearing. Delgado denied ever having made 

the incriminating statements or denied the veracity of such. Tr. 102-3. Thus, the question of 

whether Delgado had in fact admitted to Villahermosa that he had accessed the head pulley by 

climbing onto and walking on the main conveyor belt becomes a critical factual issue for this 

Court to decide. 

 At hearing, Villahermosa, under questioning by this Court, acknowledged that he had not 

secured an affidavit from Delgado attesting to such unsafe access nor did he have Delgado sign 

or initial any written statement confirming such. Tr. 120. This Court notes that such written 

evidence would have substantially supported Villahermosa’s version of events and the lack of 

such evidence further weakened the Secretary’s case. 

 Moreover, Villahermosa also contended that he had memorialized Delgado’s admissions 

in his general field notes. GX-2, at 8. At hearing the Secretary proffered an “enhanced 

photocopy” of page 3 of Villahermosa’s field notes wherein it was indicated that Delgado had 

reportedly “stated that he climbed up the main conveyor to reach the head pulley for 

maint[enance].” Tr. 140. Respondent’s counsel objected to the admission of the enhanced field 

 16 In Mid-Continent, the Commission drew no distinctions in its analysis of 

“trustworthiness” of the out-of-court declaration between hearsay and a non-hearsay exception. 

37 FMSHRC Page 2453
note because the photocopy of Exhibit P-2 supplied to her in discovery did not legibly reveal this 

alleged statement. This Court attempted to align both the enhanced photocopy presented at 

hearing and the unenhanced photocopy supplied to Respondent in discovery without success. See

CX-1 and CX-2, which are photocopies, enhanced and non.17 Tr. 140-8. To ensure that the

enhanced photocopy was an accurate depiction of the inspector’s original field notes, and, was in

no way the result of tampering or alteration, this Court requested that the Secretary secure the

original field note from MSHA. Tr. 148. Subsequent to the hearing, however, Secretary’s

counsel advised this Court that an exhaustive search had failed to uncover the original field note

which possibly had been mislaid or discarded in error. CX-3. Accordingly, the Secretary would

only be referring to the inspector’s testimony regarding his conversation with Delgado. CX-3.

That such a critical piece of corroborative evidence went missing is troubling. However, 

this Court declines to speculate whether this absent evidence was due to incompetence, mischief, 

or just plain bad luck. Whatever the reason, the lack of a corroborative original field note further 

damaged the Secretary’s case. 

At hearing, Delgado took abnormal lengths of time to respond to questions. He had 

limited formal schooling, and appeared susceptible to suggestion or intimidation. His answers 

were halting and simple, suggesting he had some difficulty understanding much of the 

proceedings.18 Despite the lengthy direct and cross-examinations of Delgado, this Court remains 

uncertain as to what this witness actually said or meant to say on the date in question. 

Considering Villahermosa’s failure to memorialize Delgado’s statements via written attestation, 

the disappearance of Villahermosa’s original field notes, Delgado’s repudiation of the alleged 

statements, Villahermosa’s lack of observation of any cited unsafe activity -- this Court declines 

to give much probative weight to Delgado’s alleged out-of-court statement.19 

Moreover, the Secretary’s reliance upon such evidence raises, in this Court’s mind, 

troubling questions regarding the Respondent’s rights to due process. 

17 Court attachments 1, 2, and 3 are, respectively: Villahermosa’s field notes as given to 

Respondent in discovery, the Secretary’s enhanced photocopy of Villahermosa’s field notes, and 

a letter from the Secretary described in detail infra. These attachments are part of the record. 

18 Regardless of Delgado’s limitations, answering some of the questions offered at 

hearing by Respondent’s counsel would have proved challenging even for an experienced 

litigant. See, for example, the exchange at Tr. 240-1. 

19 For a comparable case, consider Hoska v. U.S. Dep’t of the Army, 677 F. 2d 131, D.C. 

Cir., 1981. In Hoska a civilian employee of the Department of the Army was terminated when 

accused of on-the-job improprieties. The Department of the Army supported its decision by 

relying “almost entirely on unsubstantiated hearsay evidence.” Hoska, at 282. Conversely, 

Hoska, the terminated employee, bitterly maintained his innocence of all charges. The D.C. 

Circuit found Hoska’s resistance, along with the failure of the Department of the Army to 

produce any substantial evidence beyond out-of-court statements, persuasive, and decided in 

Hoska’s favor. Hoska, at 292-4. 

37 FMSHRC Page 2454
There is a vast and growing body of law dealing with rights of the criminally accused visa-vis alleged confessions and admissions. Such criminal jurisprudence may not be directly 

applicable to cases arising out of the Mine Act. However, many of the constitutional, due 

process, and evidentiary considerations articulated in such jurisprudence would appear relevant 

to the present controversy. For over a century, federal courts have recognized that “[t]he 

fundamental requisite of due process of law is the opportunity to be heard.” Grannis v. Ordean, 

234 U.S. 385, 394 (1914). Recent history has seen a growing body of due process jurisprudence, 

born out of the recognition that the power of the state- in all its forms, civil or criminal- must be 

balanced against the individual’s right to defend against deprivation. See, e.g., Goldberg v. Kelly, 

397 U.S. 254 (1970), Wheeler v. Montgomery, 397 U.S. 280 (1970), Ortwein v. Schwab, 410 

U.S. 656 (1973), Mathews v. Eldridge, 424 U.S. 319 (1976), et. al. Since Goldberg, federal 

courts have viewed due process considerations as not solely the province of the criminal sphere, 

reasoning that deprivations of property also triggered such protections in the civil context. These 

considerations have their roots in the jurisprudence of criminal law. 

For example, the “corpus delicti” (Latin for “body of the crime”) is an evidentiary rule 

that requires the prosecution, in a criminal case, to produce evidence that a crime has been 

actually committed before the statements of the accused can be admitted as evidence of guilt. 

This rule is traced back to the infamous Perry’s Case in England. 14 How. St. Tr. 1311 (1660). 

A John Perry had reportedly implicated himself, his brother, and his mother in the murder of an 

individual who had mysteriously disappeared, leaving behind only a “hacked and bloody hat.” 

Sometime after the three family members were hanged, the purported victim turned up, alive and 

well, claiming he had been kidnapped by Turkish pirates and enslaved before eventually 

escaping. This case is better known in the United Kingdom as “the Campden Wonder.” 

In response to this and other similar miscarriages of justice, both English and American 

courts developed the corpus delicti rule to guard against “the hasty and unguarded character 

which is often attached to confessions and admissions and the consequent danger of a conviction 

where no crime has in fact been committed.” Com. v. Turza, 340 Pa. 128, 134 (1940). See also In 

re Flodstrom 134 Cal. App. 2d 871 (1954). 

While many courts have now abandoned strict application of the corpus delicti rule in 

favor of a “trustworthiness” approach, courts still require that the government must introduce 

substantial evidence which would tend to establish the trustworthiness of the defendant’s 

statement. Opper v. United States, 348 U.S. 84 (1954). 

The corpus delicti rule is reflected in the above cited Commission case law that likewise 

directs this Court to employ a “trustworthiness” test in evaluating the Secretary’s offered hearsay 

evidence as to Delgado’s alleged incriminatory statements. 

Given the total circumstances, this Court can only speculate as to whether Delgado had 

actually made the inculpatory statements or not.20 Such hearsay evidence is too thin of ice upon 

which to base a finding of a violation. 

 20 “Where there is room for question, something is wrong.” – Jewish folk saying. JOSEPH 

L. BARON, A TREASURY OF JEWISH QUOTATIONS. 

37 FMSHRC Page 2455
Disregarding Delgado’s Out-of-Court Declarations, There Was Insufficient 

Evidence Presented to Uphold the Citation 

In his brief, the Secretary argues that a reasonable operator in Frias’s position would have 

immediately disputed the validity of the violation with Villahermosa at the time of the citation’s 

issuance and that Frias’s failure to do so would constitute additional evidence to uphold the 

citation. Sec’y’s Br., at 5-6, 8. The Secretary essentially advanced a similar argument as to 

Frias’s continued silence about the accuracy of the allegations in the citation at issue when he 

met with Villahermosa’s supervisor, Luis Valentín, months later to discuss an unrelated citation. 

In asserting such, the Secretary is advancing the old “silence is affirmation” argument.21

Of course, if this mine operator stood accused of criminal wrongdoing, such an argument would 

fly in the face of a vast body of law protecting an individual’s Fifth Amendment rights against 

self-incrimination, including the right to remain silent. The Secretary cited no statutory or 

Commission case law for the proposition that under the Mine Act a miner operator’s silence at 

the time of citation issuance or thereafter should be considered to be evidence of violation or 

create an adverse inference regarding such. 

At hearing, the Respondent essentially argued that it would have been an adventure in 

futility to have attempted to dissuade Villahermosa. Tr. 167. This Court has repeatedly heard 

similar explanations from various mine operators for their silence in other cases: they did not 

actively dispute the issuance of citations at the scene because either they already knew the 

futility of such or they feared that any argument would merely inflame the inspector. While there 

might be a set of particular case circumstances where silence could arguably suggest affirmation 

of violation, this Court does not believe such exists here.22 

21 See the Latin proverb, “Qui tacet consentire videtur,”: he who is silent is considered to 

agree. 

22 In Robert Bolt’s classic 1966 film “A Man for All Seasons,” Cromwell’s exchanges 

with Sir Thomas More illustrate the problematic nature of construing silence as consent:

Cromwell: Now, Sir Thomas, you stand on your silence. 

Sir Thomas More: I do. 

Cromwell: But, gentlemen of the jury, there are many kinds of silence. Consider first the 

silence of a man who is dead. Let us suppose we go into the room where he is laid out, and we 

listen: what do we hear? Silence. What does it betoken, this silence? Nothing; this is silence pure 

and simple. But let us take another case. Suppose I were to take a dagger from my sleeve and 

make to kill the prisoner with it; and my lordships there, instead of crying out for me to stop, 

maintained their silence. That would betoken! It would betoken a willingness that I should do it, 

and under the law, they will be guilty with me. So silence can, according to the circumstances, 

speak! Let us consider now the circumstances of the prisoner's silence. The oath was put to loyal 

subjects up and down the country, and they all declared His Grace's title to be just and good. But 

when it came to the prisoner, he refused! He calls this silence. Yet is there a man in this court - is 

there a man in this country! - who does not know Sir Thomas More's opinion of this title? 

(continued...) 

37 FMSHRC Page 2456
In his brief the Secretary further suggests that Respondent’s abatement of the violation on 

the same date it was cited constituted corroborative evidence to uphold the violation. Sec’y’s 

Post Trial Reply Br., at 6. 

It is clear that an operator’s demonstrated good faith in attempting to achieve rapid 

compliance after notification of violation should be considered in determining the penalty 

amount to be assessed. See, inter alia, §100.3(a)(1)(V). This Court, however, does not find that 

Respondent’s speedy cooperation in abating the cited unsafe access condition(s) to be further 

evidence that a violation, in fact, existed. Some acts of abatement- dependent upon the particular 

circumstances of a case- may well be indicative of the existence of a violation. But not every act 

of abatement necessarily constitutes evidence of a violation. 

Frias essentially testified at hearing that the purchase and installment of the greaserextensions was a relatively minor affair that could be performed rapidly and inexpensively. Tr. 

157. Rather than risk further citations and/or orders by further debating the matter with an

obviously adamant Villahermosa, Frias chose the prudent course of quickly installing extensions,

even if they were unneeded, to mollify the inspector.23 Tr. 157. At hearing, Frias credibly

testified that miners standing on the platform- as depicted in RX-4- were able to safely grease the

head pulley without the necessity of an extension. RX-4.

This Court found Frias to be quite sincere and credible in his explanations at hearing and 

therefore finds that the abatement in this case’s context did not constitute proof of violation, 

either inferentially or directly. 

The Photographic Evidence Presented Appears to Support Either Party’s Position 

Much of this controversy has turned on the arrangement of the conveyor’s walkway and 

placement of platform at the time of the citation. Photographs have been moved into evidence by 

22 (...continued) 

Crowd in court gallery: No! 

Cromwell: Yet how can this be? Because this silence betokened, nay, this silence was, 

not silence at all, but most eloquent denial! 

Sir Thomas More: Not so. Not so, Master Secretary. The maxim is "Qui tacet 

consentire": the maxim of the law is "Silence gives consent". If therefore you wish to construe 

what my silence betokened, you must construe that I consented, not that I denied. 

Cromwell: Is that in fact what the world construes from it? Do you pretend that is what 

you wish the world to construe from it? 

Sir Thomas More: The world must construe according to its wits; this court must 

construe according to the law. 

A Mᴀɴ Fᴏʀ Aʟʟ Sᴇᴀsᴏɴs (Columbia Pictures 1966). 

23 This Court has heard similar rationales advanced by operators in describing their 

abatement efforts in numerous cases, some of which were credible and some not. 

37 FMSHRC Page 2457
both parties, who each allege their photographs support their theory of the case. Given the 

testimonial contradictions existent in the case, some description of the photographs is necessary. 

The Respondent’s six photographs appear to depict safe access to the conveyor’s greasepoint. 

RX-1-6. Three photographs depict P.A.G. employees engaged in greasing maintenance with 

apparent safe access. RX-3-4, 6. Two depict P.A.G. employees mounting the platform in order to 

access the greasepoint. RX-1-2. Finally, one photograph depicts a tape measurer, appearing to 

show the greasepoint’s height, measured at 5 feet. The Respondent maintained at hearing that 

these photographs accurately depicted the conveyor/platform on April 12, 2013 when the 

Secretary issued its unsafe access citation. Tr. 182-5. 

The Secretary’s photographic evidence is described in detail supra in the Summary of 

Facts and Testimony. The photographs taken by Villahermosa are cropped or framed in such a 

way as to make determination of the violation by examination of such – even in their enlarged 

formats – extremely problematic. The first photograph shows only the bottom of the conveyor 

itself, setting aside Villahermosa’s stated reasons for taking said photograph. GX-2, at 13. The 

second photograph merely shows the incline of the conveyor from below, rendering the viewer 

unable to discern a safe access or, for that matter, an unsafe access. GX-2, at 13. Finally, the 

third photograph shows the greasepoint itself, at close range, with no view of the arrangement of 

the platform or the platform’s actual distance from the conveyor’s greasepoint. GX-2, at 13. 

MSHA inspectors are not expected to possess a professional’s proficiency in 

photography, nor should citations fail solely because of inartful photographic framing. However, 

in none of Villahermosa’s photographs can the Court discern evidence of a safe access violation. 

The pictures fail to show the position of the platform, and whether that platform extended out 

and around the conveyor to permit safe access to the backside greasepoint on the pulley head. 

The pictures also fail to depict any P.A.G. employee climbing up the conveyor belt. Even 

accepting that all three photographs accurately depict the conveyor on the date of the citation, 

they do not fully support the Secretary’s assertion that there was unsafe access. 

The photographic evidence arguably supports either party’s position. At hearing, 

Villahermosa himself was unable to say with certainty whether the Respondent’s photographs 

accurately depicted the conveyor as it stood on the date of citation. Tr. 340-1. This Court has 

compared all photographic evidence and concludes that Villahermosa’s photographs and the 

Respondent’s photographs could, together, depict the conveyor accurately. Because 

Villahermosa’s photographs are so framed in their depiction of the conveyor’s setup, they appear 

to differ from the Respondent’s in only one pertinent respect: the Respondents’ photographs 

depict the greasehoses installed by way of abatement. In all other respects the two sets of 

photographs can be reconciled together. Therefore the Secretary’s photographs, as proffered, 

may or may not depict unsafe access and as such this Court finds they do not constitute 

persuasive evidence to support an unsafe access violation. 

The Secretary’s Alleged Corroborative Evidence Is Not Supportive of a Finding 

of Violation 

 As discussed supra Villahermosa did not actually witness any miner placing himself at 

risk in attempting to grease the pulley. In his Post-Trial Brief, the Secretary argues that the 

37 FMSHRC Page 2458
citation is supported by additional corroborative evidence. The Secretary contends this evidence 

can support the citation even without admitting Isaias Delgado’s out-of-court statement. Sec’y’s 

Post-Trial Br., at 9-11. 

The Court finds that none of the Secretary’s cited corroborative evidence, singly or in 

toto, constitutes persuasive evidence of violation. This Court will address the Secretary’s 

arguments regarding such seriatim. 

The Secretary’s first piece of corroborative evidence is essentially a summary of 

Villahermosa’s own testimony: Villahermosa opined that the walkway did not provide a 

continuous, safe access to the greasepoint. Sec’y’s Post-Trial Br., at 9. This contention was, as 

noted supra, contradicted by Frias who ridiculed the idea that someone would climb upon the 

beltway and need to bend over in an awkward position to grease the pulley and who further 

testified that his miners were able to easily access the greasepoint from a standing position on the 

adjoining platform. Tr. 190, 182. 

The second is another hearing assertion of Villahermosa’s. Sec’y’s Post-Trial Br., at 9. 

Inspector Villahermosa estimated the distance between the greasepoint and the walkway’s 

terminus was roughly three to four feet. Sec’y’s Post-Trial Br., at 9. However, he took no actual 

measurement of the distance between where a miner would be standing up against the rail and 

reaching with a greasegun toward the greasepoint. Tr. 60. Frias, as noted supra, testified that 

miners were able to safely grease the pulley with grease guns without need of an extension. Tr. 

182. 

The third, fourth, and fifth pieces of corroborative evidence are again assertions of 

Villahermosa’s. Sec’y’s Post-Trial Br., at 10. All three concern the alleged statements made and 

actions taken of Isaias Delgado while in the presence of Inspector Villahermosa. Sec’y’s PostTrial Br., at 10. Delgado denied at hearing any actions or statements that would support a finding 

of violation. Tr. 209, 213. This Court considered this evidence at length supra and finds it to be a 

problematic basis for the citation at issue.24

The sixth piece of corroborative evidence is essentially the same “silence is affirmation” 

argument already advanced by the Secretary and discounted by this Court. Sec’y’s Post-Trial Br., 

at 10. 

The seventh piece of evidence is a fact summary that implies an operator’s efforts at 

abatement constitutes proof of a violation. Sec’y’s Post-Trial Br., at 10. As noted supra, the fact 

that Frias abated the violation pursuant to the instructions of Inspector Villahermosa could just as 

easily have been an effort to mollify Villahermosa as it could have been an effort to abate a 

24 This Court acknowledges that an inspector’s testimony, standing alone, may constitute 

sufficient evidence to prove the existence of a safety violation – if such testimony is found to be 

reliable – see, inter alia, Harlan Cumberland Coal Co., 20 FMSHRC 1275, 1278-9 (Dec. 1998) 

(holding that the opinion of an investigator that a violation is S&S is entitled to substantial 

weight). However, as discussed herein, Villahermosa’s testimony was based upon alleged out-ofcourt declarations that this Court finds to be unreliable and untrustworthy in nature, and based 

upon observations by Villahermosa that were credibly and persuasively rebutted by Calixto 

Frias. 

37 FMSHRC Page 2459
violation. Moreover, Commission precedent has long held that the method of abatement cannot 

prove, or disprove, the validity of a citation: “the method of abatement is not determinative of the 

existence of a violation. See also Asarco Mining Co., 15 FMSHRC 1303, 1309 (July 1993) 

(method of abatement not before Commission in a contest proceeding); U.S. Steel Mining Co., 6 

FMSHRC 2305, 2308 n.6 (Oct. 1984) (judge's discussion of abatement method in resolving 

merits of S&S finding was error). In short, the manner of abatement is not pertinent to the 

existence of a violation.” Secretary of Labor v. Western Industrial Inc., 25 FMSHRC 449, 453, 

(Aug. 2003). 

The eighth, ninth, tenth, and eleventh pieces of evidence are a collection of what might be 

termed “missed opportunities,” wherein Frias could have challenged the citation’s validity during 

or after its issuance. This summary is surely meant to imply that Frias’s silence or inaction is 

evidence of violation. Sec’y’s Post-Trial Br., at 10-11. This is again unpersuasive to the Court. 

