i 

April 2016 

TABLE OF CONTENTS 

COMMISSION DECISIONS 

04-27-16 MAXXIM REBUILD COMPANY, 

LLC 

KENT 2013-566 Page 605 

COMMISSION ORDERS 

04-05-16 EASTERN ASSOCIATED COAL, 

LLC 

WEVA 2014-2171 Page 613 

04-05-16 EASTERN ASSOCIATED COAL, 

LLC 

WEVA 2016-0061 Page 615

04-07-15 LEE MECHANICAL 

CONTRACTORS 

CENT 2015-522-M Page 617

04-07-15 UNITED STATES STEEL 

CORPORATION 

LAKE 2015-610-M Page 620

04-07-15 PINTO VALLEY MINING 

CORPORATION 

WEST 2015-790-M Page 623

04-07-16 FLSMIDTH, INC. WEST 2015-863-M Page 626

04-07-16 BARRICK TURQUOISE RIDGE, 

INC. 

WEST 2015-898-M Page 629

04-20-16 KENTUCKY FUEL CORPORATION KENT 2014-489 Page 632

04-20-16 C.R. MEYER & SONS COMPANY,

INC.

WEST 2014-482-M Page 635

04-20-16 ACI TYGART VALLEY WEVA 2014-2151 Page 638

04-28-16 BLUE DIAMOND COAL 

COMPANY, et al. 

KENT 2016-3 Page 640
ii 

04-28-16 ALLSTATE MATERIALS, LLC, et al. SE 2015-455-M Page 645

ADMINISTRATIVE LAW JUDGE DECISIONS 

04-04-16 WARRIOR INVESTMENTS CO., 

INC. 

SE 2015-174 Page 651

04-05-16 STONE PLUS, INC. WEST 2013-0263-M Page 661

04-06-16 OAK GROVE RESOURCES, LLC SE 2009-487 Page 707

04-06-16 THE SILVER QUEEN MINE, LLC WEST 2015-448-M Page 726

04-11-16 NORTHSHORE MINING COMPANY LAKE 2015-340-M Page 753

04-11-16 UMWA O/B/O MARK A FRANKS v. 

EMERALD COAL RESOURCES, LP 

PENN 2012-250-D Page 799

04-18-16 NEWMONT USA, LIMITED WEST 2010-1584-M Page 812

04-29-16 CEMEX CONSTRUCTION 

MATERIALS, ATLANTIC, LLC 

SE 2014-328-M Page 827

ADMINISTRATIVE LAW JUDGE ORDERS 

04-01-16 GINA HACKING v. STAKER & 

PARSON COMPANIES 

WEST 2014-931-DM Page 851

04-07-16 JONATHAN BETHEL WOODWARD 

v. CARMEUSE LIME AND STONE

SE 2016-59-DM Page 860

04-08-16 DANIEL B. LOWE v. VERIS GOLD 

USA, INC., and JERRITT CANYON 

GOLD, LLC 

WEST 2014-614-DM Page 866
iii 

04-11-16 HUNTER SAND & GRAVEL, LLC KENT 2014-566-M Page 880

04-15-16 SEC. OF LABOR O/B/O JENNIFER 

MORREALE v. VERIS GOLD U.S.A., 

INC. 

WEST 2014-793-DM Page 885

04-21-16 VERIS GOLD U.S.A., INC. WEST 2014-793 Page 889

04-25-16 TETRA TECH CONSTRUCTION 

SERVICES 

WEST 2013-587-M Page 893

04-26-16 MATTHEW A. VARADY v. VERIS 

GOLD USA, INC., and JERRITT 

CANYON GOLD, LLC 

WEST 2014-307-DM Page 900

04-29-16 SEC. OF LABOR O/B/O ADAM 

WHITON v. WHARF RESOURCES 

(USA), INC. 

CENT 2016-0221-DM Page 906
iv 

No petition was filed in which review was denied or granted during the month of April 

2016. 
COMMISSION DECISIONS

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004-1710 

April 27, 2016 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. Docket Nos. KENT 2013-566 

KENT 2013-989 

MAXXIM REBUILD COMPANY, 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”). At issue is whether the Administrative Law Judge 

correctly affirmed the Secretary of Labor’s assertion of jurisdiction by the Mine Safety and 

Health Administration (“MSHA”) over an equipment maintenance facility. For the reasons stated 

below, we affirm the Judge’s decisions. 

I.

Factual and Procedural Background 

A. Factual Background

Maxxim Rebuild Company, LLC (“Maxxim”) operates the Sidney Shop, a maintenance 

shop that repairs, rebuilds and fabricates mining equipment and parts for mining equipment in 

Kentucky. While the facility fabricates some additional parts for non-mining related purposes, 

the majority of the parts are used in mining equipment. The Sidney Shop employs seven 

individuals, including one who travels to the mines, and includes two work bays in the shop area: 

one for welding and one for fabrication. 

Maxxim owns and operates seven shops in six locations in Kentucky and West Virginia 

and is a subsidiary of Alpha Natural Resources (“Alpha”).1 Prior to January 2012, the Sidney 

1

 Maxxim asserts that it is merely an “affiliate” of Alpha, while the Secretary contends 

that the facility is a wholly owned subsidiary of Alpha. Alpha’s Form 10-K for 2012, filed with 

the Securities and Exchange Commission, clearly identifies Maxxim as a “subsidiary” of Alpha. 

S. Ex. 6.

38 FMSHRC Page 605
Shop was located in West Virginia and was not being inspected by MSHA. In January 2012, the 

facility relocated to a site in Kentucky. The site had previously been operated by Clean Energy, 

an Alpha affiliate. Clean Energy subsequently closed its operation and abandoned the site. 

Before Maxxim took over occupancy of the abandoned Kentucky site, the shop area was 

modified and updated. At that time, engineers for Sidney Coal, also an Alpha company, occupied 

the upstairs offices in the building at the site. 

 At the time the citations contested in this case were issued, five of the Maxxim shops 

were inspected by the Occupational Safety and Health Administration (“OSHA”) and two were 

inspected by MSHA, including the Sidney Shop. The Sidney Shop includes a warehouse, which 

stores at least one piece of equipment for Alpha. This facility has been inspected twice since 

Maxxim took over occupancy of the Kentucky site. The first inspection resulted in two 

violations. The second inspection resulted in three citations that Maxxim contested in the case 

docketed as No. KENT 2013-566. 

In July 2013, the Judge held a hearing and considered post-hearing briefs. In her decision, 

the Judge found that MSHA has jurisdiction over the facility and that the operator violated the 

standards in question. 35 FMSHRC 3261 (Oct. 2013) (ALJ). 

In February 2014, the Judge issued a decision in a separate case involving Maxxim that 

presented an identical issue of MSHA jurisdiction (No. KENT 2013-989). 36 FMSHRC 378 

(Feb. 2014) (ALJ). The Judge found the reasoning and findings in her decision in No. KENT 

2013-566 to be applicable to her decision in the separate case, and again affirmed MSHA 

jurisdiction. 

Maxxim filed petitions for discretionary review in both cases. The Commission granted 

both petitions and consolidated the two cases for appellate review. 

B. The Judge’s Decisions

In her decision in the first case, the Judge found that the Sidney Shop is subject to MSHA 

jurisdiction because the shop is a “mine” as defined in the Mine Act and as applied in 

Commission precedent. The Judge also found that MSHA acted within its discretion in 

exercising jurisdiction over the shop. 35 FMSHRC at 3264-65. 

In finding that MSHA has jurisdiction over the shop, the Judge concluded that the plain 

language definition of a “mine” in section 3(h)(1) of the Act, 30 U.S.C. § 802(h)(1), applies to 

the facility. Id. at 3263. The Judge found that the shop is “a dedicated off-site facility of a mine 

operator where employees maintain, repair and fabricate equipment, used almost exclusively at 

Alpha’s coal extraction sites and preparation plants.” Id. at 3264. The Judge therefore concluded 

that “there is Mine Act jurisdiction in this instance because a ‘mine’ includes ‘facilities’ and 

‘equipment . . . used in or to be used in’ Alpha’s mining operations or coal preparation 

facilities.” Id. at 3264-65. 

The Judge rejected Maxxim’s claim that the shop is not a “mine” because the activities 

performed at the site are too remote from the mining process. Id. at 3262. Instead, the Judge 

38 FMSHRC Page 606
noted that a “mine,” as defined in the Act, “is not limited to an area of land from which minerals 

are extracted, but also includes facilities, equipment, machines, tools and other property used in 

the extraction of minerals from their natural deposits and in the milling or preparation of the 

minerals” (citing Harless, Inc., 16 FMSHRC 683, 687 (Apr. 1994)). Id. at 3265. 

The Judge also rejected Maxxim’s claim that the Secretary abused his discretion by 

inconsistently exercising jurisdiction over this facility and other Maxxim facilities. Id. 

Accordingly, the Judge affirmed MSHA’s jurisdiction over the Sidney Shop and affirmed the 

three citations at issue. 

II. 

Disposition 

A. The Judge Properly Affirmed MSHA’s Assertion of Jurisdiction.

We conclude that the plain language of section 3(h)(1)(C) qualifies the facility as a 

“mine.” Section 3(h)(1)(C) defines “coal or other mine” in relevant part to mean: 

lands, excavations, underground passageways, shafts, slopes, tunnels 

and workings, structures, facilities, equipment, machines, tools, or 

other property including impoundments, retention dams, and 

tailings ponds, on the surface or underground, used in, or to be 

used in, or resulting from, the work of extracting . . . minerals

from their natural deposits . . . or used in . . . the work of preparing 

coal. 

30 U.S.C. § 802(h)(1)(C) (emphasis added). 

The Sidney Shop is a “facility” that is “used in” the process of “extracting” and preparing 

coal. Specifically, the facility maintains, repairs, and fabricates equipment that is used in the 

mining process. The record establishes that the facility performs work on belt heads, highwall 

miners, loaders, excavators and other equipment that is used in coal extraction and coal 

preparation facilities operated by Maxxim’s parent company Alpha. Tr. 23-24. The shop also 

supplies parts for both surface and underground mining equipment. Id. Furthermore, the shop, 

located on property owned by Sidney Coal, another subsidiary of Alpha, has seven employees. 

Although six of the employees work only at the shop, the seventh visits mine sites at mine 

operators’ requests, completing bore holes to accommodate blasting equipment furnished by 

Maxxim. Tr. 18-19. Thus, the Maxxim facility works on equipment that is integral to the mining 

process. As a result, the facility is a “mine.” 

Commission case law strongly supports this conclusion. In Jim Walter Resources, Inc.,

22 FMSHRC 21 (Jan. 2000) (“JWR”), the Commission held that an offsite supply shop similar to 

the instant one was a “mine” as defined by the Act. In that case, the supply shop housed safety 

glasses, hard hats, conveyor belts, and other tools and equipment that were used for mining 

38 FMSHRC Page 607
purposes. In holding that the shop constituted a “mine,” the Commission confirmed that the 

definition of “mine” must be given a broad interpretation.2

 

The Commission further held that a mine “is not limited to an area of land from which 

minerals are extracted, but also includes facilities, equipment, machines, tools and other property 

used in the extraction of minerals from their natural deposits and in the milling or preparation of 

the minerals.” 22 FMSHRC at 25. As with the shop in JWR, the Sidney Shop constitutes a 

“mine,” because, despite being located off-site, it fabricates, repairs, and stores equipment that is 

used in connection with the extraction and preparation of coal. 

Maxxim’s attempt to distinguish JWR from the instant case is unpersuasive. In doing so, 

Maxxim relies primarily on two allegedly distinguishing factors: (1) that in this case, the shop 

does not perform work exclusively for mining companies; and (2) that employees of the Sidney 

Shop are not generally on the sites of the mines to which they deliver supplies and are 

consequently not exposed to the same hazards as miners who work on site at the mines. 

Neither of these assertions alters the fact that the Judge found that a significant part of the 

Sidney Shop’s work – at a minimum, 75 percent – is performed on equipment that is used in coal 

extraction and coal preparation activities at mines owned by Alpha subsidiaries. 35 FMSHRC at 

3264. This finding is supported by the testimony of Maxxim’s highwall supervisor, Keith 

Canterbury, who testified that “75% of the time [at the facility] . . . is spent on working on 

equipment that’s going to be used in an Alpha Natural Resources coal mine.” Tr. 21. Another 

portion of the Sidney Shop’s work is performed for non-Alpha coal mines. As a result, the 

Judge’s finding that a significant part of the Sidney Shop’s work is mining-related is amply 

supported by substantial evidence. On this basis, we reject Maxxim’s attempt to distinguish JWR 

from the instant case. 

We further reject Maxxim’s reliance on other decisions that purportedly support its 

position that MSHA lacks jurisdiction over the Sidney Shop. Maxxim’s claim that the Judge’s 

finding of MSHA jurisdiction is improper under the Sixth Circuit’s decision in Bush & Burchett 

v. Reich, 117 F.3d 932 (6th Cir. 1997), is unpersuasive because that case is readily

distinguishable. Maxxim cites Bush & Burchett for the proposition that roads that are shared with

the public are not subject to MSHA jurisdiction. The Sixth Circuit held that a road used to

connect a surface mine on one side of a river to a rail load-out facility on the other side was not a

“mine” because the road was open to public use even though it was constructed for the benefit of

the mine and the mine operator was a primary user of the road. 117 F.3d at 937. Maxxim

contends that, in this situation, its other customers, which are not “mines” within the purview of

MSHA, are utilizing the Maxxim facilities, and that the same logic should apply here. The Bush

& Burchett decision, however, did not turn on the meaning of section 3(h)(1)(C)’s “used in or to

be used in” the work of extracting minerals clause. Rather, the decision rested on the meaning of

2

 The legislative history of the Mine Act emphasizes that “what is considered to be a 

mine and to be regulated under this Act [shall] be given the broadest possibl[e] interpretation, 

and . . . doubts [shall] be resolved in favor of inclusion of a facility within the coverage of the 

Act.” S. Rep. No. 95-181 at 14 (1977). 

38 FMSHRC Page 608
section 3(h)(l)(B)’s statement that “mine” includes “private ways and roads appurtenant to [an 

extraction] area.” See id. at 936-39. 

Likewise, Maxxim’s argument that MSHA jurisdiction is improper under the test 

articulated by the Commission in Oliver M. Elam, 4 FMSHRC 5 (1982), is unpersuasive because 

Elam is distinguishable from the present case under section 3(h)(1)(C). Maxxim argues that 

under Elam, the Commission must find that the “nature of the operation” is the same as that of 

“[an] . . . operator of [a] . . . coal mine,” in order to find that the facility is engaged in the “work 

of preparing coal” within the meaning of section 3(h)(l)(C). 4 FMSHRC at 7. Maxxim then 

argues that the nature of the operations at the Sidney Shop does not remotely resemble mining 

operations. 

However, Maxxim misses the point. Elam involved a commercial dock on the Ohio River 

where coal and other products were loaded onto barges. Unlike with Elam, the issue in the 

present case is whether the operation in question constitutes a facility “used in or to be used in” 

the coal extraction process. As we emphasized in JWR, Elam and its progeny “are inapplicable” 

in coal extraction cases. JWR, 22 FMSHRC at 26. 

 

The same distinction holds true for Maxxim’s claim that jurisdiction is improper under 

the Third Circuit’s decision in Lancashire Coal Co. v. Secretary of Labor, 968 F.2d 388 (3d Cir. 

1992). In Lancashire, the issue was whether the reclamation of structures (in that case, silos) 

resulting from “the work of preparing coal” triggered jurisdiction within the meaning of section 

3(h)(1)(C). In finding no jurisdiction, the Court found dispositive the absence of the words 

“resulting from” before the words “the work of preparing coal.” Id. at 392. As stated above 

however, the issue here is whether the Sidney Shop is a “mine” within the meaning of section 

3(h)(1)(C)’s “used in or to be used in” clause in the context of the coal extraction process – as 

opposed to within the meaning of the “resulting from” clause. 

Finally, Maxxim argues that the Mine Act and its standards do not fit this facility because 

of the nature of the work completed at the site. This argument, however, is unavailing because it 

overlooks the policy choice made by Congress, as reflected in the language of the Act. Maxxim 

references particular MSHA requirements in attempting to show that they are inappropriate for 

the repair shop, and that Occupational Safety and Health Act standards are more appropriate. 

Given that the language of section 3(h)(l)(C) clearly places the shop under MSHA jurisdiction, 

Congress has expressed its preference, and that preference is dispositive. Wolf Run Mining Co. v. 

FMSHRC, 659 F.3d 1197, 1203 n.10 (D.C. Cir. 2011) (otherwise legitimate safety concerns 

cannot override “a policy choice made by the Congress,” as expressed in the plain language of 

the statute). Accordingly, we conclude that the plain language of the Act qualifies the facility as 

a “mine.” 

B. MSHA Acted Within its Discretion in Exercising Jurisdiction Over the Facility. 

Maxxim additionally claims that MSHA’s enforcement history has been inconsistent in 

two ways: (1) MSHA reasserted jurisdiction over the Sidney Shop only after it ceased to assert 

jurisdiction over its predecessor shop in West Virginia and (2) MSHA asserted jurisdiction over 

the Sidney Shop while not asserting jurisdiction over five other Maxxim shops. 

38 FMSHRC Page 609
There is some evidence to support the claim that the Sidney Shop is similarly situated to 

the predecessor West Virginia shop.3

 The Commission, however, has long rejected estoppel 

defenses against the federal government and has held that an inconsistent enforcement history by 

MSHA inspectors “does not prevent MSHA from proceeding under an application of the 

standard that it concludes is correct.” Mach Mining, LLC, 34 FMSHRC 1769, 1774 (Aug. 2012), 

citing Nolichuckey Sand Co., 22 FMSHRC 1057, 1063-64 (Sept. 2000); see also Warren Steen 

Constr., Inc., 14 FMSHRC 1125, 1131 (July 1992) (“prior instances of inconsistent action by 

MSHA do not constitute a viable defense to liability”). Rather, operators are “expected to know 

the law and may not rely on the conduct of [inspectors] contrary to law.” Emery Mining Corp. v. 

SOL, 744 F.2d 1411, 1416 (10th Cir. 1984). 

Moreover, the Commission held in Shamokin Filler Co., 34 FMSHRC 1897 (Aug. 2012), 

aff’d, 772 F.3d 330 (3d Cir. 2014), cert. denied, 135 S.Ct. 1549 (2015), that MSHA’s conduct or 

communications related to a decision not to assert jurisdiction over specific facilities are 

irrelevant to whether a different facility is subject to jurisdiction. This is because “[i]t is unlikely 

that any two facilities would be identical and warrant the same conclusion on jurisdiction.” Id. at 

1907. Therefore, the fact that MSHA chose not to inspect Maxxim’s facility in the past does not 

preclude MSHA from doing so in the future. 

 As to its other contention, Maxxim failed to submit evidence establishing that the Sidney 

Shop is similar to the other five Maxxim shops. Maxxim simply asserts that the Sidney shop and 

the five other shops are “similarly situated.” See Maxxim Br. at 6, 25. That assertion, however, is 

unsupported by the record.4

 As a result, Maxxim has failed to prove that MSHA’s enforcement 

3

 Maxxim supervisor Keith Canterbury testified on cross-examination that “75% of the 

jobs [he does at the Sidney Shop is] substantially similar to the work [he did] when [he] worked 

for [the West Virginia Shop].” Tr. 45. However, he also testified that the Sidney Shop is 

different, i.e., larger and better equipped, from the West Virginia Shop. See Maxxim Br. at 3, 

citing Tr. 34-35 (testimony that facility was “extensively remodeled,” which included the 

renovation of a warehouse into another working bay, making a total of two bays present on site, 

and that “hoists” and an “electrical infrastructure” were added, along with the addition of a 

“crane structure”). 

4

 Maxxim’s failure to establish that the other five shops are similar to the Sidney Shop 

also undermines its equal protection claim because Maxxim cannot meet its burden of showing 

that there is no rational relationship between the purpose of the Act and the decision to treat the 

Sidney Shop differently from the other shops. See Williamson v. Lee Optical, 348 U.S. 483 

(1955) (placing on the challenging party the burden of proving that there is no rational 

relationship between the agency’s regulation and a legitimate governmental interest); Lindsley v. 

Natural Carbonic Gas Co., 220 U.S. 61, 79-80 (1911). 

38 FMSHRC Page 610
history with regard to the Sidney Shop and the other facilities was inconsistent, let alone so 

divergent as to approach the degree required to show abuse of discretion. Accordingly, we 

conclude that MSHA acted within its discretion in exercising jurisdiction over the facility. 

III. 

Conclusion 

Based on the reasons above, we affirm the Judge’s decisions finding that MSHA has 

jurisdiction over Maxxim’s Sidney Shop. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner 

38 FMSHRC Page 611

COMMISSION ORDERS
38 FMSHRC Page 612
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004-1710

April 5, 2016 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

Docket No. WEVA 2014-2171 

v. A.C. No. 46-05295-354307

EASTERN ASSOCIATED COAL, LLC 

BEFORE: Jordan, Chairman; Young and Althen, Commissioners1

ORDER 

BY THE COMMISSION: 

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

801 et seq. (2012) (“Mine Act”). On September 10, 2014, the Commission received from Eastern 

Associated Coal (“Eastern Associated”) a motion seeking to reopen a penalty assessment that 

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

U.S.C. § 815(a). 

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

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

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

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

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

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

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

reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of 

Civil Procedure, under which the Commission may relieve a party from a final order of the 

Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying 

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

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

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

good cause for a failure to timely respond, the case may be reopened and appropriate 

1

 This case has been delegated to a panel of three Commissioners pursuant to section 

113(c) of the Mine Act for the limited purpose of assessing the merits of the motion to reopen. 

30 U.S.C. § 823(c). 

38 FMSHRC Page 613
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 

1995). 

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

(“MSHA”) indicate that the proposed assessment was delivered on June 26, 2014, and became a 

final order of the Commission on July 28, 2014. Eastern Associated asserts that it its failure to 

timely contest the proposed assessment was due to an “undetermined clerical or mailing error.” 

The Secretary does not oppose the request to reopen. However, he states that his decision not to 

do so in this case should not be construed as condoning the operator’s inadequate or sloppy 

office procedures. The Secretary urges Eastern Associated to take proposed assessments 

seriously in the future. 

Having reviewed Eastern Associated’s request and the Secretary’s response, in the 

interest of justice, we hereby reopen this matter and remand it to the Chief Administrative Law 

Judge for further proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 

29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for 

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

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner 

38 FMSHRC Page 614
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004-1710

April 5, 2016 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

Docket No. WEVA 2016-0061 

v. A.C. No. 46-06448-389549

EASTERN ASSOCIATED COAL, LLC 

BEFORE: Jordan, Chairman; Young and Althen, Commissioners1

ORDER 

BY THE COMMISSION: 

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

801 et seq. (2012) (“Mine Act”). On October 6, 2015, the Commission received from Eastern 

Associated Coal (“Eastern Associated”) a motion seeking to reopen a penalty assessment that 

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

U.S.C. § 815(a). 

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

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

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

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

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

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

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

reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of 

Civil Procedure, under which the Commission may relieve a party from a final order of the 

Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying 

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

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

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

good cause for a failure to timely respond, the case may be reopened and appropriate 

1

 This case has been delegated to a panel of three Commissioners pursuant to section 

113(c) of the Mine Act for the limited purpose of assessing the merits of the motion to reopen. 

30 U.S.C. § 823(c). 

38 FMSHRC Page 615
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 

1995). 

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

(“MSHA”) indicate that the proposed assessment was delivered on August 17, 2015, and became 

a final order of the Commission on September 16, 2015. Eastern Associated asserts that it its 

failure to timely contest the proposed assessment was due to an “undetermined clerical or 

mailing error . . . [or a] a mistaken or otherwise inadvertent internal processing error.” The 

Secretary does not oppose the request to reopen. However, he states that his decision not to do so 

in this case should not be construed as condoning the operator’s inadequate office procedures. 

The Secretary urges Eastern Associated to take proposed assessments seriously in the future. 

Having reviewed Eastern Associated’s request and the Secretary’s response, in the 

interest of justice, we hereby reopen this matter and remand it to the Chief Administrative Law 

Judge for further proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 

29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for 

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

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner 

38 FMSHRC Page 616
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

April 7, 2016 

BEFORE: Jordan, Chairman; Nakamura, and Althen, Commissioners1

ORDER

BY THE COMMISSION: 

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

801 et seq. (2012) (“Mine Act”). On July 28, 2015, the Commission received from Lee 

Mechanical Contractors (“Lee”) a motion seeking to reopen a penalty assessment that had 

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

§ 815(a). On September 9, 2015, the Commission received a second motion to reopen from Lee.2

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

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

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

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

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

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

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

reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of 

Civil Procedure, under which the Commission may relieve a party from a final order of the 

Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying 

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

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

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

good cause for a failure to timely respond, the case may be reopened and appropriate 

1

 This case has been delegated to a panel of three Commissioners pursuant to section 

113(c) of the Mine Act for the limited purpose of assessing the merits of the motion to reopen. 

30 U.S.C. § 823(c). 

2

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

docket numbers CENT 2015-522-M and CENT 2015-618-M; both captioned Lee Mechanical 

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

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA)

v. 

LEE MECHANICAL CONTRACTORS 

Docket No. CENT 2015-522-M 

A.C. No. 23-00188-379541 HUW

Docket No. CENT 2015-618-M 

A.C. No. 23-00188-382032 HUW

38 FMSHRC Page 617
proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 

1995). 

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

(“MSHA”) indicate that the proposed assessment for Docket No. CENT 2015-522-M was 

delivered on April 28, 2015, and became a final order of the Commission on May 28, 2015. Lee 

asserts that it timely contested the proposed assessment, but sent the contest paperwork to 

MSHA’s St. Louis, Missouri payment processing center instead of the Arlington, Virginia Civil 

Penalty Compliance Office. Lee claims that it became aware of the problem when it received a 

delinquency notice from MSHA. The Secretary affirms that MSHA mailed a delinquency notice 

on July 13, 2015. Lee asserts that it has changed its office procedures to prevent mistaken 

address problems from occurring in the future. 

MSHA records reflect that the proposed assessment for Docket No. CENT 2015-618-M 

was delivered on June 20, 2015, and became a final order on July 20, 2015. Lee asserts that it 

timely contested the proposed assessment, but sent the contest paperwork to MSHA’s St. Louis, 

Missouri payment processing center instead of the Arlington, Virginia Civil Penalty Compliance 

Office. According to Lee, the penalty assessments for the citations involved in Docket Nos. 

CENT 2015-522-M and CENT 2015-618-M were received and addressed around the same time. 

Lee claims that it did not discover the error in Docket No. CENT 2015-618-M until after it 

submitted the motion to reopen for Docket No. CENT 2015-522-M and reviewed its citation 

history on MSHA’s website. 

The Secretary does not oppose the requests to reopen these cases, but urges the operator 

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

Having reviewed Lee’s request and the Secretary’s response, in the interest of justice, we 

hereby reopen these matters and remand them to the Chief Administrative Law Judge for further 

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

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

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

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner 

38 FMSHRC Page 618
Distribution: 

Travis Parker 

Safety Director 

Lee Mechanical Contractors 

P.O. Box 663 

Park Hills, MO 63601 

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

201 12th St. South, Suite 500

Arlington, VA 22202-5450

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, DC 20004-1710 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

U.S. Department of Labor 

201 12th St. South, Suite 500 

Arlington, VA 22202-5450 

38 FMSHRC Page 619
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

April 7, 2016 

BEFORE: Jordan, Chairman; Nakamura, and Althen, Commissioners1

ORDER

BY THE COMMISSION: 

These matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 801 et seq. (2012) (“Mine Act”). On July 31, 2015, the Commission received from United

States Steel Corporation (“U.S. Steel”) a motion seeking to reopen two penalty assessments that

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

U.S.C. § 815(a).2

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

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

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

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

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

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

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

reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of 

Civil Procedure, under which the Commission may relieve a party from a final order of the 

Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying 

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

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

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

1

 This case has been delegated to a panel of three Commissioners pursuant to section 

113(c) of the Mine Act for the limited purpose of assessing the merits of the motion to reopen. 

30 U.S.C. § 823(c). 

2

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

docket numbers LAKE 2015-610-M and LAKE 2015-611-M; both captioned United States Steel 

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

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. 

UNITED STATES STEEL 

 CORPORATION 

Docket No. LAKE 2015-610-M 

A.C. No. 21-00820-377787

Docket No. LAKE 2015-611-M 

A.C. No. 21-03352-380093

38 FMSHRC Page 620
good cause for a failure to timely respond, the case may be reopened and appropriate 

proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 

(Sept. 1995). 

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

(“MSHA”) indicate that the proposed assessment for Docket No. LAKE 2015-610-M was 

delivered on April 6, 2015, and became a final order of the Commission on May 6, 2015. 

MSHA records indicate that the proposed assessment for Docket No. LAKE 2015-611-M was 

delivered on May 4, 2015, and became a final order of the Commission on June 3, 2015. MSHA 

issued delinquency notices for both dockets on July 20, 2015. U.S. Steel asserts that it timely 

contested the penalties, but sent the contests to MSHA’s Payment Center in St. Louis, Missouri, 

instead of MSHA’s Civil Penalty Compliance Office in Arlington, Virginia. The operator has 

since retrained its personnel. The Secretary does not oppose the request to reopen, but urges the 

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

Having reviewed U.S. Steel’s request and the Secretary’s response, in the interest of 

justice, we hereby reopen these matters and remand them to the Chief Administrative Law Judge 

for further proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 

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

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

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner 

38 FMSHRC Page 621
Distribution: 

Michael P. Duff 

Senior Counsel – Labor & Employment 

United States Steel Corporation 

Law Department 

600 Grant Street 

Pittsburgh, PA 15219-2800 

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

201 12th St. South, Suite 500

Arlington, VA 22202-5450

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, DC 20004-1710 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

U.S. Department of Labor 

201 12th St. South, Suite 500 

Arlington, VA 22202-5450 

38 FMSHRC Page 622
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

April 7, 2016 

BEFORE: Jordan, Chairman; Nakamura and Althen, Commissioners 

ORDER

BY THE COMMISSION: 

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

801 et seq. (2012) (“Mine Act”). On July 28, 2015, the Commission received from Pinto Valley 

Mining Corporation (“Pinto Valley”) a motion seeking to reopen a penalty assessment that had 

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

815(a). 

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

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

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

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

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

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

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

reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of 

Civil Procedure under which the Commission may relieve a party from a final order of the 

Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying 

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

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

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

good cause for a failure to timely respond, the case may be reopened and appropriate 

proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 

1995). 

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

(“MSHA”) indicate that the proposed assessment was delivered on March 9, 2015, and became a 

final order of the Commission on April 8, 2015. Pinto Valley asserts that the penalty assessments 

for the citations involved in this case were lost somewhere between the mail run and the

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. 

PINTO VALLEY MINING 

 CORPORATION 

Docket No. WEST 2015-790-M 

A.C. No. 04-01049-375473

38 FMSHRC Page 623
Administration Building’s mail room. Pinto Valley claims that, as a result of this clerical error, 

the penalty assessments never reached Pinto Valley’s Safety Coordinator. Pinto Valley further 

states that the citations at issue are part of a group of 60 citations that were issued in the same 

inspection, and the majority of these citations were grouped into a different case number. The 

Secretary notes that a delinquency notice was mailed to the operator on May 26, 2015, and the 

case was referred to the U.S. Department of Treasury for collection on July 23, 2015, because no 

response was received from Pinto Valley. The Secretary does not oppose the request to reopen, 

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

In considering whether an operator has unreasonably delayed in filing a motion to reopen, 

we find relevant the amount of time that has passed between an operator’s receipt of a 

delinquency notice and the operator’s filing of its motion to reopen. See, e.g., Left Fork Mining 

Co., 31 FMSHRC 8, 11 (Jan. 2009); Highland Mining Co., 31 FMSHRC 1313, 1316-17 (Nov. 

2009) (holding that motions to reopen filed more than 30 days after receipt of notice of 

delinquency must explain the reasons why the operator waited to file a reopening request, and 

lack of explanation is grounds for the Commission to deny the motion). Here, the delay in 

responding to MSHA’s delinquency notice amounted to more than 30 days. While Pinto Valley 

explained its failure to timely contest the proposed assessment, it failed to explain its delay in 

filing this motion to reopen after receiving the delinquency notice. This lack of explanation is 

normally grounds for denial. In this case, however, the operator has no history of filing motions 

to reopen. Additionally, the Secretary does not oppose reopening, but states that he will oppose 

future motions to reopen penalty assessments that are not contested in a timely manner. 

Having reviewed Pinto Valley’s request and the Secretary’s response, in the interest of 

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

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

Part 2700. 

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

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

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner 

38 FMSHRC Page 624
Distribution: 

Mark N. Savit 

Ross J. Watzman 

Jackson Lewis P.C. 

950 17th Street, Suite 2600 

Denver, CO 80202 

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

201 12th St. South, Suite 500

Arlington, VA 22202-5450

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, DC 20004-1710 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

U.S. Department of Labor 

201 12th St. South, Suite 500 

Arlington, VA 22202-5450 

38 FMSHRC Page 625
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

April 7, 2016 

BEFORE: Jordan, Chairman; Nakamura, and Althen, Commissioners1

ORDER

BY THE COMMISSION: 

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

801 et seq. (2012) (“Mine Act”). On August 21, 2015, the Commission received from FLSmidth, 

Inc. (“FLSmidth”) a motion seeking to reopen a penalty assessment that had become a final order 

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

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

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

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

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

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

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

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

reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of 

Civil Procedure, under which the Commission may relieve a party from a final order of the 

Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying 

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

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

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

good cause for a failure to timely respond, the case may be reopened and appropriate 

proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 

1995). 

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

(“MSHA”) indicate that the proposed assessment was delivered on May 23, 2015, and became a 

1

 This case has been delegated to a panel of three Commissioners pursuant to section 

113(c) of the Mine Act for the limited purpose of assessing the merits of the motion to reopen. 

30 U.S.C. § 823(c). 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. 

FLSMIDTH, INC. 

Docket No. WEST 2015-863-M 

A.C. No. 05-004822-381975 G2X

38 FMSHRC Page 626
final order of the Commission on June 22, 2015. FLSmidth asserts that it erroneously sent both 

the remittance for the uncontested citations and the notice of contest for the cases it sought to 

contest to MSHA’s St. Louis, Missouri payment and processing office. FLSmidth claims that it 

discovered the mistake after receiving a delinquency letter from MSHA. The Secretary confirms 

that MSHA received a check dated June 10, 2015, in the amount of the uncontested citations, and 

that it mailed a delinquency letter to FLSmidth on August 7, 2015. FLSmidth states that it paid 

the balance of the penalties in order to avoid being considered delinquent, but still wishes to 

contest the citations. The Secretary confirms that MSHA received a second check from 

FLSmidth dated August 20, 2015. The Secretary does not oppose the request to reopen, but urges 

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

Having reviewed FLSmidth’s request and the Secretary’s response, in the interest of 

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

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

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

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

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner

38 FMSHRC Page 627
Distribution: 

Bill Madea 

Regional HSE Manager 

FLSmidth Inc. 

2040 Avenue C 

Bethlehem, PA 18017-2188 

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

201 12th St. South, Suite 500

Arlington, VA 22202-5450

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, DC 20004-1710 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

U.S. Department of Labor 

201 12th St. South, Suite 500 

Arlington, VA 22202-5450 

38 FMSHRC Page 628
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

April 7, 2016 

BEFORE: Jordan, Chairman; Nakamura, and Althen, Commissioners1

ORDER

BY THE COMMISSION: 

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

801 et seq. (2012) (“Mine Act”). On September 9, 2015, the Commission received from Barrick 

Turquoise Ridge, Inc. (“Barrick”) a motion seeking to reopen a penalty assessment that had 

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

815(a). 

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

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

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

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

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

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

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

reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of 

Civil Procedure, under which the Commission may relieve a party from a final order of the 

Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying 

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

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

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

good cause for a failure to timely respond, the case may be reopened and appropriate 

proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 

1995).

1

 This case has been delegated to a panel of three Commissioners pursuant to section 

113(c) of the Mine Act for the limited purpose of assessing the merits of the motion to reopen. 

30 U.S.C. § 823(c).

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA)

v. 

BARRICK TURQUOISE RIDGE, INC. 

Docket No. WEST 2015-898-M 

A.C. No. 26-02286-383506

38 FMSHRC Page 629
Records of the Department of Labor’s Mine Safety and Health Administration 

(“MSHA”) indicate that the proposed assessment was delivered on June 15, 2015, and became a 

final order of the Commission on July 15, 2015. Barrick asserts that safety and health group 

employees who were unfamiliar with the office’s contest process failed to submit a contest form 

to MSHA. According to Barrick, these employees did not submit the contest form because they 

mistakenly assumed that Barrick’s accounting office would send a contest form to MSHA, along 

with a check with payment for the citations that Barrick did not wish to contest. Barrick states 

that the safety staff did not understand that the accounting office’s usual practice was only to 

send payments to MSHA, and not contest forms. Barrick further asserts that its timely partial 

payment reflects Barrick’s intent to contest the penalty, and that as a result this case should not 

be in default even though a contest form was not filed within the thirty-day deadline. 

The Secretary confirms that MSHA received a check dated July 13, 2015 in the amount 

of $5,309. The Secretary also confirms that MSHA mailed a delinquency letter to Barrick on 

August 31, 2015. The Secretary does not oppose the request to reopen, but urges the operator to 

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

A timely partial payment is not sufficient to indicate the operator’s intent to contest a 

citation and avoid a default. Having reviewed Barrick’s request and the Secretary’s response, 

however, we find that the actions of the safety and health group constitute a mistake that justifies 

relief. In the interest of justice, we hereby reopen this matter and remand it to the Chief 

Administrative Law Judge for further proceedings pursuant to the Mine Act and the 

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

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

See 29 C.F.R. § 2700.28. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner 

38 FMSHRC Page 630
Distribution: 

Margaret S. Lopez, Esq. 

Lauren M. Marino, Es q. 

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

1909 K Street, N.W., Suite 1000 

Washington, DC 20006 

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

201 12th St. South, Suite 500

Arlington, VA 22202-5450

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, DC 20004-1710 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

U.S. Department of Labor 

201 12th St. South, Suite 500 

Arlington, VA 22202-5450 

38 FMSHRC Page 631
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

April 20, 2016 

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

ORDER

BY THE COMMISSION: 

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

801 et seq. (2012) (“Mine Act”). On May 13, 2014, the Commission received from Kentucky 

Fuel Corporation (“Kentucky Fuel”) a motion seeking to reopen a penalty assessment that had 

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

815(a). 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(“MSHA”) indicate that the proposed assessment of $39,256 was delivered on March 19, 2014, 

and became a final order of the Commission on April 18, 2014. Kentucky Fuel asserted that it 

failed to timely contest the proposed assessment due to a change in personnel responsible for 

handling MSHA matters. In this regard, the operator asserts that the new safety director who was 

responsible for handling MSHA matters was not familiar with the process for contesting 

proposed assessments. 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

v. 

KENTUCKY FUEL CORPORATION 

Docket No. KENT 2014-489 

A.C. No. 15-19475-345392

38 FMSHRC Page 632
The Secretary opposed the request to reopen, noting that the operator has an extensive 

prior history of delinquent payments of penalties. The Secretary argues that this record indicates 

that the operator has not acted in good faith. 

In regards to good faith, it is well recognized in federal jurisprudence that the issue of 

whether the movant acted in good faith is an important factor in determining the existence of 

excusable neglect. Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395 

(1993); FG Hemisphere Assocs., LLC v. Democratic Republic of Congo, 447 F.3d 835, 838 

(D.C. Cir. 2006). Likewise, the Commission has recognized that a movant’s good faith, or lack 

thereof, is relevant to a determination of whether the movant has demonstrated mistake, 

inadvertence, surprise or excusable neglect within the meaning of Rule 60(b)(1) of the Federal 

Rules of Civil Procedure. Lone Mountain Processing, Inc., 35 FMSHRC 3342, 3346 (Nov. 

2013); M.M. Sundt Constr. Co., 8 FMSHRC 1269, 1271 (Sept. 1986); Easton Constr. Co., 3 

FMSHRC 314, 315 (Feb. 1981). 

The Commission has also specifically addressed situations where an operator has failed 

to respond to an argument by the Secretary that the operator’s extensive history of outstanding 

penalties demonstrates bad faith. The Commission has found that the operator’s failure to 

respond to an allegation of bad faith by the Secretary may support a conclusion that the operator 

has not met its burden of establishing entitlement to extraordinary relief. Oak Grove Res. LLC, 

33 FMSHRC 1130, 1132-1133 (June 2011). 

Kentucky Fuel’s history regarding the payment of penalties is abysmal. According to the 

Secretary’s unrebutted Opposition to the Motion to Reopen, when the motion was filed, this 

mine had fifteen outstanding penalties totaling $54,294 (not including the penalty assessment at 

issue here), and the operator had total outstanding penalties of $351,696 for its thirteen active 

and inactive mines, spanning 140 cases from 2010-2014. The operator’s record indicates that it 

has repeatedly disregarded final penalty assessments. As stated above, the Secretary argues that 

this delinquency record of the mine, and of the operator, in the years preceding the request to 

reopen, indicates that the operator has not acted in good faith. The operator failed to respond to 

this argument by the Secretary. 

 This case, in which the operator had a total delinquency of over $350,000, bears 

similarities to Oak Grove, in which the operator had a total delinquency of more than $750,000. 

Under Oak Grove, 33 FMSHRC at 1132-33, the operator has not met its burden of establishing 

good faith and an entitlement to extraordinary relief. 

Here, the extremely large delinquency of the operator, which had accumulated in the 

years preceding the request to reopen, should have informed the operator of the need to be more 

attentive to proposed assessments from MSHA. We also note that this proposed assessment 

included thirteen orders under section 104(d) for unwarrantable failure to comply with 

mandatory health or safety standards, and the proposed penalty for these orders was $33,463 out 

of the total $39,256 proposed assessment. Therefore, the operator should have taken precautions, 

due to the serious violations and high penalties at issue, to timely contest the proposed 

assessment. 

38 FMSHRC Page 633
Finally, the Commission has made it clear that where a failure to contest a proposed 

assessment results from an inadequate or unreliable internal processing system, the operator has 

not established grounds for reopening the assessment. Shelter Creek Capital, LLC, 34 FMSHRC 

3053, 3054 (Dec. 2012); Oak Grove Res., LLC, 33 FMSHRC 103, 104 (Feb. 2011); Double 

Bonus Coal Co., 32 FMSHRC 1155, 1156 (Sept. 2010); Highland Mining Co., 31 FMSHRC 

1313, 1315 (Nov. 2009); Pinnacle Mining Co., 30 FMSHRC 1066, 1067 (Dec. 2008); Pinnacle 

Mining Co., 30 FMSHRC 1061, 1062 (Dec. 2008). It is the operator’s responsibility to properly 

train all personnel who handle proposed assessments. Each proposed assessment sets forth the 

deadline for contesting proposed assessments. Here, it appears from Kentucky Fuel’s motion that 

the safety director was only trained after the fact – that is, he was told about procedures for 

contesting penalties only after the deadline for contesting the penalty assessments at issue had 

passed. Mot. at 1. Moreover, although he is identified in the motion as the operator’s “new” 

safety director, the Secretary points out that he was the safety director at least two months prior 

to the date of the proposed penalties. See Sec’s Opp. At 3-4. In addition, the operator argues 

unconvincingly that the fact that the safety director had an address different from that of the 

mine, along with the “change in personnel,” should excuse the late filing. Mot. at 2. As the 

Secretary states, the assessment was delivered by certified mail to the safety director at the 

address of record shown on the legal identity report. Based on the above, we conclude that the 

operator’s failure to contest the proposed assessment resulted from an inadequate or unreliable 

internal processing system. 

Accordingly, we find that the operator has failed to demonstrate an entitlement to 

extraordinary relief, and thus we deny Kentucky Fuel’s motion. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen Jr., Commissioner 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner 

38 FMSHRC Page 634
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

April 20, 2016

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

ORDER

BY THE COMMISSION: 

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

801 et seq. (2012) (“Mine Act”). On March 4, 2014, the Commission received from C.R. Meyer 

& Sons Company, Inc. (“C.R. Meyer”) a motion seeking to reopen a penalty assessment that had 

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

815(a). 

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

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

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

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

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

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

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

reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of 

Civil Procedure under which the Commission may relieve a party from a final order of the 

Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying 

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

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

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

good cause for a failure to timely respond, the case may be reopened and appropriate 

proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 

1995). 

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

(“MSHA”) indicate that the proposed assessment was delivered on June 5, 2013. MSHA 

received payment from C.R. Meyer by check dated June 11, 2013. C.R. Meyer asserts that its 

accounting department, which received the proposed penalty assessment, inadvertently paid the 

penalty. C.R. Meyer asserts that it intended to contest the proposed assessment, and would have 

done so if its counsel had received a copy of the proposed assessment. In this regard, C.R. Meyer 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

v. 

C.R. MEYER & SONS COMPANY, INC.

Docket No. WEST 2014-482-M 

A.C. No. 04-02542-323448

38 FMSHRC Page 635
had filed a contest to the underlying citation in this matter on May 22, 2013. The Secretary 

opposes the request to reopen. 

When reviewing an operator’s motion to reopen a proposed assessment, we consider 

whether the operator has contested the citation underlying the proposed assessment. Lone 

Mountain Processing, Inc., 35 FMSHRC 3342, 3346-47 (Nov. 2013). As stated above, C.R. 

Meyer had contested the underlying citation. Furthermore, we also note that the counsel for the 

operator has demonstrated a diligent effort to keep track of the citation and the proposed 

assessment through his correspondence with MSHA and with attorneys representing the 

Secretary of Labor. In this regard, operator’s counsel was informed by an attorney representing 

the Secretary of Labor that he should communicate with her rather than with MSHA. 

Furthermore, operator’s counsel, who received the citation, believed that he would also receive a 

copy of the proposed assessment and was unaware that the operator’s accounting department had 

received and paid the proposed assessment. Lastly, operator’s counsel, after learning about the 

proposed assessment on February 19, 2014, promptly filed a motion to reopen this matter, 

received by the Commission on March 4, 2014. Therefore, it is clear that the payment by the 

operator was the result of a mistake. 

38 FMSHRC Page 636
Having reviewed C.R. Meyer’s request and the Secretary’s response, in the interest of 

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

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

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

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

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen Jr., Commissioner 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner 

38 FMSHRC Page 637
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, D.C. 20004-1710 

April 20, 2016 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) 

v. 

ACI TYGART VALLEY 

Docket No. 

A.C. No.

WEVA 2014-2151 

46-09192-355122

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

ORDER

BY THE COMMISSION: 

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 01 

et seq. (2012) (“Mine Act”). On September 5, 2014, the Commission received from ACI Tygart 

Valley (“ACI”) a motion seeking to reopen a penalty assessment that had become a final order of 

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

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

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

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

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

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

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

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

reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of 

Civil Procedure, under which the Commission may relieve a party from a final order of the 

Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying 

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

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

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

good cause for a failure to timely respond, the case may be reopened and appropriate 

proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 

1995). 

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

(“MSHA”) indicate that the proposed assessment was delivered on July 5, 2014, and became a 

final order of the Commission on August 4, 2014. ACI asserts that it had mailed a contest of the 

proposed assessment within the required time period. The Secretary notes that MSHA has no 

record of receipt of a contest of the proposed assessment. The Secretary does not oppose the 

38 FMSHRC Page 638
Having reviewed ACI’s request and the Secretary’s response, in the interest of justice, we 

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

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

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

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

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen, Jr., Commissioner 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner 

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

timely filed.

38 FMSHRC Page 639
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

April 28, 2016 

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

ORDER

BY THE COMMISSION: 

These matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 801 et seq. (2012) (“Mine Act”). Between September 15 and October 14, 2015, the

Commission received motions from the above-captioned operators seeking to reopen penalty

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

Mine Act, 30 U.S.C. § 815(a).

In each of these cases, the operators claim that they mailed timely notices of contest to 

the Arlington office of the Mine Safety and Health Administration (“MSHA”). The Secretary 

initially did not oppose reopening because of problems concerning mail delivery following the 

relocation of MSHA’s headquarters on July 15, 2015. However, on October 14, 2015, MSHA 

received a large volume of mail that had not been forwarded to MSHA’s new address. Included 

in this mail were the notices of contest for the above-captioned cases. 

Having discovered that the operators had timely contested the proposed penalties, MSHA 

maintains that the contests were immediately processed and docketed in separate civil penalty 

proceedings. Based on these circumstances, the Secretary requests that the above-captioned 

dockets be dismissed as moot. 

1

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

docket numbers KENT 2016-3, KENT 2016-4, KENT 2016-5, KENT 2016-6, LAKE 2016-9-M, 

WEST 2016-6-M, CENT 2015-625-M, CENT 2016-7-M, LAKE 2016-7-M, VA 2016-7, WEST 

2015-967, and LAKE 2016-35 involving similar procedural issues. 29 C.F.R. § 2700.12. For 

the sake of brevity, the relevant operator’s names, A.C. numbers, and associated docket numbers 

have been listed in Appendix A, attached to this order.

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

v. 

BLUE DIAMOND COAL COMPANY, et 

 al.1

Docket Nos. KENT 2016-3 

KENT 2016-4 

KENT 2016-5 

KENT 2016-6 

LAKE 2016-9-M 

WEST 2016-6-M 

CENT 2015-625-M 

CENT 2016-7-M 

LAKE 2016-7-M 

VA 2016-7 

WEST 2015-967 

LAKE 2016-35 

38 FMSHRC Page 640
Having reviewed the requests to reopen and the Secretary’s response, we conclude that 

the proposed penalty assessments did not become final orders of the Commission because the 

operators timely contested the proposed assessments. Section 105(a) states that if an operator 

“fails to notify the Secretary that he intends to contest the . . . proposed assessment of penalty, 

. . . the citation and the proposed assessment of penalty shall be deemed a final order of the 

Commission.” 30 U.S.C. § 815(a). Here, the operators notified the Secretary of the contests. 

This obviates any need to invoke Rule 60(b) of the Federal Rules of Civil Procedure. 

Accordingly, the operators’ motions to reopen are moot, and these dockets are dismissed. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen Jr., Commissioner 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner 

38 FMSHRC Page 641
Distribution:

Billy R. Shelton, Esq. 

Jones Walters, Turner, & Shelton PLLC 

2452 Sir Barton Way, Suite 101 

Lexington, KY 40509 

Bruce Callender 

Callender Construction Company, Inc. 

928 West Washington St. 

Pittsfield, IL 62363

Allan Atwell 

Campbell Redi-Mix 

1510 Cooper Dr. 

Lake Havasu City, AZ 86403 

Melvin Flannery

Flannery Construction, Inc. 

P.O. Box 336 

Cranson, WI 54520 

Michael D. Clements 

RDM Enterprises, Inc.

408 A Manor Dr. 

Kingsport, TN 37660 

Kevin Gates 

Gates Construction, Inc. 

608 Park Ave. East 

Watford City, ND 58854 

Dianna Mears Tassin 

Mears Sand & Gravel 

40 Mears Rd. 

Denham Springs, LA 70706 

Christopher G. Peterson, Esq. 

Jackson Kelly PLLC 

1099 18th Street, Suite 2150 

Denver, CO 80202 

38 FMSHRC Page 642
W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

201 12th St. South, Suite 401

Arlington, VA 22202-5450

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, DC 20004-1710 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

U.S. Department of Labor 

201 12th St. South, Suite 401 

Arlington, VA 22202-5450 

38 FMSHRC Page 643
Exhibit 1 

Operator Docket Number A.C. Number

Blue Diamond Coal Company KENT 2016-3 15-19598-384070

Blue Diamond Coal Company KENT 2016-4 15-17478-384056

Blue Diamond Coal Company KENT 2016-5 15-17497-384057

Blue Diamond Coal Company KENT 2016-6 15-17497-384768

Callender Construction 

Company, Inc. 

LAKE 2016-9-M 11-00214-385554

Campbell Redi-Mix WEST 2016-6-M 02-03022-386154

Gates Construction Inc. CENT 2015-625-M 32-01050-382708

Mears Sand & Gravel, LLC CENT 2016-7-M 16-00883-382655

Mel Flannery Trucking LAKE 2016-7-M 47-03029-384752

RDM Enterprises, Inc. VA 2016-7 44-06929-385047-S889

Signal Peak Energy, LLC WEST 2015-967 24-01950-384634

Triad Underground Mining, 

LLC 

LAKE 2016-35 12-02423-384766

38 FMSHRC Page 644
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

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

WASHINGTON, DC 20004-1710 

April 28, 2016 

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

ORDER

BY THE COMMISSION: 

These matters arise under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 

801 et seq. (2012) (“Mine Act”). Between September 2 and October 26, 2015, the Commission 

received motions from the above-captioned operators seeking to reopen penalty assessments that 

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

U.S.C. § 815(a). 

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

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

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

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

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

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

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

reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of 

Civil Procedure, under which the Commission may relieve a party from a final order of the 

Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying 

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

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

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

good cause for a failure to timely respond, the case may be reopened and appropriate 

proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 

1995).

1

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

docket numbers SE 2015-455-M, WEVA 2015-1014, VA 2016-18, SE 2016-24-M, CENT 2016-

28-M, KENT 2016-2, WEVA 2015-996, and WEVA 2015-997 involving similar procedural

issues. 29 C.F.R. § 2700.12. For the sake of brevity, the relevant operators’ names, A.C.

numbers, and associated docket numbers have been listed in Appendix A, attached to this order.

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

v. 

ALLSTATE MATERIALS, LLC, et al.1 

Docket Nos. SE 2015-455-M 

WEVA 2015-1014 

VA 2016-18 

SE 2016-24-M 

CENT 2016-28-M 

KENT 2016-2 

WEVA 2015-996 

WEVA 2015-997 

38 FMSHRC Page 645
In all of these cases, the operators claim that they mailed timely notices of contest to the 

Arlington office of the Mine Safety and Health Administration (“MSHA”) at the address listed 

on the proposed assessment. The operators further contend that the contests were either lost in 

the mail or returned as undeliverable. The Secretary does not oppose reopening because of 

problems concerning mail delivery following the relocation of MSHA’s headquarters on July 15, 

2015. In particular, MSHA maintains that the U.S. Postal Service has not consistently forwarded 

all of its mail to its new address.2

 

2

 Notice of the change in MSHA’s address was published in the Federal Register on 

September 2, 2015, nearly three months after MSHA moved its headquarters. 80 Fed. Reg. 

52984-01. Additionally, we note that MSHA’s mailing address listed on the Notice of Contest 

Rights and Instructions included with proposed assessments and the Commission’s website were 

not up-to-date during the relevant time period. Insofar as the operators may have been confused 

by these documents, we find that their failure to timely contest the proposed penalties is 

excusable. 

38 FMSHRC Page 646
Having reviewed the requests to reopen and the Secretary’s response, in the interest of 

justice, we hereby reopen these matters and remand them to the Chief Administrative Law Judge 

for further proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 

C.F.R. Part 2700. Accordingly, the Secretary shall file petitions for assessment of penalty in each

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

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman 

/s/ Michael G. Young 

Michael G. Young, Commissioner 

/s/ Robert F. Cohen, Jr. 

Robert F. Cohen Jr., Commissioner 

/s/ Patrick K. Nakamura 

Patrick K. Nakamura, Commissioner 

/s/ William I. Althen 

William I. Althen, Commissioner 

38 FMSHRC Page 647
Distribution: 

James F. Bowman 

P.O. Box 99 

Midway, WV 25878 

Charles Livingston 

Livingston Aggregate LLC 

5870 County Rd. 21 

Akron, AL 35441-2205 

Billy R. Shelton, Esq. 

Jones Walters, Turner, & Shelton PLLC 

2452 Sir Barton Way, Suite 101 

Lexington, KY 40509 

Chris Vaughn 

Ozark Southern Stone 

P.O. Box 40 

Beaver, AR 72613 

Michael T. Cimino, Esq. 

Jackson Kelly, PLLC 

1600 Laidley Tower 

P.O. Box 553 

Charleston, WV 25322 

David C. Powell 

Allstate Materials, LLC 

2708 Country Rd. 85 

Deatsville, AL 36022 

Clark Livingston 

Livingston Aggregate LLC 

5870 County Rd. 21 

Akron, AL 35441-2205 

W. Christian Schumann, Esq.

Office of the Solicitor

U.S. Department of Labor

201 12th St. South, Suite 401

Arlington, VA 22202-5450

38 FMSHRC Page 648
Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, DC 20004-1710 

Melanie Garris 

Office of Civil Penalty Compliance 

Mine Safety and Health Administration 

U.S. Department of Labor 

201 12th St. South, Suite 401 

Arlington, VA 22202-5450 

38 FMSHRC Page 649
Exhibit 1 

Operator Docket Number A.C. Number

Allstate Materials, LLC SE 2015-455-M 01-03406-387911

Eastern Associated Coal, LLC WEVA 2015-1014 46-01456-384741

Hills Coal Company, Inc. VA 2016-18 44-03472-389324

Livingston Aggregate, LLC SE 2016-24-M 01-03359-387668

Ozark Southern Stone CENT 2016-28-M 03-01936-386157

Pine Branch Mining, LLC KENT 2016-2 15-16883-383468

Raw Coal Mining Company WEVA 2015-996 46-06265-383951

Sally Ann Coal Company WEVA 2015-997 46-06843-383326

38 FMSHRC Page 650
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: 202-434-9950 / FAX: 202-434-9949 

April 4, 2016 

DECISION

Appearances: Willow E. Fort, Esq., U.S. Department of Labor, 618 Church Street, Suite 

230, Nashville, TN 37219-2456, for Petitioner 

J.D. Terry, Esq., Warrior Investments Co., Inc., 218 Highway 195, Jasper,

AL 35503, for Respondent

Before: Judge Barbour 

This civil penalty case arises under section 105(d) of the Federal Mine Safety and Health 

Act of 1977 (“the Act”), as amended, 30 U.S.C. § 815(d). The Secretary of Labor (“Secretary”) 

on behalf of his Mine Safety and Health Administration (“MSHA”) seeks the assessment of civil 

penalties for two alleged violations of section 316(b) of the Act, 30 U.S.C. § 876(b), which 

requires each underground coal mine operator to develop and adopt an emergency response plan 

subject to review and approval by the Secretary.1 The Secretary alleges that Warrior Investments 

Company, Inc. (“Warrior” or “the company”) failed in two separate instances to comply with a 

provision of its approved emergency response plan requiring an inline beacon reader to be 

located at the intersection of the rescue chamber lifeline and the primary escapeway lifeline. The 

Secretary charges that the alleged violations were significant and substantial contributions to a 

1

 At hearing, the Secretary moved to amend the citations to allege that the operator 

violated section 316(b) more broadly, rather than section 316(b)(2)(c). The court granted the 

motion without objection from the company. Tr. 20-21. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner, 

v. 

WARRIOR INVESTMENTS CO., INC., 

 Respondent. 

CIVIL PENALTY PROCEEDING: 

Docket No. SE 2015-174 

A.C. No. 01-03419-370628

Mine: Maxine-Pratt Mine 

38 FMSHRC Page 651
mine safety hazard (“S&S”2

), reasonably likely to cause eight miners to suffer lost work days or 

restricted duty, and the result of Warrior’s moderate negligence. The alleged violations occurred 

at an underground bituminous coal mine owned and operated by Warrior near Jasper, Alabama. 

The Secretary filed the subject petition requesting the Commission to assess proposed 

civil penalties totaling $2,206 for the two alleged violations. The Commission’s Chief Judge 

assigned the case to the court, which directed the parties to engage in discussions to determine if 

the alleged violations could be settled. After the parties were unable to reach a settlement, the 

violations were tried on December 15, 2015, in Birmingham, Alabama. At the end of the hearing, 

the parties agreed to forego briefing and instead offered closing arguments on the record. Tr. 239. 

I. STIPULATIONS

1. At all times relevant to this matter, [Warrior] was the operator of the mine

as defined by [section 3(d)] of the Mine Act, 30 U.S.C. § 803(d).

2. [T]he mine is a mine as that term is defined in Section 3(a) to the Mine

Act, 30 U.S.C. § 803(a).

3. [A]t all material times involved in this matter, the products of the subject

mine entered commerce, or the operations thereof[] affected commerce

within the meaning and scope of Section 4 of the Mine Act, 30 U.S.C. §

803.

4. [T]he citations were issued to [Warrior] on the dates set forth therein.

5. [Warrior] operations at the mine are 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, 823.

6. [I]nspector Todd Smith was [acting] in his official capacity and as an

authorized representative of the Secretary when he issued the citations.

2

 An S&S violation is a violation “of such nature as could significantly and substantially 

contribute to the cause and effect of a . . . mine safety or health hazard.” 30 U.S.C. § 814(d). 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 order to establish the S&S nature of a violation, the Secretary must prove: 

(1) the underlying violation of a mandatory safety standard; (2)

a discrete safety hazard - that is a measure of danger to safety -

contributed to by the violation; (3) a reasonable likelihood that

the hazard contributed to will result in an injury; and (4) a

reasonable likelihood that the injury will be of a reasonably

serious nature.

Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984); accord Buck Creek Coal Co., Inc. 52 F.3d 133, 

135 (7th Cir. 1995); Austin Power Co., Inc., 861 F.2d 99, 103 (5th Cir. 1988) (approving the 

Mathies criteria). 

38 FMSHRC Page 652
7. [T]he total proposed penalty for the above-referenced docket will not

affect [Warrior’s] ability to remain in business.

8. [T]he proposed assessment form, Form 1000-179[,] accurately sets forth

[Warrior’s] size and . . . controller tonnage, the total number of assessed

violations for the 15 months preceding the month of the citations, and the

total number of repeat violations for the 15 months preceding the month of

the citations.

Tr. 11-13. 

II. BACKGROUND

Every active underground coal mine in the nation has an emergency response plan 

(“ERP”) developed by the mine operator and approved by MSHA’s district manager, setting 

forth tracking and communication requirements to help locate and recover miners in the event of 

an emergency situation. Tr. 26. Each plan is tailored to the specific conditions and resources of 

the individual mine. Tr. 26. The company’s Maxine-Pratt mine submitted its ERP for approval 

on July 6, 2014, and received approval on July 31, 2014. Tr. 44. 

Relevant portions of the ERP in place at the mine during the month of November 2014 

require that inline beacon readers be installed inby the portal (at the entrance of the mine), on 

both the intake and return3

 sides of each working section, at the “number 2 belt drive,” and at 

intervals of a maximum of 2,000 feet; that a beacon reader be installed at the intersection of the 

rescue chamber lifeline and the primary escapeway lifeline; and that the tracking system be 

examined weekly by a designated, competent person. GX-2 at 2-3. The Secretary’s mandatory 

safety standards for the nation’s underground coal mines also require that a rescue chamber be 

located within 1,000 feet of each working face (where coal is actively being mined). 30 C.F.R. § 

75.1506(c)(1). 

The witnesses offered useful definitions and descriptions of the terms mentioned above. 

The primary escapeway, which also functions as the intake side of each section, provides the 

likeliest means of safe exit from a working section out of the mine in case of an emergency or 

accident. Tr. 64, 210. (There is also a secondary escapeway located along the belt line that 

miners may use in an emergency if the primary escapeway is rendered unsafe. Tr. 210.) The 

primary escapeway lifeline, which may be a rope or metal line, hangs from the roof of the mine 

and runs along the entire length of each escapeway, indicating the proper route for safely exiting 

the mine. Tr. 65. Beacon readers hanging from the lifelines detect miners who pass within a 

certain radius of the readers.4

 Tr. 49. The company typically places beacon readers every 1,800 

3 The intake side of a section delivers fresh air or ventilation inby from outside of the 

mine, while the return side contains air or ventilation that has passed through the working faces 

of the mine. Tr. 210. 

4

 The ERP states that the beacon reader reads a distance of both 150 feet and 450 feet. 

The witnesses in this matter believed that one of those measurements was incorrectly listed, but 

neither witness knew which of the two was correct. Tr. 113, 228-29; GX-2 at 2. 

38 FMSHRC Page 653
feet, or sometimes closer together, throughout the mine.5

 Tr. 206. The beacon readers are capable 

of identifying specific miners by the identification tags they carry with them. Tr. 49; GX-2 at 2. 

The readers then transmit a signal by wire outside of the mine indicating that a miner has passed 

within their radius of detection. Tr. 56-57. 

A refuge chamber, also known as a refuge alternative, is a physical box with 96 hours 

worth of emergency supplies and “breathable air under a pressurized system.” Tr. 69, 128. It 

provides refuge to stranded miners if an accident or emergency occurs and miners are unable to 

reach the surface. Tr. 69-70. Each chamber at this mine can accommodate up to 25 people. Tr. 

128. The refuge chamber lifeline guides miners from the primary escapeway to the refuge

chamber if they are unable to complete the trip out of the mine using the primary escapeway. Tr.

71.

In the event of an emergency, the first responders will initially check to see the last 

recorded location of any missing miner by a beacon reader and then focus their search and 

recovery efforts on the area within that beacon reader’s radius. Tr. 59, 67. Beacon readers, by 

requirement, are concentrated along the areas where first responders expect to find trapped 

miners in an emergency, including at each working section. Tr. 62-63, 81. 

During the month of November 2014, Warrior was mining coal in two sections of the 

mine, which the company referred to as section 15 West and section 35 West. Tr. 190. There 

were eight people at a time working on each of the two sections during that time period. Tr. 191. 

The company ran three eight-hour shifts each day. Tr. 118, 194. Todd Smith, who had 

approximately three and a half years of experience as an MSHA Inspector, and further 

experience as a member of a federal mine emergency rescue team, cited Warrior for the two 

alleged violations at issue during a quarterly inspection in November 2014. Tr. 22, 37. Citation 

No. 8530016 was issued on November 5, 2014, during an inspection of the 15 West section of 

the mine, while Citation No. 8530019 was issued on November 21, 2014, during an inspection of 

the 35 West section. Tr. 72, 91. The citations were issued pursuant to section 104(a) of the Act. 

30 U.S.C. § 814(a). 

5

 The cables connecting each beacon reader to a power supply are either 1,580 or 1,850 

feet long. Testimony was inconsistent on this point. Tr. 204-06. The company typically places 

the beacon readers at the end of each cable, and then runs a subsequent cable nearby with another 

beacon reader at the end of it. This allows the company to comply with the ERP requirement that 

the readers be at most 2,000 feet apart, without having to cut the cables short. Tr. 205. However, 

the company also places a beacon reader at certain belt drives, and since a belt drive can be less 

than 1,800 feet from the closest beacon reader, the company occasionally cuts the cable short to 

attach a new beacon reader at the belt drive. Tr. 206-07.

38 FMSHRC Page 654
III. THE CITATION S

CITATION NO. DATE 30 U.S.C. §

8530016 11/5/2014 876(b) 

8530019 11/21/2014 876(b) 

Both citations state: 

Management failed to follow the approved Emergency Response 

Plan, page 2 paragraph 5, which states that, “An inline beacon 

reader will be located at the intersection where the rescue chamber 

lifeline connects to the primary escapeway lifeline.” When 

inspected, the inline beacon reader was not installed at the 

intersection by the . . . section refuge alternative. 

GX-3; GX-4. Citation No. 8530016 then concludes, “The line was coiled up in the intersection 

without the reader.” GX-3 at 1. Citation No. 8530019 instead concludes, “The line had been run 

by the refuge alternative and into the adjacent entry toward the face, but the inline beacon reader 

had not been installed.” GX-4 at 1. The citations were abated by installing the missing beacon 

readers at the refuge alternatives. GX-3 at 2; GX-4 at 2. 

Inspector Smith cited the company immediately after noticing the first missing beacon 

reader on November 5, 2014. Tr. 72. He was concerned about miners, unable to exit the mine, 

seeking refuge in the chamber after an emergency and first responders not recognizing they are 

there due to the absence of a beacon reader at that location. Tr. 74, 77. Instead, a rescue team 

would search for the missing miners near the last beacon reader that detected them, which could 

be a considerable distance away. Tr. 83. While the chambers did have other means of 

communication to the outside, Smith feared that miners could be too injured to take advantage of 

them or that an accident could hamper those lines of communication. Tr. 75-76, 89. 

Smith designated the violation as S&S because he believed it would, in the event of an 

emergency, be reasonably likely to delay an injured miner’s rescue and recovery, thereby 

exacerbating injuries caused by the emergency itself. Tr. 78. Those injuries could include “burns, 

smoke inhalation from a fire, [or] broken bones from a fall.” Tr. 78. Smith also noted that the 

low height of the mine, which averaged about 42 inches, would already delay recovery efforts 

since a rescue team would have to crawl or “duck walk” through the mine to get around. Tr. 40, 

78. He believed that eight persons would be affected by this hazard, since there are typically

eight people working on the section. Tr. 79.

During cross-examination, Smith was asked whether a delay would be significant since, 

in the event of an emergency, MSHA would anyway dictate the timetable for rescue efforts and 

prohibit the operator from sending someone into the mine to rescue a missing miner until MSHA 

arrived.6

 Tr. 143, 151. Smith responded that the agency has not been doing that lately, and that 

MSHA’s response could vary depending on the mine’s conditions at the time. Tr. 151-52. Smith 

was also asked whether there was another beacon reader further inby in close proximity that 

would pick up a miner near the refuge chamber during an emergency. He responded that only the 

6

 The company’s witness, Frank McClanahan, later reiterated this belief during his 

testimony. Tr. 211. 

38 FMSHRC Page 655
very same line with the missing beacon reader at the refuge chamber could have carried another 

beacon reader further inby. Tr. 155. But, as stated on the face of the citation, the line was coiled 

up right at the intersection where the refuge chamber was and not extended further, so there 

could not have been another beacon reader in the same entry further inby. Tr. 154-56; GX-3 at 1. 

Smith designated the company’s negligence as moderate. GX-3 at 1. He believed that the 

condition had existed for approximately three shifts, occurring over one full day. Tr. 79, 134. He 

calculated that timeline based on the distance of the refuge chamber from the working face of the 

section.7 Tr. 79. Although Josh Holbrook, who was the day shift mine manager at the time, told 

Smith that the company did not know that the beacon reader was missing, the area had 

undergone pre-shift examinations during all three of the prior shifts, so Smith believed that 

Warrior should have been aware of the condition. Tr. 87-88. Smith speculated that the pre-shift 

examiners might not have been properly trained to recognize the missing beacon reader, but he 

could not think of any reason why they would not have received that training. Tr. 88-89. 

Smith issued the second citation 16 days later on November 21, after noticing the exact 

same issue with a missing beacon reader near a refuge chamber in the 35 West section of the 

mine, which was a “good distance” from the area of the first citation Tr. 90-91. Smith designated 

the violation S&S and a result of moderate negligence, and the analysis for both designations 

was nearly identical to the analysis for the first citation. GX-4 at 1. The primary differences were 

that Smith believed the condition had existed for three and a half to four shifts and that the 

company had failed to correct this problem after being cited for the exact same condition 16 days 

earlier, despite moving this chamber after the first citation. Tr. 97-98. Additionally, the wire that 

was supposed to carry the missing beacon reader was not coiled up at the intersection, but 

instead continued further into the adjacent entry. GX-4 at 1. 

Frank McClanahan, the chief electrician and superintendent of the mine, testified to the 

conditions of the mine during the relevant timeframe in this matter. Tr. 183-84. The MaxinePratt mine is a drift-mine located on the side of a hill, above the water table, and according to 

McClanahan, the mine has never had any methane detected on a sample taken by MSHA. Tr. 

185-87. Nor has there ever been methane detected in the two mines below the Maxine-Pratt mine,

one of which is entirely flooded with water. Tr. 188. McClanahan also stated that there has never

been an ignition, fire, or explosion at the mine. Tr. 188. There is a maximum of about 285 feet of

overburden (overlying rock or soil) above the coal seam at the mine. Tr. 187.

McClanahan did not dispute that the beacon readers were missing in the cited areas and 

that their absence constituted a violation of the mine’s ERP. Tr. 208. However, McClanahan 

questioned the severity of the violations. Tr. 208. He believed that the inline beacon reader on 

the intake side of each section would have detected any miner near the refuge chambers. Tr. 209. 

7

 The mine is required to keep the refuge chamber within 1,000 feet of the working face. 

Because active mining pushes the working face further away from the chamber, the company 

typically moves the chamber closer to the face whenever the distance between the two 

approaches 1,000 feet. Since the distance between the face and the chamber at the time of the 

citation was approximately the same distance that the company would have advanced in the 

course of active mining during three shifts, Smith concluded that the chamber had been moved 

roughly three shifts prior, and had persisted without a beacon reader for at least those three shifts. 

Tr. 79-80. 

38 FMSHRC Page 656
He testified that each chamber had been moved to the working section face roughly three shifts 

prior to each citation, and that the company mined approximately 150 feet during those three 

shifts. Tr. 202, 208-09. Therefore, the chambers would have been roughly 150 feet away from 

the working face when cited. Tr. 209. He also believed that there were two beacon readers on 

each working section which would have detected a miner within a 150 feet range. Tr. 209. 

McClanahan did not personally verify that those readers were there at the time, but he knew that 

they were supposed to be there and that nobody at the mine had told him that they were missing. 

Tr. 207-08. 

McClanahan then detailed a number of redundant safety measures at the mine that, in his 

opinion, could have decreased the likelihood of a serious injury. These included multiple means 

of communication to the outside within the refuge chamber, as well as in the primary and 

secondary escapeways. Tr. 213-14. McClanahan also believed that in the event of an emergency 

there would be multiple man trip rides available out of the mine and that miners would most 

likely take advantage of a tether line that they could collectively fasten to each other so that they 

could all exit the mine together without anyone going missing. Tr. 214, 217. 

IV. LEGAL ANALYSIS

1. The Fact of the Violation, Its Gravity, and Its Significant and Substantial Nature

Warrior concedes the fact of the violation for both citations, as both Smith and 

McClanahan agreed that beacon readers were not in place at the refuge chamber lifeline 

intersections as required by the mine’s ERP. Tr. 208, 239. The company instead disputes the 

negligence, gravity, and S&S findings. 

The court agrees with the Secretary that both violations were S&S. When dealing with a 

violation of an emergency safety requirement, the court conducts the Mathies analysis in the 

context of an anticipated emergency. See Cumberland Coal Res., LP v. Sec’y of Labor, 717 F.3d 

1020, 1027 (D.C. Cir. 2013) (providing that “assuming the existence of an emergency” when 

evaluating the S&S nature of emergency safety measures is consistent with Mathies); Spartan 

Mining Company, Inc., 35 FMSHRC 3505, 3509 (Dec. 2013). Thus, Warriors’ argument that “no 

methane gas [has been] detected [and that there has] never been a fire, . . . an ignition, . . . [or] an 

explosion . . . for the whole life of [the] mine” has little bearing on the S&S analysis once the 

court assumes the existence of the type of serious emergency for which the requirement of a 

beacon reader outside of the refuge chamber becomes relevant. Tr. 247. Assuming such an 

emergency, the court finds that both violations contributed to the hazard of a delay in rescue 

efforts for miners trapped in or around the refuge chambers, that this hazard would be reasonably 

likely to exacerbate injuries sustained during the emergency, and that the exacerbation of such 

injuries, ranging from burns to smoke inhalation or broken bones, would be reasonably serious. 

Warrior offers evidence of a number of redundant safety measures in place at the mine, 

including alternate communication systems and other functioning beacon readers in the area, in 

order to argue that the hazard contributed to by the violation was not reasonably likely to lead to 

serious injuries. Tr. 245, 250. However, the Commission has held that “additional safety 

measures do not prevent a finding of S&S,” Black Beauty Coal Co., 36 FMSHRC 1121, 1125 n.5 

(May 2014), and has even “rejected as irrelevant evidence regarding the presence of safety 

38 FMSHRC Page 657
measures designed to mitigate the likelihood of injury resulting from the danger posed by the 

violation.” Brody Mining, LLC, 37 FMSHRC 1687, 1691 (Aug. 2015). The court similarly 

rejects the relevancy of Warrior’s evidence on this point. The court also rejects Warrior’s 

argument that delays caused by the missing beacon readers would be relatively insignificant 

given that MSHA would be dictating the timetable for rescue in any event. Tr. 250. No matter 

when rescue efforts began, the missing beacon readers would still be reasonably likely to cause 

further delays if first responders began their search in the wrong areas. 

As the Commission has noted, the gravity penalty criteria and a finding of S&S are not 

synonymous, but may be based on the same evidence. See Consolidation Coal Co., 18 FMSHRC 

1541, 1550 (explaining “the focus of the seriousness of the violation 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.”) The court finds the violations to be serious, based on the types 

of injuries that could result from an emergency situation and worsen with a delayed response. Tr. 

78. The court also finds that eight persons were affected by each violation, as that was the

number of individuals working on each shift who may have had to seek refuge in the chambers,

and this number contributes to the violations’ seriousness. Tr. 79.

2. The Company’s Negligence

Smith found that Warrior was moderately negligent8 in both citations. GX-3; GX-4. Since 

it is undisputed that both cited conditions had existed for at least three shifts without being 

addressed during pre-shift examinations and that the second citation occurred 16 days after the 

company was cited for the same condition in a different section of the mine, the court finds 

negligence on Warrior’s part for both citations. Tr. 79, 90-91, 134, 208-09. However, the court 

would reduce the level of negligence based on the fact that the conditions had each existed for 

roughly one day. Given that the mine’s ERP requires examinations of the tracking and 

communication systems once every seven days by a designated competent person, the court does 

not view the one day oversight as especially negligent. GX-2 at 3. 

Further, while redundant safety measures may be irrelevant in the S&S context, they do 

mitigate Warrior’s negligence. The company’s duty of care to identify missing beacon readers 

each and every day would be considerably higher if it did not already have numerous operational 

tracking and communication systems in place that could serve a similar function to the missing 

reader. In both cases, communication systems inside the refuge chamber and in the primary and 

secondary escapeways would generally allow miners seeking refuge (or miners aware of others 

seeking refuge) to notify those outside of their location. Tr. 213-14. In the situation covered by 

the second citation, the court finds it reasonable to infer the existence of an additional beacon 

8

 The Secretary’s Part 100 regulations define “moderate negligence” to mean that “[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. However, the Commission has clarified that 

“when Commission Judges consider ‘whether the operator was negligent’ in assessing a civil 

penalty in accordance with section 110(i), they need not defer to the definitions of ‘negligence’ 

established by the Secretary in his Part 100 regulations.” Wade Sand & Gravel Company, 37 

FMSHRC 1874, 1879 n.5 (Sept. 2015). 

38 FMSHRC Page 658
reader further inby that would have picked up the location of a miner seeking refuge at the 

chamber. The court further infers that the refuge chamber was roughly 150 feet away from an 

inline beacon reader near the working face. This inference is consistent with McLanahan’s 

testimony on the distance from the refuge chamber to the working face (Tr. 207-09) and the lack 

of a citation for any other missing beacon readers near the face, where they would typically be 

found. Tr. 81, 126. As long as the chamber was sufficiently close to the section face, Warrior’s 

failure to identify the lack of what would have been a redundant safety measure was partially 

mitigated. 

The Secretary argues that Warrior’s negligence should perhaps be elevated above the 

level designated on the citations in light of McLanahan’s testimony at hearing. Tr. 241. 

McLanahan stated that the company typically places beacon readers roughly 1,800 feet apart 

from each other at the mine, which allows Warrior to make use of the full length of the 1,850 

feet cables to which the beacon readers are attached, rather than cut them short. Tr. 206-07. The 

Secretary suggests that this practice indicates that Warrior may have even been aware of the 

missing beacon readers and condoned the violations in order to save resources and avoid cutting 

its cables short. Tr. 241. However, McLanahan also testified that the company did shorten its 

cables when it needed to comply with an ERP provision requiring a beacon reader at a belt drive. 

Tr. 206-07. Presumably, it would have done the same thing at the intersections of the refuge 

chamber lifelines and the primary escapeway lifelines had it been aware of the violations. 

Therefore, the court does not find that this testimony elevates Warrior’s negligence. 

V. OTHER CIVIL PENALTY CRITERIA

The parties stipulated that the penalty assessed will not affect Warrior’s ability to remain 

in business. Tr. 12-13. The parties also stipulated that the proposed assessment form submitted 

by the Secretary accurately sets forth Warrior’s size and violation history during the previous 15 

months. Tr. 13. The form indicates that the mine and Warrior, as a controlling entity, are 

moderately large. GX-7. The form also indicates that Warrior has a low to moderate violation 

history, and that it had not violated the specific provision of the Act at issue in this matter in the 

preceding 15 month period. GX-7, GX-8. 

VI. PENALTY

CITATION NO. DATE 30 U.S.C. § PROPOSED PENALTY ASSESSMENT

 8530016 11/5/2014 876(b) $1,235.00 $835.00 

 8530019 11/21/2014 876(b) $971.00 $671.00 

The court has found that the violations were serious and S&S, that an injury was 

reasonably likely, and that the violations were due to the company’s low negligence. The 

Secretary proposed a penalty of $1,235.00 for Citation No. 8530016 and a penalty of $971.00 for 

Citation No. 8530019, but given these findings and the civil penalty criteria discussed above, the 

court finds that a penalty of $835.00 is appropriate for Citation No. 8530016 and that a penalty 

of $671.00 is appropriate for Citation No. 8530019. The court has departed from the proposed 

penalties because it has found the negligence in both citations to be lower than the Secretary 

alleged. 

38 FMSHRC Page 659
ORDER 

In view of the conclusions and findings set forth above, within 30 days of the date of this 

decision, Citation Nos. 8530016 and 8530019 SHALL BE MODIFIED to change the level of 

negligence from “moderate” to “low,” and the company SHALL PAY a civil penalty in the 

amount of $1,506.00. Upon payment of the penalty, this proceeding IS DISMISSED.

9

/s/ David F. Barbour 

David F. Barbour 

Administrative Law Judge 

Distribution: 

Willow E. Fort, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street, Suite 

230, Nashville, TN 37219-2456 

J.D. Terry, Esq., Warrior Investments Co., Inc., 218 Highway 195, Jasper, AL 35503

/rd

9 Payment should be sent to: Mine Safety and Health Administration, U.S. Department of 

Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390.

38 FMSHRC Page 660
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 

April 5, 2016 

DECISION AND ORDER

Appearances: Brian Kaufman, Esq., U.S. Dept. of Labor, Office of the Solicitor, Denver, 

CO, for the Petitioner; 

Keen Ellsworth, Esq., Ellsworth & Associates, Ltd., Las Vegas, NV, for 

the Respondent. 

Before: Judge L. Zane Gill 

This proceeding under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 

et seq. (1994), involves one section 104(d)(1) citation and twelve 104(d)(1) orders, 30 U.S.C. § 

814(d)(1), issued by the Department of Labor’s Mine Safety and Health Administration 

(“MSHA”) to Stone Plus, Inc. at its Portable #1 mine. The parties presented testimony on March 

4th and 5th, 2014, and June 3rd and 4th, 2014, in Salt Lake City, UT. 

Stone Plus is a small, three-tiered quarry with a screening plant and crusher. The operator 

uses a front-end loader1

 to transport raw and finished product -- a high quality rock used 

primarily for landscaping. Before Stone Plus began operating in August, 2012, it had contracted 

with various companies to perform the same services it intended to do for itself.2

 

1

 A front-end loader is a self-propelled piece of mobile equipment. (Tr. 106:20-23) 

2

 Susan Martin, a contracting company, confirmed that it removed all of its equipment 

from the property the first week of August, 2012. (Ex. R3; Tr. 810:2-18) 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner, 

v. 

STONE PLUS, INC., 

 Respondent. 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEST 2013-0263-M 

A.C. No. 42-02587-303318

Docket No. WEST 2013-0440-M 

A.C. No. 42-02587-308740

Mine: Portable #1 

38 FMSHRC Page 661
Inspectors Steven Polgar3

 and Mike Tromble4 were on site for four days in August, 2012, 

to perform a hazardous condition complaint inspection5

 and a regular inspection. (Tr. 25:3 –

26:10; Tr. 34:17-25) When they arrived at the mine site there was no one on the property, and no 

machines were running. (Tr. 36:1-7)

Three months prior, in May, 2012, Polgar and Tromble had been at the Stone Plus site for 

another hazardous condition complaint inspection. (Tr. 27:9-18; Tr. 614:17 - 20) At that time, 

Stone Plus was operating without a mine identification number. (Tr. 615:18 – 616:11) As part of 

that interaction, Fred Sanchez, of MSHA's Educational Field Services division, assisted Stone 

Plus’s owner, Neil Bradshaw,6 to set up a Part 46 training plan. (Tr. 800:3-7; Tr. 682:1-9) During 

the May inspection, Tromble, Polgar, and Bradshaw discussed the screening plant, berms, 

guards, mobile equipment braking systems, workplace examinations, pre-shift examinations on 

mobile equipment, load-out areas, overtravel protection, Rules To Live By Standards, and 

unwarrantable failure enhanced enforcement. (Ex. S-4; Ex. S-5; Tr. 683:3 – 693:24; Tr. 800:18 – 

801:1) Bradshaw was also given a checklist outlining certain MSHA requirements. (Ex. S-12C) 

The August 2012 hazardous condition complaint alleged that: 1) the screening plant was 

missing guards; 2) there were missing berms on the ramps and pads; 3) there were no fire 

extinguishers at the mine; 4) the brakes on the Caterpillar 950C loader had failed; 5) there was 

too much dust at the mine; 6) no dust masks were provided at the mine; 7) there was no first aid 

kit; and, 8) safety training was inadequate. (Ex S-6; Tr. 29:8-22) Polgar found evidence to 

substantiate allegations 1, 2, and 4. (Tr. 30:3-17) 

3

 At the time of the hearing, Polgar had about sixteen years of experience with front-end 

loaders, crushers, and screening plants and had been an MSHA mine inspector for approximately 

two years. (Tr. 17:13-16; Tr. 23:14 – 24:3) Before joining MSHA, Polgar first worked for four 

years at Willow Creek Sand and Gravel as a truck driver, dozer operator, skid-steel loader, 

general laborer, and as a crusher operator, and then performed the same tasks for Lafarge 

Materials for four years. (Tr. 17:23 – 9:18) He then worked for Geneva Rock Products for seven 

and half years. (Tr. 19:20 – 21:13) 

4

 Tromble started his mining career in the early 90s. He worked as a heavy equipment 

mechanic and as a blasting and explosives miner. (Tr. 614:2-9) At the time of the hearing, 

Tromble had worked as an inspector for MSHA since June, 2008, and had been conducting 

hazardous accident inspections since October, 2010. (Tr. 611:8 – 612:17) 

5

 A hazardous condition complaint is (in this case) a complaint from an undisclosed party 

alleging a hazardous condition at a mine site. See Program Information Bulletin No. P 10-16, 

September 2, 2010, available at http://arlweb.msha.gov/regs/complian/PIB/2010/pib10-16.asp. 

6

 Neil Bradshaw is the owner and operator of Stone Plus. Most of the time, he was the 

only person working at the mine site. (Tr. 809:19-21) 

38 FMSHRC Page 662
In summary, and for the following reasons, I conclude that: 

 For Citation No. 8593603, and Order No. 8593604, Stone Plus violated Section

56.9300(a), injury was reasonably likely, the injury could reasonably be expected to be a

fatality, the violation was significant and substantial, one person was affected, there was

high negligence, and an unwarrantable failure existed. I assess a penalty of $2,000.00 for

each violation.

 For Order No. 8593607, Stone Plus violated Section 56.9300(b), injury was unlikely, the

injury could reasonably be expected to be permanently disabling, the violation was not

significant and substantial, one person was affected, there was high negligence, and an

unwarrantable failure existed. I assess a penalty of $2,000.00.

 For Order No. 8593609, Stone Plus violated Section 56.9300(a), injury was reasonably

likely, the injury could reasonably be expected to be permanently disabling, the violation

was significant and substantial, one person was affected, there was high negligence, and

an unwarrantable failure existed. I assess a penalty of $2,000.00.

 For Order No. 8593611, Stone Plus violated Section 56.9301, injury was reasonably

likely, the injury could reasonably be expected to be permanently disabling injury, the

violation was significant and substantial, one person was affected, there was high

negligence, and an unwarrantable failure existed. I assess a penalty of $2,000.00.

 For Order No. 8593613, Stone Plus violated Section 56.14101(a)(1), injury was

reasonably likely, the injury could reasonably be expected to be a fatality, the violation

was significant and substantial, one person was affected, there was high negligence, and

an unwarrantable failure existed. I assess a penalty of $4,000.00.

 For Order No. 8593614, Stone Plus violated Section 56.14130(i), injury was reasonably

likely, the injury could reasonably be expected to be a fatality, the violation was

significant and substantial, there was high negligence, one person was affected, and an

unwarrantable failure existed. I assess a penalty of $2,000.00.

 For Order No. 8593617, Stone Plus violated Section 56.14100(a), injury was reasonably

likely, the injury could reasonably be expected to be a fatality, the violation was

significant and substantial, there was high negligence, one person was affected, and an

unwarrantable failure existed. I assess a penalty of $2,000.00.

 For Order No. 8593605, Stone Plus violated Section 56.14112(b), injury was reasonably

likely, the injury could reasonably be expected to be permanently disabling, the violation

was significant and substantial, there was high negligence, one person was affected, and

an unwarrantable failure existed. I assess a penalty of $2,000.00.

 For Order No. 8593606, Stone Plus violated Section 56.14107(a), injury was reasonably

likely, the injury could reasonably be expected to be a fatality, the violation was

significant and substantial, there was high negligence, one person was affected, and an

unwarrantable failure existed. I assess a penalty of $2,000.00.

 For Order No. 8593608, Stone Plus violated Section 56.14107(a), injury was reasonably

likely, the injury could reasonably be expected to be permanently disabling, the violation

38 FMSHRC Page 663
was significant and substantial, there was high negligence, one person was affected, and 

an unwarrantable failure existed. I assess a penalty of $2,000.00. 

 For Order No. 8593610, Stone Plus violated Section 56.14107(a), injury was reasonably

likely, the injury could reasonably be expected to be a fatality, the violation was

significant and substantial, there was high negligence, one person was affected, and an

unwarrantable failure existed. I assess a penalty of $2,000.00.

 For Order No. 8593616, Stone Plus violated Section 56.18002(a), injury was reasonably

likely, the injury could reasonably be expected to be a fatality, the violation was

significant and substantial, there was high negligence, one person was affected, and an

unwarrantable failure existed. I assess a penalty of $2,000.00.

 Total Penalty Assessment: $28,000.00.

Preliminary Matters 

Jurisdiction

The Respondent argued that MSHA lacked jurisdiction over the mine site because the 

mine was temporarily closed in accordance with 30 C.F.R. § 56.1000. (Resp. Br. at 2) However, 

as the Secretary correctly pointed out, Stone Plus failed to file a closure notice with MSHA as 

required by Section 56.1000. (Tr. 113:9-13; Tr. 660:14-17) Therefore, MSHA was not on notice 

that the mine was closed or not in operation, and thus retained jurisdiction over the mine site. 

Stone Plus also argued that MSHA did not have jurisdiction over the site because it was 

not in production. (Resp. Br. at 2) Irrespective of this argument, the Respondent repeatedly 

admitted that it was setting up the screening plant and the crusher for mining, and as such, 

MSHA had jurisdiction over the mine.7

 (Tr. 812:13 – 813:9; Tr. 815:3; Tr. 872: 11-12; Tr. 877: 

11-12; Tr. 918:4-8)

Section 4 of the Mine Act provides that “[e]ach coal or other mine [...] shall be subject to 

the provisions of this Act.” 30 U.S.C. § 803. “Coal or other mine” is defined in Section 3(h)(1) 

of the Act as: 

(A) an area of land from which minerals are extracted [...] and (C) lands,

excavations, underground passageways, shafts, slopes, tunnels and

workings, structures, facilities, equipment, machines, tools, or other

property [...] used in, or to be used in, or resulting from, the work of

extracting such minerals [...]

30 U.S.C. § 802(h)(1) (emphases added). 

The statute’s plain meaning gives MSHA authority over areas where mining equipment is 

being set up, i.e. equipment “to be used in” the work of extracting minerals, because the area is 

considered a mine for purposes of jurisdiction. Id.; See Donovan v. Carolina Stalite Co., 734 

7

 In fact, as explained below, I found the plant was actually running, not just setting up. 

38 FMSHRC Page 664
F.2d 1547, 1553-54 (D.C. Cir. 1984); Royal Cement Co., Inc., 31 FMSHRC 1459, 1462 (Dec.

2009)(ALJ Manning); Recon Refractory & Constr., Inc., 34 FMSHRC 1722, 1728 (July

2012)(ALJ Paez) (“Therefore, so long as the activities are in preparation of future mining

activities, those activities fall within MSHA jurisdiction.”); Khani Co., Inc., 32 FMSHRC 1339,

1342 (Sept. 2010)(ALJ Moran) (MSHA had jurisdiction to inspect a closed mine because the

company “was preparing to resume operations.”); The Pit, 16 FMSHRC 2008, 2010 (Sept.

1994)(ALJ Hodgdon) (The Mine Act is “intended to protect employees from injury whether they

are setting up equipment or engaged in production.”); S.Rep. No. 95-181, 95th Cong., 1st Sess.

14 (1977), reprinted in U.S.Code Cong. & Ad. News 1977, 3401, 3414.

The Respondent admitted it was setting up its mining equipment for production.8

Therefore, I find that MSHA had jurisdiction over Stone Plus at the time the citation and orders 

were written. 

Inability to Pay Fine 

The Respondent argued that the Secretary’s proposed penalties should be reduced 

because of Stone Plus’s inability to pay. (Resp. Br. at 15) 

In setting civil penalties, Commission judges are required to consider whether the fines 

will impede the mine’s ability to continue in business. 30 U.S.C. § 820(i). Operators bear the 

burden of proof when arguing for penalty reductions on this basis. Spurlock Mining Co., Inc., 16 

FMSHRC 697, 700 (Apr. 1994); Georges Collieries, 24 FMSHRC 572, 575 (June 2002)(ALJ 

Barbour). The damage alleged by operators must be supported by specific evidence. Broken Hill 

Mining, 19 FMSHRC 673, 677 (Apr. 1997). General information, such as tax returns, may be 

inadequate to prove an inability to pay since these do not directly relate to the effects of proposed 

penalties. See Spurlock, 16 FMSHRC at 700. 

 Stone Plus’s 2011 and 2012 tax returns (as well as the operator’s personal tax returns for 

those years) were referenced in its post-hearing brief as evidence supporting its argument. 

However, the returns were not admitted into evidence at the hearing, and Stone Plus provided no 

testimony whatsoever regarding its inability to pay or what impact the fines would have on the 

mine’s ability to continue business. Therefore, the Respondent failed to meet its burden of 

proving that it is unable to pay the proposed penalties. 

Credibility Determination 

An ALJ's credibility determination is “entitled to great deference,” Am. Coal Co. v. Fed. 

Mine Safety & Health Review Comm'n, 796 F.3d 18, 31 (D.C. Cir. 2015) (citing Sec'y of Labor v. 

Keystone Coal Mining Corp., 151 F.3d 1096, 1107 (D.C.Cir.1998)) and “entitled to great 

8

 The inspectors were originally dispatched to the site to perform a hazardous condition 

complaint inspection, which contained eight specific complaints. (Tr. 25:3 – 26:10; Ex. S-6) As 

such, it can be inferred that the mine was in production long enough for a miner to complain 

about the hazards it cited. 

38 FMSHRC Page 665
weight.” Farmer v. Island Creek Coal Co., 14 FMSHRC 1537, 1541 (Sept. 1992); Penn Allegh 

Coal Co., 3 FMSHRC 2767, 2770 (Dec. 1981). This is because the ALJ “has an opportunity to 

hear the testimony and view the witnesses [,] he [or she] is ordinarily in the best position to make 

a credibility determination.” In re: Contests of Respirable Dust Sample Alteration Citations, 17 

FMSHRC 1819, 1878 (Nov. 1995) (quoting Ona Corp. v. NLRB, 729 F.2d 713, 719 (11th Cir. 

1984)), aff'd sub nom. Sec'y of Labor v. Keystone Coal Mining Corp., 151 F.3d 1096 (D.C. Cir. 

1998). 

I find that Bradshaw’s testimony at the hearing was generally not credible. 9 This is based 

on the record as a whole, my careful observation of the witness during his testimony, and his 

demeanor at the hearing. Additionally, there were several inconsistencies between his testimony 

at the hearing and his deposition, and between his testimony and the testimonies of other 

witnesses. 

For example, Bradshaw claimed that he was just setting up the crusher and the screening 

plant on August 11, 2012. (Tr. 918:12-21) However, he admitted that he demonstrated the 

functionality of the crusher and screening plant for someone interested in buying the crusher. (Tr. 

913:15 – 914:1; Tr. 918:4-8) Indeed, he admitted that he ran six to eight tons of material through 

the crusher for the demonstration and ran more than four bucket-loads through the screening 

plant.10 (Tr. 919:2 – 920:16) It is clear that he was not just “setting up” the mine. 

Additionally, at the time of the inspection, Bradshaw attempted to deceive the inspector 

when performing a pull-through test11 on the front-end loader. He put his foot on the clutch, 

which prevented power from being transferred to the driveline and tried to create the impression 

that the brakes were functioning properly. (Tr. 46:21 – 47:25) Bradshaw denied this deceit by 

claiming he thought there were two service brakes. (Tr. 859:15-17; Tr. 861:1-3) However, 

anyone who has operated trucks knows the difference between the clutch, the drive pedal, and 

the brake pedal, especially someone like Bradshaw who has operated front-end loaders for 

approximately fifty years. (Tr. 48:21 – 49:3; Tr. 937:18-24) 

9

 The findings of fact here and below are based on the record as a whole and my careful 

observation of the witnesses during their testimony. In resolving any conflicts in the testimony, I 

have taken into account the interests of the witnesses, or lack thereof, and consistencies, or 

inconsistencies in each witness’s testimony and between the testimonies of other witnesses. In 

evaluating the testimony of each witness, I have also taken into account his or her demeanor. 

Any perceived failure to provide detail about any witness’s testimony is not a failure on my part 

to consider it. The fact that some evidence is not discussed does not mean that it was not 

considered. See Craig v. Apfel, 212 F.3d 433, 436 (8th Cir. 2000) (administrative law judge is

not required to discuss all evidence and failure to cite specific evidence does not mean it was not 

considered). I have also fully considered the contents of the official file, including the pre- and 

post-hearing submissions of the parties, and the exhibits admitted into evidence. 

10 It was obvious to the inspectors that production had been occurring from just looking at 

the mine site. (Tr. 76:25 – 77:9) 

11 A pull-through test is designed to test the service brakes of a vehicle. 

38 FMSHRC Page 666
Further, despite Bradshaw’s testimony that no mining or work occurred after August 11, 

2012, (Tr. 811:13-20) the front-end loader was moved from where it had been the first inspection 

day to a different location by the last inspection day. (Ex. S- 9G; Ex. S-14; Tr. 100:9-12; Tr. 

145:3-10; Tr. 275:25 – 276:4; Tr. 297:20-25; Tr. 496:6-13; Tr. 700:19 – 701:3) Clearly, a miner 

was at the site after August 11, 2012, and had at least moved equipment. 

Finally, during the testimony at the hearing, Bradshaw claimed that there were plywood 

guards covering the rollers on the screening plant on August 11, 2012, when he was using the 

plant, but that the guards were removed at the end of the day. (Tr. 927:25 -928:20) However, 

during Bradshaw's deposition, he testified that the plywood found at the site was never on the 

plant, was merely placed on the ground near the plant, and that he used only some of the 

plywood around the bottom of the plant to prevent rocks from going under it. (Tr. 932:19 – 

933:23; Tr. 936:6-10) 

Basic Legal Principles 

Significant and Substantial 

The citation and orders in dispute and discussed below have been designated by the 

Secretary as significant and substantial (“S&S”). A violation is properly designated S&S “if, 

based upon the particular facts surrounding that violation, there exists a reasonable likelihood 

that the hazard contributed to will result in an injury or illness of a reasonably serious nature.” 

Cement Div., Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). The question of whether a 

particular violation is S&S must be based on the particular facts surrounding the violation. 

Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC 

2007 (Dec. 1987). S&S enhanced enforcement is applicable only to violations of mandatory 

health and safety standards. Cyprus Emerald Res. Corp. v. FMSHRC, 195 F.3d 42, 45 (D.C. Cir. 

1999). The Secretary bears the burden of proving all elements of a citation by a preponderance of 

the evidence. In re: Contests of Respirable Dust Sample Alteration Citations: Keystone Mining 

Corp., 17 FMSHRC 1819, 1838 (Nov. 1995), aff’d 151 F.3d 1096 (D.C. Cir. 1998); Jim Walter 

Resources, Inc., 30 FMSHRC 872, 878 (Aug. 2008) (ALJ Zielinski) (“The Secretary’s burden is 

to prove the violations and related allegations, e.g., gravity and negligence, by a preponderance 

of the evidence.”) 

In Mathies Coal Co., the Commission established the standard for determining whether a 

violation was S&S: 

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

is significant and substantial under National Gypsum, the Secretary 

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

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

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

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

38 FMSHRC Page 667
and (4) a reasonable likelihood that the injury in question will be of 

a reasonably serious nature. 

6 FMSHRC 1, 3-4 (Jan. 1984). 

The third element of the Mathies test presents the most difficulty when determining 

whether a violation is S&S. In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985), 

the Commission provided additional guidance: [T]he third element of the Mathies formula 

“requires that the Secretary establish a reasonable likelihood that the hazard contributed to will 

result in an event in which there is an injury.” (citing U.S. Steel Mining Co., Inc., 6 FMSHRC 

1834, 1836 (Aug. 1984)). The Secretary, however, “need not prove a reasonable likelihood that 

the violation itself will cause injury.” Cumberland Coal Res., 33 FMSHRC 2357, 2365 (Oct. 

2011) (citing Musser Engineering, Inc. and PBS Coals, Inc., 32 FMSHRC 1257, 1281 (Oct. 

2010)). Further, the Commission has found that “the absence of an injury-producing event when 

a cited practice has occurred does not preclude a determination of S&S.” Id. (citing Elk Run Coal 

Co., 27 FMSHRC 899, 906 (Dec. 2005)); and Blue Bayou Sand & Gravel, Inc., 18 FMSHRC 

853, 857 (June 1996)). This evaluation is also made in consideration of the length of time that 

the violative condition existed prior to the citation and the time it would have existed if normal 

mining operations had continued. Elk Run Coal Co., 27 FMSHRC at 905; U.S. Steel Mining Co., 

Inc., 6 FMSHRC 1573, 1574 (July 1984).12 

Negligence 

“Negligence” is not defined in the Mine Act. The Commission, has, however, 

recognized that “[e]ach mandatory standard ... carries with it an

accompanying duty of care to avoid violations of the standard, and 

an operator's failure to meet the appropriate duty can lead to a 

finding of negligence if a violation of the standard occurs.” A.H. 

Smith Stone Co., 5 FMSHRC 13, 15 (Jan. 1983). In determining 

whether an operator met its duty of care, we consider what actions 

would have been taken under the same circumstances by a 

reasonably prudent person familiar with the mining industry, the 

relevant facts, and the protective purpose of the regulation. See 

generally U.S. Steel Corp., 6 FMSHRC 1908, 1910 (Aug. 1984). 

Jim Walter Res. Inc., 36 FMSHRC 1972, 1975 (Aug. 2014); Brody Mining, LLC, 37 FMSHRC 

1687, 1702. (Aug. 2015); Spartan Mining Co., 30 FMSHRC 699, 708 (Aug. 2008). “Thus in 

making a negligence determination, a Judge is not limited to an evaluation of allegedly 

12 It must be noted that the 4th and the 7th Circuits have changed the Commission’s 

precedent under Mathies by placing the emphasis and bulk of the analysis on the second element 

of the test. See Peabody Midwest Mining, LLC v. FMSHRC, 762 F.3d 611 (7th Cir. 2014); See 

Knox Creek Coal Corp. v. Sec’y of Labor, 811 F.3d 148 (4th Cir. 2016). This Respondent, 

however, is not located in either of those Circuits, and thus, my analysis is under the traditional 

Mathies test. 

38 FMSHRC Page 668
‘mitigating’ circumstances. Instead, the Judge may consider the totality of the circumstances 

holistically.” Brody Mining, LLC, 37 FMSHRC at 1702. 

Part 100 regulations “apply only to the proposal of penalties by MSHA and the Secretary 

of Labor; under both Commission and court precedent, the regulations do not extend to the 

independent Commission, and thus the MSHA regulations are not binding in any way in 

Commission proceedings.” Id. at 1701-02 (citing Jim Walter Res. Inc., 36 FMSHRC at 1975 n.4; 

Sellersburg Stone Co. v. FMSHRC, 736 F.2d 1147, 1151-52 (7th Cir. 1984), aff'g 5 FMSHRC 

287 (Mar. 1983) (“[N]either the ALJ nor the Commission is bound by the Secretary's proposed 

penalties ... we find no basis upon which to conclude that [MSHA's Part 100 penalty 

regulations] also govern the Commission.”)). 

Although the Secretary's part 100 regulations are not binding on the Commission, the 

Secretary's definitions of negligence in those provisions are illustrative. According to the 

Secretary, negligence is “conduct, either by commission or omission, which falls below a 

standard of care established under the Mine Act to protect miners against the risks of harm.” 30 

C.F.R. § 100.3(d). “A mine operator is required [...] to take steps necessary to correct or prevent

hazardous conditions or practices.” Id. “Reckless negligence is present when “[t]he operator

displayed conduct which exhibits the absence of the slightest degree of care.” Id. High

negligence is when “[t]he operator knew or should have known of the violative condition or

practice, and there are no mitigating circumstances.” Id. Moderate negligence is when “[t]he

operator knew or should have known of the violative condition or practice, but there are

mitigating circumstances.” Id. Low negligence is when “[t]he operator knew or should have

known of the violative condition or practice, but there are considerable mitigating

circumstances.” Id. No negligence is when “[t]he operator exercised diligence and could not

have known of the violative condition or practice.” Id.

Mitigation is something the operator does affirmatively, with knowledge of the potential 

hazard being mitigated, that tends to reduce the likelihood of an injury to a miner. This includes 

actions taken by the operator to prevent or correct hazardous conditions. 

Gravity

The gravity penalty criterion under section 110(i) of the Mine Act, 30 U.S.C. § 820(i), “is 

often viewed in terms of the seriousness of the violation.” Consolidation Coal Co., 18 FMSHRC 

1541, 1549 (Sept. 1996) (citing Sellersburg Stone Co., 5 FMSHRC 287, 294-95 (March 1983), 

aff'd, 736 F.2d 1147 (7th Cir. 1984) and Youghiogheny & Ohio Coal Co., 9 FMSHRC 673, 681 

(Apr. 1987)). The seriousness of a violation can be examined by looking at the importance of the 

standard which was violated and the operator’s conduct with respect to that standard, in the 

context of the Mine Act’s purpose of limiting violations and protecting the safety and health of 

miners. See Harlan Cumberland Coal Co., 12 FMSHRC 134, 140 (Jan. 1990) (ALJ Fauver). The 

gravity analysis focuses on factors such as the likelihood of an injury, the severity of an injury, 

and the number of miners potentially injured. The Commission has recognized that the likelihood 

of injury is to be made assuming continued normal mining operations without abatement of the 

violation. U.S. Steel Mining Co., 7 FMSHRC at 1130. 

38 FMSHRC Page 669
Unwarrantable Failure

In Lopke Quarries, Inc., 23 FMSHRC 705, 711 (July 2001), the Commission reiterated 

the law applicable to determining whether a violation is the result of an unwarrantable failure: 

The unwarrantable failure terminology is taken from section 

104(d) of the Act, 30 U.S.C. § 814(d), and refers to more serious 

conduct by an operator in connection with a violation. In Emery 

Mining Corp., 9 FMSHRC 1997 (Dec. 1987), the Commission 

determined that unwarrantable failure is aggravated conduct 

constituting more than ordinary negligence. Id. at 2001. 

Unwarrantable failure is characterized by such conduct as 

“reckless disregard,” “intentional misconduct,” “indifference,” or a 

“serious lack of reasonable care.” Id. at 2003-04; Rochester & 

Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991) (“R&P”); 

see also Buck Creek [Coal, Inc. v. FMSHRC, 52 F.3d 133, 136 (7th 

Cir. 1995)] (approving Commission's unwarrantable failure test). 

See Manalapan Mining Co., 35 FMSHRC 289, 293 (Feb. 2013). Whether conduct is 

“aggravated” in the context of an unwarrantable failure analysis is determined by looking at all 

the facts and circumstances of each case to see if any aggravating factors exist. Big Ridge, Inc., 

34 FMSHRC 119, 125 (Jan. 2012) (ALJ Zielinski). These include: 

(1) the extent of the violative condition, (2) the length of time that

the violative condition existed, (3) whether the violation posed a

high degree of danger, (4) whether the violation was obvious, (5)

the operator's knowledge of the existence of the violation, (6) the

operator's efforts in abating the violative condition, and (7)

whether the operator had been placed on notice that greater efforts

were necessary for compliance. See IO Coal Co., 31 FMSHRC

1346, 1351-57 (Dec. 2009); Cyprus Emerald Res. Corp., 20

FMSHRC 790, 813 (Aug. 1998), rev'd on other grounds, 195 F.3d

42 (D.C. Cir. 1999).

Manalapan Mining Co., 35 FMSHRC at 293; ICG Hazard, LLC, 36 FMSHRC 2635, 2637, 

(Oct. 2014); Sierra Rock Products, Inc., 37 FMSHRC 1, 4 (Jan 2015); Consolidation Coal Co., 

22 FMSHRC 340, 353 (Mar. 2000); Cyprus Emerald Res. Corp., 20 FMSHRC 790, 813; 

Midwest Material Co., 19 FMSHRC 30, 34 (Jan. 1997); Mullins & Sons Coal Co., 16 FMSHRC 

192, 195 (Feb. 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992); BethEnergy 

Mines, Inc., 14 FMSHRC 1232, 1243-44 (Aug. 1992); Quinland Coals, Inc., 10 FMSHRC 705, 

709 (June 1988) All of the relevant facts and circumstances of each case must be examined to 

determine if an actor's conduct is aggravated, or whether mitigating circumstances exist. 

Consolidated Coal, 22 FMSHRC at 353; IO Coal, 31 FMSHRC at 1351; Manalapan Mining 

Co., 35 FMSHRC at 293. “Because supervisors are held to a high standard of care, another 

important factor supporting an unwarrantable failure determination is the involvement of a 

38 FMSHRC Page 670
supervisor in the violation.” Big Ridge, Inc., 34 FMSHRC at 125; REB Enters., Inc., 20 

FMSHRC 203, 225 (Mar. 1998). 

Penalty

The principles governing the authority of Commission administrative law judges to 

assess civil penalties de novo for violations of the Mine Act are well established. Section 110(i) 

of the Mine Act delegates to the Commission and its judges the “authority to assess all civil 

penalties provided in [the] Act.” 30 U.S.C. § 820(i). The Act delegates the duty of proposing 

penalties to the Secretary. 30 U.S.C. §§ 815(a), 820(a). Thus, when an operator notifies the 

Secretary that it intends to challenge a penalty, the Secretary petitions the Commission to assess 

said penalty. 29 C.F.R. § 2700.28. 

Under Section 110(i) of the Mine Act, the Commission is to consider the following when 

assessing a civil penalty: (1) the operator’s history of previous violations; (2) the appropriateness 

of such penalty to the size of the business of the operator charged; (3) whether the operator was 

negligent; (4) the effect on the operator's ability to continue in business; (5) the gravity of the 

violation; and (6) the demonstrated good faith in abatement of the violative condition. 30 U.S.C 

§ 820(i). Thus, the Commission alone is responsible for assessing final penalties. See Sellersburg

Stone Co. v. FMSHRC, 736 F.2d at 1151-52 (“[N]either the ALJ nor the Commission is bound

by the Secretary's proposed penalties ... we find no basis upon which to conclude that [MSHA's

Part 100 penalty regulations] also govern the Commission.”); See American Coal Co., 35

FMSHRC 1774, 1819 (July 2013)(ALJ Zielinski).

The Commission has repeatedly held that substantial deviations from the Secretary's 

proposed assessments must be adequately explained using the Section 110(i) criteria. E.g., 

Sellersburg Stone Co., 5 FMSHRC at 293; Hubb Corp., 22 FMSHRC 606, 612 (May 

2000); Cantera Green, 22 FMSHRC 616, 620-21 (May 2000) (citations omitted). A judge need 

not make exhaustive findings but must provide an adequate explanation of how the findings 

contributed to his or her penalty assessments. Cantera Green, 22 FMSHRC at 622. 

Although all of the statutory penalty criteria must be considered, they need not be 

assigned equal weight. Thunder Basin Coal Co., 19 FMSHRC 1495, 1503 (Sept. 1997). 

Generally speaking, the magnitude of the gravity of a violation and the degree of operator 

negligence are important factors, especially for more serious violations for which substantial 

penalties may be imposed. Musser Engineering, 32 FMSHRC at 1289 (judge justified in relying 

on utmost gravity and gross negligence in imposing substantial penalty); Spartan Mining Co., 30 

FMSHRC at 725 (appropriate for judge to raise a penalty significantly based upon findings of 

extreme gravity and unwarrantable failure); Lopke Quarries, Inc., 23 FMSHRC at 713 (judge did 

not abuse discretion by weighing the factors of negligence and gravity more heavily than the 

other four statutory criteria). For example, violations involving “extreme gravity” and/or “gross 

negligence,” or, as stated in the former section of 105(a), “an extraordinarily high degree of 

negligence or gravity, or other unique aggravating circumstances,” may dictate higher penalty 

assessments. See 30 C.F.R. Part 100 Final Rule, 72 Fed. Reg. 13592-01, 13,621. 

38 FMSHRC Page 671
In addition, Commission ALJs are obligated to explain any substantial divergence 

between a penalty imposed and that proposed by the Secretary. As explained in Sellersburg 

Stone Co., 5 FMSHRC at 293: 

When ... it is determined that penalties are appropriate which 

substantially diverge from those originally proposed, it behooves 

that Commission and its judges to provide a sufficient explanation 

of the bases underlying the penalties assessed by the Commission. 

If a sufficient explanation for the divergence is not provided, the 

credibility of the administrative scheme providing for the increase 

or lowering of penalties after contest may be jeopardized by an

appearance of arbitrariness.

Citation No. 8593603 

Inspector Polgar issued Citation No. 8593603 to Stone Plus at its Portable #1 mine on 

August 14, 2012. It alleges a violation of 30 C.F.R. § 56.9300(a). The regulation states: “[b]erms 

or guardrails shall be provided and maintained on the banks of roadways where a drop-off exists 

of sufficient grade or depth to cause a vehicle to overturn or endanger persons in equipment.” 30 

C.F.R. § 56.9300(a). Section 56.9300 is a mandatory safety standard. The citation narrative

alleges:

The roadway accessing the crusher/screening plant located on the 

third tier/bench was not provided with berms or guardrails as 

required where a drop off exists of sufficient grade or depth to 

cause a vehicle to overturn or endanger persons in equipment. The 

drop off from the third bench to the second bench was 7 1⁄2 feet 

(measured) on average. The third bench was 65 feet (approx.) wide 

and 180 feet (approx.) in length. This area is used on a constant 

basis during operation for the purpose of feeding the screening

plant. The primary equipment utilizing this area was a Cat 950 

FEL (s/n 81J10961) and measured 30” from the ground to mid axle

height. The crusher was not in operation the day of inspection but 

had been previously operating as evidenced by product stockpiles 

beneath the screening plant discharge conveyors. Should a miner 

over travel the roadway and overturn his equipment, serious if not 

fatal blunt force trauma injuries would be expected to occur. Mine 

operator Neil Bradshaw engaged in aggravated conduct 

constituting more than ordinary negligence in that he was aware of 

the volatile condition and made no attempt to correct the hazard. 

This violation is an unwarrantable failure to comply with a 

mandatory safety standard. This standard 56.9300a was cited 1 

time in two years at mine 4202587 (1 to operator, 0 to contractor). 

Ex. S-14 

38 FMSHRC Page 672
Violation 

Citation No. 8593603 was issued as part of the hazardous condition complaint inspection. 

The citation alleges that an injury was reasonably likely, the injury could reasonably be expected 

to result in a fatality, the violation was significant and substantial, one person could be affected, 

and there was a high level of negligence. (Ex. S-14) Polgar issued the citation because there were 

no berms or guardrails on the third tier of the mine, which he considered a roadway. (Tr. 141:1-

6; Tr. 366:8-21; Tr. 375:16-18) 

The Respondent argued that it did not violate 30 C.F.R. § 56.9300(a) because the area in 

question was not a “roadway,” there was no drop-off from the third tier, vehicles did not travel 

near the edge of the tier, and as such, a berm was not required. (Resp. Br. at 2–4) The Secretary 

argued that Stone Plus was required to have berms on the tier because the third tier was used as a 

roadway, and there was a drop-off high enough to cause a vehicle to overturn. (Sec’y Br. at 26-

27) 

Section 56.9300(a) mandates that “[b]erms or guardrails shall be provided and 

maintained on the banks of roadways where a drop-off exists of sufficient grade or depth to 

cause a vehicle to overturn or endanger persons in equipment.” When determining whether an 

area is a “roadway,” the Commission has looked to the nature of its use. Capitol Aggregates, 

Inc., 4 FMSHRC 846, 846-47 (May 1982). In Capitol Aggregates, the Commission found that a 

ramp was a roadway when used by machinery to drive back and forth over it. Id. Additionally, 

the Commission has found that “an elevated area, such as a bench, is a roadway where a vehicle 

commonly travels its surface during the normal mining routine.” Black Beauty Coal Co., 34 

FMSHRC 1733, 1735 (Aug. 2012) (citations omitted); See El Paso Rock Quarries, Inc., 3 

FMSHRC 35, 36 (Jan. 1981); See Peabody Midwest Mining, LLC., 762 F.3d 611, 615 (7th Cir. 

2014). 

However, “there may be a point at which a roadway is so wide that berms are 

unnecessary,” unless the evidence shows vehicles traveled near the bench’s edge. Good Constr., 

21 FMSHRC 201, 202 (Feb. 1999)(ALJ Manning); Peabody Coal Co., 6 FMSHRC 2530, 2542 

(Nov. 1984) (no vehicle was shown to operate within 60 feet of an edge); See Arch of Wyo., LLC, 

32 FMSHRC 568, 575 (May 2010)(ALJ Manning); Peabody Coal Co., 12 FMSHRC 109, 115–

16 (Jan. 1990)(ALJ Lasher). 

Here, the third tier was approximately 65 feet wide, 180 feet in length, and had a drop-off 

of 7.5 feet. (Ex. S-14A; Tr. 390:22 – 391:1; Tr. 141:23 – 142:4) Polgar determined that the 65 

foot wide tier was a roadway that required a berm13 because the area was used for travel by 

vehicles and equipment. (Tr. 367:2-12; Tr. 386:24 – 387:6; Tr. 391:2-7; Tr. 395:9-15; Tr. 

398:11-14) I agree with this determination. 

Polgar testified that the front-end loader had to travel the entire length of the tier to access 

the screening plant and the crusher because there was only one entrance and exit from the east 

13 When required, berms must be maintained at mid-axle height to the largest piece of 

equipment, which was the front-end loader. Its mid-axle height was 30 inches. (Tr. 142:10-21) 

38 FMSHRC Page 673
side of the tier.14 (Tr. 145:17 – 147:2) Once there, the front-end loader transported product from 

the crusher to the screening plant, which was located on the edge of the third tier and had a 

conveyor that discharged over the edge. (Tr. 144:6-14) Then, to load trucks with finished 

product, the front-end loader would have to travel the entire length of the bench to get down to 

the second tier where the stockpiles were located. (Tr. 145:17 – 146:1) The photographic 

evidence presented at the hearing showed front-end loader tracks on the edge of the third tier. 

(Ex. S-8B, 8D, 8E; Tr. 274:9-13) Polgar testified that if one of the wheels of the front-end loader 

were to drive off the edge of the bank, it would be enough to cause the loader to overturn (Tr. 

147:7-12; Tr. 148:10-12), because the ground was unconsolidated and could give if a vehicle 

drove too close to the edge. (Tr. 148:5-12) 

Bradshaw admitted that on August 11, 2012, he and his son hauled the crusher and the 

screening plant up the side access road from the bottom of the pit to the third tier using a Volvo 

tractor semi-truck. (Tr. 811:6-10; Tr. 812:13 – 813:9; Tr. 880:23 – 881:22; Tr. 882:5-11) Once 

on the third tier, Bradshaw drove across the tier until he found the spot where he wanted to place 

the crusher. He did the same with the screening plant, and maneuvered the machines into the 

proper locations. (Tr. 813:22-23; Tr. 883:2 – 884:5) Bradshaw also used the front-end loader to 

push material off the edge of the third tier and to move product into different piles on the third 

tier. (Tr. 893:7-15; Tr. 911:6-25) 

Bradshaw claimed the tracks were made by the contractor, Susan Martin, and also argued 

that the tier was not meant to be a roadway. (Tr. 850:19 – 851:3) However, for purposes of 

determining whether an area is a roadway, it does not matter whose vehicle traveled on it, or that 

the area was not designed to be a roadway originally. (Tr. 777:20-23) The evidence is clear that 

the third tier was used as a roadway by Bradshaw, not only to transport and maneuver his 

equipment into place, but also during the course of normal mining operations. Additionally, the 

photographic evidence and testimony of Inspector Polgar confirms that the edge comprised 

loose, unconsolidated material. If a vehicle overtraveled the edge, it could overturn and fall 7.5 

feet to the tier below. For these reasons, I conclude that Stone Plus violated Section 56.9300(a). 

Negligence 

Polgar designated the citation as high negligence because it was an open and obvious 

condition, and Tromble had informed Bradshaw of the berm/guardrail requirement three months 

prior, during the May inspection. (Tr. 148:13-20; Tr. 723:25 – 724:4) Bradshaw knew he needed 

to install berms or guardrails because he was instructed to do so. 

                                                             14 There were east and west access roads, but the screening plant on the third tier blocked 

access to the west road. (Tr. 146:4-10) 

38 FMSHRC Page 674
Stone Plus argued that it was only on site for one day, did not intentionally15 violate any 

rules, thought it was in compliance with the rules, and put a berm on the edge as soon as it was 

instructed to do so. (Resp. Br. at 1-3) However, mitigation is something an operator does 

affirmatively with the intent to protect miners. (Tr. 459:1-13) This includes actions taken by the 

operator to prevent or correct hazardous conditions. The Respondent’s arguments do not 

constitute mitigation. 

A reasonably prudent person familiar with the mining industry would have installed 

berms or guardrails here. Based on the above, it is clear that Stone Plus knew of the violative 

condition, and was highly negligent. 

Gravity 

Without a berm to prevent overtravel, anyone operating a vehicle or machinery on this 

roadway would be exposed to the hazard of rolling over the edge. (Tr. 122:20 – 123:4) Being 

ejected or suffering head trauma could easily cause a fatality.16 (Tr. 147:13-20) The citation was 

marked as one person affected because the front-end loader only carries one person in the cab at 

a time. (Tr. 147:24 – 148:2) Since this mine was operated solely by Bradshaw, and possibly one 

other miner, the single person designation was appropriate. 

Significant and Substantial17

The first and fourth prongs of the Mathies test have been met. The lack of a berm on the 

third tier created a discrete safety hazard that a piece of mobile equipment might overturn and 

cause injuries to a miner. (Tr. 147:13-20) The remaining question is whether there was a 

reasonable likelihood that the hazard would result in an injury. 

If a vehicle wheel were to go over the edge of the tier, it could be enough to cause it to 

overturn, especially considering that the ground was unconsolidated and could give way if a 

vehicle drove too close to the edge. (Tr. 147:7-12; Tr. 148:5-12) There is a reasonable likelihood 

of serious injury to a miner by dropping approximately 7.5 feet in an overturned vehicle. 

Further, assuming continuing normal mining operations, the frequency of travel increases 

the probability of an injury occurring. (Tr. 126:3-7) Bradshaw admitted that in addition to his 

15 Section 110(a) of the Mine Act, 30 U.S.C. § 820(a), imposes strict liability on 

operators who are found in violation of the Act. See Ames Construction, Inc., 33 FMSHRC 1607, 

1611 (July 2011), aff’d, 676 F.3d 1109 (D.C. Cir. 2012). “Imposing strict liability under the 

Mine Act is not optional – it is mandatory.” Wake Stone Corp.,36 FMSHRC 825, 827 (Apr. 

2014). 

16 All of the potential injuries were exacerbated by the lack of seat belt in the cab of the 

front-end loader, which led to the issuance of another citation. (Tr. 147:21-23; Ex. S-11) 

17 At the hearing, Polgar testified that his reasoning for the S&S designation were the 

same as the violation for Order No. 8593604. (Tr. 147:13 -148:12) 

38 FMSHRC Page 675
traveling across the tier, he allowed people to come onto the mine site to borrow the front-end 

loader, and landscaping companies were given access to load material from stock piles. (Tr. 

901:11-18; Tr. 906:14-25) This would require traveling across the tiers and into the mine pit. The 

Secretary has proved by a preponderance of the evidence that the S&S designation was 

warranted. 

Unwarrantable Failure18

There was no evidence that a berm ever existed on the third tier. The tier was 

approximately 180 feet in length. (Tr. 128:12-17; Tr. 149:16-18) It was obvious that there was no 

berm. (Tr. 150:7-19) This violation was covered in the hazardous condition complaint of August 

13, 2012. It existed at least since then. (Tr. 149:4-11) It can also be inferred that the violation 

existed longer because Bradshaw admitted that he did not have time to build any berms on the 

mine property and had been operating since at least August 11, 2012. (Tr. 131:8-14; Tr. 151:3-

13) The violating condition was extensive and was present for an extended period of time. There

was a high degree of danger. It was reasonably likely that if the front-end loader or other vehicle

overtraveled the edge, it would overturn and possibly cause an ejection or head trauma fatality.

(Tr. 150:21-25) Polgar testified that Bradshaw was aware of the requirements of the standard

because he had been cited before. (Tr. 150:1-5) Additionally, at the time the citation was written,

Bradshaw acknowledged knowing about the requirement that berms were required. When

responding to a question why berms were not in place, he responded that he did not have time to

build them. (Tr. 151:3-13) It is clear Bradshaw’s failure to install berms was intentional. The

record does not show that Bradshaw did anything to abate the violating condition before the

citation was issued.

The Secretary proved by a preponderance of the evidence that Stone Plus engaged in 

aggravated conduct constituting of more than ordinary negligence. The violation constituted an 

unwarrantable failure to comply with the regulation. 

Penalty 

The Secretary assessed the penalty for this citation at $2,000.00, the minimum penalty 

under 30 U.S.C. § 820(a)(3)(A). Stone Plus was highly negligent and the violation was S&S. The 

proposed penalty will not affect the operator’s ability to continue in business. Therefore, I assess 

a penalty of $2,000.00, as suggested by the Secretary. 

Order No. 8593604

Inspector Polgar issued Order No. 8593604 to Stone Plus at its Portable #1 mine on 

August 14, 2012, alleging a violation of 30 C.F.R. § 56.9300(a). The regulation states that 

“[b]erms or guardrails shall be provided and maintained on the banks of roadways where a dropoff exists of sufficient grade or depth to cause a vehicle to overturn or endanger persons in 

18 Inspector Polgar testified that the unwarrantable failure factors he relied upon to make 

the determination were the same as for Order No. 8593604. (Tr. 148:25 – 149:3) 

38 FMSHRC Page 676
equipment.” 30 C.F.R. § 56.9300(a). Section 56.9300 is a mandatory safety standard. The order 

alleges: 

The second tier/bench of the mine was not provided with berms or 

guardrails as required where a drop off exists of sufficient depth or 

grade to cause a vehicle to overturn or endanger persons in 

equipment. The second bench is used daily during production as a 

roadway by vehicles and equipment accessing the crusher/ 

screening plant as well as to haul away finished product. The drop 

off from the second bench to the bottom level was 7 1⁄2 feet to 8

feet (measured). The second bench was 225 feet (approx) long and 

100 feet (approx.) wide. Should a miner overtravel the 

roadway/bench and overturn his vehicle/equipment, serious if not 

fatal blunt force trauma injuries would be expected to occur. Mine 

operator Neil Bradshaw engaged in aggravated conduct 

constituting more than ordinary negligence in that he was aware of 

the violative condition and made no attempt to correct the hazard. 

This violation is an unwarrantable failure to comply with a 

mandatory standard. Standard 56.9300a was cited 2 times in two 

years at mine 4202587 (2 to the operator, 0 to a contractor). 

Ex. S-13 

Violation

Order No. 8593604 was issued as part of the hazardous condition complaint inspection. It 

alleges that injury was reasonably likely; the injury could reasonably be expected to be fatal; the 

violation was significant and substantial; one person could be affected; and, the negligence level 

was high. (Ex. S-13) Bradshaw admitted that the second tier did not have a berm. (Tr. 826:3-6) 

As above, I must determine whether the second tier was a roadway with a significant 

grade to cause a vehicle to overturn or endanger persons in equipment. Polgar concluded that the 

entirety of tier two needed a berm because it was a roadway. (Tr. 386:24 – 387:6) As previously 

mentioned, once the finished product was piled onto the second tier, the loader would have to 

travel the length of the tier in order to load the product for sale to a customer. (Tr. 115:25 – 

116:24) When the front-end loader accessed the pile, it would move the material to another pile 

so production could continue, or it would load a truck with the material.19 (Tr. 117:5-10) 

The edge of the drop-off consisted of loose, unconsolidated material, so the front-end 

loader would not have to drive completely over the edge for it to overturn. (Tr. 121:4-25) Polgar 

testified that it is more dangerous to drive at an angle or parallel to the edge than straight onto an 

embankment. Id. The drop-off point from the second bench to the bottom level was 

approximately 7.5 feet to 8 feet, which according to Polgar was enough to cause a front-end 

loader to overturn. (Tr. 119:22 – 120:5; Tr. 123:21 – 124:2) The second tier was 225 feet long 

19 This also assumes that the truck was not oversized and did not need to use the dump 

site, which was also cited. 

38 FMSHRC Page 677
and 100 feet wide; a blue trailer was parked in the middle of it. (Tr. 115:9-16; Tr. 122:1-9; Tr. 

398:17-18; Ex. S13-E) 

Bradshaw claimed that he did not use the second tier, but at the hearing he testified that 

he used his pickup truck to tow a blue trailer onto the second tier. (Tr. 889:19 – 890:7) After 

dropping off the trailer, he returned to the access road. (Tr. 890:8-11) There were also numerous 

tire tracks from the front-end loader and from a smaller vehicle on the second tier bench and by 

the pile of finished product, indicating that, contrary to Bradshaw’s denial, vehicles had indeed 

traveled on the tier.20 (Tr. 124:3-19; Tr. 276:19 – 277:3; Tr. 302:1-19; Ex. S-8F, 8H, 8G, 9J) 

It follows that, in the case of an injury or fire near the crusher or screening plant, 

someone would have to drive across the third tier, down the side road, and across the second tier 

to reach the blue trailer where a first aid kit and fire extinguisher were kept. Despite Bradshaw’s 

claim that he did not consider the second tier a roadway (much like the citation for the third tier 

above), it is clear that Bradshaw used the second tier as a roadway, not only to transport and 

maneuver the blue trailer into place, but also during the course of normal mining operations. (Tr. 

826:8 – 827:7) The evidence photos and testimony of Inspector Polgar depict the edge as loose, 

unconsolidated material. If a vehicle overtraveled the edge, it could easily overturn and fall 

approximately 7.5 feet to 8 feet to the tier below. I conclude that Stone Plus violated Section 

56.9300(a). 

Negligence 

Polgar designated order as involving high negligence because Bradshaw knew or should 

have known about the violative condition, and there were no mitigating factors. (Tr. 129:9-16) 

He further stated that it was "inconceivable" that somebody could be on this property and not 

know that a 200 foot berm was missing. Id. 

At the time Polgar wrote the order, it was his understanding that Bradshaw was on site 

every day during the set-up of the plant, to perform maintenance, during production, and to make 

sales, and should have known of the violating condition. (Tr. 134:15-18) More importantly, 

when discussing the issuance of the order, Bradshaw told Polgar that there were no berms on the 

tiers because he did not have time to build them. (Tr. 131:8-14) 

It is clear that Bradshaw chose not to install berms. A reasonably prudent person familiar 

with the mining industry would have installed berms or taken some other compliant measure. 