As noted by the Respondent, the Secretary’s additional corroborative evidence, taken together, 

constitutes recapitulation and not corroboration.25 Resp’t’s Reply Brief, at 5. This Court declines 

to draw adverse inferences against the Respondent from evidence presented by the Secretary 

which is so problematic in nature. This Court finds the Secretary’s additional corroborative 

evidence is not sufficiently probative or reliable so as to constitute substantial evidence. 

The evidence and arguments presented by the Secretary are unpersuasive. As such, the 

Secretary has not carried his burden by the preponderance of the evidence. Therefore, the Court 

finds that the citation at issue should be vacated.26 

ORDER

Accordingly, it is hereby ORDERED that Citation No. 8723601 is VACATED. 

/s/ John K. Lewis 

John Kent Lewis 

Administrative Law Judge 

25 Technically, this sort of reasoning would fall under the fallacy of “proof by assertion.” 

MARCUS TULLIUS CICERO, DE NATURA DEORUM (H. Rackham, trans., Harvard University Press 

1933) (45 BCE). 

26 For this reason the Court makes no finding regarding the significant and substantial 

(S&S) determination made by Inspector Villahermosa, nor the operator’s alleged degree of 

negligence. 

37 FMSHRC Page 2460
Distribution: 

Terrence Duncan, Esq., U.S. Department of Labor, Office of the Solicitor, 201 Varick Street, 

Room 983, New York City, New York, 10014 

Damaris Delgado-Vega, Esq., Ortiz & Ortiz, 470 Avenida Cesar L. Gonzalez, Urbanizacion 

Roosevelt, San Juan, Puerto Rico, 00918 

37 FMSHRC Page 2461
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

721 19th STREET, SUITE 443 

DENVER, CO 80202-2536 

TELEPHONE: 303-844-5266 / FAX: 303-844-5268 

October 28, 2015 

DECISION

Appearances: Daniel Brechbuhl, United States Department of Labor, Office of the 

Solicitor, Denver, Colorado, for Petitioner; 

Dell Kempton, Kempton Transport Inc. Phoenix, Arizona for Respondent. 

Before: Judge Miller 

This case is before me upon a petition for assessment of a civil penalty under section 

105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815(d). These dockets 

involve nine citations with a total proposed penalty of $1,252.00. The Respondent has indicated 

that his objection to the citations is that he is not subject to the jurisdiction of the Mine Act. The 

parties presented testimony and evidence regarding the jurisdiction issue and the citations at a 

hearing held in Phoenix, Arizona, on October 21, 2015. 

I. FINDINGS OF FACT AND CONCLUSIONS OF LAW

Kempton Transport, Inc., is a closely held corporation with its principle place of business 

in Mesa, Arizona. At the time these citations were issued, Kempton trucks were working at the 

West Side Pit, a sand and gravel operation located in Mesa County, Arizona. Kempton routinely 

provides trucking services at various locations for M.R. Tanner companies, including M.R. 

Tanner mining, the owner of the West Side Pit. Mr. Kempton was approached by Tanner to load 

gravel and other material at a new construction area near the end of the runway at the small 

Glendale airport. There was no written contract, but the parties agreed to a price to have the 

Kempton trucks load sand and gravel at the airport site and transport it across the road to a 

crusher operation and unload the material at either a stock pile or at the crusher. Tanner 

employees loaded the material, and Kempton drivers transported the material. Kempton 

described the material as “native material” and agreed it was rock, sand and gravel, and dirt.

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), 

Petitioner, 

 v. 

KEMPTON TRANSPORT, INC., 

Respondent. 

 CIVIL PENALTY PROCEEDINGS 

Docket No. WEST 2014-998 

A.C. No. 02-03107-359253 B0279

Docket No. WEST 2015-20 

A.C. No. 02-03107-362302

Mine: West Side Pit 

37 FMSHRC Page 2462
Kempton explained that the pit area near the end of the runway was not yet developed, 

but that Kempton was hired for the construction project. The project was construction of a sand 

and gravel pit at the end of and below the level of the runway. Each of the large Kempton trucks 

was weighed after loading at this construction site, and then traveled the half mile to dump the 

material at the Tanner crushing location. 

Kempton owns and operates fourteen trucks, four of which were assigned to work on this 

project for Tanner. Kempton often works for Tanner, and often hauls material between pits and 

crushers, as well as from pit to pit for various sand and gravel operations. Kempton has not been 

issued a citation in the past and the drivers at this pit received the required site-specific training. 

They had not received new miner training. 

Kempton began the job hauling from the pit construction area to the crusher in June 2014. 

The Inspector issued the nine citations at issue here in July 2014. Kempton continued on the job 

until September 2014, when his trucks were committed to work elsewhere. During the three 

months that Kempton worked on this job, his trucks were at the pit and crusher five days a week, 

for an average of eight hours per day. Each truck made about 30 roundtrips per day between 

loading at the pit and dumping at the crusher. 

Kempton argues that it was not an “operator” as defined by the Mine Act since it was 

only on the property for this job, which was considered a part of the construction of the pit, and 

not a part of any mining operation. The Secretary argues that Kempton worked as a 

subcontractor at the sand and gravel operation and therefore was an operator subject to the 

provisions of the Mine Act. For the reasons that follow, I find that Kempton is a subcontractor 

working at the mine site and an operator, subject to the jurisdiction of the Mine Act. 

The Mine Act’s definition of “operator” contemplates production-operators and 

independent contractors “performing services or construction at such mine.” Berwind Nat’l 

Resources Corp., 21 FMSHRC 1284, 1293 (Dec. 1999)). Kempton asserts that it is not an 

independent contractor as contemplated by the Act because it had no written contract, it was 

involved only in construction work as the mine was not yet developed, and it engaged in hauling 

between the pit and crusher for only a short period of time. The Secretary argues that a written 

contract is not necessary and that since Kempton was hauling sand and gravel from one area to 

the crusher to be processed, it was an independent contractor subject to the provisions of the Act. 

While the Act does not define “independent contractor,” the Secretary’s regulations 

define an “independent contractor” as an entity “that contracts to perform services or 

construction at a mine.” 30 C.F.R. § 45.2(c). In Joy Technologies Inc., the Commission decided 

that, in determining whether an entity is an independent contractor, the “focus is on the actual 

relationships between the parties, and is not confined to the terms of [the parties’] contracts. . . . 

[T]he determination of whether a party is properly designated to be within the scope of section

3(d) of Act is not based upon the existence of a contract, nor the terms of such a contract.” 17

FMSHRC 1303, 1306 (Aug. 1995) (quoting Bulk Transportation Services, Inc., 13 FMSHRC

1354, 1358 n.2 (Sept. 1991)), aff’d, 99 F.3d 991 (10th Cir. 1996).

37 FMSHRC Page 2463
The undisputed facts establish that Kempton had an agreement with Tanner to provide 

hauling services for Tanner, specifically from the new pit near the airport to the crushing 

operation about half a mile away. Kempton provided the trucks and the drivers and in return was 

paid a sum for the work. Clearly, and although not written, the parties had an agreement for work 

and an unwritten, verbal contract. 

In 1989, the Commission addressed the issue of “operator” liability pursuant to the 

“independent contractor” clause of Section 3(d) in two Otis Elevator Company decisions, Otis 

Elevator Co., 11 FMSHRC 1896 (Oct. 1989) (hereinafter “Otis I”) and Otis Elevator Co., 11 

FMSHRC 1918 (Oct. 1989) (hereinafter “Otis II”). In Otis I, the Commission explained that 

“Section 3(d) [of the 1977] Mine Act expanded the definition of ‘operator’ under . . .[the 1969 

Coal Act] to include ‘any independent contractor performing services or construction at such 

mine.’” 11 FMSHRC at 1900. “[T]he goal of Congress, in expanding the definition of ‘operator’ 

. . . to include ‘independent contractors,’ was to broaden the enforcement power of the Secretary 

so as to reach not only owners and lessees but a wide range of independent contractors as well.” 

Id. at 1900-1901. However, the Commission noted that, in analyzing an independent contractor’s 

contacts with the mine, “not all independent contractors are operators under the Mine Act, and 

that ‘there may be a point, at least, at which an independent contractor’s contact with a mine is so 

infrequent or de minimis that it would be difficult to conclude that services were being 

performed.’” Id. (quoting National Industrial Sand Ass’n, 601 F.2d 689, 701 (3d Cir. 1979)). 

 In its Otis decisions, the Commission outlined a two pronged test for determining 

whether an entity is an “operator” pursuant to the “independent contractor” clause of Section 

3(d) of the Mine Act. First, one must examine the subject entity’s “proximity to the extraction 

process” and whether that entity’s work is “sufficiently related” to that process. Otis I, 11 

FMSHRC at 1902. In Otis I, the Commission determined that the independent contractor, an 

elevator service contractor, satisfied this prong of the test because its employees “were working 

in the center of mining activities while servicing equipment essential to the mining process, were 

exposed to mining hazards, and had a direct effect on the safety of others because of their 

exclusive control over the safety of the mine elevators[.]” Id. Here, Kempton employees were 

driving large haul trucks on the mine property to be loaded with material, then driving them to a 

second, separate mine site to unload the material to be crushed and processed. I find the activity 

to be sufficiently proximate to the extraction process, as, like in Otis I, the trucks are in the 

center of the mining activity. Next, the Kempton employees’ work was sufficiently related to the 

process of removing the sand and gravel and transporting it to a related site for processing. The 

Kempton drivers were exposed to mining hazards and had a direct effect on the safety of others 

because of their exclusive control over the operation of the haul trucks. 

The second prong of the Otis test requires an examination of “the extent of [the entity’s] 

presence at the mine.” Otis I, 11 FMSHRC 1896, 1902 (Oct. 1989). In Lang Bros., Inc., 14 

FMSHRC 413, 420 (Sept. 1991), the Commission stated that “[a]n independent contractor's 

presence at a mine may appropriately be measured by the significance of its presence, as well as 

by the duration or frequency of its presence.” I find that Kempton and its employees had an 

extensive presence at the mine. While Tanner employees extracted the sand and gravel and 

loaded the mined material onto the trucks, Kempton trucks and drivers controlled the next phase 

of moving the material to the crusher. They did this five days a week for eight hours a day over 

37 FMSHRC Page 2464
the entire term of the contract. In Joy Technologies Inc., the Commission found that substantial 

evidence supported the ALJ’s finding that an independent contractor spending six days at the 

mine over a two and a half month period, along with an expectation that such contact would 

continue, satisfied the second prong of the Otis test. 17 FMSHRC at 1308; see also Lang Bros., 

Inc., 14 FMSHRC an413 (Sept. 1991) (sufficient presence found when contractor was present 

seven to ten days on a non-continuing basis) and Otis I, 11 FMSHRC 1896 (Oct. 1989) 

(sufficient presence found when contractor was present six hours per month). I find that the 

presence of Kempton drivers and trucks each day amounts to a sufficient and significant 

presence at the mine. Accordingly, I find that the Secretary has satisfied the second prong of the 

Otis test and that Kempton is an independent contractor. 

The parties stipulated at hearing, that if it is found that MSHA has jurisdiction over the 

Kempton trucks, then there is no further dispute and the citations are admitted as issued. 

Therefore, I find that the nine citations contained in these two dockets demonstrate the violations 

and conditions as described in each document. However, after listening to the testimony of Mr. 

Kempton, I find that he had a good faith belief that the drivers operating the trucks were not 

required to have new miner training. Therefore, I reduce the negligence in Citation Nos. 8829835 

and 8829836 to low and reduce the penalty accordingly to $100.00 for each violation. 

II. PENALTY

The principles governing the authority of Commission administrative law judges to 

assess civil penalties de novo for violations of the Mine Act are well established. Section 110(i) 

of the Mine act delegates to the Commission and its judges “authority to assess all civil penalties 

provided in [the] Act.” 30 U.S.C. § 820(i). The Act delegates the duty of proposing penalties to 

the Secretary. 30 U.S.C. §§ 815(a), 820(a). Thus, when an operator notifies the Secretary that it 

intends to challenge a penalty, the Secretary petitions the Commission to assess the penalty. 29 

C.F.R. § 2700.28. The Act requires that “in assessing civil monetary penalties, the Commission

[ALJ] shall consider” six statutory penalty criteria which include the history of violations, the

size of the operator, the negligence, gravity, the ability to continue in business and good faith

abatement. 30 U.S.C. § 820(i). In keeping with this statutory requirement, the Commission has

held that “findings of fact on the statutory penalty criteria must be made” by its judges.

Sellersburg Stone Co., 5 FMSHRC 287, 292 (Mar. 1983), aff'd, 736 F.2d 1147, 1152 (7th Cir.

1984). Once findings on the statutory criteria have been made, a judge’s penalty assessment for a

particular violation is an exercise of discretion, which is “bounded by proper consideration of the

statutory criteria and the deterrent purpose[ s] . . . [of] the Act’s penalty scheme.” Id. at 294; see

also Cantera Green, 22 FMSHRC 616, 620 (May 2000).

The history of assessed violations was not admitted into evidence because, as the 

Secretary explained, Kempton did not have a mine ID and had not been cited in the past. 

Kempton is considered a small operator and the penalties as proposed will not affect its ability to 

continue in business. The Respondent demonstrated good faith in abating the citations. The 

negligence is discussed above. I find that a penalty of $1,186.00 is appropriate. 

37 FMSHRC Page 2465
III. ORDER

Based on the criteria in section 110(i) of the Mine Act, 30 U.S.C.§ 820(i), I reduce the 

negligence from moderate to low and the penalty to $100.00 each for Citation Nos. 8829835 and 

8829836 and assess a total penalty of $1,186.00. Kempton Transport, Inc., is ORDERED to pay 

the Secretary of Labor the sum of $1,186.00 within 30 days of the date of this decision. 

/s/ Margaret A. Miller 

Margaret A. Miller 

Administrative Law Judge 

Distribution: 

Daniel T. Brechbuhl, U.S. Department of Labor, Office of the Solicitor, 1244 Speer Boulevard, 

Suite 216, Denver, CO 80204 

Dell Kempton, Kempton Transport, P.O. Box 50667, Mesa, AZ 85208 

37 FMSHRC Page 2466
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

721 19th STREET, SUITE 443 

DENVER, CO 80202-2536 

TELEPHONE: 303-844-5266 / FAX: 303-844-5268 

October 29, 2015 

DECISION

Appearances: Jennifer Booth Thomas, United States Department of Labor, Office of the 

Solicitor, Nashville, Tennessee, for Petitioner; 

Melanie J. Kilpatrick, Rajkovich, Williams, Kilpatrick & True, PLLC, 

Lexington, Kentucky, for Respondent. 

Before: Judge Miller 

This case is before me upon a petition for assessment of a civil penalty filed by the 

Secretary of Labor in accordance with section 105(d) of the Federal Mine Safety and Health Act 

of 1977, 30 U.S.C. § 815(d). This docket involves one citation issued pursuant to section 

104(d)(2) of the Act with a proposed penalty of $35,500.00. The parties presented testimony and 

evidence regarding the citation at a hearing held in Knoxville, Tennessee, on September 1, 2015. 

I. FINDINGS OF FACT AND CONCLUSIONS OF LAW

Double Mountain Mine is an underground bituminous coal mine located in Claiborne 

County, Tennessee. The parties have stipulated to the jurisdiction of the Federal Mine Safety 

and Health Act of 1977 and to the jurisdiction of the Commission. The parties also entered a 

number of stipulations related to the penalty criteria which are discussed below. Jt. Stip. ¶¶ 3-4. 

Citation No. 8365728 was issued by Inspector Jim Lundy on May 2, 2013, pursuant to 

section 104(d)(2) of the Act for an alleged violation of 30 C.F.R. § 75.220(a)(1), a failure to 

follow the roof control plan. The citation alleges that the operator failed to implement the rib 

control measures in its approved roof control plan, including either removing loose ribs or 

supporting them with fencing and steel posts. The failure to follow the plan led to unaddressed 

sloughing and unsupported brows. Lundy determined that the condition was highly likely to 

result in a permanently disabling injury, was S&S, affected two people, and was a result of high 

negligence and the mine’s unwarrantable failure to comply with the mandatory standard. The 

Secretary proposed a civil penalty in the amount of $35,500.00 for this alleged violation. The 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION, (MSHA), 

 Petitioner, 

v. 

KOPPER GLO MINING, LLC, 

 Respondent. 

 CIVIL PENALTY PROCEEDING 

Docket No. SE 2014-403 

A.C. No. 40-03365-352685

Mine: Double Mountain Mine 

37 FMSHRC Page 2467
citation was terminated when MSHA determined that the loose ribs had been scaled and chain 

link fencing with steel jacks had been installed around all pillars to within forty feet of the 

working faces, and rib bolts had been installed as required by the roof control plan. 

Based upon the parties’ stipulations, my review of the entire record, my observation of 

the demeanor of the witnesses, and consideration of the post-hearing briefs, I find that the 

violation and S&S designation are appropriate and that the negligence is high, as alleged. 

However, I do not find the violation to be the result of an unwarrantable failure to comply. 

A. The Violation

Roof, face, and rib falls have historically been one of the leading causes of injuries and 

death in underground coal mines. Safety Standards for Roof, Face and Rib Support, 53 Fed. 

Reg. 2354, 2354, 2369 (Jan. 27, 1998). To combat these hazards, Congress directed that mine 

operators develop and follow roof control plans “suitable to the roof conditions and mining 

system of each coal mine.” 30 U.S.C. § 862(a). The Commission has stated that the intent of the 

roof control provision is “to afford comprehensive protection against roof collapse.” Elk Run 

Coal Co., 27 FMSHRC 899, 904 (Dec. 2005) (quoting UMWA v. Dole, 870 F.2d 662, 669 (D.C. 

Cir. 1989)). 

In promulgating the current version of the roof control standard, the Secretary explained 

that roof control plans are intended to offer flexibility in order to address each mine’s unique 

conditions. Safety Standards for Roof, Face and Rib Support, 53 Fed. Reg. 2354, 2369 (Jan. 27, 

1998). The rule requires that “[e]ach mine operator shall develop and follow a roof control plan, 

approved by the District Manager, that is suitable to the prevailing geological conditions, and the 

mining system to be used at the mine. Additional measures shall be taken to protect persons if 

unusual hazards are encountered.” 30 C.F.R. § 75.220(a)(1). 

In order for the Secretary to prove a violation of § 75.220(a)(1), he must establish, first, 

that the provision allegedly violated is part of the approved and adopted plan, and, second, that 

the condition cited actually did violate the plan provision. Harlan Cumberland Coal Co., 20 

FMSHRC 1275, 1280 (Dec. 1998); JWR, 9 FMSHRC at 907. “When a plan provision is 

ambiguous, the Secretary may establish the meaning intended by the parties by presenting 

credible evidence as to the history and purpose of the provision, or evidence of consistent 

enforcement.” Harlan, 20 FMSHRC at 1280. 

In this case, the parties agree that pages 16 and 16a of the approved roof control plan for 

this mine are the provisions at issue. Therefore, the focus must be on whether the conditions 

observed by the MSHA inspector constituted a violation of those provisions. 

The provisions of the roof control plan at issue relate to the support of ribs, specifically 

ribs that are inby. Sec’y Ex. 2 at 16, 16a. The provisions on page 16 have been in effect since 

the plan was adopted. When the mine received a citation involving rib control in August 2012, it 

discovered that its interpretation of page 16 was different than MSHA’s and began the process to 

amend the plan. The focus of the plan negotiations was on the provisions regarding control of 

the brows and ribs near the face. At hearing, witnesses for the mine explained that their goal 

37 FMSHRC Page 2468
during the negotiations was to clarify what conditions must be present to require extra rib control 

measures. Shortly after the negotiations began, there was a roof fall at the mine that resulted in a 

fatality, which caused MSHA to examine other provisions of the plan, as well. As a result of the 

negotiations, page 16a was added to the plan. It included a clarification of the rib conditions 

requiring additional control measures, a definition of the term “brow,” and several new rib 

control requirements that would apply in certain situations. Sec’y Ex. 2 at 16a. The original 

page 16 of the plan was not removed, but it was amended in some respects by the addition of 

page 16a. 