The order was properly classified as high negligence. 

Gravity 

Potential injuries here involve head trauma and possible ejection from the cab of the 

front-end loader, if it were to overtravel and overturn. Fatalities or serious bodily injuries are 

reasonably likely to result. (Tr. 139:17-23) Polgar alleged the violation affected one person 

20 Polgar could tell material had been removed from the pile because it was no longer a 

symmetrical cone at the top. (Tr. 124:20 – 125:5) 

38 FMSHRC Page 678
because a front-end loader is designed to be operated by a single person. (Tr. 127:22 – 128:11) I 

agree that one person would be affected. 

Significant and Substantial

The first and fourth prongs of the Mathies test have been met. The unbermed/unguarded 

second tier created a discrete safety hazard that a piece of mobile equipment would overturn 

which could result in serious injuries. (Tr. 147:13-20) The remaining question is whether there 

was a reasonable likelihood that the hazard contributed to would result in an injury. 

Polgar issued the citation because he felt it was an obvious violation of a mandatory 

health and safety standard. (Tr. 122:20 – 123:4) The lack of a berm posed a danger to anyone 

traveling on the tier (roadway). Miners would be exposed to the hazard of falling over the edge. 

(Id.; Tr. 126:3-7) Polgar designated the violation as reasonably likely to cause fatal injuries 

because the area had been used by the front-end loader and smaller vehicles. (Tr. 125:8-17) 

The Secretary proved by a preponderance of the evidence that the S&S designation was 

warranted here. 

Unwarrantable Failure

Missing berms were part of the hazardous condition complaint, and there was no 

evidence on site that berms had ever existed. (Tre. 128:12-17) I find that berms were missing 

since at least August 11, 2012. The violating condition was obvious and extensive because there 

was no berm anywhere on the 225-foot-long tier. (Tr. 1238-14; Tr. 133:1-8) The degree of 

danger was high because of the likelihood of a fatality or serious injury if a vehicle or piece of 

equipment were to overturn. (Tr. 133:9-17) Bradshaw was the primary loader operator and often 

the sole employee working at the mine. (Tr. 132:22-25) He and Polgar had discussed the 

berming requirement as part of the May inspection. Bradshaw told Polgar that there were no 

berms on the tiers because he did not have time to build them. I find that Bradshaw knew of the 

berming requirement and intentionally disregarded it. Bradshaw made no effort to abate the 

violating condition prior to the citation. (Tr. 132:18-21) 

The Secretary proved by a preponderance of the evidence that Stone Plus engaged in 

aggravated conduct constituting more than ordinary negligence. I conclude that this was an 

unwarrantable failure to comply with the regulation. 

Penalty

The Secretary assessed a $2,000.00 penalty for this citation, the minimum penalty 

amount under 30 U.S.C. § 820(a)(3)(A). Stone Plus was highly negligent, and the violation was 

S&S. This penalty will not affect the operator’s ability to continue in business. The $2,000.00 

penalty the Secretary proposed is appropriate. 

38 FMSHRC Page 679
Order No. 8593607 

Inspector Polgar issued Order No. 8593607 to Stone Plus at its Portable #1 mine on 

August 14, 2012, alleging a violation of 30 C.F.R. § 56.9300(b) pursuant to Section 105(d)(1) of 

the Mine Act. The regulation states that “[b]erms or guardrails shall be at least mid-axle height 

of the largest self-propelled mobile equipment which usually travels the roadway.” 30 C.F.R. § 

56.9300(b). Section 56.9300 is a mandatory safety standard. The order alleges: 

The boulder, used in lieu of a berm on the south side of the feed 

ramp was not maintained in a mid-axle height position of the 

largest piece of equipment that travels the roadway, as required 

where a drop off exists of sufficient grade or depth to cause a 

vehicle to overturn or endanger persons in equipment. The feed 

ramp was used by a Cat 950 FEL with a mid axle [sic.] height of 

30” (Measured) and the boulder was 12 to 15 inches (approx) 

above the working level of the ramp. The ramp was 19 feet long,

11 1⁄2 feet wide and 6 feet high (at the top, all measured). Should a 

vehicle overtravel the side of the ramp and overturn[,] permanently 

disabling blunt force trauma injuries would be expected. Mine 

operator Neil Bradshaw engaged in aggravated conduct 

constituting more than ordinary negligence in that he was aware of 

the standard and the violative condition and allowed it to exist 

without correcting the hazard. The violation is an unwarrantable 

failure to comply with a mandatory standard. 

Ex. S-15 

Violation

Order No. 8593607 was issued as part of the hazardous condition complaint inspection. It 

alleges that injury was unlikely, but that if an injury did occur, there was a reasonable likelihood 

that any resulting injuries would be serious. (Ex. S-15) The violation was not considered 

significant and substantial, one person was affected, and it was given a high negligence 

designation. Id.

Bradshaw opted to use boulders to create a barrier on the crusher feed ramp instead of 

constructing a solid material berm or guardrail. The barrier boulders were approximately 12 to 

15 inches in height. The regulation requires that a berm or barrier be at least mid-axle height of 

the largest vehicle using the roadway. Mid-axle height for the front-end loader was 30 inches. 

One of the boulders had toppled over, and the barrier was less than mid-axel height in that area. 

(Tr. 153:12 – 154:3; Ex. S-8M, 8N, 8O, 8P) However, even without falling over, the boulder 

barrier would not have been mid-axel height. (Tr. 154:11-13; Tr. 156:12-13) 

Bradshaw made an attempt, albeit inadequate, to put a berm in place on the feed ramp. 

(Tr. 423:8-11) The feed ramp is a roadway used by equipment at this mine. I conclude that Stone 

Plus violated Section 56.9300(b). 

38 FMSHRC Page 680
Negligence 

This order alleged high negligence because Bradshaw had been cited for a feeder ramp 

berm violation in May, 2012, at the same place. (Tr. 161:18 – 162:11; Tr. 166:13-17) Bradshaw 

knew of the standard. Not only had he been previously cited, he made an incomplete attempt to 

comply with the standard after the May violation. (Tr. 426:21 – 427:1) 

Regarding mitigation, Bradshaw testified that the displaced boulder had shifted because 

the grizzly on the screening plant vibrated when operated, which caused the boulder to slide out 

of place. (Tr. 844:6-15) This does not constitute mitigation. Mitigation is something the operator 

does affirmatively with knowledge of the potential hazard being mitigated, that tends to reduce 

the likelihood of an injury to a miner. It is clear that the violating condition was the result of a 

deficient half-measure and was not mitigation. 

A reasonably prudent person familiar with the mining industry would have installed and 

maintained adequate berms or barriers. The high negligence designation was warranted here 

because Bradshaw affirmatively created the violating condition. 

Gravity 

If the front-end loader came into contact with the displaced boulder, the boulder could 

have fallen down the ramp and not prevented the loader from overtraveling the edge. (Tr. 158:8-

15) Permanently disabling injuries are foreseeable. (Tr. 160:24 – 161:13) Further, when a miner

approaches the feeder with the front-end loader, the bucket is typically raised, which changes the

loader’s center of gravity. (Tr. 159:3-18) If a front wheel were to go off the side while the loader

was in this state of disequilibrium, the loader could overturn or the bucket could slam into the

feeder. In either instance it could endanger the driver. Id. Polgar marked this citation as unlikely

because when the operator feeds material into a hopper, he almost always drives in the same

tracks, and it is unlikely that he would get off course. (Tr. 160:5-13) One person, the driver of the

front-end loader, would be affected. (Tr. 161:14-17)

Unwarrantable Failure

It is clear from the testimony at the hearing and the photographical evidence that the 

violation was obvious. (Tr. 163:13-17; Tr. 166:6-12) The length of time the violation existed is 

unknown. (Tr. 163:5-12) Additionally, since there were other boulders on the ramp, the violation 

was not extensive. This violation posed a high degree of danger of permanently disabling injury 

if the loader or other vehicle were to overturn. (Tr. 164:6-21) Bradshaw was on notice of this 

standard due to the previous citation in May. (Tr. 163:18-22) Rather than diligently try to comply 

with the standard and remedy the berm issue, Bradshaw attempted a quick and easy fix. His 

minimal effort demonstrated a lack of reasonable care. There is no other evidence that Bradshaw 

made any effort to effectively deal with the violating condition prior to the citation. 

The Secretary proved by a preponderance of the evidence that Stone Plus engaged in 

aggravated conduct constituting of more than ordinary negligence. This constitutes an 

unwarrantable failure to comply with the standard. 

38 FMSHRC Page 681
Penalty

The Secretary assessed a penalty of $2,000.00, the minimum under 30 U.S.C. § 

820(a)(3)(A). Stone Plus was highly negligent. The penalty will not affect the operator’s ability 

to continue in business. Therefore, a penalty of $2,000.00 is appropriate here. 

Order No. 8593609 

Inspector Polgar issued Order No. 8593609 to Stone Plus at its Portable #1 mine on 

August 14, 2012, alleging a violation of 30 C.F.R. § 56.9300(a) pursuant to Section 105(d)(1) of 

the Mine Act. The regulation states that “[b]erms or guardrails shall be provided and maintained 

on the banks of roadways where a drop-off exists of sufficient grade or depth to cause a vehicle 

to overturn or endanger persons in equipment.” 30 C.F.R. § 56.9300(a). Section 56.9300 is a 

mandatory safety standard. The order alleges: 

The roadway accessing the upper portion of the mine, above the 

feed area was not provided with berms of mid axle [sic.] height as 

required where a drop off exists of sufficient height to cause a 

vehicle to overturn or endanger persons in equipment. The 

roadway was at an approx. 15 to 20 percent grade and 25 feet 

(approx) wide. On the north side of the roadway was loose 

unconsolidated shot rock dropping into the energy trough from the 

previous shot below the road. Should a vehicle overtravel the edge 

of the roadway and overturn, permanently disabling blunt force 

trauma injuries would be expected to occur due to the irregular, 

unstable nature of the edge of the roadway. Mine operator Neil 

Bradshaw engaged in aggravated conduct constituting more than 

ordinary negligence in that he was aware of the violative condition 

and made no attempt to correct the hazard. This violation is an 

unwarrantable failure to comply with a mandatory standard. 

Standard 56.9300a was cited 3 times in two years at mine 420587

(3 to operator, 0 to contractor). 

Ex. S-16 

Violation

Order No. 8593609 was issued as part of the hazardous condition complaint inspection. 

The order alleges that a permanently disabling injury was reasonably likely, the violation was 

significant and substantial, one person was affected, and there was a high degree of negligence. 

(Ex. S-16) The area where this violation occurred was a roadway on a hill above the crusher and 

screening plant. There was no berm or guardrail in place. (Tr. 167:23-25; Tr. 168:3-9; Ex. S-8T, 

S-16E) Polgar determined that it was a roadway because there were vehicle tracks, it appeared to

have been maintained, and it was used to access the track hoe and the crusher. (Tr. 170:6-10; Tr.

171:11-19) I agree with this assessment.

38 FMSHRC Page 682
Bradshaw argued that this roadway did not need a berm because he had constructed it 

with a slope such that if a vehicle overtraveled the edge, it would not overturn. (Tr. 820:20 − 

821:3) However, even if that were true, the material on the edge was loose, unconsolidated, and 

made of shot material that would not support the weight of a front-end loader. (Tr. 168:3-9; Tr. 

169:17-20) As such, equipment could overturn if it went beyond the edge. (Tr. 169:21 – 170:1) I 

conclude that Stone Plus violated Section 56.9300(a). 

Negligence 

Polgar designated the order at the level of high negligence because Stone Plus was aware 

that berms were required, but did not build any. (Tr. 174:3-13) It is important to note that anyone 

entering the mine site had to use this roadway. (Tr. 176:8-16) The Respondent’s negligence is 

further evidenced by the fact that Bradshaw attempted to slope the roadway to avoid having to 

build a suitable berm. 

Stone Plus raised the following in mitigation: (1) It had been on site for one day and did 

not access the area in question; (2) There had been no prior citations; and, (3) It had acted in 

good faith in complying with MSHA standards. (Resp. Br. at 8) Mitigation is something the 

operator does affirmatively with knowledge of the potential hazard being mitigated, that tends to 

reduce the likelihood of an injury to a miner. These items do not amount to mitigation. I have 

also considered the fact that when the road was originally constructed, it was built with a gradual 

slope. However, due to the loose, unconsolidated nature of the roadway material at the edges, 

this attempt failed its purpose and was not enough to mitigate the Respondent’s high negligence. 

Gravity 

Polgar designated the order as reasonably likely to cause permanently disabling injuries 

because vehicles, including the front-end loader, accessed this roadway and were exposed to the 

hazard. (Tr. 171: 23 – 172:13) An injury could be permanently disabling, as opposed to resulting 

in a fatality, because there was not a sharp drop-off like the other elevated roadways. The 

possible injuries from overturning could be head injuries, back injuries, neck injuries, and 

injuries that result in broken bones. (Tr. 172:19-22) One person was potentially affected – the 

driver of the front-end loader. (Tr. 173:25 – 174:2) 

Significant and Substantial

The first and fourth prongs of the Mathies test have been met. The unbermed upper 

roadway created a discrete safety hazard, i.e., an operator’s ability to prevent a piece of mobile 

equipment from overturning was compromised, potentially resulting in injuries to the miner. (Tr. 

147:13-20) The remaining question is whether there was a reasonable likelihood that the hazard 

contributed to would result in an injury. 

Anyone traveling on the roadway would be exposed to the hazard of falling over the 

edge. There was a reasonable likelihood that this would cause serious injuries. There was 

significant front-end loader and small vehicle traffic in the area. Additionally, the grade at the 

edge of the roadway was approximately 15 to 20 percent – fairly steep. (Tr. 170:14 – 171:3) A 

38 FMSHRC Page 683
vehicle with bad brakes (such as the front-end loader, as discussed below) would have difficulty 

stopping if it overtraveled the edge. The significant and substantial designation was warranted. 

Unwarrantable Failure 

It was obvious that there was no berm on the upper roadway. (Tr. 175:13-19) The 

violation was extensive; there was no berm anywhere in the area. (Tr. 174:22-24) It is unclear 

how long the violating condition existed. (Tr. 174:17-21) The degree of danger was high because 

of the possibility of permanently disabling injuries. (Tr. 175:20 – 176:1) Bradshaw was one of 

possibly two employees working at the mine at any given time. (Tr. 175:8-12) Stone Plus had 

been cited for a berm violation in May, and was on notice that berms were required. (Tr. 174:25 

– 175:7) Bradshaw showed a serious lack of care in failing to adequately deal with the need for a

berm, particularly after being put on notice by the May violation. There is no evidence indicating

Bradshaw made any effort to ameliorate the violation prior to the citation.

The Secretary proved by a preponderance of the evidence that Stone Plus engaged in 

aggravated conduct constituting more than ordinary negligence, and that an unwarrantable failure 

existed. 

Penalty

The Secretary assessed the penalty for this citation at $2,000.00, the minimum penalty 

amount under 30 U.S.C. § 820(a)(3)(A). Stone Plus was highly negligent, and the violation was 

S&S. The proposed penalty will not affect the operator’s ability to continue in business. A 

penalty of $2,000.00 is appropriate. 

Order No. 8593611 

Inspector Polgar issued Order No. 8593611 to Stone Plus at its Portable #1 mine on 

August 15, 2012, alleging a violation of 30 C.F.R. § 56.9301 pursuant to Section 105(d)(1) of the 

Mine Act. The regulation states that “[b]erms, bumper blocks, safety hooks, or similar impeding 

devices shall be provided at dumping locations where there is a hazard of overtravel or 

overturning.” 30 C.F.R. § 56.9301. Section 56.9301 is a mandatory safety standard. The order 

alleges: 

The elevated dump site/load out area for loading product material 

into trucks was not provided with berms, bumper blocks or similar 

impeding devices even though there was a hazard of overtravel or 

overturning. The dump site was 5 1⁄2 feet high (measured) and 60 

feet (apprx.) in length and was accessed on an as needed basis to 

load trucks with the Cat 950 FEL (s/n 81J10961). Should a person 

operating equipment overtravel the edge of the dump site[,] serious 

blunt force trauma injuries would be expected to occur. Mine 

operator Neil Bradshaw engaged in aggravated conduct 

constituting more than ordinary negligence in that he was aware of 

the violative condition and the requirements of the standard yet 

38 FMSHRC Page 684
made no attempt to correct the hazardous condition. This violation 

is an unwarrantable failure to comply with a mandatory standard. 

Ex. S-17 

Violation

Order No. 8593611 alleges that an injury was reasonably likely, the injury could 

reasonably be expected to be permanently disabling, the violation was significant and substantial, 

one person was affected, and the violation involved a high degree of negligence. (Ex. S-17) The 

standard requires a berm or device to impede a vehicle from overtraveling the edge of a dump 

site. (Tr. 184:13-18) 

The violation area was a dump site, an elevated pad from which a front-end loader 

dumped material into large trucks. It was located on the west access road. (Tr. 180:12 – 181:2; 

Ex. S-8W, 8X, 8Y) An elevated dump site is commonly used with small front-end loaders that 

cannot reach over larger vehicles to load materials. (Tr. 183:19-25) The dump site was sixty feet 

long and 5.5 feet above the road -- high enough for a loader to overturn if it overtraveled. There 

were no berms or barriers to prevent overtravel. (Tr. 181:12-19; Tr. 183:1-7; Tr. 184:23 -185:3) 

A guardrail or barrier is required because it is common for a front-end loader to get close to the 

edge of the dump site while loading trucks. (Tr. 189:3-9) 

Bradshaw argued that he never used the dump site and never loaded anything large 

enough to require use of the elevated site. (Tr. 854:16 – 855:19) However, during a previous 

inspection, Polgar saw the front-end loader parked on the access road to this dump site. (Tr. 

181:20 – 182:2) He also testified that the dump site was very well maintained, (Tr. 191:16-23), 

and were it not being used, as Bradshaw claimed, it would not have been so well kept. 

Additionally, the dump site was not barricaded off to prevent miners from using it. (Ex. S-8W, 

8X, 8Y) It is reasonable to infer from this that Bradshaw used the dump site in this condition and 

violated Section 56.9301. 

Negligence 

To Polgar, this violation involved a high degree of negligence because the condition was 

open and obvious, and the person who would have used this load-out area most often as the 

primary loader operator was Bradshaw, the owner/operator. (Tr. 187:12-20; Tr. 191:11-15) A 

reasonably prudent person familiar with the mining industry would have known to install berms 

or guardrails at this site. 

Gravity 

If a loader drove over the edge at this site, it could overturn. If a truck were being loaded 

at that moment, the loader could hit the truck, potentially causing injury to both the loader 

operator and the truck driver. (Tr. 186:2-18) Resulting injuries could be serious. (Tr. 186:19-22) 

At least one person would be affected. (Tr. 187:1-4) 

38 FMSHRC Page 685
Significant and Substantial

The first and fourth prongs of the Mathies test are satisfied. The unprotected edge of the 

dump site created a discrete safety hazard that a loader operator might overtravel the edge and 

lose control of the vehicle, causing injury to himself or others. The remaining question is 

whether there was a reasonable likelihood that the hazard would result in an injury. 

Polgar believed this violation was significant and substantial, i.e., reasonably likely to 

result in permanently disabling injuries. People used the area as needed. The dump site was wellmaintained despite there being no berm or guardrail to prevent overtravel. (Tr. 185:10-19) The 

front-end loader would have to come close to the edge while loading trucks. Tire tracks indicated 

that trucks had been loaded there. (Tr. 181:20 – 182:2; Tr. 183:11-15) 

Typically, when a front-end loader climbs a loading ramp such as this, its bucket is full, 

making it top heavy and more likely to tip if it runs over the edge. (Tr. 187:21 – 188:17) The 

extra bucket weight also makes it more likely that the loader will tip forward into the truck it is 

loading. Id. It is reasonably likely that this could result in a serious injury. Additionally, 

considering the inadequate brakes and lack of a seat belt on the front-end loader (discussed 

below), the likelihood of serious injury is even greater. (Tr. 185:20 – 186:1) 

The Secretary has proved by a preponderance of the evidence that the S&S designation 

was warranted. 

Unwarrantable Failure

The violation was obvious and extensive. There were no berms or other barriers, and the 

area was well maintained. (Tr. 190:20-191:23) Additionally, the dump site had existed for 

approximately three months. (Tr. 189:14-21) The instability of a front-end loader climbing the 

loading ramp with a full bucket raised to load into a truck intensifies the risk of incident and 

injury. The lack of any berm or barrier further exacerbates the risk of serious injury to the loader 

operator and possibly the driver of the truck being loaded. (Tr. 192:5-15) This was an open and 

obvious condition. Bradshaw knew that there was no berm or barrier at this dump site. (Tr. 

192:16-21) Polgar had also spoken to Bradshaw about the berming requirements during the May 

inspection. Bradshaw acted with a serious lack of reasonable care. Other than having built the 

roadway with a gradual slope, there is no evidence indicating that Bradshaw made any effort to 

ameliorate the condition prior to the citation. (Tr. 191:8-10) 

The Secretary has proved by a preponderance of the evidence that Stone Plus engaged in 

aggravated conduct constituting more than ordinary negligence. This violation was the result of 

an unwarrantable failure to comply with the regulation. 

Penalty 

The Secretary assessed the penalty for this citation at $2,000.00, the minimum penalty 

amount under 30 U.S.C. § 820(a)(3)(A). Stone Plus was highly negligent, and the violation was 

S&S. The proposed penalty will not affect the operator’s ability to continue in business. A 

penalty of $2,000.00 is appropriate. 

38 FMSHRC Page 686
Order No. 8593613

Inspector Polgar issued Order No. 8593613 to Stone Plus at its Portable #1 mine on 

August 16, 2012, alleging a violation of 30 C.F.R. § 56.14101(a)(1) pursuant to Section 

105(d)(1) of the Mine Act. The regulation states that “[s]elf-propelled mobile equipment shall be 

equipped with a service brake system capable of stopping and holding the equipment with its 

typical load on the maximum grade it travels.” 30 C.F.R. § 56.14101(a)(1). Section 56.14101 is a 

mandatory safety standard. The order alleges: 

The service brakes on the CAT 950 FEL (s/n 81J1096) failed to 

hold the equipment with its typical load on the maximum grade it 

travels. Brake function was very weak and failed to hold the loader 

with an empty bucket. Poor grade performance combined with the 

lack of appropriate dump site restraints (citation # 8593611) and 

berms or guardrails (citation/order # 8593603, 8953604, 8593607, 

and 8593609), no seat belt in the loader (cit/order #8593614) and 

the presence of miner(s) working on foot in the crusher/screening 

plant area, make it reasonably likely that a fatal crushing/blunt 

force trauma injury would occur to the loader operator or miner(s) 

on foot should the CAT 950 need to stop and be unable to. Mine 

operator Neil Bradshaw engaged in conduct constituting more than 

ordinary negligence in that he was aware of service brake defects 

on the loader and made no attempt to correct the hazard. This 

violation is an unwarrantable failure to comply with mandatory 

standard. 

Ex. S-10 

Violation 

Order No. 8593613 was part of the hazardous condition complaint inspection. (Tr. 45:23 

– 46:3; Tr. 76:1-7) The order alleges that a fatal injury was reasonably likely, that the violation

was significant and substantial, the negligence level was high, and one person was affected. (Ex.

S-10) This violation relates to one of MSHA's Rules to Live By and was designated as an

unwarrantable failure. (Tr. 70:14-19; Tr. 72:20-23)

The front-end loader is a self-propelled piece of mobile equipment used to feed the 

screening plant, to load customers’ trucks with product material, to build berms, and, during the 

setup of the plant, to maintain the roads, and to clean the screening deck and crusher. (Tr. 60:2-8; 

Tr. 62:17-23; Tr. 63:4-8) Polgar testified that while inspecting the front-end loader, he heard an 

air leak coming from the brake valve. (Tr. 64:2-22) 

38 FMSHRC Page 687
Bradshaw suggested a pull-through test21 to test the brakes. (Tr. 46:15-16) Bradshaw 

operated the loader controls from inside the cab while Polgar observed from the ground. Polgar 

noticed that instead of pressing the brake pedal and releasing the clutch with the transmission 

engaged, which would cause the engine to stall if the brakes were functioning properly, 

Bradshaw allowed the clutch to remain engaged so that the loader did not move forward. This 

tactic, if not detected by the inspector, would create the impression that the brakes were holding 

and were in good condition. (Tr. 46:21 – 47:25; Tr. 49:4-9; Tr. 50:16-22) Polgar had Bradshaw 

repeat the pull-through test. The brakes failed to hold even though the loader was empty.22 (Tr. 

49:17 – 50:6; Tr. 62:9-12) Bradshaw attempted to deceive Inspector Polgar. Stone Plus violated 

Section. 56.14101(a)(1). 

Negligence 

Bradshaw had reason to know that the brakes on the front-end loader were not working 

correctly. He moved the loader from the feed ramp on the third tier bench, where it was on the 

first day of the inspection, to the lowest level of the pit near the south end stockpiles, by the last 

day of the inspection. (Tr. 51:9-20; Tr. 496:6-13; Tr. 700:19-23) He tried to deceive the inspector 

while performing the pull-through test. (Tr. 68:8 -69:6) Additionally, Polgar and Tromble spoke 

to Bradshaw at the previous inspection in May about mobile equipment safety. (Tr. 72:6-10) A 

reasonably prudent person familiar with the mining industry would have noticed and fixed the 

inadequate brakes. Stone Plus knew of the violating condition, and was highly negligent. 

Gravity 

Polgar designated this citation as potentially fatal because a miner could be struck by the 

front-end loader if it was unable to stop due to inadequate brakes. (Tr. 57:16 – 58:1) Further, 

inadequate brakes could cause the loader to drive over the edge of a roadway. It could overturn, 

and eject or kill the driver. (Tr. 58:2-14) The order designated one person as being affected, the 

driver or a pedestrian. (Tr. 54:5-22) I agree. 

Significant and Substantial 

The first and fourth prongs of the Mathies test have been met. The inadequate brakes 

posed a discrete safety hazard to miners because a miner could have been run over by a front-end 

loader that was unable to stop. The remaining question is whether there was a reasonable 

likelihood that the hazard contributed to would result in an injury. 

The violation was reasonably likely to result in a fatal injury. (Tr. 54:23 – 55:15) The 

front-end loader was used at the crushing and screening plant, and for cleanup and set up 

purposes. Id. During those times, the loader driver, or anyone on the ground in its vicinity, would 

be exposed to possible injury due to the inadequate brakes. Id. Polgar testified further that if a 

21 A pull through test determines if the brakes are good enough to hold a vehicle when the 

vehicle is put in gear. (Tr. 46:6-13) 

22 The standard requires the vehicle to be fully loaded for the pull-through test to be 

considered valid. 

38 FMSHRC Page 688
miner had been operating the loader when he arrived on site for his inspection, he would have 

issued an imminent danger order. (Tr. 55:17 – 56:8) There was a reasonable likelihood that the 

faulty brakes would result in a serious injury. 

The Secretary proved by a preponderance of the evidence that the significant and 

substantial designation was warranted. 

Unwarrantable Failure

It is unknown how long the brakes were in the state Polgar observed, however the 

problem was raised as part of the hazardous condition complaint of August 11, 2012. (Tr. 70:25 

− 71:3) The violation was obvious to anyone operating the loader. (Tr. 71:7-23) It was also 

apparent to Inspector Polgar that air was leaking from the brake valve. Anyone operating the 

loader would have known that the brakes were not functioning properly. (Tr. 74:1-11) The 

violation poses a high degree of danger because operating a font-end loader with inadequate 

brakes and no seat belt on unprotected elevated roadways exposes the driver and others in the 

vicinity to a high degree of risk of injury or death. (Tr. 74:12-25) Bradshaw knew the brakes on 

the front-end loader were inadequate and intentionally attempted to deceive Inspector Polgar. 

(Tr. 75:1-7) Despite knowing that the brakes were inadequate, Bradshaw failed to tag the loader 

out of service or fix the problem. (Tr. 51:21 -22:10; Tr. 65:16-22 − 67:2) Bradshaw testified that 

he did not intend to deceive MSHA and thought there were two service brake pedals on the 

loader. However, anyone with 50 years of experience operating front-end loaders, like Bradshaw, 

would know that there were a clutch, a service brake, and a drive pedal and would know the 

difference between them. (Tr. 48:21 -49:3; Tr. 486:13-15; Tr. 859:15-17; Tr. 861:1-3; Tr. 

937:18-24) Bradshaw acted with intentional misconduct. There was no effort to remedy the 

violation prior to the citation, but there was an effort to conceal it. (Tr. 73:18-20) 

The Secretary proved by a preponderance of the evidence that Stone Plus engaged in 

aggravated conduct constituting of more than ordinary negligence. This violation was the result 

of an unwarrantable failure to comply with the regulation. 

Penalty

The Secretary assessed the penalty for this citation at $3,000.00. This is $1,000 more than 

the minimum penalty amount under 30 U.S.C. § 820(a)(3)(A). As noted above, Stone Plus was 

highly negligent, and I found the violation was S&S. This penalty will not affect the operator’s 

ability to continue in business. The Secretary increased the penalty amount due to Bradshaw’s 

deceit and attempted concealment. The penalty is increased to $4,000.00 due to the operator’s 

deceitful actions. 

Order No. 8593614 

Inspector Polgar issued Order No. 8593614 to Stone Plus at its Portable #1 mine on 

August 16, 2012, alleging a violation of 30 C.F.R. § 56.14130(i). The regulation states that 

“[s]eat belts shall be maintained in functional condition, and replaced when necessary to assure 

38 FMSHRC Page 689
proper performance.” 30 C.F.R. § 56.14130(i). Section 56.14130(i) is a mandatory safety 

standard. The order alleges: 

The seat belt in the CAT 950 FEL (s/n 81J10961) was not 

maintained in a functional condition and had not been replaced 

when necessary to assure proper performance. Upon inspection the 

seat belt was missing both halves. The mine operator stated that the 

loader has never had a seat belt installed in it[,] but the year of 

manufacture (1977 according to serial number) and the presence of 

a ROPS with a 29 CFR 1926.100 1972 compliance label 

indicate[s] that a seat belt was provided by the manufacturer. 

Failure to provide and maintain a functional seat belt, poor brake 

performance (cit/order #8593613), lack of appropriate dump site

restraints (citation # 8593611) and berms or guardrails 

(citation/order # 8593603, 8593604, 8593607, and 8593609) 

combine to create a situation where fatal crushing/blunt force 

trauma injuries would be expected should a miner operating the 

loader overtravel or overturn a roadway. Mine operator Neil 

Bradshaw engaged in conduct constituting more than ordinary 

negligence in that he should have discovered the obvious lack of a 

seat belt and corrected the hazardous condition instead of allowing 

it to continue for a period of two years without addressing it. This 

is an unwarrantable failure to comply with a mandatory safety 

standard. This violation is an unwarrantable failure to comply with 

a mandatory standard. 

Ex. S-11 

Violation 

Order No. 8593614 alleges that injury was reasonably likely, could reasonably result in 

fatal injuries, was significant and substantial, the negligence level was high, and one person was 

affected. Id. The loader was originally equipped with a seat belt from the manufacturer.23

However, Polgar found that the seat belt was missing. (Tr. 78:6-12; Tr. 91:18 – 92:5) There were 

two attachment studs where the seat belt should have been mounted. (Tr. 78:17 – 79:8; Tr. 80:19 

– 81:8) Stone Plus violated Section 56.14130(i).

Negligence 

Polgar designated the citation as high negligence because the operator had to know of the 

violation. Anyone driving the loader had to know the seat belt was missing. (Tr. 86:5-20) 

Bradshaw testified that the loader had not had a seat belt for approximately two years; it never 

had a seat belt. (Tr. 86:1-4; Tr. 937:25 − 938:15) A reasonably prudent person familiar with the 

23 Equipment manufactured after 1969 was required to have a seat belt; this loader was 

manufactured in 1977. (Tr. 80:4-13) 

38 FMSHRC Page 690
mining industry would have noticed the missing seat belt and replaced it. I find that Stone Plus 

knew of the violative condition, and the high negligence rating was justified. 

Gravity 

A driver can be ejected from the cab and severely injured without a working seat belt. 

(Tr. 57:6-13; 92:12 – 93:7) The inspector designated this violation as affecting one person 

because there was only one seat in the loader. (Tr. 85:5-9) I agree. 

Significant and Substantial 

The first and fourth prongs of the Mathies test have been met. The missing seat belt 

created the discrete safety hazard that a loader driver could be subjected to ejection and/or injury 

by blunt force trauma. The remaining question is whether there was a reasonable likelihood that 

the hazard contributed to would result in an injury. 

 

It was reasonably likely that the missing seat belt could result in an injury. If the loader 

overtraveled one of the elevated roadways and overturned, the occupant could be ejected from 

the cab. (Tr. 84:14-20) The loader had no seat belt, inadequate brakes, and there were no berms 

on the tiers, dump site, or roadway. This very dangerous situation could reasonably result in a 

fatality. (Tr. 83:21 – 84:11) The Secretary proved by a preponderance of the evidence that the 

significant and substantial designation was warranted here. 

Unwarrantable Failure 

The violation was extensive and obvious. The seat belt wasn't just broken; it was missing. 

(Tr. 87:7-10; Tr. 88:9-13) According to Bradshaw, the violating condition had existed 

approximately two years. The front-end loader never had a seat belt. (Tr. 86:1-4; Tr. 937:25 − 

938:15) There was a high degree of danger because the protection that seat belts provide against 

ejection from the cab and possible blunt force trauma inside the cab, in the event of an accident 

is lost if the vehicle has no seat belt. (Tr. 88:14 – 89:1) It is implausible that a person who has 

operated front-end loaders for approximately fifty years (Bradshaw) could operate this loader 

without knowing the seat belt is missing. I find that Bradshaw knew the seat belt was missing for 

approximately two years and conclude that he acted with intentional misconduct by not replacing 

it. Bradshaw made no effort to remedy the violating condition prior to the issuance of the 

citation. (Tr. 87:22-25) 

 The Secretary proved by a preponderance of the evidence that Stone Plus engaged in 

aggravated conduct constituting of more than ordinary negligence. This constitutes an 

unwarrantable failure. 

Penalty

The Secretary assessed the penalty for this citation at $2,000.00, the minimum penalty 

amount under 30 U.S.C. § 820(a)(3)(A). Stone Plus was highly negligent and the violation was 

38 FMSHRC Page 691
S&S. This penalty will not affect the operator’s ability to continue in business. A penalty of 

$2,000.00 is appropriate. 

Order No. 8593617 

Inspector Polgar issued Order No. 8593617 to Stone Plus at its Portable #1 mine on 

August 16, 2012, alleging a violation of 30 C.F.R. § 56.14100(a) pursuant to Section 105(d)(1) 

of the Mine Act. The regulation states that “[s]elf-propelled mobile equipment to be used during 

a shift shall be inspected by the equipment operator before being placed in operation on that 

shift.” 30 C.F.R. § 56.14100(a). Section 56.14100(a) is a mandatory safety standard. The order 

alleges: 

The mine operator failed to ensure that self propelled [sic.] mobile 

equipment was being inspected for safety defects prior to it being 

placed into operation. The nature of defects observed and the 

severity of those defects, as well as the operators own admission 

indicate that no safety defect exam what so ever [sic.] was being 

performed. The failure to ensure examinations are being conducted 

can lead to serious[,] if not fatal[,] injuries. Neil Bradshaw, mine 

operator, engaged in conduct constituting more than ordinary 

negligence in that he was aware of the requirement to conduct 

preoperational exams and he did not ensure they (exams) were 

being conducted. This is an unwarrantable failure to comply with a 

mandatory safety standard. 

Ex. S-12 

Violation

Order No. 8593617 alleged that a fatal injury was reasonably likely, the violation was 

significant and substantial, the negligence level was high, and one person was affected. Id.

Polgar issued the order because the operator failed to inspect the front-end loader prior to placing 

it into operation. (Tr. 93:16-19; Tr. 94:1-4) The operator is also required to make a record of any 

defects, take the equipment out of service until defects are corrected, and correct the defects in a 

timely manner. (Tr. 97:21 – 98:5) 

Mine operators are required to perform a pre-shift exam of mobile equipment prior to 

each shift. The operator must inspect all safety equipment, i.e. brakes and seat belt, to ensure 

everything is functional and the equipment is safe to run. (Tr. 99:10-15) Due to the obvious 

nature of the seat belt issue (missing) and the defective brakes, it is obvious that no 

preoperational exam was done. (Tr. 101:16 – 102:1) Additionally, Bradshaw admitted that no 

preoperational exam was done. (Tr. 94:16 – 95:1) As an example, a preoperational exam should 

have been done before the front-end loader was moved from the upper tier to the lower tier of the 

mine. (Tr. 107:2-9) Stone Plus violated Section 56.14100(a). 

38 FMSHRC Page 692
Negligence 

It was Bradshaw’s responsibility, as owner and operator of the mine and principal 

operator of the front-end loader, to perform preoperational exams. (Tr. 102:14-18; 107:10-20) 

Bradshaw knew that a preoperational exam was required. At the previous inspection in May, 

2012, the inspectors and Bradshaw spoke about the preoperational exam requirement, and 

Bradshaw was given a safety checklist with pertinent standards that need to be followed. (Tr. 

95:5-21) Bradshaw admitted in May that there no preoperational exams had been performed. It is 

evident that they were still not being performed when this inspection took place, months later. 

(Tr. 99:20-25; Tr. 101:6-11) 

When Polgar asked Bradshaw to produce examination records during the August 

inspection, Bradshaw opened his briefcase. Polgar looked inside and saw the checklist that he 

had given Bradshaw in May on top of the other documents. Bradshaw was on notice and was 

aware of the preoperational exam requirement. (Tr. 107:25 – 108:20) Bradshaw also admitted he 

had no preoperational exam records. He told Inspector Polgar he knew he should be performing 

them. (Tr. 96:13-16; Tr. 98:7-13; S-6) Polgar assigned high negligence to this order because the 

owner was responsible for performing the preoperational exams, knew that they were required, 

yet failed to do them. (Tr. 100:18-25) 

A reasonably prudent person familiar with the mining industry would have inspected the 

front-end loader before operating it. It is clear that Stone Plus was highly negligent in neglecting 

this duty to examine. 

Gravity 

Here, the fatality designation related to the seat belt and brake defects on the front-end 

loader. (Tr. 103:14-16; Tr. 106:4-9) The driver or a miner on foot in the area would be the only 

person affected. (Tr. 97:4-11; Tr. 98:15-20; Tr. 106:10-13) 

Significant and Substantial 

The first and fourth prongs of the Mathies test have been met. The lack of preoperational 

exams created the discrete safety hazard of the missing seatbelt and inadequate brakes. These 

defects could result in injuries to a miner. The remaining question is whether there was a 

reasonable likelihood that the hazard contributed to would result in an injury. 

Polgar considered the violation S&S and reasonably likely to result in fatal injuries. 

When assessing this violation, Polgar looked at the other related violations. He testified that the 

purpose of the preoperational exam is to ensure that equipment is checked for defects and is safe 

for miners to use. (Tr. 105:15-22) Here, the operator failed to do a preoperational exam which 

resulted in critical safety measures being overlooked. (Tr. 104:9-20) Polgar believed that if a 

preoperational exam had been performed, the brake issue and the missing seat belts would have 

been caught immediately. (Tr. 69:16 – 70:3; Tr. 104:24 – 105:2) 

38 FMSHRC Page 693
Bradshaw admitted that he had operated the equipment and produced commercial 

product. (Tr. 96:20-21; Ex. S-6) Additionally, there was evidence that the front-end loader had 

been used in various locations throughout the mine. For example, there were production piles on 

the ground, there were loader tracks in various areas of the mine, and the loader had been moved 

from where it was on the first day of inspection to where it was on the last day of inspection. (Tr. 

100:1-12) Most importantly, despite the inadequate brakes and missing seat belt, the loader had 

never been taken out of service. (Tr. 105:23-25) I agree that there was a reasonable likelihood 

that this was a hazard that could result in an injury. The S&S designation was warranted. 

Unwarrantable Failure

The violation was obvious; it is something that should be done every shift, or every time 

a piece of equipment is to be placed into service. (Tr. 103:4-8) Also, the defects were extensive 

enough to be obvious. (Tr. 101:13-15) This violation existed since at least May, 2012. The seat 

belt and brake defects in the front-end loader posed a high degree of danger. (Tr. 103:9-13) It is 

the operator’s responsibility to complete the preoperational exam. Bradshaw failed to do so and 

admitted that he knew he should have been performing the exams. (Tr. 103:22 – 104:5; Tr. 

104:7-8) The MSHA checklist in his briefcase was further evidence that he knew of the 

preoperational exam requirement but ignored it. (Tr. 108:22 – 109:4) Bradshaw was on notice at 

least since May when he was given a copy of the MSHA checklist. (Tr. 102:2-10) I find that 

Bradshaw’s omissions constituted intentional misconduct. Nothing was done to ameliorate the 

violation. (Tr. 102:11-13) 

The Secretary proved by a preponderance of the evidence that Stone Plus engaged in 

aggravated conduct constituting more than ordinary negligence. This violation constituted an 

unwarrantable failure to comply with the standard. 

Penalty

The Secretary assessed the penalty for this citation at $2,000.00, the minimum penalty 

under 30 U.S.C. § 820(a)(3)(A). As noted above, Stone Plus was highly negligent and the 

violation was S&S. This penalty will not affect the operator’s ability to continue in business. I 

assess a penalty of $2,000.00, as proposed by the Secretary. 

Order No. 8593605 

Inspector Polgar issued Order No. 8593605 to Stone Plus at its Portable #1 mine on 

August 14, 2012, alleging a violation of 30 C.F.R. § 56.14112(b) pursuant to Section 105(d)(1) 

of the Mine Act. The regulation states that “[g]uards shall be securely in place while machinery 

is being operated, except when testing or making adjustments which cannot be performed 

without removal of the guard.” 30 C.F.R. § 56.14112(b). Section 56.14112(b) is a mandatory 

safety standard. The order alleges: 

The tail pulley guard on the 26 inch wide east discharge belt of the 

Extec screen plant (s/n 5830) was not in place as required to 

prevent persons from contacting moving machine parts. The guard

38 FMSHRC Page 694
had been removed and was located on the ground approx. 100 feet

away from the tail pulley. The smooth drum tail pulley was 48 

inches AGL and adjacent to a walkway/travelway. Should a miner 

come into contact with a rotating tail pulley serious 

amputation/dismemberment injuries would be expected. Mine 

operator Neil Bradshaw engaged in aggravated conduct 

constituting more than ordinary negligence in that he was aware of 

the violative condition and made no attempt to correct the 

hazardous condition. This violation is an unwarrantable failure to 

comply with a mandatory standard. 

Ex. S-18 

Violation 

Order No. 8593605 was issued as part of the hazardous condition complaint inspection. 

(Tr. 405:1-5) The order alleges that an injury was reasonably likely, could reasonably result in 

permanently disabling injuries, the violation was significant and substantial, the negligence level 

was high, and one person was affected. (Ex. S-18) Polgar testified that the standard for guarding 

moving machine parts requires that if the machine part is over seven feet above ground level 

(AGL), it is considered guarded “by location,” but here, the screening plant tail pulley was only 

48 inches AGL. (Tr. 196:1-8) Therefore, the tail pulley should have been guarded if the machine 

was in use. In this case, the tail pulley guard had been removed to a location approximately 100 

feet from the screening plant, and was on a completely different tier. (Tr. 193:24 – 194:22; Tr. 

195:7-12) 

Bradshaw testified that he never operated the screening plant without the tail pulley guard 

in place, but there is credible evidence to the contrary. (Tr. 831:5-9; Tr. 834:21-23) In addition to 

the hazardous condition complaint claim that the screening plant had been used, Bradshaw 

admitted he ran the machine for a couple of hours. (Tr. 210:21-24; Tr. 410:14 – 411:3) There 

was also physical evidence that Polgar relied on at the time he inspected the mine to determine 

the machine was operated, including the fact that there were discharge piles under the belts and 

rocks on the frame. (Tr. 411:5-16; Tr. 727:21-25) 

There is an exception to the rule: a guard can be removed during testing or for 

adjustments if such actions cannot be performed without removing the guard. (Tr. 210:25 – 

211:8) However, the evidence here shows that the equipment was not being tested or adjusted. 

There were rocks located near the adjustment mechanism that would have to be removed before 

any adjustment was done. (Tr. 211:9 – 212:16; Tr. 295:16 – 296:9; Ex. S-9A, 9F, 18D) 

Additionally, as a general rule, the tail pulley guard does not need to be removed to adjust the 

machine. (Tr. 212:22-25) The guard was removed, and the screening plant should have been 

locked out, tagged out, or blocked against motion. (Tr. 609:12 – 610:7; Tr. 547:15-20) I find that 

Stone Plus violated Section 56.14112(b). 

38 FMSHRC Page 695
Negligence 

Polgar rated the negligence involved in this violation as “high” because the pulley guard 

had been in place during the previous inspection, it had been subsequently removed, and the 

screening plant operated after its removal. (Tr. 204:20-25) Stone Plus was on notice of the 

guarding requirement because Polgar and Bradshaw discussed it at the previous inspection 

months before, and had even reviewed an MSHA power point presentation on the subject. (Tr. 

208:3-11) Additionally, Bradshaw admitted that the tail pulley guard had been removed and 

excused it because it was only going to run for a couple of hours. (Tr. 352:8-13) 

A reasonably prudent person familiar with the mining industry would have assured that 

the tail pulley on this equipment was properly guarded. It is clear that Stone Plus knew of the 

violative condition, failed to comply with the relevant standard, and was highly negligent. 

Gravity 

This type of pulley could actually pull a miner into it. (Tr. 203:25 – 204:13) The resulting 

injuries could be very serious. Id. Polgar believed that the violation affected one person because

under normal operating circumstances, only one person would be near the tail pulley at any time. 

(Tr. 204:14-19) I agree. 

Significant and Substantial 

The first and fourth prongs of the Mathies test are satisfied. The lack of a tail pulley 

guard created a hazard that a miner could become entangled in the pulley assembly and suffer 

serious injury. The remaining question is whether there was a reasonable likelihood that the 

missing guard hazard would result in an injury. 

The screening plant was adjacent to a walkway, which was narrow, not compacted, and 

sloped, increasing the likelihood that a person could slip and fall onto the moving, unguarded tail 

pulley. (Tr. 196:9-14; Tr. 277:12 – 278:3; Ex. 8-I) The emergency stop button for the conveyor 

belt was located four or five feet from the belt. (Tr. 197:6-9) A miner could slip and fall on his 

way to the stop button. A conveyor belt such as this could have considerable spillage near the tail 

pulley, which would require shoveling. If a miner needed a hand hold to stand up while 

shoveling, his hand would be mere inches from the uncovered pulley at best. He could easily 

inadvertently put his hand on the exposed tail pulley. (Tr. 199:2-19; Tr. 201:12 – 202:6) 

The Secretary has shown that there was a reasonable likelihood that the missing guard 

hazard would result in an injury. The S&S designation was warranted. 

Unwarrantable Failure 

Bradshaw admitted that the violation existed for a couple of hours -- the length of time 

the mine was producing. (Tr. 205:6-25) The violation was obvious. The guarding was missing, 

had been moved 100 feet away, and was on a different tier. (Tr. 209:6-11) The violation was 

extensive because there was no tail pulley on the machine and nothing had been done to 

38 FMSHRC Page 696
minimize the danger. The missing tail pulley guard posed a high degree of danger. Entanglement 

accidents are well known in the industry and are unfortunately extremely grievous. (Tr. 209:21 – 

210:2) Bradshaw was the owner and operator of Stone Plus, and was on site during all phases of 

the mining cycle. He was aware of the missing guarding, (Tr. 208:25 – 209:5) but he ran the 

screener nonetheless. Moreover, the inspectors had told Bradshaw about the guarding 

requirements the previous May. Bradshaw acted with intentional misconduct. No effort was 

made to minimize the violation. (Tr. 208:20-24) 

The Secretary proved by a preponderance of the evidence that Stone Plus engaged in 

aggravated conduct constituting of more than ordinary negligence. This constitutes an 

unwarrantable failure. 

Penalty 

The Secretary assessed the penalty for this citation at $2,000.00, the minimum penalty 

amount under 30 U.S.C. § 820(a)(3)(A). Stone Plus was highly negligent, and the violation was 

significant and substantial. This penalty will not affect the operator’s ability to continue in 

business. I assess a penalty of $2,000.00 as proposed by the Secretary. 

Order No. 8593606 

Inspector Polgar issued Order No. 8593606 to Stone Plus at its Portable #1 mine on 

August 14, 2012, alleging a violation of 30 C.F.R. § 56.14107(a) pursuant to Section 105(d)(1) 

of the Mine Act. The regulation states that “[m]oving machine parts shall be guarded to protect 

persons from contacting gears, sprockets, chains, drive, head, tail, and takeup pulleys, flywheels, 

couplings, shafts, fan blades, and similar moving parts that can cause injury.” 30 C.F.R. § 

56.14107(a). Section 56.14107(a) is a mandatory safety standard. The order alleges: 

The return roller on the 36 inch wide overhead belt of the Extec 

screening plant (s/n 5830) was not guarded as required to prevent 

persons from contacting moving parts. The roller was located 

adjacent to a travelway used to access the controls of the screening 

plant. The roller was 51 inches (measured) AGL, with the frame of 

the plant directly below the roller (approx. 30 inches distance) 

being used as a tool/grease gun storage area. Should a miner come 

into contact with a rotating return roller entanglement/suffocation 

injuries would be expected. Mine operator Neil Bradshaw engaged

in aggravated conduct constituting more than ordinary negligence 

in that he was aware of the guarding standards and the violative 

condition yet made no attempt to correct the hazardous condition. 

This violation is an unwarrantable failure to comply with a 

mandatory standard. 

Ex. S-19 

38 FMSHRC Page 697
Violation 

Order No. 8593606 alleges the injury was reasonably likely, could reasonably result in 

fatal injuries, was significant and substantial, the negligence level was high, and one person was 

affected. (Ex. S-19) The standard states that moving machine parts shall be guarded. (Tr. 216:2-

4) However, there was no evidence that there was a guard over the return roller at any time. (Tr.

220:7-13; Ex. S-8L, 9D, 9E, 9M) The return roller was less than seven feet off the ground and

needed to be guarded. (Tr. 217:22 – 218:1)

Bradshaw told Polgar that the screening plant had been operated for only a couple of 

hours. However, the amount of material on the ground and in the production piles under the 

discharge conveyors was consistent with a longer period of operation. (Tr. 36:8-16) Polgar 

concluded that there had never been a guard over the return roller. (Tr. 222:3-10) 

Bradshaw argued that he never operated the belt without guarding the roller, and that he 

used plywood as a guard, however, in light of the amount of material left around the equipment, 

his testimony on this point is not credible. (Tr. 835:17-25; Tr. 836:7-15) I agree with the 

Inspector that Stone Plus violated 56.14107(a). 

Negligence 

Polgar assigned high negligence to this order because it was an open and obvious 

condition, and he had previously discussed the guarding requirements with Bradshaw. (Tr. 

221:20 – 222:20) A reasonably prudent person familiar with the mining industry would have 

guarded the return roller here. Stone Plus knew of the violative condition and failed to do 

anything to comply with the guarding regulation. This constitutes high negligence. 

Gravity 

Unguarded return rollers have caused fatalities before. (Tr. 220:14 - 221:2) If a loose 

article of clothing or a hand were to come into contact with a return roller, the rotary motion of 

the roller combined with the belt traveling over it could entangle a miner or his clothing. (Tr. 

217:3-21) A miner’s entangled clothing could cause suffocation or strangulation, or it could pull 

a part or all of his body into the machinery. (Tr. 217:3-21; Tr. 221:3-12) Polgar believed that one 

person would potentially be affected because the prospect of more than one person getting 

caught in the rollers is very remote. (Tr. 221:13-18) 

Significant and Substantial 

The first and fourth prongs of the Mathies test have been met. The lack of return roller 

guard created a discrete entanglement hazard which could result in serious injury. The remaining 

question is whether there was a reasonable likelihood that the hazard contributed to would result 

in an injury. 

The unguarded return roller was located next to a travelway used to access the screening 

plant controls. (Tr. 218:2-5) It is also close to a tool/grease storage area. The photographic 

38 FMSHRC Page 698
evidence shows a grease gun and a bucket of tools below the unguarded return roller. (Tr. 218:25 

– 219:8; Tr. 278: 25 – 279:6; Ex. S-8C, 8K, 9D) It is feasible that a miner could reach into the

danger area to get the grease gun or tools -- only 30 inches from the return roller. (Tr. 219:9-21)

And, if the machine were running, his hand could get caught in the unguarded return roller.

Polgar considered this violation reasonably likely to cause a fatality and S&S. Any miner 

reaching for the bucket of tools or the grease gun would be exposed to the unguarded roller. (Tr. 

220:18 – 221:2) There is a reasonably likelihood that this could result in a serious injury. The 

S&S designation was warranted. 

Unwarrantable Failure 

Polgar testified that the lack of guarding at the return roller was an obvious violation, 

particularly in light of the fact that there never had been a guard over the return roller. (Tr. 223:4-

5; Tr. 220:7-13) This hazard poses a high degree of danger. An entanglement could result in 

serious injury or death. (Tr. 223:6-11) Bradshaw was on site daily, participating in every facet of 

mining operations. (Tr. 222:24 – 223:3) He knew the return roller should have been guarded 

since at least May, and was on site to know that there was no guarding in place. (Tr. 223:12-18) 

Bradshaw acted with intentional misconduct. No effort made to ameliorate the violation. (Tr. 

222:21-23) 

The Secretary proved by a preponderance of the evidence that Stone Plus engaged in 

aggravated conduct, and that its failure to provide guarding for the return roller constituted an 

unwarrantable failure. 

Penalty 

The Secretary assessed a $2,000.00 penalty for this violation, the minimum penalty 

allowed under 30 U.S.C. § 820(a)(3)(A). This penalty amount will not affect the operator’s 

ability to continue in business. I concur with the Secretary and assess a penalty of $2,000.00. 

Order No. 8593608 

Inspector Polgar issued Order No. 8593608 to Stone Plus at its Portable #1 mine on 

August 14, 2012, alleging a violation of 30 C.F.R. § 56.14107(a) pursuant to Section 105(d)(1) 

of the Mine Act. The regulation states that “[m]oving machine parts shall be guarded to protect 

persons from contacting gears, sprockets, chains, drive, head, tail, and takeup pulleys, flywheels, 

couplings, shafts, fan blades, and similar moving parts that can cause injury.” 30 C.F.R. § 

56.14107(a). Section 56.14107(a) is a mandatory safety standard. The order alleges: 

The flywheel on the idle side of the Jaw crusher was not provided 

with a guard as required to prevent persons from contacting 

moving machine parts. The flywheel was 5 foot 9 inches above a 

travelway and approx. 48 inches in diameter. Should a miner come 

into contact with a rotating machine part, such as a flywheel, 

permanently disabling blunt force trauma/laceration injury would 

38 FMSHRC Page 699
be expected. Mine operator Neil Bradshaw engaged in aggravated 

conduct constituting more than ordinary negligence in that he was 

aware of the violative condition and made no attempt to correct the 

hazardous condition. This violation is an unwarrantable failure to 

comply with a mandatory standard. Standard 56.14107a was cited 

1 time in two years at mine 4202587 (1 to the mine, 0 to a 

contractor). 

Ex. S-20 

Violation 

Order No. 8593608 alleges that an injury was reasonably likely; it could reasonably result 

in permanently disabling injuries; it was significant and substantial; the negligence level was 

high; and, one person was potentially affected. Id. The flywheel24 on the jaw crusher was 

unguarded and situated five feet and nine inches above the ground. (Tr. 225:11-25; Ex. S-20E, 

8Q, 9O, 9P) Bradshaw admitted that there was no guard in place and explained that a permanent 

guard was being made. (Tr. 848:1-7) 

There were discharge material piles below the crusher, made by Bradshaw on August 11, 

2012. (Tr. 433:23 -434:7; Tr. 910:16-21; Tr. 912:20-24) There is no question that the crusher had 

been operated with an unguarded flywheel. Thus, Stone Plus violated Section 56.14107(a). 

Negligence 

The violation involved high negligence because in May, Polgar and Tromble spoke with 

Bradshaw about the flywheel on the jaw crusher specifically. (Tr. 234:5 -235:17) At that time, 

they measured the distance from the ground to the flywheel and determined that it needed to be 

guarded. Id. They also advised Bradshaw that if the machine was moved, which it was, the 

height above ground level would have to be measured again, and the flywheel would have to be 

guarded if it was below the minimum height. Id. Polgar and Tromble both informed Bradshaw of 

the guarding requirement. (Tr. 236:4-8) A reasonably prudent person familiar with the mining 

industry would have guarded the flywheel. It is clear that Stone Plus knew of the violative 

condition, failed to comply with the regulation, and was therefore highly negligent. 

Gravity 

If a miner were to come in contact with the inside part of the flywheel, serious injuries 

such as amputations or blunt force trauma could occur. (Tr. 233:13-24) Lacerations were also 

likely if a miner even touched the outside of the moving flywheel. Id. Polgar believed one person 

would be potentially affected. (Tr. 233:25 – 234:4) I agree and find accordingly. 

24 The purpose of the flywheel is to provide momentum or inertia for the jaw crusher. 

When the jaw crusher is in operation, the flywheel turns continuously. (Tr. 226:21-23; Tr. 232:6-

9)

38 FMSHRC Page 700
Significant and Substantial 

The first and fourth prongs of the Mathies test have been satisfied. The lack of flywheel 

guard created a discrete safety hazard of blunt force trauma. The remaining question is whether 

there was a reasonable likelihood that the hazard would result in an injury. 

The flywheel was located directly above a well-worn path consisting of unconsolidated 

and rocky material. (Tr. 229:8-17; Ex. S-8R, 8S, 9Q) If a miner were to lose his footing walking 

near the unguarded flywheel, and reach for something to steady himself, a serious injury could 

occur. Id. If a miner were to trip, he could also hit his head on the flywheel. Id. 

The citation alleged that it was reasonably likely that a permanently disabling injury 

would occur. This S&S requirement arises from the proximity of the flywheel to the travelway, 

the shortest path between the jaw crusher and the loader or the screening plant. (Tr. 232:11-24) 

This proximity increases the likelihood that miners would walk near the unguarded flywheel. 

Bradshaw testified that he did not operate the crusher without the flywheel guard, (Tr. 

847:7-9), but I give this assertion no credibility. The S&S designation was warranted. 

Unwarrantable Failure 

Despite having the fact of the missing flywheel guard and its danger brought to his 

attention in May (Tr. 235:19-25; Tr. 236:1-2), Bradshaw did nothing to come into compliance. 

This violation was obvious. Moreover, there was a machine component called a “shiv” on the 

opposite side of the crusher, which looked essentially the same as the flywheel. It was guarded. 

(Tr. 236:18-22) An unguarded flywheel next to a travelway poses a high degree of danger. (Tr. 

236:25 - 237:1) Bradshaw was at the previous inspection, was on site operating every day the 

plant was open, and was well aware of the violative condition. (Tr. 236:12-17; Tr. 237:4-7) 

Stone Plus engaged in intentional misconduct. There was no effort made to ameliorate the 

violation. (Tr. 236:9-11) 

The Secretary proved by a preponderance of the evidence that Stone Plus engaged in 

aggravated conduct which constituted an unwarrantable failure to comply with the regulation. 

Penalty 

The Secretary assessed the penalty for this citation at $2,000.00, the minimum penalty 

under 30 U.S.C. § 820(a)(3)(A). The penalty will not affect the operator’s ability to continue in 

business. The recommended $2,000.00 penalty is affirmed. 

Order No. 8593610 

Inspector Polgar issued Order No. 8593610 to Stone Plus at its Portable #1 mine on 

August 14, 2012, alleging a violation of 30 C.F.R. § 56.14107(a) pursuant to Section 105(d)(1) 

of the Mine Act. The regulation states that “[m]oving machine parts shall be guarded to protect 

persons from contacting gears, sprockets, chains, drive, head, tail, and takeup pulleys, flywheels, 

38 FMSHRC Page 701
couplings, shafts, fan blades, and similar moving parts that can cause injury.” 30 C.F.R. § 

56.14107(a). Section 56.14107(a) is a mandatory safety standard. The order alleges: 

The return rollers (2) on the 46 inch wide Jaw discharge conveyor 

were not guarded as required to prevent persons from contacting

moving machine parts. The bottom roller was 29 inches 

(measured) AGL and adjacent to a travelway used on an as needed

basis. The unguarded rollers were open and obvious upon 

inspection. Should a miner come into contact with an unguarded,

rotating roller entanglement/suffocation injuries would be 

expected. Mine operator Neil Bradshaw engaged in aggravated 

conduct constituting more than ordinary negligence in that he was 

aware of the standards regarding return roller guards and made no 

attempt to correct the violative condition. The violation is an

unwarrantable failure to comply with a mandatory standard. 

Standard 56.14107a was cited 2 times in two years at mine 

4202587 (2 to the operator, 0 to a contractor). 

Ex. S-21

Violation 

Order No. 8593610 was part of the hazardous condition complaint inspection. (Tr. 

243:10-17) The order alleges that an injury was reasonably likely; it could reasonably be fatal; 

the violation was significant and substantial; the negligence level was high; and, one person was 

potentially affected. (Ex. S-21) This order pertains to return rollers on the crusher (the jaw), 

whereas the order discussed above pertains to the return rollers on the screening plant. (Tr. 

239:12-17) Here, there were two unguarded rollers,25 and the roller cited in the order was the 

lower of the two, at 29 inches above ground level. (Tr. 239:18-21; Ex. S-8U, 8V) Polgar and 

Tromble believed the machine was beyond the set-up leveling stage and had already been used in 

production. (Tr. 251:20-23; Tr. 252:5-7; Ex. S-8U) 

Bradshaw claimed that there were plywood guards covering the rollers on August 11, 

2012, when he used the equipment, which were removed at the end of the day. (Tr. 927:25 -

928:20) However, during Bradshaw's deposition, he testified that the plywood in question had 

never been on the machine, it was located on the ground near the machine, and he only used 

some of the plywood around the bottom of the machine to prevent rocks from going under it. (Tr. 

932:19 – 933:23; Tr. 936:6-10) Polgar agreed that the plywood was there only to keep rocks 

from rolling under the conveyor. (Tr. 241:24 – 242:4) Additionally, the plywood depicted in the 

photo exhibit (S-8U) does not satisfy the regulation requirement because it does not prevent a 

person from contacting the roller. (Tr. 241:13-23) I conclude that Stone Plus violated Section 

56.14107(a). 

25 Polgar testified that if there are two violations of the same standard on the same piece 

of equipment, MSHA doesn't issue those citations individually. (Tr. 240:5-8) 

38 FMSHRC Page 702
Negligence 

Order No. 8593610 was assigned high negligence because it was an open and obvious 

condition, Polgar and Bradshaw spoke extensively about guarding in the previous inspection in 

May, and Bradshaw was aware of the guarding requirements. (Tr. 246:22 – 247:3) Indeed, 

despite discussing the guarding requirements, Polgar found no evidence that the rollers had ever 

been guarded. (Tr. 247 5-15) There were no guard brackets on the machinery until the order was 

abated. Id. 

A reasonably prudent person familiar with the mining industry would have guarded the 

return rollers here. Stone Plus knew of the violative condition and failed to install appropriate 

guarding. This constitutes high negligence. 

Gravity 

Polgar testified about a likely scenario. It is reasonably likely that a miner’s shovel being 

used to clean up the area near the unguarded return roller could get caught in the return roller. 

The miner could be pulled into contact with the roller, which Polgar testified, has happened 

before. (Tr. 245:22 – 246:3) Also, if a piece of clothing or a hand were to get caught in the roller, 

it could lead to serious entanglement or suffocation injuries. (Tr. 238:14-23; Tr. 243:22 − 244: 4) 

It is reasonable that one person could be affected, as alleged. 

Significant and Substantial 

The first and fourth prongs of the Mathies test have been met. The missing return roller 

guard posed a discrete safety hazard of entanglement and resulting injuries. The remaining 

question is whether there was a reasonable likelihood that the hazard would result in an injury. 

Crushers and screen decks spill a lot of material during operation, so a miner would 

frequently be in the area near the unguarded rollers to shovel the spillage. (Tr. 240:9-18) 

Additionally, the lower unguarded roller was about six feet from the jaw crusher controls. An 

operator would have to pass by the unguarded roller to get to them. (Tr. 240:23 – 241:1; Tr. 

252:8-10) It is reasonably likely that a miner could come into contact with the roller while 

checking on the equipment, cleaning up spillage, operating the controls adjacent to the roller, or 

merely walking next to the equipment. (Tr. 244:9-23) Such a hazard is, in turn, reasonably likely 

to result in a serious injury. The S&S designation was warranted here. 

Unwarrantable Failure 

Polgar found no evidence that the roller had ever been guarded. To abate the order, 

guarding brackets had to be welded onto the machine. (Tr. 247:5-15) The equipment had not 

changed since May. Id. The condition was extensive -- there were two rollers on the same 

conveyor belt, and neither of them had any guarding since at least May. (Tr. 249:4-7) This was 

an open and obvious condition that anyone could see. (Tr. 249:19 – 250:3) The violation created 

a high degree of danger. Accidents involving unguarded return rollers have resulted in fatalities 

in the past. Here, there danger was high. There were two exposed return rollers on a single 

38 FMSHRC Page 703
conveyor belt located next to a travelway. (Tr. 250:6-12) Like the previous unguarded roller 

citation, Bradshaw was on notice since the previous inspection in May. (Tr. 222:24 – 223: 18; Tr. 

249:8-15) Bradshaw was regularly on site, participating in every facet of mining. He knew the 

rollers should have been guarded and were not. (Tr. 250:15-18) Bradshaw acted with intentional 

misconduct. No effort was made to ameliorate the violation. (Tr. 249:16-18) 

The Secretary proved by a preponderance of the evidence that Stone Plus engaged in 

aggravated conduct. The unwarrantable failure designation was justified. 

Penalty 

The Secretary assessed the penalty for this citation at $2,000.00, the minimum penalty 

under 30 U.S.C. § 820(a)(3)(A). Stone Plus was highly negligent, and the violation was S&S. 

This penalty will not affect the operator’s ability to continue in business. I assess a penalty of 

$2,000.00, as recommended. 

Order No. 8593616 

Inspector Polgar issued Order No. 8593616 to Stone Plus at its Portable #1 mine on 

August 16, 2012, alleging a violation of 30 C.F.R. § 56.18002(a) pursuant to Section 105(d)(1) 

of the Mine Act. The regulation states that “[a] competent person designated by the operator 

shall examine each working place at least once each shift for conditions which may adversely 

affect safety or health. The operator shall promptly initiate appropriate action to correct such 

conditions.” 30 C.F.R. § 18002(a). Section 56.18002(a) is a mandatory safety standard. The 

order alleges: 

The mine operator failed to ensure that a daily work place exam

was being conducted to correctly identify the hazards.. [sic.] The 

number of hazards observed and the severity of those hazards, as 

well as the operators own admission indicate that no exam what so 

ever [sic.] was being done. The failure to ensure workplace exams 

are being conducted can lead to serious[,] if not fatal[,] injuries. 

Neil Bradshaw, mine operator, engaged in conduct constituting 

more than ordinary negligence in that he was aware of the 

requirement to conduct daily work place exams and he did not 

ensure the exams were being conducted. This is an unwarrantable

failure to comply with a mandatory safety standard. [...] 

Ex. S-22 

Violation 

The order alleges a reasonably likely injury; the injury could reasonably be fatal; the 

violation was significant and substantial; the negligence level was high; and, one person was 

potentially affected. Id. The mine operator is responsible for ensuring that an examination of 

each working area around the mine was completed on a daily basis. Given the number of 

38 FMSHRC Page 704
violations identified by Polgar and Tromble during their inspection, it was obvious to Polgar that 

workplace examinations were not being conducted. (Tr. 260:19-24) All of the violations 

discussed above could have been identified in an competent workplace examination. (Tr. 261:3-

10) 

Significantly, Bradshaw admitted he had not conducted workplace examinations. (Tr. 

261:22 – 262:5; Ex. S-6Y) This is underscored by that fact that he did not have any workplace 

examination records. (Tr. 263:10-14) For context, Bradshaw admitted that during a three month 

period, he ran the crusher five to seven days total. However, even if he was merely setting up 

equipment, which I determined he was not, he still had to perform a workplace exam. (Tr. 524:6-

8; Tr. 873:25 – 874:3) Stone Plus violated Section 56.18002(a). 

Negligence 

During the May examination, Bradshaw was given an operations checklist, which 

apparently languished in his briefcase until Polgar’s and Tromble’s inspection. The requirement 

to perform preoperational examinations was on the list. (Tr. 264:10 – 265:8; Ex. S-8Z) Polgar 

assigned this order high negligence because he felt it was the operator’s responsibility to ensure 

that workplace examinations are being done, Bradshaw acknowledged that he should have been 

performing the exams, yet he admitted he had never done a single one. (Tr. 267:11-21) A 

reasonably prudent person familiar with the mining industry would have known to conduct a 

workplace examination each shift. Stone Plus knew of its obligation to perform workplace exams 

yet failed to do them. This constitutes high negligence. 

Gravity 

Polgar testified that this order’s fatal designation was due in part to the other citations 

that were issued. He alleged that one person would be affected based on there rarely being more 

than one person working the equipment at the mine site. (Tr. 266:19 – 267:10) 

Significant and Substantial 

The first and fourth prongs of the Mathies test have been met. The lack of preoperational 

examinations created a measure of danger to safety, which arose with each failure to conduct the 

exams. Failure to conduct a workplace exam increases the likelihood that an injury causing event 

will occur. The remaining question is whether there was a reasonable likelihood that the hazard 

would result in an injury. 

Polgar believed this violation was reasonably likely to cause fatal injuries and rated it as 

S&S, based on the other citations he issued. (Tr. 265:24 – 266:17) The failure to identify and 

correct potential hazards (such as those identified above), which could have been identified had 

examinations been conducted, resulted in a reasonable likelihood of serious injury. Id. Bradshaw 

was aware of the hazards daily while working at the mine site. Id. The S&S designation was 

warranted. 

38 FMSHRC Page 705
Unwarrantable Failure 

There is a one year document retention requirement under this standard. Bradshaw had no 

records of any exams performed. The violation existed for an extended period of time. (Tr. 

267:25 – 268:10) The failure to conduct workplace exams was extensive and obvious. The 

failure to maintain records for such examinations is to be expected if the examinations are simply 

not being done. (Tr. 268:11-18; Tr. 270:12-13) There was a high degree of danger associated 

with Bradshaw’s failure to conduct or document workplace examinations. All of the violations 

discussed above would have been found if an examination had been competently and honestly 

done. (Tr. 270:14-22) practices cited posed a high degree of danger. During the May inspection, 

Bradshaw was given the checklist discussed above. He was aware of the workplace examination 

requirement. (Tr. 268:22 – 269:4) Bradshaw wrote on the checklist that a workplace examination 

was required “on the days that we work.” (Tr. 270:23 – 271:5; Ex. S-8Z) Bradshaw acted with 

intentional misconduct. There was no effort made to ameliorate the violation. (Tr. 269:6-8) 

The Secretary proved by a preponderance of the evidence that Stone Plus engaged in 

aggravated conduct constituting of more than ordinary negligence. This violation was the result 

of an unwarrantable failure to comply with the regulation. 

Penalty 

The Secretary assessed the minimum penalty of $2,000.00. As noted above, Stone Plus 

was highly negligent and the violation was S&S. This penalty will not affect the operator’s 

ability to continue in business. I assess a penalty of $2,000.00, as recommended by the Secretary. 

WHEREFORE, it is ORDERED that Stone Plus pay a penalty of $28,000.00 within thirty (30) 

days of the filing of this decision. 

/s/ L. Zane Gill 

L. Zane Gill

Administrative Law Judge

Distribution: 

Brian Kaufman, Esq., U.S. Dept. of Labor, Office of the Solicitor, 1244 Speer Blvd., Suite 515, 

Denver, CO 80204-3516 

Keen Ellsworth, Esq., Ellsworth & Associates, Ltd.,777 N. Rainbow Blvd., Suite 270, Las 

Vegas, NV 89107 

38 FMSHRC Page 706
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 

April 6, 2016 

DECISION AND ORDER UPON REMAND

Before: Judge Moran 

This matter is before the Court upon remand from the Commission for the purpose of 

“assess[ing] an appropriate civil penalty.” Oak Grove Resources, LLC, 37 FMSHRC 2687, 2687 

(Dec. 2015). Three Commissioners formed the majority, and two Commissioners dissented, on 

different grounds. As the Commission majority recounted in its December 9, 2015, Decision, this 

matter has a relatively long litigation history. Initially, this Court vacated the citation upon 

finding that the safeguard was not validly issued. The Commission reversed that determination, 

concluding that the safeguard was valid and remanding it to the Court. Upon such remand the 

Court found that the safeguard had been violated and that the violation was significant and 

substantial (“S&S”). This too was appealed, with the Commission affirming the finding of 

violation, but reversing the Court’s S&S determination and, as noted, sending it back for the 

assessment of the civil penalty. 

In its Decision, the Commission majority, after noting the safeguard procedure — which 

begins with the issuance of a safeguard and, if there is thereafter a failure to comply with such 

safeguard, the issuance of a citation — then recounted the facts and procedural background. Id.

at 2688-90.

OAK GROVE RESOURCES, LLC, 

 Contestant, 

v. 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Respondent. 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner, 

v. 

OAK GROVE RESOURCES, LLC, 

 Respondent. 

CONTEST PROCEEDING 

Docket No. SE 2009-261-R 

Citation No. 7696616; 1/8/2009 

Mine: Oak Grove 

Mine ID: 01-00851 

CIVIL PENALTY PROCEEDING 

Docket No. SE 2009-487 

A.C. No. 01-00851-180940

Mine: Oak Grove 

38 FMSHRC Page 707
Everything associated with this case began with the issuance of the notice to provide 

safeguard. Issued to Oak Grove on March 3, 1986, it was instituted upon finding that 

[t]he No. 902 battery powered locomotive was being used to push two loaded

supply cars consisting of a car of timber and a car of roof bolts down the graded

haulage supply mine track entry of the main south area of the mine, near the

intersection of the No. 7 and No. 14 section switch and the No. 10 and the No. 5

section switch. Such area is approximately 2100 feet from the main bottom area

of the mine and approximately 3600 feet from the No. 7 section and the No. 10

sections, respectively.

Id. at 2689 (quoting Gov’t Ex. 2 (Safeguard No. 2604892)). 

Having observed that practice, a locomotive pushing supply cars down a track entry, the 

safeguard notice proscribed it, stating: 

This notice to provide safeguard requires that cars on main haulage roads not 

be pushed except where necessary to push cars from the side tracks located near 

the working section to the producing entries and rooms. 

Id. (emphasis added). 

Accordingly, save the one exception, where it is “necessary to push cars from the 

side tracks located near the working section to the producing entries and rooms,” per the 

safeguard notice, cars at the Oak Grove mine were no longer to be pushed. 

Unfortunately, on May 22, 2008, a car was being pushed and a fatal accident 

occurred at the mine 

when a motorman was crushed between a derailed haulage car and the locomotive 

he had been operating. The haulage car was being pushed on the main haulage 

road. The victim would not have been exposed to the pinch point between the 

locomotive and the haulage car if the car was being pulled instead of pushed 

on the main haul road.

Id. (quoting Gov’t Ex. 3 (Citation No. 7696616)) (emphasis added). 

In the Commission majority’s recounting of the facts it noted the following concerning 

the fatal accident: 

Oak Grove was in the process of transporting the body of a shearing machine to 

the mine’s longwall face. The 24-ton body was placed on a “shearer carrier,” a 

haulage car specifically designed for the task. Tandem locomotives led the

shearer carrier, while a second set of tandem locomotives pushed the shearer 

carrier down the main haulage road. 

Motor No. 8 led the procession. Connected to its rear by a coupling device 

was Motor No. 3, establishing a rigid connection. Motor No. 3 was then 

38 FMSHRC Page 708
connected to the shearer carrier by a one inch diameter, flexible, wire rope. The 

shearer carrier was in turn connected to Motor No. 4 by a solid drawbar. Finally, 

Motor No. 4 was connected to Motor No. 9 by a coupling device, establishing a 

rigid connection. The wire rope connection between Motor No. 3 and the shearer 

was the only connection that was not rigid. 

As the lead motors ascended an incline in the mine floor, the shearer 

carrier derailed. It was the fifth time the carrier had derailed during that trip. 

The operator of Motor No. 3, miner Lee Graham, exited his motor and walked 

over to examine the derailed carrier. Graham was standing on the tracks, downhill 

from Motors No. 3 and No. 8, when the motors rolled down the grade, pinning 

him against the carrier and inflicting the fatal injuries. 

Id. at 2688-89 (emphasis added) (footnotes omitted) (citation omitted). 

Two footnotes, referencing additional facts, were noted by the Commission. They 

provided: 

Motors No. 4 and No. 9, the pushing motors, generated most of the 

force to move the carrier. Tr. 99, 104. The wire rope connecting Motor No. 3 to 

the shearer carrier behind it “was [used to] help pull the equipment” Tr. 104. It 

was also used “to help guide the carrier, particularly around curves, and to prevent 

derailments by using tension.” Gov’t Ex. 4 at 4; see also Tr. 44. The rope was 

used to pull the carrier back into position on the rails following a derailment. 

Gov’t Ex. 4, at 6; Tr. 106-07. 

. . . . 

The brakes had not been set on either of the lead motors. 33 FMSHRC at 

850; Tr. 57-58; Gov’t Ex. 8. According to MSHA’s Report of Investigation, postaccident tests “revealed that the motors would not move if either the service 

brakes or the park brakes on either motor were engaged.” Gov’t Ex. 4, at 8. 

Id. at 2688 n.2, 2689 n.3 (alteration in original) (emphasis added). 

In its earlier decision, this Court expressed the facts somewhat differently, stating: 

Oak Grove was attempting to transport the shearer body using two tandem 

locomotives: Motors No. 3 and No. 8, to pull the shearer carrier and Motors No. 4 

and 9 to push the shearer carrier. Therefore in terms of their destination to the 

longwall, Motors No. 3 and 8, since they were pulling, were leading and Motors 

No. 4 and 9 were following the procession. Each pair of locomotives was 

connected to one another by a coupling. For the two coupled motors pulling the 

shearer body, No. 8 was in the lead, and connected to No. 3. The No. 3 itself was 

connected to the shearer body by a one inch diameter, flexible, wire rope. Thus, 

unlike the relatively rigid connection between the motors, through a 

coupling, the connection for the pulling locomotives, utilizing a wire rope to 

the shearer carrier was anything but rigid. Miner Graham was operating the 

No. 3 motor. In contrast to the wire rope arrangement connecting the pulling 

38 FMSHRC Page 709
motors to the shearer carrier, the [prohibited] pushing motors were connected to 

the shearer carrier by a solid drawbar. 

To recap, if one were standing alongside the transporting effort at the time, 

such individual would have observed, beginning at the front, [permitted] pulling 

end, the No. 8 motor, which was connected to the No. 3 motor via a coupling and 

then the No. 3 motor connected to the shearer carrier by the wire rope. Next 

would be the shearer carrier itself and on the [prohibited] pushing end, a 

connection from it, by means of a solid drawbar, to the No. 4 motor. Finally, the 

No. 9 motor was connected to the No. 4 motor via a coupling in the same fashion 

as the link between the No. 3 and the No. 8. . . . 

To understand how the fatality occurred, picture the procession moving 

towards its destination, as described, and reaching an upgrade. Slack then 

developed in the wire rope connection and the consequence was a derailment 

of the shearer carrier. Examining the situation, the victim unwittingly placed 

himself in a dangerous position, standing in the middle of the track, between 

his locomotive and the derailed shearer carrier. It was then that the coupled 

motors, Nos. 3 and 8 either slid or rolled downhill with Mr.Graham 

becoming fatally pinned between those motors and the shearer carrier. 

Oak Grove Res., LLC, 33 FMSHRC 846, 847-48 (Mar. 2011) (ALJ) (emphasis added). 

The point, which this Court regrets that it failed to adequately express, is that the 

victim would not have been pinned between the Nos. 3 and 8 motors had there been a 

rigid connection between those motors and the shearer carrier. Had there been a solid bar 

connecting the shearer carrier to the No. 3 motor, there would have only been pulling. 

Instead there was the prohibited pushing coming from the Nos. 4 and 9 motors, with the 

additional problem of the weak link, the non-rigid wire connection between the shearer 

carrier and the No. 3 motor. 

I. The Majority’s Analysis of the Significant and Substantial Issue1

As the Commission noted in its decision,

[a] violation is S&S if, based on the particular facts surrounding the violation,

there exists a reasonable likelihood that the hazard contributed to by the violation

will result in an injury or illness of a reasonably serious nature. See Cement Div.,

1

 The majority’s analysis and the dissent of Commissioner Cohen is recounted because 

the Court believes that a decision, issued by the Fourth Circuit in Knox Creek Coal Corp. v. 

Secretary of Labor, 811 F.3d 148 (4th Cir. 2016), after the Commission majority’s December 9, 

2015, decision here, may impact the decision. While the Court fully understands and adheres to 

its duty to follow the majority’s direction that it is to “assess an appropriate civil penalty,” in 

light of the Knox Creek decision, it takes the opportunity to more completely explain its rationale 

for upholding its earlier, but now rejected, S&S determination. 

38 FMSHRC Page 710
Nat’l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). In Mathies Coal Co., 6 

FMSHRC 1, 3-4 (Jan. 1984), the Commission further explained: 

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

is significant and substantial under National Gypsum, the Secretary 

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

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

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

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

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

a reasonably serious nature. 

Oak Grove Res., 37 FMSHRC at 2691-92 (citing Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 

135 (7th Cir. 1995); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103 (5th Cir. 1988) 

(approving Mathies criteria)). 

The majority then examined this Court’s analysis of the S&S issue. Having agreed that 

there was a violation, the majority had no issue that the first element or “prong” of Mathies had 

been satisfied. Id. at 2692. However, it concluded that neither the second nor third prongs of the 

Mathies test were proved by the Secretary. 

As to the second Mathies element, that “a discrete safety hazard - that is, a measure of 

danger to safety - was contributed to by the violation,” the majority found that substantial 

evidence did not support the Court’s finding that the second Mathies element was met. In this 

regard, they noted the Court’s conclusion that the Secretary established three discrete hazards 

attendant to the practice of pushing cars. Those identified hazards were that, by the pushing the 

shearer carrier, that practice contributed to diminished visibility, the creation of a pinch point, 

and the lack of positive control. Id. 

The Commission majority concluded that substantial evidence did not support a finding 

that the violation, that is pushing the shearer carrier, though in contravention of the notice to 

provide safeguard, contributed to diminished visibility, the creation of a pinch point, or lack of 

positive control.2 Id. The majority then analyzed the identified hazards, beginning with decreased 

visibility. For this, the Commission expressed that the “record reflects that decreased visibility 

was not an issue in the circumstances presented by this case as a miner was operating a motor at 

the head of the convoy, and was therefore in front of the pushing motors.” Id. Lee Graham, the 

deceased miner, was operating the No. 3 Motor (the second car in the procession), and Oak 

Grove’s assistant general mine foreman/day-shift foreman was riding on Motor No. 4 (the fourth 

2

 At least in terms of the S&S analysis, it seems fair to state that the majority viewed the 

events that resulted in the fatality and the failure to comply with the safeguard as coincidental, 

and therefore that the reasonable likelihood assessments were not tied to the safeguard violation. 

38 FMSHRC Page 711
car). Tr. 98-100.3

 Thus, the majority concluded that substantial evidence did not support a 

finding that the pushing violation contributed to the hazard of decreased visibility. 37 FMSHRC 

at 2693. 

Regarding the second identified hazard, the creation of a pinch point, the majority 

similarly concluded that there was “not substantial evidence in the record to support the finding 

that pushing the cars contributed to the hazard of a pinch point.” Id. The majority states that “the 

inspector did not articulate how pushing the shearer carrier contributed to this specific hazard, as 

required by element two of Mathies.” Id. Instead, the inspector “testified that the use of a wire 

rope contributed to the hazard of a pinch point [and that the] pinch point was created by the use 

of wire rope to connect Motor No. 3 and the shearer carrier.” Id. To remedy the hazard, the 

inspector testified that the mine operator should “‘use a drawbar or tongue [as] the rigid 

connection between the shearer carrier and the motor and pull it[,]’ [and the majority noted that 

i]n fact, after the accident at the mine, a drawbar was attached in place of the wire rope, and Oak

Grove then continued to move [that is to say, to pull] the shearer carrier to the longwall face.” Id.

(first alteration in original) (citation omitted) (quoting Tr. 44).

Speaking to the third hazard, the loss of positive control, the majority stated that “[t]he 

evidence in this case demonstrates that pushing the shearer carrier did not contribute to the 

hazard of a loss of positive control of the car [and there was no] evidence that pushing caused the 

derailment.” Id. They noted that there was “no testimony regarding the likelihood of derailment 

when pushing a carrier as opposed to pulling the carrier [and that] the inspector never stated that 

the lack of control increased the probability of a derailment.”4 Id. Rather, he testified that the 

3

 The majority notes, with implicit approval, the point made by counsel for Oak Grove 

contending that “the whole theory that you are sitting behind the supply cars and not being able 

to see up ahead doesn’t apply because you actually have somebody up ahead.” 37 FMSHRC at 

2692 (quoting Oral Arg. Tr. 11). 

4

 The majority did not agree with Commissioner Cohen’s view that the safeguard 

violation contributed to the hazard of a loss of positive control. From their perspective, 

Commissioner Cohen’s support “relies solely on one page of transcript testimony wherein the 

inspector stated that by pushing the cars, a miner cannot maintain good positive control of the 

loads.” 37 FMSHRC at 2693. The majority concluded that when the inspector made that 

statement he did so “in the context of his general explanation of the hazards addressed by the 

safeguard [and] he intertwined the hazard of poor visibility (which, [the majority] explained, did 

not apply in this case) with the loss of positive control.” Id. The majority noted that 

[t]he inspector testified that “if you’re pushing a load and it derails, since

your visibility is obstructed, a lot of times you don’t know that it’s derailed until 

you’ve pushed it on farther. You don’t have as good control . . . . If you’re pulling 

a load, you can see if it derails and you know to stop immediately. And the 

severity of the accident would be lessened.” 

Id. (quoting Tr. 43). While the majority recognized that the Secretary contended that pushing the 

cars is more dangerous than pulling them, it added that part of the associated danger identified by 

(continued...) 

38 FMSHRC Page 712
derailment occurred “because there was slack in the wire rope between the #3 motor and the 

shearer carrier.” Tr. 60. Noting that the Secretary conceded that material on the mine floor most 

likely caused the shearer carrier to derail, the majority concluded that substantial evidence did 

not support a finding that the violation of the pushing safeguard contributed to the hazards 

identified by the Secretary, and therefore that the second Mathies prong was not met.5

 37 

FMSHRC at 2963-94. 

The Commission majority also determined that the Secretary “failed to meet his burden 

in proving element three of Mathies,” because, apart from the death of the motor operator, the 

Secretary “did not provide evidence of the likelihood of injuries from any of the alleged hazards 

created by pushing cars in the context of continued normal mining operations.” Id. at 2694. In 

relying “entirely on the occurrence of the accident at issue, [the Secretary] produc[ed] no 

testimony demonstrating that hazards he identified (poor visibility, creation of pinchpoints, and 

lack of positive control), would have been reasonably likely to cause injury if normal mining 

operations had continued. Id. 

As noted, two Commissioners dissented, one, Commissioner Young, on the basis that the 

safeguard was not violated, while the other, Commissioner Cohen, agreed with the majority that 

there was a violation of the safeguard, but he also reached the conclusion that the violation was 

S&S. Commissioner Cohen’s analysis began by noting that “[t]he Commission reviews a Judge’s 

factual determinations under the Mathies test in accordance with the substantial evidence test,” 

37 FMSHRC at 2696 (Comm’r Cohen, concurring in part, dissenting in part), and that meeting 

that test means the presence of “such relevant evidence as a reasonable mind might accept as 

adequate to support [the judge’s] conclusion.” Id. (quoting Rochester & Pittsburgh Coal Co., 11 

FMSHRC 2159, 2163 (Nov. 1989)). Further, the Commission is not to second guess or substitute 

its view of the evidence, but rather “determine whether a . . . reasonable factfinder could have 

reached the conclusions actually reached by . . . the ALJ.” Id. (quoting Sec’y of Labor v. 

Keystone Coal Mining Corp., 151 F.3d 1096, 1104 (D.C. Cir. 1998)). Applying that standard of 

review, Commissioner Cohen then applied it to the Mathies test. Speaking to the second element 

under Mathies, requiring a showing that the violation contributed to a safety hazard, the 

Commissioner expressed that “the record contains substantial evidence to support the Judge’s 

4

 (...continued) 

the Secretary related to the need for visibility. Thus, they noted the Secretary’s statement that 

“because the load was being pushed, those who were propelling the load forward could not see 

the build-up.” Id. (quoting Oral Arg. Tr. 33) (emphasis added). 

5

 The majority determined that the record evidence identified “an independent cause of 

the fatality: the park and service brakes were not set on Motors No. 3 or No. 8 at the time of the 

accident.” 37 FMSHRC at 2694. 

38 FMSHRC Page 713
decision” that the violation contributed to the three distinct hazards identified by the Secretary.6

Id. 

6

 In support of his conclusion that substantial evidence supports the Court’s determination 

that pushing the motor decreased visibility, Commissioner Cohen stated: 

Common sense dictates that a 24-ton shearer carrier would obstruct the 

vision of a motor operator who was pushing the load along a graded haul road. In 

fact, the inspector testified that when a miner uses a motor to push rather than to 

pull a load it is “harder to see the track and the traffic in front of you.” Tr. 43. 

Notably, the inspector was testifying about the visibility of the miner who was 

actively engaged in pushing the shearer-carrier in violation of the safeguard. 

37 FMSHRC at 2696 (Comm’r Cohen, concurring in part, dissenting in part). Noting that “[t]he 

majority conclude[d] that it was not reasonable for the Judge to rely on the inspector’s testimony 

that pushing the carrier contributed to a visibility hazard,” he pointed out that 

the majority independently determine[d] that complete visibility of the 

track and traffic was not necessary for the miners operating the motors pushing 

the load. Citing oral argument by Oak Grove’s counsel, the majority concluded 

that the position of the two miners in front of the load rendered the visibility 

requirements of the pushing motor operators superfluous. 

Id. at 2696-97. This view “ignores the fact that when a load is being pushed, the power to move 

it comes from the pushing motors, while the two motors which Oak Grove placed in front of the 

load were used to guide the shearer carrier and to help prevent derailment of the carrier.” Id. at 

2697. In contrast, 

[w]hen a load is being pulled, the miner who operates the pulling motor

can see what is in front of him and react immediately if there is a problem with 

the track or traffic in front of the motor. Tr. 43. However, with the configuration 

used by Oak Grove, the miner operating the front motor could see a problem 

ahead (just as he would if he were operating a pulling motor), but would have to 

also communicate with the miner operating the pushing motor so that the miner 

operating the pushing motor could take effective action to avoid the problem. The 

necessity of communicating as well as seeing thus contributes to a hazard. 

37 FMSHRC at 2697 (Comm’r Cohen, concurring in part, dissenting in part). 

Regarding the hazard of the creation of a pinch point, Commissioner Cohen stated that 

the inspector did testify how pushing the load rather than pulling it 

contributed to the hazard of the creation of a pinch point. The inspector explained 

that when a load is pulled, there is a solid bar – a tongue or drawbar – between the 

motor and the car being pulled. However, with the configuration used by Oak 

(continued...) 

38 FMSHRC Page 714
Commissioner Cohen also spoke to the majority’s view that the record does not support 

the judge’s decision that it was reasonably likely that the hazards contributed to would result in a 

reasonably serious injury. See 37 FMSHRC at 2694. In this regard, he noted that “in reaching 

this conclusion, the majority restricted their analysis to the evidence relating to the derailment 

and the fatal accident which followed.” 37 FMSHRC at 2698 (Comm’r Cohen, concurring in 

part, dissenting in part). However, “he observed that it is well established that a Judge’s 

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

mining operations.”7 Id.

6

 (...continued) 

Grove, instead of a bar there was a wire rope connecting the car with the load and 

the motor in front of it. The wire rope was a component of the pushing 

configuration; it was connected to a forward motor to supply tension to the carrier 

which would help to prevent the shearer carrier from derailing while the carrier 

was being pushed, but in turn it created the hazard of a pinch point. 

Id. 

Addressing the hazard of loss of positive control, the Commissioner noted that the Court 

concluded, relying upon the “inspector’s testimony, that pushing heavy equipment decreases the 

amount of control the operator has over the load.” Id. He noted that “the inspector testified that 

pushing a car provides less control as compared to pulling the car,” and that the Commission has 

held that “[a]n inspector’s judgment is an important element in a S&S determination.” Id.

(emphasis added) (citing Mathies Coal Co., 6 FMSHRC 1, 5 (Jan. 1984)). Noting that “the 

particular facts surrounding the violation include the configuration of the motors and shearer 

carrier which Oak Grove used to move the shearer,” Commissioner Cohen concluded that “[t]he 

inspector’s testimony about how the pushing of the shearer carrier with that configuration 

contributed to discrete hazards provides substantial evidence in the record supporting the Judge’s 

finding as to Step 2 of Mathies.” Id. at 2698. 

7

 Citing U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 (Aug. 1985), the Commissioner 

noted that “[t]he evaluation is made in consideration of the length of time that the violative 

condition existed prior to the condition and time it would have existed if normal mining 

operations had continued.” 37 FMSHRC at 2698 (Comm’r Cohen, concurring in part, dissenting 

in part). Applying that approach, the Commissioner expressed his view that 

the record contains substantial evidence to support the conclusion that 

under continued normal mining operations it was reasonably likely that the 

hazards would contribute to a reasonably serious injury[, noting that] [i]t is 

undisputed that Oak Grove transports heavy equipment such as shearers, scoops, 

shields, and continuous miners on the haulage road a couple of times a year. 

Id. at 2699. Expressing his view that 

[t]he evidence supports the conclusion that a loss of visibility, or creation

(continued...) 

38 FMSHRC Page 715
II. The Fourth Circuit’s Opinion in Knox Creek

As in this case, an established violation was involved in Knox Creek Coal Corp. v.

Secretary of Labor, 811 F.3d 148 (4th Cir. 2016).

8

 This Court mentions the Fourth Circuit’s 

opinion because, as relevant here, that court held that the Commission should have applied the 

legal standard urged by the Secretary and, more particularly, because the decision addressed, in 

an extended the fashion, the application of the test for determining whether a violation is 

significant and substantial. 

That court noted with approval the long-established Mathies S&S test. Addressing the 

second prong, the discrete safety hazard — a measure of danger contributed to by the violation 

— the Fourth Circuit stated that prong addresses the likelihood that a given violation may cause 

harm. Id. at 162. In order to contribute to a discrete safety hazard, a violation must be at least 

somewhat likely to result in harm. Id. The court explained further that “the second prong of 

Mathies requires proof that the violation in question contributes to a ‘discrete safety hazard,’ 

which implicitly requires a showing that the violation is at least somewhat likely to result in 

harm.” Id. at 163. This means that insignificant violations will not be S&S, as they will not be 

“somewhat likely to result in harm.” Id. 

Consequently, in the Fourth Circuit’s view, the second prong of the test primarily 

accounts for the Commission’s concern with the likelihood that a given violation may cause 

harm. Likelihood is an assessment of probability. This follows because, for a violation to 

contribute to a discrete safety hazard, it must be at least somewhat likely, somewhat probable, to 

result in harm. 

Although, as explained above, the Fourth Circuit spoke to the showing needed to 

establish the second prong, its decision focused chiefly on the third prong of the S&S test — 

demonstrating a reasonable likelihood that the hazard contributed to by the violation will result 

in an injury to a miner. In Knox Creek, the administrative law judge below had held that the third 

prong was not established because the likelihood of a triggering arc or spark inside the electrical 

equipment enclosures had not been established by the Secretary. Id. at 154. In contrast, the 

Secretary asserted that the presence of arcing and sparking within the enclosure should be 

7

 (...continued) 

of a pinch point, or a loss of control that occurs during the move of a 24-ton piece 

of equipment (or equivalent) on a graded haulage road would be reasonably likely 

to result in a reasonably serious injury[, and that] the third step under Mathies

only requires a Judge to determine whether, if a discrete hazard occurs (regardless 

of likelihood), it is reasonably likely that a reasonably serious injury would result. 

Id. (citing Peabody Midwest Mining, LLC v. FMSHRC, 762 F.3d 611, 616 (7th Cir. 2014)). For 

those reasons, the Commissioner “join[ed] the MSHA inspector and the Judge in concluding that 

the evidence supports such a conclusion,” as “[a] derailment is just one of the events that may 

occur as a result of a loss of control, creation of a pinch point, or diminished visibility.” Id. 

8

 In fact, there were four established violations involved: three permissibility violations 

and one accumulations violation. 

38 FMSHRC Page 716
assumed. Id. The hazard for the permissibility violations was the ignition and escape of hot gas 

through an opening in the enclosure which was impermissibly large. Id. The Secretary asserted 

that the ignition and escape of hot gas through an opening in the enclosure, which was 

impermissibly large, should be presumed. Id. The Commission reversed the ALJ’s S&S 

determinations and remanded for penalty determinations, and Knox Creek appealed the 

Commission’s subsequent denial of Knox Creek’s petition for discretionary review following the 

imposition of the new penalties.9 Id. at 154-55. 

The Fourth Circuit stated that the relevant hazard should be assumed10 and it reminded 

that the third prong of Mathies is whether there is a reasonable likelihood the hazard contributed 

to by the violation will cause injury. Id. at 154. It is not about showing a reasonable likelihood 

that the violation itself will cause an injury.

11 Thus, one is to assume the existence of the relevant 

hazard when applying the third prong of Mathies and then assess whether it was reasonably 

likely that a reasonably serious injury would result. The third prong therefore measures the 

probability that a reasonably serious injury would result.

Emphasizing that point, the Fourth Circuit made it clear that the third and fourth prongs 

are primarily focused on the seriousness (i.e., gravity) of the expected harm. Thus, those prongs 

are only concerned with likelihood, in the sense of likelihood that the relevant hazard will result 

in a serious injury. The court held that 

the relevant hazard may be assumed when analyzing Mathies’ third prong. . . . 

The test under the third element is whether there is a reasonable likelihood that 

the hazard contributed to by the violation . . . will cause injury. The Secretary 

need not prove a reasonable likelihood that the violation itself will cause injury, as 

[the operator] argues. 

Id. at 161. Thus, the court endorsed the Commission’s approach of “assum[ing] the existence of 

the relevant hazard . . . and to consider only ‘evidence regarding the likelihood of injury as a 

result of the hazard.’” Id. (quoting Musser Engineering, Inc., 32 FMSHRC 1257, 1281 (Oct. 

2010). Accordingly, for the third prong of Mathies, one is to determine “only whether, if the 

hazard occurred (regardless of the likelihood), it was reasonably likely that a reasonably serious 

9

 The Fourth Circuit agreed that, in contradistinction to reviewing legal conclusions, the 

Commission cannot reweigh facts, but rather is to consider whether the findings of fact by the 

administrative law judge are supported by substantial evidence. Knox Creek, 811 F.3d at 156. 

10 In this regard it noted that the Commission itself has stated that the relevant hazard 

may be assumed when analyzing the third prong of Mathies. Id. at 161. 

11 The Fourth Circuit added that “the third Mathies prong . . . requires evidence that the 

hazard is reasonably likely to result in an injury-producing event. Id. at 163. 

38 FMSHRC Page 717
injury would result.”12 Id. (quoting Peabody Midwest Mining, LLC v. FMSHRC, 762 F.3d 611, 

616 (7th Cir. 2014)). 

The Fourth Circuit noted that “the Commission [has] reasoned that a violation should be 

considered S&S when it is reasonably likely to result in serious harm[, and that t]he laterdeveloped Mathies test, at its core, also reflects a dual concern for both likelihood and gravity.” 

Id. at 162 (citation omitted). Drawing a contrast, that court continued that it thought that 

Mathies’ third and fourth prongs, which the Commission expected would “often 

be combined in a single showing,” are primarily concerned with gravity—the 

seriousness of the expected harm. To the extent that the third and fourth prongs 

are concerned with likelihood at all, they are concerned—by their very terms—

with the likelihood that the relevant hazard will result in serious injury. Requiring 

a showing at prong three that the violation itself is likely to result in harm would 

make prong two superfluous. 

Id. at 162 (second emphasis added) (citations omitted). Thus, the court emphasized that “the 

third and fourth prongs . . . are concerned . . . with the likelihood that the relevant hazard will 

result in serious injury.” Id. 

Speaking to the third and fourth prongs of Mathies, that court expressed that those prongs 

focus on the likelihood that the relevant hazard will result in serious injury, adding that assuming 

the existence of the relevant hazard at prong three is further justified by policy considerations.13

Id. 

The Fourth Circuit rejected the argument that its construction would mean that any 

violation which could occur would be S&S; the third prong of Mathies “requires evidence that 

the hazard is reasonably likely to result in an injury-producing event.” Id. at 163. 

On the subject of whether the S&S determination is to be based on the particular facts 

surrounding the violation and whether that is at odds with the Secretary’s method of assuming 

12 In the present matter, no such prognostication, no crystal ball, is required, regarding the 

likelihood of an injury, nor the likelihood that the injury would be reasonably serious; miner Lee 

Graham died, and pushing the carrier inherently created a measure of danger to safety 

contributed to by that act. 

13 The court also stated that 

the legislative history of the Mine Act suggests that Congress did not 

intend for the S&S determination to be a particularly burdensome threshold for 

the Secretary to meet. See Consolidation Coal Co. v. FMSHRC, 824 F.2d 1071, 

1085 (D.C. Cir. 1987) (concluding that the legislative history of the Mine Act 

“suggests that Congress intended all except ‘technical violations’ of mandatory 

standards to be considered significant and substantial”). 

811 F.3d at 163. 

38 FMSHRC Page 718
the hazard for prong three, the court’s answer was that under prong two the Secretary must still 

establish that the violation contributes to a discrete safety hazard and, per prongs three and four, 

then establish that the hazard is reasonably likely to result in a serious injury. Accordingly, 

evidence of the likelihood of the hazard is not relevant at prong three. Id. at 164. 

III. Application of the Fourth Circuit’s Opinion in Knox Creek to the Case at Hand

To summarize the Knox Creek opinion, the Fourth Circuit stated that to meet the second

prong, that is, to show a contribution to a discrete safety hazard, a violation must be at least 

somewhat likely to result in harm. As noted above, it explained, “the second prong of Mathies

requires proof that the violation in question contributes to a ‘discrete safety hazard’ which 

implicitly requires a showing that the violation is at least somewhat likely to result in harm.” Id.

at 163. 

As for the analyzing the third prong, that court stated that the relevant hazard should be 

assumed. Id. at 164. In that regard, it stated that the analysis is about whether the hazard 

contributed to by the violation (here, pushing cars), will cause injury, and not that the violation 

itself will cause an injury. Importantly, the Fourth Circuit stated that both the third and fourth 

prongs are concerned with the likelihood that the relevant hazard will result in a serious injury. 

Id. at 162. 

Apart from the not inconsiderable reality of the events that transpired,

14 MSHA 

Inspector Allen stated that the safeguard was based on criteria set forth in 30 C.F.R. § 75.1403-

10(b), and that the “agency set forth that criteria because the agency recognized that pushing 

materials on the main haulage roads is a hazard.”15 Tr. 49 (emphasis added). Therefore, the 

14 Nor can the shearer pushing be characterized as a one-off event. Addressing the 

frequency of the process of moving the shearer, Inspector Allen, when asked how often the 

shearer would be moved to another location, responded, “Well, every longwall move.” Tr. 28. 

Indeed, during his investigation Allen spoke with then-safety director supervisor Tim Thompson 

about their practice. Thompson told Allen that the mine had been moving equipment this way for 

several years. Tr. 51. 

15 The pulling was not effective. Inspector Allen explained that the use of the wire rope 

violated the safeguard “[b]ecause you can’t -- you’re required to pull it and you can’t pull this 

with wire rope in the manner that they were using it.” Tr. 35 (emphasis added). Later, after the 

fatal accident, when the shearer was moved, Oak Grove used a solid, rigid connection between 

the No. 3 motor and the shearer carrier, not something flexible such as the wire rope. Tr. 38. 

Although the majority found otherwise, the inspector expressed that the practice employed by 

Oak Grove created a pinch point between that motor and the load that that was being carried. If 

they had been pulling the load, that pinch point would not have been present, as everything 

would have moved in tandem. Tr. 44. 

38 FMSHRC Page 719
inspector expressed that not only did the violation contribute to a discrete safety hazard, pushing 

materials was itself a hazard.16

The Mathies test is, at its heart, a tool of prognostication. Forecasting is unnecessary when 

the violative conduct results in an actual injury. 

Particularly in light of the Fourth Circuit’s opinion, this Court would observe that, at its 

heart, the Mathies test is, in almost all instances, a tool of prognostication. As such, it is 

submitted that it is of no value in a case such as this. That is because there is no point or purpose 

to prognosticating in instances when the mine operator is in the process of engaging in the 

prohibited action, and a serious accident occurs while engaging in such violative conduct. 

Reality should not be supplanted by the predictive test Mathies provides. Beyond being 

“somewhat likely” to result in harm, here the violation, pushing, did result in harm. Oak Grove 

was engaging in activity expressly prohibited by the safeguard notice: pushing cars on a main 

haulage road. That prohibited activity, pushing cars, literally set in motion the events that 

resulted in the fatality. 

With great respect for the majority’s determination, and in full compliance with the 

Commission’s remand direction, as set forth below, the Court should have been more expansive 

in explaining the basis for its finding that the violation was S&S. This was the Court’s failing 

because the decision should have emphasized that it was the failure to comply with the safeguard 

notice in the first place that spawned the events which resulted in miner Graham’s death. 

However, it is noted that, while it should have been more expansive, the Court did 

address the subject, as it addressed Oak Grove’s citation to Mar-Land Industrial Contractor, 

Inc., 14 FMSHRC 754 (May 1992), for the proposition that the occurrence of an accident does 

not confirm that a condition is reasonably likely to result in an injury. As the Court then stated, 

The problem with this argument is that it is a straw man. Of course the occurrence 

of an accident does not by itself confirm that a condition was reasonably likely to 

result in an injury. But, when an accident occurs, and such accident is connected 

to the cited condition, one then moves beyond the realm of reasonable likelihood. 

Instead, there is real world evidence of the occurrence and its connection. There is 

no need, when the accident in fact occurs, to get into the business of predicting 

the likelihood of its occurrence. To say the least, it would be a perverse outcome 

16 During the process of the prohibited pushing, the inspector explained that just prior to 

the fatality as the moving crew was “traveling upgrade, the slack was produced in the wire rope 

between the #3 motor and the shearer car, shearer carrier. . . . And as that slack was produced, 

the shearer carrier derailed to the left . . . .” Tr. 25-26. As Commissioner Cohen noted, an 

inspector’s judgment is an important consideration in determining whether a violation is S&S 

and is entitled to substantial weight. Oak Grove, 35 FMSHRC at 3426-27 (citing Mathies Coal 

Co., 6 FMSHRC 1, 5 (Jan. 1984); Cement Div., National Gypsum Co., 3 FMSHRC 822, 825-26 

(Apr. 1981); Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135-36 (7th Cir. 1995) (stating that 

the Judge did not abuse his discretion in crediting the opinion of an experienced inspector)); see 

also Harlan Cumberland Coal Co., 20 FMSHRC 1275, 1278-79 (Dec. 1998); Highland Mining 

Co., 37 FMSHRC 122 (Jan. 2015) (ALJ).

38 FMSHRC Page 720
to claim that the case for establishing that a violation was S&S is stronger when 

the prediction is that it is reasonably likely to occur, but not as strong when it 

happens. 

Oak Grove Res., LLC, 35 FMSHRC 3422, 3427 n.4 (Nov. 2013) (ALJ). An irony, can it be 

doubted that if, instead of a derailing and the fatality, an inspector had only observed the shearer 

being pushed, then issued the safeguard violation for that, that an S&S finding would have been 

sustained, upon the inspector explaining the hazards associated with pushing, even if such 

testimony were limited to loss of positive control, decreased visibility, and pinch points?

IV. Assessment of an Appropriate Penalty

Section 110(i) of the Mine Act requires that the Commission consider the following

statutory criteria when assessing a civil penalty: (1) the operator’s history of previous violations; 

(2) the appropriateness of the penalty to the size of the business; (3) the operator’s negligence;

(4) the operator’s ability to stay in business; (5) the gravity of the violation; and (6) any goodfaith compliance after notice of the violation. Douglas R. Rushford Trucking, 22 FMSHRC 598,

600 (May 2000). Judges are not required to give equal weight to each of the criteria, Thunder

Basin Coal Co., 19 FMSHRC 1495, 1503 (Sept. 1997), but must provide an explanation for any

substantial divergence from the proposed penalty based on such criteria, Sellersburg Stone Co., 5

FMSHRC 287, 293 (Mar. 1983).

The Court is not bound by the penalty proposed by the Secretary or by the Secretary’s 

penalty point system. “[N]either the Act nor the Commission’s regulations require the 

Commission to apply the formula for determining penalty proposals that is set forth in section 

100.3 of the MSHA regulations.” Sellersburg Stone Co. v. FMSHRC, 736 F.2d 1147, 1152 (7th 

Cir. 1984). Instead, the Court must consider the six penalty criteria in section 110(i) of the Mine 

Act based upon the evidence presented at the hearing. 

As the Commission has stated, a judge’s independent assessment of the civil penalty must 

be supported by substantial evidence. Wade Sand & Gravel Co., 37 FMSHRC 1874 (Sept. 2015). 

Further, the Commission noted that 

it is the Commission’s final penalty assessment that ultimately governs . . . . The 

Commission possesses independent authority to assess penalties de novo pursuant 

to section 110(i) of the Mine Act. 30 U.S.C. § 820(i) (“The Commission shall 

have authority to assess all civil penalties provided in this Act.”). The 

Commission is bound neither by the Secretary’s proposed assessment nor by his 

Part 100 regulations governing his penalty proposal process. E.g., 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;” also, 

“neither the Act nor the Commission’s regulations require the Commission to 

apply the formula for determining penalty proposals that is set forth in section 

100.3”); Jim Walter Res., Inc., 36 FMSHRC 1972, 1980 (Aug. 2014). 

Id. at 1876-77. 

38 FMSHRC Page 721
A. The Parties’ Post-Remand Submissions Regarding the Civil Penalty

The Secretary submitted a response following the Commission’s December 9, 2015, 

Decision, which, if nothing else, was brief and to the point. Its entire substantive response to the 

post-remand issue of the assessment of the civil penalty stated: “The Secretary disagrees with the 

Commission’s decision that the violation was not S&S. The Secretary maintains that the 

violation, which was issued subsequent to the miner’s death, is significant and substantial and 

that the civil money penalty of $55,000 is appropriate.” Sec’y’s Resp. 1. To be fair, the 

Secretary, in earlier briefs, had more fully addressed the civil penalty issue, albeit with the 

premise that the violation of the safeguard was S&S. 

In connection with the December 2015 remand to the Court, Oak Grove also submitted a 

memorandum addressing the civil penalty issue. After noting that the burden of proof for the 

civil penalty assessment is on the Secretary, and that the Commission majority determined that 

the violation was not S&S, Oak Grove then recounted the majority’s reasoning in support of its 

non-S&S finding. Mem. Addressing Civil Penalty on Remand 6-8 (“Oak Grove Mem.”). In 

addition, Oak Grove remarked that as “[t]he remand did not include the negligence finding . . . it 

would seem that it need not be addressed again.” Id. at 6 n.3 (citing Oak Grove, 35 FMSHRC at 

3431). The Court does not agree. 

Oak Grove then inserts an irrelevant factor regarding the negligence determination, 

stating that 

[a]fter the original variance to the safeguard was voided, Oak Grove worked with

the UMWA and the local MSHA office to develop an appropriate procedure and

that procedure was in place. It was not simply that there were prior citations of the

safeguard but the fact that all three parties recognized that moving the equipment

carried through the mine was different than what the safeguard initially addressed,

moving supplies through the mine.

Id. (citation omitted). Thus, Oak Grove tries to resurrect its earlier argument, attempting to 

undercut the safeguard notice. 

Oak Grove then turned to the Part 100 penalty formula, remarking that, upon applying it, 

the Citation, as originally issued would have resulted in a penalty of $17,301 (123 

points). If only the likelihood were changed in application of the formula, the 

assessment would be $705 (83 points). Oak Grove is not proposing such a penalty 

but would propose a penalty in the $5,000-$10,000 range. The condition, in a 

sense, is no longer tied to the accident and that should be taken into account in 

assessing the penalty. 

Id. at 9. 

38 FMSHRC Page 722
B. The Court’s Independent Analysis of the Penalty Criteria and Imposition of 

Civil Penalty 

Understanding and applying the majority’s decision that the violation was not significant 

and substantial, the Court proceeds to apply the statutory criteria set forth in section 110(i). It is 

noted that S&S is not among the identified statutory penalty criteria. Where applicable, the 

Court’s penalty determination takes into account the parties’ earlier contentions regarding the 

penalty, save the S&S finding. Implicitly, the Court was directed to take a fresh look in order to 

assess an appropriate civil penalty. 

1. Assessment of Negligence and Gravity Attendant to the Safeguard

Violation 

Setting aside the Fourth Circuit’s view of S&S, it is noted that although the majority has 

determined that, for S&S purposes, the diminished visibility, the creation of a pinch point, and 

the lack of positive control failed to establish prongs two and three of the Mathies test, but it still 

remains true that had the pulling requirement been adhered to, per the safeguard’s instruction, 

there would not have been a pinch point. The pinch point hazard resulted in the fatality here. 

While miner Lee Graham’s death did not occur simultaneously with the moment in time at which 

the pushing process was taking place, that hazardous practice resulted in the derailment and it 

was in the course of assessing that derailment that the number 3 and 8 motors moved, fatally 

pinning him. Inspector Allen concluded in his investigation that pushing the shearer carrier 

contributed to Mr. Graham’s death. After all, it was the closely-connected hazardous pushing 

practice which precipitated the derailment. 

Although the S&S component is no longer considered by the Court, the penalty analysis 

cannot ignore that the closely-connected and hazardous practice of pushing, expressly forbidden 

by the safeguard, was ongoing at the time of the derailment. The gravity cannot be described as 

anything other than what Inspector Allen marked on the citation — fatal and occurred. The 

victim would not have been exposed to any pinch point had a solid bar been employed between 

the number 3 motor and the shearer carrier. 

For this, upon the Court’s fresh look, as required by the remand, the Court also finds that 

high negligence17 was involved, as Oak Grove should have known of the established violation of 

the safeguard and there were no mitigating circumstances.18 As noted, the miner, Mr. Lee 

 17 The Commission’s definition of high negligence requires that such a finding result 

from “an aggravated lack of care that is more than ordinary negligence.” E. Assoc. Coal Corp., 

13 FMSHRC 178, 187 (Feb. 1991). Accordingly, “a Commission Judge may find ‘high 

negligence’ in spite of mitigating circumstances.” Brody Mining, LLC, 37 FMSHRC 1687, 1703 

(Aug. 2015). 

18 It is understandable that Oak Grove suggested that there was no need to re-examine the 

negligence involved. But, neither side, nor the Court, addressed the important negligence 

consideration that a supervisor, and a significant supervisor at that, was involved, and that there 

were no mitigating circumstances. Thus, the Court rejects the issuing inspector’s view that 

(continued...) 

38 FMSHRC Page 723
Graham, lost his life when he was crushed between the motor and the shearer carrier. Further, a 

supervisor, Chad Johnson, the mine’s assistant general mine foreman/dayshift foreman, was 

involved in the fatal accident, as he was supervising the four motormen who were moving the 

shearer. Tr. 26. Here, Respondent was pushing a shearer carrier, which was transporting the 

shearer body to the longwall face, along a main haulage road. Supervisor Chad Johnson admitted 

this. Tr. 99. Thus, the Court in its independent reassessment of the penalty determines that high 

negligence applies.

2. Evaluation of the Other Statutory Penalty Criteria

i. Size of the Business

Exhibit A to the Secretary’s Petition for Assessment of Civil Penalty lists the Oak Grove 

mine’s annual tonnage as 1,035,232. Sec’y’s Pet. for Assessment of Civil Penalty, Ex. A. In Part 

100, the Secretary has designated mines that produce this tonnage of coal as large mines for the 

purpose of determining civil penalties, assigning that tonnage 14 out of a possible 15 points. 30 

C.F.R. § 100.3, Table I. Part 100 designates the size of the controlling entity as large as well,

assigning it 8 out of 10 possible penalty points. 30 C.F.R. § 100.3, Table II. Accordingly, Oak

Grove is determined to be a large mine.

ii. History of Previous Violations

The Secretary introduced Government Exhibit 1, which is Respondent’s history of 

violations for the two years prior to the citation issued in this case. Tr. 15. Respondent objected 

to the admission of the exhibit to the extent that it contained citations and orders that predated 

the 15-month period prior to May 21, 2008. Id. The Court admitted the exhibit, but only for those 

violations that occurred in the 15-month period. Id. at 15-16. 

The Court has reviewed and considered Respondent’s history of violations. 

iii. The Effect of the Penalty on the Operator’s Ability to Continue

in Business

Respondent agreed, in stipulations submitted to the Court at the hearing, that the total 

proposed penalty would not affect its ability to continue in business. Stipulations, ¶ 6. 

18 (...continued) 

moderate negligence was involved, nor does it adopt the assertion that Oak Grove had no 

previous incidents following the issuance of the safeguard. That latter assertion is a distraction 

and it is potentially misleading. It is a distraction because the penalty analysis for this factor is 

directed at the event that occurred, not on whether there were or were not previous instances. It is 

misleading because all that is known is that there were no cited previous instances and no 

previous fatalities. Thus, the claim of no previous incidents is not presumed, nor is there a 

presumption that there were previous incidents. Thus, there is no finding either way on this 

question. 

38 FMSHRC Page 724
iv. The Demonstrated Good Faith in Attempting to Achieve Rapid

Compliance

Given the fatality, it is inappropriate to express any good faith attribution to Oak 

Grove, at least in terms of the penalty analysis.

ORDER 

Accordingly, the violation of 30 C.F.R. § 75.1403-10(b), as identified in Citation No. 

7696616, having been previously upheld by the Commission, for the reasons previously 

discussed applying the statutory penalty criteria, the Court finds that high negligence was 

involved, that the gravity is characterized as occurred and the severity as fatal, and that applying 

the other penalty criteria as set forth in section 110(i) of the Mine Act, a civil penalty of 

$50,000.00 is imposed. Respondent is hereby ORDERED to pay the Secretary of Labor that 

sum within 30 days of the date of this decision.19

/s/ William B. Moran 

William B. Moran 

Administrative Law Judge 

Distribution: 

Jennifer Booth Thomas, Esq., U.S. Department of Labor, Office of the Solicitor, 618 Church 

Street, Suite 230, Nashville, TN 37219-2440 

R. Henry Moore, Esq., Three Gateway Center, 401 Liberty Avenue, Suite 1500, Pittsburgh, PA

15222

19 Payment should be sent to: MINE SAFETY AND HEALTH ADMINISTRATION, 

U.S. DEPARTMENT OF LABOR, PAYMENT OFFICE, P.O. BOX 790390, ST. LOUIS, MO 

63179-0390 

38 FMSHRC Page 725
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

April 6, 2016 

DECISION

Appearances: John Lauer, Esq., Office of the Solicitor, U.S. Department of Labor, 

Denver, Colorado, and D. Scott Horn, Mine Safety and Health 

Administration, U.S. Department of Labor, Vacaville, California, for the 

Secretary; 

Trenton Davis, Clovis, California for The Silver Queen Mine, LLC. 

Before: Judge Manning 

These cases are before me upon petitions for assessment of civil penalty filed by the 

Secretary of Labor, acting through the Mine Safety and Health Administration (“MSHA”), 

against The Silver Queen Mine, LLC (“Silver Queen”) 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 Henderson, Nevada. 

Silver Queen was represented by Trenton Davis, its agent. Davis cross-examined MSHA 

Inspector Miles D. Frandsen and introduced three exhibits, but did not offer any witnesses. The 

Secretary filed post-hearing briefs but Davis elected not to do so. I considered the arguments 

presented in the briefs but I have not summarized them in this decision except as necessary. 

The Silver Queen Mine is a small underground silver mine in Mojave County, Arizona, 

that employed about four miners in late 2014 and early 2015. Sixteen section 104(a) citations 

were adjudicated at the hearing. 

I. DISCUSSION WITH FINDINGS OF FACT

AND CONCLUSIONS OF LAW 

A. WEST 2015-448-M

At the start of the hearing, Silver Queen moved to dismiss WEST 2015-448-M and 

vacate the ten citations contained in the docket. (Tr. 12). Silver Queen argued that the Secretary 

violated a provision in MSHA’s “Metal and Nonmetal General Inspection Procedures 

Handbook.” (Ex. R-1). Silver Queen maintained that under a section entitled “Regular

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

 v. 

THE SILVER QUEEN MINE, LLC, 

 Respondent 

CIVIL PENALTY PROCEEDINGS 

Docket No. WEST 2015-448-M 

A.C. No. 02-03312-373291

Docket No. WEST 2015-574-M 

A.C. No. 02-03312-377914

Silver Queen Mine 

38 FMSHRC Page 726
Inspection Procedures,” the Handbook limits the number of inspections that MSHA may make at 

a mine in any given year. Id. at 2. Silver Queen argued that it had already been subjected to the 

mandatory number of inspections for the year before Inspector Frandsen commenced the 

inspection that is the subject of this case. (Tr. 20). 

I denied Silver Queen’s motion at the hearing. (Tr. 141). I relied on the language of 

section 103(a) of the Mine Act which states that “[i]n carrying out the requirements clauses (3) 

and (4) of this subsection, the Secretary shall make inspections of each underground coal or other 

mine in its entirety at least four times a year[.]” 30 U.S.C. § 813(a) (emphasis added).1

 It is clear 

that the Mine Act and the Inspection Handbook mandate a minimum number of inspections and 

do not restrict the Secretary from completing more inspections than this statutory minimum. In 

addition, the Secretary argued that the record shows that the mine had not been subjected to more 

inspections than the statutory minimum. I relied of the language of the Mine Act in denying the 

motion and I note that there has been no showing that the Secretary abused his discretion by 

using his inspection authority to harass the mine. 

In December 2014, MSHA Inspector Miles D. Frandsen2 inspected the Silver Queen 

Mine and issued ten citations, as discussed below. 

1. Citation No. 8871120

Safety Standard: 57.6306(g) 

Gravity: Reasonably likely, S&S, fatal accident reasonably likely, 1 person affected 

Negligence: High 

Proposed Penalty: $2,678 

This citation alleges that the mine did not conduct a proper post-blast inspection 

following a blast that occurred on December 1, 2014. (Ex. P-A). During Inspector Frandsen’s 

inspection the following day, he noticed that two of the blasting holes had not detonated. The 

yellow blasting devices were clearly visible upon examination of the area. Section 57.6306(g) 

provides that “[w]ork shall not be resumed in the blast area until a post-blast examination 

addressing potential blast-related hazards has been conducted by a person with the ability and 

experience to perform the examination.” 30 C.F.R. § 57.6303(g).

Frandsen testified that, while traveling to the mine portal, he had a discussion with miners 

coming out from underground who indicated to him that they had observed undetonated blasting 

holes from the blast the day before. (Tr. 146-147, 150). The operator told Frandsen that it had 

1

 Clause (3) requires MSHA inspectors to conduct inspections to determine whether an 

imminent danger exists at the mine and clause (4) requires inspectors to determine whether the 

mine is in compliance with safety and health standards or with any citation or order. 

2

 Inspector Frandsen has been an inspector with MSHA for about eleven years. (Tr. 31). 

He is trained as an electrical inspector. Prior to his employment with MSHA he worked as a 

mechanic at various mines; acquired electrical papers; and was a maintenance supervisor and 

production supervisor. (Tr. 32-33). 

38 FMSHRC Page 727
conducted a post-blast examination. (Tr. 147, 151, 155). According to Frandsen, it is the practice 

in the mining industry to do the post-blast examination shortly after the blast. (Tr. 159). When 

Frandsen traveled underground he observed yellow shock tubes hanging out of the face. (Tr. 

147). According to Frandsen, the shock tubes were extremely obvious and indicated that 

undetonated explosives had been left in the face from the day before. (Tr. 147, 160). There were 

no warning signs or barricades in the area and miners had been working underground after the 

post-blast examination. (Tr. 151, 160-161). 

I find that Silver Queen violated the cited standard. Frandsen testified that mine 

employees told him that it a post-blast examination had been conducted following the blast on 

December 1, 2014. However, the post-blast examination clearly was not properly performed, as 

evidenced by the obvious yellow shock tubes that Frandsen observed in the face, which should 

have been addressed immediately following the post-blast examination. Frandsen testified that 

miners had been working underground in this small mine since the post-blast examination. 

Moreover, the miners whom Frandsen encountered while traveling to the portal entered the blast 

area in order to discover that the post-blast examination had failed to address the obvious hazard 

of undetonated explosives that remained in the face. Consequently, I find that a violation has 

been proven. 

Frandsen determined that, given the presence of explosives and the obviousness of the 

shock tubes that were not detected, the mine’s failure to conduct a proper post-blast examination 

was reasonably likely to lead to a fatal injury, and that the violation was significant and 

substantial (“S&S”). (Tr. 148). Moreover, he noted that an inadequate examination could result 

in poisonous post-blast gases not being detected. (Tr. 147). 

I find that the violation was S&S.3

 I find that a discrete safety hazard existed in that the 

failure to conduct a proper post-blast examination exposed miners to the hazard of being in an 

area where they were unknowingly in close proximity to undetonated explosives. Moreover, the 

inspector noted that an inadequate examination like the one performed here could lead to miners 

being exposed to poisonous gases. I agree with Frandsen that, given the presence of explosives, 

the failure to conduct a proper examination was reasonably likely to lead to an injury and that 

injury was likely to be fatal. The fact that the shock tubes were so obvious, yet went unnoticed 

by the examiner, leads me to believe that serious injuries were likely at this mine for failure to 

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 

Coal Co., Inc., 52 F.3d 133, 135 (7th Cir. 1995); Austin Power Co., Inc., 861 F.2d 99, 103 (5th 

Cir. 1988) (approving Mathies criteria). An experienced MSHA inspector’s opinion that a 

violation is S&S is entitled to substantial weight. Harlan Cumberland Coal Co., 20 FMSHRC 

1275, 1278-79 (Dec. 1998). 

38 FMSHRC Page 728
conduct competent examinations, assuming continued mining operations. Consequently, I find 

that the violation was S&S. 

Frandsen testified that, given the obviousness of the yellow shock tubes and the fact that 

he previously issued a separate citation under the same standard to this mine, the mine was 

highly negligent. (Tr. 148-149). 

I find that the violation was a result of Silver Queen’s high negligence. I agree with the 

inspector’s assessment that the obviousness of the shock tubes and the fact he had previously 

cited the mine for a violation of this same standard lend themselves to a finding of high 

negligence. Like any mandated examination under the Mine Act, post-blast examinations are 

fundamental in assuring a safe work environment for miners. See Enlow Fork Mining Co., 19 

FMSHRC 5, 15 (Jan. 1997); Buck Creek Coal Co., 17 FMSHRC 8, 15 (Jan. 1995); Rochester & 

Pittsburgh Coal Co., 13 FMSHRC 189, 198 (Feb. 1991). Silver Queen’s blatant failure to 

properly conduct the post-blast examination denied the miners this fundamental assurance. 

Consequently, I uphold the Secretary’s high negligence finding. 

Based on my findings and the penalty factors discussed below, I find that a penalty of 

$1,500.00 is appropriate. I have reduced the penalty solely on the basis of Silver Queen’s small 

size. 

2. Citation No. 8871121

Safety Standard: 57.6202(a)(5) 

Gravity: Unlikely, not S&S, fatal accident possible, 1 person affected 

Negligence: Moderate 

Proposed Penalty: $162 

This citation alleges that the Kawasaki Mule used to transport explosives did not have 

any placards or warning signs to identify the presence of explosive materials. (Ex. P-F). The 

vehicle was used to transport explosive materials the day of the inspection and is used almost 

daily for that purpose. Section 57.6202(a)(5) provides that “[v]ehicles containing explosive 

materials shall be . . . [p]osted with warning signs that indicate the contents and are visible from 

each approach.” 30 C.F.R. § 57.6202(a)(5). 

Frandsen testified that the cited vehicle, which was used by the mine to transport blasting 

caps, was not equipped with any warning signs. (Tr. 164-165). Frandsen took a photograph of 

the vehicle which shows no warning signs. (Tr. 164; Ex. P-H). 

I find that Silver Queen violated the cited standard. The photograph taken by Frandsen, 

along with his testimony, confirms that there were no warning signs to indicate the contents of 

the vehicle. Consequently, I find that a violation existed. 

Frandsen testified that, although an injury was unlikely to occur as a result of the cited 

condition, if one were to occur it was reasonably likely to be fatal. (Tr. 166). He based his 

assessment on the fact that only three persons worked at the mine, and the two individuals who 

38 FMSHRC Page 729
worked underground would have been the ones to drive the vehicle. (Tr. 166). A BLM road goes 

through the mine site and non-mine personnel were seen driving the road the day the inspector 

was there. (Tr. 166-167). On cross-examination Frandsen acknowledged that the box in the bed 

of the vehicle met the standard for being an approved container for hauling explosives. (Tr. 168). 

I agree with the inspector’s gravity assessment. Given the limited number of people who 

would be using the vehicle, it is unlikely that anyone would fail to remember that the vehicle is 

used to haul explosives. Moreover, protection would be provided by the explosives transport 

box, which Frandsen testified was to code. Consequently, I affirm the inspector’s gravity 

determinations. 

Frandsen testified that the mine operator was moderately negligent. He based his 

determination on a conversation he had with mine personnel. Miners told him that they 

previously had a magnetic warning cone on the roll bars of the vehicle, but it had fallen off. (Tr. 

167). I find that Silver Queen was moderately negligent. 

Based on my findings and the penalty factors discussed below, I find that a penalty of 

$162.00 is appropriate. 

3. Citation No. 8871122

Safety Standard: 57.14132(b)(1) 

Gravity: Unlikely, not S&S, fatal accident possible, 1 person affected 

Negligence: High 

Proposed Penalty: $540 

This citation alleges that the Chevy flat-bed truck had an obstructed view to the rear. The 

truck was not equipped with any sort of reverse-activated signal alarm and spotters were not used 

when the vehicle was moved in reverse. (Ex. P-J). A 55 gallon barrel of oil and a diesel fuel tank 

obstructed the rear view. The truck was regularly used at the mine. Section 57.14132(b)(1) 

provides that “[w]hen the operator has an obstructed view to the rear, self-propelled mobile 

equipment shall have . . . [a]n automatic reverse-activated signal alarm; . . .[a] wheel-mounted 

bell alarm which sounds at least once for each three feet of reverse movement; [a] discriminating 

backup alarm that covers the area of obstructed view; or . . . [a]n observer to signal when it is 

safe to back up.” 30 C.F.R. § 57.14132(b)(1). 

Frandsen testified that miners told him that, before backing up the vehicle, they walk 

around the vehicle. (Tr. 170, 172-173). The miners then get into the vehicle and back it up 

without the use of a spotter. (Tr. 170-173). There was no backup alarm present on this vehicle, 

nor a wheel bell. (Tr. 170, 172). Frandsen testified that, although he did not climb into the 

vehicle and look out the rear view mirror, there were multiple objects in the back of the truck 

that restricted the view to the rear, including a barrel, fuel tank, and rack. (Tr. 173; Ex. P-L). 

According to Frandsen, miners told him that the items in the back of the vehicle are always 

present. (Tr. 172). 