The central issue in this case is what conditions trigger the rib control requirements on 

pages 16 and 16a. The Secretary asserts that wire fencing and metal support must be installed 

when sloughing occurs and brows as defined in 16a are created. Bolting must be done if the 

height of the area is above 6.5 feet. Timbers may be used for support only in outby areas. The 

mine asserts that support measures are only required if the brows are cracked or there is some 

other indication of instability, and that sloughing is not a sign of instability. 

MSHA’s Inspection 

Jim Lundy is a mine inspector who has been with MSHA since May 2006. He is a health 

specialist and has worked in the coal mining industry since 1973, including as an assistant 

manager of safety. He holds a number of mine certifications and degrees as well as a nursing 

license. Lundy went with a team to Kopper Glo’s Double Mountain mine on May 2, 2013, to 

conduct a health inspection. Prior to conducting the inspection, Lundy reviewed the mine’s roof 

and ventilation plans as well as the weekly and shift examination books. The examination books 

revealed that there had been problems with sloughing ribs in an area of the mine for nine shifts 

over the three previous days, and that action had been taken to pull down some of the problem 

ribs. During his underground inspection of the mine, Lundy observed the loose ribs. A photo 

produced at hearing shows the roof, the ribs, and the support in place. Ex 6. An overhanging 

brow can be seen in the top of the photos. There is also sloughage—loose material that has come 

down from the sides—on the ground between two wooden roof support posts. 

Lundy observed rib sloughage and overhanging brows in the five inby headings he 

inspected, all of which were within 40 feet of the face. In three areas, Lundy measured that the 

height of the brows was more than six and a half feet from the floor. In most areas, the brows 

exceeded the minimum dimensions given in the definition of a brow on page 16a of the roof 

control plan. While it is unclear whether Lundy observed cracks on the brows, he believed that 

the sloughage and overhanging brows were indicative of instability and constituted adverse rib 

conditions triggering additional support requirements under the roof control plan. No steel posts, 

plates, fencing, bolts, or brackets had been installed in any of these areas, nor had the ribs been 

pulled down. Instead, wooden timbers had been set between the brows and the mine floor or 

bottom rock ledge. Additionally, Lundy observed that the mine did not have a supply of steel 

pipes or fencing in the area, as was required by the roof control plan. See Sec’y Ex. 2 at 2. He 

thus issued Order No. 8365728 for a violation of 30 C.F.R. § 75.220(a)(1) for failure to 

implement the rib control measures in the mine’s approved roof control plan. 

37 FMSHRC Page 2469
MSHA and Kopper Glo offered differing interpretations of the rib conditions at the mine, 

particularly the sloughage. Inspector Lundy explained that sloughage occurs when pressure from 

the overlying rock in a mine increases as coal is removed. Because the coal is a softer material 

than the rock, it is compressed outward. Since the coal is not elastic enough to absorb the 

pressure, the edges of the rib crumble under the pressure. The rock left above the sloughing coal 

is known as a brow. Inspector Lundy testified that when a rib starts to slough, the area is 

compromised, because the brow is left without support. Additionally, sloughing decreases the 

size of the coal pillar leaving less to support the roof, which can cause the roof to sag. These 

conditions could lead the rib to crack, which would be a sign of instability. In Lundy’s opinion, 

though, instability could also exist where there was sloughing but no visible cracking. A witness 

for the mine, Patrick Slone, who assisted the mine in developing its roof control plan, disagreed. 

He testified that while sloughing results from excess pressure, it does not necessarily mean the 

ribs are unstable. Slone also testified that brows are sometimes created not from sloughing but 

rather through intentional mining activity when more height is needed in the mine. Slone 

seemed to indicate that instability was unlikely to occur in the Double Mountain Mine because 

the coal seam was only thirty-six inches high, and he testified that the sloughage observed by 

Lundy at the mine was not a sign of instability. 

The Roof Control Plan 

The roof control plan for Double Mountain Mine creates requirements for rib control for 

“all areas on the working section (MMU) where rib conditions warrant.” Ex. 2 at 16. The 

supplement on page 16a expands on when the rib control methods are required: it explains that 

an “adverse rib/brow ... will be pulled down or adequately supported,” and explains that an 

adverse rib or brow is one with “visible cracks or signs of instability.” Ex. 2 at 16a. 

When adverse ribs or brows are present, the mine is given options for how to address 

them. First, miners may pull or remove the loose rib. Ex. 2 at 16, 16a. But because sometimes 

the rib cannot be pulled down or continues to slough after it is pulled down, the plan offers 

alternatives. Page 16 provides that the mine may install steel pipe and wire fencing. Ex. 2 at 16 

¶¶ 2, 3. In “short” areas, where only a portion of the pillar is affected by sloughing, the mine is 

directed to install the pipe “after the normal roof bolting cycle.” Ex. 2 at 16 ¶ 2. In areas where 

the entire pillar is sloughing, the mine is to install the pipe “as soon as practicable.” Ex. 2 at 16 ¶ 

3. The supplement creates additional requirements for rib support in certain areas. For adverse

ribs and brows in the face area, the mine is to install angle brackets and cable lashing. Ex. 2 at

16a. For outby areas, the mine is given the option to install timbers. Id. The supplement also

provides a definition of a brow: a brow is “an area that is created from sloughing of coal ribs.

This area is 12 inches wide, 24 inches long and 4 inches in height and thickness (minimum).” Id.

It goes on to require that brows “shall be supported.” Id. Finally, the supplement requires that if

there are adverse ribs or brows “above 6.5 feet in height, bolting will be done to secure the

affected ribs/brows.” Id. The requirement that sloughing pillars must have additional support

was not removed from page 16, and remained in effect even with the addition of page 16a. If the

brow is cracked or shows other signs of instability, then further support, beyond the pipe

required for sloughage, must be installed. The only additional support observed by Lundy was

timbers, most often used for roof support and not approved for additional rib and brow support

inby.

37 FMSHRC Page 2470
In his inspection, Lundy observed rib sloughage and overhanging brows in five inby 

headings. The Secretary argues that these were “adverse ribs/brows” that required rib control 

measures under the plan, including bolting in areas over 6.5 feet high and angle brackets and 

steel posts and fencing in all of the areas. The mine had not implemented any of those measures, 

but rather was using timbers as roof support. Kopper Glo argues that because there were no 

visible cracks in the ribs and brows, there were no “adverse ribs/brows,” and that therefore no rib 

control methods were required under the plan. The question, then, is whether sloughage and 

overhanging brows with no visible cracking must be supported as stated on page 16, and whether 

they constitute “adverse ribs/brows” requiring the support listed on page 16a of the plan. 

The Commission has explained that plan provisions are enforceable as mandatory 

standards. Martin Cty. Coal Corp., 28 FMSHRC 247, 254 (Mar. 2011) (ALJ); Energy W. 

Mining Co., 17 FMSHRC 1313, 1317 (Aug. 1995); Jim Walter Res., Inc., 9 FMSHRC 903, 907 

(May 1987) (“JWR”); see also UMWA v. Dole, 870 F.2d 662, 671 (D.C. Cir. 1989). When 

interpreting a plan provision, a judge should thus apply the principles governing the 

interpretation of regulatory standards. Martin Cty. Coal, 28 FMSHRC at 255 (citing Energy 

West, 17 FMSHRC at 1317). Accordingly, when the language of the plan provision is clear, the 

provision should be enforced as written “unless the regulator clearly intended the words to have 

a different meaning or unless such a meaning would lead to absurd results.” Id. As a part of the 

inquiry, “in ascertaining the plain meaning of the statute, the court must look at the particular 

statutory language at issue, as well as the language and design of the statute as a whole.” K Mart 

Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (citations omitted). Traditional tools of 

construction, including examination of a provision’s text and legislative history, may be 

employed to determine whether the drafters “had an intention on the precise question at issue.” 

Coal Employment Project v. Dole, 889 F.2d 1127, 1131 (D.C. Cir. 1989) (citations omitted). 

 Here, I find that the plan was clear, and that sloughing of the ribs required fencing under 

page 16 of the plan. I also hold that sloughing of the ribs constituted an “adverse” condition 

requiring additional support under page 16a. “In the absence of a statutory or regulatory 

definition of a term, the Commission applies the ordinary meaning of that term.” Twentymile 

Coal Co., 30 FMSHRC 736, 750 (Aug. 2008). The plan indicates that ribs and brows are 

“adverse” when there are “visible cracks or signs of instability.” Ex. 2 at 16a. “Instability” in 

ordinary usage is “the state of being likely to change.” Merriam-Webster Dictionary (2015). 

The Dictionary of Mining, Mineral, and Related Terms defines “slough” as “fragmentary rock 

material that has crumbled and fallen away from the sides of a borehole or mine working.” Am. 

Geological Inst., Dictionary of Mining, Mineral, and Related Terms 515 (2d ed. 1997). It 

defines “sloughing” as “minor face and rib falls.” Id. These descriptions are suggestive of 

changing conditions in the mine and thus instability. The descriptions of sloughing provided by 

Lundy and Slone are also characteristic of instability: they explain that sloughing is caused by 

the pressure of rock on the soft coal. Lundy describes sloughing as “the loose material coming 

down from the coal rib from its natural state.” Tr. at 30. In other words, the coal is changing 

from its natural state in reaction to the pressure created by mining. 

This interpretation is consistent with language used elsewhere in the plan. Page 12, 

which involves refuge chambers, lists sloughing as a possible defect in roof and rib conditions. 

Ex. 2 at 12. Additionally, this interpretation is consistent with Judge Maurer’s decision in 

37 FMSHRC Page 2471
Harlan Cumberland Coal, in which he held that “heavy rib sloughage” along with other 

conditions created an “adverse roof condition” triggering a provision of a mine’s extended cut 

plan. 17 FMSHRC 1342, 1351-52 (Aug. 1995) (ALJ).

Kopper Glo argues that the mine’s intent in negotiating the supplement to page 16 was 

for the rib control measures to be required only where there were visible cracks in the ribs or 

brows. Resp. Br. at 2-3. The operator argues that there was sloughage throughout the mine, and 

it would not have agreed to the additional measures if they were required wherever there was 

sloughage. However, I do not find that the testimony at hearing clearly established that intent, 

nor do I find that it was expressed in the final language of the plan amendment. Thus I find this 

argument unpersuasive. 

Kopper Glo also asserts that because its interpretation differed from Lundy’s, it was not 

provided fair notice of the standard to be applied under the plan. Resp. Br. at 9-10. However, I 

find that the plan was clear and that there is not sufficient evidence to support an argument that 

the mine did not have fair notice of the requirements of the plan. When evaluating a party’s fair 

notice argument, the court should first look to see if the language of the standard “provides clear 

and unambiguous notice of its coverage and requirements[.]” DQ Fire & Explosion Consultants, 

Inc., 36 FMSHRC 3083, 3087 (Dec. 2014). If the language is clear and unambiguous, then “no 

further notice is necessary.” Id. If the standard is ambiguous, the court generally will defer to 

the Secretary’s reasonable interpretation of the standard. See e.g. Energy West Mining Co. v. 

FMSHRC, 40 F.3d 457, 463 (D.C. Cir. 1994)). As discussed above, the roof control plan 

provides clear notice to a reasonably prudent person familiar with the mining industry and the 

protective purposes of the plan. After negotiating the plan, the mine should have recognized the 

specific prohibitions and requirements of the plan. See Ideal Cement Co., 12 FMSHRC 2409, 

2416 (Nov. 1990). 

For these reasons, I find that the sloughing observed by Lundy was a “sign of instability” 

in the ribs under page 16a of the plan. The plan is clear that adverse conditions exist when there 

are “visible cracks or signs of instability.” Ex. 2 at 16a (emphasis added). I therefore find 

Kopper Glo’s argument that the requirements were only triggered by cracking to be without 

merit. I also find that sloughing is a rib condition “warrant[ing]” the rib control measures 

required under page 16. Consequently, the mine was required to install the additional support 

described in the plan. Ex. 2 at 16. Kopper Glo argues that it had not yet completed roof bolting 

in some of the inspected areas and so was not required to have begun the rib control measures. 

Resp. Br. at 7-8. However, the evidence shows that at least some of the areas had been roof 

bolted. The mine was required to begin rib control measures in those areas. Because the 

operator had not implemented the rib control measures required by the plan, it violated the plan. 

The Secretary has established a violation of 30 C.F.R. § 75.220(a)(1). 

B. Gravity and S&S

The Secretary asserts that Kopper Glo’s violation was highly likely to cause a 

permanently disabling injury and that it was significant and substantial (“S&S”). A “significant 

and substantial” violation is described in section 104(d)(1) of the Mine Act as a violation “of 

such nature as could significantly and substantially contribute to the cause and effect of a coal or 

37 FMSHRC Page 2472
other mine safety or health hazard.” 30 U.S.C. § 814(d)(l). A violation is properly designated 

significant and substantial “if based upon the particular facts surrounding that violation, there 

exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a 

reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). 

In Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984), the Commission explained its 

interpretation of the term “significant and substantial”: 

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

and substantial under National Gypsum, the Secretary of Labor must prove: (1) 

the underlying violation of a mandatory safety standard; (2) a discrete safety 

hazard--that is, a measure of danger to safety--contributed to by the violation; (3) 

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

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

serious nature.

The difficulty with finding a violation S&S normally comes with the third element of the 

Mathies formula, in which the Secretary must establish that there is a reasonable likelihood that 

the hazard will result in an injury. The Commission has explained that the third element of the 

formula “requires that the Secretary establish a reasonable likelihood that the hazard contributed 

to will result in an event in which there is an injury.” U.S. Steel Mining Co., Inc., 6 FMSHRC 

1834, 1836 (Aug. 1984). The Commission discussed the third element of the Mathies test in 

Musser Engineering, Inc. and PBS Coals, Inc., 32 FMSHRC 1257 (Oct. 2010) (affirming an 

S&S violation for using an inaccurate mine map). The Commission clarified that the “Secretary 

need not prove a reasonable likelihood that the violation itself will cause injury,” but rather that 

the hazard created would cause an injury. Id. at 1280-81. The Commission reaffirmed its 

position in Cumberland River Coal, 33 FMSHRC 2357, 2365 (Oct. 2011). 

The Commission has acknowledged the high degree of danger posed by roof control plan 

violations. See Cyprus Plateau Mining Corp., 16 FMSHRC 1610, 1616 (Aug. 1994). In Harlan 

Cumberland Coal, 17 FMSHRC 1342, 1352 (Aug. 1995) (ALJ), Judge Maurer upheld an S&S 

designation for a roof control plan violation involving rib sloughing. 

In designating the violation S&S, Inspector Lundy explained that given the sloughage 

and unstable conditions he observed, it was likely that rock would fall from the brow or the ribs. 

He noted that numerous miners worked on foot and operated mobile equipment in the areas he 

observed, and thus a falling rock could hit a miner and cause a permanently disabling injury. 

Kopper Glo argues that the violation was not S&S because there were timbers in place in 

the areas cited to help support the roof and brows. Resp. Br. at 15. The Secretary argues that the 

timbers would have been ineffective to prevent an injury because they did not provide lateral 

support. Sec’y Br. at 5. Kopper Glo counters that the primary danger was not from a lateral rock 

burst because of the narrow height of the coal seam. Resp. Br. at 15. Rather the primary danger 

was of a falling rock from the roof, which the timbers would address adequately. Id. However, 

Lundy observed that the operator had not fastened the timbers to the roof, so they could easily 

come dislodged and would fail to protect against a rock falling from the roof. Additionally, the 

37 FMSHRC Page 2473
falling timber itself would present a hazard. I find that the amount of sloughing indicates that a 

lateral force dislodging a timber was likely to occur and therefore the timbers did not adequately 

address the hazard. 

Applying the elements of the Mathies test, I have found that there was a violation of the 

roof control plan, and hence a violation of a mandatory standard. This violation contributed to 

the hazard of inadequately supported brows and sloughing ribs, which could lead to a fall of the 

ribs or an outburst of coal. The hazard of falling ribs or coal from the brow would be reasonably 

likely to lead to a miner in the area being hit by the falling material, resulting in serious injury or 

death. Therefore, I find the violation to be S&S.

C. Negligence

Each mandatory standard carries with it a duty of care to avoid violations of that standard 

and, if a standard is violated, a finding of negligence is made. A. H. Smith Stone Co, 5 FMSHRC 

13, 15 (Jan. 1983). In this case, MSHA determined that the negligence was high. The Secretary, 

by regulation, defines negligence under the Act as “conduct, either by commission or omission, 

which falls below a standard of care established under the Mine Act to protect miners against the 

risks of harm. Under the Mine Act, an operator is held to a high standard of care.” 30 C.F.R. § 

100.3(d). High negligence, according to the Secretary’s regulations, occurs when the operator 

knew or should have known of the violative condition and there are no mitigating circumstances. 

Id. 

In Consolidation Coal Co., 36 FMSHRC 615, 637-38 (Feb. 2014) (ALJ), Judge Barbour 

upheld a finding of reckless disregard of 30 C.F.R. § 75.202 involving sloughing ribs in a lunch 

area. The judge relied on the facts that the sloughage was visibly obvious and ongoing, that the 

area was heavily used, and that the mine had had recent fall-related accidents. Id. 

Here, Inspector Lundy cited the operator for high negligence. He noted that the rib 

sloughage had been listed in the mine books as a hazard to be corrected for nine shifts, and that 

while some of the ribs had been pulled down and timbers had been set, the operator had taken 

none of the measures required by the roof control plan to further support the ribs. In addition to 

these factors, the sloughage was obvious, especially given that it was occurring in numerous 

locations in the working areas where miners and management were continuously present. 

Further, the mine had a responsibility to understand the requirements of the roof control plan and 

to have the materials necessary to comply with the plan readily available. I thus do not find the 

operator’s misunderstanding of the plan requirements to be a mitigating factor. Finally, in the 

twenty-four months preceding the citation, the mine had five violations of the roof control plan 

as well as a fatality involving a roof fall. For these reasons, I find that the high negligence 

assessment was appropriate for this violation. 

37 FMSHRC Page 2474
D. Unwarrantable Failure

The Secretary argues that the violation was the result of the operator’s unwarrantable 

failure to comply with safety standards. The unwarrantable failure terminology is taken from 

section 104(d) of the Act, 30 U.S.C. § 814(d). The Commission has explained that 

unwarrantable failure is “aggravated conduct constituting more than ordinary negligence. 

Unwarrantable failure is characterized by conduct described as ‘reckless disregard,’ ‘intentional 

misconduct,’ ‘indifference,’ or a ‘serious lack of reasonable care.’” Consolidation Coal Co., 22 

FMSHRC 340, 353 (Mar. 2007) (citing Emery Mining Corp., 9 FMSHRC 1997, 2001-04 (Dec. 

1987)) (citations omitted). The Commission has held that in determining whether a violation is 

an unwarrantable failure, the judge should consider all of the relevant facts and circumstances in 

the case and determine whether there are any aggravating or mitigating factors. Id. Based upon 

the following analysis of the factors enumerated by the Commission, I find that there is not 

adequate evidence to support a finding of unwarrantable failure in this case. 

Extent of the violative condition. In IO Coal Co., 31 FMSHRC 1346, 1352 (Dec. 2009), 

the Commission explained that the “extent of the violative condition is an important element in 

the unwarrantable failure analysis.” The purpose of considering this factor is to “account for the 

magnitude or scope of the violation.” Dawes Rigging & Crane Rental, 36 FMSHRC 3075, 3079 

(Dec. 2014) (citing E. Associated Coal Corp., 32 FMSHRC 1189, 1195 (Oct. 2010)). Relevant 

facts the judge may consider include “the extent of the affected area as it existed at the time the 

citation was issued[,]” the number of persons affected, and the time and resources required to 

correct the condition. Dawes Rigging, 36 FMSHRC at 3079-80; Consolidation Coal Co., 35 

FMSHRC 2326, 2331 (Aug. 2013). Here, the violative condition existed in all five of the inby 

headings Lundy inspected, a significant portion of the mine. At hearing, the inspector 

acknowledged that some of the crosscuts did not have brows of the dimension requiring support 

under page 16a of the plan. However, the inspector observed brows and sloughing in many of 

the areas he observed. However, he indicated that only two persons were affected by the 

violation. I find that the violation was extensive in the amount of area affected.