38 FMSHRC Page 730
I find that Silver Queen violated the cited standard. The rear view from the cab of the 

truck was obstructed. The photograph the inspector took of the condition clearly shows a number 

of items which obstructed the view of an individual backing up the vehicle. The vehicle was not 

equipped with any kind of backup alarm or wheel bell. Moreover, the mine was not using a 

spotter. Consequently, I find that the Secretary has proven a violation of the cited standard. 

Frandsen testified that an injury was unlikely as a result of the cited condition because the 

vehicle operator walks around the vehicle before getting in to back up. (Tr. 171). He explained 

that if the truck backed over a miner, any injuries would likely be fatal, however. Id. 

I agree with the inspector’s gravity assessment. Although walking around the vehicle 

before entering it may alert the vehicle operator to persons or objects that are in the area at that 

moment, it does not alert or prevent persons from entering the area before the operator actually 

begins backing up the vehicle. In this instance, I find that an injury was unlikely to be sustained. 

Nevertheless, I agree with the inspector that, if a miner were struck and run over or pinned 

against something, the injuries would likely be fatal. 

Frandsen testified that the operator was highly negligent. He based his determination on a 

conversation he had with Ken Graham, the mine manager, in which Graham provided no 

mitigating circumstances and told Frandsen that he never made the miners aware that they 

needed to have a spotter. (Tr. 65). 

I agree that Silver Queen was highly negligent. The fact that Graham, the mine manager, 

did not make his employees aware of the need for a spotter is especially troublesome. As 

discussed above, an accident stemming from the failure to provide a spotter could result in a fatal 

injury. Management’s failure to alert miners that they the need to comply with the standard is 

inexcusable. Consequently, I find that the inspector’s high negligence designation is appropriate. 

Based on my findings and the penalty factors discussed below, I find that a penalty of 

$540.00 is appropriate. 

4. Citation No. 8871123

Safety Standard: 57.4102 

Gravity: Unlikely, not S&S, lost workdays/restrict duty possible, 1 person affected 

Negligence: High 

Proposed Penalty: $162 

This citation alleges that there were excessive amounts of oil and fuel spillage on the 

Chevy flatbed truck. (Ex. P-M). The bed, frame, back window and part of the truck body were 

splashed and covered with oil and spilled diesel fuel. Section 57.4102 provides that “[f]lammable 

or combustible liquid spillage or leakage shall be removed in a timely manner or controlled to 

prevent a fire hazard.” 30 C.F.R. § 57.4102. 

Frandsen testified that he observed oil and fuel spillage on the flatbed truck. (Tr. 177). 

According to Frandsen, oil and fuel from the oil barrel and fuel tank in the back of the truck 

38 FMSHRC Page 731
covered the truck bed, the frame, and had splashed on the truck cab and back window. (Tr. 177-

178). He explained that the condition had existed for some time and had not been cleaned up. 

(Tr. 177, 181-182). Graham told Frandsen that sometimes the oil hose falls down and leaks. (Tr. 

177). 

I find that Silver Queen violated the cited standard. Fuel and oil were observed covering 

much of the back of the truck. I credit Frandsen’s testimony that the condition had existed for 

some time. Graham’s statement that the hose sometimes falls and leaks confirms the extent of the 

condition. It would take time for the spillage from a leaking hose to cover the truck to the extent 

described by Frandsen. Nothing had been done to clean up the oil and fuel. Consequently, I find 

that a violation existed. 

Frandsen testified that, although an injury was unlikely to occur as a result of the cited 

condition, if one were to occur it would result in lost work days or restricted duty. (Tr. 179). 

Frandsen explained that, although the welder in the back of the truck presented an ignition 

source, there was a lot of dirt that had blown onto the back of the truck and mixed with the oil 

and fuel. (Tr. 178-179). Moreover, there was at least one fire extinguisher present. (Tr. 181). As 

a result, he thought that an injury was unlikely. (Tr. 179). However, in the event there was an 

ignition, he testified that individuals would suffer smoke inhalation and burns while fighting the 

fire. (Tr. 179). 

I agree with the inspector’s gravity assessment. The presence of the fire extinguisher and 

the dirt that had mixed with the combustible materials mitigated the hazard to some extent. I 

credit the inspector’s conclusion that, despite the presence of the welder/ignition source, an 

ignition and injury was unlikely. However, in the event of an ignition, burns and smoke 

inhalation were reasonably likely to be sustained, both of which are injuries that are likely to 

result in lost workdays or restricted duty. 

Given the obviousness of the condition, and the mine manager’s acknowledgement that 

the hose sometimes fell and leaked, Frandsen determined that the mine was highly negligent. (Tr. 

180). He explained that Graham’s acknowledgement amounted to a concession that the mine 

knew there was a problem, but had done nothing to remedy it. (Tr. 180). 

I find that Silver Queen was highly negligent. As Frandsen explained, the condition was 

obvious and extensive, covering much of the rear of the truck. Graham’s statement indicated a 

lack of understanding on the part of management as to the proper standard of care. Here, 

Graham’s concession that a problem existed, combined with the fact that the accumulation was 

obvious and had existed for some time, lends itself to a finding of high negligence. 

Based on my findings and the penalty factors discussed below, I find that a penalty of 

$162.00 is appropriate. 

38 FMSHRC Page 732
5. Citation No. 8871124

Safety Standard: 57.12032 

Gravity: Unlikely, not S&S, fatal accident possible, 1 person affected 

Negligence: Moderate 

Proposed Penalty: $162 

This citation alleges that the cover plate for the variable-frequency drive (“VFD”) control 

to the ventilation fan was missing. (Ex. P-R). This control is at the mine portal and was in a 

junction box that did not have a cover plate. Power cables and exposed connections were inside 

the box, which subjected miners to the potential of electrocution, shocks, and burns. Section 

57.12032 provides that “[i]nspection and cover plates on electrical equipment and junction boxes 

shall be kept in place at all times except during testing and repairs.” 30 C.F.R. § 57.12032. 

Frandsen testified that he observed no cover on the electrical box for the soft start 

controls. (Tr. 185-186; Ex. P-T). He could see the three 480 volt leads to the right of the soft 

start. (Tr. 186). According to Frandsen, he was told by Graham that the cover had been left off 

because the box needed to be ventilated. (Tr. 187). 

I find that Silver Queen violated the cited standard. The cover plate for the soft start was 

not on the box. (Ex. P-T). Graham’s explanation to Frandsen as to why the plate was not on the 

box makes it clear that the plate had not been removed for testing or repairs. Consequently, I find 

that a violation of the cited standard existed. 

Frandsen testified that, although an injury was unlikely to occur as a result of the cited 

condition, if one were to occur it was reasonably likely to be fatal. (Tr. 186-187). He explained 

that mine employees told him that, once the soft start was set, one would not have to work on it 

very often. (Tr. 186). However, if any injury were sustained, given that the wires were 480 volts, 

it would result in a fatal electrocution. (Tr. 187). 

I find that the inspector’s gravity designations are appropriate. I credit the inspector’s 

testimony that the cited condition would cause a fatal injury if a miner were to come in contact 

with the wires. I agree that an injury was unlikely to be sustained. 

Frandsen testified that Graham told him the cover had been left off the box because an 

electrician told him that the box needed to be ventilated. (Tr. 187). However, Frandsen stated 

that the condition was obvious and the ventilation issue could have been addressed without 

leaving the cover off of the electrical box. (Tr. 187-188). Based on his observations, he 

designated the violation as being a result of Silver Queen’s moderate negligence. (Tr. 187). 

Given that the violation was a result of the operator’s attempt to comply with the 

recommendation of an electrician, I find that the operator was moderately negligent. 

Based on my findings and the penalty factors discussed below, I find that a penalty of 

$162.00 is appropriate. 

38 FMSHRC Page 733
6. Citation No. 8871125

Safety Standard: 57.13011 

Gravity: Unlikely, not S&S, fatal accident possible, 1 person affected 

Negligence: Low 

Proposed Penalty: $100 

This citation alleges that the old water heater that was underground was not equipped 

with an automatic pressure-relief valve. (Ex. P-V). The unit was pressurized by air to push water 

to the drills and hoses at the face. Miners were exposed to potential fatal injuries from the tank if 

the air pressure became too great. Section 57.13011 provides in part that “[a]ir receiver tanks 

shall be equipped with one or more automatic pressure-relief valves.” 30 C.F.R. § 57.13011. 

Frandsen testified that he observed a water tank without an automatic-pressure relief 

valve. (Tr. 191-192). The water tank was pressurized with air, which would push the water to the 

heading where the mine was drilling and blasting. (Tr. 192). Frandsen explained that, although 

this was a water tank, it is considered an air receiver tank under the standard because the water is 

pressurized with air and the air is used to push the water. (Tr. 196). 

I find that Silver Queen violated the cited standard. I accept the inspector’s explanation as 

to why this water tank is considered an “air receiver” tank under the cited standard. See Lhoist 

North America of Virginia, 36 FMSHRC 2413, 2421-2424 (Sept. 2014) (ALJ) (upholding a 

violation of 57.13011 that involved an ANFO tank that was pressurized with air that pushed 

ANFO through the tank and into hoses). The water tank was not equipped with an automatic 

pressure-relief valve. Consequently, I find that a violation existed. 

Frandsen testified that, although an injury was unlikely to occur as a result of the cited 

condition, if one were to occur it was reasonably likely to be fatal. (Tr. 194-195). He explained 

that the mine told him the water tank was rated for 150 psi of pressure and had a regulator on it 

that was set at 50 psi. (Tr. 194, 197). Further, on cross-examination he testified that the miners 

told him that the compressor which pressurized the tank could only go to 120 psi. (Tr. 198). As a 

result, he opined that an injury was unlikely. (Tr. 194). However, if the tank were overpressurized and exploded, he believed that it would result in fatal injuries. (Tr. 193, 195). 

I find that the inspector’s gravity designations are appropriate. Given that the pressure 

ratings for both the regulator and outside compressor were less than that of the tank, it was 

unlikely that the lack of an automatic pressure relief valve would result in the tank exploding. 

Nevertheless, if the tank did explode, I agree with the inspector that the injuries were likely to be 

very serious. Consequently, I affirm the gravity designations. 

Frandsen determined that Silver Queen exhibited low negligence. He based his 

determination on the fact that an automatic pressure relief valve was found in the area (Ex. P-Y) 

and a statement made by Graham that he did not know why the relief valve they found was not 

on the tank. (Tr. 193-196). 

38 FMSHRC Page 734
I find that the violation was the result of Silver Queen’s low negligence. It is unclear why 

exactly a relief valve was not attached to the tank. Graham’s statement to Frandsen indicates that 

the mine was aware of its responsibility to equip the tank with an automatic pressure relief valve. 

Graham was apparently unaware that the tank was not equipped with one. The tank was 

equipped with a regulator set at 50 psi. For these reasons, I find that Silver Queen only exhibited 

low negligence. 

Based on my findings and the penalty factors discussed below, I find that a penalty of 

$100.00 is appropriate. 

7. Citation No. 8871126

Safety Standard: 57.8528 

Gravity: Unlikely, not S&S, fatal accident possible, 1 person affected 

Negligence: Low 

Proposed Penalty: $100 

This citation alleges that the old East Drift had been removed from ventilation but Silver 

Queen only placed a small berm across the entry and hung a warning sign with brattice material. 

(Ex. P-AA). The drift was neither barricaded nor sealed. Miners could easily travel past the berm 

and be exposed to air containing insufficient oxygen or poisonous gases. Section 57.8528 

provides that “[u]nventilated areas shall be sealed, or barricaded and posted against entry.” 30 

C.F.R. § 57.8528.

Frandsen testified that he observed an unventilated drift that had been removed from 

service and had not been barricaded or sealed. (Tr. 201, 203). A curtain, which had openings on 

both sides, had writing on it that said “Keep out. No vent.” (Tr. 203, 207; Ex. P-CC). A two to 

three foot berm existed but, according to Frandsen, did not prevent passage. (Tr. 203, 207). 

Frandsen explained that “barricaded” means “obstructed to prevent a passage of persons, 

vehicles, or flying materials.” (Tr. 201). Here, neither the berm nor the curtain functioned as a 

barricade because they would not prevent passage. (Tr. 203). On cross-examination Frandsen 

explained that, in his years of experience, it was not reasonable to expect that miners would not 

go back in the drift simply because of the steps taken by the mine operator in this instance. (Tr. 

207-208).

I find that Silver Queen violated the cited standard. The abandoned drift was not being 

ventilated. Although the writing on the curtain stating “Keep out . . . No vent” satisfies the 

standard’s requirement that the unventilated drift be posted against entry, the mine had not sealed 

or barricaded the area. Clearly, the drift was not sealed. (Ex. P-CC). The Secretary’s regulations 

define “barricaded” as “obstructed to prevent the passage of persons, vehicles, or flying 

materials.”4

 30 C.F.R. § 57.2. I agree with the inspector that the two to three foot berm and loose 

4

 At hearing, Respondent’s representative referenced a section of MSHA’s Program 

Policy Manual which deals with “Barricades and Warning Signs.” (Tr. 205-206). However, that 

particular section of the Program Policy Manual is aimed at providing interpretive guidance on 

sections 56.20011 and 57.20011, neither of which is at issue here. 

38 FMSHRC Page 735
hanging curtain did not prevent the passage of persons into the unventilated area. I credit his 

testimony explaining that, in his experience, miners go places they should not be. The standard 

and accompanying definition of “barricaded” direct that the barricade prevent passage of 

persons. Here, although the berm and curtain may suggest that miners not enter the area, they 

cannot be said to prevent passage of persons. See Newmont USA Limited, 34 FMSHRC 146, 161 

(Jan. 2012) (ALJ) (holding that a rope strung from rib to rib was incapable of preventing the 

passage of persons, vehicles or flying materials). A miner could easily step over the berm and 

walk around the curtain. Consequently, I find that a violation has been proven. 

Frandsen testified that, although an injury was unlikely to occur as a result of the cited 

condition, if one were to occur it was reasonably likely to be fatal. (Tr. 202). He determined that 

there was a sign in place which directed against entry and, as a result, it was unlikely that an 

injury would be sustained. (Tr. 202). Nevertheless, if a miner were to enter that area he could 

suffocate due to poisonous gases. (Tr. 202). 

I find that the inspector’s gravity designations are appropriate. Although the curtain and 

berm may not have prevented miners from entering the area, they likely would have dissuaded 

miners from doing so. Accordingly, it is unlikely miners would go past the curtain and berm into 

the unventilated area. However, if they did go into the unventilated area, they would likely 

suffocate due to the lack of oxygen or the presence of poisonous gases. Consequently, I uphold 

the inspector’s gravity findings. 

Frandsen designated the violation as being the result of Silver Queen’s low negligence. 

He based his designation on Graham telling him that he considered the sign and berms adequate 

to meet the standard. (Tr. 203). I agree that the violation was caused by Silver Queen’s low 

negligence. I credit the inspector’s testimony that the operator was mistakenly under the 

impression that the steps it had taken satisfied the standard. Consequently, I affirm the low 

negligence designation. 

Based on my findings and the penalty factors discussed below, I find that a penalty of 

$100.00 is appropriate. 

8. Citation No. 8871127

Safety Standard: 57.11053(c) 

Gravity: Unlikely, not S&S, fatal accident possible, 1 person affected 

Negligence: Low 

Proposed Penalty: $100 

This citation alleges that an escape plan was not posted underground, at the portal or 

where the check in/check out board is located. (Ex. P-EE). If miners were to become confused 

during an emergency, they could travel into dead ends rather than out to the portal. Section 

57.11053(c) provides that every mine shall develop “[a]n escape plan for each working area in 

the mine to include instructions showing how each working area should be evacuated.” 30 C.F.R. 

§ 57.11053(c). The safety standard goes on to require that each “plan shall be posted at

appropriate shaft stations and elsewhere in working areas where persons congregate.” Id.

38 FMSHRC Page 736
Frandsen testified that the mine did not have escapeway maps or an escapeway plan 

anywhere underground. (Tr. 211-212). He explained that, although there was only one way in 

and out of this mine, miners congregated in areas underground, such as near the mine phone, first 

aid station and work area, and the escape maps and plans were required to be posted in those 

areas. (Tr. 214-215). 

I find that Silver Queen violated the standard. No escape plan was posted anywhere 

underground. The standard requires that the plan be posted in working areas where miners 

congregate. The inspector testified that a person could walk out of the mine in five to ten minutes 

under normal circumstances. (Tr. 36). Although this particular mine may have been small and 

uncomplicated when compared to other mines, miners could still get confused during an 

emergency. I credit the inspector’s testimony on this point. Consequently, I find that a violation 

has been proven. 

Frandsen testified that, although an injury was unlikely because the mine was not 

complicated and there was only one way in and out, if an injury were to occur it was reasonably 

likely to be fatal. (Tr. 212-213). He explained that if miners are caught underground and are 

unable to locate the escape plan, they could be exposed to poisonous gases and other hazards in 

the event of a mine fire. (Tr. 213). Frandsen has fought several mine fires and explained that it is 

very easy to get disoriented and confused in an emergency. (Tr. 213). I credit this testimony. 

I find that the inspector’s gravity designations are appropriate. This is a small 

underground mine with only a few miners. The mine’s layout is, as Frandsen testified, 

uncomplicated. I agree that it is unlikely that Silver Queen’s failure to post the escape plan 

underground would lead to an injury. Still, if a miner became disoriented and confused during an 

emergency, such as a mine fire, the lack of an escape plan underground could certainly 

contribute to a fatal injury as described by the inspector. Consequently, I affirm his gravity 

determinations. 

Frandsen determined that the operator exhibited low negligence. (Tr. 214). Frandsen 

testified that Graham told him that, because there was only one way in and out of the mine, he 

did not think they needed to have a plan underground. (Tr. 214). Graham explained to Frandsen 

that the escape plan is posted on the surface in an area where miners congregate. (Tr. 214). 

Given the lack of complexity of this mine, I find that the operator’s belief that it did not 

need to maintain a copy underground is understandable. Consequently, I agree with the inspector 

that the violation was caused by Silver Queen’s low negligence. 

Based on my findings and the penalty factors discussed below, I find that a penalty of 

$100.00 is appropriate. 

38 FMSHRC Page 737
9. Citation No. 8871134

Safety Standard: 57.12018 

Gravity: Unlikely, not S&S, fatal accident possible, 1 person affected 

Negligence: Moderate 

Proposed Penalty: $162 

This citation alleges that two 480 volt knife-blade disconnects and two start/stop buttons 

at the portal were not labeled. (Ex. P-HH). The disconnects and buttons control separate fans, 

one on the surface and one underground. Employees were exposed to a fatal injury because they 

could accidently deactivate and lock out the wrong circuit when working on equipment or during 

an emergency. Section 57.12018 provides that “[p]rincipal power switches shall be labeled to 

show which units they control, unless identification can be made readily by location.” 30 C.F.R. 

§ 57.12018.

Frandsen testified that the labels on the electrical disconnect and start/stop buttons for the 

underground and surface fans had faded and were no longer legible. (Tr. 219). He explained that 

the disconnects and start/stop buttons are principal power switches. (Tr. 221). He further 

explained that he could not easily identify what these components controlled since he could not 

see either the underground or surface fans from the switches. (Tr. 221). It was not obvious 

where the cables went. (Tr. 222). He explained that, if you have to start tracing the cables to see 

what they control, then identification cannot be made readily by location, and there is a violation 

of the standard. (Tr. 222). 

I find that Silver Queen violated the cited standard. Given that these switches controlled 

the underground and surface fans, I find that they were principal power switches. See FMC 

Corp., 6 FMSHRC 1294, 1299 (May 1984) (ALJ) (affirming a violation of 30 C.F.R. § 57.12–

18, the predecessor standard to the one at issue, where a switch which controlled a fan was not 

labeled). I credit the inspector’s testimony that the labels were not legible and that he could not 

readily identify what the various electrical components controlled. Consequently, I find that a 

violation of the standard existed. 

Frandsen testified that an injury was unlikely because the few miners that worked at the 

mine were familiar with the switches. (Tr. 220). He explained that, in the event one of the wrong 

disconnects or switches was locked out, a miner could get fatally electrocuted. (Tr. 220). 

I find that the inspector’s gravity designations are appropriate. Although the miners may 

have been aware of what components controlled which equipment, a serious injury could 

certainly occur if a miner worked on a piece of equipment that he mistakenly thought was locked 

out. See FMC Corp., 6 FMSHRC 1294, 1299 (May 1984) (ALJ). 

Frandsen determined that the operator exhibited moderate negligence. (Tr. 221). He 

testified that labels were present, but had been allowed to fade to the point where they were 

illegible. (Tr. 222). 

38 FMSHRC Page 738
I find that the violation was the result of Silver Queen’s low negligence. Silver Queen 

had taken steps to satisfy the standard in the past, as evidenced by the presence of labels. It is 

understandable that a small mine like this one, where only a few individuals would ever be 

regularly working with these electrical disconnects and buttons, could fail to notice labels slowly 

fading over time. The few miners who used these components were so familiar with them that 

Frandsen found it unlikely that they would fail to properly identify the correct component when 

they needed to use it or lock it out. The Secretary did not meet his burden of proof. 

Based on my findings and the penalty factors discussed below, I find that a penalty of 

$100.00 is appropriate. 

10. Citation No. 8871135

Safety Standard: 41.12 

Gravity: No likelihood, not S&S, no lost workdays, no person affected 

Negligence: Moderate 

Proposed Penalty: $100 

This citation alleges that changes to the mine’s legal identification had not been filed by 

the operator. The mine’s phone number changed about one year before the inspection. (Ex. PLL). Section 41.12 provides, in part, that the “operator of a coal or other mine shall, in writing, 

notify the appropriate district manager” within 30 days of any changes in the information 

required by section 41.11. 30 C.F.R. § 41.12. 

Frandsen testified that he attempted to call the mine multiple times at the phone number 

on file with MSHA, but that the number did not work. (Tr. 226). According to Frandsen, Graham 

later told him that the number had been changed and he thought he had filed the documentation 

with MSHA. (Tr. 225-226). 

I find that Silver Queen violated the cited standard. Section 41.12, in conjunction with 

section 41.11, requires that operators notify MSHA of the mine’s telephone number and, within 

30 days of a change in the telephone number, notify MSHA of the new telephone number. 30 

C.F.R. §§ 41.11-41.12. Here, the telephone number on file with MSHA was incorrect and

Frandsen was unable to get in touch with mine personnel when needed. No testimony was

offered by the operator regarding the timing of the phone number change. Under section 41.12, it

is the mine’s responsibility to ensure that the correct information is on file and it must bear the

consequences of its failure to do so. See The Pit, 16 FMSHRC 2033, 2034 (Oct. 1994). I credit

Frandsen’s testimony that Graham did not verify that he had filed the necessary paperwork to

change the mine’s telephone number. I find that a violation has been proven.

Frandsen determined that, given that this was a paperwork violation, there was no 

likelihood of an injury, and any injury would not result in lost workdays or restricted duty. (Tr. 

225). I agree with Frandsen’s assessment. 

Frandsen, relying upon Graham’s statement that he thought he had changed the phone 

number, determined that the mine was moderately negligent. (Tr. 225-226). I find that the 

38 FMSHRC Page 739
Secretary did not meet his burden of proof and I conclude that Silver Queen’s negligence was 

low with respect to this violation. 

Based on the findings and the penalty factors discussed below, I find that a penalty of 

$50.00 is appropriate due to the fact that it is a low negligence paperwork violation. 

B. WEST 2015-574-M

In February 2015, MSHA Inspector Frandsen inspected the Silver Queen Mine and 

issued six citations, as discussed below. 

1. Citation No. 8871177

Safety Standard: 57.14100(a) 

Gravity: Unlikely, not S&S, fatal accident possible, 1 person affected 

Negligence: Low 

Proposed Penalty: $100 

This citation alleges that the operator of a mucker failed to do a proper pre-operational 

inspection prior to operating a mucker (loader). (Ex. G-1). It is clear that the mucker operator 

failed to check the fire suppression system because one of the nozzles was missing, which was 

readily obvious. Section 57.14100(a) provides that “[s]elf-propelled mobile equipment to be used 

during a shift shall be inspected by the equipment operator before being placed in operation on 

that shift.” 30 C.F.R. § 57.14100(a). 

Frandsen testified that he observed a nozzle missing from part of the fire suppression 

system on a mucker. (Tr. 41, 43). Frandsen has conducted pre-operational inspections on similar 

equipment many times. (Tr. 41). According to Frandsen, the fire suppression system consisted of 

two pieces of copper tubing, one on each side of the mucker engine, that were used to deliver a 

chemical fire suppression agent to each side of the engine in the event of an equipment fire. (Tr. 

41-43). Frandsen saw that one of the copper tubes had a red nozzle at the end, while the other did

not. (Tr. 41; Ex. G-3 pp. 2-3). The purpose of the nozzles is to spread out the chemical agent into

a fan-shaped spray to put out fires. (Tr. 45). Without a nozzle, the chemical agent would not

spray where it is supposed to and, instead, would just shoot out and hit the rib. (Tr. 42). Frandsen

explained that the missing nozzle was obvious and should have been found during the preoperational inspection of the mucker. (Tr. 41-42). The fire suppression system is a safety feature

of the mucker, needs to work in the event of a fire, and should be checked during the preoperational inspection of the mucker. (Tr. 42-43). Although Frandsen testified that a miner told

him that he performed a pre-operational inspection before using the mucker that day, Frandsen

found no record noting the missing nozzle. (Tr. 43, 53). Frandsen opined that the condition had

existed for some time because the end of the tubing had a lot of scale on it, was not clean, and no

one could find the missing nozzle in the area. (Tr. 54-55).

I find that Silver Queen violated the cited standard. It was obvious that there was no 

nozzle on the end of the copper tubing on one side of the mucker engine. I credit Frandsen’s 

testimony and find that the nozzle is a safety feature of the fire suppression system and needs to 

38 FMSHRC Page 740
be inspected during the pre-operational inspection of the mucker. Without the nozzle, the fire 

suppression system is rendered useless on that side of the engine. I credit Frandsen’s testimony 

that the nozzle had been missing for some time, as evidenced by the rust and scale on the end of 

the tubing. Given the obviousness of the condition, I find that the equipment operator did not 

conduct an adequate inspection. Consequently, I affirm the fact of violation.5

Frandsen testified that, although an injury was unlikely due to the presence of a fire 

extinguisher on the mucker and the properly functioning fire suppression system on the other 

side of the engine, if an injury were sustained it was reasonably likely to be fatal. (Tr. 45-46, 52). 

Frandsen explained that he has fought several underground mine fires and, in the event of a fire 

on the mucker, smoke would either pour over the miner who was operating the mucker and/or 

the fire would be between the miner and the portal. (Tr. 46). Frandsen acknowledged that the 

mine is small, requiring only a 5-10 minute walk to exit, has a ventilation system, and the miners 

wear self-rescuers. (Tr. 52-53). 

I find that the inspector’s gravity designations are appropriate. I defer to the inspector’s 

testimony that it was unlikely that the conditions created by the violation would contribute to an 

injury. However, as discussed above, there is only one way in and out of the mine. As a result, if 

a fire were to occur on the mucker, a miner would be in a difficult situation. I credit Frandsen’s 

testimony that, depending on the location of the mucker at the time of a fire, a miner could either 

be trapped inby the fire or would have to deal with smoke pouring over him. Given these 

findings, and acknowledging the seriousness of hazards associated with underground mine fires, 

I find that the violation was very serious. 

In his brief, the Secretary argues that the court should find that the violation was “S&S” 

despite the testimony of the inspector to the contrary. (Sec’y Br. 12-14). The Secretary argues 

that decisions of the Commission make clear that, with respect to violations relating to 

equipment used in an emergency, the existence of the emergency should be assumed for 

purposes of the S&S analysis. As a consequence, the court should assume that the mucker caught 

fire and the lack of a nozzle on one side of the fire suppression system created an emergency 

situation. The Secretary also maintains Commission case law provides that that the presence of 

the fire extinguisher on the mucker should not be considered. The Secretary states that the 

inspector’s testimony supports an S&S finding given this Commission case law. 

I decline to modify the citation to an S&S violation on narrow grounds specific to the 

situation in this case. The Secretary did not raise this issue at the hearing. (Tr. 40-48). Silver 

Queen was represented by an inexperienced company representative. Inspector Frandsen 

specifically testified that an injury was unlikely as a result of this violation. (Tr. 45). Thus, until 

the Secretary filed his post-hearing brief, the Secretary’s position was that the violation was not 

S&S. The Secretary’s request to modify the citation is, in effect, a motion to amend the 

5

 At hearing, the operator’s representative moved to vacate this citation, arguing that 

“[t]here was no chance of any fatal accident occurring. The mine had abundant ventilation, a 

very short walk outside, miner had a self-rescuer, chances of fatality would be nil.” (Tr. 52). 

Respondent’s arguments are directed at the question of gravity, which is addressed in this 

decision. Respondent’s motion to vacate the citation is DENIED. 

38 FMSHRC Page 741
pleadings. I recognize that Rule 15(b)(2) of the Federal Rules of Civil Procedure provides that a 

“party may move – at any time, even after judgement – to amend pleadings to conform them to 

the evidence and to raise an unpleaded issue.” However, that provision assumes that the issue 

was “tried by the parties’ express or implied consent.” Fed. R. Civ. P. 15(b)(2). The S&S issue 

was not tried by the parties and there was no consent to do so in this pro-se case. The Secretary’s 

motion to amend the citation is DENIED. 

Frandsen determined that Silver Queen exhibited low negligence based on statements 

made to him by the mine that the fire suppression system was usually checked during service 

every couple of weeks. (Tr. 47). According to mine personnel, the missing nozzle had been 

present during the service check two weeks prior. (Tr. 44, 46-47). The equipment operator who 

was in charge of conducting the pre-operational inspection of the mucker only had two weeks of 

experience. (Tr. 44). 

I find that the violation was the result of Silver Queen’s low negligence. It is clear that 

the subject inspection was inadequate. I find that the fact that the mine checks the fire 

suppression system every few weeks, that the nozzle had been present during the last service 

check, and given the limited experience of the mucker operator who conducted the subject preoperational inspection, there is evidence to justify the inspector’s low negligence determination. 

Based on my findings and the penalty factors discussed below, I find that a penalty of 

$100.00 is appropriate. 

2. Citation No. 8871178 

Safety Standard: 57.15004 

Gravity: Reasonably likely, S&S, permanently disabling accident reasonably likely, 2 

persons affected 

Negligence: Moderate 

Proposed Penalty: $285 

This citation alleges that two miners working underground were not wearing eye 

protection and no eye protection was available underground. (Ex. G-3). The miners had installed 

three rock bolts that were pressurized to about 2,700 psi using jack leg drills. Section 57.15004 

provides that “[a]ll persons shall wear safety glasses, goggles, or face shields or other suitable 

protective devices when in or around an area of the mine or plant where a hazard exists which 

could cause injury to unprotected eyes.” 30 C.F.R. § 57.15004. 

Frandsen testified that he observed two miners whose faces were covered with mud. (Tr. 

58). The miners told Frandsen that they had been drilling and installing Swellex rock bolts, 

which, when pressurized, expand to lock the layers of rock. (Tr. 58-59). Frandsen testified that 

the miners did not have eye protection with them, there was no eye protection underground, and 

the miners could not produce eye protection when asked. (Tr. 58-59, 63, 64). Frandsen explained 

that a miner using the drill would be exposed to oil mist, mud, rock dust, chips, chunks and 

cuttings blowing back out of the drill hole with the water. (Tr. 60, 63). This particular drill, a 

jack leg drill, required the miners to use a lot of pressure to get the hole started. (Tr. 61). As a 

38 FMSHRC Page 742
result, the miners’ faces would be right at the jack when starting the hole, which is the most 

dangerous time. (Tr. 61-62). In order to pressurize the rock bolts and cause them to swell, 2700 

psi was required, which presented an additional hazard in case a hose or other component used to 

pressurize the bolts breaks. (Tr. 62). 

I find that Silver Queen violated the cited standard. Miners using the jack leg drill were 

exposed to flying mud and rock which were blown back out of the drill hole. Both rock and mud 

present a hazard when projected toward an individual’s unprotected eyes. Here, the two miners’ 

faces were covered in mud and they told the inspector they had been drilling and installing 

pressurized rock bolts. Neither miner had eye protection on, nor could either produce any eye 

protection when asked to do so. Consequently, I find that a violation has been proven. 

Frandsen testified that, because the miners did not have eye protection and could not 

produce any when asked, he concluded that not wearing eye protection was a common practice at 

the mine. (Tr. 65). If the mine continued this practice, it was reasonably likely to result in an eye 

injury, such as the loss of sight, given all of the flying rock, dust, dirt and oil. (Tr. 66). Further, 

when drilling, the miners’ faces were very close to where the rock, mud, water, and dust 

projectiles were flying. If they were struck in the eye, they would lose eyesight, which is a 

permanently disabling injury. (Tr. 63). Based on his observations, he designated the citation as 

S&S. (Tr. 66). 

I find that the violation was S&S. I find that a discrete safety hazard existed in that the 

failure to use eye protection while drilling and installing rock bolts exposed the miners’ eyes to 

flying rock, dust, dirt and oil. Any of these substances, when projected at the eye, has the 

potential to cause permanent damage to one’s vision. I credit Frandsen’s testimony regarding the 

miners’ inability to produce any eye protection and find that it was apparently a common 

practice at the mine to not use eye protection. Moreover, given that miners using this kind of drill 

would be required to have their faces close to where the projectiles were flying back out of the 

drill hole, I find that that an injury was reasonably likely to occur. Clearly the loss of sight is a 

serious, and potentially life altering, injury. Consequently, I find that the violation was S&S. 

Frandsen determined that the mine was moderately negligent. (Tr. 65). Miners told 

Frandsen that there should be some glasses in the office. (Tr. 63). Frandsen explained that 

Graham told him that that the mine had glasses and that the miners knew they were supposed to 

use them. (Tr. 65). 

I find that the mine was moderately negligent. It was mine management’s job to ensure 

that the miners were using eye protection when needed. Although Graham, the mine manager, 

told Frandsen that the mine had eye protection and the miners knew they were supposed to use it, 

the miners did not do so, nor could they produce any when asked by the inspector. Frandsen 

explained that miners “hate” wearing eye protection because of the need to constantly clean the 

glasses. (Tr. 64). I credit the inspector’s testimony on this issue and defer to his finding of 

moderate negligence. 

In his brief, the Secretary maintains that the evidence establishes that the violation was 

the result of Silver Queen’s high negligence. (Sec’y Br. 18-19). The Secretary relies on MSHA’s 

38 FMSHRC Page 743
penalty regulations in making this argument. 30 C.F.R. § 100.3(d) Table X. I am not bound by 

the Secretary’s Part 100 regulations and I decline to follow the classifications that MSHA uses in 

defining the levels of negligence.6

 Moreover, counsel for the Secretary asked the inspector 

“could you have designated this as a higher level of negligence?” (Tr. 65). The inspector replied, 

in part, “No. They had some mitigating evidence.” Id. Thus, the Secretary tried to raise this issue 

at hearing but the inspector did not agree. For the reasons set forth above and set forth with 

respect to the Secretary’s motion to amend Citation No. 8871177, the Secretary’s motion to 

amend this citation is DENIED. 

Based on my findings and the penalty factors discussed below, I find that a penalty of 

$550.00 is appropriate. I raised the penalty above that proposed by the Secretary because of the 

serious nature of the violation. 

3. Citation No. 8871179

Safety Standard: 57.18006 

Gravity: Reasonably likely, S&S, permanently disabling injury, 1 person affected 

Negligence: Moderate 

Proposed Penalty: $263 

The citation alleges that the operator had not ensured that a new miner was using PPE or 

following safe work practices. (Ex. G-5). This miner had about two weeks of underground 

experience and had helped install rock bolts without safety glasses. He was also the miner who 

operated the mucker, discussed above, without performing a competent pre-operational check. 

Section 57.18006 provides that “[n]ew employees shall be indoctrinated in safety rules and safe 

work practices.” 30 C.F.R. § 57.18006. 

Frandsen testified that one of the two miners involved in the eye protection citation, 

discussed above, was a new and inexperienced miner, while the other was an experienced miner. 

(Tr. 77). According to Frandsen, the experienced miner was not modeling safe mining practices 

for the inexperienced miner. (Tr. 78). In particular, Frandsen noted that the experienced miner 

was allowing the inexperienced miner to drill without eye protection. (Tr. 79). Further, the 

experienced miner did not make sure that the inexperienced miner conducted a proper preoperational inspection of the mucker, also discussed above. (Tr. 80). Frandsen explained that the 

new miner had incorrectly received “experienced miner training,” had not been underground 

before, and needed to have “40 hours [of] inexperienced miner training.” (Tr. 80-81, 86-87). 

Frandsen testified that, based on his observations, he could have issued multiple 104(g) orders to 

the mine for the inadequate training of the new miner. (Tr. 81). 

I find that Silver Queen violated the cited standard. Clearly this new miner had not been 

trained in safe work practices. Both the new miner and experienced miner failed to wear eye 

6

 In determining whether an operator has met its duty of care, I consider “what actions 

would have been taken under the same circumstances by a reasonably prudent person familiar 

with the mining industry, the relevant facts, and the protective purpose of the regulation.” Jim 

Walter Res. Inc., 36 FMSHRC 1972, 1975 (Aug. 2014) (footnote omitted). 

38 FMSHRC Page 744
protection when hazards necessitating such protection were present. I agree with the inspector 

that the experienced miner failed to set an example for the new miner and did not indoctrinate 

him in the safety rules and safe work practices. The same could be said with regard to the 

citation issued for the inadequate pre-operational inspection. The violation is affirmed. 

Frandsen testified that, because the new miner was not being trained correctly, it was 

reasonably likely that a permanently disabling injury would be sustained and that the violation 

was S&S. (Tr. 82-84). He explained that the poor example set by the experienced miner, in 

particular the failure of that individual to wear eye protection, should make “the hair on the back 

of your head . . . stand up.” (Tr. 82). Further, he noted multiple other dangers that could stem 

from the experienced miner’s failure to set a good example, namely, improper pre-operational 

equipment inspections, roof and rib concerns and knowing how to safely bar them down, and 

having proper personal protective equipment. (Tr. 82-83, 85). Frandsen explained that the 

miner’s lack of training would have eventually led to the loss of eyesight due to drilling without 

eye protection. (Tr. 83). 

I find that the violation was S&S. I find that a discrete safety hazard existed in that the 

inadequate training regarding safety rules and safe work practices made the new miner a “hazard 

to himself and to others.” 30 U.S.C. § 814(g)(1). Here, as discussed above, the new miner was 

lucky to escape injury while drilling without eye protection. Moreover, also discussed above, the 

miner clearly had not been properly trained on how to conduct a proper pre-operational 

inspection, as evidenced by his failure to note the obvious condition of the missing nozzle on the 

fire suppression system. Consequently, I find it reasonably likely that, assuming continued 

mining operations, this miner would have injured either himself or another miner. In the event an 

injury was sustained as a result of the lack of training that resulted in the citations discussed 

above, the injuries would be serious. I affirm the S&S designation. 

Frandsen determined that the mine was moderately negligent. (Tr. 84). Although he 

believed that the experienced miner did not set a good example, he felt that putting the new 

miner with the experienced miner was a mitigating circumstance. (Tr. 84). 

I find that the mine was moderately negligent. I agree with Frandsen that having the new 

miner work with an experienced miner was a good decision. However, the experienced miner 

failed to teach safe work practices to the new miner. Management has a responsibility to not only 

train its miners, but also to ensure that the miners comply with the training. The mine failed to do 

so. Consequently, I find affirm the inspector’s moderate negligence determination. 

As with the previous citation, the Secretary maintains that the evidence establishes that 

the violation was the result of Silver Queen’s high negligence. (Sec’y Br. 26). Inspector 

Frandsen testified that the violation was caused by management’s moderate negligence. (Tr. 85). 

The Secretary did not attempt to modify the citation at the hearing and did not raise this issue 

until it filed his post-hearing brief. For the same reasons set forth above and set forth with respect 

to the Secretary’s motion to amend Citation No. 8871177, the Secretary’s motion to amend this 

citation is DENIED. 

38 FMSHRC Page 745
Based on my findings and the penalty factors discussed below, I find that a penalty of 

$550.00 is appropriate. As with the previous violation, I raised the penalty based on the serious 

nature of the violation. 

4. Citation No. 8871180 

Safety Standard: 57.20011 

Gravity: Unlikely, not S&S, lost workdays or restricted duty, 1 person affected 

Negligence: Moderate 

Proposed Penalty: $100 

The citation alleges that warning signs were not in place to warn miners that rocks could 

fall from an open hole at the South drift raise. (Ex. G-7). The citation further states that miners 

travel past the “area daily and regularly throughout the shift.” Id. The miners were exposed to 

broken bone injuries from falling and rolling rock. Section 57.20011 provides that “[a]reas where 

health or safety hazards exist that are not immediately obvious to employees shall be barricaded, 

or warning signs shall be posted at all approaches.” 30 C.F.R. § 57.20011. The safety standard 

also requires that any warning signs “shall be readily visible, legible, and display the nature of 

the hazard and any protective action required.” Id. 

Frandsen testified that he observed a hole in the roof of the mine. (Tr. 90). The mine had 

blasted the hole while evaluating whether to develop a raise to another level. (Tr. 92). Frandsen 

explained that the hole presented a hazard because rocks could fall from the hole and strike a 

miner. (Tr. 92). A lunch box was seen in the area and miners regularly walk through this area 

when going into and out of the mine. (Tr. 92). There were no warning signs in the area to 

indicate the presence of the hole and, according to Frandsen, the hole was not obvious. (Tr. 90, 

96, 97). Frandsen did not immediately notice the hole. (Tr. 96-97, 101-102). Rock was piled up 

below the hole. (Tr. 96-97; Ex. G-8 p. 2). Frandsen initially assumed that the rock was just a 

muck bay where the muck was being temporarily stored. (Tr. 96-97). There were all different 

sizes of rock in the pile. (Tr. 99). It was not until he saw ventilation tubing in the area that he 

discovered the hole. (Tr. 92, 97, 102). Although Frandsen testified that the mine told him the 

hole was boarded up, that was not the case. (Tr. 93-94, 100). Rather, there were a few boards in 

the hole and there were plenty of gaps, including a ladder opening, through which rock could 

fall. (Tr. 94; Ex. G-8 p. 3). 

I find that Silver Queen violated the cited standard. I find that a hazard existed. The hole 

had not been boarded up and sizeable rocks could easily fall through the openings seen in the 

picture taken by the inspector. (Ex. G-8 p. 3). I credit Frandsen’s testimony that rocks falling 

from the hole could have struck and injured a miner walking in the area. I further find that the 

hazard was not obvious. I credit the inspector’s testimony that he did not initially see the hole 

when he entered the area. Consequently, I find that the hazard was not obvious. Given that no 

barricades or warning signs were present to alert persons to the non-obvious hazard presented by 

the hole, I find that a violation has been proven. 

Frandsen testified that, although an injury was unlikely because the muck pile would 

probably stop falling rocks from rolling too far and he was not certain what was up in the hole, if 

38 FMSHRC Page 746
a miner were hit by a rolling rock he could suffer an injury that would result in lost workdays or 

restricted duty. (Tr. 96, 101). Frandsen explained that, although he thought the rocks were at the 

angle of repose, a larger rock could bounce and roll off the pile and strike a miner in the ankle, 

leg, or foot, causing broken bones, strains, or sprains. (Tr. 96, 99-100). A preponderance of the 

evidence supports the inspector’s gravity designation. 

Frandsen determined that the mine was moderately negligent based on comments made 

by a mine examiner who said he knew the hole was there, but did not see it as a problem since 

rocks would not fall on anyone’s head. (Tr. 98). However, according to Frandsen, the individual 

did not consider the possibility of rocks rolling and hitting miners. (Tr. 98). I affirm the 

inspector’s moderate negligence determination. 

Based on my findings and the penalty factors discussed below, I find that a penalty of 

$100.00 is appropriate. 

5. Citation No. 8871182

Safety Standard: 57.12028 

Gravity: Reasonably likely, S&S, fatal injury reasonably likely, 1 person affected 

Negligence: Moderate 

Proposed Penalty: $585 

This citation alleges that the operator failed to perform a ground continuity test after a 

new cable was installed between the generator on the surface and the two fan control stations at 

the portal. (Ex. G-9). The cable was changed out on or about January 4, 2015 by the operator’s 

employees who had no electrical experience. Miners were exposed to fatal electrocution or 

electrical shock. Section 57.12028 provides that “[c]ontinuity and resistance of grounding 

systems shall be tested immediately after installation, repair, and modification and annually 

thereafter.” 30 C.F.R. § 57.12028. The safety standard also requires that the operator keep a 

record of such examinations.

Frandsen testified that, at the direction of an electrical contractor, Graham and some 

miners changed out a 480 volt rated three phase main power cable between a generator and the 

controls for two fans used to ventilate the mine. (Tr. 107-109, 111). The mine failed to conduct a 

ground continuity test following the installation of the new cable. (Tr. 107). 

I find that Silver Queen violated the cited standard. I agree with the inspector that, under 

the cited standard, following the installation of the new cable, a ground continuity test was 

required. The operator did not conduct a ground continuity test following the installation. 

Consequently, I find that a violation occurred. 

Frandsen testified that the mine’s failure to conduct a ground continuity test following the 

installation of the cable was reasonably likely to result in a fatal accident and designated the 

citation as S&S. (Tr. 114). Frandsen explained that the miners who installed the cable had 

limited electrical experience. (Tr. 109). Although they had been task trained by the electrical 

contractor on how to conduct a ground continuity test, neither the contractor nor the miners could 

38 FMSHRC Page 747
remember if they were trained on the need to conduct the test following the installation, which is 

something Frandsen said an experienced electrician would have known to do. (Tr. 109-111). 

Frandsen explained that when electrical work is done by someone with little electrical experience 

the risk is extremely high. (Tr. 114). This cable is not like a household extension cord and, 

instead, is part of a 480 volt system that requires someone replacing it to wire it, use proper lugs 

and fittings, check the rotation, and hook it up to the grounding. (Tr. 114). Failure to properly 

ground the cable could result in a fatal electrocution, especially because the fan controls that 

were supplied power by the cable were located in an area where there was a lot of water. (Tr. 

115-116). By failing to conduct the ground continuity test the mine ran the risk that the cable was

ungrounded, which could result in a loss of life. (Tr. 112).

I find that the violation was S&S. I find that a discrete safety hazard existed in that by 

failing to conduct a ground continuity test, miners could not know if they were at risk of 

electrocution when starting fans that were supplied power by this cable. The miners who 

changed the cable had little electrical experience and, although they knew how to do a ground 

continuity test, they failed to do so. Further, I credit the inspector’s testimony that the risk of 

injury is high when miners with minimal electrical knowledge conduct this kind of work. 

Consequently, I agree that, assuming continued mining operations, it was reasonably likely that 

an injury would be sustained as a result of the mine’s failure to conduct a ground continuity test 

as required by the standard.7

 The inspector did not know whether the cable passed the ground

continuity test without any corrections being made when the test was performed to abate the 

citation. (Tr. 117-18). Nevertheless, I find that the hazard created by the violation was reasonably 

likely to lead to a serious injury. 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). The Secretary 

established that the violation was S&S. 

Frandsen determined that the violation was the result of Silver Queen’s moderate 

negligence. (Tr. 116). He believed mitigating circumstances existed because the mine replaced 

the cable for safety reasons. (Tr. 116). Moreover, according to Frandsen, the miners told him that 

they could not remember if the electrical contractor told them that they needed to re-test the 

ground continuity after the new cable was installed. (Tr. 116-117). 

I credit the inspector’s testimony and find that Silver Queen was moderately negligent. 

Although the mine’s decision to replace the old cable is commendable, the failure to test the 

cable after installation demonstrates moderate negligence. 

7

 During cross-examination the representative for the mine asked multiple questions 

regarding whether the inspector checked the cable to see if it was in fact grounded. (Tr. 120-123). 

However, the question whether the cable was grounded at the time of the inspection does not 

resolve the issue before the court. Rather, the relevant issue is whether the mine checked to see if 

it was grounded. Here, the mine did not determine whether the cable was grounded and, as a 

result, could not have known if the cable was safe for use. 

38 FMSHRC Page 748
As with two other citations, the Secretary maintains that the evidence establishes that the 

violation was the result of Silver Queen’s high negligence. (Sec’y Br. 31). Inspector Frandsen 

testified that the violation was caused by management’s moderate negligence. (Tr. 116). The 

Secretary did not attempt to modify the citation at the hearing and did not raise this issue until he 

filed his post-hearing brief. For the same reasons set forth above and set forth with respect to the 

Secretary’s motion to amend Citation No. 8871177, the Secretary’s motion to amend this citation 

is DENIED. 

Based on my findings and the penalty factors discussed below, I find that a penalty of 

$584.00 is appropriate. 

6. Citation No. 8871183

Safety Standard: 57.18002(a) 

Gravity: Unlikely, not S&S, lost workdays or restricted duty, 1 person affected 

Negligence: Moderate 

Proposed Penalty: $100 

The citation alleges that the operator had not designated a competent person to perform 

workplace examinations for the surface area of the mine. (Ex. G-11). The citation further states 

that surface areas include repair benches, bulk oil and fuel storage areas, the explosive magazine, 

and other work areas. The inspector stated that miners could be injured because the areas were 

not examined and noted that the mine manager said that every miner regularly looks over the 

area because cows travel through the site and tear things up. Section 57.18002(a) provides, in 

part, that “[a] competent person designated by the operator shall examine each working place at 

least once each shift for conditions that any adversely affect safety or health.” 30 C.F.R. § 

57.18002(a). 

Frandsen testified that Graham told him that the mine did not have a designated person to 

examine the surface of the mine. (Tr. 126). The surface areas of the mine were not being 

inspected despite the fact that miners worked in some of those areas daily. (Tr. 126-127). Rather, 

according to Frandsen, Graham told him that if the miners saw something that was not safe, they 

would fix it. (Tr. 128, 139). 

I find that Silver Queen violated the cited standard. The surface had multiple working 

places that were accessed daily and needed to be examined at least once each shift. I credit 

Frandsen’s testimony that Graham told him that the mine did not have a designated person who 

examined the surface. As a result, I find that the violation is proven. 

Frandsen testified that an injury was unlikely because the miners generally fixed 

problems when they found them. Any injury was reasonably likely to result in lost workdays or 

restricted duty. (Tr. 128-129). Frandsen noted that the types of injuries generally associated with 

failure to examine these areas are electrical injuries, broken bones, tripping injuries, and 

housekeeping, fire and smoke related injuries. (Tr. 129). I agree with the inspector’s gravity 

findings. 

38 FMSHRC Page 749
Frandsen determined that the mine was moderately negligent based on what Graham told 

him about the miners fixing problems on the surface when they found them. (Tr. 129). Frandsen 

noted that, aside from this citation, he did not see any violations on the surface. (Tr. 129). I 

affirm the inspector’s moderate negligence determination. 

Based on my findings and the penalty factors discussed herein, I find that a penalty of 

$100.00 is appropriate. 

II. APPROPRIATE CIVIL PENALTY

Section 110(i) of the Mine Act sets forth the criteria to be considered in determining an 

appropriate civil penalty. 30 U.S.C. § 820(i). Silver Queen had a history of 13 violations during 

the 15 months preceding the issuance of the subject citation, but only two were S&S. Respondent 

is a small operator that worked just over 8,000 hours in 2014. The violations were abated in good 

faith. The operator did not establish that the proposed penalties will have an adverse effect upon 

its ability to continue in business. 

38 FMSHRC Page 750
III. ORDER

Based on the penalty criteria, I assess the following civil penalties: 

Citation/Order No. 30 C.F.R. § Penalty 

WEST 2015-448-M 

 8871120 57.6306(g) $1,500.00 

 8871121 57.6202(a)(5) 162.00 

 8871122 57.14132(b)(1) 540.00 

 8871123 57.4102 162.00 

 8871124 57.12032 162.00 

 8871125 57.13011 100.00 

 8871126 57.8528 100.00 

 8871127 57.11053(c) 100.00 

 8871134 57.12018 100.00 

 8871135 41.12 50.00 

WEST 2015-574-M 

 8871177 57.14100(a) 100.00 

 8871178 57.15004 550.00 

 8871179 57.18006 550.00 

 8871180 57.20011 100.00 

 8871182 57.12028 584.00 

 8871183 57.18002(a) 100.00 

TOTAL PENALTY $4,960.00 

For the reasons set forth above, the citations are AFFIRMED or MODIFIED as set forth 

above. The Silver Queen Mine LLC is ORDERED TO PAY the Secretary of Labor the sum of 

$4,960.00 within 40 days of the date of this decision.8

 /s/ Richard W. Manning 

Richard W. Manning 

Administrative Law Judge 

8

 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 

38 FMSHRC Page 751
Distribution: 

John Lauer, Esq., Office of the Solicitor, U.S. Department of Labor, 1244 Speer Blvd., Suite 216, 

Denver, CO 80204-3518 (Certified Mail) 

D. Scott Horn, Conference & Litigation Representative, Mine Safety & Health Administration,

991 Nut Tree Road, 2nd Floor, Vacaville, CA 95687 (First Class Mail)

Trenton Davis, The Silver Queen Mine LLC, 1477 Menlo Avenue, Clovis, CA 93611 (Certified 

Mail) 

38 FMSHRC Page 752
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 

April 11, 2016 

DECISION AND ORDER

Appearances: Timothy J. Turner, Esq., Office of the Solicitor, U.S. Department of 

Labor, Denver, Colorado, for Petitioner 

R. Henry Moore, Esq., Jackson Kelly PLLC, Pittsburgh, Pennsylvania, for

Respondent

Before: Judge McCarthy 

I. STATEMENT OF THE CASE

This case is before me upon three petitions for assessment of civil penalties under section 

105(d) of the Federal Mine Safety and Health Act of 1977, as amended, (“the Mine Act”), 30 

U.S.C. § 815(d). 

At issue in this matter are 58 citations issued by the Secretary of Labor (“the Secretary”) 

under section 104(a) of the Mine Act charging mine operator Northshore Mining Company 

(“Northshore”) with violations of mandatory health and safety regulations. The parties settled 54 

of the citations prior to hearing and litigated the remaining four. 

The four citations that proceeded to hearing were Citations 8840455 and 8840744 in 

Docket Number LAKE 2015-529-M and Citations 8840631 and 8840659 in Docket Number 

LAKE 2015-395-M. Each citation presented the following issues: whether Northshore violated 

the mandatory health and safety standard cited by the Secretary; if so, whether the Secretary 

properly assessed the gravity of the violation and the level of negligence attributable to 

Northshore; and what penalties, if any, should be assessed against Northshore.

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

v. 

NORTHSHORE MINING COMPANY, 

 Respondent 

CIVIL PENALTY PROCEEDINGS 

Docket No. LAKE 2015-340-M 

A.C. No. 21-00831-374635

Docket No. LAKE 2015-395-M 

A.C. No. 21-00831-376944

Docket No. LAKE 2015-529-M 

A.C. No. 21-00831-381656

Mine: Northshore Mining Company 

38 FMSHRC Page 753
A hearing was held in Duluth, Minnesota on November 23-24, 2015. During the hearing, 

the parties presented testimony and documentary evidence.1

 Witnesses were sequestered. I 

vacated Citation Number 8840631 from the bench, finding that the Secretary had failed to prove 

the violation alleged therein. 

I now issue further findings of fact and conclusions of law, beginning with findings of 

fact and discussion of legal principles germane to the disposition of all four disputed citations 

and continuing with separate findings of fact and conclusions of law for each citation. For the 

reasons set forth below, I find that Citations 8840455, 8840744, and 8840659 were properly 

issued and affirm them, as written. Applying the penalty criteria set forth under section 110(i) of 

the Mine Act to my findings, I assess penalties totaling $3,503.00 for those three citations. I also 

discuss and affirm my bench findings supporting the decision to vacate Citation Number 

8840631, and I review and approve the parties’ settlement of the 54 citations that did not proceed 

to hearing. 

Based on the entire record, including my observation of the demeanor of the witnesses,2

and after considering the post-hearing briefs, I make the following findings: 

II. STIPULATIONS AND GENERAL FACTUAL BACKGROUND

A. Stipulations of Fact and Law

At hearing, the parties agreed to the following stipulations: 

1. Northshore was at all times relevant to these proceedings engaged in mining activities

at the Northshore Mining Company where the citations in this matter were issued.

1

 Exhibits R-4, R-6, R-12, R-14, and S-1 to S-18, except for the portion of Exhibit S-17 

consisting of a September 26, 2015 coal mine fatality notice (see Tr. 154 for my discussion of 

why the notice was excluded), were received into evidence at the hearing. Tr. 8-9, 268. The 

abbreviation “Tr.” refers to the transcript of the hearing. In addition to the exhibits and testimony 

admitted at hearing, Northshore attached to its closing brief an exhibit, marked as Exhibit R-16, 

consisting of printouts from online weather services showing the temperature at the mine on 

January 25, 2015, the day one of the citations was issued. I decline to admit the printouts into 

evidence because the Secretary did not have an opportunity to respond to them. However, I will 

take judicial notice that publicly available weather reports show that the temperature was 19 

degrees Fahrenheit at the mine on the day in question. I further admit into the record the 

Secretary’s settlement motions with regard to the 54 settled citations. I have marked the 

settlement motion for Docket Number LAKE 2015-340-M as Exhibit ALJ-1, the settlement 

motion for Docket Number LAKE 2015-395-M as Exhibit ALJ-2, and the settlement motion for 

Docket Number LAKE 2015-529-M as Exhibit ALJ-3. 

2

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

the witnesses, their interest in this matter, their experience and credentials, the inherent 

probability of their testimony in light of other events, the corroboration or lack of corroboration 

for the testimony given, and the consistency, or lack thereof, within and between the testimony 

of witnesses. 

38 FMSHRC Page 754
2. Northshore’s mining operations affect interstate commerce.

3. Northshore is subject to the jurisdiction of the Mine Act.

4. Northshore is an “operator” as that word is defined in section 3(d) of the Mine Act,

30 U.S.C. § 803(d), at the mine where the contested citations in these proceedings

were issued.

5. The Administrative Law Judge has jurisdiction over these proceedings pursuant to

section 105 of the Mine Act, 30 U.S.C. § 815.

6. On the dates the citations in these dockets were issued, the issuing MSHA inspectors

were acting as duly authorized representatives of the Secretary, were assigned to

MSHA, and were acting in their official capacity when conducting the inspections

and issuing the subject MSHA citations.

7. The citations at issue in these proceedings were properly served upon Northshore as

required by the Mine Act.

8. The citations at issue in these proceedings may be admitted into evidence.

9. The certified copy of the MSHA Assessed Violation History (marked as Exhibit S1)

reflects the history of the citation issuances at the mine prior to the date of the last

citation.

10. Northshore demonstrated good faith in abating the violations.

11. The penalties proposed by the Secretary in this case will not affect the ability of the

Respondent to stay in business.

Ex. S-2; Tr. 8-9. 

B. General Factual Background

The four citations in dispute in this case were issued at the Northshore Mining Company 

mine (“the Northshore mine”) in Silver Bay, Minnesota. Tr. 22. The mine, which is currently 

controlled by Northshore’s parent company, Cliffs Natural Resources, has been in operation 

since the 1950s. Tr. 22, 48, 56. It is an aboveground processing facility that receives raw iron ore 

extracted at one of the controller’s other mines and converts it into taconite pellets. Tr. 22, 39-40, 

92. Work areas within the facility include the pelletizing plant, which houses various

components of the pelletizing process such as the furnace where the pellets are dried and fired,

and the yards and docks from which the finished product is shipped to buyers. Tr. 77-78, 113,

238. All of the structures, facilities, equipment, and machinery at the mine are subject to the

mandatory health and safety regulations for surface metal and nonmetal mines promulgated by

the Secretary in Title 30, Part 56 of the Code of Federal Regulations.

38 FMSHRC Page 755
One of the citations at issue in this proceeding, Citation Number 8840455, was issued by 

MSHA Inspector Mindy A. Meierbachtol3

 for an electrical violation after a phase-to-ground fault 

occurred at the pelletizing plant while she was inspecting it in March 2015. Ex. S-6. The other 

three disputed citations were issued by MSHA Inspector Terrance Norman4

 for conditions he 

observed while inspecting the Northshore Mining Company mine in January and March 2015. 

Ex. S-9; Ex. S-15; Ex. S-18. All four of the citations were issued on separate dates and are 

unrelated to each other, although some of them involve the same witnesses. The independent 

facts and circumstances surrounding each of the citations are discussed in greater detail below. 

III. PRINCIPLES OF LAW

A. Establishing a Violation

To prevail on a penalty petition, the Secretary bears the burden of proving by a 

preponderance of the evidence that a violation of the Mine Act occurred. RAG Cumberland Res. 

Corp., 22 FMSHRC 1066, 1070 (Sept. 2000), aff’d, 272 F.3d 590 (D.C. Cir. 2001). A mine 

operator is held strictly liable for violations that occur at its mine. Spartan Mining Co., 30 

FMSHRC 699, 706 (Aug. 2008). The operator may avoid liability only by showing that it was 

not properly on notice of the violative nature of its conduct. Even in the absence of actual notice, 

the Secretary may properly charge the operator with a violation when a reasonably prudent 

person familiar with the protective purposes of the cited standard and the factual circumstances 

surrounding the allegedly hazardous condition, including any facts peculiar to the mining 

industry, would have recognized a hazard warranting corrective action within the purview of the 

applicable regulation. LaFarge North America, 35 FMSHRC 3497, 3500-01 (Dec. 2013); Ideal 

Cement Co., 12 FMSHRC 2409, 2415-16 (Nov. 1990); Alabama By-Products Corp., 4 

FMSHRC 2128, 2129 (Dec. 1982). 

3

 Meierbachtol has been a mine safety and health inspector since September 2013. To 

become an inspector, she completed thirteen months of classes and field training at the Mine 

Safety and Health Academy in Beckley, West Virginia. She previously worked as a pilot. Along 

with her flight certificates, she also holds a Master’s Degree in safety science. Meierbachtol 

testified that she is familiar with the Northshore mine because she spent about six weeks there 

during her Mine Academy training period and has since headed two regular inspections of the 

mine. Tr. 20-22, 39, 41. 

4

 As of the hearing date, Norman had served as an MSHA inspector for about a year and 

a half after completing approximately one year of training. Before coming to MSHA, he spent 

fourteen years working at a steel mining plant, two years working for a sand and gravel 

company, and seven years working for a conveyor belt company called Northern Belt and 

Conveyor that installed and repaired belts at facilities including the Northshore mine. He served 

as a safety director for the conveyor belt company until he was laid off. Norman holds a B.S. and 

a Master’s Degree in safety from University of Minnesota-Duluth. Tr. 91-92, 172-73. 

38 FMSHRC Page 756
B. Gravity 

The gravity penalty criterion under section 110(i) of the Mine Act, 30 U.S.C. § 820(i), “is 

often viewed in terms of the seriousness of the violation.” Consolidation Coal Co., 18 FMSHRC 

1541, 1549 (Sept. 1996) (citing Sellersburg Stone Co., 5 FMSHRC 287, 294-95 (March 1983), 

aff'd, 736 F.2d 1147 (7th Cir. 1984); Youghiogheny & Ohio Coal Co., 9 FMSHRC 673, 681 

(Apr. 1987)). The seriousness of a violation can be examined by looking at the importance of the 

standard violated and the operator’s conduct with respect to that standard, in the context of the 

Mine Act’s purpose of limiting violations and protecting the safety and health of miners. See,

e.g., Harlan Cumberland Coal Co., 12 FMSHRC 134, 140 (Jan. 1990) (ALJ). 

The gravity analysis focuses on factors such as the likelihood of an injury, the severity of 

an injury, and the number of miners potentially injured. The Commission has recognized that an 

assessment of the likelihood of injury is to be made assuming continued normal mining 

operations, without abatement of the violation. U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 

(Aug. 1985).

C. Significant and Substantial (S&S) 

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).5

 

In a seminal early decision interpreting this statutory provision, the Commission 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). 

In so holding, the Commission rejected the Secretary’s argument that all violations are S&S 

except technical violations or violations that pose only a remote or speculative risk of injury or 

illness. The Commission found that the Secretary’s interpretation would result in almost all 

violations being categorized as S&S, which would be inconsistent with the statutory language 

and the role the S&S provision is intended to play in the Mine Act’s graduated enforcement 

scheme. 3 FMSHRC at 825, 828. The Commission also found that the Secretary’s interpretation 

would leave little room for inspectors to exercise their independent judgment. Id. at 825-26.6

 In 

addition, the Commission found that the Secretary’s interpretation would render the Act’s S&S 

 5

 See also id. § 814(e), the Mine Act’s pattern-of-violations provision, which is the only 

other provision that mentions S&S, and which defines the term the same way as § 814(d)(1). 

6

 The Commission has consistently reiterated that the inspector’s judgment is an 

important element of the S&S determination. However, the concept has generally been raised in 

the context of deferring to the inspector’s opinion that a violation was S&S, rather than in the 

context of examining whether the inspector exercised independent judgment in forming this 

opinion as opposed to merely following the “mechanical approach” advanced by the Secretary 

and rejected by the Commission in National Gypsum, 3 FMSHRC at 825. See, e.g., Wolf Run 

Mining Co., 36 FMSHRC 1951, 1959 (Aug. 2014); Maple Creek Mining, Inc., 27 FMSHRC 555, 

563 n.6 (Aug. 2005); Harlan Cumberland Coal Co., 20 FMSHRC 1275, 1278-79 (Dec. 1998). 

38 FMSHRC Page 757
language almost superfluous, and would render the Act’s pattern-of-violation provisions wholly 

punitive by making it almost impossible for a mine to be relieved of withdrawal order liability 

once placed on notice of a pattern of violations. Id. at 826-27. Although the Commission did not 

develop a test to determine whether violations are S&S, it enunciated several guiding principles. 

Specifically, it stated that the term “hazard” denotes “a measure of danger to safety or health” 

and that a violation is S&S if it “could be a major cause” of such a danger. Id. at 827. 

In its subsequent Mathies decision, the Commission set forth a four-prong test for 

determining whether a violation is S&S under National Gypsum. Mathies Coal Co., 6 FMSHRC 

1 (Jan. 1984). To establish an S&S violation, the Secretary must prove: (1) the underlying 

violation of a mandatory safety standard; (2) a discrete safety hazard – that is, a measure of 

danger to safety – contributed to by the violation; (3) a reasonable likelihood that the hazard 

contributed to will result in an injury; and (4) a reasonable likelihood that the injury in question 

will be of a reasonably serious nature. Id. at 3-4. The Secretary, mine operators, and the federal 

appellate courts have accepted the Mathies test as authoritative. See Knox Creek Coal Corp. v. 

Sec’y of Labor, 811 F.3d 148, 160 (4th Cir. 2016) (noting federal appellate courts’ uniform 

adoption of Mathies test and parties’ recognition of authority of test); Mach Mining, LLC v. 

Sec’y of Labor, 809 F.3d 1259, 1267 (D.C. Cir. 2016) (applying Mathies criteria); Buck Creek 

Coal, Inc. v. Fed. Mine Safety & Health Admin., 52 F.3d 133, 135 (7th Cir. 1995) (recognizing 

wide acceptance of Mathies criteria); Austin Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103 (5th 

Cir. 1988) (approving use of Mathies criteria). 

Ensuing case law has solidly established several general principles regarding the proper 

application of the Mathies test. The Commission has held that the S&S determination should be 

made assuming “continued normal mining operations.” McCoy Elkhorn Coal Corp., 36 

FMSHRC 1987, 1990-91 (Aug. 2014) (citing U.S. Steel Mining Co., 7 FMSHRC 1125, 1130 

(Aug. 1985)). The assumption of continued normal mining operations considers “the length of 

time that the violative condition existed prior to the citation and the time it would have existed if 

normal mining operations had continued,” without any assumptions as to abatement. Black 

Beauty Coal Co., 34 FMSHRC 1733, 1740 (Aug. 2012), aff’d sub nom. Peabody Midwest 

Mining, LLC v. FMSHRC, 762 F.3d 611 (7th Cir. 2014); Rushton Mining Co., 11 FMSHRC 

1432, 1435 (Aug. 1989); see also Knox Creek, 811 F.3d at 165-66 (upholding Commission’s 

rejection of “snapshot” approach to evaluating S&S for accumulations violation); Mach Mining, 

809 F.3d at 1267-68 (citing with approval McCoy Elkhorn’s discussion of operative timeframe 

for S&S). The Commission has repeatedly stated that the S&S determination must be based on 

the particular facts surrounding the violation. See, e.g., Wolf Run Mining Co., 36 FMSHRC 1951, 

1957-59 (Aug. 2014) (remanding S&S finding for further consideration of relevant 

circumstances); Black Beauty, 34 FMSHRC at 1740; Peabody Coal Co., 17 FMSHRC 508, 511-

12 (Apr. 1995); Texasgulf, Inc., 10 FMSHRC 498, 500 (Apr. 1988). 

A line of cases beginning with the Seventh Circuit’s decision in Buck Creek, supra, has 

established that an operator cannot rely on redundant safety measures to mitigate the likelihood 

of injury for S&S purposes. See, e.g., Brody Mining, LLC, 37 FMSHRC 1687, 1691 (Aug. 

38 FMSHRC Page 758
2015).7

 Finally, Commission precedent indicates that the likelihood of injury is the key 

consideration in determining whether a violation is S&S. Consolidation Coal Co., 18 FMSHRC 

1541, 1550 (Sept. 1996) (comparing S&S inquiry, which focuses on “the reasonable likelihood 

of serious injury,” with gravity inquiry, which focuses on “the effect of the hazard if it occurs”).

The evolving case law, however, has presented conflicting guidance as to how some of 

these principles should be applied. In particular, there is some confusion about how to evaluate 

the facts surrounding the violation and the likelihood of injury under the second and third prongs 

of the Mathies analysis. The Fourth Circuit’s recent decision in Knox Creek, supra, and the 

Seventh Circuit’s decision in Peabody Midwest Mining, LLC v. FMSHRC, 762 F.3d 611 (7th Cir. 

2014), have cast doubt on whether the traditional application of the literal language of the second 

and third prongs of the Mathies test is still valid. 

Traditional Application of Mathies Test 

Under the traditional approach, Commission Administrative Law Judges (ALJs) have 

conducted the fact-intensive component of the analysis and evaluated the reasonable likelihood 

of injury at the third prong. In one of its earliest decisions applying the Mathies test, the 

Commission explained that “the reference to ‘hazard’ in the second element [of the test] is 

simply a recognition that the violation must be more than a mere technical violation – i.e., that 

the violation present a measure of danger.” U.S. Steel Mining Co., 6 FMSHRC 1834, 1836. 

“There is no requirement of ‘reasonable likelihood’” encompassed in this element. Musser 

Engineering, Inc., 32 FMSHRC 1257, 1280 (Sept. 2010). Rather, longstanding Commission 

precedent indicates that the likelihood of harm should be accounted for in the third Mathies 

element, which “requires that the Secretary establish a reasonable likelihood that the hazard 

contributed to will result in an event in which there is an injury.” U.S. Steel, 6 FMSHRC at 1836 

(quoted by the Commission on numerous occasions over the next two decades, including in Elk 

Run Coal Co., 27 FMSHRC 899, 906 (Dec. 2005); Bellefonte Lime Co., 20 FMSHRC 1250, 

1254-55 (Nov. 1998); Zeigler Coal Co., 15 FMSHRC 949, 953 (June 1993); and Texasgulf, 10 

FMSHRC at 500). As the Commission explained in another early decision, “The third element 

embraces a showing of a reasonable likelihood that the hazard will occur, because, of course, 

there can be no injury if it does not.” Consolidation Coal Co., 6 FMSHRC 189, 193 (Feb. 1984). 

Following this guidance, ALJs have traditionally applied Mathies by identifying the 

potential hazard at the second prong, and then at the third prong, assessing whether there is a 

reasonable likelihood that the hazard will result in injury under the particular facts of the case at 

7

 It is not completely clear whether redundant safety measures are precluded from 

consideration such that it is error to take them into account, which could make it difficult for 

judges at the trial level to discharge their duty of considering all the particular facts surrounding 

the violation, or whether arguments that rely on redundant safety measures are simply disfavored 

as a defense to S&S. Compare Brody Mining, 37 FMSHRC at 1691 (stating that evidence 

regarding redundant safety measures has been “consistently rejected as irrelevant”) with Black 

Beauty Coal Co., 36 FMSHRC 1121, 1125 n.5 (May 2014) (stating only that such measures “do 

not prevent a finding of S&S”) and Buck Creek, 52 F.3d at 136 (“The fact that Buck Creek has 

safety measures in place to deal with a fire does not mean that fires do not pose a serious safety 

risk to miners.”). 

38 FMSHRC Page 759
hand, with the caveat that normal mining operations are assumed to continue without abatement 

of the violation. The crux of this traditional Mathies analysis is the third and fourth prongs of the 

test, which effectuate National Gypsum’s definition of S&S (reasonable likelihood of a 

reasonably serious injury) and are often combined into a single showing (reasonable likelihood 

that a particular serious injury will occur under the facts of the case). Consistent with this 

approach, MSHA inspectors determine whether a violation meets the criteria for S&S by the 

likelihood of injury and the expected severity of injury, which correspond to the third and fourth 

Mathies elements.8 

Over the years, it appears that the Commission, with court approval, has developed 

special rules for applying the Mathies test in two situations. First, for violations that contribute to 

the hazard of an ignition, fire, or explosion, the Commission has held that the third Mathies 

element is satisfied only when a “confluence of factors” is present that could have triggered an 

ignition, fire, or explosion, under continued normal mining operations. Zeigler Coal Co., 15 

FMSHRC at 953; Texasgulf, 10 FMSHRC at 501; see, e.g., Paramont Coal Co. Va., LLC, 37 

FMSHRC 981, 984 (May 2015). Second, for violations of emergency safety standards, the 

Commission assumes the emergency when making the S&S evaluation. See, e.g., Cumberland 

Coal Res., LP v. FMSHRC, 717 F.3d 1020, 1027-28 (D.C. Cir. 2013); Mill Branch Coal Corp., 

37 FMSHRC 1383, 1394 (July 2015). 

Effect of Recent Fourth & Seventh Circuit Decisions 

The Fourth Circuit’s recent Knox Creek decision issued in January 2016 appears to shift 

the focus of the S&S analysis from the third to the second Mathies prong and to restrict 

consideration of the facts bearing on the reasonable likelihood of injury under the third prong. 

The Fourth Circuit interpreted the second Mathies prong to entail an inquiry into the likelihood 

of harm, stating: 

In our view, the second prong of the test ... primarily accounts for 

the Commission’s concern with the likelihood that a given 

violation may cause harm. This follows because, for a violation to 

contribute to a discrete safety hazard, it must be at least somewhat 

likely to result in harm. 

Knox Creek, 811 F.3d at 162. Significantly, the Fourth Circuit further held that the occurrence of 

the hazard must be assumed under the third prong of the Mathies test. Id. at 161-65. Evidence of 

the likelihood that the hazard will occur is not considered at this prong, according to the Fourth 

Circuit. Rather, the inquiry is whether the hazard, assuming it occurred, would result in serious 

injury. Id. at 162. The particular hazard confronted by the Fourth Circuit was the escape of 

ignited gas into the mine atmosphere through impermissible enclosures. Id. at 164. The parties 

8

 The Secretary’s citation/order form contains boxes for inspectors to check the likelihood 

of injury and the expected severity of injury immediately above the line where they designate the 

violation S&S or non-S&S. See, e.g., Ex. S-6. Inspectors are trained not to designate a violation 

as S&S, unless item 10.A on the form is marked “reasonably likely,” “highly likely,” or 

“occurred,” and item 10.B is marked “lost workdays or restricted duty,” “permanently 

disabling,” or “fatal.” See MSHA, PROGRAM POLICY MANUAL, Vol. I, § 104 (2003). 

38 FMSHRC Page 760
had stipulated that the mine was a “gassy” mine that liberated more than 500,000 cubic feet of 

methane or other explosive gases per day. Id. at 164. Consequently, the ALJ had found that 

methane was reasonably likely to accumulate to explosive concentrations. Id. The ALJ had also 

found that a resulting explosion was reasonably likely to cause serious injuries, but he had 

ultimately declined to find that the violation was S&S because the Secretary had failed to prove 

the likelihood of an ignition. Id. at 154, 164-65. Without discussing the likelihood of ignition, the 

Fourth Circuit deemed the ALJ’s other findings sufficient to satisfy the third Mathies prong. Id. 

Previously, in Peabody Midwest Mining, the Seventh Circuit had similarly suggested that 

the S&S analysis assumes the occurrence of the hazard. The violation at issue in that case was 

the mine operator’s failure to erect berms on an elevated roadway. The Seventh Circuit defined 

the hazard as the risk that a vehicle would veer off the roadway and go over the edge. Peabody 

Midwest, 762 F.3d at 616. The operator had argued that a vehicle was not reasonably likely to 

veer off the road. Id. However, the Seventh Circuit stated that the question “is not whether it is 

likely that the hazard (a vehicle plummeting over the edge) would have occurred” but “whether, 

if the hazard occurred (regardless of likelihood), it was reasonably likely that a reasonably 

serious injury would result.” Id. 

Peabody Midwest does not discuss the proper role of deference in the S&S context, but 

the Fourth Circuit reached its holding in Knox Creek by deferring to the Secretary’s 

interpretation that the third Mathies element requires proof that the hazard, not the violation 

itself, is likely to cause injury. 811 F.3d at 161 (declining to afford deference under Chevron, 

USA, Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984), but finding the Secretary’s 

interpretation persuasive and therefore entitled to deference under Skidmore v. Swift & Co., 323 

U.S. 134 (1944)). The Fourth Circuit further asserted that this interpretation is consistent with a 

number of prior cases, including the Seventh Circuit’s decisions in Peabody Midwest and in 

Buck Creek, supra, 52 F.3d at 135 (assuming occurrence of fire at third Mathies prong when ALJ 

had engaged in “confluence of factors” analysis at second prong); the Fifth Circuit’s decision in 

Austin Power, supra, 861 F.2d at 103-04 (declining to require evidence that the hazard was likely 

to occur); and the Commission’s decision in Musser Engineering, supra, 32 FMSHRC at 1280-

81 (stating that the third Mathies prong requires a showing that the hazard, not the violation 

itself, will cause injury). 811 F.3d at 161-62.9 The Fourth Circuit rejected the operator’s 

9

 It is debatable to what extent Austin Power and Buck Creek truly stand for the 

proposition the Fourth Circuit seems to be embracing, which is that the actual likelihood of 

injury is irrelevant, except to the extent necessary to establish a “discrete” hazard at the second 

Mathies prong. In Austin Power, the Fifth Circuit upheld an S&S finding for a fall protection

violation, reasoning that “[a] danger of falling is a necessary element of this violation, so by the 

very nature of a violation there was a discrete safety hazard.” 861 F.2d at 103. However, the 

hazard had actually occurred and had resulted in a fatality, which may have influenced the 

Court’s failure to require additional evidence of likelihood at the third Mathies prong. 861 F.2d 

at 100. In Buck Creek, the Seventh Circuit did not expressly discuss the proper application of the 

Mathies test, but simply rejected the mine operator’s argument that the ALJ had not put enough 

emphasis on the third and fourth Mathies factors when evaluating S&S for an accumulations 

violation. 52 F.3d at 135. The ALJ had made a finding at the second Mathies prong (rather than 

the third) that there existed a confluence of factors, including fuel sources and ignition sources, 

(continued...) 

38 FMSHRC Page 761
argument that under Zeigler Coal Company, supra, the Secretary must show that an ignition is 

reasonably likely under the third Mathies prong. 811 F.3d at 164. The Court found this position 

to be “flatly contradicted” by Musser Engineering and by decisions of other federal appellate 

courts. Id. 

The Fourth Circuit emphasized, however, that the Mathies approach that it has adopted 

“still allows plenty of room for a fact-intensive S & S analysis, both under prong two, where the 

Secretary must establish that the violation contributes to a discrete safety hazard, and within 

prongs three and four, where evidence is still necessary to establish that the hazard is reasonably 

likely to result in a serious injury.” Id. Realistically, however, it will likely require very little 

fact-specific analysis to conclude that any given non-technical violation contributes to a discrete 

safety hazard, because the Secretary generally does not promulgate a mandatory health and 

safety regulation (except technical regulations), unless the Secretary has already found that 

violating the standard would contribute to a hazard. Under the third Mathies prong, judges must 

consider all of the facts surrounding the violation, but must assume continued normal mining 

operations without abatement of the violation, and may not rely on redundant safety measures to 

mitigate the likelihood of injury. Now, under Knox Creek and Peabody Midwest Mining, judges 

must also assume that the hazard will actually occur. At some point, so many circumstances are 

either assumed or precluded from consideration that judges will find themselves evaluating the 

likelihood of injury in the abstract. If this is the case, the Commission will have turned its back 

on the principles set forth in National Gypsum because the Mathies test will have become a 

longhand expression for “non-technical violations.” S&S will apply to almost all violations and 

therefore will no longer serve as a statutory tool by which the Secretary can single out the 

violations that he believes the Commission should consider significant and substantial when 

assessing a penalty. 

As noted above, the Fourth Circuit reached its result in Knox Creek by deferring to the 

Secretary’s interpretation of the Mine Act, and the Seventh Circuit reached a similar result. At 

the outset of its analysis, the Fourth Circuit indicated that it would review the Commission’s 

legal conclusions de novo but would afford deference to the Secretary’s, not the Commission’s, 

legal interpretations. Id. at 157 (citing Sec’y of Labor ex rel. Wamsley v. Mut. Mining, Inc., 80 

F.3d 110, 113-15 (4th Cir. 1996), in which the Fourth Circuit discussed the Mine Act’s splitenforcement scheme and concluded that an informal rule created and implemented by the

Secretary was entitled to deference over a contrary Commission decision).

It is not surprising that the Circuit Courts have departed somewhat from the traditional 

Mathies analysis in favor of the Secretary’s legal interpretation, given the rule of deference 

mentioned above, and given the fact that the Secretary’s attorneys, and not the Commission’s, 

are the ones who argue for enforcement of the Commission’s decisions in the Circuit Courts of 

Appeals. That latter protocol is strange. Notwithstanding the propriety of the rule of deference 

applied by the Fourth Circuit, which raises concerns that I previously discussed in Knife River 

Corporation Northwest, 34 FMSHRC 1109, 1125-27 (May 2012) (ALJ), it does not make sense 

9

 (...continued) 

that could trigger a fire. Id. By contrast, in Knox Creek, the Fourth Circuit did not require a 

“confluence of factors” analysis or a showing that an ignition source existed at any prong of the 

Mathies test.

38 FMSHRC Page 762
that although Congress conferred independent adjudicatory authority upon the Commission to 

serve as an impartial forum for Mine Act litigation, and although the Commission itself laid out 

the test that parties have followed for more than thirty years to litigate S&S in this forum, the 

Secretary is permitted to challenge the Commission’s interpretation of this long-standing test in 

the Circuit Courts of Appeals and litigate his own interpretation on behalf of the Commission. It 

should be obvious that since the Secretary is one of the litigating parties before the Commission 

at the trial level, the Commission’s and the Secretary’s views on interpretation of the Act may 

differ. See e.g., The American Coal Co., 36 FMSHRC 1311 (May 2014) (ALJ), petition for 

interlocutory review granted, Unpublished Order dated July 11, 2014. In my view, the 

Commission’s interpretations of Mine Act provisions that turn on adjudication and not 

enforcement should be accorded at least some form of deference based on the power to persuade, 

as evidenced by the fact that courts and litigants have uniformly followed the Commissionderived Mathies test.10 Compare Chevron, supra (according full deference to agency’s 

reasonable interpretation of ambiguous statutory provision) with United States v. Mead Corp., 

533 U.S. 218 (2001) (according deference based on “power to persuade” under Skidmore, supra, 

and finding that Chevron applies only where the agency was authorized by Congress to make 

rules carrying the force of law and did in fact promulgate the proffered interpretation in the 

exercise of that authority). It is within the Commission’s authority to specify how the second and 

third factors of the Mathies test should be applied – particularly, whether the hazard must now be 

assumed at the third factor, and if so, what steps of the test account for the facts surrounding the 

violation – and whether the Mathies test is still intended to effectuate National Gypsum’s 

interpretation of the S&S provisions of the Mine Act or whether the Commission now interprets 

S&S differently. 

Because I am bound by the Mathies test, but it is unclear how the second and third prongs 

of the test should be applied going forward, I will evaluate S&S under both the traditional 

approach and the more recent approach set forth in Knox Creek and Peabody Midwest Mining.

D. Negligence

Negligence is not defined in the Mine Act. The Commission has found “[e]ach 

mandatory standard thus carries with it an accompanying duty of care to avoid violations of the 

standard, and an operator’s failure to satisfy the appropriate duty can lead to a finding of 

negligence if a violation of the standard occurred.” A.H. Smith Stone Co., 5 FMSHRC 13, 15 

(Jan. 1983) (citations omitted). In determining whether an operator meets its duty of care under 

the cited standard, the Commission considers what actions would have been taken under the 

same or similar circumstances by a reasonably prudent person familiar with the mining industry, 

the relevant facts, and the protective purpose of the regulation. See generally U.S. Steel Corp., 6 

FMSHRC 1908, 1910 (Aug. 1984). See also Jim Walter Res., Inc., 36 FMSHRC 1972, 1975, 

1976-77 (Aug. 2014) (requiring Secretary to show that operator failed to take specific action 

required by standard violated); Spartan Mining Co., 30 FMSHRC 699, 708 (Aug. 2008) 

(negligence inquiry circumscribed by scope of duties imposed by regulation violated). 

10 But see Cumberland Coal Res., LP v. FMSHRC, 717 F.3d 1020, 1027 (D.C. Cir. 2013) 

(expressly declining to address validity of Mathies test). 

38 FMSHRC Page 763
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 MSHA’s regulations regarding negligence are not binding on the Commission, 

see Wade Sand & Gravel Co., 37 FMSHRC 1874, 1878 n.5 (Sept. 2015), MSHA defines 

negligence by regulation in the civil penalty context as follows: 

Negligence is conduct, either by commission or omission, which 

falls below a standard of care established under the Mine Act to 

protect miners against the risks of harm. Under the Mine Act, an 

operator is held to a high standard of care. A mine operator is 

required to be on the alert for conditions and practices in the mine 

that affect the safety or health of miners and to take steps necessary 

to correct or prevent hazardous conditions or practices. The failure 

to exercise a high standard of care constitutes negligence. The

negligence criterion assigns penalty points based on the degree to 

which the operator failed to exercise a high standard of care. 

When applying this criterion, MSHA considers mitigating 

circumstances which may include, but are not limited to, actions 

taken by the operator to prevent or correct hazardous conditions or 

practices . . . . 

30 C.F.R. § 100.3(d). 

MSHA regulations further provide that mitigation is something the operator does 

affirmatively, with knowledge of the potential hazard being mitigated, and that tends to reduce 

the likelihood of an injury to a miner. This includes actions taken by the operator to prevent or 

correct hazardous conditions. 30 C.F.R. § 100.3(d). According to MSHA, the level of 

negligence is properly designated as high when “[t]he 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. 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.” Id. The level of negligence is properly designated as low when there are 

considerable mitigating circumstances surrounding the violation. Id. 

Recently, the Commission held that Commission judges are not required to apply the 

level-of-negligence definitions in Part 100 and may evaluate negligence from the starting point 

of a traditional negligence analysis rather than from the Part 100 definitions. Brody Mining, LLC, 

37 FMSHRC 1687, 1701 (Aug. 2015); accord Mach Mining, LLC v. Sec’y of Labor, 809 F.3d 

1259, 1263-64 (D.C. Cir. 2016). Moreover, because Commission judges are not bound by the 

definitions in Part 100 when considering an operator’s negligence, they are not limited to a 

38 FMSHRC Page 764
specific evaluation of potential mitigating circumstances, and may find “high negligence,” in 

spite of mitigating circumstances, or moderate negligence, without identifying mitigating 

circumstances. Brody, 37 FMSHRC at 1701; Mach Mining, 809 F.3d at 1263-64. In this regard, 

the gravamen of high negligence is “an aggravated lack of care that is more than ordinary 

negligence.” Brody, 37 FMSHRC at 1701, citing Topper Coal Co., 20 FMSHRC 344, 350 (Apr. 

1998). Thus, in making a negligence determination, a Commission judge is not limited to an 

evaluation of allegedly mitigating circumstances and may consider the totality of the 

circumstances holistically. Under such an analysis, an operator is negligent if it fails to meet the 

requisite high standard of care under the Mine Act. Id. 

E. Penalty Assessment

The Act requires that the Commission consider the following statutory criteria when 

assessing a civil penalty: (1) the operator’s history of previous violations; (2) the appropriateness 

of the penalty to the size of the business; (3) the operator’s negligence; (4) the operator’s ability 

to stay in business; (5) the gravity of the violation; and (6) any good-faith compliance after 

notice of the violation. Douglas R. Rushford Trucking, 22 FMSHRC 598, 600 (May 2000); 30 

U.S.C. § 820(i). The Commission is not required to give equal weight to each of the criteria, but 

must provide an explanation for any substantial divergence from the proposed penalty based on 

such criteria. Spartan Mining Co., 30 FMSHRC 699, 723 (Aug. 2008). 

As I discussed in my final Big Ridge decision, in an effort to avoid the appearance of 

arbitrariness, I look to the Secretary’s penalty regulations and assessment formula as a reference 

point that provides useful guidance when assessing a civil penalty. Big Ridge Inc., 36 FMSHRC 

1677, 1681-82 (July 2014) (ALJ); see also Wade Sand & Gravel, supra, at 1880 n.1 (Chairman 

Jordan and Commissioner Nakamura, concurring). See also Bowles v. Seminole Rock & Sand 

Co., 325 U.S. 410, 414 (1945) (holding that an agency’s interpretation of its own regulation 

should be given controlling weight unless it is plainly erroneous or inconsistent with the 

regulation). 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. Unique aggravating or mitigating circumstances will be taken into account 

and may call for higher or lower penalties that diverge from this paradigm. My independent 

penalty assessment analysis applies to each of the citations at issue in this case. 

IV. FURTHER FINDINGS OF FACT, ANALYSIS,

AND CONCLUSIONS OF LAW 

A. Citation Number 8840455 (Deficient Splice in Recoup Fan Panel)

1. Further Findings of Fact

Citation Number 8840455 alleges that a cable at the pelletizing plant was not properly

spliced, in contravention of 30 C.F.R. § 56.12013. Ex. S-6. The cable in question helps energize 

the recoup fan, which is located at the firing furnace on the bottom floor of the pelletizing plant. 

Tr. 82. The recoup fan serves the dual functions of pulling air through the pellet bed to cool the 

pellets as they exit the furnace, and pushing the hot air from the pellet bed back into the drying 

section of the furnace, thereby recouping some of the energy from the firing process. Tr. 25, 57, 

38 FMSHRC Page 765
77-78. The fan runs continuously, unless there is a power outage or the furnace is shut down for

maintenance. Tr. 49-50, 57. It has a ten-foot blade powered by a fifteen-ton, 4160-volt motor

running on 3000 amps of current. Tr. 25, 72-73.

The wires that energize the fan motor run through an electrical panel or junction box 

located on the bottom floor of the pelletizing plant, adjacent to a travelway. Tr. 30, 41. Inside the 

panel, they are joined to other wires to form three cables referred to by the parties as “phases,” 

which supply three-phase power to the fan motor and can be seen in photographs of the fan 

panel’s interior taken by Inspector Meierbachtol. Tr. 27-28, 58-59; see Ex. S-7 (photographs). 

Each phase consists of two wires coming from the starter that connect and terminate onto a larger 

cable that carries power to the fan motor. Tr. 61. The ends of the wires and cable are fitted with 

metal lugs that are bolted together to physically connect the conductors, and the entire 

connection is wrapped in tape to protect and insulate it. Tr. 66, 75-76. 

A phase-to-ground fault (an unexpected flow of electrical current to ground) occurred at 

one of the connections inside the recoup fan panel in March 2015. This triggered an investigation 

that culminated in the issuance of Citation Number 8840455. 

Events Surrounding Citation’s Issuance 

Inspector Meierbachtol, accompanied by Northshore safety representative Jared 

Conboy,11 was at the pelletizing plant conducting a regular inspection on March 25, 2015 when a 

partial power outage caused one of the plant’s furnaces to shut down. Tr. 22-24, 50. 

Meierbachtol and Conboy heard over the radio that there was a problem at the control room and 

smoke was coming from the MCC (motor control center) room. Tr. 50, 52. They traveled to the 

control room to investigate, where they learned that company electrician Chris Mattson, who was 

not called to testify at the hearing, had traced the problem back to a phase-to-ground fault that 

had occurred at the recoup fan panel. Tr. 24-25, 46, 50-51. The fault had tripped at least one 

breaker, shutting down the power and blowing open the door to the MCC room. See Tr. 39 

(Meierbachtol’s testimony agreeing that the fault “kicked the breakers and shut down the 

power”); Tr. 51-52 (Conboy’s testimony that “the secondary main breaker blew, and that was 

when the door came open”); Ex. S-8 at 5 (Meierbachtol’s field notes stating that Mattson told her 

two lighting arrestors blew out in the MCC room, tripping the fuses and blowing the door open). 

Fortunately, no one was injured. Tr. 39. 

Meierbachtol and Conboy examined the recoup fan panel and Meierbachtol took several 

photographs, which have been admitted into evidence in Exhibit S7. The panel door had been 

removed before Meierbachtol and Conboy arrived, revealing two intact phases and one twisted, 

burnt phase that had failed at the point where its constituent wires were joined. Tr. 25, 34, 46-47; 

11 At the time of the hearing, Conboy had been working for Northshore for almost four 

years. His job duties as a safety representative at the mine include identifying workplace hazards 

and escorting MSHA inspectors on the property. Previously, he earned a college degree in health 

education and worked for six years as a safety director for a construction company that installed 

mantels and built refrigerated buildings and warehouses. He has no electrical background. Tr. 

44-45, 47.

38 FMSHRC Page 766
see Ex. S-7. Burnt insulation and dust, which Inspector Meierbachtol assumed to be conductive 

taconite dust, were also visible inside the panel. Tr. 30, 41, 48. 

A few days later, Inspector Meierbachtol discussed the phase-to-ground fault with Jeff 

Bagwell, an electrical master at MSHA who was not called to testify at the hearing. Tr. 25, 36; 

see Ex. S-8 at 1 (containing notes Meierbachtol wrote during her discussion with Bagwell). 

Bagwell told Meierbachtol that the failed electrical connection in the recoup fan panel was a 

splice that had not been properly constructed. Tr. 36-37, 48; Ex. S-8 at 1. A splice, Meierbachtol 

explained at hearing, is an insulated connection made between terminal ends to continue an 

electrical circuit. Tr. 26-2712 According to Meierbachtol’s field notes, Bagwell told her that the 

failed splice had been insufficiently insulated and should have been constructed using special 

tape and a high-voltage splice kit. Ex. S-8 at 1. 

Based on her observations and the information that she had gathered, Inspector 

Meierbachtol issued Citation Number 8840455 on March 30, 2015, alleging as follows: 

Inside the panel for the Recup [sic] Fan, a cable was not properly 

spliced to be insulated to that of the original and was not provided 

with damage protection as near as possible to that of the original. 

A phase to ground occurred on 3/25/2015 inside the enclosure 

where the improper splice was found. This condition exposed 

miners to electrical shocks/burn hazards resulting in injury. 

Ex. S-6. The citation does not specifically reference the mechanical strength of the splice. 

However, Meierbachtol noted at the time the citation was written that an electrician at the mine 

had said that the mechanical connection may have come loose, and she later testified that she 

found a violation in part because the splice “was not properly up to the mechanical standard of 

the original or better.” Ex. S-6 (Citation/Order Documentation); Tr. 26. She assessed the level of 

negligence as “moderate,” the probability of injury as “reasonably likely,” the severity of the 

expected injury as “fatal,” and the number of persons affected as one, and she characterized the 

violation as S&S. Ex. S-6. She testified that the violation could result in 4160-volt electrical 

shocks and burns, and opined that it had, in fact, caused an arc flash. Tr. 30-31. 

12 Specifically, Meierbachtol stated, “A splice is when you have one terminal end and you 

have another terminal end, and when you put them together you connect them together to keep 

the circuit going, and you use electrical tape to put around it.” Tr. 26. The crux of this definition 

is the concept of creating an insulated connection between electrical conductors to continue a 

circuit. Northshore argues that Meierbachtol relied on Bagwell to tell her that the failed 

connection was a splice and that she “was not really qualified to testify on this issue.” Resp. Br. 

8, 9. However, Meierbachtol completed an electrical training module at the Mine Academy and 

professed to have some experience constructing low-voltage splices. Tr. 33, 41. Although she is 

not an electrician, it does not take years of experience to learn to identify a splice. I find her 

qualifications sufficient to lend reliability to her testimony identifying the cited electrical 

connection as a splice. I also find that her reasonable decision to talk to an electrical master 

before issuing a citation does not detract from the reliability of her testimony in this regard. 

38 FMSHRC Page 767
Inspector Meierbachtol traveled to the mine the day after she issued the citation to 

terminate it. Electricians had repaired the splice by cutting off the damaged parts of the wires, 

cleaning the conductors, installing and bolting together four new lugs, and wrapping the area 

with ten layers of high-voltage electric tape and a layer of scotch 33+ tape, which is general 

electrical tape rated for 500 volts. Ex. S-6; Tr. 31-33, 37-38, 64-65, 78, 81. The electricians who 

had performed the repairs told Meierbachtol that they had used a high-voltage splice kit. Tr. 33, 

37. They also told her that “they don’t do splices here, they make connections.” Tr. 38; Ex. S-8

at 7 (noting mine’s lack of procedures for making splices).

While at the mine to terminate the citation, Meierbachtol further discussed the cause of 

the phase-to-ground fault with numerous Northshore employees. See Ex. S8 at 2-7. Ultimately, 

she concluded that the bolt and lugs holding the wires together in the splice had loosened over 

time, and because because material could penetrate the loose connection and electricity was 

flowing through it, “eventually it just arc flashed inside [the recoup fan panel] and failed.” Tr. 

29-30. She “was told that these failures happen quite often” at the mine. Tr. 31; Ex. S-8 at 3.

Testimony of Northshore’s Electrical Engineer, Michael Ketola 

Northshore called electrical engineer Michael Ketola13 to discuss the cited equipment and 

the March 25 electrical incident. Tr. 55. Ketola was not involved in the incident or the 

subsequent repair work, but offered testimony based on his professional experience and 

knowledge, and his after-the-fact observations of the recoup fan panel. Tr. 57-58, 78. 

When asked at hearing whether the failed connection in the recoup fan panel was a splice, 

Ketola conceded that it was “a splice of some sort, you could say. You’re splicing – you’re 

taking two cables that come from the starter and you’re terminating to one cable that comes from 

the motor. So you’re making a physical connection.” Tr. 81-82. Counsel for the Secretary 

subsequently elicited the following exchange: 

Q [by counsel for the Secretary]: You just mentioned when you 

were talking to Judge McCarthy that the connection that we’re 

dealing with here of the lugs being connected with a bolt was a

type of splice; is that correct? 

A [by Ketola]: Yeah, it’s a termination, whatever you want to call 

it. 

Q: It’s a type of splice, correct? 

A: Correct. 

13 Ketola has worked for Cliffs Natural Resources for twenty years, fifteen or sixteen of 

which have been at the Northshore mine. He is in charge of maintenance for the substations, high 

voltage motors, and other infrastructure at the mine. He previously worked as an electrical 

engineer for another construction company for about seven years. He holds a four-year degree in 

electrical engineering from Michigan Technological University. Tr. 55-56, 73. 

38 FMSHRC Page 768
Tr. 85-86. On redirect, Ketola explained that he typically thinks of a splice as a connection 

between two conductors of the same size in the middle of a run. Tr. 87-88. By contrast, he 

typically considers an end-to-end connection between multiple conductors of different sizes, (the 

type of connection at issue in this case), to be a termination, “but it could be considered a splice.” 

Tr. 87. Thus, while he considered the connection at issue in this case to be an unusual type of 

splice, he nonetheless conceded unequivocally that it could still be considered a splice.

The splice had been in place for years. Tr. 35, 63. According to Ketola, the connection 

originally was wrapped in a material called varnished cambric (VC) to pad the sharp edges of the 

lugs and bolt. Tr. 61-62. The connection was then covered with a layer of insulating tape and a 

layer of protective tape. Tr. 62-63. By contrast, after the phase-to-ground fault occurred, the 

splice was repaired by wrapping the lugs and bolt in a particular type of yellow tape instead of 

VC before adding a layer of 130C insulating tape and a layer of 33+ protective tape. Tr. 63-65. 

Ketola explained that Northshore had switched from using VC to using the yellow tape after 

2001 because VC has an undesirable tendency to become dry and brittle over time, 

“caramelizing” to the connection, such that it cannot be easily removed. Tr. 63-64, 79. Although 

the mine no longer uses it, Ketola opined that VC provides protection and insulation equivalent 

to that provided by the yellow tape and stated that the VC and tape combination formerly used at 

the mine was intended to be equivalent to the insulation on the cables themselves. Tr. 65-66. 

Ketola suggested that using VC does not affect the integrity of a connection because VC’s main 

function is simply to cover the sharp edges of the lugs and bolts to prevent the outer layers of 

tape from being pierced, not to serve as an insulator. Tr. 78-79. Asked how long the VC plus tape 

combination would be expected to last, he indicated that it would depend on environmental 

factors and concluded “it’s really hard to say.” Tr. 79. 

 Ketola described a number of safety measures that are in place at the mine to prevent or 

mitigate shock hazards. The phase-to-ground fault had opened two breakers, one at the fan motor 

starter and the other at the powerhouse that feeds the starter. Ketola testified that these are 

redundant safety measures intended to prevent injury by shutting off the power. Tr. 67. In 

addition, the fan motor and recoup fan panel are grounded, and Northshore performs annual 

grounding and resistance testing on its equipment in accordance with MSHA requirements. Tr. 

67-68, 71. Northshore also hires a contractor to perform motor circuit analysis on large motors 

such as the fan motor at six- or nine-month intervals to test the integrity of the grounding and 

insulation systems. Tr. 68-69. In fact, the recoup fan motor had just been tested eight to ten days 

before the phase-to-ground fault occurred. Tr. 69. As of the hearing date, Northshore was also in 

the process of implementing thermography analysis at the mine to detect heating at electrical 

connection points, but this had not been implemented at the fan motor or recoup fan panel before 

the phase-to-ground fault occurred. Tr. 70-71. 

Ketola did not identify any safety measures that would have helped to ensure that the 

splice inside the recoup fan panel was physically sound and functioning as intended. Although 

the fan motor is periodically replaced, the wiring in the fan panel is not. Tr. 74-75, 85. The panel 

is bolted shut and likely would not have been opened, absent a problem, meaning that it is 

possible that no one had examined or even looked at the splice since its installation. Tr. 80, 84. 

Ketola himself did not recall ever looking in the panel before the phase-to-ground fault occurred, 

and he would not have expected the contractors, who performed circuit analysis on the motor, to 

do so either. Tr. 70, 79-80, 84. However, Ketola opined that even if the panel had been opened 

38 FMSHRC Page 769
before the incident, there would have been no visible indication that a failure was imminent. Tr. 

83. 

Ketola was not aware that Northshore had performed any analysis to determine why the 

phase-to-ground fault occurred. Tr. 72. In his opinion, the connection “just must have developed 

a high resistance and started heating and it deteriorated the insulation.” Tr. 72, 80. He posited 

that the re-energization of the fan motor, after undergoing circuit analysis eight to ten days 

before the incident, may have placed stress on the electrical system because the motor would 

have drawn higher amperage than usual while accelerating the fan to its normal speed. Tr. 72, 

81-82. “[T]hat change over time could somehow loosen the lug washers or the bolt, or you could

just have stress on the bolts themselves,” leading to high resistance, he explained. Tr. 81. He also

acknowledged that taconite dust, which was visible in the picture of the recoup fan panel and is

“typically all over everything” at the pelletizing plant, could have exacerbated an arc flash by

trapping heat. Tr. 86-87, 89.

2. Analysis and Conclusions of Law

i. Violation of 30 C.F.R. § 56.12013

Section 56.12013 requires permanent splices and repairs in power cables to be 

mechanically strong, sufficiently insulated, and protected from damage. The regulation states: 

Permanent splices and repairs made in power cables, including the 

ground conductor where provided, shall be: 

(a) Mechanically strong with electrical conductivity as near as

possible to that of the original;

(b) Insulated to a degree at least equal to that of the original, and

sealed to exclude moisture; and

(c) Provided with damage protection as near as possible to that of

the original, including good bonding to the outer jacket.

30 C.F.R. § 56.12013. 

The Parties’ Positions 

The Secretary contends that the evidence establishes a violation of § 56.12013 because 

the cited electrical connection was a splice that failed because it was not mechanically strong or 

sound. Noting that Northshore pointedly used the word “connection” rather than “splice” at 

hearing, the Secretary characterizes this distinction as purely semantic and argues that 

Northshore’s own witness admitted the connection was a splice. To support the contention that 

the splice was not mechanically strong or sound, the Secretary cites testimony from Ketola and 

Inspector Meierbachtol indicating that the phase-to-ground fault occurred because the bolt 

holding the spice together had loosened. Sec’y Br. 9-13. 

Northshore argues that the Secretary has failed to establish a violation of § 56.12013 

because he has failed to prove that the connection in question was a splice or that it was not 

mechanically strong and sufficiently insulated. Northshore argues that the failure of the 

connection does not prove a violation occurred, that Inspector Meierbachtol’s testimony 

38 FMSHRC Page 770
regarding the cause of the failure is vague and speculative, and that I should credit the testimony 

of Northshore’s more experienced and knowledgeable witness, Ketola, that the splice was 

adequately insulated and mechanically strong. Even if the connection was defective, Northshore 

asserts that it does not fit within the ordinary meaning of the term “splice,” as defined by Ketola. 

Resp. Br. 5-9. 

Discussion 

As a threshold matter, I find that Northshore has conceded that the cited electrical 

connection was a splice. Northshore’s own witness, Ketola, admitted that this connection was “a 

splice of some sort” and could still “be considered a splice” even though it did not conform to his 

idea of a typical splice. Tr. 81, 87. Because this connection was a permanent splice, it was 

required to conform to the requirements of § 56.12013. 

Even if Northshore had not conceded the issue, I would still reject its suggestion that the 

term “splice” should be narrowly interpreted to encompass only connections between two 

conductors of the same size in the middle of a run. The Secretary’s regulations do not expressly 

define what constitutes a splice, such that it falls within the ambit of § 56.12013. However, to the 

extent that the regulation is ambiguous, the Secretary’s interpretation is entitled to deference 

unless it is unreasonable, plainly erroneous, inconsistent with the regulation, or does not reflect 

the agency’s fair and considered judgment on the matter. Drilling & Blasting Systems, Inc., 38 

FMSHRC _, slip op. at 5 (Feb. 22, 2016) (citing Christopher v. SmithKline Beecham Corp., 132 

S. Ct. 2156, 2166 (2012) and Auer v. Robbins, 519 U.S. 452, 461-62 (1997)). In this case, the

Secretary’s interpretation of § 56.12013 to encompass electrical connections of the type cited by

Inspector Meierbachtol is reasonable, persuasive, and entitled to deference, for the following

reasons.

First, the Secretary’s interpretation is supported by the evidence presented by both 

parties. The Secretary presented testimony from Inspector Meierbachtol, who consulted an 

electrical master at MSHA, and then concluded that a splice is an insulated connection made 

between the ends of conductors to continue a circuit. Tr. 26, 36. Consistent with this definition, 

the connection at issue here was an insulated connection made between the ends of conductors to 

continue the power circuit feeding the recoup fan motor. As noted above, Northshore’s electrical 

engineer, Ketola, also testified that the connection at issue here is a type of splice. 

Further, the Secretary’s interpretation of § 56.12013 is more consistent than Northshore’s 

with the text of the regulation, the pertinent regulatory framework, and the safety-promoting 

purposes of the Mine Act. Section 56.12013 applies to “[p]ermanent splices” and “repairs made 

in power cables.” The requirements that the regulation sets forth for mechanical strength, 

insulation, and protection are appropriate and promote safety when applied to the connection at 

issue here. If the regulation were interpreted, as Northshore suggests, to apply only to splices 

made in the middle of a run, which are essentially repairs, the reference to “splices” would be 

superfluous, and permanent electrical connections of the type at issue here would be excluded 

from regulation entirely. Review of the Secretary’s electrical standards reveals no intent to 

distinguish between different types of permanent splices or to exclude certain types of electrical 

connections from regulation, which would undermine the Act’s safety-promoting purposes. See 

30 C.F.R. Part 56, Subpart K. The Secretary’s interpretation, by contrast, furthers the Act’s 

38 FMSHRC Page 771
safety-promoting purposes and conforms to the regulatory framework governing electrical 

equipment. 

For the foregoing reasons, I find that the connection at issue here was a type of 

permanent splice. I accept and accord deference to the Secretary’s interpretation of § 56.12013 as 

applying to this splice. 

A preponderance of the evidence establishes that the cited splice was not sufficiently 

well-insulated or mechanically strong to meet the requirements of § 56.12013. The splice failed 

when a phase-to-ground fault occurred. Although the failure itself does not necessarily prove the 

violation, the fact that electrical current was able to escape from the power circuit at this point 

supports an inference that the splice was not as effectively insulated or mechanically sound as 

the rest of the cable. The evidence wholly supports this inference. 

No one observed the splice just before the phase-to-ground fault occurred. However, the 

evidence indicates that the connection likely failed because the insulation had deteriorated and 

the mechanical connection had loosened over time. It is unclear when, if ever, the splice had last 

been visually checked to ensure the connection was tight and properly insulated. Ketola testified 

that the splice had been constructed using lugs, a bolt, varnished cambric, and tape intended to 

provide the same insulation and protection as the cables themselves, but he could not say how 

long this construction would be expected to last. Tr. 61-62, 65, 79. Northshore stopped using 

varnished cambric after 2001. Tr. 63. This means that the splice was probably installed in 2001 

or earlier, providing ample time for the integrity of the connection to deteriorate if it was not 

being checked, at least occasionally, and repaired, tightened, or reinsulated, as needed. Inspector 

Meierbachtol opined that the phase-to-ground failure had been caused by the splice’s mechanical 

connection loosening over time. Tr. 29-30. This would have increased resistance at the 

connection, permitting heat to accumulate and setting the stage for a failure. 

Contrary to Northshore’s assertions, Meierbachtol’s findings regarding the cause of the 

phase-to-ground failure are neither vague nor too speculative to credit. She reached her 

conclusions only after examining the damaged splice and speaking to an electrical master at 

MSHA and to several of Northshore’s own electricians, one of whom told her that the possible 

cause of the failure was that the connection had become loose. See Tr. 25; Ex. S-6, 

(Citation/Order Documentation); Ex. S-8 at 1. Moreover, Ketola’s testimony is consistent with 

her conclusions. He attributed the splice’s failure to high resistance at the connection, which he 

said would cause heating and deterioration of the insulation. Tr. 72, 80-82. 

I accept Ketola’s testimony that the failure of the splice may have been precipitated by 

the recent restarting of the fan motor, after it underwent circuit testing. He explained that high 

resistance paired with high current would be expected to place stress on the mechanical 

connection, causing the lugs and bolt to loosen. Tr. 80-81. However, this would not relieve the 

operator of its duty to maintain the splice in safe condition in accordance with the requirements 

of § 56.12013, which it failed to do. 

I affirm Inspector Meierbachtol’s findings that the splice failed because it was not as 

mechanically strong or as well insulated as the rest of the cable. Accordingly, I find that a 

violation of § 56.12013 occurred. 

38 FMSHRC Page 772
ii. S&S and Gravity

The Parties’ Positions 

In support of Inspector Meierbachtol’s S&S designation, the Secretary argues that this 

violation exposed at least one miner to multiple severe and discrete safety hazards, including the 

hazard of being exposed to an arc flash or electrical shock, and the hazard of a fire occurring in 

the recoup fan panel. The Secretary further contends that these hazards were reasonably likely to 

immediately result in serious injury in this case because arc flashes potentially occurred inside 

the recoup fan panel, which was next to a travelway, and in the MCC room, which is frequented 

by miners. The Secretary also notes that Inspector Meierbachtol was told “these failures happen 

quite often” at the mine, indicating a continuing risk. Sec’y Br. 13-15. 

Northshore disputes the S&S designation and claims that the Secretary has not 

established a potential for injury to any miners. Northshore argues that because the cited splice 

was located inside the recoup fan panel and the panel was grounded, there was no likelihood of 

exposure. Northshore also points out that the electrical circuit itself features built-in protections 

that functioned, as intended, to shut down the power supply when the fault occurred. 

Northshore’s closing brief does not mention the possibility of an ignition or arc flash, except to 

note in passing that Inspector Meierbachtol failed to explain how the dust in the box could be 

ignited or conduct electricity. Resp. Br. 9-12. 

Discussion 

I have already found that a violation of a mandatory safety standard occurred, satisfying 

the first element of the Mathies test. 

Turning to the second Mathies element, I find that this violation contributed to the 

discrete hazard of the deficient splice failing and allowing electrical current to escape from the 

fan motor circuit at the failure point, creating additional discrete hazards of an arc flash, an 

electrical shock, or an electrical fire. These hazards created a measure of danger to safety for any 

miners working nearby in the pelletizing plant. 

As discussed above, the Fourth Circuit has held that the second Mathies element requires 

a further showing that the violation is “at least somewhat likely to result in harm.” Knox Creek 

Coal Corp. v. Sec’y of Labor, 811 F.3d 148, 163 (4th Cir. 2016). I find that this violation was 

more than somewhat likely to result in harm because the hazards to which it contributed were 

highly likely to occur, it was reasonably likely that miners would be exposed to the hazards, and 

injury was reasonably likely to result. 

The hazards to which this violation contributed were highly likely to occur, and some of 

the hazards did in fact occur. The splice failed, allowing electrical current to escape along an 

unintended path. Fortunately, no one was injured. However, the phase-to-ground fault pulled the 

cited splice apart, burned its insulation, and destroyed the ends of its constituent wires. See Ex. 

S-7. An arc flash almost certainly occurred. Tr. 30, 81. Enough heat or force was created to trip

at least one breaker and blow open the door to the MCC room. Tr. 39, 51-52, 67; Ex. S-8 at 5.

Even if the failure had not yet occurred at the time the citation was issued, the deficiencies in the

38 FMSHRC Page 773
splice were highly likely to eventually cause it to fail in a similar manner if normal mining 

operations had continued. The recoup fan panel apparently was never opened unless there was an 

obvious problem, even when the fan motor was periodically replaced. Tr. 70, 80. This made it 

unlikely that the splice would be examined or that any structural deficiencies would be 

discovered and addressed in the normal course of operations before the violation contributed to a 

catastrophic failure, such as the phase-to-ground fault that actually occurred. In fact, Inspector 

Meierbachtol was told that “these failures happen quite often” at the mine. Tr. 31. 

Miners were reasonably likely to be exposed to the hazards created by this violation. The 

splice was located in the pelletizing plant inside the recoup fan panel, which is adjacent to a 

travelway used by miners and vehicles. Tr. 30. There was a reasonable likelihood that miners 

using the travelway or working nearby would be exposed to the hazards of an arc flash or 

electrical fire at this location. Additionally, a more serious electrical event at the fan panel could 

cause problems elsewhere along the fan motor circuit, which spans about 500 feet of cable from 

the starter in the MCC room to the fan itself. Tr. 79. This potential occurrence could have 

exposed miners to electrical hazards at other locations or equipment along the circuit. 

Miners’ exposure to the hazards contributed to by this violation was reasonably likely to 

result in injury or harm. The hazards in question included the failure of the splice and resultant 

escape of electricity, and by their nature, these hazards would be expected to cause an arc flash 

and shock a nearby miner or spark a fire. Further, this violation involved dangerously high 

amounts of electricity. The splice was feeding a 4160-volt, 3000-amp motor. Tr. 25, 73. This 

increased the risk of injury from an electrical shock or arc flash. In fact, Ketola testified that arc 

flashes can jump further at higher voltages. See, e.g., Tr. 87. In addition, the conductive taconite 

dust inside the recoup fan panel would have exacerbated an arc flash and increased the risk of a 

fire being propagated. Tr. 86. Although Northshore argues that redundant safety measures, such 

as circuit breakers and grounding systems for the recoup fan panel and fan motor, were in place 

to mitigate the risk of injury to miners, the Commission has made clear that redundant safety 

measures do not operate as a defense in the S&S context. E.g., Black Beauty Coal Co., 36 

FMSHRC 1121, 1125 n.5 (May 2014) (noting that redundant safety measures do not prevent 

S&S finding); see also Brody Mining, LLC, 37 FMSHRC 1687, 1691 (Aug. 2015) (taking this 

principle even further by characterizing evidence of redundant safety measures as “irrelevant”). 

Because this violation contributed to hazards that were highly likely to occur, miners 

were reasonably likely to be exposed to the hazards, and injury was reasonably likely to result, I 

find that this violation was more than somewhat likely to result in harm. Accordingly, the second 

Mathies element is satisfied under the Fourth Circuit’s Knox Creek analysis. 

 As discussed in the “Legal Principles” section above, a hotly disputed aspect of the S&S 

analysis is whether the third step of the Mathies test requires consideration of the likelihood that 

the hazard itself will occur or simply the likelihood that injury will occur as a result of the 

hazard. The federal appellate courts have assumed the occurrence of the hazard at this step of the 

analysis, which is in line with recent Commission precedent. See Knox Creek, 811 F.3d at 161-

62 (citing Peabody Midwest Mining, LLC v. FMSHRC, 762 F.3d 611, 616 (7th Cir. 2014); Buck 

Creek Coal, Inc. v. Fed. Mine Safety & Health Admin., 52 F.3d 133, 135 (7th Cir. 1995); Austin 

38 FMSHRC Page 774
Power, Inc. v. Sec’y of Labor, 861 F.2d 99, 103-04 (5th Cir. 1988); and Musser Engineering, 

Inc., 32 FMSHRC 1257, 1280-81 (Oct. 2010)). 

Applying this approach and assuming that the hazards contributed to by this violation 

were to occur, I find that injury was reasonably likely to occur as a result of the hazards. Miners 

were reasonably likely to be exposed to the hazard of the splice failing, due to its location 

adjacent to a travelway in the pelletizing plant where miners frequently work and travel. Any 

miners exposed were reasonably likely to incur injuries, given the high voltage and amperage 

involved, and the nature of the condition, which was likely to result in an arc flash or shock 

hazard at unexpected locations, or could spark a fire. In making these findings, I rely on, and 

incorporate by reference, my findings and discussion with regard to the second Mathies element 

above. 

Under the traditional approach to the Mathies analysis, the third element requires 

consideration of the likelihood of an injury-causing event without assuming the occurrence of the 

hazard. I have already found that the hazards contributed to by this violation were highly likely 

to occur and reasonably likely to result in harm, for the reasons discussed above in my 

consideration of the evidence at the second Mathies prong. Accordingly, I find the evidence 

sufficient to satisfy the third Mathies element under either the traditional approach or the 

approach embraced by the Fourth Circuit in Knox Creek. 

Because of the high voltage and amperage this violation involved, any electrical shock 

caused by the violation would be reasonably expected to be serious or fatal. An electrical fire 

would also be expected to result in serious or fatal burn injuries. Thus, the fourth Mathies 

element is satisfied. 

Because all four of the Mathies criteria are met, this violation is S&S. I further find that 

the gravity of this violation was high in light of its contribution to a serious electrical event that 

caused damage to electrical equipment and exposed miners working at the pelletizing plant to a 

potential shock and fire hazard. 

iii. Negligence

Inspector Meierbachtol charged Northshore with moderate negligence because she was 

told that failures such as the one that occurred on March 25, 2015 happened quite often, and 

therefore Northshore was aware of this recurring problem and should have been checking the 

splices in the recoup fan panel to ensure that they were tight and properly insulated. Tr. 31. The 

Secretary asks me to uphold the moderate negligence designation, asserting that Northshore 

should have been checking the splices, but that mitigating factors exist, such as the redundant 

safety measures that were in place to prevent or mitigate the hazards of an electrical shock or 

surge. Sec’y Br. 15-16. Northshore has presented no arguments with respect to negligence. 

I affirm Inspector Meierbachtol’s finding of moderate negligence. The operator should 

have known that this splice was defective. The splice had been installed so long ago that one of 

the materials used in its construction, varnished cambric (VC), was no longer in common use at 

the mine. During the splice’s lengthy life, the fan motor it helped energize was likely replaced 

numerous times due to regular wear and tear, yet there is no indication that the operator ever 

38 FMSHRC Page 775
opened the recoup fan panel to make sure the splice was still intact and in safe condition. Section 

56.12013 requires a splice’s insulation and degree of mechanical strength to be maintained as 

near as possible to the same level as the original wire. Northshore’s conduct failed to meet or 

even approach this high standard of care. Periodic checks of the wiring inside the recoup fan 

panel could have revealed that the splice’s insulation was deteriorating or its mechanical 

connection was loosening, but Northshore failed to take this simple step that could have possibly 

prevented the phase-to-ground fault. 

I note, however, that Northshore does engage a contractor to conduct regular motor 

circuit analysis that should have revealed any abnormal resistance levels along the circuit, 

including at the splices inside the recoup fan panel. Tr. 68-69. Also, the defective condition 

could have arisen recently if the splice’s mechanical connections became loose due to the fan 

motor being stopped and restarted eight to ten days before the citation was issued. Tr. 69. After 

weighing all of the evidence, I find that Northshore’s conduct in connection with this violation 

was moderately negligent. 

iv. Penalty Assessment

As discussed above, the Mine Act requires the Commission to consider the six criteria set 

forth in section 110(i), 30 U.S.C. § 820(i), when assessing a civil penalty, and I look to the 

Secretary’s penalty regulations and proposed assessment as a useful starting point. 

The Secretary proposed a penalty of $2,678.00 for this violation after considering the six 

statutory penalty criteria under his penalty formula set forth in 30 C.F.R. Part 100. Ex. S-3; Ex. 

S-5. I have affirmed the Secretary’s gravity and negligence findings. Exhibit A to the Secretary’s

penalty petition shows how he weighed Northshore’s size and violation history, and Northshore

has not challenged his findings in this regard. Ex. S-5; see also Ex. S-1 (MSHA’s Assessed

Violation History Report for the mine). The parties have stipulated and the evidence reflects that

Northshore promptly abated this violation in good faith, and the Secretary accounted for this

factor in his proposed assessment. Ex. S-2; see Ex. S-5 (showing 10% penalty reduction for good

faith). The parties have also stipulated that the proposed penalty will not affect Northshore’s

ability to remain in business. Ex. S-2.

Based on the legal principles outlined above, after considering the six statutory penalty 

criteria, I find that the proposed assessment of $2,678.00 is appropriate. 

B. Citation Number 8840744 (Uncovered Welding Lead)

1. Further Findings of Fact

Citation Number 8840744 alleges that Northshore failed to properly guard an electrical

connection where one of two welding leads was attached to an arc welding machine. Ex. S9. An 

arc welding machine generates electrical current that passes through a welding lead to an 

electrode and arcs to the piece of metal on which the work is being performed. This welding 

lead, which supplies current to the electrode, is referred to as the electrode lead or positive lead. 

Tr. 99, 118. The second welding lead, referred to variously as the negative, neutral, ground, or 

work lead, is electrically common with the ground and with the chassis of the welder and is 

38 FMSHRC Page 776
clamped to the work piece to complete the welding circuit. Tr. 118-19, 126.14 Thus, the two 

welding leads form a circuit similar to that created by a pair of jumper cables running between 

two car batteries. Tr. 99, 119-20. 

Events Surrounding Issuance of Citation 

Inspector Norman was at the pelletizing plant conducting a regular inspection on March 

31, 2015 when he spotted a portable 480-volt arc welding machine sitting on the side of a 

travelway along the 107N conveyor. Tr. 93-94; Ex. S-9. According to Conboy, who was 

accompanying Norman on the inspection, this was the welder’s storage location. Tr. 106. The 

welder was not in use, although it was not locked or tagged out, and the welding leads were 

coiled and hanging on the side of the machine. Tr. 103-04; see Ex. R-12 (photographs submitted 

by Northshore). 

Inspector Norman noticed that the welder’s negative lead, unlike the positive lead, was 

unguarded at the point where it connected to the welder. Tr. 94. Photographs submitted by both 

parties show that the two welding leads terminate in a metal lug that slips over a stud protruding 

from a panel at the bottom of the welder, which is tightened down with a nut. Ex. S-10; Ex. R12; see also Tr. 95-96, 101. The lug nut assembly at the end of the positive lead was covered by 

a plastic sleeve, preventing contact with the conductive metal pieces, but the negative lead’s 

terminal, connective, lug-nut assembly was bare. See Ex. R-12. 

Inspector Norman observed that the negative terminals were guarded on other welders 

that he examined during the inspection. Tr. 94, 102. Norman opined that leaving a negative 

terminal bare and unprotected could create a hazard if anything fell against it, explaining, “I’ve 

welded myself. I’ve taken that stinger with a piece of rod in it, draped it over the machine and 

made contact with that [the bare terminal]. So you can get an arc flash. You could become the 

ground.” Tr. 96. 

Based on his observations and concerns, Inspector Norman cited Northshore for a 

violation of 30 C.F.R. § 56.12023, which he believed required the negative terminal to be 

“insulated to protect anybody from coming into contact with it.” Tr. 94.15 The narrative portion 

of the citation alleges that the welder “was not properly insulated at the terminal where the 

welding lead connects to the welder,” which “exposed the miner to contacting the 480 volt 

terminal, resulting in shock and or electrocution.” Ex. S-9. Norman assessed the violation as 

 14 I accept Ketola’s testimony that the ground lead is clamped “to your project or to 

whatever you’re welding to complete the circuit” (Tr. 118) and reject Conboy’s contrary 

testimony that it is clamped to “a ground conductor” or “anything metal” such as a beam in the 

building (Tr. 108). Conboy has no electrical background and has never operated a welding 

machine. Tr. 47, 108, 115. By contrast, Ketola has served as an electrical engineer for more than 

twenty years, (Tr. 55), and his testimony, as a whole, makes sense and evinces a thorough 

knowledge of welding. 

15 Considering the context, I find that Norman was using the term “insulated” to mean 

“guarded.” I therefore reject Northshore’s contention that the Secretary alleged only that the 

connection was uninsulated, not that it was unguarded. See Resp. Br. 14-15. 

38 FMSHRC Page 777
unlikely to cause injury, non-S&S, capable of causing a fatal injury, affecting one person, and 

resulting from moderate negligence. Tr. 97; Ex. S-9. He terminated the citation the next day, 

after Northshore had abated the violation by covering the negative terminal with electrical tape. 

Tr. 98; Ex. S-9. 

Testimony from Northshore’s Witnesses 

Conboy, who had observed the welder at the time the citation was issued, did not dispute 

that the end of the negative lead was bare at the point where it connected to the welder. Tr. 109-

10. He also agreed that the negative terminals were covered on many of the other welders that he

and Norman had seen during the inspection. Tr. 116. However, Conboy expressed doubt that the

standard cited by Norman, § 56.12023, applied to the negative welding lead. See Tr. 109.

Conboy testified that nothing would happen if a person were to touch the bare terminal where the

negative lead meets the welder. Tr. 114. He asserted that he had accompanied an MSHA

inspector named Dan Goyen on two past inspections at the mine. Conbuy testified that during

these inspections, a welder was twice found to be in the same condition as the welder at issue

here, with a cover over the end of the positive welding lead but not the negative. Conboy

testified that Inspector Goyen had not cited or mentioned the condition on either occasion. Tr.

110-14.

Ketola was called to testify in his capacity as an electrical engineer. Like Conboy, Ketola 

did not recall that the mine had received any citations solely for a bare negative terminal on a 

welder, but he acknowledged that the mine had been cited eight to ten years earlier when neither 

the negative nor the positive terminal was covered. Tr. 123-25. Thereafter, Ketola purchased 

dozens of cheap plastic covers intended for use on the positive terminals. Tr. 123-25. Ketola 

opined that it was unnecessary to cover the negative terminals because the negative leads were 

grounded to the chassis of the welder. Tr. 118-19, 123, 126-27. However, mine employees ended 

up using the covers on both terminals because the covers were “pretty cheap compared to 

coming out here [to a hearing] and spending half a day.” Tr. 123. In other words, Ketola was of 

the view that covering the negative terminals, while unnecessary, was cheaper than risking a 

citation, “[s]o it’s just one of [those] things where we do it just because it doesn’t bring unwanted 

meetings down here in the Federal Building.” Tr. 120-21. 

2. Analysis and Conclusions of Law

i. Violation of 30 C.F.R. § 56.12023

Section 56.12023 provides: “Electrical connections and resistor grids that are difficult or 

impractical to insulate shall be guarded, unless protection is provided by location.” 30 C.F.R. § 

56.12023. 

The Parties’ Positions 

The Secretary argues that § 56.12023 was violated because the negative terminal cited by 

Inspector Norman is part of an electrical connection that was exposed, protruding, and 

unprotected, unlike the negative terminals on other welding machines at the mine. Sec’y Br. 17-

19.

38 FMSHRC Page 778
Northshore argues that a violation has not been established under the reasonably prudent 

person standard because insulating a neutral lead is unnecessary and the mine has not been cited 

for failing to do so in the past. In a footnote, Northshore also states that the cited connection is 

protected by its recessed location at the bottom of the welding machine. Northshore further 

disputes that the cited connection is an “electrical connection” within the meaning of § 56.12023, 

arguing that it is not an electrical connection because the negative lead is neutral and carries no 

current. Resp. Br. 14-16. 

Discussion 

I reject Northshore’s argument that the cited connection is not an “electrical connection” 

within the meaning of § 56.12023. Although the negative welding lead is electrically common 

with the ground, it is an essential part of the welding circuit, which conducts direct current in a 

manner similar to jumper cables connecting car batteries. See Tr. 99, 118-21, 126. Thus, the 

connection between the negative lead and the body of the machine is an electrical connection 

because it is a conductive connection between electrical components of the machine. See Falkirk 

Mining Co., 19 FMSHRC 149, 152 (Jan. 1997) (ALJ) (finding that connection between negative 

welding lead and welder “is clearly an electrical connection” because it is a connection of 

insulated wires to each other or equipment permitting flow of electrical current). 

Under § 56.12023, the cited electrical connection should have been either guarded or 

protected by its location. There is no dispute that the connection was unguarded, as depicted in a 

close-up photograph submitted by Northshore showing that the lug-nut assembly connecting the 

negative terminal to the welding machine was completely bare. Tr. 94; see Ex. R-12. The 

photograph shows that the stud to which the negative lead connects sits in a slightly recessed 

panel at the bottom of the welding machine. Ex. R-12. However, the metal lug at the end of the 

negative lead protrudes beyond the plane of the machine, and therefore that portion of the 

connection is not protected by its location. Cf. Falkirk, 19 FMSHRC at 152-53 (finding violation 

when negative terminal lug protruded outside vertical plane of welder); Ammon Enters., 30 

FMSHRC 799, 813 (July 2008) (ALJ) (finding no violation when photograph showed lugs were 

recessed a few inches into a relatively small opening). Although the welder was not in use at the 

time of the inspection, it was not locked and tagged out. Tr. 103-04. The equipment should have 

been maintained in compliance with the Secretary’s safety requirements because it was available 

for use and had not been removed from service. Cf. Wake Stone Corp., 36 FMSHRC 825, 828 

(Apr. 2014) (requiring that equipment be maintained in functional condition even when not in 

use, unless it has been removed from service). 

Northshore contends that a reasonably prudent person would not have recognized a need 

to cover the negative terminal. However, the negative terminal is part of an electrical connection 

and part of the welding circuit, and the plain language of § 56.12023 requires that it be either 

guarded or protected by location. Significantly, the negative terminals were covered on the other 

welding machines at the mine. Tr. 94, 102, 116, 123. Northshore presented testimony suggesting 

that covering the negative terminals is a senseless practice carried out merely to avoid “unwanted 

meetings down here in the Federal Building.” Tr. 121; see Tr. 114, 118-27. However, even 

though Northshore’s witnesses questioned the rationale behind this application of § 56.12023, 

the operator’s act of covering the negative terminals on most of its welding machines evinces an 

implicit recognition that the standard does apply and that these linkage points constitute 

38 FMSHRC Page 779
electrical connections that must be guarded. Given that the plain language of § 56.12023 applies 

and that the negative terminals were covered on the other welding machines at the mine, I reject 

Northshore’s argument that a reasonably prudent person would not have recognized a violation. 