Length of time that the violation has existed. In IO Coal, the Commission emphasized 

that the duration of time that the violative condition exists is a “necessary element” of the 

unwarrantable failure analysis. 31 FMSHRC at 1352. Here, the pre-shift examination books 

indicated that the condition had existed for at least nine shifts prior to the citation being issued. 

The operator had attempted to address the issue by setting timbers and pulling down some of the 

ribs. I find that the length of time is significant in this case. 

Whether the operator was placed on notice that greater efforts were necessary for 

compliance. The Commission has explained that repeated, similar violations and past 

discussions with MSHA about a problem may serve to heighten the awareness of the operator 

that increased efforts to comply are necessary. IO Coal, 31 FMSHRC at 1353. Prior violations 

may establish notice even though they did not involve precisely the same activity, cited standard, 

or area of the mine and were not the result of unwarrantable failure. Id. at 1353-54; Black 

Beauty Coal Co. v. FMSHRC, 703 F.3d 553, 561 (D.C. Cir. 2012). In this case, there were five 

substantiated violations of the roof control plan at the mine in the two years preceding the 

citation at issue. One of the five violations involved a fatality caused by an unsupported roof. 

37 FMSHRC Page 2475
However, the mine’s citation record for roof control violations was below the national average. 

While the operator should have been familiar with the requirements of its roof control plan, I 

cannot find that the mine was placed on notice that greater efforts were needed. 

Operator’s efforts in abating the violative condition. The Commission has explained that 

the abatement efforts relevant to the unwarrantable failure analysis are those that were made 

prior to the issuance of the citation or order. Consol. Coal, 35 FMSHRC at 2342. Here, the 

examination books indicated that the mine had attempted to pull down the sloughing ribs. The 

witnesses agree that the first step in controlling ribs is to take them down. The mine had also 

installed timbers to support the brows, though they had not installed them in compliance with the 

roof control plan. I find that the mine had taken efforts to abate the condition.

Whether the violation posed a high degree of danger. The Commission has found the 

high degree of danger posed by a violation to be an aggravating factor supportive of an 

unwarrantable failure finding. IO Coal, 31 FMSHRC at 1355-1356. In some cases, the degree 

of danger may be “so severe that, by itself, it warrants a finding of unwarrantable failure.” 

Manalapan Mining Co., 35 FMSHRC 289, 294 (Feb. 2013). A fatal accident occurring as a 

result of the cited condition or practice is compelling evidence of a high degree of danger. 

Midwest Material Co., 19 FMSHRC 30, 34 (Jan. 1997). Kopper Glo argues that the sloughing 

ribs are not unusual in this mine and do not pose a high degree of danger. While the violation is 

S&S and could lead to a rib fall and subsequent injury, the Secretary has not shown that the 

degree of danger supports an unwarrantable failure finding. 

Whether the violation was obvious. The obviousness of the violative condition is an 

important factor in the unwarrantable failure analysis. IO Coal, 31 FMSHRC at 1356. This 

factor is discussed in the negligence analysis above. I find that the condition was obvious. 

Operator’s knowledge of the existence of the violation. The Commission has held that an 

operator’s knowledge of the existence of a violation may be established where the operator 

“reasonably should have known of the violative condition.” IO Coal, 31 FMSHRC at 1356-57. 

In this case, the operator’s actual knowledge is difficult to discern. While the evidence shows 

that the operator knew that the sloughing ribs and overhanging brows were a problem, it is not 

clear that they knew they were violating the roof control plan. While I find that the plan was 

clear and that the mine operator should have known what its plans required, I nevertheless credit 

the testimony of the mine’s witnesses that they did not understand that they were violating the 

plan. The safety personnel, the consultant, and certainly the general manager should have known 

what the plan required and I do not find that their misunderstanding negates the violation. 

However, I find it relevant that Inspector Lundy himself was not entirely confident about the 

requirements of the plan at first. When the mine informed Lundy they were using timbers as 

brow support, he suspected that was inadequate, but went to the surface to check the plan and 

speak to a roof control specialist before making his final decision whether to issue a citation. 

Given that there was some uncertainty regarding the plan, I do not find that the operator’s 

knowledge was an aggravating factor here. 

While the analysis is very close in this case, I am not persuaded that the violation was the 

result of an unwarrantable failure to comply. A finding of unwarrantable failure does not require 

37 FMSHRC Page 2476
that all of the factors be present. However, in light of the evidence presented here, I do not find 

that there were sufficient aggravating factors to demonstrate an unwarrantable failure. 

II. PENALTY

The principles governing the authority of Commission administrative law judges to 

assess civil penalties de novo for violations of the Mine Act are well established. Section 110(i) 

of the Mine Act delegates to the Commission and its judges “authority to assess all civil penalties 

provided in [the] Act.” 30 U.S.C. § 820(i). The duty of proposing penalties is delegated to the 

Secretary. 30 U.S.C. §§ 815(a), 820(a). Thus, when an operator notifies the Secretary that it 

intends to challenge a penalty, the Secretary petitions the Commission to assess the penalty. 29 

C.F.R. § 2700.28. The Act requires that in assessing civil monetary penalties, the ALJ must

consider six statutory penalty criteria: the operator’s history of violations, its size, whether the

operator was negligent, the effect on the operator’s ability to continue in business, the gravity of

the violation, and whether the violation was abated in good faith. 30 U.S.C. § 820(i). In keeping

with this statutory requirement, the Commission has held that judges must make findings of fact

on the statutory penalty criteria. Sellersburg Stone Co., 5 FMSHRC 287, 292 (Mar. 1983), aff'd,

736 F.2d 1147, 1152 (7th Cir. 1984). Once these findings have been made, a judge’s penalty

assessment for a particular violation is an exercise of discretion “bounded by proper

consideration of the statutory criteria and the deterrent purposes underlying the Act’s penalty

scheme.” Id. at 294; see also Cantera Green, 22 FMSHRC 616, 620 (May 2000).

The history of assessed violations was admitted into evidence and shows a reasonable 

history for this mine. The mine is a medium-sized operator. The parties have stipulated that the 

penalties as proposed will not affect the operator’s ability to continue in business, and that 

Respondent demonstrated good faith in abating the citation. The gravity and negligence are 

discussed above. Given all of the evidence in this case, and particularly the finding of high 

negligence, I find that a penalty of $20,000.00 is appropriate. 

III. ORDER

Based on the criteria in section 110(i) of the Mine Act, 30 U.S.C.§ 820(i), I assess a 

penalty of $20,000.00 for Citation No. 8365728. Kopper Glo Mining, LLC, is ORDERED to 

pay the Secretary of Labor the sum of $20,000.00 within 30 days of the date of this decision. 

/s/ Margaret A. Miller 

Margaret A. Miller 

Administrative Law Judge 

37 FMSHRC Page 2477
Distribution: 

Jennifer Booth Thomas, U.S. Department of Labor, Office of the Solicitor, 618 Church Street, 

Suite 230, Nashville, TN 37219 

Melanie J. Kilpatrick, Rajkovich, Williams, Kipatrick & True, PLLC, 3151 Beaumont Centre 

Circle, Suite 375, Lexington, KY 40513 

37 FMSHRC Page 2478
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

721 19TH STREET, SUITE 443 

DENVER, CO 80202-2536 

303-844-3577 FAX 303-844-5268

October 29, 2015

DECISION

Appearances: Abigail Daquiz, Esq., Office of the Solicitor, U.S. Department of Labor, 

Seattle, Washington, for Petitioner; 

Eric E. Hobbs, Esq., Michael, Best & Friedrich LLP, Milwaukee, 

Wisconsin, for Respondent. 

Before: Judge Manning 

This case is before me upon a petition for assessment of civil penalty filed by the 

Secretary of Labor, acting through the Mine Safety and Health Administration (“MSHA”), 

against CR Meyer & Sons Company, Inc., (“Meyer”) pursuant to sections 105 and 110 of the 

Federal Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the “Mine Act”). The 

parties presented testimony and documentary evidence at a hearing and filed post-hearing briefs. 

One section 104(d)(1) citation was adjudicated at the hearing. Meyer is an independent 

contractor that was performing work at the Mountain Pass Mine & Mill operated by Molycorp 

Minerals (“Molycorp”). 

I. DISCUSSION WITH FINDINGS OF FACT

AND CONCLUSIONS OF LAW 

On September 10, 2013, MSHA Inspector Miles D. Frandsen1

 issued Citation No. 

8700228 under section 104(d)(1) of the Mine Act, alleging a violation of section 56.14105 of the 

Secretary’s safety standards. (Ex. G-8). The citation alleges that two miners who were charged 

with reinstalling an out of place guard, which was designed to protect persons from moving parts 

on an agitator, failed to lock out and tag out the equipment before reinstalling the guard. The 

agitator was in operation when they reinstalled the guard. The citation further states that the 

1

 Inspector Frandsen has been an inspector with MSHA for about eleven years. (Tr. 14). 

He is trained as an electrical inspector. Prior to his employment with MSHA he worked as a 

mechanic at various mines; he acquired electrical papers; and he was a maintenance supervisor 

and production supervisor. (Tr. 16). 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

v. 

CR MEYER & SONS COMPANY, INC., 

 Respondent 

 CIVIL PENALTY PROCEEDING 

Docket No. WEST 2014-834-M 

A.C. No. 04-02542-354386 1ZU

Mt. Pass Mine & Mill 

37 FMSHRC Page 2479
violation was the result of Meyer’s aggravated conduct because the foreman was aware that the 

agitator was not locked out or tagged out in violation of Meyer’s written policy. 

Inspector Frandsen determined that an injury was reasonably likely to occur, that the 

violation was of a significant and substantial (“S&S”) nature, and that any injury could 

reasonably be expected to be permanently disabling. He determined that Meyer’s negligence was 

high and that one person would be affected. Section 56.14105 mandates, in part, that “[r]epairs 

or maintenance of machinery or equipment shall be performed only after the power is off, and 

the machinery or equipment is blocked against hazardous motion.” 30 C.F.R. § 56.14105. The 

Secretary proposed a penalty of $8,000.00 for this citation under the Secretary’s special 

assessment procedure. 30 C.F.R. § 100.5. 

My findings of fact in this decision are based on the record as a whole and my 

observation of the witnesses. Although I have not included a summary of all the evidence 

presented at the hearing in this decision, I fully considered all the evidence. 

Discussion and Analysis 

1. Evidence 

 On September 10, 2013, Inspector Frandsen traveled to Molycorp’s Mountain Pass Mine 

& Mill to conduct an inspection. Frandsen entered a building, generally known as the separations 

building, that contained a tank farm. (Tr. 21, 117). The tanks, which were large, vertical, and 

made of fiberglass, had motors on top that turned a shaft that mixed the contents of the tanks 

using paddles attached to the shaft. The shaft was about six to eight inches in diameter. (Tr. 52). 

The top of tank at issue in this case was about eight to ten feet off the floor and was 

approximately eight feet in diameter.2 (Tr. 23, 121). Miners accessed the top of the tanks via a 

stairway onto scaffolding. (Tr. 120-121, 24). The mixing device in the tanks is often called an 

agitator. The inspector went up on the scaffolding for the first tank and noticed that a guard had 

been “flipped to the left” at the top of the tank. (Tr. 22). He issued a citation to Molycorp for this 

condition because the turning shaft was exposed. (Tr. 16). The guard was about 18 inches wide 

and 3 to 4 inches high. (Tr. 33, 55, 131). The guard was designed to be attached by two bolts to 

the frame holding the motor. One bolt had been removed and the guard had been flipped up and 

over to the left with the other bolt still attached. The guard came to rest on top of the tank in a 

horizontal position to the left of the opening. (Ex. G-4). The spinning shaft was behind the 

opening. Id.; (Tr. 52). The inspector believed that the condition created an obvious entanglement 

hazard. (Tr. 24-25). He testified that miners go up onto the scaffolding from time to time to take 

samples from the tank. (Tr. 23). 

 2

 There is some question as to whether the top of the tank was eight feet in diameter or 

eight feet in circumference. In response to the question, “How big aground was the agitator or 

the tank[,]” Berube responded “probably eight feet[.]” (Tr. 121). Given that both parties agree 

that the cited guard was approximately 18 inches wide, and relying on that measurement for 

scale when examining Exhibit R-6, I find that the tank was approximately 8 feet in diameter. If 

the circumference were eight feet, the diameter would be less than three feet. (Diameter = 

Circumference ÷ π) 

37 FMSHRC Page 2480
Following the inspector’s issuance of the citation, Molycorp called Meyer, an 

independent contractor at the mine, and instructed it to address the problem. Meyer is a large 

nationwide contractor that performs maintenance and other work for the mining industry, the 

pulp and paper industry, and other industries. (Tr. 19, 79). Inspector Frandsen testified that he got 

to know Meyer at the Mountain Pass Mine & Mill and developed respect for its safety 

department and its employees. (Tr. 19). 

Frandsen continued his inspection of the separations building but, before he left the area, 

he wanted to see if the condition that prompted him to issue the citation to Molycorp had been 

abated. Inspector Frandsen issued other citations to Molycorp for the same violation on other 

tanks in the separations building. (Tr. 41-42). When he arrived back at the subject tank, he saw 

two people standing on top of the scaffolding leaning out over the tank. (Tr. 24-27). He asked the 

employees if the agitator was locked out and they replied “no.” Id. The inspector told the two 

men to come down. The two men, both employees of Meyer, were foreman Robert Berube and 

miner Robbie Heikinnen. (Tr. 27). Berube told the inspector that he had flipped the guard back 

into position and that they were now going to ask Molycorp to shut down the agitator and lock it 

out before they secured the guard with a bolt. (Tr. 28-30; Exs. G-5, 6, 7). Frandsen told the 

Meyer employees that the agitator should have been shut down and locked out before the guard 

was flipped back into position. (Tr. 31-32). He said that the Meyer employees should not have 

reached out over the tank without first shutting down the equipment. (Tr. 32). 

Inspector Frandsen considered this violation to be obvious. The “first step of any 

mechanic” is to recognize what you need to do and then “get [the] machine off” so you “can go 

out there safely and put the guard back in place.” Id. According to Frandsen, Meyer should have 

contacted Molycorp personnel for instructions as to the proper procedure for shutting down the 

tank. (Tr. 34-35). By reaching over to flip the guard back into place, an employee created a risk 

of becoming entangled in the rotating shaft. (Tr. 32). One of the men could have slipped and 

accidently pushed his arm through the opening. There was spilled liquid on top of the tank, 

which increased the hazard. The inspector believed that the rotating shaft was very close to the 

mouth of the opening so that a person’s arm would not have to go very far beyond the opening to 

come into contact with the shaft. (Tr. 32-33). Inspector Frandsen testified that someone would 

“probably get [his] fingers cut off if they get down in there[.]” (Tr. 41). 

 The inspector determined that the violation was a result of Meyer’s high negligence and 

unwarrantable failure to comply with the safety standard. He reached this conclusion because 

Berube, a foreman for Meyer, was present and directing the work. (Tr. 43). According to 

Frandsen, a foreman is an agent of the operator and his failure to ensure that the job was 

completed in a safe manner demonstrates high negligence. (Tr. 43-44) 

 Robert Berube was a journeyman pipefitter and a foreman with Meyer on September 10, 

2013. (Tr. 110). He testified that he was in Meyer’s office at the mine when he was told to go 

look at guards in the separations building. (Tr. 118). He immediately proceeded to the 

separations building along with Robbie Heikinnen, another Meyer employee. Id. When Berube 

entered the building, he met a “plant guy” who took them up on the scaffolding to show Berube 

the subject guard. (Tr. 120). Berube testified that he “looked it over” and “flipped the guard.” (Tr. 

120, 125). He could not see into the opening, but estimated that the shaft for the agitator was 

37 FMSHRC Page 2481
about four feet in front of him. (Tr. 122-23). Heikinnen was not involved and was simply 

standing on the scaffolding. Once the guard was in place, Heikinnen put the bolt through the hole 

on the right side but did not attach the nut. (Tr. 128). 

Berube did not consider his act of flipping the guard back in place to be hazardous. (Tr. 

129). He was not near the unguarded opening when he flipped the guard. He just put a finger 

under the far left side of the guard, flipped his finger up, and let gravity pull the guard down into 

place. (Tr. 127). He estimated that he was about two feet to the left of the opening when he 

flipped the guard back, and an additional 14 inches existed between the mouth of the opening 

and the shaft. (Tr. 129-31). Berube testified that, even if he slipped, he would not have come into 

contact with the shaft because he was standing on the scaffolding about two feet to the left of the 

unguarded opening. (Tr. 131-32). 

Berube also did not consider his act of flipping the guard back in place to be “repairs or 

maintenance of machinery or equipment[.]” (Tr. 129). Brian Bork, Meyer’s safety manager, 

testified that Berube’s actions were more akin to housekeeping than repair or maintenance. (Tr. 

98-99, 106).

2. Violation

I find that a violation of the cited safety standard occurred as alleged. The pertinent 

requirements under the cited standard are threefold. First, the standard applies only when repairs 

or maintenance of machinery or equipment are being conducted. Second, the operator must 

ensure that the machinery or equipment is powered off. Third, the operator must ensure that the 

machinery or equipment is blocked against hazardous motion. 30 C.F.R. § 56.14105. 

I find that the act of flipping the subject guard back into place amounted to “repairs or 

maintenance.” In Walker Stone Co., 19 FMSHRC 48, 51-52 (Jan.1997) the Commission, relying 

upon the dictionary definitions of the terms “repair” and “maintenance,” found that the 

operator’s act of breaking up and removing rocks from a clogged crusher amounted to “repairs or 

maintenance.” Repair was defined as “‘to restore by replacing a part or putting together what is 

torn or broken: fix, mend . . . to restore to a sound or healthy state: renew, revivify . . . .’” Id. 

(quoting Webster’s Third New International Dictionary, Unabridged 1923 (1986)). 

“Maintenance” was defined as “‘the labor of keeping something (as buildings or equipment) in a 

state of repair or efficiency: care, upkeep . . .’ and ‘[p]roper care, repair, and keeping in good 

order.” Id. (quoting Webster’s Third New International Dictionary, Unabridged 1362 (1986), and 

A Dictionary of Mining, Mineral, and Related Terms 675 (1968)). 

Respondent argues that the work done by Meyer did not amount to either repairs or 

maintenance but that it was housekeeping. (Meyer Br. 9-10). I disagree. When Molycorp was 

cited for the lack of a guard to protect miners from the hazard of the exposed moving machine 

parts of the agitator, it contacted Meyer to remedy the unsafe condition. Meyer, in an effort to 

carry out its assigned duty, charged Berube with the task. When Berube traveled to the 

separations building, climbed the stairs, stood on the scaffolding, and reached over the top of the 

tank to flip the guard back into place, he was exposed to the same hazard that caused the 

inspector to cite Molycorp. Berube’s actions were meant to bring the agitator back into a safe 

37 FMSHRC Page 2482
state of repair by replacing the guard, an essential part to the safe operation of the agitator. See 

Hibbing Taconite Co., 35 FMSHRC 3531, 3534 (Dec. 2013) (ALJ). Accordingly, I find that 

Berube’s act of flipping the guard back into place amounted to “repairs or maintenance.” 

The machinery or equipment was not powered off. The inspector credibly testified that 

the agitator motor and shaft were “in operation.” (Tr. 52). Respondent did not offer testimony 

disputing the Secretary’s assertion. Accordingly, the work was conducted while the power was 

on the machinery or equipment. 

The machinery or equipment was not blocked against hazardous motion. Respondent 

argues that, contrary to the inspector’s assertion, the standard does not require the locking and 

tagging out of machinery or equipment. (Meyer Br. 7). I agree with Respondent that the standard 

does not require locking and tagging out. However, I credit the inspector’s testimony that, in this 

instance, the most effective way to block against hazardous motion, which is required by the 

standard, is to lock and tag out the motor. (Tr. 31, 34, 58-59). As Frandsen explained, “there is 

really no other way to block the motor against motion other than [to] de-energize” and “the safest 

way is to lock and tag out.” (Tr. 31). The evidence demonstrates that the agitator was powered 

on and the shaft was not blocked against motion. Accordingly, I find that the Secretary has 

proven a violation of the cited standard. 