Based on all the foregoing, I find that the Secretary has established a violation of § 

56.12023 because the cited electrical connection was not guarded or protected by its location. 

ii. Gravity

Inspector Norman assessed this violation as non-S&S and unlikely to cause injury, but 

capable of causing a fatal injury to one person. He testified that a person touching the exposed 

negative terminal could “become the ground.” Tr. 96. He failed to explain how this could occur 

given that the negative lead is electrically common with the ground. However, he also identified 

a risk that an arc flash could occur if the electrode at the end of the positive welding lead were to 

come into contact with the bare conductor at the negative terminal, and illustrated the plausibility 

of this scenario with a first-hand example. See Tr. 96 (“I’ve taken that stinger with a piece of rod 

in it, draped it over the machine and made contact with [the negative terminal].”). Ketola agreed 

that the electrode would draw an arc if it came into contact with the bare negative terminal, while 

the welding machine was running. Tr. 120. The machine was not in use at the time of the 

inspection, but it was not locked and tagged out. Tr. 104. 

I find that this violation created a hazard of electricity arcing and potentially shocking a 

miner. This could result in serious or even fatal injuries given that this is a 480-volt welding 

machine. Tr. 95, 116. However, the gravity of the violation is not serious because only a small 

portion of the negative conductor was exposed near the bottom of the welding machine and the 

probability of injury was low. 

iii. Negligence

Inspector Norman attributed this violation to Northshore’s moderate negligence because 

it was obvious and should have been detected during workplace exams. Tr. 97. His opinion on 

negligence was also influenced by the fact that the negative terminals were covered on all the 

other welders that he had seen at the mine. Tr. 97. 

The Secretary asks me to uphold the moderate negligence designation. The Secretary 

asserts that the operator should have known of the violative condition, but concedes that 

mitigating factors existed because the welding machine was not in use at the time of the 

inspection and the duration of the violation is unclear. Sec’y Br. 19. 

Northshore makes no arguments with respect to negligence except to note that the 

inspector’s designation “would appear to be excessive.” Resp. Br. 16 n.9. 

I affirm the Secretary’s moderate negligence designation. This violation was not 

extensive, the degree of danger it posed was low, and the cited electrical connection was located 

at the bottom of the machine, meaning the violation may not have been obvious to a casual 

observer. However, the violation would have been obvious to anyone checking the machine for 

safety hazards, and it should have been detected and addressed during a workplace exam. 

38 FMSHRC Page 780
iv. Penalty Assessment 

 The Secretary proposed a penalty of $540.00 for this violation after considering the six 

statutory penalty criteria. See Ex. S3; Ex. S5. I have affirmed the Secretary’s gravity and 

negligence findings. The parties have stipulated that Northshore abated this violation in good 

faith and that the proposed penalty will not affect Northshore’s ability to remain in business. Ex. 

S2. The Secretary’s penalty petition reflects that he adequately accounted for Northshore’s size, 

violation history, and good-faith abatement efforts in formulating his proposed penalty. See Ex. 

S5. 

Based on the legal principles outlined above and my consideration of the six statutory 

penalty factors, I find that the proposed assessment of $540.00 is appropriate. 

C. Citation Number 8840631 (Alleged Fall Protection Violation) 

1. Summary of Evidence 

Citation Number 8840631 alleges that Inspector Norman observed a miner disconnecting 

his fall protection gear from its tie-off point, walking approximately four feet along an elevated 

conveyor belt without being tied off, then climbing down a ladder to reach the ground six feet 

below. Ex. S-15. Norman cited Northshore for a violation of 30 C.F.R. § 56.15005, which 

requires miners to wear safety belts and lines wherever there is a danger of falling. Ex. S-15. At 

hearing, the parties presented conflicting evidence as to the events surrounding the issuance of 

the citation, particularly the positioning of the ladder. 

Inspector Norman’s Testimony 

Inspector Norman issued the citation at the pelletizing plant during a regular inspection 

on January 13, 2015. Tr. 134-35; Ex. S-15. Norman testified that he and company safety 

representative, Scott Blood, were walking in an upper level of the plant, when Norman caught 

sight of two miners, a Northshore employee named David Aho, (who was called to testify at the 

hearing), and a contractor named Chris Harris, (who was not called to testify), standing on an 

elevated conveyor belt, one level down. Tr. 135-36, 142-43; Ex. S-15. The miners were changing 

the B-belt next to the belt drive motor, wearing harnesses with the lanyards tied off to a lifting 

eye for the motor. Tr. 139. Inspector Norman estimated the lifting eye was about five feet above 

the belt. Tr. 139. The belt was locked and tagged out. Tr. 166. While Norman watched, the 

miners disconnected their lanyards and walked along the belt toward a ladder which Norman 

estimated to be four feet away. Tr. 135, 140-41. 

Norman initially testified that the two miners disconnected their lanyards “[a]t the same 

moment,” then acknowledged he did not remember which miner unhooked his lanyard first. Tr. 

140-41. He did not see the miners reach the ladder four feet away, or climb down it, because by 

that time, he was descending a nearby stairway. Tr. 141, 166-67. When asked how Blood had 

reacted to seeing the miners walking along the belt without fall protection, Inspector Norman 

responded, “I don’t remember him saying anything. I just said what the heck are they doing, you 

know, and I went down.” Tr. 137. 

38 FMSHRC Page 781
By the time Norman and Blood reached the lower level, Aho and Harris had descended 

the ladder and were on the ground. Tr. 135. According to Norman, when he asked why Aho and 

Harris had not been properly tied off, they told him there was no place to do so. Tr. 142-43. After 

speaking to the miners, Norman issued Citation Number 8840631 and terminated it immediately 

because the miners were already on the floor. Tr. 160-61. He also issued a citation for the same 

violation to VanHouse Construction, the contracting company that employed Harris. Tr. 159-60. 

When asked what Blood said during the conversation with the miners, Norman 

spontaneously asserted that Blood had moved the ladder Aho and Harris had used to dismount 

from the belt. Tr. 143-46. According to Norman, this ladder is about six or seven feet tall and the 

top step is either “pretty even” with the belt or “a few inches” above it. Tr. 141, 163. As I noted 

at hearing, however, the ladder actually appears to be about a foot higher than the belt in a 

photograph submitted by the Secretary. Tr. 163; see Ex. S-16. Norman, who took the 

photograph, asserts that it shows the ladder’s position at the time the miners used it. His 

contention is that Blood moved the ladder before the photograph was taken and asked if this 

would have prevented the violation. Tr. 144. Norman then chided Blood for “disturb[ing] my 

scene” and asked him to move the ladder back. Tr. 144, 145. According to Norman, Blood 

retorted that he had moved it only a few inches. Tr. 144, 145. An argument ensued. In Norman’s 

words: 

He [Blood] moved it [the ladder] back, and I said you can see the 

drag marks in the dirt. I said you can see it was back about two 

more feet, and he moved it a couple more times a couple inches at 

a time, he moved it back, and I took the ladder and I moved it 

about ten inches, and it wasn’t quite all the way back to the drag 

marks. There was probably about approximately three inches from

where the drag marks started. And I told him, I said, my concern 

here is that the miners are on top of this belt not properly tied off. 

Tr. 145-46. On cross examination, Inspector Norman admitted that Blood had accused him of 

moving the ladder, but claimed that he (Norman) had made his accusations first. Tr. 163-64. 

Inspector Norman has raised two theories as to how § 56.15005 was violated. The 

citation alleges that Aho and Harris violated the standard by traveling approximately four feet on 

the elevated belt, without being tied off. Tr. 136; Ex. S15. “They should have had somebody 

come and move that ladder closer to them so they could get down safely,” Norman explained at 

hearing. Tr. 146. His testimony raised the additional theory that the miners “shouldn’t have been 

up there in the first place the way they were tied off” because their fall protection was 

inadequate. Tr. 146. Specifically, he testified that both miners were tied off to the same lifting 

eye, which was intended to lift a 100-pound motor, and that the lanyards they were using would 

not have stopped them from falling six feet to the ground below because each lanyard was six 

feet long with a three-foot shock absorber, and “[w]ith the safety factor it takes 18 feet to stop 

them.” Tr. 136. 

The Secretary presented no field notes, measurements, pictures, corroborating testimony, 

or other evidence that supports Inspector Norman’s testimony regarding the strength of the 

38 FMSHRC Page 782
lifting eye or the stopping distance of the lanyards. The citation and Norman’s contemporaneous 

notes give no indication that he questioned the adequacy of the miners’ fall protection at the time 

he wrote the alleged violation (see Exhibits S15 and S19), and Norman admitted on cross 

examination that he did not raise this allegation when he issued the citation. Tr. 161-62. 

Inspector Norman attributed the alleged violation to Northshore’s moderate negligence 

because Respondent provided him with no evidence that the company had provided safety talks 

regarding how to properly tie off. Tr. 158; Ex. S-15. He further assessed the violation as S&S 

and reasonably likely to result in fatal injuries to one miner. Ex. S-15. 

The hazard Inspector Norman was concerned about was a fall from the belt, which he 

asserted was slippery and unstable and about six feet high. Tr. 140, 146-47. He claimed to have 

measured the belt’s height using a tape measure, while Blood, Aho, and Harris were present. Tr. 

147, 157, 164-65. However, no measurements appear in his field notes or citation 

documentation. 

The height of the belt is significant because MSHA has indicated that compliance with 

OSHA’s fall protection standard, which applies only at elevations of six feet or higher, will often 

satisfy the requirements of § 56.15005. Tr. 165-66; see 29 C.F.R. § 1926.501(b)(1) (OSHA’s fall 

protection standard). Northshore submitted a copy of a Program Policy Letter (PPL) issued by 

MSHA, which states that compliance with OSHA’s fall protection standard will satisfy MSHA’s 

standards in many cases. Ex. R-14; Tr. 165-66. When asked what the PPL means to him, 

Norman testified, “It means not all cases.” Tr. 170. When prodded, he elaborated that the PPL 

discusses “[c]ompliance with OSHA, whatever their standard is, their six-foot fall rule or fourfoot fall rule.” Tr. 170. Questioned further, he conceded that the OSHA rule is six feet, not four 

feet. Tr. 170-71. He testified that he had mentioned a four-foot rule because he “did hear once 

they were going to lower it to four feet.” Tr. 171. 

In support of his opinion that a fall from six feet would likely be fatal, Norman testified 

that he knew of fatalities caused by falls from lesser elevations. Tr. 147-48. The Secretary 

offered several Fatalgrams and accident reports purporting to show that falls from a lesser 

elevation were fatal in six past cases. Tr. 153, 167-68; Ex. S-17. I excluded one of them (the 

September 26, 2015 notice) because it contained no evidence that a fall hazard existed or that the 

victim actually fell, and I find that two others (the May 18, 2015 notice and November 26, 2014 

report) are entitled to very little probative weight because neither specifies the height from which 

the victim fell. Tr. 148-56; Ex. S-17. 

38 FMSHRC Page 783
Testimony of Scott Blood16

Blood testified that he and Inspector Norman were walking down some stairs when they 

first saw Aho and Harris on the elevated conveyor belt. Tr. 177. Norman did not say anything to 

direct Blood’s attention to the miners on the belt, and Blood did not notice whether they were 

tied off, nor did he see them unhook their lanyards. Tr. 177, 191-93. Blood testified he did not 

even notice that Norman was watching the miners until the inspection party reached the lower 

level. Tr. 203. By the time they got there, one of the miners had climbed down the ladder and the 

other was just reaching the floor. Tr. 178-79. 

Norman asked Blood if the mine had a fall protection training program and if mine 

employees were aware of the three-point contact rule, which requires miners working on an 

elevated surface to wear fall protection whenever they cannot maintain three points of contact. 

Tr. 177-78. At that time, Blood belatedly realized that Norman was referring to Aho and Harris. 

Tr. 203. The miners were called over to speak to the inspector, and supervisors for Northshore 

and the contracting company were summoned to the scene because both operators were being 

cited. Tr. 179-80, 183. 

 According to Blood, as the men were standing in a group about six to ten feet away from 

the ladder and he was contacting Harris’s supervisor, Blood saw Inspector Norman walk over 

and move the ladder to the left away from the belt drive motor to the position where it is depicted 

in Norman’s photograph. Tr. 183-84, 195. Blood returned to the scene about an hour later and 

took pictures showing what he believed to be the ladder’s initial position, which was several feet 

closer to the motor than in Norman's picture. Tr. 180-81, 191; compare Ex. R-4 with Ex. S-16. 

Blood asserted that he had immediately confronted Norman about moving the ladder, but did not 

himself touch the ladder until he was taking pictures later. He provided the following account of 

the incident: 

Q [by Mr. Moore, counsel for Northshore]: And what was your 

discussion with the inspector about his moving the ladder? 

A [by Blood]: I says Terry, you can’t move that ladder prior to us 

taking pictures. And he said this is where the ladder was. And I 

said no, it wasn’t. And basically [he] took his picture and walked 

away. 

THE COURT: Did you move the ladder before – 

 16 Blood has worked for Northshore for more than 26 years, including at least 14 years in 

the safety department. As a safety representative, he is responsible for safety activity at the mine 

and sometimes accompanies MSHA representatives during inspections. He also handles the 

workers’ compensation program at the mine and is a facilities’ security officer for homeland 

security. Before working for Northshore, he worked in the finance department at a 

manufacturing company for about a year and worked for a railroad. Tr. 175-76. Blood was one 

of the witnesses, who was sequestered at the commencement of the hearing. See Tr. 10. 

38 FMSHRC Page 784
THE WITNESS: No, I moved the ladder back before I took my 

picture. I did not touch the ladder prior to him touching it. So I did 

move the ladder back after – as you can see in my picture, when 

the guard [to the motor] was on. 

BY MR. MOORE: So you’re saying you did not move it prior to 

his taking his picture? 

A: No. I’ve been accompanying inspectors for 15 years, and I 

know I cannot alter a scene prior to them taking a picture. I’ve 

been told that many times, and I would not do that. 

Tr. 183-84.; see also Tr. 193-95 (Blood’s testimony on cross-examination consistently repeating 

this account). Blood explained that he was able to move the ladder back to its proper position 

because he could see marks in the dust on the floor where it had been dragged, which he said he 

had mentioned to Inspector Norman when he confronted him about the ladder. Tr. 185. 

When counsel for the Secretary suggested that Northshore may have initially moved the 

ladder rather than Inspector Norman, Blood – apparently unaware that this accusation was 

directed at him – testified that the miners at the scene probably would not have been paying 

attention to the ladder once the inspector arrived because they would have been wondering what 

they did wrong and whether they were in trouble. Tr. 194. On redirect, Blood testified that 

moving the ladder farther away from the belt drive motor, as he asserted Norman had done, 

would have made the citation more supportable because miners dismounting from the belt could 

not have maintained three-point contact if the ladder had been that far away from the motor. Tr. 

198-99.

Blood is six feet tall. Tr. 182. He testified that the ladder was also six feet tall and the top 

of the belt was approximately five feet off the floor, or about the height of his chest and 

shoulders. Tr. 181-82, 190. Thus, the distance between the top of the ladder and the belt was 

approximately one foot. Tr. 182. The pictures he took appear to support these height estimates. 

See Ex. R-4. The belt, which is made of rubber, is flat, dry, and not slippery, according to Blood. 

Tr. 185, 190. He did not recall seeing Inspector Norman measure the belt’s height. Tr. 182, 203-

04. 

Blood opined that no violation had occurred because mine employees are trained to 

maintain three-point contact when dismounting from the belt and to use fall protection when 

there is a danger of falling. Tr. 185, 202. He further opined that Aho and Harris had in fact been 

tied off to the lifting eye for the belt drive motor while working atop the belt. Tr. 185-86. Blood 

did not recall Inspector Norman raising any issues about the adequacy of the lifting eye as a tieoff point. Tr. 186. Blood could not testify definitively whether the miners had maintained threepoint contact when climbing down the ladder because he did not watch them descend. Tr. 179, 

192. However, he testified that it would have been possible for them to do so based on the

placement of the ladder. Tr. 199, 201-02.

38 FMSHRC Page 785
On cross-examination, counsel for the Secretary questioned Blood as to whether he had 

been charged with impeding inspections, whether he held a reputation for being intimidating and 

verbally abusive to inspectors, and whether he had, in fact, sworn at Inspector Norman when the 

fall protection citation was issued. Tr. 187-90. Blood denied ever being issued an impedence, 

although he recalled that Inspector Norman had threatened to issue one in an unrelated matter 

that occurred after the issuance of the fall protection citation. Tr. 187-89, 196-200. He also 

denied engaging in any verbal abuse or intentionally intimidating inspectors. Tr. 189-90, 196. I 

note that there is no record evidence of Blood swearing at Norman, but Norman’s field notes 

disclose an unrelated verbal altercation with Conboy that occurred in March 2015, which 

resulted in Conboy apologizing for hostile behavior and profanity. Ex. S-11 at 17-19. 

Testimony of David Aho17

Aho is a shift maintenance technician, who performs mechanical work and repairs 

conveyor belts at the Northshore mine. Tr. 205. On the day the citation was issued, Aho was 

serving as the go-to person for a group of contractors, who were performing maintenance and 

repair work while a conveyor was shut down. Tr. 206. The job required Aho and one contractor, 

Harris, to climb onto the conveyor belt to remove the guard from the belt drive motor and inspect 

some of the motor’s components. Tr. 206-07; see also Tr. 217-18, 222-23 (Aho’s testimony 

describing where he and Harris were working with reference to the photographs submitted by the 

parties). 

Aho testified that the stepladder, which he and Harris climbed to get onto the belt, was 

six feet tall. Tr. 206-07. He initially testified that the belt was about four feet high, but then 

decided it was probably closer to five feet, as he is 5’5” tall and the belt was approximately at his 

eye level. Tr. 205, 208-09. The belt was broad, dry, and easy to stand on. Tr. 215. He never saw 

Inspector Norman measure the belt. Tr. 214. 

Aho described how he and Harris had climbed onto, and off of, the conveyor belt. After 

setting their tools on the belt and climbing the ladder, Aho tied his fall protection to the eye bolt 

on top of the motor, which he estimated to be approximately three feet above the belt, and Harris 

tied off to “a different spot on the framework.” Tr. 208, 219. To climb down, Aho turned around 

to face away from the ladder; gripped the framework of the motor with his right hand; stepped 

off the belt onto the conveyor framework with his right foot; stepped off the belt onto the 

painter’s platform on the ladder with his left foot; unhooked his lanyard from the tie-off point 

with his left hand and attached it to his safety harness; grasped the ladder; then moved both feet 

onto the ladder and proceeded down. Tr. 210-12, 219-22. Aho asserted that he maintained three 

points of contact throughout this process and denied that it felt “risky” to stand with one foot on 

the ladder and one on the conveyor frame. Tr. 221. He initially testified he did not remember 

whether he or Harris had dismounted from the belt first and did not pay attention to how Harris 

unhooked his fall protection device, but later recalled that he had unhooked and dismounted first. 

Tr. 211, 218, 224. 

17 Aho has worked for Northshore for six years. He previously worked for a paper mill 

for 32 years. Tr. 205. 

38 FMSHRC Page 786
 Aho testified that he did not recall whether Blood and Inspector Norman were present 

when he climbed down from the belt because he was watching Harris dismount. Tr. 224. Once 

Harris reached the ground, Inspector Norman asked Aho why the guard was off the motor, and 

Aho responded they were working on it. Tr. 225. Inspector Norman then stated that Aho and 

Harris had not maintained three-point contact while climbing down the ladder, an allegation that 

Aho denied. Tr. 225. A few minutes later, while he was standing in a group and talking to the 

contractor’s safety representative, Aho heard that he and Harris had been further accused of 

walking four steps or more down the belt without being tied off, an allegation that Aho also 

denied. Tr. 213-14, 225-26. 

Aho then overheard Blood asking the inspector why the ladder had been moved. Tr. 213, 

226. Afterward, he saw Blood move the ladder back to its initial position, which could be 

ascertained by the marks on the floor. Tr. 214-16. According to Aho, the photographs taken by 

Blood accurately reflected the ladder’s position at the time that he and Harris had used it, but in 

the photograph taken by Inspector Norman, the ladder was too far away from the eye bolt to 

permit three-point contact, while dismounting from the belt. Tr. 207, 214, 216-17. 

2. Bench Decision 

I rendered the following decision from the bench: “I’m going to dismiss this citation. I’m 

going to find that there were three points of contact held at all times. I’m going to credit the 

testimony of Mr. Blood that the inspector moved the ladder. I’m going to find that the Secretary 

has failed to establish by a preponderance of the evidence that this event occurred, as written in 

the citation.” Tr. 227. 

3. Further Discussion 

 I hereby reaffirm my bench decision, for the following reasons. 

The cited standard provides in pertinent part: “Safety belts and lines shall be worn when 

persons work where there is a danger of falling.” 30 C.F.R. § 56.15005. The Commission has 

interpreted this provision to require miners to wear fall protection “in a safe and proper manner 

in the vicinity of a fall hazard.” Watkins Eng’rs & Constructors, 24 FMSHRC 669, 681-82 (July 

2002); Mar-Land Indus. Contractor, Inc., 14 FMSHRC 754, 757 (May 1992). Applying the 

reasonably prudent person test, the pertinent inquiry is “whether an informed, reasonably prudent 

person would recognize a danger of falling warranting the wearing of safety belts and lines.” 

Great Western Elec. Co., 5 FMSHRC 840, 842 (May 1983). 

 In this case, the Secretary has not established by a preponderance of the credible evidence 

that Northshore’s employee, Aho, failed to wear fall protection gear in a safe and proper manner 

when there was a danger of falling. I reached this conclusion from the bench after evaluating and 

comparing the witnesses’ credibility based on the substance of their testimony and my 

observations of their respective demeanors. I found that I could not credit Inspector Norman’s 

account of the events surrounding the issuance of the citation.

A number of imprecisions and discrepancies in Inspector Norman’s account cast doubt on 

its reliability. His initial theory of violation was that Aho and Harris had walked four feet along 

38 FMSHRC Page 787
the conveyor belt and climbed down the ladder without being tied off, but admittedly, he did not 

see the miners reach the ladder or climb down it. Tr. 141, 166-67. Thus, he could not have seen 

whether the miners maintained three points of contact. He did not know which miner had 

disconnected his lanyard first, and could not describe with clarity his conversation with the 

miners. See Tr. 140-42. Taken as a whole, his testimony on direct examination implausibly 

suggested that Aho and Harris said and did the same things at the same time throughout his 

interactions with them. Norman’s testimony gave the impression he had exclaimed, “What the 

heck are they doing?” as soon as he saw the miners atop the belt and had hurried down the stairs 

to stop what he perceived as a dangerous situation. Tr. 137. However, Blood did not recall 

Norman making such an exclamation and stated that Norman did not call attention to the 

situation until the inspection party had descended the stairs. Tr. 177-78, 192-93, 203. Inspector 

Norman’s assertion that he measured the height of the belt with a tape measure in front of Blood 

and Aho was also contradicted by both witnesses and is not supported by his field notes or any 

other contemporaneous record of measurement, even though this is an important factor in finding 

a violation of the fall protection standard. Tr. 164-65, 182, 203-04, 214. 

Norman’s theory of violation appeared to evolve at hearing to include unsupported new 

allegations regarding the adequacy of the fall protection the miners were using, which struck me 

as a post-hoc rationalization spurred by a realization that the initial theory of violation might not 

be adequately supported. See Tr. 136, 146, 161-62. Additionally, when discussing MSHA’s 

Program Policy Letter, which essentially adopted OSHA’s six-foot fall protection standard, 

Norman seemed to be straining to bend the rules to conform to the facts of this case. Tr. 170-71. 

Again, this suggests an attempt at after-the-fact rationalization of a poorly supported theory. 

I found unusual and noteworthy the manner in which Inspector Norman raised, unbidden, 

the issue of the ladder being moved on direct examination. See Tr. 143-46. His description of the 

incident was confusing and cast blame on Blood. However, Blood testified he had been 

accompanying inspectors for years and knew better than to move anything before pictures were 

taken, and he provided a simpler and clearer description of the ladder being moved first by 

Inspector Norman. Tr. 183-85, 193-95. Aho corroborated Blood’s account of this incident in all 

respects. Tr. 213-17, 226. I note that Inspector Norman had a motive to move the ladder, as he 

clearly relied on its alleged positioning to support his initial theory of violation. See Tr. 146, 198-

99. 

After considering all the foregoing at the hearing, I declined to credit Norman’s account 

of the alleged violation. Instead, I credited Blood’s testimony, corroborated by Aho, that the 

inspector had moved the ladder to position it farther away from the point where Aho and Harris 

had disconnected their lanyards. I also credited Aho’s cogent, detailed testimony explaining how 

he had maintained three points of contact at all times after unhooking his lanyard. Tr. 210-12, 

219-22. This was bolstered by Blood’s testimony that the miners were trained in maintaining

three-point contact and would have been able to do so under the circumstances. See Tr. 199, 201-

02. Because the Secretary failed to establish that Aho did not maintain three-point contact after

his fall protection gear was unhooked, I declined to find a violation.

38 FMSHRC Page 788
D. Citation Number 8840659 (Defective Seatbelt)

1. Further Findings of Fact

This citation alleges: “The passenger seat belt latch in the GMC pickup c/n 621 ... did

not function properly. The Shift Supervisor stated that the seat belt latch wasn’t functioning 

properly ‘last week.’” Ex. S-18. 

Events Surrounding Issuance of Citation 

Inspector Norman issued this citation on January 25, 2015, during a regular inspection of 

the mine. Ex. S-18. He was accompanied on his inspection that day by shift supervisor Molly 

Burger, who was not called to testify at the hearing. Tr. 229. According to Conboy, the crew’s 

regular supervisor was out of work on disability at the time, and Burger was filling in for him to 

gain supervisory experience. Tr. 237. Burger was “fairly young” and was working at the mine 

through “an internship of some sort.” Tr. 237-39. 

About an hour into the inspection, Norman climbed into the passenger seat of the shift 

supervisor’s service truck, which was a GMC pickup truck with a bench seat, in preparation to 

ride to the yard and docks. Tr. 229, 233, 244; Ex. S-19. However, he was unable to buckle the 

seat belt, despite getting out of the truck and trying multiple times to latch it. Tr. 230. Norman 

testified , “As I came over and tried to get [the shoulder strap] into the lock part of the seat belt it 

wouldn’t lock, and I was trying and trying, and [Burger] said they had been having intermittent 

problems with it latching” during the past week. Tr. 229, 234. Norman further testified that 

Burger could not get the seat belt to latch either, although his field notes from the inspection 

indicate that she was able to get the belt to work after two tries. Tr. 230; Ex. S-19. Regardless, 

because Norman was unable to wear the belt, he exited the truck to continue the inspection on 

foot, and wrote Citation Number 8840659, which alleged that the seat belt was defective and had 

not been timely repaired. Tr. 229-30. 

Inspector Norman assessed the violative condition as unlikely to cause injury, but capable 

of causing permanently disabling injuries to one miner, explaining that the condition could lead 

to a head injury if an accident were to occur. Tr. 230-31. He designated Northshore’s level of 

negligence as “moderate,” but asserted at hearing that he should have marked it as “high” 

because the shift supervisor had been aware of the condition for a week. Tr. 231. The citation 

was terminated eight days after its issuance because a new seat belt latch had been installed in 

the truck. Tr. 231-32, 241; Ex. S-18. 

Northshore’s Testimony 

Conboy arrived at the mine and met with supervisor Burger shortly after the citation had 

been written and after the inspection party had moved on to the yard and docks. Tr. 238, 248. 

Burger told Conboy that the seat belt “was sticky and it wasn’t working right.” Tr. 239. At 

hearing, Conboy attempted to downplay the significance of this admission, explaining that “[s]he 

said sometimes you have to jam it in there to get it to work, but it’s no big – I mean you just plug 

it in and it will work.” Tr. 239. On cross-examination, Conboy asserted that Burger had been 

able to get the seat belt to function properly once and denied that she told him she could not get it 

38 FMSHRC Page 789
to work, instead quoting her as making the more general observation that seat belts “get sticky 

sometimes.” Tr. 247. Conboy also testified that Burger had seemed “very nervous” and 

“flustered” by her encounter with an MSHA inspector, due to her age and inexperience. Tr. 238-

39, 250. Inspector Norman, however, provided rebuttal testimony that Burger was calm and did 

not appear intimidated at the time the citation was written. Tr. 265. 

Although Conboy and Inspector Norman discussed the citation on the day it was written, 

Norman did not testify as to the substance of this conversation. Tr. 235-36, 248. The 

conversation “got to be a little bit heated,” according to Conboy. Tr. 248. He testified that 

Inspector Norman told him the seat belt had worked once, but then began sticking. Tr. 240-41, 

248. Conboy said he asked why Norman had ridden in the truck without a functioning seat belt

and whether every seat belt in a vehicle now needed to be checked before the vehicle was used.

Tr. 248-49. However, he did not actually see Norman ride in the truck after Norman determined

that the seat belt was defective, and I credit Norman’s testimony that he did not do so, a point

which is corroborated by Norman’s contemporaneous field notes.

According to Inspector Norman, when he discussed the termination date for the citation 

with Conboy, Conboy requested an extension of time to order a new seat belt latch because the 

cited latch was broken. Tr. 231-32. Conboy, however, denied telling Norman that the latch was 

broken. Tr. 241, 246. He testified that Dean Floen,18 the truck shop mechanic who repaired the 

seat belt, was unable to find anything wrong with the latch, but stated, “I told [Floen] to swap it 

out anyway because we got cited on it.” Tr. 241. Floen appeared at the hearing and confirmed 

that he had replaced the latch, but that it had seemed to be working properly when he tested it 

after removing it from the vehicle. Tr. 254. 

Conboy had subsequently retrieved the latch from Floen and had taken pictures of it. Tr. 

241-42, 245, 254-55; see Ex. R-6 (photographs). At hearing, Northshore offered the latch as a

demonstrative exhibit over the Secretary’s objections on grounds that the chain of custody was

not established. Tr. 244-45, 255-60. However, I declined to admit it as a demonstrative exhibit,

finding that Northshore had failed to make any demonstration because the other half of the seat

belt was not available, which precluded me from drawing any conclusions as to the latch’s

functionality. Tr. 260. Nonetheless, Conboy testified that the latch had functioned properly when

he had tested it on the car he drove to the hearing. Tr. 243-44.

 Conboy attributed Inspector Norman’s inability to latch the seat belt to “operator error,” 

opining that Norman may have tried to plug the belt into the wrong buckle or may not have 

pushed it all the way closed due to his size and bulky coat. Tr. 246. Conboy testified that it was 

cold on the day of the inspection and that Norman, who is a large man, was wearing a Carhartt or 

similar heavy winter work coat. Tr. 238, 240. Conboy also recalled two past incidents when he 

had been traveling in his work vehicle with Inspector Norman and Norman’s seat belt had 

spontaneously unlatched. Tr. 239, 246, 250-51. In addition, safety representative Blood testified 

that he had once helped Norman buckle his seat belt because Norman was having trouble 

latching it. Tr. 261-63. Norman weighs 315 pounds and acknowledged that he is a large man, and 

18 Floen has worked at Northshore since 1990. As of the hearing date, he had worked as a 

light fleet mechanic for six years and previously worked in the operations and maintenance 

departments and as a heavy fleet mechanic. Tr. 252-53. 

38 FMSHRC Page 790
he conceded that the temperature may have been about 19 degrees Fahrenheit on the day of the 

inspection. Tr. 234-35. However, he denied wearing a bulky jacket the day the citation was 

issued, or having trouble buckling seat belts at the mine in the past due to his size. Tr. 235, 265. 

I take judicial notice that publicly available weather reports show that the temperature 

was below freezing in Silver Bay, Minnesota on the day the citation was issued. Considering the 

temperature, I find Norman’s assertion that he was not wearing a heavy coat to be implausible, 

and I credit Conboy’s testimony to the contrary. I also credit Blood’s testimony, corroborated by 

Conboy, that he helped Inspector Norman buckle a seat belt one time. However, I decline to 

credit Conboy’s uncorroborated testimony regarding seat belts popping open while Norman was 

wearing them, because Conboy did not explain how a seat belt would spontaneously unlatch and 

Norman denied that this had ever happened. I also reject, as purely speculative, Conboy’s 

suggestion that Inspector Norman may have tried to plug the seat belt into the wrong buckle. 

2. Analysis and Conclusions of Law

i. Violation of 30 C.F.R. § 56.14100(b)

Section 56.14100(b) mandates: “Defects on any equipment, machinery, and tools that 

affect safety shall be corrected in a timely manner to prevent the creation of a hazard to persons.” 

30 C.F.R. § 56.14100(b). Thus, to prove a violation of this mandatory safety standard, the 

Secretary must establish (1) the existence of a defect that could create a hazard to persons, and 

(2) the operator’s failure to correct the defect in a timely manner. The Commission has stated

that whether a defect was timely corrected “depends entirely on when the defect occurred and

when the operator knew or should have known of its existence.” Lopke Quarries, Inc., 23

FMSHRC 705, 715 (July 2001) (finding no violation of § 56.14100(b) when Secretary failed to

show when the cited equipment became defective).

The Parties’ Positions 

The Secretary argues that § 56.14100(b) was violated because the failure of the seat belt 

to consistently lock constituted a defect affecting safety and Northshore failed to correct the 

defect in a timely manner, despite supervisor Burger’s awareness of intermittent problems. Sec’y 

Br. 21. 

Northshore characterizes the evidence as equivocal and contends that the Secretary has 

failed to prove that the seat belt could not be buckled, or that the cited defect existed for a 

definite time period. Resp. Br. 19-23. 

Discussion 

Uncontroverted testimony from both Inspector Norman and safety director Conboy 

establishes that shift supervisor Burger, an agent of the operator, was aware that the seat belt 

“was sticky and it wasn’t working right” during the week preceding the issuance of the citation. 

Tr. 229, 234, 239. Without calling Burger as a witness, Northshore suggested that she was 

nervous and flustered at the time that she reported the problems with the seat belt to Inspector 

Norman. Tr. 238-39, 250. Norman disagreed. Tr. 265. I find it logical to believe that Burger may 

have been flustered, considering that she was a relatively young and inexperienced intern, 

38 FMSHRC Page 791
confronted by an authority figure about a safety problem. However, Burger’s state of mind at the 

time that she made the comments is irrelevant, because Northshore has not contended or 

established that these comments were inaccurate. I find that Northshore was aware, through 

Burger, that the seat belt was defective during the week preceding the issuance of the citation. 

The defective seat belt created a hazard to anyone riding in the passenger seat of the truck, 

especially a large person like inspector Norman. Northshore’s failure to promptly address the 

problem by fixing the seat belt or at least tagging out the equipment amounted to a violation of § 

56.14100(b). 

 Northshore presented evidence to dispute that the seat belt was broken. Conboy testified 

that Norman and Burger each were able to get the seat belt to work on the day the citation was 

issued. Tr. 240-41, 247-48. In addition, both Conboy and Floen testified that the seat belt latch 

worked properly when they tested it after it was removed from the truck. Tr. 243-44, 254. 

However, this testimony is not inconsistent with Norman’s allegation that the seat belt was 

intermittently nonfunctional. I credit his testimony that he issued the citation because he was 

unable to get the seat belt to work when he tried to put it on to ride to the yard and docks on 

January 25. The belt’s failure to work on that occasion provided a valid ground to find it 

defective. 

 Northshore has emphasized Inspector Norman’s size, suggesting that he could not get the 

seat belt to work because he is a large man. This suggestion is not persuasive. There is no 

allegation that the belt was too short. Rather, the latch was not engaging properly. The latch had 

been “sticky” for a week before the citation was issued. To the extent that the operator is 

suggesting the latch would not hold because of the strain created by a large passenger, I note that 

seat belt latches are intended to be strong enough to counter the force generated by the forward 

momentum of a passenger during a collision. A functional latch should certainly be strong 

enough to withstand the strain of the belt being pulled tighter than usual by a big man in a bulky 

coat. 

 Based on all the foregoing, after consideration of all the evidence and the parties’ 

arguments, I find that a violation of § 56.14100(b) occurred. 

ii. Gravity 

As noted above, Inspector Norman assessed this violation as non-S&S and unlikely to 

cause injury, but capable of causing permanently disabling injuries to one miner. Ex. S18; Tr. 

230-31. The parties did not address the gravity of this violation in their closing briefs. 

I affirm the inspector’s gravity designations. The seat belt was intermittently functional 

and the Secretary conceded that it was not used frequently because passengers rarely traveled in 

the truck. Sec’y Br. 23. Both of these factors decrease the likelihood of injury. Also, injury 

would occur only in the event that the truck was involved in an accident, and the Secretary 

presented no evidence as to where and how the truck is used at the mine, how fast it was 

typically driven, or any other factors that would shed light on the degree of danger presented by 

riding in the truck without a working seat belt. For these reasons, it was appropriate for Inspector 

Norman to characterize the probability of injury as unlikely. On the other hand, in the event of an 

accident, a defective seat belt could cause serious injury if an unrestrained passenger were 

38 FMSHRC Page 792
ejected from the truck or flung against the windshield or other parts of the cab. Accordingly, I 

find that this violation created an unlikely risk of permanently disabling injuries to one miner. 

iii. Negligence

Inspector Norman charged Northshore with moderate negligence in connection with this 

violation. Ex. S-18. The Secretary contends that this negligence designation is appropriate 

because Northshore knew the seat belt was defective, but the negligence is mitigated by the fact 

that passengers rarely traveled in the truck. Sec’y Br. 22-23. Northshore makes no arguments 

with respect to negligence in its post-hearing brief. 

I affirm the Secretary’s finding that this violation resulted from Northshore’s moderate 

negligence. Section 56.14100(b) imposes upon mine operators a duty to promptly address defects 

affecting safety so as to minimize hazards to miners. In this case, a shift supervisor, Burger, was 

aware that the seat belt had not been working properly for the past week, yet she failed to take 

any corrective action. As a supervisor, she should have exercised a higher degree of care, and her 

negligence is imputable to Northshore. However, I reject Inspector Norman’s suggestion at 

hearing that the degree of negligence should be raised from moderate to high due to Burger’s 

failure to correct the condition for a week. See Tr. 231. The seat belt worked intermittently, and 

the Secretary has conceded that it was infrequently used because passengers rarely rode in the 

shift supervisor’s truck. For these reasons, Burger may not have realized that the condition 

warranted immediate corrective action, mitigating her negligence somewhat. Accordingly, a 

finding of moderate negligence is appropriate. 

iv. Penalty Assessment

After considering the six statutory penalty criteria, the Secretary proposed a penalty of 

$285.00 for this violation. Ex. S-12; Ex. S-13. I have affirmed the Secretary’s gravity and 

negligence findings. The parties have stipulated that Northshore abated this violation in good 

faith and that the proposed penalty will not affect Northshore’s ability to remain in business. Ex. 

S-2. Exhibit A to the penalty petition reflects that the Secretary accounted for Northshore’s size,

violation history, and good-faith abatement efforts in a reasonable manner in accordance with the

Part 100 penalty regulations to reach the proposed penalty. See Ex. S-13.

Based on the legal principles outlined above and my consideration of the six statutory 

penalty factors, I find that the proposed assessment of $285.00 is appropriate. 

38 FMSHRC Page 793
V. REVIEW AND APPROVAL OF PARTIAL SETTLEMENT

As noted above, prior to hearing, the parties agreed to settle 54 of the 58 citations initially 

at issue in these three dockets. The Secretary has now submitted settlement motions setting forth 

the proposed settlement terms, which are summarized below.19 See Ex. ALJ-1; Ex. ALJ-2; Ex. 

ALJ-3. 

Docket Number LAKE 2015-340-M 

The Secretary originally proposed penalties totaling $7,981.00 for the eleven citations at 

issue in this docket and the proposed settlement is for $5,541.00. The settlement terms set forth 

in the settlement motion (Exhibit ALJ-1) are summarized in the table below: 

Citation 

No. 

MSHA’s Initial 

Proposed Penalty 

Settlement 

Amount Other Modifications 

8840637 $807.00 $807.00 None; Respondent accepts citation as issued. 

8840634 $243.00 $0.00 

None; citation has been vacated. The 

Secretary’s discretion to vacate a citation is not 

subject to review. RBK Constr., Inc., 15 

FMSHRC 2099 (Oct. 1993). 

8840403 $1,203.00 $843.00 Reduce severity of injury from “fatal” to 

“permanently disabling.” 

8840411 $308.00 $216.00 Reduce negligence from “moderate” to “low.” 

8840619 $1,795.00 $1,256.00 Reduce negligence from “moderate” to “low.” 

8840620 $362.00 $253.00 Reduce negligence from “moderate” to “low.” 

8840621 $362.00 $253.00 Reduce negligence from “moderate” to “low.” 

8840622 $362.00 $253.00 Reduce negligence from “moderate” to “low.” 

8840623 $1,304.00 $807.00 Change cited standard from 30 C.F.R. § 

56.12030 to 30 C.F.R. § 56.12023. 

8840636 $873.00 $600.00 Reduce severity of injury from “fatal” to “lost 

workdays or restricted duty.” 

8840638 $362.00 $253.00 Reduce severity of injury from “fatal” to “lost 

workdays or restricted duty.” 

TOTAL $7,981.00 $5,541.00

19 Each motion states that the Secretary believes, consistent with the position he has taken 

before the Commission in The American Coal Co., 36 FMSHRC 1311 (May 2014) (ALJ),

petition for interlocutory review granted, Unpublished Order dated July 11, 2014, that the 

pleadings submitted by the parties and a terse, factually unsupported summary of the proposed 

settlement give the Commission an adequate basis to review and approve it. See, e.g., Ex. ALJ-1 

¶¶ 2-4. Pursuant to Commission Procedural Rule 1(b), 29 C.F.R. § 2700.1(b), and Rule 12(f) of 

the Federal Rules of Civil Procedure, Fed. R. Civ. Pro. 12(f), I strike these assertions from each 

motion as impertinent and immaterial to the issues legitimately before me. In the American Coal 

Company case, the Secretary has misinterpreted and misrepresented Commission case law, the 

Mine Act and regulations, and Congressional intent regarding settlements under the Act. Rather 

than rubber-stamping the Secretary’s proposed settlement terms, I have evaluated them in 

accordance with sections 110(i) and 110(k) of the Mine Act.

38 FMSHRC Page 794
I have considered the representations and documentation submitted in this case, and I 

conclude that the proffered settlement is appropriate under the criteria set forth in section 110(i) 

of the Mine Act, 30 U.S.C. § 820(i). 

Docket Number LAKE 2015-395-M 

 The parties have agreed to settle 21 of the 23 citations at issue in this docket. The 

Secretary originally proposed penalties totaling $17,711.00 for the 21 citations and the proposed 

settlement is for $12,341.00. The settlement terms set forth in the settlement motion (Exhibit 

ALJ-2) are summarized in the table below:

Citation 

No. 

MSHA’s Initial 

Proposed Penalty 

Settlement 

Amount Other Modifications 

8840643 $362.00 $253.00 Reduce severity of injury from “fatal” to “lost 

workdays or restricted duty.” 

8840644 $362.00 $253.00 Reduce severity of injury from “fatal” to “lost 

workdays or restricted duty.” 

8840645 $362.00 $253.00 Reduce severity of injury from “fatal” to “lost 

workdays or restricted duty.” 

8840648 $285.00 $200.00 Reduce negligence from “moderate” to “low.” 

8840650 $285.00 $200.00 Reduce severity of injury from “fatal” to “lost 

workdays or restricted duty.” 

8840652 $190.00 $150.00 None; penalty reduction only. 

8840653 $2,473.00 $1,701.00 Remove S&S designation. 

8840654 $2,473.00 $1,731.00 None; penalty reduction only. 

8840661 $687.00 $481.00 Reduce negligence from “moderate” to “low.” 

8840662 $946.00 $700.00 

Reduce severity of injury from “permanently 

disabling” to “lost workdays or restricted 

duty.” 

8840664 $634.00 $444.00 Reduce severity of injury from “fatal” to “lost 

workdays or restricted duty.” 

8840668 $1,795.00 $1,257.00 

Reduce severity of injury from “fatal” to “lost 

workdays or restricted duty”; reduce 

negligence from “moderate” to “low.” 

8840669 $1,304.00 $913.00 Reduce severity of injury from “fatal” to “lost 

workdays or restricted duty.” 

8840676 $540.00 $378.00 Reduce negligence from “moderate” to “low.” 

8840677 $1,203.00 $842.00 Reduce severity of injury from “fatal” to “lost 

workdays or restricted duty.” 

8840681 $540.00 $540.00 None; Respondent accepts citation as issued. 

8840682 $540.00 $378.00 None; penalty reduction only. 

8840686 $1,203.00 $842.00 Reduce severity of injury from “fatal” to “lost 

workdays or restricted duty.” 

8840687 $1,203.00 $725.00 Reduce severity of injury from “fatal” to “lost 

workdays or restricted duty.” 

8840688 $162.00 $100.00 Reduce negligence from “moderate” to “low.” 

38 FMSHRC Page 795
8840691 $162.00 $0.00 Citation has been vacated. 

TOTAL $17,711.00 $12,341.00 

I have considered the representations and documentation submitted in this case, and I 

conclude that the proffered settlement is appropriate under the criteria set forth in section 110(i) 

of the Mine Act, 30 U.S.C. § 820(i).

Docket Number LAKE 2015-529-M 

The parties have agreed to settle 22 of the 24 citations initially at issue in this docket. The 

Secretary originally proposed penalties totaling $17,437.00 for the settled citations and the 

proposed settlement is for $12,379.00. The settlement terms set forth in the settlement motion 

(Exhibit ALJ-3) are summarized in the table below:

Citation 

No. 

MSHA’s Initial 

Proposed Penalty 

Settlement 

Amount Other Modifications 

8840750 $100.00 $100.00 None; Respondent accepts citation as issued. 

8840758 $207.00 $207.00 None; Respondent accepts citation as issued. 

8840762 $207.00 $207.00 None; Respondent accepts citation as issued. 

8840723 $1,203.00 $842.00 Reduce negligence from “moderate” to “low”; 

reduce severity of injury from “fatal” to “lost 

workdays or restricted duty.” 

8840725 $873.00 $611.00 None; penalty reduction only. 

8840728 $585.00 $410.00 Reduce severity of injury from “permanently 

disabling” to “lost workdays or restricted 

duty.” 

8840731 $1,203.00 $842.00 Reduce severity of injury from “fatal” to “lost 

workdays or restricted duty.” 

8840735 $1,203.00 $842.00 Reduce severity of injury from “fatal” to “lost 

workdays or restricted duty.” 

8840736 $1,203.00 $842.00 Reduce negligence from “moderate” to “low”; 

reduce severity of injury from “fatal” to “lost 

workdays or restricted duty.” 

8840737 $1,203.00 $842.00 Reduce severity of injury from “fatal” to “lost 

workdays or restricted duty.” 

8840740 $1,203.00 $842.00 Reduce severity of injury from “fatal” to “lost 

workdays or restricted duty.” 

8840741 $1,203.00 $842.00 Reduce severity of injury from “fatal” to “lost 

workdays or restricted duty.” 

8840739 $1,203.00 $842.00 Reduce severity of injury from “fatal” to “lost 

workdays or restricted duty.” 

8840745 $873.00 $611.00 Reduce severity of injury from “fatal” to “lost 

workdays or restricted duty.” 

8840746 $540.00 $378.00 Reduce negligence from “moderate” to “low.” 

8840751 $138.00 $138.00 Change cited standard from 30 C.F.R. § 

56.4402 to 30 C.F.R. § 47.44(a). 

38 FMSHRC Page 796
8840759 $460.00 $360.00 Reduce severity of injury from “fatal” to “lost 

workdays or restricted duty.” 

8840760 $460.00 $262.00 Reduce negligence from “moderate” to “low.” 

8840765 $207.00 $145.00 None; penalty reduction only. 

8840767 $1,026.00 $718.00 Reduce severity of injury from “fatal” to “lost 

workdays or restricted duty.”20

8840768 $1,026.00 $718.00 Reduce severity of injury from “fatal” to “lost 

workdays or restricted duty.” 

8840470 $1,111.00 $778.00 None; penalty reduction only. 

TOTAL $17,437.00 $12,379.00

I have considered the representations and documentation submitted in this case, and I 

conclude that the proffered settlement is appropriate under the criteria set forth in section 110(i) 

of the Mine Act, 30 U.S.C. § 820(i). 

VI. ORDER

The parties’ three settlement motions are hereby GRANTED. It is ORDERED that the 

54 settled citations are AFFIRMED OR MODIFIED as set forth in the tables above. 

Northshore is ORDERED to pay the sum of $30,261.00, in satisfaction of the three settlement 

agreements, to the extent such amounts have not already been paid, within thirty (30) days of the 

date of this Decision and Order.21

For the reasons discussed in the body of my decision, Citation 8840631 is hereby 

VACATED and Citations 8840455, 8840744, and 8840659 are hereby AFFIRMED, AS 

WRITTEN. In addition, I AFFIRM as appropriate the Secretary’s proposed penalties of 

$2,678.00 for Citation 8840455, $540.00 for Citation 8840744, and $285.00 for Citation 

8840659. Northshore is ORDERED to pay the sum of $3,503.00 in penalties for these three 

violations within thirty (30) days of the date of this Decision and Order. 

/s/ Thomas P. McCarthy 

Thomas P. McCarthy 

Administrative Law Judge 

20 With regard to Citations 8840767 and 8840768, I note that although the parties have 

agreed to modify the gravity of the violations, the Respondent’s arguments pertained to 

negligence. However, sufficient facts were presented for me to conclude that the Secretary’s 

acceptance of this compromise was appropriate. 

21 Payment should be sent to: Mine Safety and Health Administration, U.S. Department 

of Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390. 

38 FMSHRC Page 797
Distribution: 

Timothy J. Turner, Esq., U.S. Department of Labor, Office of the Solicitor, 1244 Speer 

Boulevard, Suite 216, Denver, CO 80202-5708 

R. Henry Moore, Esq., and Arthur M. Wolfson, Esq., Jackson Kelly PLLC, Three Gateway

Center, 401 Liberty Avenue, Suite 1500, Pittsburgh, PA 15222

38 FMSHRC Page 798
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

721 19TH STREET, SUITE 443 

DENVER, CO 80202-2500 

303-844-5267/FAX 303-844-5268

April 11, 2016

UNITED MINE WORKERS OF AMERICA DISCRIMINATION PROCEEDING 

 (UMWA) on behalf of MARK A. FRANKS, 

Complainant, Docket No. PENN 2012-250-D 

PITT-CD 2012-04 

v. 

EMERALD COAL RESOURCES, LP, Emerald Mine No. 1 

Respondent, Mine ID 36-05466 

UNITED MINE WORKERS OF AMERICA DISCRIMINATION PROCEEDING 

 (UMWA) on behalf of RONALD HOY, 

Complainant, Docket No. PENN 2012-251-D 

PITT-CD 2012-05 

v. 

EMERALD COAL RESOURCES, LP, Emerald Mine No. 1 

Respondent. Mine ID 36-05466 

SECRETARY OF LABOR CIVIL PENALTY PROCEEDINGS 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION, (MSHA), Docket No. PENN 2013-305 

Petitioner Mine ID: 36-05466 

v. Docket No. PENN 2013-306 

Mine ID: 36-05466 

EMERALD COAL RESOURCES, LP, 

Respondent. Emerald Mine No. 1 

DECISION ON REMAND

Before: Judge Miller 

These cases are before me on complaints of discrimination brought by the United Mine 

Workers of America (UMWA) on behalf of Mark A. Franks (“Franks”) and Ronald Hoy (“Hoy”) 

against Emerald Coal Resources, LP (“Emerald”), pursuant to Section 105(c) of the Federal 

Mine Safety and Health Act of 1977, as amended, 30 U.S.C. § 815(c), and on petitions for 

assessment of civil penalty filed by the Secretary of Labor, Mine Safety and Health 

Administration (MSHA), against Emerald pursuant to Sections 105 and 110 of the Act, 30 

U.S.C. §§ 815 and 820. Following an evidentiary hearing in this case, I issued a decision on the 

merits of the discrimination cases. UMWA on behalf of Franks v. Emerald Coal Res., LP, 35 

FMSHRC 1696 (June 2013) (ALJ). The Secretary subsequently filed petitions for assessment of 

civil penalties. The parties filed joint stipulations addressing the penalty criteria, and I assessed a 

total penalty of $40,000 against the mine operator. Unpublished Order dated Oct. 29, 2014. 

38 FMSHRC Page 799
Emerald petitioned the Federal Mine Safety and Health Review Commission for review 

of both the decision after hearing and the order assessing penalty. The Commission granted 

review as to the decision after hearing only, affirming the result. UMWA on behalf of Franks v. 

Emerald Coal Res., LP, 36 FMSHRC 2088 (Aug. 2014). Emerald then appealed the 

Commission’s decision and the order assessing penalty to the United States Court of Appeals for 

the Third Circuit. The Third Circuit consolidated the cases, vacated the Commission’s decision, 

and remanded to the Commission for further analysis. Emerald Coal Res., LP v. Hoy, 620 Fed. 

Appx. 127 (3d Cir. 2015). The Commission in turn remanded the cases to me. UMWA on behalf 

of Franks v. Emerald Coal Res., LP, 38 FMSHRC __, slip op. at 3, No. PENN 2012-250-D (Feb. 

10, 2016). In accordance with the Commission’s order, I enter the decision below. 

I. INITIAL DECISION AND REMAND

In the initial decision, I determined that Franks and Hoy had proven a prima facie case of 

discrimination and that the defense set forth by the mine operator was pretextual. 35 FMSHRC at 

1697. My finding of discrimination was made under the Pasula-Robinette framework for 

analysis of discrimination claims under section 105(c). Id. at 1702-05. On review, the 

Commission affirmed my decision, but was split as to the rationale. Commissioners Young and 

Cohen voted to affirm the decision on the grounds that Emerald had discriminated against Franks 

and Hoy in violation of section 105(c) of the Mine Act. 36 FMSHRC at 2103. Chairman Jordan 

and Commissioner Nakamura voted to affirm the decision after concluding that Emerald had 

interfered with the protected rights of the miners in violation of section 105(c). Id. at 2119. On 

appeal, the Third Circuit held that the Commission had failed to articulate a rationale for its 

decision, and so vacated and remanded the decision. 620 Fed. Appx. at 129. The Commission 

then remanded the cases to me “to conduct the interference analysis in the first instance.”1

 38 

FMSHRC __, slip op. at 3. Franks and Hoy, the Secretary, and Emerald were given the 

opportunity to submit briefs on the issue of interference, and I considered their arguments. For 

the reasons set forth below, I conclude that both Franks and Hoy have demonstrated a prima 

facie case of interference and that the defense set forth by the mine operator does not outweigh 

the harm to the rights of miners. 

II. FACTUAL BACKGROUND

This case involves the Emerald Mine No. 1, an underground coal mine in Green County, 

Pennsylvania. At the time relevant to this case, July through November 2011, the mine was 

operated by Emerald Coal Resources, and Mark Franks and Ronald Hoy were employed as 

beltmen at the mine. Jt. Stips. ¶¶ 1, 3-7. 

Franks and Hoy both credibly testified at hearing that they complained of unsafe 

practices at the mine to a representative of the UMWA safety committee, David Moore, on two 

1

 While the Commissioners did not agree to the basis of the adverse action, four agreed 

that the mine had violated the Act with regard to Franks and Hoy. My original decision discussed 

a finding of discrimination, but since the case has been remanded, I now decide the case under 

the interference provision. See 36 FMSHRC at 2104 (Jordan & Nakamura, Comm’rs); id. at 

2125 (Althen, Comm’r). 

38 FMSHRC Page 800
occasions in August 2011. Tr. at 24-25, 36-37, 53, 55-56. The complaints related to inadequate 

pre-shift examinations by one or more firebosses. Tr. at 24-25, 47, 53, 55-56. Hoy and Franks 

testified that the conversations took place on August 17 and August 29, 2011. Tr. at 24, 25, 53, 

55. David Baer, a UMWA member, testified that he overheard Franks and Hoy making the

complaints on both days in August. Tr. at 64-65. Hoy’s complaint related to a specific instance

on July 15, 2011, in which a fireboss failed to walk the length of the beltline during his

examination. Tr. at 35; Comp. Ex. 1. Franks’s complaint related to a similar issue with an

examination conducted on July 27, 2011. Tr. at 47, 61. Franks and Hoy both testified that they

told Moore the name of the fireboss and the dates of the examinations when they made their

complaints. Tr. at 18-20, 47. Both believed that once they provided the information to Moore, he

would investigate the matter and then bring the issue to the attention of the company if

necessary. Tr. at 19, 39, 43, 52.

At hearing, Moore agreed that Hoy complained to him about a specific instance of an 

inadequate belt examination by a fireboss. Tr. at 123. Moore believed the conversation occurred 

in July rather than August, however, and denied that a second conversation took place in August 

or that Franks and Baer were present. Tr. at 122-25. On the date when Hoy recalled the 

conversation happening, August 17, Moore testified that he was at the MSHA academy for safety 

training. Tr. at 122. He denied that Franks ever brought a complaint to him relating to firebosses. 

Tr. at 121-23. Regarding Hoy’s specific complaint, Moore testified that he had been off the 

beltline when the fireboss went through on the day Hoy referred to, but that he checked the date 

board, which indicated that the exam had been performed. Tr. at 123-24. Moore testified that he 

did not see any evidence that the firebosses were not doing their runs, but he spoke to the 

firebosses about the issue anyway. Tr. at 124. 

The testimony of the witnesses is inconsistent with regard to the complaints made to 

Moore. I do not find Moore to be a credible witness, and therefore I resolve the conflict in favor 

of Franks and Hoy. Moore’s answers were opaque and evasive. He insisted that he only spoke to 

Hoy once, yet Franks, Hoy, and Baer remember Franks and Hoy speaking to Moore about the 

examination issue twice. The fact that Hoy may have remembered or written down the incorrect 

day in August does not change my assessment. Franks, Hoy, and Baer all agree that Franks and 

Hoy spoke to Moore twice in August. Both times, the miners expected that the information they 

provided to Moore would be investigated and passed on to the appropriate safety committee or to 

management. Both Franks and Hoy believed they were following UMWA rules by providing 

information to Moore as their safety representative, thereby remaining anonymous and protecting 

themselves from retaliation. Tr. at 43, 52. 

On or about September 22, 2011, an anonymous 103(g) complaint was made to MSHA. 

Jt. Stips. ¶ 12. One of the allegations contained in the complaint was that firebosses had not been 

conducting adequate inspections of the beltline at the mine. Jt. Ex. 1. In response to the 

complaint, an MSHA inspector conducted a hazard complaint investigation of the mine. Jt. Stips. 

¶ 13; Jt. Ex. 1. During the investigation into the hazard complaint, the MSHA inspector spoke to 

and took statements from approximately 34 miners and supervisory personnel, including Franks 

and Hoy. Jt. Stips. ¶¶ 13-15, 29-33, 38. 

38 FMSHRC Page 801
On September 28, 2011, MSHA inspector Thomas Bochna arrived at the mine as part of 

the investigation. Jt. Stips. ¶ 13. Bochna approached Franks and questioned him about whether 

he had observed a fireboss fail to perform a proper pre-shift examination of the belt. Jt. Stips. ¶ 

14. Franks responded that he knew of the incident, as well as the name of the fireboss and the

date of the inspection. Id.

On the same shift, Franks was called into an office with Bochna; a supervisory MSHA 

inspector, David Severini; Emerald’s compliance manager, William Schifko; an Emerald 

management trainee, Adam Strimer; the UMWA local president, Anthony Swetz; and the 

miners’ representative, Bruce Plaski. Jt. Stips. ¶¶ 15, 16. Inspector Severini informed the group 

that Franks had spoken to Bochna that day and that he was aware of an incident where a fireboss 

failed to perform an adequate beltline examination. Jt. Stips. ¶¶ 19, 20. Franks was asked twice 

and refused to provide the name of the fireboss or the date of the inadequate examination. Jt. 

Stips. ¶ 22. Later that day, Franks was called into a follow-up meeting. Jt. Stips. ¶ 24. Inspector 

Severini again asked him to name the fireboss, and Franks again refused. Id. 

On September 29, 2011, Franks met with inspector Bochna, Emerald compliance 

manager Schifko, and local president Swetz. Jt. Stips. ¶¶ 26, 27. Franks stated that he had written 

the name of the fireboss and the date of the inadequate exam in his personal calendar, but that he 

would not produce the document because it was not “worth it” for him to do so. Jt. Stips. ¶ 27. 

On October 4, 2011, Hoy was called into Schifko’s office for a meeting that included 

Schifko, MSHA inspectors Severini and Tony Setaro, Emerald management trainee Strimer, and 

UMWA mine committeeman Douglas Scott. Jt. Stips. ¶ 33. Severini informed Hoy that the mine 

could not retaliate against him for meeting with MSHA. Id. Hoy admitted that he had observed 

several occasions when an examiner had not properly examined the conveyor belts, but when 

asked, he refused to provide the name of the fireboss who had performed the exams. Jt. Stips. ¶ 

34; Tr. at 33. Hoy also declined a request to name a foreman he had heard complaining about 

inadequate belt examinations. Jt. Stips. ¶ 35. He was asked to produce his personal calendar 

where he had recorded the names of the firebosses and the dates of the examinations, but he 

refused. Jt. Stips. ¶ 36. 

MSHA concluded its investigation into the allegations in the anonymous complaint on 

October 4, 2011. Jt. Stips. ¶ 37; Jt. Ex. 2. MSHA issued seven citations to Emerald, but did not 

find evidence of inadequate examinations of the beltline. Jt. Stips. ¶ 38; Jt. Ex. 2. 

Following the MSHA investigation, Emerald began its own investigation into the 

allegations in the 103(g) complaint. Jt. Stips. ¶ 39. On October 20, 2011, Franks and Hoy were 

called separately into meetings with Emerald human resources manager Christine Hayhurst, 

UMWA committeeman Douglas Scott, Schifko, and Swetz. Jt. Stips. ¶¶ 40, 42. Franks and Hoy 

again declined to provide the name of a fireboss or the dates of the examinations or to produce 

written records. Jt. Stips. ¶¶ 40-42. In a subsequent meeting with Schifko, Hayhurst, and Swetz 

on October 24, 2011, Franks again declined to name the fireboss or provide the date of the 

inspection. Jt. Stips. ¶ 43. 

38 FMSHRC Page 802
On November 9, 2011, Franks and Hoy were each summoned to yet another meeting with 

Emerald safety manager Joseph Pervola, Hayhurst, and UMWA mine committeeman David 

Baer. Jt. Stips. ¶¶ 45, 48. Both Franks and Hoy again declined to provide a name of a fireboss or 

the date of an inadequate inspection. Jt. Stips. ¶¶ 45, 48. They were subsequently suspended 

from work without pay for seven days. Jt. Stips. ¶¶ 46, 49. Letters provided to Franks and Hoy 

indicate that the reason for their suspensions was the “failure to provide information you have 

concerning serious allegations of safety violations.” Jt. Stips. ¶¶ 46, 49. 

Franks and Hoy claim that they refused to identify the fireboss at the meetings and during 

the investigation because they had already provided the information to the UMWA safety 

representative, David Moore. Tr. 18-22, 47, 49, 50, 52. Hoy informed the MSHA inspectors and 

Emerald management of his reason for refusing at the October 4th meeting. Tr. at 17-18. Franks 

and Hoy also believed that Section 103(g) of the Mine Act protected them from having to 

disclose the names of other miners involved in a safety complaint to management. Tr. 18-20, 38-

39, 58. The record also indicates that the mine did know the names of the accused firebosses. Tr. 

at 22, 81, 95-96. 

On November 10, 2011, Franks and Hoy filed separate discrimination complaints with 

MSHA. The miners stated that Emerald had “targeted” and “harassed” them for participating and 

cooperating in a 103(g) complaint investigation conducted by MSHA. Compl. of Discrim., Ex. A 

at 2, 4. MSHA investigated the allegations and determined that no violation of 105(c) had 

occurred. Compl. of Discrim., Ex. B at 1, 3. 

On April 23, 2012, Complainants, through the UMWA, filed a joint complaint of 

discrimination with the Commission pursuant to 30 U.S.C § 105(c)(3). The complaint alleges 

and the miners testified that Emerald interfered with the miners’ right to provide information to 

authorized representatives of MSHA during its investigation of a hazard complaint and 

discriminated against them for their exercise of that right. Franks and Hoy further allege that 

Emerald interfered with the miners’ right to make an anonymous complaint about an alleged 

danger or safety or health violation to MSHA or to a miners’ representative. The miners sought 

lost wages including regular, overtime, and holiday pay, and to have any reference to the 

suspensions removed from their personnel files. Id. at 10. 

III.ANALYSIS 

Section 105(c)(1) of the Mine Act provides that 

No person shall discharge or in any manner discriminate against ... 

or otherwise interfere with the exercise of the statutory rights of 

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

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

operator or the operator’s agent, or the representative of the miners 

at the coal or other mine of an alleged danger or safety or health 

violation in a coal or other mine, ... or because of the exercise by 

38 FMSHRC Page 803
such miner ... on behalf of himself or others of any statutory right 

afforded by this chapter. 

30 U.S.C. § 815(c)(1) (emphasis added). This section of the Act is the basis for most 

discrimination complaints filed by miners. In addition, a majority of the Commission has 

recognized that this section establishes a cause of action for interference that is separate and 

distinct from discrimination. Franks, 36 FMSHRC at 2103 n.22 (Young & Cohen, Comm’rs); id. 

at 2105-07 (Jordan & Nakamura, Comm’rs); id. at 2124 (Althen, Comm’r); see also Sec’y of 

Labor on behalf of Gray v. N. Star Mining, Inc., 27 FMSHRC 1, 7-10 (Jan. 2005). 