Respondent, relying on the inspector’s testimony, argues that the cited standard applies 

only if miners are exposed to a hazard and that, because no hazard was present, there was no 

violation of the standard. (Meyer Br. 10-12). I disagree. The Mine Act imposes no general 

requirement that a violation of one of the Secretary’s standards be found to create a hazard in 

order for a citation to be validly issued. Allied Products, Inc., 666 F.2d 890, 892-93 (5th Cir. 

1982). The Secretary need only establish that a hazard exists when the cited standard explicitly 

requires such a showing. Here, the pertinent language of the cited standard makes no reference to 

any requirement that a hazard exist. Rather, it only requires that operators, when conducting 

repairs or maintenance to machinery or equipment, power off the equipment and block it against 

hazardous motion. At the very least, the standard requires that the equipment or machinery be 

powered off. Accordingly, I reject Meyer’s argument. As discussed below, I also find that miners 

were exposed to a hazard in this instance. 

3. Significant & Substantial 

 I find that the violation was S&S.3 I have already found that there was a violation of the 

cited safety standard. I find that a discrete safety hazard existed. I credit the inspector’s testimony 

 3

 An S&S violation is a violation “of such nature as could significantly and substantially 

contribute to the cause and effect of a . . . mine safety or health hazard.” 30 U.S.C. § 814(d). In 

order to establish the S&S nature of a violation, the Secretary must prove: “(1) the underlying 

violation of a mandatory safety standard; (2) a discrete safety hazard - that is, a measure of 

danger to safety - contributed to by the violation; (3) a reasonable likelihood that the hazard 

contributed to will result in an injury; and (4) a reasonable likelihood that the injury will be of a 

reasonably serious nature.” Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984); accord Buck Creek 

(continued...) 

37 FMSHRC Page 2483
that the failure to de-energize the agitator motor and block it against motion before replacing the 

guard exposed miners to the hazard of entanglement or the severing of fingers. Moreover, I note 

that the machinery itself was equipped with stickers in the area of the opening which warned of 

“Danger” and the need to “Keep Hands Clear,” with an illustration showing severed fingers. 

(Exs. G-5 and G-6; Sec’y Br. 11-12). 

Meyer, relying Berube’s testimony, argues that the closest Berube got to the shaft was 

three to four feet. (Meyer Br. 11). I do not credit Berube’s testimony regarding estimated 

distances. Berube, when asked on direct examination how far the “agitator machine” was from 

where he was standing, initially testified that it was a distance of two feet. (Tr. 122). When asked 

to confirm the distance of two feet, he responded “roughly,” and then proceeded to ask his own 

counsel to clarify the question before changing his estimate of the distance to four feet. Id. 

Further, while Berube testified that the distance from the unguarded opening to the shaft was 14 

inches, I find that the inspector’s estimation of the distance as being only a few inches and very 

close to the edge of the opening to be far more accurate when examined in conjunction with 

Exhibit G-5. (Tr. 32-33, 129-130). Finally, Meyer argues that the inspector’s failure to take 

measurements, or even get onto the scaffolding to examine the opening, discredits his testimony 

that the miners were “very close” to the hazard. (Meyer Br. 3). While Inspector Frandsen did not 

take actual measurements, he did ascend the scaffold and observe the missing guard prior to 

issuing the guarding violation to Molycorp. (Tr. 21). As a result, he was familiar with the space 

and I credit his distance estimates as well as his determination that Meyer’s employees were in 

close proximity to the hazard when they were on the scaffolding. 

Whether it was reasonably likely that the hazard contributed to by this violation will 

result in an injury is a close issue. The Commission has explained that the “reasonably likely” 

requirement does not require the Secretary to prove that an injury was “more probable than not.” 

U.S. Steel Mining Co., 18 FMSHRC 862, 865 (June 1996). In addition, the “Secretary need not 

prove a reasonable likelihood that the violation itself will cause injury” but, rather, that the 

hazard contributed to by the violation will cause an injury. Musser Engineering, Inc. and PBS 

Coals, Inc., 32 FMSHRC 1257, 1280-81 (Oct. 2010); Cumberland Coal Res., 33 FMSHRC 

2357, 2365 (Oct. 2011) (emphasis added). As discussed above, I find that Berube was in close 

proximity to the unguarded opening which created the entanglement and severing hazards 

discussed above. I find that the Secretary established that the hazards contributed to by the 

violation were reasonably likely to cause an injury. 

I also credit the inspector’s testimony that there was a reasonable likelihood that any 

injury will be of a reasonably serious nature up to and including severed fingers. For these 

reasons, I find that the violation was S&S. 

3

 (...continued) 

Coal Co., Inc., 52 F.3d 133, 135 (7th Cir. 1995); Austin Power Co., Inc., 861 F. 2d 99, 103 (5th 

Cir. 1988) (approving Mathies criteria). An experienced MSHA inspector’s opinion that a 

violation is S&S is entitled to substantial weight. Harlan Cumberland Coal Co., 20 FMSHRC 

1275, 1278-79 (Dec. 1998). 

37 FMSHRC Page 2484
4. Negligence and Unwarrantable Failure

I find that Meyer was moderately negligent and that the violation was not a result of the 

Meyer’s unwarrantable failure to comply with the mandatory standard. Much of the Secretary’s 

argument in support of his high negligence and unwarrantable failure designations is premised on 

his fact that Berube was an agent of the mine and was directly responsible for the violation. 

While I agree that Berube was agent of Meyer, I find that the actions of Berube and Heikinnen, 

were idiosyncratic and based upon a belief that they were not exposed to a hazard. 

The Commission has held that “the negligence of an operator’s ‘agent’ is imputable to the 

operator for penalty assessment and unwarrantable failure purposes.” Nelson Quarries, Inc., 31 

FMSHRC 318, 328 (Mar. 2009). The Mine Act defines an “agent” as “any person charged with 

responsibility for the operation of all or part of a coal or other mine or the supervision of miners 

in a coal or other mine[.]” 30 U.S.C. § 802(e). In determining whether an employee is an agent 

of the operator, the Commission has “‘relied, not upon the job title or the qualifications of the 

miner, but upon his function, [and whether it] was crucial to the mine’s operation and involved a 

level of responsibility normally delegated to management personnel.’” Ambrosia Coal & Constr. 

Co., 18 FMSHRC 1552, 1560 (Sept. 1996) (quoting U.S. Coal, Inc., 17 FMSHRC 1684, 1688 

(Oct. 1995)) (brackets in original); See also Martin Marietta Aggregates, 22 FMSHRC 633 (May 

2000). 

I find that Berube was an agent of Meyer and that his negligence may be properly 

imputed to Meyer. Berube testified that he was a foreman for Meyer and was responsible for 

ensuring that jobs were completed properly and on time. (Tr. 112). As a foreman he dealt with 

scheduling and worked with both Meyer’s safety department, as well as the safety department of 

Molycorp. (Tr. 112-113). Further, Berube agreed that he was responsible in part for safety on the 

job. (Tr. 113, 133). I find that Berube’s function was crucial to Meyer’s operation at Molycorp’s 

Mountain Pass Mine & Mill, involved a level of responsibility consistent with that of a person of 

management, and that he was an agent of Meyer. 

The Commission has recognized that “[e]ach mandatory standard . . . carries with it an 

accompanying duty of care to avoid violations of the standard, and an operator’s failure to meet 

the appropriate duty can lead to a finding of negligence if a violation of that standard occurs.” 

A.H. Smith Stone Co., 5 FMSHRC 13, 15 (Jan. 1983). In determining whether an operator has 

met its duty of care, the Commission considers “what actions would have been taken under the 

same circumstances by a reasonably prudent person familiar with the mining industry, the 

relevant facts, and the protective purpose of the regulation.” Jim Walter Res. Inc., 36 FMSHRC 

1972, 1975 (Aug. 2014) (footnote omitted). 

I find that Meyer was moderately negligent. I find that, while Berube’s act of flipping the 

guard back in place was a violation, it was idiosyncratic in nature. Neither Berube nor Bork 

viewed the work being done as a hazard. While I decline to credit Berube’s testimony that the 

shaft was 14 inches away from the unguarded opening, I do credit his honest belief that he did 

not expose himself to a hazard when he flipped the guard back into position from where he was 

standing. Meyer’s training materials, specifically its Employee Construction Risk Management 

Booklet, addresses similar situations and dictates that Meyer employees should lock and tag out 

37 FMSHRC Page 2485
the machinery or equipment before beginning work. (Ex. R-1 p. 23). I note that Inspector 

Frandsen testified that, during his time at the mine site, he developed a good respect for Meyer, 

and felt that Meyer was a very good contractor with a good safety department. (Tr. 19). Further, 

Berube testified that Meyer’s safety training was superb compared to training he had received at 

other companies and that Meyer’s safety culture across its operations nationwide was good and 

involved a commitment to safety on behalf of senior management. (Tr. 115). Because Berube’s 

actions were based upon the mistaken belief that a violation did not exist and given Meyer’s 

training materials and its safety culture, I find that moderate negligence is appropriate. 

Accordingly, I MODIFY the citation to moderate negligence. 

The unwarrantable failure terminology is taken from section 104(d) of the Act, 30 U.S.C. 

§ 814(d), and refers to more serious conduct by an operator in connection with a violation. In

Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987), the Commission determined that

unwarrantable failure is aggravated conduct constituting more than ordinary negligence. Id. at

2001. Unwarrantable failure is characterized by conduct described as “reckless disregard,”

“intentional misconduct,” “indifference,” or a “serious lack of reasonable care.” Id. at 2002-04;

Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991); see also Buck Creek Coal,

Inc., 52 F.3d 133, 136 (7th Cir. 1995) (approving Commission’s unwarrantable failure test). The

Commission has explained that whether a citation is an “unwarrantable failure” is a question that

should be evaluated based on the facts and circumstances in each case, and in light of each of the

following factors: (1) the length of time that the violation has existed; (2) the extent of the

violative condition; (3) whether the operator has been placed on notice that greater efforts were

necessary for compliance; (4) the operator’s efforts in abating the violative condition; (5)

whether the violation was obvious; ( 6) whether the condition posed a high degree of danger; and

(7) the operator’s knowledge of the existence of the violation. See Consolidation Coal Co., 22

FMSHRC 340 (Mar. 2000); IO Coal Co., 31 FMSHRC 1346 (Dec. 2009). All of the relevant

facts and circumstances of each case must be examined to determine if an actor’s conduct is

aggravated, or whether mitigating circumstances exist. Consol, 22 FMSHRC at 353.

It is important to put this violation into context. The guards on about 93 of the tanks in 

the separations building had been left in an open position like the guard on the subject tank. (Tr. 

42). Berube was sent to the building to investigate the situation and to come up with a solution. 

After investigating the situation at the tank closest to the door, Berube determined that the guards 

on the tanks needed to be put back into place and secured. Inspector Frandsen testified that 

Berube told him that he was going to get Molycorp to shut down the agitators as his next step in 

the process. (Tr. 31, 64-65). Berube’s mistake was that he flipped the guard back into position on 

the first tank before he asked that the tanks be shut down. There was no reason for him to take 

this action. I find that this action did not rise to the level of aggravated conduct. 

In IO Coal Co., 31 FMSHRC at 1352, the Commission emphasized that the length of 

time that the violative condition existed is a “necessary element” of the unwarrantable failure 

analysis. The Commission has found that a duration of a “matter of seconds” may weigh against 

an unwarrantable failure finding. Dawes Rigging & Crane Rental, 36 FMSHRC 3075, 3080 

(Dec. 2014). Here, the violative condition existed for at most a matter of seconds between the 

time when Berube first touched the guard and when the guard fell into position after he flipped it 

up and over. 

37 FMSHRC Page 2486
In IO Coal Co., the Commission explained that the “extent of the violative condition is an 

important element in the unwarrantable failure analysis.” 31 FMSHRC at 1351. The Commission 

has explained that the purpose of this element is to “account for the magnitude or scope of the 

violation[,]” and the judge may analyze it by looking at, among other things, the “extent of the 

affected area as it existed at the time the citation was issued[,]” the number of persons affected, 

and the time and resources required to correct the condition. Dawes Rigging & Crane Rental, 36 

FMSHRC 3075, 3079-3080 (Dec. 2014) (citing E. Associated Coal Corp., 32 FMSHRC 1189, 

1195 (Oct. 2010) and Watkins Eng'rs & Constructors, 24 FMSHRC 669, 681 (July 2002)0; 

Consolidation Coal Co., 35 FMSHRC 2326, 2331 (Aug. 2013). In Dawes Rigging the 

Commission found that, because only one miner endangered himself by walking under a 

suspended boom, the violation was not extensive. Id. Here, only Berube was exposed to the 

hazard when he flipped the guard into position. While Heikinnen engaged in repairs or 

maintenance when he placed the bolt through the hole on the right hand side of the guard after it 

was flipped into place, the inspector agreed that he was not exposed to a hazard because the 

guard was in place. (Tr. 61-62). The violative condition was limited to conduct at this particular 

tank and guard. I find that the violation was not extensive. 

The Commission has explained that repeated similar violations, even if those prior 

violations were not a result of an unwarrantable failure, and past discussions with MSHA about a 

problem at the mine, may serve to put an operator on notice that increased efforts to comply are 

necessary. IO Coal Co., 31 FMSHRC at 1353-1354. Here, the Secretary presented no evidence 

regarding past discussions with MSHA. The body of the citation states that Meyer was not cited 

for a violation of this standard in the two years prior to the issuance of this citation. (Ex. G-1). 

In evaluating the operator’s efforts in abating the violative condition the judge should 

examine those abatement efforts made prior to the issuance of the citation or order. 

Consolidation Coal Co., 35 FMSHRC 2326, 2342 (Aug. 2013) (citing IO Coal Co., 31 

FMSHRC at 1356 and Warwick Mining Co. 18 FMSHRC 1568, 1574 (Sept. 1996)). Here, there 

was only a matter of seconds between when the violative condition arose and when it ended. As 

a result, there was no time to abate this condition. I note that Meyer had taken steps to prevent 

such conduct from occurring through the implementation of its Employee Construction Risk 

Management Booklet, which specifically required Meyer employees to lock and tag out 

machinery or equipment before beginning maintenance work. 4 (Ex. R-1 p. 23). 

The obviousness of the violative condition is an important factor in the unwarrantable 

failure analysis. IO Coal Co., 31 FMSHRC at 1356. In Eastern Associated Coal Corp., 32 

FMSHRC 1189, 1200-1201 (Oct. 2010), the Commission cited evidence that the violative 

conditions were not obscured from view in upholding a judge’s finding that a roof control 

violation was obvious. Meyer argues that, because Berube credibly testified that he did not 

believe that he was exposed to a hazard or that a violation existed, the violation was not obvious. 

(Meyer Br. 15-17). I disagree. I have already determined that a hazard existed and that the 

4

 Meyer’s Employee Construction Risk Management Booklet states that “[e]mployees 

shall place a lock and tag at the point of energy isolation on any equipment or machine before 

performing any maintenance, adjustment, or construction to indicate that there shall not be any 

operation until the individual has removed the lock and tag.” (Ex. R-1 p. 23). 

37 FMSHRC Page 2487
presence of a hazard was not required for the finding of a violation. I find that the condition cited 

by the inspector was obvious. The agitator was in operation and Respondent’s employee began 

repairs or maintenance without powering off the equipment and blocking it against hazardous 

motion. 

The Commission has determined that a high degree of danger posed by a violation is an 

aggravating factor that supports an unwarrantable failure finding. IO Coal Co., 31 FMSHRC at 

1355-1356. As stated above, I find that this violation was S&S. Berube’s proximity to the 

unguarded opening of the rotating shaft exposed him to a hazard which could have reasonably 

been expected to result in an entanglement type injury or severed fingers. The degree of the 

danger was only moderately high as opposed to extremely high. 

In IO Coal, the Commission reiterated the well settled law that, in addition to actual 

knowledge, an operator’s knowledge of the existence of a violation may be established where the 

operator “reasonably should have known of the violative condition.” 31 FMSHRC at 1356- 

1357. Meyer should have known of the violation. Although Berube did not believe that a 

violation existed, Meyer’s own safety material suggests that Berube and Heikinnen should have 

locked and tagged out the machinery or equipment before beginning work on the guard. (Ex. R-1 

p. 23). Moreover, just as the cited standard did not require the presence of a hazard before 

powering off the agitator and blocking it against hazardous motion, the Meyer’s safety policy 

also does not explicitly require the presence of a hazard before locking and tagging out any 

equipment or machinery before conducting maintenance. Id. 

After careful consideration of each of the above factors, I find that Meyer did not 

unwarrantably fail to comply with the mandatory standard. While the violative condition was 

obvious, potentially involved a high degree of danger, and was known to the operator through its 

agent, it was not extensive, did not exist for significant period of time, the operator did not have 

notice that greater efforts were necessary for compliance, and it had taken steps towards 

preventing the cited conduct. In reaching this conclusion I have taken into account the 

Secretary’s argument that “the important factor is the role that CR Meyer’s foreman played in 

this blatant disregard for a basic safety measure.” (Sec’y Br. 14). However, given the above 

analysis and my finding that Berube’s action was idiosyncratic and without any real purpose, I 

find that Meyer’s conduct was not aggravated or a result of its unwarrantable failure to comply 

with the mandatory standard. Accordingly, I VACATE the unwarrantable failure finding and 

modify the citation to a 104(a) citation. 

II. APPROPRIATE CIVIL PENALTY 

Section 110(i) of the Mine Act sets forth the criteria to be considered in determining an 

appropriate civil penalty. Meyer had a history of eight violations during the 15 months preceding 

the issuance of the subject citation, including one imminent danger order.5

 None of these 

enforcement actions were taken at the Mountain Pass Mine & Mill. Respondent is a large 

nationwide contractor that worked over 200,000 hours. (Exhibit A to Petition for Assessment of 

 5

 The parties did not submit a history of violations. The court obtained the history data 

from MSHA’s Mine Data Retrieval System, available at http://www.msha.gov/drs/drshome.htm. 

37 FMSHRC Page 2488
Civil Penalty). The violation was abated in good faith. The penalty assessed in this decision will 

not have an adverse effect upon its ability to continue in business. (Jt. Stip. ¶ 9). The violation 

was serious and Meyer’s negligence was moderate. 

The Secretary proposed the penalty under his special assessment regulation. I have 

modified the citation to a 104(a) citation with moderate negligence. I find that the Secretary did 

not establish that this violation was “particularly serious or egregious” so as to justify the 

proposed special assessment of $8,000.00. Coal Employment Project v. Dole, 889 F2d. 1127, 

1129-30 (D.C. Cir. 1989). More importantly, I am not bound by the Secretary’s penalty proposal. 

The Special Assessment Narrative Form attached to the Petition for Assessment of Civil Penalty 

shows that, had this citation been regularly assessed, the penalty would have been $2,000.00. 

(Special Assessment Narrative Form attached to Petition for Assessment of Civil Penalty). 

Moreover, if Inspector Frandsen had determined that the violation was the result of Meyer’s 

moderate negligence, the Secretary’s proposed penalty would have been about $555.00, before 

any reduction for good faith abatement. 30 C.F.R. § 100.3. In light of my findings set forth 

above, I find that a penalty of $800.00 is appropriate for this violation. 

III. ORDER

For the reasons set forth above, Citation No. 8700228 is MODIFIED to a citation issued 

under section 104(a) of the Mine Act and the degree of negligence is reduced to moderate. In all 

other respects the citation is AFFIRMED. CR Meyer & Sons Company, Inc., is ORDERED TO 

PAY the Secretary of Labor the sum of $800.00 within 30 days of the date of this decision.6

/s/ Richard W. Manning 

 Richard W. Manning 

 Administrative Law Judge 

Distribution: 

Abigail Daquiz, Esq., Office of the Solicitor, U.S. Department of Labor, 300 Fifth Avenue, Suite 

1120, Seattle, WA 98104-2397 (Certified Mail) 

Eric E. Hobbs, Esq., Michael Best & Friedrich LLP, 100 E. Wisconsin Avenue, Suite 3300, 

Milwaukee, WI 53202-4108 (Certified Mail) 

6

 Payment should be sent to the Mine Safety and Health Administration, U.S. Department 

of Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390 

37 FMSHRC Page 2489
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVENUE NW, SUITE 520N 

WASHINGTON, D.C. 20004

October 30, 2015 

SUMMARY DECISION

ORDER DENYING MOTION FOR RECUSAL 

ORDER DENYING MOTIONS FOR RECONSIDERATION 

Before: Judge Bulluck 

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

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

(“MSHA”) against John Richards Construction (“JRC”), pursuant to section 105(d) of the 

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

total penalty of $200.00 for two alleged violations of his mandatory safety standards regarding 

yearly inspection of fire extinguishers and maintenance of a handrail on an elevated walkway. 

The Secretary filed a Motion for Summary Decision (“Sec’y Mot.”) with attached 

exhibits (“Exs. P-1 through P-8”), including the Declaration of MSHA Inspector David J. Small 

and his inspection notes for both citations. JRC responded with a Brief in Opposition to 

Secretary’s Motion for Summary Decision (“Resp’t Br.”), with attached Affidavit of Mark C. 

Smith and Fire Extinguisher Records covering years 2013 and 2014 (“Exs. R-1 and R-2”), that 

also moves for my recusal, for reconsideration of the Order Granting Secretary’s Motion for 

Simplified Proceedings, and the Order Denying Transcript Request. 

I. Procedural Rulings

Commission Rule 81(b) permits a party to request that a Judge withdraw from a

proceeding on grounds of personal bias or other disqualification by setting forth in detail the 

matters alleged to constitute personal bias or other disqualification in an affidavit. 29 C.F.R. § 

2700.81(b). JRC alleges that I colluded with counsel for the Secretary to circumvent JRC’s 

rights, as evidenced by my decision to continue the originally scheduled September 9, 2015 

hearing. Resp’t Br. at 2. This argument fails in that unfavorable “judicial rulings alone almost 

never constitute a valid basis for a bias or partiality motion” absent evidence of “deep-seated 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner, 

v. 

JOHN RICHARDS CONSTRUCTION, 

 Respondent. 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 2015-101-M 

AC No. 24-020270-361812 

Mine: Richards Pit 

37 FMSHRC Page 2490
favoritism or antagonism as would make fair judgment impossible.” Medusa Cement Co., 20 

FMSHRC 144, 148-49 (Feb. 1998) (quoting Liteky v. United States, 510 U.S. 540, 555 (1994)); 

Rock of Ages Corp., 20 FMSHRC 106, 125 (Feb. 1998) (citing Liteky for the proposition that 

judicial rulings are inadequate grounds for disqualification). As stated during conference calls 

with the parties and in an email from my law clerk, I rescheduled the hearing to allow the parties 

an opportunity to continue negotiation over the citations at issue, to permit additional time for 

issuance of my summary decision in the companion docket, WEST 2014- 440-M, and to 

consider any motions filed by the parties in the instant matter, including a motion for summary 

decision by either or both parties. Since my decision to continue the hearing was grounded in the 

undisputed facts of this case, as stated by John Richards, himself, and agreed to by the 

Secretary’s counsel, Lauren Polk, and was consistent with my fundamental duties to preside over 

this proceeding, JRC’s motion for my recusal is, hereby, DENIED. 

 JRC’s motions for reconsideration of the Order Granting Secretary’s Motion for 

Simplified Proceedings, and the Order Denying Transcript Request have been considered. See 

Resp’t Br. at 1-2. JRC does not, however, present any new information or sufficient basis to 

reverse either decision. Therefore, JRC’s motion for reconsideration of the Order Granting 

Secretary’s Motion for Simplified Proceedings is, hereby, DENIED; and JRC’s motion for 

reconsideration of the Order Denying Transcript Request is, hereby, DENIED. 

II. Summary Decision 

 Pursuant to Commission Rule 67(b), “[a] motion for summary decision shall be granted 

only if the entire record, including the pleadings, depositions, answers to interrogatories, 

admissions, and affidavits, shows: (1) [t]hat there is no genuine issue as to any material fact; and 

(2) [t]hat the moving party is entitled to summary decision as a matter of law.” 29 C.F.R. § 

2700.67(b). When considering a motion for summary decision, the court looks at the record “‘in 

the light most favorable to . . . the party opposing the motion,’ and . . . ‘the inferences to be 

drawn from the underlying facts contained in [the] materials [supporting the motion] must be 

viewed in the light most favorable to the party opposing the motion.’” Hanson Aggregates New 

York, Inc. 29 FMSHRC 4, 9 (Jan. 2007) (quoting Poller v. Columbia Broadcasting Sys., Inc., 368 

U.S. 464, 473 (1962) and United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)). 

 Based on the facts represented by the parties, I find that there is no genuine issue as to 

any material fact. For the reasons set forth below, I conclude that the Secretary is entitled to 

summary decision as a matter of law on the issue of whether JRC violated both mandatory safety 

standards. Accordingly, I AFFIRM the citations, as issued, and assess penalties against JRC. 

A. Factual Background 

The Richards Pit is an intermittent sand and gravel mine in Seeley Lake, Montana, owned 

and operated by JRC, which employs two to three employees. Exs. P-1 at 1, P-7 at 1-2. John 

Richards is the owner of JRC. Answer to Pen. Pet. at 1. On July 29, 2014, MSHA Inspector 

David Small conducted a regular inspection of the Richards Pit while the portable crushing plant 

was not operating, and subsequently issued two citations to JRC. Sec’y Br. at 2; Ex. P-1 at 1-2. 

37 FMSHRC Page 2491
The Secretary contends that no material facts are at issue, and that he is entitled to 

summary decision as a matter of law. Sec’y Br. at 2. On the contrary, JRC argues that material 

facts are in dispute. Resp’t Br. at 2. Looking at the record in the light most favorable to JRC, 

however, I conclude that there are no material facts in dispute. 

B. Material Facts

1. Citation No. 8762878

It is uncontested that during Small’s July 29, 2014 inspection of the fire extinguishers at 

the Richards Pit, Richards was unable to produce records that the cited fire extinguishers had 

received an annual inspection. Ex. P-1 at 2. According to Small, Richards stated that he was 

unaware that he needed to conduct yearly inspections of the fire extinguishers, and asked Small 

for additional time to conduct the inspections. Exs. P-1 at 2, P-4 at 1. In order to have the citation 

terminated, JRC produced an invoice indicating that Missoula Fire Equipment had performed the 

inspections of the cited fire extinguishers on August 6, 2014. Exs. P-3, P-5. The Secretary infers 

from these facts that annual inspections had not been performed. Sec’y Br. at 5. 

Through conference calls and subsequent submissions, Richards has represented that fire 

extinguisher inspections had been performed and were current at the time of Small’s inspection. 

Resp’t Br. at 2; Exs. R-1, R-2. This dispute is immaterial, however, because its resolution does 

not affect “the outcome of the suit under governing law.” Anderson v. Liberty Lobby, 477 U.S. 

242, 248 (1986). The issue before me is not whether the annual inspections had been performed, 

but whether, at the time of inspection, the operator was able to demonstrate to the inspector 

compliance with the standard by producing adequate documentation of timely inspections. 

2. Citation No. 8762879

While inspecting the portable crusher plant at the Richards Pit, Small observed a missing 

23-inch section of handrail associated with an elevated walkway that was nine feet above ground

level. Exs. P-1 at 2, P-6. According to Small, Richards stated that one of his employees had

removed the handrail a week prior to the inspection. Ex. P-1 at 2. It is undisputed that the cited

section of handrail was missing at the time of inspection, that the missing section was readily

observable, that the crusher plant had not operated in 2014, and that there was no barricade or

signage warning of the alleged hazard. Exs. P-1 at 2, P-7 at 14. JRC argues, however, that the

section was in the midst of repairs. Resp’t Br. at 1. The Secretary disagrees, contesting that JRC

was “actively performing maintenance” on the handrail section. Sec’y Br. at 6.

Resolution of whether the handrail on the portable crusher was in a maintenance mode is 

not material to the fact of violation, given that JRC had not reported to MSHA that the plant had 

been shut down, and even though the plant was not operating, the elevated walkway was openly 

accessible, without benefit of any safety precautions addressing the unprotected area. 

37 FMSHRC Page 2492
C. Discussion and Analysis 

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

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

Mining Corp., 17 FMSHRC 1819, 1838 (Nov. 1995) (citing Garden Creek Pocahontas Co., 11 

FMSHRC 2148, 2152 (Nov. 1989). 

1. Citation No. 8762878 

a. Fact of Violation 

Small issued 104(a) Citation No. 8762878, alleging a violation of section 56.4201(a)(2) 

that was “unlikely” to cause an injury resulting in “lost workdays or restricted duty,” affecting 

“one person,” and was caused by JRC’s “low” negligence.1

 The “Condition or Practice” is 

described as follows: 

The yearly inspection of the fire extinguishers were not conducted at the mine 

site. At least once every 12 months checks shall be conducted to determine the 

condition of the extinguishing agent, mechanical parts, hose, nozzle, and vessel to 

determine that the extinguisher will function properly. Based on continued mining 

operations a person could be injured if a fire were to occur and a fire extinguisher 

did not function properly. 

Ex. P-2. The citation was terminated on August 13, 2014, based upon production of an invoice 

documenting that Missoula Fire Equipment had checked the fire extinguishers on August 6, 

2014. Exs. P-3, P-5. 

 The Secretary contends that JRC’s failure to provide Small with current annual inspection 

records of the fire extinguishers during the inspection violated section 56.4201(a)(2). Sec’y Br. 

at 5. Regarding this contention, Small asserts that he was presented with no documentation that 

the inspections had been performed, although the fire extinguishers appeared to be in good 

condition. Exs. P-1 at 2, P-4. On the other hand, JRC argues that the annual fire extinguisher 

inspections had, indeed, been performed by employee Mark Smith. Resp’t Br. at 1; Exs. R-1, R2; Ex. P-7 at 14. 

Section 56.4201(a)(2) requires, at least, annual maintenance checks of fire extinguishers 

to ensure that they are operational. As noted earlier, this standard is only enforceable if the 

operator demonstrates to the inspector, through records or tags, that the fire extinguishers have 

been properly inspected. Constr. Materials Corp., 23 FMSHRC 321, 323 (Mar. 2001) (ALJ); see 

North Idaho Drilling, Inc., 35 FMSHRC 2472, 2489-90 (Aug. 2013) (ALJ) (outdated tags 

 1

 30 C.F.R. § 56.4201(a)(2) provides that “[f]irefighting equipment shall be inspected 

according to the following schedules: [a]t least once every twelve months, maintenance checks 

shall be made of mechanical parts, the amount and condition of extinguishing agent and 

expellant, and the condition of the hose, nozzle, and vessel to determine that the fire 

extinguishers will operate effectively.” 

37 FMSHRC Page 2493
affixed to extinguisher established violation); Carder, Inc., 27 FMSHRC 839, 853-54 (Nov. 

2005) (ALJ) (“last proof” of an inspection established violation); Hollow Contracting, Inc., 18 

FMSHRC 2044, 2059 (Nov. 1996) (ALJ) (finding a section 56.4201(b) violation where the fire 

extinguishers lacked inspection documentation). 

In this case, even when viewing the evidence in the light most favorable to JRC, i.e, 

drawing an inference that JRC had timely inspected the fire extinguishers prior to Small’s 

inspection, it is undisputed that JRC failed to provide Small with documentation that the 

inspections had been performed. Therefore, I find that the Secretary has established a violation of 

section 56.4201(a)(2). 

b. Gravity and Negligence

The record establishes that the Richards Pit operated only intermittently, employing two 

to three miners, that the portable crusher had not been operated in 2014, and that the fire 

extinguishers appeared to be in good condition. Therefore, I find that the violation was unlikely 

to result in injuries causing lost work days or restricted duty and, viewing the evidence in the 

light most favorable to the operator - - that the inspections actually had been timely performed, 

but that the documentation was unavailable for whatever reason - - that JRC’s negligence was 

low in committing the violation, as alleged by the Secretary. 

2. Citation No. 8762879

a. Fact of Violation

Small issued 104(a) Citation No. 8762879, alleging a violation of section 56.11002 that 

was “unlikely” to cause an injury resulting in “lost workdays or restricted duty,” affecting “one 

person,” and was caused by JRC’s “moderate” negligence.2

 The “Condition or Practice” is 

described as follows: 

A section of the top handrail was missing located on the elevated walkway on the 

impact crusher for the crusher plant for road rock material. The section missing is 

approximately 23 inches long, 42 inches above the walkway floor and nine feet 

above ground level. Based on continuing mining operations a person could be 

injured if they were to fall from that height. 

Ex. P-6. The citation was terminated on July 29, 2014 when a handrail was welded in place.

The Secretary contends that section 56.11002 requires JRC to maintain the elevated 

walkway in good condition, with handrails, since the walkway is accessible to miners. Sec’y Br. 

at 6. JRC argues that the handrail was removed because it was loose, that the section was in the 

2

 30 C.F.R. § 56.11002 provides that “[c]rossovers, elevated walkways, elevated ramps, 

and stairways shall be of substantial construction provided with handrails, and maintained in 

good condition. Where necessary, toeboards shall be provided.”

37 FMSHRC Page 2494
midst of repairs, and that the crusher would not have been operated without a pre-shift inspection 

that would have noted, and required repair of, the missing section. Resp’t Br. at 1. 

It is uncontested that the portable crusher had not been operated in 2014 and that, viewing 

the evidence in the light most favorable to JRC, the handrail was being repaired. Considering the 

evidence that the walkway was elevated nine feet above ground level, and was missing a 23-

inch section of handrail, without barricade or warning signage to prevent access, it is clear that 

any miner accessing the walkway would be exposed to a fall hazard, even from something as 

simple as a distraction, a misstep, or a momentary loss of balance. 

I find JRC’s arguments unpersuasive. Section 56.11002 does not condition a finding of 

violation upon any consideration of “pending repairs,” or an operator’s speculation that it would 

have cured a defect prior to operating machinery sometime in the future. See Cactus Canyon 

Quarries of Texas, Inc., 23 FMSHRC 280, 290 (Mar. 2001) (ALJ) (finding an S&S violation of 

section 56.11002 where a fall of three to four feet was likely); Alsea Quarries, 33 FMSHRC 

1840, 1843 n.3, 1845 (Aug. 2011) (ALJ) (finding a section 56.11002 violation in spite of 

evidence that the crusher was under repair); Asphalt, Inc., 15 FMSHRC 2206, 2208 (Oct. 1993) 

(ALJ) (upholding a section 56.11002 violation even though the mine was in the midst of repairs 

during inspection). Therefore, I find that the Secretary has established a violation of section 

56.11002. 

b. Gravity and Negligence 

It is uncontested that a miner would be exposed to injuries such as broken bones as a 

result of a nine-foot fall, and that the risk of injury was unlikely because only the handrail was 

being repaired, rather than the plant being operated. It is also clear from the record that the 

violation had existed for one week, and that Richards had knowledge of the condition because 

the missing railing was readily observable. Therefore, I find, as alleged by the Secretary, that 

JRC was moderately negligent in the violating the standard. 

D. Penalty 

The judge must independently determine the appropriate assessment by proper 

consideration of the six penalty criteria set forth in section 110(i) of the Act, 30 U.S.C. § 820(i). 

See Sellersburg Co., 5 FMSHRC 287, 291-92 (Mar. 1983), aff’d 736 F.2d 1147 (7th Cir. 1984). 

 Applying the penalty criteria, and based upon a review of MSHA’s online records, I find 

that JRC is a small, intermittent operator, with no prior violations of section 56.11002 or section 

56.4201(a)(2) during the relevant time period, and an overall violation history that is not an 

aggravating factor in assessing appropriate penalties. I also find that JRC demonstrated good 

faith in achieving rapid compliance after notice of the violations. Since JRC has not put forth any 

evidence that imposition of the proposed penalties would adversely affect its ability to remain in 

business, “it is presumed that no such adverse [e]ffect would occur.” Sellersburg, 5 FMSHRC 

at 294 (citing Buffalo Mining Co., 2 IBMA 226, 247-48 (Sept. 1973)). 

The remaining criteria involve consideration of the gravity of the violations and JRC’s 

negligence in committing them. These factors have been discussed fully, respecting each 

37 FMSHRC Page 2495
violation. Therefore, considering my findings as to the six penalty criteria, the penalties are set 

forth below. 

1. Citation No. 8762878

It has been established that this violation of section 56.4201(a)(2) was unlikely to cause 

an injury that could reasonably be expected to result in lost workdays or restricted duty, that 

JRC’s negligence was low, and that it was timely abated. Therefore, I find that a penalty of 

$100.00, as proposed by the Secretary, is appropriate. 

2. Citation No. 8762879

It has been established that this violation of section 56.11002 was unlikely to cause an 

injury that could reasonably be expected to result in lost workdays or restricted duty, that JRC’s 

negligence was moderate, and that it was timely abated. Therefore, I find that a penalty of 

$100.00, as proposed by the Secretary, is appropriate. 

ORDER

WHEREFORE, the Secretary’s Motion for Summary Decision is GRANTED; 

Respondent’s Motions for Recusal and Reconsideration of Order Granting Secretary’s Motion 

for Simplified Proceedings and Order Denying Transcript Request are DENIED; and John 

Richards Construction is ORDERED TO PAY a total civil penalty of $200.00 within 30 days of 

this Decision.3

 /s/ Jacqueline R. Bulluck 

Jacqueline R. Bulluck

Administrative Law Judge 

202-434-9987

3 Payment should be sent to: Mine Safety and Health Administration, U.S. Department of 

Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390. Please include Docket 

number and A.C. number.

37 FMSHRC Page 2496
Distribution: 

Timothy J. Turner, Esq., U.S. Department of Labor, Office of the Solicitor, 1244 Speer 

Boulevard, Suite 515, Denver, CO 80204 

John Richards, John Richards Construction, 2824 Highway 83 North, P.O. Box 316, Seeley 

Lake, MT 59868 

/tcp 

37 FMSHRC Page 2497

ADMINISTRATIVE LAW JUDGE ORDERS
37 FMSHRC Page 2498
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

721 19TH ST. SUITE 443 

DENVER, CO 80202-2500 

TELEPHONE: 303-844-5266 / FAX: 303-844-5268 

October 6, 2015 

ORDER GRANTING RESPONDENT’S 

MOTION TO COMPEL MSHA SPECIAL ASSESSMENT REVIEW FORMS 

Before: Judge Simonton 

 These cases are before me upon a petition for assessment of a civil penalty under section 

105(d) of the Federal Mine Safety and Health Act of 1977. The Chief Judge assigned these 

matters to me on June 22, 2015 and distributed the court’s standard prehearing order to both 

parties. Within, the parties were instructed that, 

... they shall provide a copy of all relevant, discoverable 

documents that relate to each citation/order including, but not 

limited to, copies of inspection notes, citation documentation, 

narratives, photos ... Notes taken during or shortly after the 

inspection that contain factual information are not privileged and 

must be disclosed as a part of the exchange of information. 

Prehearing Order, 1. 

 On September 17, 2015, the Respondent moved to compel the production of MSHA’s 

special assessment review forms (“SAR forms”) for the six specially assessed citations contained 

in the above dockets. Resp. Mot., 1. The Secretary opposed the motion, stating that the SAR 

forms contain the “pre-decisional” thoughts, opinions, and recommendations of MSHA 

personnel and are protected by deliberative process privilege. Sec’y Ans., 4-5 (citing Jordan v. 

U.S. Dept. of Justice, 591 f.2d 753, 772 (D.C. Cir. 1978); In re Contests of Respirable Dust 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner, 

 v. 

COEUR ALASKA, INC., 

 Respondent. 

 CIVIL PENALTY PROCEEDINGS 

Docket No. WEST 2015-346-M 

A.C. No. 50-01544-370187 

Docket No. WEST 2015-401-M 

A.C. No. 50-01544-373015 

Docket No. WEST 2015-422-M 

A.C. No. 50-01544-373488 

Docket No. WEST 2015-470-M 

A.C. No. 50-01544-375449 

Mine: Kensington 

37 FMSHRC Page 2499
Sample Alteration Cases 14 FMSHRC 987, 990-93 (June 1992)(“Dust Cases”); Consolidated 

Coal, 19 FMSHRC 1239, 1246 (July 1997). 

On September 28, 2015, I ordered the Secretary to submit the SAR forms for my en 

camera review to determine whether the SAR forms contained information protected by the 

deliberative process privilege. Order for En Camera Review.1 Within that order, I acknowledged 

the current split in ALJ ruling on this issue. Id at 2. However, I also highlighted several of my 

colleagues’ findings upon actual review of SAR forms that, 

The forms contain no meaningful discussion of the pros and cons 

of specially assessing the cited standards and no exegesis of the 

policy reasons behind the Secretary's choices. 

Consol, 2012 WL 4753924, *2 (July 2012)(ALJ Barbour)(finding that SAR forms were not 

protected by deliberative process); see also Traylor Mining, 37 FMSHRC 1373, 1373 (June 

2015)(ALJ Manning)(stating that disclosure of SAR forms would not expose the Secretary’s 

deliberations in any meaningful way). 

 After en camera review, I conclude that the SAR forms for Citation Nos. 8611879, 

8786162, 8611872, 8611874, 8611875, and 8611880 do not contain any deliberative content. 

On the first substantive section of the form, the inspector summarizes the facts of the citation at 

the beginning of the SAR form and recommends the citation for special assessment. On the 

second portion of the form, a series of supervisors either approve or disapprove the special 

assessment designation with very brief one or two sentence statements. 

All of the information contained on these forms is strictly factual in nature, comprised 

primarily of concise descriptions of the alleged violation’s gravity and the operator’s negligence. 

None of the information on the submitted forms reveal broad policy considerations or the 

“deliberative” nature of the agency’s decision making process. Accordingly, the forms are not 

protected by the deliberative process privilege and must be disclosed. Dust Cases, 14 FMSHRC 

at 1993 (“purely factual information that does not expose an agency’s decision making process 

does not come within the ambit of privilege”). 

Although not critical to my ruling, I must note that for at least one citation, Citation No. 

8611880, there is a unique fact listed in the inspector’s summary within the SAR form that is not 

fully described in either the original citation or the Special Assessment Narrative form. 

Regardless of whether or not this or other facts are available through other disclosures, the 

Respondent is entitled to the full factual basis upon which the special assessment was issued so 

that it may mount a complete defense to both the fact of violation and the assessed penalty. See 

Traylor Mining 37 FMSHRC 1373 (stating that any significant deviation from the Secretary’s 

penalty assessment must be explained by the ALJ); see also Sellersburg Stone, 5 FMSHRC 287, 

1

 I incorporate all observations, findings, and references of the September 28 Order 

within this ruling. A copy of the September 28 Order has been attached for record purposes. 

37 FMSHRC Page 2500
293 (Mar. 1983); Hubb Corp., 22 FMSHRC 606, 612 (May 2000); Mize Granite Quarries Inc., 

34 FMSHRC 1760, 1763 (Aug. 2012). 

ORDER

The Secretary is ordered to provide complete copies of the SAR forms for Citation Nos. 

8611879, 8786162, 8611872, 8611874, 8611875, and 8611880 to the Respondent without delay. 

/s/ David Simonton 

David Simonton 

Administrative Law Judge 

Distribution: 

Sean Allen, Office of the Solicitor, MSHA Backlog Project, 1999 Broadway Suite 800 

Denver, CO 80202-5708 

Donna Vetrano Pryor, Jackson Lewis, LLP, 950 17th Street, Suite 2600 Denver, CO 80202 

37 FMSHRC Page 2501
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9933 / FAX: 202-434-9949 

October 16, 2015 

ORDER REGARDING COMPLAINANT’S MOTION FOR DAMAGES1

Before: Judge William B. Moran 

In this section 105(c)(3) action under the Federal Mine Safety and Health Act of 1977, 

30 U.S.C. § 801 et seq. (2012) (“Mine Act” or “Act”), Complainant, Matthew A. Varady, 

asserted that he was fired by Veris Gold USA, Inc., because of safety and health complaints he 

voiced related to his job at Veris’ Jerritt Canyon Mill. The Court issued its decision on 

September 2, 2015, finding that Complainant was so discriminated against. That decision 

directed Complainant to provide his itemized and documented damages within 30 days of the 

decision. 

The Court will address each of the items of damages and remedies sought by 

Complainant in his Motion. Initially, it is important to note that the Court cannot award any 

damages until Complainant submits an affidavit which provides the date he resumed 

gainful employment and which declares whether workmen’s unemployment compensation 

was received or not, and, if it was received, the dates and all amounts received through 

such compensation. 

“1: The sum of $25.57 an hour, plus interest at a rate of 5%, for 76 hours a pay period, as 

regular hourly pay, from the date of Nov 8, 2013 to the date of April 21, 2014 equaling 11 pay 

periods. Totaling $22,438.24.” For the reasons identified in the paragraph below, the Court 

cannot rule on this item at this time. 

1

 In Varady’s document seeking damages, Complainant also filed a motion to rule on 

successorship. In that document, “Complainant motions the court to find the new ownership, 

Jerritt Canyon Gold, jointly and severally liable for damages using the 9 factors set forth in the 

successorship doctrine enunciated by the Commission in Glenn Munsey vs. Smitty Baker Coal 

Co. 2 FMSHRC 3463 (December 1980).” Motion at 3. Jerritt Canyon Gold was not a party to 

these proceedings and is not presently a party. The Court does not believe that it has jurisdiction 

to rule on successorship. In a related case, Lowe v. Veris Gold, Inc., WEST 2014-614-DM, the 

Court issued its decision on October 15, 2015, requesting direction from the Commission as to 

the same successorship issue. Accordingly, the Court defers ruling on this motion at this time. 

MATTHEW A. VARADY, 

 Complainant, 

v. 

VERIS GOLD USA, INC., 

 Respondent. 

 DISCRIMINATION PROCEEDING 

Docket No. WEST 2014-307-DM 

WE-MD 14-03 

Mine: Jerritt Canyon Mill 

Mine ID: 26-01621 

37 FMSHRC Page 2502
“2: The sum of $38.85 an hour, plus interest at a rate of 5%, for 56 hours a pay period, as 

overtime hours, including mandatory overtime worked, From the date of Nov 8, 2103 to the date 

of April 21,2014 equaling 11 pay periods. Totaling $25,126.64.” Complainant will need to 

identify the number of days composing a “pay period.” In this connection, it would seem 

doubtful that Complainant would be working an additional 56 hours per week or even every two 

weeks. If Complainant contends otherwise, he will have to demonstrate, by submitting past pay 

stubs, that he routinely worked an additional 56 hours per pay period. 

“3: The sum $25.57 an hour, plus 5% interest, for 80 hours, for paid vacation leave. 

Totaling $2,147.20.” Complainant will need to document that he received 80 hours of paid 

vacation leave, as well as the days, during the 12 months preceding his employment termination, 

in which he received paid vacation and the amounts paid. Further, Complainant will have to 

demonstrate that he would have accrued such vacation pay during the period following his 

termination and up to the time he resumed gainful employment. 

“4: The sum of $25.57 an hour, plus 5% interest, for 54 and 1/2 hours, for personal time 

off. Totaling $1,472.78.” The same problem as identified for item 3, above, exists for this 

request. Complainant must demonstrate that during the 12 months preceding his termination he 

was entitled to and received “personal time off” and the number of hours so received. 

Complainant must submit documentation establishing entitled to this benefit as well as pay stubs 

so identifying payments for such personal time in the amount of 54 and 1⁄2 hours. 

“5: The sum of $38.85 an hour, plus 5% interest, for 48 hours, for paid holidays. Totaling 

$1,957.92.” The Complainant should see, from the requirements listed for items 1 through 4 

above, that he must demonstrate that during the 12 months preceding his termination he was 

entitled to and received “paid holidays” including the number of hours so received and 

demonstrate that such pay was in addition to his normal pay, so that there is no “double 

counting” of his income. The best way for the Complainant to establish his fair and complete 

income would be to provide copies of his paystubs during the 12 months preceding his 

termination, minus any post-termination benefits he received from Veris, minus any workmen’s 

compensation benefits received to date, together with a paystub and sworn statement as to when 

he resumed gainful employment. 

Regarding items 6 through 12, listed immediately below, the Court will not repeat 

the evidentiary deficiencies for these, as the same problems exist. Accordingly, for these to 

be considered, Complainant must supply the needed information for each of items 6 

through 12. 

“6: The sum of $.25 an hour, plus 5% interest, for 76 hours a period, as a shift 

differential, from the date of Nov 8, 2013 to the date of April 21, 2014 equaling 11 pay periods. 

Totaling $219.45.” See comment, in bold print, preceding item 6. 

“7: The sum of $.25 an hour, plus 5% interest, for 8 hours per pay period, as a shift 

differential for overtime, from the date of Nov 8, 2013 to the date of April 21, 2014 equaling 11 

pay periods. Totaling $23.10.” See comment, in bold print, preceding item 6.

37 FMSHRC Page 2503
“8: The sum of $68.14, plus 5% interest, per pay period, for insurance premiums, from 

the date of Nov 8 ,2013 to the date of April 21, 2014 equaling 11 pay periods. Totaling $787.01.” 

See comment, in bold print, preceding item 6.

“9: The sum of $2,379.87 for a production bonus, plus 5% interest. Totaling $2,498.86.” 

See comment, in bold print, preceding item 6.

“10: The sum of the previously mentioned, plus 3% of that sum ,and 5% interest on the 

3% , for a 401k match, . Totaling 58,456.26.” See comment, in bold print, preceding item 6.

“11: The sum of $35 a day, for 13 subpoenaed witnesses, for two days time. Totaling 

$910.” See comment, in bold print, preceding item 6.

“12: The sum of $150, for mileage and fuel costs, paid to Mr. Michael Pierce, for his 

travel from Twin Falls, Idaho ,in the event he was needed to testify.” See comment, in bold 

print, preceding item 6.

“13: The sum of $300,000.00 for punitive damages2

 for intentional discrimination by the 

Respondent, pursuant to Title V Section 102 of the Civil Rights Act of 1991. Exhibit 2.” As 

previously explained by the Court, this category of damages is not cognizable relief in 

discrimination matters under the Mine Act. Therefore this request is DENIED.

2

 As the Court explained in its September 2, 2015, decision, the “concept of damages is to 

‘make whole’ a person who has been unlawfully discharged. Because Mr. Varady is not an 

attorney, the Court offers the following general guidance as to allowable damages. At the 

hearing, Varady stated that he is no longer seeking reinstatement, but is seeking, among other 

items, reimbursement for expenses in seeking reemployment. Tr. 19. Such expenses are 

recoverable. Lost wages plus interest2 are also part of the recognizable damages and would 

cover the period between the date of Complainant’s discharge and the time when he again 

became employed. Because the “make whole” concept of relief does not contemplate a windfall 

to such individuals, any unemployment benefits received for the period between the unlawful 

discharge and the date of new employment are offsets to the damages that may be awarded. 

Litigation-related expenses are awardable. As examples, these would include copying expenses; 

any costs related to subpoenaing witnesses; medical expenses, including premiums, that would 

have been covered by Complainant's medical insurance, if applicable; and lost vacation pay, if 

applicable. Mileage, telephone calls, and postage are other examples of awardable damages. 

These are examples only. The guiding principle is for a complainant to recover the financial 

reimbursement for items he would have received had his employment continued and the 

expenses in pursuing this litigation, minus benefits received such as workmen’s unemployment 

compensation. Some damages are not recognized for relief under the Mine Act. For example, 

there is no authority or precedent for awarding compensatory damages for damage to reputation 

and/or pain and suffering. Bewak v. Alaska Mech., Inc., 33 FMSHRC 2337, 2338 (Sept. 2011) 

(ALJ); Peterson v. Sunshine Precious Metals, Inc., 24 FMSHRC 810, 811-12 (Aug. 2002) 

(ALJ); Casebolt v. Falcon Coal Co., 6 FMSHRC 485, 503 (Feb. 1984) (ALJ).” Varady v. Veris 

Gold USA, LLC, WEST 2014-307-DM, 2015 WL 5307780, at *20 (FMSHRC Sept. 2, 2015). 

37 FMSHRC Page 2504
“14: The sum of $300,000.00 for pecuniary damages to cover possible future medical 

treatment due to the sustained injury, that led to the intentional discrimination by Respondent, 

pursuant to Title V Section 102 of The Civil Rights Act of 1991. Exhibit 2.” As explained in the 

September 2, 2015, decision, such damages are not awardable and therefore this request is also 

DENIED. 

“15: The sum of $175,368.78 for pain, suffering, and emotional distress caused by the 

injury suffered by the Complainant due to the Respondent's undisputed negligence in providing a 

safe working environment.” As explained in the September 2, 2015, decision, such damages are 

not awardable and therefore this request is DENIED. 

“16: The removal of all negative items or information within the Complainant's employee 

file.” The final decision will include the standard language employed to address this issue. 

“17: Repair the Complainant's employment status to rehire able.” The Court does not 

understand the nature of Complainant’s request. Complainant is directed to explain the nature of 

this request. 

Complainant is further advised that the Court cannot have a continuing dialogue 

over substantiation of his claimed damages. If Complainant does not provide the requested 

information in response to this Order, the Court will have no choice but to simply deny 

those items for which documentation is lacking. Once the Court issues a final order in this 

matter, Complainant can always appeal that Order before the Commission, challenging the 

Court’s decision regarding damages and any other matter with which he takes issue. 

Complainant is directed to provide the requested documentation no later than 30 days after the 

date of this Order. 

SO ORDERED. 

/s/ William B. Moran 

William B. Moran 

Administrative Law Judge 

37 FMSHRC Page 2505
Distribution: 

Matthew A. Varady, 701 S. 5th Street, #6, Elko, NV 89801 

David M. Stanton, Esq., Goicoechea, Di Grazia, Coyle & Stanton, Ltd., 530 Idaho Street, Elko, 

NV 89801 

Veris Gold U.S.A., Inc., HC 31 Box 78, Elko, NV 89801 

Heidi Strassler, U.S. Department of Labor, SOL-Regional Solicitor’s Office, 201 12th Street 

South – Suite 500, Arlington, VA 22202 

Susan Gillett Kumli, U.S. Department of Labor, Regional Solicitor’s Office, 90 7th Street Suite 

3-700, San Francisco, CA 94103

Bill LeClair, 688 West Hastings Street, Suite 900, Vancouver, BC, V6B 1P1, Canada 

Doug Johnson, Court-appointed Monitor, c/o Ernst & Young, Inc., 700 West Georgia Street, 

Vancouver, BC, V7Y 1C7, Canada 

37 FMSHRC Page 2506
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9958 / FAX: 202-434-9949 

October 20, 2015 

 

ORDER GRANTING IN PART & DENYING IN PART MOTION FOR PARTIAL 

SUMMARY DECISION

 

Before: Judge Barbour 

These cases are before me upon notices of contest filed by Hunter Sand & Gravel, LLC, 

(“Hunter”) and civil penalty petitions filed by the Secretary of Labor (“Secretary”), acting on 

behalf of his Mine Safety and Health Administration (“MSHA”), pursuant to sections 105 and 

110 of the Federal Mine Safety and Health Act of 1977 (“Act”), 30 U.S.C. §§ 815, 820. In the 

two Civil Penalty dockets, the Secretary seeks a civil penalty in the amount of $152,820.00 for 

four alleged violations of the Secretary’s safety and health standards for the nation’s surface 

HUNTER SAND & GRAVEL, LLC, 

 Contestant, 

 v. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Respondent 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

 v. 

 

HUNTER SAND & GRAVEL, LLC , 

 Respondent 

 CONTEST PROCEEDINGS 

Docket No. KENT 2014-391-RM 

Citation No. 8728537; 2/25/2014 

Docket No. KENT 2014-392-RM 

Order No. 8728538; 2/25/2014 

Docket No. KENT 2014-393-RM 

Order No. 8728539; 2/25/2014 

Docket No. KENT 2014-394-RM 

Order No. 8728540; 2/25/2014 

Docket No. KENT 2014-395-RM 

Citation No. 8728541; 2/25/2014 

Mine: Dredge IV 

Mine ID: 15-17687 

CIVIL PENALTY PROCEEDINGS 

Docket No. KENT 2014-566-M 

A.C. No. 15-17687-350333 

Docket No. KENT 2015-75 

A.C. No. 15-17687-362767 

Mine: Dredge IV 

37 FMSHRC Page 2507
metal and nonmetal mines and one alleged violation of the Secretary’s training and retraining 

standards for miners engaged in shell dredging or employed at sand or gravel mines. All five 

violations relate to a fatal accident on December 10, 2013, when the Secretary alleges a dredge 

hand walked onto a snow and ice covered barge (“Barge MEM 611”) at the company’s Dredge 

IV mine and slipped and fell into the water. 

On a conference call dated July 28, 2015, the parties informed the court that a dispute 

over MSHA’s jurisdiction in this matter was impeding settlement efforts, and the parties 

requested that the court resolve the dispute through summary decision. The court agreed to the 

request provided that the parties could present the court with no genuine dispute over material 

facts, preferably by stipulating to all material facts. The court subsequently scheduled a 

December 8, 2015, hearing on this matter. On October 5, 2015, the Secretary filed a Motion for 

Partial Summary Decision with an accompanying Memorandum of Law in Support (“Sec’y Br.”) 

and attached exhibits. In its motion, the Secretary asserted that MSHA had jurisdiction to issue 

the five citations and orders in this proceeding, and requested that the court affirm that Hunter 

violated 30 C.F.R. § 56.11016 in Citation No. 8728537 by failing to clear snow from the 

walkway of Barge MEM 611 on December 10, 2013, as soon as practicable. Sec’y Br. 1-2. 

On October 15, 2015, Hunter responded with a Statement in Opposition to the 

Secretary’s Motion for Partial Summary Decision and Memorandum of Law in Support (“Resp’t 

Br.”). In its Statement, the company withdrew its contest to what it deemed “the Secretary’s 

relatively narrow exercise of jurisdiction over Dredge IV and Barge MEM 611 in this 

proceeding.” Resp’t Br. 2. However, Hunter opposed granting partial summary decision on 

Citation No. 8728537 on the basis that the record raises genuine issues of material fact. Resp’t 

Br. 2. The Secretary subsequently filed a Reply Brief (“Sec’y Reply Br.”) in further support of 

his position. 

Commission Rule 67(b) provides that a “motion for summary decision shall be granted 

only if the entire record, including the pleading, depositions, answers to interrogatories, 

admissions, and affidavits shows: (1) That there is no genuine issue as to any material fact; and 

(2) that the moving party is entitled to summary decision as a matter of law.” 29 C.F.R. §

2700.67(b). When considering a motion for summary decision, the court looks at the record “‘in

the light most favorable to . . . the party opposing the motion,’ and . . . ‘the inferences to be

drawn from the underlying facts contained in [the] materials [supporting the motion] must be

viewed in the light most favorable to the party opposing the motion.”’ Hanson Aggregates New

York, Inc., 29 FMSHRC 4, 9 (Jan. 2007) (quoting Poller v. Columbia Broadcasting Sys., Inc.,

368 U.S. 464, 473 (1962) and United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)).

Here, the burden is on the Secretary, as the moving party, to establish his right 

to summary decision. On the issue of jurisdiction, I find no genuine dispute as to any material 

fact as neither party now contests that MSHA had jurisdiction to issue the five citations and 

orders in this proceeding. However, the Secretary has failed to meet his burden to establish his 

right to summary decision on Citation No. 8728537. 

30 C.F.R. § 56.11016 establishes that, “[r]egularly used walkways and travelways shall 

be sanded, salted, or cleared of snow and ice as soon as practicable.” The Secretary cites the 

Black’s Law Dictionary definition of “practicable” as “reasonably capable of being 

37 FMSHRC Page 2508
accomplished; feasible in a particular situation” and argues that it would have been “feasible for 

Hunter to clear the snow from the walkways before sending its miners out to walk on them.” 

Sec’y Br. 12. Hunter, in turn, states that the record “calls into question the presence of and extent 

of such alleged snow conditions on the Barge at the time of arrival, and suggests that such efforts 

may have been unwarranted at the time,” as well as “simultaneously fruitless and treacherous” 

due to darkness and unfavorable weather conditions. Resp’t Br. 8. The Secretary replies that 

“Hunter sent at least one miner out onto the walkways of Barge MEM 611 to obtain a draft 

reading before [the fatal accident occurred]” and thus the company’s claim that it was “unsafe to 

clean the snow from the barge’s walkways, but that, at the same time, it was safe to send miners 

out on to the barge MEM 611’s walkways in order to continue production evidences very little 

care for the health and safety of its miners.” Sec’y Reply Br. 4. Whether or not this is true, 

Hunter has raised genuine issues of material fact as to the practicability of clearing snow from 

the barge before the fatal accident occurred. 

Furthermore, the company disputes whether Barge MEM 611 was a “regularly used” 

walkway or travelway, since moveable barges “arrive, are loaded and depart from Dredge IV 

within the short period of three to six hours.” Resp’t Br. 10. The Secretary however believes that 

the record is sufficient to establish regular use because the allegedly uncontroverted testimony of 

three miners shows that “(1) miners regularly traveled [other] barge walkways [at the mine] 

when they were covered with snow and (2) that miners traveled the walkways of Barge MEM 

611 prior to the time that [a miner] fell overboard.” Sec’y Reply Br. 3. The court agrees with 

Hunter that in addition to issues of practicability this dispute raises genuine issues of regularity 

that also must be resolved through the hearing process. 

ORDER 

In accordance with the foregoing, the Secretary’s motion for partial summary decision is 

GRANTED IN PART on the issue of whether MSHA had jurisdiction to issue the five citations 

and orders in this proceeding. The Secretary’s motion is DENIED IN PART on the issue of 

whether Hunter violated 30 C.F.R. § 56.11016 in Citation No. 8728537. The hearing on these 

matters will proceed as scheduled on Tuesday, December 8, 2015, at 8:30 a.m. in Paducah, 

Kentucky.

/s/ David F. Barbour 

 David F. Barbour 

 Administrative Law Judge 

37 FMSHRC Page 2509
Distribution: 

Willow E. Fort, Esq., U.S. Dept. of Labor, Office of the Solicitor, 618 Church Street, Ste. 230, 

Nashville, TN 37219 

Robert Nienhuis, Esq., Hunter Sand & Gravel, LLC, One Memorial Drive, Ste. 1000, St. Louis, 

MO 63102 

/rd 

37 FMSHRC Page 2510
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVENUE NW, SUITE 520N 

WASHINGTON, D.C. 20004

October 21, 2015 

ORDER DENYING PARTIES’ JOINT MOTION TO DISMISS 

Before: Judge Feldman 

 This matter is before me based on a Complaint of Discrimination brought by Scott D. 

McGlothlin against Dominion Coal Corporation (“Dominion”), pursuant to section 105(c)(3) of 

the Federal Mine Safety and Health Act of 1977, as amended, 30 U.S.C. § 815(c)(3) (2006) 

(“Mine Act” or “the Act”). The parties filed cross-motions for summary decision as there were 

no outstanding issues of relevant material facts. 

 A consolidated Decision Granting Complainant’s Motion for Summary Decision and 

Decision on Liability, issued on June 11, 2015, resolved the liability at issue in this matter 

without the need for an evidentiary hearing. McGlothlin v. Dominion Coal Corp., 37 FMSHRC 

1256 (June 2015) (ALJ). That decision held that Dominion violated the anti-discrimination 

provisions of section 105(c)1 by interfering with McGlothlin’s right to pay protection under 30 

C.F.R. Part 90 as a miner with pneumoconiosis, when Dominion reduced McGlothlin’s pay after 

McGlothlin sought a determination from the National Institute for Occupational Safety and 

Health (“NIOSH”) concerning his eligibility for Part 90 protection. Id. at 1264-1266. 

 1

 Section 105(c)(1) provides, in relevant part: 

No person shall . . . in any manner discriminate . . . or cause 

discrimination against or otherwise interfere with the exercise of the statutory 

rights of any miner . . . [who] is the subject of medical evaluations and potential 

transfer under a standard published pursuant to section 101 . . . . 

30 U.S.C. § 815(c)(1); 37 FMSHRC at 1258. 

SCOTT D. MCGLOTHLIN, 

 Complainant, 

 v. 

DOMINION COAL CORPORATION, 

 Respondent. 

 

DISCRIMINATION PROCEEDING 

Docket No. VA 2014-233-D 

NORT-CD-2013-04 

Mine: Dominion No. 7 

Mine ID: 44-06499 

37 FMSHRC Page 2511
The Decision on Liability noted that it was an interim decision that did not become final, 

in that it was not ripe for appeal, until a Decision on Relief was issued. Id. at 1265-1266. The 

June 11, 2015, Decision on Liability also noted that the liability decision would be referred to the 

Secretary pursuant to Commission Rule 44(b), 29 C.F.R. § 2700.44(b), to provide the Secretary 

with the opportunity to file a petition for assessment of civil penalty for Dominion’s violation of 

105(c) of the Act. Following notification, on July 24, 2015, the Secretary filed a penalty petition, 

docketed as Docket No. VA 2015-285, seeking to impose a $12,500.00 civil penalty as a 

consequence of Dominion’s violation of the anti-discrimination provisions of the Act.2 

The Decision on Liability ordered the parties to confer in an attempt to reach an 

agreement on the specific relief to be awarded. The parties were advised that consideration 

should be given to the difference in the compensation paid to McGlothlin and the compensation 

that he is entitled to as a Part 90 miner, plus interest, reasonable attorney fees, and 

reimbursement for any other relevant incidental expenditures. Id. The parties were given two 

options: 1) to file individual petitions on relief if the parties could not agree on a relief proposal; 

or 2) to file a joint petition on relief if Dominion could agree to the relief proposed by 

McGlothlin. The parties did neither. 

Rather, on September 2, 2015, the parties filed a Joint Motion to Dismiss McGlothlin’s 

complaint in light of the parties’ proposed agreed-upon relief. The parties’ Joint Motion to 

Dismiss is predicated upon McGlothlin’s agreement that “the parties jointly move the Court to 

dismiss all claims in this action with prejudice,” in exchange for Dominion’s agreement to the 

relief, including attorney fees, sought by McGlothlin. In this regard, the parties’ Motion to 

Dismiss was accompanied by a Confidential Settlement Agreement and General Release of All 

Claims that specified the agreed upon relief to be awarded to McGlothlin, including 

reimbursement for attorney fees.3

Longstanding Commission case law has recognized the utility of bifurcated decisions on 

liability and decisions on relief in section 105(c) proceedings.4 Bifurcation preserves 

2

 Civil penalty Docket No. VA 2015-285 was assigned to me on September 18, 2015. 

As discussed infra, collateral estoppel applies in this matter. Thus, Docket No. VA 2015-285 will 

be held in abeyance pending the ultimate resolution of the issue of Dominion’s liability for 

violation of section 105(c) of the Act. 

3

 The parties have requested that the terms of their agreed-upon relief be kept 

confidential. I will give effect to the parties’ request for confidentiality at this time. 

4 See, e.g., Gawthrop v. Triplett Bros. Excavating, 17 FMSHRC 64 (Jan. 1995) (ALJ 

Feldman) (decision on liability), and Gawthrop v. Triplett Bros. Excavating, 17 FMSHRC 359 

(Mar. 1995) (ALJ Feldman) (decision on relief); Jeanlouis v. Morton Int’l, 25 FMSHRC 536 

(Sept. 2003) (ALJ Feldman ) (decision on liability), and Jeanlouis v. Morton Int’l, 25 FMSHRC 

673 (Nov. 2003) (ALJ Feldman) (decision on relief); Womack v. Gramont Western US, 25 

FMSHRC 235 [n.4 cont’d] (May 2003) (ALJ Feldman) (decision on liability), and Womack v. 

Gramont Western US, 25 FMSHRC 469 (Aug. 2003) (ALJ Feldman) (decision on relief); 

(continued...) 

37 FMSHRC Page 2512
Commission resources by avoiding the unnecessary development of a record regarding the 

appropriate relief to be awarded in cases where the discrimination complaint is dismissed after an 

evidentiary hearing on liability. See, e.g., Metz v. Carmeuse Lime, Inc., 34 FMSHRC 1820 (Aug. 

2012), aff’d Metz v. FMSHRC, 532 F.App’x 309, 2013 WL 3870733 (3d Cir. 2013). Although 

bifurcated decisions on liability are not final, in that they are not ripe for Commission appeal 

until a decision on relief is rendered, the decision on liability is a final disposition on the merits 

with respect to liability. Thus, absent a petition for discretionary review filed with the 

Commission, a mine operator that is found liable in a decision on liability following a hearing is 

collaterally estopped from denying liability in a related civil penalty proceeding. 

As a threshold matter, the Commission has repeatedly acknowledged its authority to 

review the propriety of settlement motions conferred in section 110(k) of the Act extends to 

settlement agreements arising under section 105(c) of the Act. Sec’y of Labor o/b/o Maxey v. 

Leeco, Inc., 20 FMSHRC 707, 707 (July 1998) (citations omitted). In this regard, the parties may 

submit, subject to Commission approval, post-decision settlement terms with respect to their 

proposals regarding the appropriate civil penalty and relief to be awarded in discrimination cases 

brought pursuant to section 105(c). 

However, the parties may not mutually agree to vitiate a post-adjudication decision on 

liability nunc pro tunc through a mutual agreement that both insulates a mine operator from the 

adverse history of a 105(c) violation, and releases the operator from the resultant civil penalty 

liability that must be imposed as a consequence of that violation. 30 U.S.C. §§ 814(a), 815(a); 29 

C.F.R. § 2700.44(b). To hold otherwise would render Commission decisions on liability in

bifurcated 105(c) proceedings as advisory opinions that are analogous to decisions by nonbinding alternative dispute resolution bodies that may be disregarded at the whim of the parties.

A case in point is the Commission’s order in Sec’y of Labor o/b/o Hopkins v. ASCARO, 

Inc., 19 FMSHRC 1 (Jan. 1997). In Hopkins, Judge Manning, in his bifurcated decision on 

liability, determined that ASARCO, Inc. (“ASARCO”) had violated section 105(c) of the Act. 

18 FMSHRC 317 (Mar. 1996) (ALJ). The decision on liability was followed by Judge 

Manning’s supplemental decision and final order on relief. 18 FMSHRC 1160 (July 1996) 

(ALJ). Although the Secretary had proposed a civil penalty of $5,000.00, Judge Manning, 

finding relevant mitigation, reduced the civil penalty to $800.00, and awarded Hopkins back pay, 

interest, and miscellaneous expenses. ASARCO filed a petition for discretionary review 

4

 (...continued) 

Descutner v. Newmont USA, 34 FMSHRC 2838 (Oct. 2012) (ALJ Barbour) (decision on 

liability), and Descutner v. Newmont USA, 35 FMSHRC 504 (Feb. 2013) (ALJ Barbour) 

(decision on relief); Meek v. Essroc Corp., 13 FMSHRC 1970 (Dec. 1991) (ALJ Fauver) 

(decision on liability), and Meek v. Essroc Corp., 14 FMSHRC 518 (Mar. 1992) (ALJ Fauver) 

(decision on relief), aff’d Meek v. Essroc Corp., 15 FMSHRC 606 (Apr. 1993); Adkins v. Ronnie 

Long Trucking, 21 FMSHRC 171 (Feb. 1999) (ALJ Hodgdon) (decision on liability), and Adkins 

v. Ronnie Long Trucking, 21 FMSHRC 377 (Mar. 1999) (ALJ Hodgdon) (decision on relief);

Sec’y of Labor o/b/o Lopez v. Sherwin Alumina, LLC, 36 FMSHRC 730 (Mar. 2014) (ALJ

Bulluck) (decision on liability requesting a follow up petition for relief from the parties).

37 FMSHRC Page 2513
challenging Judge Manning’s conclusions, which was granted by the Commission. Following 

ASARCO’s petition for discretionary review, the parties filed with the Commission a joint 

motion to approve settlement agreement, in which ASARCO agreed to pay the relief sought by 

Hopkins. The settlement agreement also proposed that ASARCO pay a $500.00 civil penalty, 

rather than the $800.00 civil penalty assessed by Judge Manning. The Commission, noting that 

oversight of proposed settlements is committed to the Commission’s sound discretion, granted 

the motion to approve settlement and vacated their direction for review. 19 FMSHRC at 2-3. 

Significantly, the settlement terms approved by the Commission did not include 

circumvention of Judge Manning’s finding of liability by virtue of ASARCO’s agreement to pay 

the $500.00 civil penalty. However, in the present case, unlike Hopkins, the settlement terms 

proffered on behalf of Dominion must be rejected as they seek to insulate Dominion from 

liability that would preclude imposition of the $12,500.00 civil penalty sought by the Secretary. 

Simply put, parties to a Commission proceeding do not have standing to vacate a judicial finding 

of liability. 

In reaching this conclusion, I am cognizant of the Commission’s decision in Shemwell. In 

the bifurcated proceeding in Shemwell, the Commission concluded that a judge retains the 

jurisdiction to consider approval of settlement terms before the issuance of a decision on relief 

because the decision on liability, alone, does not constitute a final decision on the merits as 

contemplated by Commission Rule 69.5 Sec’y of Labor o/b/o Shemwell v. Armstrong Coal Co., 

Inc., 36 FMSHRC 1097, 1100-01 (May 2014) (vacating the judge’s denial of a motion to 

approve settlement in a discrimination proceeding). In the majority decision in Shemwell, the 

Commission, on abuse of discretion grounds, vacated the judge’s decision denying a Joint 

Motion to Approve Settlement, and approved sua sponte the parties’ settlement terms. 

However, unlike this case, in Shemwell, the Commission expressly conditioned its 

approval of the parties’ settlement terms on the fact that deterrence was achieved through 

settlement terms that included an admission of liability by the mine operator with respect to any 

subsequent proceedings brought against it under the Mine Act. See id. at 1102-03. In this regard, 

in Shemwell, the mine operator did not deny liability, but rather agreed to pay a reduced civil 

penalty of $35,000.00, as opposed to the $70,000.00 civil penalty initially proposed by the 

Secretary and imposed by the judge.

ORDER 

In view of the above, IT IS ORDERED that the parties’ Joint Motion to Dismiss IS 

DENIED, because it is contingent on proposed settlement terms that seek to release Dominion 

from an adjudicated finding of liability in a Commission proceeding. 

If the parties agree on relief, it is immaterial whether the parties’ agreement on relief is 

styled as a joint petition for relief or as a motion to approve settlement. However, any proposal 

5

 Commission Rule 69(b) provides: “[e]xcept to the extent otherwise provided herein, the 

jurisdiction of the Judge terminates when his decision has been issued.” 29 C.F.R. § 2700.69(b). 

37 FMSHRC Page 2514
for relief, filed jointly or individually, should include a calculation consisting of the difference 

between McGlothlin’s approximate hourly compensation of $25.67 and the $35.00 per hour he 

was entitled to during the period from June 16, 2013, to date, plus an adjustment for overtime, if 

any, as well as any incidental expenses incurred. 

With respect to the issue of the reasonable attorney fees to be awarded, relevant detailed 

attorney fee petitions should be submitted for worked performed in this matter. This submission 

should include separate detailed logs specifying the nature and extent of the legal services 

rendered by each of McGlothlin’s attorneys with respect to all filings and depositions in this 

proceeding, as well as any other legal services for which reimbursement is sought. Specifically, 

the log should contain a daily accounting of the claimed legal services, the hours worked, and the 

hourly rate of legal fees sought to be recovered for each service by each attorney. 

IT IS FURTHER ORDERED that the parties file separate petitions for relief, or a joint 

petition, within 21 days of the date of this Order. 

/s/ Jerold Feldman 

Jerold Feldman 

Administrative Law Judge 

Distribution: 

Evan B. Smith, Esq., Wes Addington, Esq., Appalachian Citizens Law Center, Inc., 317 Main 

Street, Whiteburg, KY 41858 

Tony Oppegard, Esq., P.O. Box 22446, Lexington, KY 40522 

David Hardy, Esq., Scott Wickline, Esq., Hardy Pence PLLC, 500 Lee Street East, Suite 701, 

P.O. Box 2548, Charleston, WV 25329 

/acp 

37 FMSHRC Page 2515
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004 

October 29, 2015 

STAY ORDER PENDING ULTIMATE DISPOSITION 

OF UNDERLYING DISCRIMINATION PROCEEDING 

Before: Judge Feldman 

This proceeding is before me based upon a petition for assessment of civil penalty filed 

by the Secretary on July 24, 2015, pursuant to section 105(d) of the Federal Mine Safety and 

Health Act of 1977 (the Act). 30 U.S.C. § 815(d). The Secretary seeks to impose a civil penalty 

of $12,500.00 as a consequence of a June 11, 2015, Decision on Liability in a 105(c)(3) 

discrimination proceeding, docketed as VA 2014-233, which concluded that Dominion Coal 

Corporation (“Dominion”) was liable for a violation of section 105(c) of the Act when it 

interfered with Scott D. McGlothlin’s rights under Part 90 of the Act. McGlothlin v. Dominion 

Coal Corp., 37 FMSHRC 1256 (June 2015) (ALJ). 

On September 2, 2015, the parties in Docket No. VA 2014-233 filed a Joint Motion to 

Dismiss McGlothlin’s complaint in light of the parties’ proposed agreed-upon relief.

The parties’ Joint Motion to Dismiss was predicated upon McGlothlin’s agreement that “the 

parties jointly move the Court to dismiss all claims in this action with prejudice,” in exchange for 

Dominion’s agreement to the relief, including attorney fees, sought by McGlothlin.

On October 21, 2015, the parties’ request to dismiss McGlothlin’s complaint was denied because 

it was contingent on proposed settlement terms that seek to release Dominion from an 

adjudicated finding of liability in a Commission proceeding. 1 Thus, while the appropriate relief 

to be awarded to McGlothlin in Docket No. VA 2014-233 is yet to be determined, Dominion will 

be precluded from denying liability in this civil penalty proceeding brought by the Secretary 

1

 Although the Decision on Liability is not final in that the judge retains jurisdiction 

under Commission Rule 69(b), a decision on liability is an interlocutory decision that may be 

appealed or reviewed, subject to the discretion of the Commission, pursuant to the provisions of 

Commission Rule 76(a). 29 C.F.R. §§ 2700.69(b), 2700.76(a). However, the parties may not 

mutually agree to “vacate” an interlocutory liability decision. 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

Petitioner, 

v. 

DOMINION COAL CORPORATION, 

 Respondent. 

 CIVIL PENALTY PROCEEDING 

Docket No. VA 2015-285 

Mine: Dominion No. 7 

Mine ID: 44-06499 

37 FMSHRC Page 2516
based on the doctrine of collateral estoppel, unless the Decision on Liability is ultimately vacated 

by the Commission. 

As such, in view of the above, IT IS ORDERED that the captioned docket IS STAYED 

pending the ultimate resolution of the issue of Dominion’s liability for violation of section 105(c) 

of the Act in Docket No. VA 2014-233. 

/s/ Jerold Feldman 

Jerold Feldman 

Administrative Law Judge 

Distribution: 

Pollyanna Hampton, Esq., U.S. Department of Labor, Office of the Solicitor, 201 12th Street, 

Fifth Floor, Arlington, VA 22202-5450 

David Hardy, Esq., Scott Wickline, Esq., Hardy Pence PLLC, 500 Lee Street East, Suite 701, 

P.O. Box 2548, Charleston, WV 25329 

Evan B. Smith, Esq., Wes Addington, Esq., Appalachian Citizens Law Center, Inc.,

317 Main Street, Whiteburg, KY 41858 

Tony Oppegard, Esq., P.O. Box 22446, Lexington, KY 40522 

/acp 

37 FMSHRC Page 2517