The Secretary of Labor has proposed a test for evaluating interference claims that was 

adopted by two Commissioners in this case. Franks, 36 FMSHRC at 2108 (Jordan & Nakamura, 

Comm’rs). Under the Secretary’s test, a violation of the interference provision of Section 

105(c)(1) occurs if 

(1) A person’s action can be reasonably viewed, from the

perspective of members of the protected class and under the

totality of the circumstances, as tending to interfere with the

exercise of protected rights, and

(2) The person fails to justify the action with a legitimate and

substantial reason whose importance outweighs the harm

caused to the exercise of protected rights.

Sec’y Amicus Br. at 7. The Secretary’s views “constitute a body of experience and informed 

judgment to which courts and litigants may properly resort for guidance.” United States v. Mead 

Corp., 533 U.S. 218, 227-28 (2001) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 139–140 

(1944)). 

The first prong of the Secretary’s test is derived from cases interpreting Section 8(a)(1) of 

the NLRA. Sec’y Br. at 7. That section makes it unlawful for an employer to “interfere with, 

restrain, or coerce employees in the exercise of the rights guaranteed” in NLRA Section 7. 29 

U.S.C. § 158(a)(1). Accordingly, courts analyzing claims under Section 8(a)(1) look to “whether 

the employer engaged in conduct, which, it may reasonably be said, tends to interfere with the 

free exercise of employee rights under the Act.” Brandeis Mach. & Supply Co. v. NLRB, 412 

F.3d 822, 830 (7th Cir. 2005) (quoting NLRB v. Gen. Thermodynamics, Inc., 670 F.2d 719, 721

(7th Cir.1981)); see also Flagstaff Med. Ctr., Inc. v. NLRB, 715 F.3d 928, 930-31 (D.C. Cir.

2013); Medeco Sec. Locks, Inc. v. NLRB, 142 F.3d 733, 745 (4th Cir. 1998); U.S. Steel Corp. v.

NLRB, 682 F.2d 98, 101 (3d Cir. 1982). The Secretary’s proposed standard is consistent with the

Commission’s analysis in Gray. See 27 FMSHRC at 9 (evaluating “whether the employer

engaged in conduct which, it may reasonably be said, tends to interfere with the free exercise of

employee rights” (quoting Am. Freightways Co., 124 N.L.R.B. 146, 147 (1959))).

The second prong of the Secretary’s test is also derived from NLRA precedent and 

examines the mine operator’s justification for its action. Sec’y Amicus Br. at 10. In Section 

8(a)(1) cases, a court will reject an employer’s justification if the court finds that the justification 

38 FMSHRC Page 804
is pretextual. See e.g. United Servs. Auto. Ass’n v. NLRB, 387 F.3d 908, 916 (D.C. Cir. 2004); 

Cannondale Corp., 310 N.L.R.B. 845, 849 (1993). Consistent with this, the Secretary’s test asks 

whether the employer’s justification is pretextual or “legitimate.” Sec’y Amicus Br. at 10. If the 

justification is legitimate, a court hearing a Section 8(a)(1) case is then directed to “strike the 

proper balance between the asserted business justifications and the invasion of employee rights 

in light of the Act and its policy.” NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 378, (1967); 

see also Medeco, 142 F.3d at 745; Jeannette Corp. v. NLRB, 532 F.2d 916, 918 (3d Cir. 1976). 

Accordingly, the final component of the Secretary’s test is a balancing inquiry that assesses 

whether the mine operator’s justification is “substantial” enough to outweigh the harm to the 

protected rights of miners. Sec’y Amicus Br. at 10-11. 

Respondent objects to the use of the Secretary’s test, arguing that Section 105(c) should 

be read as establishing an “anti-retaliation remedy.” Resp. Br. at 6. In Respondent’s view, to 

succeed on a claim under Section 105(c)(1), a claimant should be required to demonstrate that he 

engaged in protected activity and that the operator acted in response with a discriminatory 

motive.2

 Respondent’s argument is based primarily on the text of Section 105(c)(1), which states 

that it is unlawful for a person to “discharge or in any manner discriminate against ... or 

otherwise interfere with the exercise of the statutory rights of any miner ... because such miner” 

has engaged in protected activity under the Act. 30 U.S.C. § 815(c) (emphasis added). 

Respondent argues that the word “because” indicates that Congress intended to reach only cases 

where there is a causal connection between the miner’s protected activity and the operator’s 

discrimination or interference. Resp. Br. at 5. Respondent argues that the language in the Act, 

therefore, permits a claim for interference only where a miner engaged in a protected activity and 

there was an intent on the part of the mine operator to interfere with that activity. Resp. Br. at 12. 

A number of factors, however, weigh against the Respondent’s reading. First, the 

interference language of Section 105(c)(1) (“interfere with the exercise of the statutory rights of 

any miner”) is substantially similar to the language in Section 8(a)(1) of the NLRA (“interfere 

with, restrain, or coerce employees in the exercise of the rights guaranteed” in Section 7). 30 

U.S.C. § 815(c); 29 U.S.C. § 158(a)(1). The Secretary persuasively argues that in drafting the 

interference language of Section 105(c)(1), Congress would have been aware of Section 8(a)(1), 

a well-known provision of labor law. Sec’y Amicus Br. at 5. Thus, it is likely that in including 

the term “interfere” in Section 105(c)(1), Congress intended to employ a term of art from federal 

labor law. Sec’y Amicus Br. at 5. Interference under the NLRA is a separate concept from 

retaliation and does not require a showing that the employee actually engaged in protected 

activity. Medeco, 142 F.3d at 745; Jeannette Corp. v. NLRB, 532 F.2d 916, 918 (3d Cir. 1976) 

(holding work rule invalid under Section 8(a)(1) because of its “tendency to inhibit” protected 

activity without deciding whether protected activity in fact occurred). Further, it is well 

established under NLRA case law, and was at the time of the drafting of the Mine Act, that 

unlawful motive is not a necessary element of an interference claim. See NLRB v. Burnup & 

Sims, Inc., 379 U.S. 21, 22-23 (1964); Am. Freightways Co., 124 N.L.R.B. 146, 147 (1959). 

Congress likely intended to incorporate a similar type of claim into the Mine Act when it chose 

2

 In the original decision, I found that Franks and Hoy did engage in a protected activity 

when they complained about safety and that it was directly related to a retaliatory action. That 

finding does not change here, but for purposes of discussing the application of the interference 

provision, I find that it is not necessary that the miners engage in a protected activity. 

38 FMSHRC Page 805
to use the term “interfere.” See Smith v. City of Jackson, 544 U.S. 228, 233 (2005) (“[W]hen 

Congress uses the same language in two statutes having similar purposes, particularly when one 

is enacted shortly after the other, it is appropriate to presume that Congress intended that text to 

have the same meaning in both statutes.”). 

Additionally, the legislative history of the Act indicates that Congress’s intent with 

regard to Section 105(c)(1) was to “protect miners against not only the common forms of 

discrimination, such as discharge, suspension, demotion, reduction in benefits, vacation, bonuses 

and rates of pay, or changes in pay and hours of work as a result of engaging in protected 

activity, but also against the more subtle forms of interference, such as promises of benefit or 

threats of reprisal.” S. Rep. No. 95-181, at 36 (1977). The Secretary notes that while the 

“common forms of discrimination” mentioned are all actions an employer might take in response 

to a protected activity by an employee, the “more subtle forms of interference,” promises of 

benefit and threats of reprisal, are instead actions that would be taken to influence future activity. 

Sec’y Amicus Br. at 13. While in both cases the concern is that miners will be discouraged from 

future protected activity, with promises of benefit or threats of reprisal, the effect is the same 

whether or not the employer took the action in response to past protected activity. Congress’s 

discussion of both types of activity together suggests that it intended to create more than just a 

basic anti-retaliation remedy. Protected activity is one of the important elements of a 

discrimination claim, but it loses its importance in substantiating a claim of interference based 

upon a threat or promise that may affect future action. Still, the analysis must include the 

existence of a protected right that was subject of interference. 

The Secretary’s approach is also consistent with Commission precedent. In Moses, the 

Commission affirmed a finding of interference with a miner’s exercise of protected rights under 

105(c)(1) where the operator believed that the miner had made a safety complaint, but he had not 

in fact done so. 4 FMSHRC at 1475, 1479-80. In reaching its decision, the Commission 

acknowledged that a “literal interpretation of [105(c)(1)] might require the actual or attempted 

exercise of a right before the protection of section 105 comes into play,” but it ultimately 

rejected that reading. Id. at 1480. The Commission noted that Congress intended for Section 

105(c)(1) to be “construed expansively to assure that miners will not be inhibited in any way in 

exercising any rights” afforded by the Act. Id. at 1480 (quoting S. Rep. 95-181, at 36 (1977)). 

The Commission also emphasized that 105(c)(1) should be interpreted to “redress or deter 

situations where an operator, with the intent of frustrating protected activity, takes action against 

an innocent miner.” Id. Both the Commission’s statement and the statement of the Senate 

committee point to the fact that Section 105(c)(1) prohibits not just retaliatory conduct, but also 

conduct that frustrates future protected activity. Finally, in Gray, the Commission suggested that 

intent was not a necessary element of an interference case, determining that the judge erred by 

focusing primarily on the intent behind statements made by a supervisor to a miner who testified 

against him in a grand jury investigation. 27 FMSHRC at 10. Instead, the judge should have 

considered the totality of the circumstances, including what meaning the miner could reasonably 

have inferred from the supervisor’s statements. Id. at 10-11. 

I find that the Secretary’s proposed test for interference is consistent with the text of the 

Mine Act and with Commission and other relevant precedent. Accordingly, I apply it here. 

38 FMSHRC Page 806
a. Interference with a Protected Right

An essential right of miners under the Mine Act is the “right to obtain an immediate

inspection by giving notice to the Secretary” if the miner believes that a violation of a health or 

safety standard exists at the mine. 30 U.S.C. § 813(g)(1). The provision reflects Congress’s 

belief that “mine safety and health will generally improve to the extent that miners themselves 

are aware of mining hazards and play an integral part in the enforcement of the mine safety and 

health standards.” S. Rep. 95-181, at 30 (1977). The same is true of a miner’s right to make 

safety and health complaints, not only to mine management, but to a miners’ representative. 30 

U.S.C. § 815(c)(1). 

Franks and Hoy assert that, in interrogating and suspending them in relation to the 

MSHA investigation, Emerald interfered with their rights to make a complaint under Section 

103(g) and to make a complaint to a miners’ representative. Compl. of Discrim. at 8-9. The 

Commission has decided that “Whether an operator’s question or comments concerning a 

miner’s exercise of a protected right constitute coercive interrogation or harassment proscribed 

by the Mine Act ‘must be determined by what is said and done, and by the circumstances 

surrounding the words and actions.’” Gray, 27 FMSHRC at 8 (quoting Moses, 4 FMSHRC at 

1479). In Gray, which involved potentially threatening statements made by a supervisor to a 

miner, factors that the Commission considered relevant to the interference analysis were the 

persistence with which the supervisor raised the subject of the protected activity; the accusatory 

manner with which the subject was raised; where the statements were made; the nature of the 

relationship between the supervisor and the complainant; the fact that the statements related to 

confidential grand jury testimony; and the fact that the supervisor attempted to speak to the 

complainant alone. Id. at 11-12. The Commission examined similar facts in Moses, which 

involved repeated, accusatory questioning of a miner about the reporting of an accident. 4 

FMSHRC at 1479. The Commission emphasized that the essence of its inquiry was whether the 

operator’s conduct “could logically result in a fear of reprisal and a reluctance to exercise the 

right in the future.” Id. Finally, the Seventh Circuit has performed a similar analysis in 

determining whether an interrogation interfered with protected rights under the NLRA: 

Factors that ought to be considered in deciding whether a particular 

inquiry is coercive include the tone, duration, and purpose of the 

questioning, whether it is repeated, how many workers are 

involved, the setting, the authority of the person asking the 

question, and whether the company otherwise had shown hostility

to the union. We also consider whether questions about protected 

activity are accompanied by assurances against reprisal and 

whether the interrogated worker feels constrained to lie or give 

noncommittal answers rather than answering truthfully. 

Multi-Ad Servs., Inc. v. NLRB, 255 F.3d 363, 372 (7th Cir. 2001) (citation omitted). 

 Like Moses and Gray, this case involves repeated questioning of miners regarding a

safety-related enforcement action. In the course of MSHA’s investigation into the complaint 

made at Mine No. 1, MSHA inspectors learned that Franks and Hoy had made a complaint about 

safety to their safety representative and knew the identity of a fireboss who had failed to conduct 

38 FMSHRC Page 807
a proper inspection at the mine. As part of the investigation, Franks was called into three separate 

meetings with MSHA personnel, Emerald management, and union representatives, where he was 

asked four times to identify the fireboss. Jt. Stips. ¶¶ 15, 16, 22, 24, 26.3 After MSHA concluded 

its investigation and Emerald began its own investigation into the allegations in the complaint, 

Franks was called into three more meetings with Emerald management and union 

representatives. Jt. Stips. ¶¶ 39, 40, 43, 45. Each time he was asked to identify the fireboss. Jt. 

Stips. ¶¶ 40, 41, 43, 45. At the last meeting, Franks was suspended for refusing to provide the 

information. Jt. Stips. ¶ 46. Hoy’s experience was similar to Franks’s. He was called into one 

meeting as part of the MSHA investigation, where he was asked to identify a fireboss but 

refused. Jt. Stips. ¶¶ 29-34, 36. When Emerald began its own investigation, Hoy was called to 

two more meetings, where he was again asked to name the fireboss. Jt. Stips. ¶¶ 42, 48. At the 

final meeting, he was suspended for failing to provide the requested information. Jt. Stips. ¶ 49. 

Clearly the mine was persistent in accusing both miners of wrongdoing based upon safety 

complaints. Further, the accusations were made in management offices, with a number of mine 

management and representatives present and questioning them. 

I find that these circumstances were intimidating and coercive from the perspective of a 

reasonable miner. Franks’s and Hoy’s behavior throughout the complaint process and subsequent 

investigations demonstrates the importance to them of confidentiality when making a complaint. 

Both testified that they chose to bring their complaints to Moore, the safety committeeman, 

because of their concern for confidentiality. Tr. at 43, 48, 52. Franks explained that he believed 

that by making the complaint to Moore he would be protected from retaliation by the company 

and would avoid getting “flack from the other workers.” Tr. at 48, 52. Hoy testified that after the 

meeting during the MSHA investigation, another miner told him he “had a big target on [his] 

back for talking to the inspectors.” Tr. at 33. Both Franks and Hoy clearly believed that they 

would be put in a precarious position with other miners if it were known that they had reported 

another miner for safety violations. The meetings with MSHA and Emerald made clear, 

however, that the miners’ right to raise safety concerns directly with their miners’ representative 

would not be respected. Franks and Hoy both indicated at the first meeting with MSHA that they 

did not wish to disclose the name of the fireboss to MSHA and management, but that they had 

already provided it to Moore. Tr. at 18, 19. Nevertheless, both were called in for multiple 

meetings and repeatedly asked to provide the information. A reasonable miner would have 

understood this as pressure from the company to disclose the information. The presence of 

multiple management officials at these meetings undoubtedly increased the pressure. See Jt. 

Stips. ¶¶ 40-43, 45, 46. Finally, the suspensions that Franks and Hoy received were a clear signal 

that they were not free to make complaints in the manner they wished. Franks and Hoy could 

reasonably have interpreted this coercive questioning and ultimate suspension to be the result of 

having made a safety complaint. They reasonably would have believed that in the future they 

would be subjected to scrutiny if they made safety complaints to their representative or if any of 

their concerns appeared in a complaint to MSHA, and so would be dissuaded from making future 

complaints that could lead to MSHA investigations. See Moses, 4 FMSHRC at 1479 (finding that 

interference occurred where conduct “chill[ed] the exercise of protected rights”). I thus find that 

3

 There is some question of the propriety of MSHA’s actions in informing the mine that 

Franks and Hoy were involved in the 103(g) allegations made in this case, thereby removing 

their right to at least some confidentiality. 

38 FMSHRC Page 808
the actions of Emerald in this instance interfered with the right of Franks and Hoy to make safety 

complaints to their union representative or to MSHA under Section 103(g). 

b. Emerald’s Legitimate and Substantial Reason 

 Under the Secretary’s test for interference, once a finding of interference with protected 

rights is made, the operator has an opportunity to “justify the action with a legitimate and 

substantial reason whose importance outweighs the harm caused to the exercise of protected 

rights.” Sec’y Amicus Br. at 7. It is then the court’s duty to “strike the proper balance between 

the asserted business justifications and the invasion of employee rights in light of the Act and its 

policy.” NLRB v. Fleetwood Trailer Co., 389 U.S. 375, 378 (1967). 

 Emerald asserts as the justification for its actions that it had a responsibility “to provide a 

safe workplace, a responsibility that necessarily involves investigation of safety issues.” Resp. 

Br. at 11, 17. Indeed, the Mine Act states that “the operators of ... mines with the assistance of 

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

conditions and practices” in the mines. 30 U.S.C. § 801(e). The Commission has recognized that 

“[i]n order to carry out this responsibility, mine operators need to know about unsafe 

conditions.” Swift v. Consol. Coal Co., 16 FMSHRC 201, 205 (Feb. 1994). Schifko, Emerald’s 

compliance manager, testified that examinations of conveyor belts are vital to mine safety, and 

that after MSHA finished its investigation, Emerald felt the need to investigate further to see if 

there was any merit to the complaints about inadequate inspections. Tr. at 75-76. 

 I find that Emerald’s need to investigate the 103(g) complaint was a legitimate and 

substantial justification for seeking to learn the identity of the firebosses from Franks and Hoy. I 

do not find, however, that it outweighed the harm caused to the protected rights of miners. First, 

while Emerald had a legitimate need to learn the identity of the firebosses, the record shows that 

the company could have, and in fact did, obtain the information from sources other than Franks 

and Hoy. Specifically, Franks and Hoy had both provided the name of a fireboss to safety 

committeeman Moore, and Hoy and possibly Franks informed Emerald of this fact during the 

MSHA investigation. Tr. at 18, 19, 47. Emerald did interview Moore as part of its investigation, 

and he stated that he did not know of any problems with belt inspections. Tr. at 80. At that point, 

though, Emerald could have inquired more deeply into the complaints Moore had received and in 

order to find out the dates and times of the alleged bad inspections. It is in fact clear from the 

record that the mine did learn the names of the firebosses mentioned in the complaints of Franks 

and Hoy. Yet Emerald focused on extracting the identity of the fireboss from Franks and Hoy, 

even though both had indicated they were unwilling to disclose the information. 

Additionally, I find that the impact of Emerald’s conduct on the exercise of protected 

rights at the mine was significant. Franks and Hoy were subject to multiple interrogations in 

front of a crowd of managers and officials and were ultimately suspended. They were repeatedly 

asked to provide information related to safety complaints they anonymously made at the mine. 

These events reasonably could have dissuaded Franks and Hoy from reporting safety violations 

in the future. Further, other miners at the mine were aware of the treatment of Franks and Hoy 

during the investigations. See e.g. Tr. at 33, 48. It is likely that these other miners could also be 

dissuaded from reporting safety violations in the future out of a fear of similar repercussions. An 

38 FMSHRC Page 809
atmosphere where miners are afraid to make safety complaints is directly contrary to Congress’s 

vision of miners actively participating in mine safety enforcement, and can have negative 

consequences on safety at the mine. Because these effects are directly opposed to the policy of 

the Mine Act, I find that Emerald’s justification for its actions does not outweigh the harm to 

miners’ rights “in light of the Act and its policy.” Fleetwood Trailer, 389 U.S. at 378. Therefore, 

I find that Emerald’s actions violated Section 105(c)(1). 

IV.PENALTY

After I issued my initial decision in this case, the Secretary proposed two penalties of 

$20,000.00 for the violations in this case. The Secretary based these penalties on my findings of 

discrimination in the proceeding above. 36 FMSHRC at 2100. I find that the Secretary’s 

proposed penalties are also appropriate for interference violations. 

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. The mine has a history of 

two previous 105(c) violations. Emerald is a large operator and Mine No. 1 is a large mine. 

Respondent admits that the penalties will not affect its ability to continue in business. Ans. to 

Pet. for Assessment at ¶ 6. I find that a good faith reduction is not appropriate for these 

violations. The gravity of the violations is serious in that Respondent compromised the 

willingness of miners to participate in mine safety enforcement at the mine. Respondent’s 

negligence was significant given the persistence of its conduct in the face of the obvious 

unwillingness of Franks and Hoy to name the fireboss. Accordingly, I find that the Secretary’s 

proposed penalties are appropriate. 

38 FMSHRC Page 810
V. ORDER

Emerald Coal Resources is ORDERED to pay back pay to Mark Franks in the amount of 

$1,168.68, and to Ronald Hoy in the amount of $1,963.93, with interest at 8% from the date it 

was due.4

 Emerald is ORDERED to pay the sum of $40,000.00 to the Secretary of Labor. All 

payments shall be made within 40 days of the date of this order. Emerald shall, within 40 days of 

the date of this order, post this decision along with a visible notice on a bulletin board that is 

accessible to each and every employee, explaining that the company has been found to have 

interfered with the exercise of protected rights by employees, that such interference will be 

remedied, and that it will not occur in the future. The notice shall inform all employees of their 

rights in the event that they believe they have been discriminated against and shall remain posted 

for 180 days. All reference to the reprimand received by Franks and Hoy, and the reasons 

therefore, shall, within 40 days of the date of this order, be removed from their respective 

personnel files or other employment records. Such reprimand shall not be used or considered as a 

basis for any future action against Franks or Hoy. 

/s/ Margaret A. Miller 

Margaret A. Miller 

Administrative Law Judge 

Distribution: (U.S. First Class Mail) 

Laura Karr, United Mine Workers, 18354 Quantico Gateway Drive, Triangle, VA 22172 

R. Henry Moore, Jackson Kelly PLLC, Three Gateway Center, Suite 1500, 401 Liberty Ave.

Pittsburgh, PA 15222

Ronald Hoy, 13 Bonasso Drive, Fairmont, WV 26554 

Mark Franks, 253 Braddock Avenue, Uniontown, PA 15401 

Melanie Garris, Office of Civil Penalty Compliance, MSHA, U.S. Department of Labor, 201 12th

Street South, Arlington, VA 22202 

Jason Grover, Office of the Solicitor, U.S. Department of Labor, 201 12th Street South, 

Arlington, VA 22202 

4

 The back pay calculation is based upon the calculations in Respondent’s Exhibit 1, 

agreed to by the parties. 

38 FMSHRC Page 811
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 

April 18, 2016 

DECISION ON REMAND 

Appearances: Laura C. Bremer, Esq., Office of the Solicitor, U.S. Department of Labor, 

San Francisco, CA, for the Secretary 

Laura E. Beverage, Esq., Jackson Kelly, PLLC, Denver, CO, for the 

Respondent 

Hiliary N. Wilson, Esq., Newmont Mining Corporation, Elko, NV, for the 

Respondent. 

Before: Judge Lewis 

NEWMONT USA, LIMITED, 

 Contestant, 

v. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Respondent 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

 v. 

NEWMONT USA, LIMITED, 

 Respondent 

CONTEST PROCEEDING 

Docket No. WEST 2010-652-RM 

Citation No. 6482848; 01/26/2010 

Mine ID: 26-02314 

Mine: Midas Mine 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 2010-1584-M 

A.C. No. 26-02314-224579

Mine: Midas Mine 

38 FMSHRC Page 812
PROCEDURAL HISTORY

On January 5, 2012, the undersigned ALJ issued a decision in Docket Nos. WEST 2010-

652-RM and WEST 2010-1584-M.1 In its decision this Court found that the Respondent mine

operator, Newmont USA Limited (“Newmont,”) had violated 30 C.F.R. § 57.85282

, that the

violation was significant and substantial (S&S) in nature, that the violative conduct did not

constitute an unwarrantable failure, and that the proposed civil penalty of $35,500.00 should be

reduced to $5,000.00.3

The Secretary and Respondent filed cross petitions for discretionary review, which the 

Commission granted on February 13, 2012. In its March 31, 2015 remand decision, the 

Commission affirmed this Court’s finding of violation, vacated and reversed this Court’s S&S 

finding, and vacated and remanded this Court’s unwarrantable failure finding and penalty 

assessment. 

After holding a telephone conference at which both parties agreed that a supplemental 

hearing would not be necessary, this Court set a briefing schedule for both parties to address the 

issues that were subject to the Commission’s remand order. After careful review of the total 

record and the parties’ briefs, this Court issues the within remand decision. 

SUMMARY OF THE TESTIMONY AND FACTUAL RECORD

The ALJ hereby incorporates the summary of testimony as contained in his January 5, 

2012 decision and factual background as contained in the Commission’s March 31, 2015 remand 

decision as though fully recited herein. Newmont USA Ltd., 34 FMSHRC 146 (Jan. 2012); 

Newmont USA Ltd., 37 FMSHRC 499 (Mar. 2015). 

FINDINGS OF FACT AND CONCLUSIONS OF LAW

I. Review of Commission Decision

In its March 31, 2015 remand decision the Commission4

 upheld my finding that §57.8528

had been violated in that the operator had failed to barricade the headings at issue and had failed 

to adequately post signs against entry. Newmont USA Ltd., 37 FMSHRC 499, at 501. The 

headings were “unventilated” under the language of the standard because the operator had shut 

down the auxiliary fan and had tied off the ventilation bags in the headings. Newmont USA Ltd.,

37 FMSHRC 499, 502 (Mar. 2015). 

1

 This decision is available at 34 FMSHRC 146 (Jan. 2012). The decision incorrectly 

states the date of issuance as January 5, 2011. 

2

 Section 57.8528, in pertinent part, provides that unventilated areas shall be sealed, or 

barricaded and posted against entry. 

3

 The original assessed penalty amount in the January 5, 2012 decision was incorrectly 

stated as $35,000. 

4

 Neither Chairperson Jordan nor Commissioner Young participated in this decision. 

38 FMSHRC Page 813
The Commission noted that the term “unventilated” is not defined in the standard and 

essentially held that the Secretary’s interpretation (and this Court’s finding) that air must sweep 

the face in a manner that would provide oxygen and clear contaminants was “clearly” reasonable 

and entitled to deference. Id., 503-5. Noting further that the Secretary’s interpretation of the term 

“unventilated” was consistent with the standard’s purpose -- “to protect miners from the dangers 

posed by the headings with inadequate oxygen and accumulations of noxious gases” – the 

Commission held that the term “unventilated” includes airflow that is insufficient to sweep a 

heading’s face and that the term “unventilated” in §57.8528 includes the failure to provide 

sufficient airflow to sweep the face. Id., 504, see also Tr. 271. 

In considering whether the violation was S&S in nature under the four step analysis in 

Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984), this Court found at the second step that the 

discrete safety hazard contributed to by the violation was that a miner might “access” an 

unventilated area, that was not properly barricaded, and “be overcome by noxious air or lack of 

oxygen.” Newmont USA, Ltd., 34 FMSHRC 161 (Jan. 2012), emphasis mine. 

The Commission expressly upheld my finding that there was a violation of a mandatory 

safety standard contained in §57.8528. However, it did not explicitly state whether it agreed with 

my description as to the specific nature of the discrete safety hazard contributed to by the 

violation. 

In his concurring and dissenting opinion, Commissioner Cohen observed that while I had 

articulated the relevant hazard my description was over inclusive: “it was sufficient to describe 

the relevant hazard as a danger that a miner will access the area and be exposed to noxious air or 

the lack of oxygen.” Newmont USA Ltd., 37 FMSHRC 499, at 508 (Mar. 2015) (Cohen, 

Comm'r., concurring in part and dissenting in part). 

As set forth herein, this Court has heavily relied upon Commissioner Cohen’s insightful 

analysis in deciding the within remanded matters.5

In its majority decision the Commission referred to my finding that the barricade 

procedures utilized by Newmont did not reduce the reasonable likelihood of miners suffering 

exposure to toxic gases or a lack of oxygen. Newmont USA Ltd., 37 FMSHRC at 504. However, 

in its S&S analysis, the Commission again appears to describe the hazard posed as “the build-up 

of toxic gases or lack of sufficient oxygen.” Id., at 505. 

In hindsight, perhaps a better articulation of the discrete safety hazard posed by the 

violation – as suggested by Commissioner Cohen – may have compelled a different holding by 

the Commission as to my S&S determination. However, in following the directives of the 

Commission in its remand order, this Court shall assume that the discrete safety hazard posed 

was that of miners being overcome by noxious or oxygen-deficient air. 

5

 In reviewing Commissioner Cohen’s thoughtful opinion, the undersigned is reminded of 

William O. Douglas’s observation that “the right to dissent is the only thing that makes life 

tolerable for a judge of an appellate court.” William O. Douglas, Aᴍᴇʀɪᴄᴀ Cʜᴀʟʟᴇɴɢᴇᴅ, at 4 

(1960). 

38 FMSHRC Page 814
It is worth noting that in a recent decision, my distinguished colleague, ALJ William 

Moran, expressed similar regrets regarding his description of the second Mathies element and the 

Commission’s reversal of his S&S determination possibly because of such. Oak Grove 

Resources, LLC, SE 2009-261-R (Apr. 2016), at 4. Like Judge Moran, I believe that the recent 

holding in Knox Creek Coal Corp. v. Secretary of Labor, 811 F.3d 148 (4th Cir. 2016), may have 

some relevance to the instant matter. In Knox Creek Coal, the Fourth Circuit held that “for a 

violation to contribute to a discrete safety hazard, it must be at least somewhat likely to result in 

harm.” Knox Creek Coal Corp., 811 F.3d 148, 162 (4th Cir. 2016). The Circuit Court further

noted that the legislative history of the Mine Act suggests that Congress did not intend the S&S 

determination to be a particularly burdensome threshold for the Secretary to meet and that 

Congress intended all except technical violations of mandatory standards to be considered 

Significant and Substantial. Id., at 163. 

I fully recognize that I am bound by the Commission’s reversal of my S&S 

determination. However, I would submit that a Knox Creek Coal analysis of the discrete safety 

hazard contributed to by the violation – whether it be exposure to lack of oxygen or noxious 

gases in unventilated headings or being overcome by such – would indicate that the presence of 

noxious gases or inadequate oxygen in unventilated headings should be assumed and that there 

was a sufficiently reasonable likelihood that the hazard contributed to would result in an injury 

so as to support an S&S determination. 

As noted in my original decision, by failing to adequately guard unventilated headings 

the mine operator contributed “to the chance that a miner will underestimate the level of danger, 

access the area and be overcome by noxious air or a lack of oxygen.” Newmont USA, Ltd., 34 

FMSHRC at 161. 

The record included evidence submitted by the operator suggesting a danger of noxious 

gas or oxygen-deficient air in unventilated headings. Multiple slides in the operator’s Power 

Point presentation discuss the risk of spontaneous gas build-up. One slide, titled “Naturally 

Occurring Contaminants” notes the hazard of “Gases released into the mine or from rock strata.” 

RX-7 (emphasis added). Another slide, titled “Unwanted Mine Atmospheric Conditions” warns 

specifically against “Stagnate (sic) Air – No Air Flow: ... stratified air, or high gas 

concentration,” within the Midas Mine. RX-7. 

In reversing my S&S determination, the Commission cited testimony of the mine 

supervisor, Sid Tolbert, and mine manager, Mark Ward: “[f]urther, the operator’s witnesses 

testified that the rock strata of the mine would not allow for any loss of oxygen to occur, a point 

which the Secretary did not dispute. Tr. 256, 291.” Newmont USA Ltd., 37 FMSHRC at 505. 

Tolbert asserted at hearing that sufficient air could be circulated through tied off ventilation bags. 

Tr. 271. However, Tolbert further acknowledged that without fans operating, air will not sweep 

the face of unventilated headings. Tr. 271. Newmont’s policy, in case of auxiliary fan failure, is 

to evacuate the area until the problem is resolved. Tr. 326. This, I would submit, suggests the 

operator’s materials and practices acknowledged the potential dangers of even a briefly 

unventilated heading. Further, in assessing the probability of harm under Knox Creek Coal such 

would be supportive of an S&S determination. 

38 FMSHRC Page 815
Finally, while the Commission left the term “non-gassy” undefined and although I found 

that the mine itself may not have emitted gases, I also found that Respondent ran diesel and other 

equipment in the mine which did emit combustible gases that could build up over time in 

unventilated areas. Newmont USA, Ltd., 34 FMSHRC at 162. 

Given that Respondent’s own training materials, as well as its company policy, 

acknowledged the risks of spontaneous gas build-up and oxygen deficiency in unventilated areas, 

I would further submit that the third element of Mathies would be satisfied utilizing the Knox 

Creek Coal approach to likelihood of harm. 

See also the recent decision of my esteemed colleague, ALJ Thomas McCarthy, at 

Northshore Mining Company, No. LAKE 2015-340-M, slip op. at 1 (April 11, 2016). In his 

decision Judge McCarthy also perceptively examines how the recent holding in Knox Creek Coal

appears to shift the focus of the S&S analysis from the third to the second Mathies prong and to 

restrict consideration of the facts bearing on the reasonable likelihood of injury under the third 

prong. Northshore Mining Company, slip op., at 8. 

Judge McCarthy observed that under Knox Creek Coal the occurrence of the hazard 

should be assumed under the third prong of Mathies. Evidence of the likelihood that the hazard 

will occur should not be considered at the third prong; rather the inquiry is whether the hazard, 

assuming it occurred, would result in serious injury. Id., 8. 

Judge McCarthy further notes a similar Mathies analytical approach suggested by the 

Seventh Circuit in Peabody Midwest Mining, LLC v. FMSHRC, 762 F.3d 611 (7th Cir. 2014). In 

Peabody Midwest Mining, the Seventh Circuit held that the “question is not whether it is likely 

that the hazard (a vehicle plummeting over the edge) would have occurred ‘but rather’ whether, 

if the hazard occurred (regardless of likelihood) it was reasonably likely that a reasonably serious 

injury would result.” Northshore Mining Company, at 8, citing Peabody Midwest Mining, 762 

F.3d 611, at 616.

Utilizing the analytical approach to Mathies under Knox Creek Coal and Peabody 

Midwest Mining, the undersigned submits that once the discrete safety hazard contributed to by 

violation (miners accessing unventilated headings and being exposed to noxious fumes and/or 

lack of oxygen) was established at Mathies’ second prong, its occurrence should have been 

presumed under the third prong of Mathies, and that further, given the case evidence presented, it 

was reasonably likely that a reasonably serious injury would result. Thus, the analytical 

framework within Knox Creek Coal and Peabody Midwest Mining would appear to support my 

initial S&S finding. 

38 FMSHRC Page 816
II. The Operator’s Belief That it Was in Compliance Was Not Objectively

Reasonable

In its remand order the Commission found that this Court had erred in vacating the 

Secretary’s unwarrantable failure designation by, inter alia, failing to determine whether 

Newmont’s belief that it was in compliance was objectively reasonable: 

The Judge erred by failing to determine whether the operator's belief that it was in 

compliance was objectively reasonable. The Judge found that “Hirsch gave ‘operators 

specific guidance about what the Western District would accept as a barricade,”’ but no 

guidance regarding when a barricade must be used. 34 FMSHRC at 164. The Judge 

therefore concluded that the operator possessed a good faith belief that its policy of 

roping off headings that were to be worked in the near future in non-working areas 

complied with the standard. His analysis, however, overlooks the fact that, as a matter of 

law, an operator's belief that it is in compliance constitutes a defense to an unwarrantable 

designation only if the belief was objectively reasonable. See IO Coal, 31 FMSHRC at 

1356-60. The Judge erred by failing to make a finding as to whether the belief was 

“objectively” reasonable and explaining the reasons for such a finding. 

We remand the case to the Judge to make factual findings on the elements of an 

unwarrantable failure and whether the operator had an objectively reasonable belief that 

the rope and sign utilized by the operator complied with the regulation. 

Newmont USA, Ltd., 37 FMSHRC at 505-6. 

The Secretary contends that MSHA had clearly provided notice to the Respondent that its 

use of roping and sign procedures in headings – where fans were shut down and/or where 

ventilation bags were tied off – violated §57.8528. Thus, any belief that the Respondent held that 

such measures complied with the standard was objectively unreasonable. Pet’r’s Opening Brief 

on Remand, 11. 

This Court found that the Secretary’s arguments on this point to be much more persuasive 

than the Respondent’s counterarguments. 

Given MSHA’s repeated guidance to Newmont regarding the types of barricades 

permitted in areas where ventilation bags had been tied off, the operator’s asserted subjective 

belief that it was in compliance by using roping and signs cannot be deemed reasonable. See also 

New Warwick Mining Co., 18 FMSHRC 1365, 1371 (1996) (holding that an operator’s efforts at 

compliance are not reasonable when the operator chose to act in a manner contrary to MSHA’s 

guidance). 

The unreasonableness of Newmont’s purported subjective belief is further confirmed in 

light of Assistant District Manager Hirsch’s description of a near fatality at Miekle Mine when 

miners walked into an area where the unventilated tubing had been tied off. The six citations 

issued in October of 2009 should have dispelled any question in the minds of Newmont’s 

management from the June meeting as to when and what barricades were needed. 

38 FMSHRC Page 817
 In reviewing the record this Court must now conclude that Respondent’s failure to erect 

mandated barricading was very probably due to a “contest of wills” between the mine operator 

and MSHA rather than any objectively reasonable belief of the Respondent as to its compliance. 

The confrontation between Inspector Stull and McFarlane regarding the operator’s use of a chain 

across a heading during an earlier inspection in which McFarlane emphasized the operator’s 

intention not to barrier up all headings that were going to be mined soon is revelatory. See also 

Tr. 145-156 and Pet’r’s Opening Brief on Remand at 15. 

In concluding that the operator’s belief that it was in compliance was not objectively 

reasonable, this Court again found the analysis of Commissioner Cohen to be particularly 

instructive: 

My colleagues rightly conclude that the Judge erred by failing to make a finding on 

whether Newmont's belief was objectively reasonable. However, I would go further and 

find, under the facts in this case, that any belief which Newmont had that its procedures 

complied with the regulations was not objectively reasonable. 

Newmont USA Ltd., 37 FMSHRC at 510 (Cohen, Comm'r., concurring in part and dissenting in 

part). 

Commissioner Cohen noted multiple instances where MSHA explicitly provided notice 

to the operator that Newmont’s practice of barricading headings with rope and signage was not 

sufficient and constituted a violation of the Mine Act. First, there was the June 2009 meeting in 

Elko, NV, where MSHA Assistant District Manager Kevin Hirsh gave specific guidance as to 

what MSHA deemed to be an acceptable barricade under 30 C.F.R. § 57.8528. Id., at 510-1. 

Commissioner Cohen notes that this Court did not “take into consideration what occurred 

between the June 2009 meeting and the issuance of Order No. 6482848 on January 26, 2010.” Id. 

Commissioner Cohen refers, of course, to the six separate citations issued between 

October 14 and October 22, 2009, five of which concerned either partial or absent barricades in 

headings. Id., at 511. “Any question in the minds of Newmont’s management from the June 

meeting as to when a barricade was needed should have been dispelled by the six citations issued 

in October.” Id.. Relatedly, Commissioner Cohen recounts the October 20, 2009 confrontation 

between Inspector Stull and Midas Health and Safety Specialist McFarland. Id. McFarland’s 

outburst exclaiming that “they’re not going to put a barrier up in all the headings that are going 

to be mined soon,” as well as Stull and his supervisor Jim Fitch’s subsequent hour-long meeting 

and clarification with Midas staff regarding barricading requirements under 30 C.F.R. § 57.8528 

is also described. Id. As Commissioner Cohen reasons, “[s]urely, any reasonable question of 

what §57.8528 required was dispelled by the events of October 20-21.” Id., at 511. 

Commissioner Cohen also examined Newmont’s “Updated Barricade Procedure,” in 

detail: 

The new policy created three categories of headings - “Active Heading” (headings are 

presently in production or development or scheduled for production or development 

within four weeks), which only require a rope barrier; “Short Term Inactive Heading” 

(headings which are scheduled for production nor development within 4 to 12 weeks, or 

have been removed from active status due to changes in ground or ventilation), which 

38 FMSHRC Page 818
require a snow fence barricade or a berm; and “Long Term Inactive Heading” (headings 

which are scheduled for production or development beyond 12 weeks, or where mining 

activities are complete), which require a chain link fence. NM Ex. 8. Significantly, while 

the barricades for Short Term Inactive and Long Term Inactive Headings are “intended to 

restrict access into the area”, the rope barrier for Active Headings is only “intended to 

impede access.” Id. Moreover, the signage required for Active Headings does not clearly 

restrict access but only says “Heading Inspection Required.” Id.

The distinction in the new barricading policy between areas requiring a snow fence, berm 

or chain link fence designed to “restrict access,” and areas requiring only a rope barrier 

designed to “impede access” is keyed to the length of time until production or 

development - i.e., more or less than four weeks. Although Newmont's new barricading 

policy explicitly references and quotes §57.8528, it totally ignores the distinction which 

triggers the need for a barricade - whether an area is “unventilated.” Despite the series 

of §57.8528 citations and the meeting with MSHA in October, Newmont's new 

barricading policy simply does not require a barricade for an unventilated area if the area 

is scheduled for production or development within four weeks. 

Newmont USA Ltd., 37 FMSHRC at 511-2 (Cohen, Comm'r., concurring in part and dissenting in 

part). 

Commissioner Cohen mentions that the 1-5301 headings appear to have been left 

inadequately barricaded even under Newmont’s own Updated Barricade Procedure. Id., at 512. 

In his opinion concurring in part and dissenting in part, Commissioner Cohen 

summarized multiple instances in the record which showed that “it certainly cannot be said that 

Newmont’s actions constituted objectively reasonable compliance with §57.8528 or suggested 

good faith”: the six violations in October, 2009; McFarland’s “adamant behavior on October 

20,” MSHA’s subsequent meeting to clarify barricading requirements on October 21; the 

drafting of a new policy that effectively ignored the Secretary’s instructions regarding 

unventilated headings; Newmont’s own failure to follow its updated barricade policy. Id. 

The Commission applies a mixed subjective/objective analysis in determining the 

motivations of parties in taking various actions. For example, in Dolan v. F&E Erection Co., 22 

FMSHRC 171, 175 (Feb. 2000), the Commission held that in determining the propriety of a 

work refusal the standard required both a subjective element of a miner’s honest belief that a 

hazard exists as well as the objective requirement that the miner’s belief be reasonable.6

As pointed out by the Commission in its remand decision, and so lucidly explained by 

Commissioner Cohen, this Court failed to employ both a subjective and objective analysis in 

reviewing the propriety of the mine operator’s decision not to comply with MSHA directives. 

6 See also Robinette v. United Castle Coal, 3 FMSHRC 803 (Apr. 1981) wherein the 

Commission held that a miner’s honest perception of a potentially hazardous condition must be 

one made in good faith and be reasonable under the total circumstances. 

38 FMSHRC Page 819
This Court is reluctant to ascribe bad faith motivations to a party’s actions when other, 

less pejorative arguable explanations exist. Thus was reached this Court’s finding – which 

Commissioner Cohen understandably labeled “doubtful” – that Respondent had possessed a 

good faith belief that it was complying with the regulations when it roped off headings that were 

to be worked. Newmont USA, Ltd., 34 FMSHRC at 164. 

The pertinent question, however, is not the operator’s good faith belief in its compliance 

but rather the objective reasonableness of that belief. The great weight of evidence in this matter, 

applicable case-law, the Secretary’s persuasive arguments, and Commissioner Cohen’s valuable 

insights all support the conclusion that the Respondent could not have held an objectively 

reasonable belief that it was in compliance with §57.8528.7

III. The Operator’s Conduct Constituted Unwarrantable Failure

In its remand order the Commission further directed that this Court make factual findings

on the elements of an unwarrantable failure pursuant to, inter alia, its holding in Sec. of Labor v. 

Manalapan Mining Co., 35 FMSHRC 289 (Dec. 1987). 

In Manalapan the Commission reviewed the factors to be evaluated in determining 

unwarrantable failure: 

In Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987), the Commission determined that 

unwarrantable failure is aggravated conduct constituting more than ordinary 

negligence. Id. at 2001. Unwarrantable failure is characterized by such conduct as 

“reckless disregard,” “intentional misconduct,” “indifference,” or a “serious lack of 

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

194 (Feb. 1991); see also Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 136 (7th Cir. 

1995) (approving Commission's unwarrantable failure test). 

Whether conduct is “aggravated” in the context of unwarrantable failure is determined by 

looking at all the facts and circumstances of each case to see if any aggravating factors 

exist, including (1) the extent of the violative condition, (2) the length of time that the 

violative condition existed, (3) whether the violation posed a high degree of danger, (4) 

whether the violation was obvious, (5) the operator's knowledge of the existence of the 

violation, (6) the operator's efforts in abating the violative condition, and (7) whether the 

operator had been placed on notice that greater efforts were necessary for 

compliance. See IO Coal Co., 31 FMSHRC 1346, 1351-57 (Dec. 2009); Cyprus Emerald 

Res. Corp., 20 FMSHRC 790, 813 (Aug. 1998), rev'd on other grounds, 195 F.3d 42 

(D.C. Cir. 1999). These seven factors need to be viewed in the context of the factual 

circumstances of a particular case, and some factors may be irrelevant to a particular 

7

 As will be discussed infra, this Court recognizes that if a mine operator reasonably, but

erroneously, believes in good faith that his cited conduct is the safest method of compliance with 

applicable regulations, his actions will not constitute aggravated conduct that exceeds ordinary 

negligence. Black Beauty Coal Co. v. FMSHRC, 703 F.3d 553 (2012). But in the instant matter, 

if the danger to be avoided was the exposure of miners to noxious air or lack of oxygen in 

unventilated headings – clearly the safest method of compliance was the more substantive 

barricading procedures directed by MSHA so as to prevent access to unventilated areas. 

38 FMSHRC Page 820
factual scenario. Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000). 

Nevertheless, all of the relevant facts and circumstances of each case must be examined 

to determine if an operator's conduct is aggravated, or whether mitigating circumstances 

exist. Id.; IO Coal, 31 FMSHRC at 1351. 

Manalapan Mining Co., 35 FMSHRC at 293. 

Considering the Manalapan factors seriatim this Court makes the following findings: 

1. The Extent of the Violative Condition

Given Newmont’s admission that its procedures required miners to erect rope barriers 

and “Heading Inspection Required” signs in areas to be mined within four weeks, even if the 

ventilation bags had been tied shut, the scope of the violative condition was extensive. 

The Respondent contends that, because the inspector issued one citation concerning a 

single area, the violation cannot have been extensive. Respondent’s Response Brief on Remand, 

8. Further, the Respondent argues that this is confirmed by the inspector’s failure to cite 

Newmont’s Standard Operating Procedure (SOP) or other policies. Id. 

This final point by the Respondent fails to persuade. It is unclear to this Court just how 

Inspector Guardipee would have cited Newmont for its SOP or company-wide policies when he 

was standing in the 1-5301 North and South headings. There is uncontradicted evidence that the 

Respondent, as a matter of policy, routinely erected insecure, ineffective barricades that failed to 

impede miner access. Newmont also routinely failed to warn miners about the dangers of 

noxious air in unventilated headings by neglecting to post signs to that effect. For these reasons, I 

find the violation was extensive. 

This factor weighs in favor of a finding of unwarrantable failure. 

2. The Length of Time the Violative Conditions Existed 

The record reveals that the ventilation bag was tied off for at least one month. Pet’r’s 

Opening Brief on Remand, 16. The Respondent offers no argument or evidence to the contrary, 

instead urging this Court to give primary weight to the factor of dangerousness within this 

unwarrantable failure analysis. Respondent’s Response Brief on Remand, 7. 

Similar to circumstances that obtained in Excel Mining, 37 FMSHRC 459 (Mar. 2015), 

the violative condition here existed for a period of weeks. There the Commission found that the 

length of time the condition had existed, as well as other factors, proved highly aggravating and 

inclined toward a finding of unwarrantable failure. Id. at 468. 

The Secretary also cites numerous Commission cases in his brief supporting an 

unwarrantable failure designation “where the violative condition existed for a period of time 

from longer than one shift to several weeks.” Pet’r’s Opening Brief on Remand, at 16. Further, 

the Secretary argues, “violations have been found to exist over a long period of time where the 

practice was long standing.” Pet’r’s Opening Brief on Remand, at 16, citing Lopke Quarries, 

38 FMSHRC Page 821
Inc., 23 FMSHRC 705, 711 (Jul. 2001); Consolidation Coal, 23 FMSHRC 588, 594 (Jun. 2001); 

Windsor Coal, 21 FMSHRC 997, 1000 (Sept. 1999); Sierra Rock Prods., 37 FMSHRC 647 

(Mar. 2015). 

Given the lengthy period of time this condition obtained, this factor also militates in favor 

of a finding of unwarrantable failure. 

3. Whether the Violation Posed a High Degree of Danger

The Commission in Manalapan reaffirmed that the factor of dangerousness may be so 

severe that by itself it warrants a finding of unwarrantable failure. Manalapan Mining Co., at 

294. However in the case sub judice the Commission specifically found that this Court erred in

concluding that the violation at issue was S&S and held that there “was no substantial evidence

to support a finding that the violation contributed to a discrete hazard reasonably likely to result

in an injury.” Newmont USA Ltd., 37 FMSHRC 499, at 504.

This Court agrees with the Secretary’s contention, that “although the danger may not 

have been ‘reasonably likely,’ this does not mean that unventilated underground headings are not 

dangerous.” This contention has some merit, especially considering, as the Secretary does, that 

“assuming continued operations, the air quality would continue to diminish.” Pet’r’s Opening 

Brief on Remand, 17. 

Given that the Commission’s findings constitute “the law of the case,” this Court is 

constrained to conclude that the degree of danger posed by Newmont’s violation was not high. 

Eastern Ridge Lime Co., 21 FMSHRC 416 (Apr. 1999) (finding that decision by appellate court 

obliged lower court on remand to follow appellate court’s decision); Manalapan Mining Co., 36 

FMSHRC 849 (Apr. 2014) (finding that judge, on remand, violated law of the case doctrine in 

FMSHRC context by reversing an initial, uncontested finding). 

Nonetheless, while this Court cannot find a high degree of danger in this case, 

Newmont’s conduct in this instance was unwarrantable. An absence of a high degree of danger 

does not suggest safety, and leaving headings unventilated and effectively unbarricaded gives 

rise to some measure of added danger beyond the usual ration of risk offered to a miner. An 

unventilated heading, left untouched for weeks on end, would naturally see its air quality 

diminish, perhaps to the point of danger for a nearby miner. 

This factor weighs in favor of a finding of unwarrantable failure. 

4. Whether the Violation Was Obvious

The condition was also obvious. A rope with an attached sign is obviously not a barricade 

of snow fence or chain link. More fundamentally, a rope or chain with an attached sign will not 

deter a miner from entering an unventilated heading as effectively as snow fence or chain link 

barriers would. As discussed infra and supra, Newmont could not have had a good faith, 

objectively reasonable belief that a rope with an attached sign constituted a barricade. Therefore, 

the violation was obvious. 

38 FMSHRC Page 822
This factor also weighs in favor of a finding of unwarrantable failure. 

5. The Operator’s Knowledge of the Existence of the Violation 

Newmont admitted knowledge of the violation when it promulgated its “Updated 

Barricade Procedure” of November 2009. RX-9, see also Commissioner Cohen’s analysis supra. 

By consciously employing the word "barrier" instead of "barricade," Newmont appeared to both 

accept the letter of Secretary's interpretation of “barricade” yet still defy the spirit of §57.8528 by 

ignoring the Secretary’s instructions regarding unventilated headings. RX-9. Further, by 

describing headings that had not seen a working miner in two to four weeks as "active," 

Newmont tried to write into its “Updated Barricade Procedure” ambiguity to leave headings 

effectively unbarricaded and unsafe for up to weeks at a time. RX-9. To argue, as Respondent 

does, that the printing and promulgating of this “Updated Barricade Procedure” is indicative of 

good faith is gainsaid by this risible "barrier" and "barricade" distinction. 

This factor further weighs in favor of a finding of unwarrantable failure. 

6. The Operator’s Efforts in Abating the Violative Condition 

The Operator made no effort to abate the violative condition before Inspector Guardipee 

issued Order No. 6482838. “The focus on the operator’s abatement efforts is on those efforts 

made prior to the citation or order.” IO Coal, 31 FMSHRC at 1356. Given the October 2009 

inspection should have made clear that Newmont’s previous barricading practices were 

unacceptable, it is problematic why the operator did not do more to abate the violation condition. 

 In not erecting a snow fence, the Respondent did not contend that it has no snow fence. 

Indeed the record reveals there was snow fence on site. Tr. 271-2. The Respondent does not 

contend that it would be onerous to erect these barricades; the time to construct one is less than 

half an hour. Tr. 251. Removing a snow fence barricade takes only a few minutes. Id. The risk 

contemplated of a miner entering an unventilated heading without proper equipment plainly 

outweighs the burdens on the Respondent in guarding against this risk. As I noted in my initial 

decision in this matter, “a time intrusion of less than forty minutes does not seem like such a 

substantial burden as to outweigh the life or safety of a miner.” Newmont USA, Ltd., 34 

FMSHRC 146, at 163. 

The Respondent’s violative conduct and failure to abate such again appear to have been 

driven not so much by a good faith and reasonable interpretation of §57.8528’s requirements -- 

but rather a “contest of wills” between MSHA and the Respondent which itself appears to have 

been based upon the Respondent’s unwarranted concerns regarding the minimal delays in time 

and production entailed in following MSHA barricading directives. Such a failure to abate would 

constitute aggravated conduct supporting a finding of unwarrantable failure. 

7. Whether the Operator Had Been Placed on Notice That Greater Efforts Were 

Necessary for Compliance 

In analyzing this factor, I have already cited the numerous instances, as summarized by 

Commissioner Cohen, supra, where the Respondent had actual or constructive notice from 

MSHA that its barricading practices violated §57.8528. See supra. Even subtracting from 

38 FMSHRC Page 823
consideration the Elko, NV meeting with MSHA officials, Newmont had at least two more 

warnings regarding its inadequate barricading policy. There was the series of citations issued in 

October of 2009, most of which concerned inadequate barricading. Sx. W. As the Secretary notes 

in his brief, “[p]rior similar violations put an operator on notice that greater efforts are necessary 

for compliance with the standard.” Pet’r’s Opening Brief on Remand, at 11, citing Manalapan 

Mining Co., 35 FMSHRC 289, 295-6 (2013). 

Further, there was the October 20, 2009 confrontation with Mr. Stull, during which Mr. 

McFarland expressed unequivocally his desire to disregard or circumvent MSHA barricading 

instructions. Tr. 145-6. At that meeting, Stull explicitly warned Mr. McFarland that MSHA 

would continue to issue citations so long as Newmont refused to comply with MSHA 

instructions. Tr. 146. 

This Court must find that a warning from an MSHA inspector that failure to follow that 

inspector’s instructions will lead to further citations is evidence that Newmont was placed on 

notice that greater efforts were necessary for compliance. 

Finally, Jim Fitch, Mr. Stull’s supervisor, made the trip to the Midas Mine the day after 

Stull and McFarland’s contentious tête-à-tête, on October 21, 2009, and explained to McFarland 

and others in a meeting lasting an hour what MSHA would accept as proper barricading under 

§57.8528. Tr. 155-7. Certainly this meeting itself constituted notice, if the October 20, 2009

confrontation somehow did not.

Conclusion 

Considering the above Manalapan factors, both individually and in toto, in the context of 

the particular facts of the case sub judice and further considering that Respondent could not have 

held an objectively reasonable belief that its actions were in compliance with §57.8528, this 

Court finds that the Respondent’s conduct clearly constituted unwarrantable failure. 

IV. Penalty

Section 110(i) of the Mine Act establishes the six criteria to be considered in determining

the appropriateness of a civil penalty. 

Further, the Commission has outlined its authority for assessing civil penalties in 

Douglas R. Rushford Trucking, stating that “the principles governing the Commission’s authority 

to assess civil penalties de novo for violations of the Mine Act are well established.” 22 

FMSHRC 598, 600 (May 2000). While the Secretary’s system for points in Part 100 of 30 C.F.R. 

provides a recommended penalty, the ultimate assessment of the penalty is solely within the 

purview of the Commission. Id. Thus, a Commission judge is not bound by the penalty 

recommended by the Secretary. Spartan Mining Co., 30 FMSHRC 699, 723 (Aug. 2008). The de 

38 FMSHRC Page 824
novo assessment of civil penalties does not require each of the penalty assessment criteria to be 

given equal weight. Thunder Basin Coal Co., 19 FMSHRC 1495, 1503 (Sept. 1997).8

In this case, the special assessment for Order No. 6482848 was $35,500. I have 

considered each of the special penalty factors below: 

1. The operator’s history of previous violations. In the 130 inspection days prior to

the issuance of Order No. 6482848, the Respondent was issued 118 citations. Six

citations or orders in a previous inspection were violations of 30 C.F.R. §57.8528.

Pet'r’s Opening Brief on Remand, 20.

2. The size of the operator’s business. The Respondent operates a medium mine,

“Midas.” Newmont employs roughly 160 employees. Pet'r’s Opening Brief on

Remand, 20.

3. Whether the operator was negligent. In its previous decision, the Court did not

make a finding as to the level of negligence. As this decision finds the operator’s

conduct one of unwarrantable failure, the operator was plainly negligent.

4. The effect on the operator’s ability to continue in business. The Petitioner and

Respondent both acknowledge that Newmont’s ability to continue in business will not

be imperiled by the payment of the penalties in this case. JS-8. As such, I presume

there would be no such effect. Sellersburg Stone Co. v. FMSHRC, 735 F.2d 1147,

1153 n. 14 (7th Cir. 1984).

5. The gravity of the violation. The gravity of the potential harm in this order having

been found less than likely by the Commission in its remand order, the Secretary

nevertheless argues that the gravity of a violation and its S&S nature are not the same.

Pet’r’s Opening Brief on Remand, 20. This may be true, but a finding of S&S is

surely indicative of a grave violation, whereas a finding that a violation was not S&S,

then, suggests less seriousness in terms of gravity. Despite the fact that the

Respondent’s conduct constituted unwarrantable failure, the mixed record concerning

the Midas Mine’s non-gassiness, as well as the Commission’s finding that the

violation was not S&S and unlikely to cause harm to a miner, leads me to conclude

the gravity of this violation is not an aggravating factor.

6. The demonstrated good faith of the Respondent in abating the violation. The

Respondent’s good faith is not disputed by the Secretary. JS-7.

In recognition of both Newmont’s unwarrantable failure to maintain adequate barricades 

in unventilated headings, as well as the Commission’s findings on remand, I conclude that a 

penalty of $20,000.00 is appropriate. The lack of an appreciable injury, as well as the 

8

 As Judge Moran observed in Oak Grove Resources, LLC, “S&S is not among the 

identified statutory penalty criteria.” Oak Grove Resources, LLC, SE 2009-261-R, at 16, see also

30 U.S.C. §820(i). This Court analyzes the penalty criteria absent consideration of the nowdeleted S&S finding, but aware that the operator’s conduct constitutes an unwarrantable failure. 

38 FMSHRC Page 825
Commission’s finding that the violation was not likely to cause harm, suggest a penalty 

reduction is warranted from the Secretary’s proposed amount of $35,500.00 to $20,000.00. 

Sellersburg Stone Co., 5 FMSHRC 287, 293 (Mar. 1983), aff’d, 736 F.2d 1147 (7th Cir. 1984). 

ORDER 

It is hereby ORDERED that Respondent PAY the Secretary of Labor the sum of 

$20,000.00 within 30 days of this Decision.9 Upon receipt of payment, this case is hereby 

DISMISSED. 

/s/ John Kent Lewis 

John Kent Lewis 

Administrative Law Judge 

Distribution: 

Laura C. Bremer, Esq., U.S. Department of Labor, Office of the Solicitor, 90 7th Street, Suite 3-

700, San Francisco, CA 94103 

Laura E. Beverage, Esq., Jackson Kelly, PLLC, 1099 18th Street, Suite 2150, Denver, CO 80202 

Hiliary N. Wilson, Esq., Newmont Mining Corporation, 1655 Mountain City Highway, Elko, 

NV 89801 

9

 Payment should be sent to: MINE SAFETY AND HEALTH ADMINISTRATION, 

U.S. DEPARTMENT OF LABOR, PAYMENT OFFICE, P.O. BOX 790390, ST. LOUIS, MO 

63179-0390. 

38 FMSHRC Page 826
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9953 / FAX: 202-434-9949 

April 29, 2016 

DECISION 

Appearances: Timothy Turner, Esq., U.S. Department of Labor, Office of the Solicitor, 

Denver, Colorado for Petitioner 

Michael T. Cimino, Esq.; Adam Schwendeman, Esq., Jackson Kelly, 

PLLC, Charleston, West Virginia for Respondent 

Before: Judge David Barbour 

In this civil penalty case arising under sections 105 and 110 of the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. §§ 815, 820, (the “Mine Act”), the Secretary of Labor 

(“Secretary”) on behalf of his Mine Safety and Health Administration (“MSHA”) petitions for 

the assessment of civil penalties of $1,838 for alleged violations of 30 C.F.R. § 56.18002(a) and 

30 C.F.R. § 56.14100(c).1 The purported violations were cited at the Knoxville Cement Plant 

(the “Knoxville plant”), a facility owned and operated by Cemex Construction Materials 

Atlantic, LLC. (“Cemex”).2 The citations were issued by MSHA Inspector David Smith on 

March 10, 2014. Inspector Smith found that Cemex did not designate a competent person to

1

 Sections 56.18002(a) and 56.14100(c) are mandatory safety standards applicable to the 

nation’s surface metal/non-metal mines. Section 56.18002(a) states that, “A competent person 

designated by the operator shall examine each working place at least once each shift for 

conditions which may adversely affect safety or health” and that the operator “shall promptly 

initiate appropriate action to correct [any] such conditions.” Section 56.14100(c) requires that 

when defects on self-propelled mobile equipment “make continued operation [of the equipment] 

hazardous to persons, the defective items . . . shall be taken out of service . . . or a tag or other 

effective method of marking the defective items shall be used to prohibit further use until the 

defects are corrected.” 

2

 In addition to the Knoxville plant the company owns several other facilities where 

cement is produced. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner, 

 v. 

CEMEX CONSTRUCTION MATERIALS, 

ATLANTIC, LLC, 

 Respondent. 

CIVIL PENALTY PROCEEDING: 

Docket No. SE 2014-328-M 

A.C. No. 40-00840-350438

Mine: Knoxville Cement Plant Cemex Inc. 

38 FMSHRC Page 827
examine the plant’s elevators during each shift and therefore that the company violated section 

56.18002(a). He believed the alleged violation was reasonably likely to result in a fatality and 

that the condition was a significant and substantial contribution to a mine safety hazard (an 

“S&S” violation). He also found the alleged violation was caused by the company’s moderate 

negligence. In addition, while he was inspecting one of the elevators, Smith found the “in-use” 

lights on two call site stations did not activate when the elevator was moving. Further, the 

telephone in the elevator’s car was missing. Despite these defects, the company kept the elevator 

in service and thereby, in the inspector’s opinion, violated section 56.14100(c). Smith found that 

the defective lights and missing telephone were not likely to cause injuries, but nonetheless were 

due to the company’s high negligence. 

 After the citations were issued, the alleged violations were assessed by the Secretary. 

When the company contested the proposed assessments, the Secretary filed a petition with the 

Commission seeking an order requiring the company to pay. The company answered the petition 

challenging the validity of the violations and arguing alternatively that even if it violated one or 

both of the standards, the assessments proposed by the Secretary were excessive. Upon receiving 

the answer, the Commission’s Chief Judge assigned the case to the court, which ordered the 

parties to confer to determine if they could resolve their differences. When counsels advised the 

court they could not agree on a settlement, the court heard the case in Knoxville, Tennessee. At 

the hearing, counsels presented documentary evidence and the testimony of several witnesses. 

They subsequently filed helpful briefs. 

 THE ISSUES 

 The case presents several issues. One that is central to the alleged violation of section 

56.18002(a) is whether the elevators at the Knoxville plant are “working places” and hence come 

within the standard. Section 56.18002(a) requires the examination of each “working place” and 

30 C.F.R. § 56.2 defines “working place” as “any place in or about a mine where work is being 

performed.” The Secretary contends the elevators are working places “because of the simple fact 

that work takes place on them.” Tr. 16. Cemex finds the Secretary’s interpretation to be 

unreasonable and as applied to deprive the company of due process. Tr. 19. Cemex also argues 

that the Secretary’s finding of “high negligence” with regard to the alleged violation of section 

56.14100(c) is inappropriate. Resp. Br. 31-33. 

STIPULATIONS and AGREEMENTS 

 The parties stipulate as follows: 

1. The [Knoxville plant] is under the jurisdiction of the Federal Mine 

Safety and Health Review Commission. 

2. At the time the citations . . . were issued, products of the . . . mine 

entered commerce. The operations therefore affected commerce within 

the scope and meaning of Section 4 of the . . . Mine Act. Tr. 22. 

38 FMSHRC Page 828
In addition to the stipulations, the Secretary agrees that Cemex’s applicable history of 

previous violations is small. Tr. 24; see Exh. S-1. 

THE SECRETARY’S WITNESSES 

 and 

THE BACKGROUND OF THE MARCH 10, 2014, INSPECTION 

For three years before the hearing Inspector Smith worked at MSHA’s Knoxville, 

Tennessee office. Tr. 25. During that period he conducted 40 to 50 inspections per year at 20 to 

30 mines. Tr. 26. Prior to March 10, 2014, Smith inspected the Knoxville plant several times. Tr. 

27. At the plant limestone and clay are processed into cement. The cement is bagged and shipped

by rail and truck to Cemex’s customers. Tr. 27-28. Typically, MSHA personnel inspect the plant

twice a year. Tr. 27.

The March 10 inspection took place against the backdrop of the fatal accident that 

occurred at another Cemex facility. On February 21, 2014, a Cemex contract employee stepped 

into an open elevator shaft at a cement plant located near Louisville, Kentucky (the “Louisville 

plant”). The employee survived the fall but shortly thereafter succumbed to his injuries. MSHA 

investigated the accident and on February 28, 2014, the agency issued a “Fatalgram” to all mine 

operators.3 It states: 

On February 21, 2014, a 34 year old contract laborer 

with 6 months of experience was killed at a cement 

operation when attempting to access an elevator in the 

finish mill. When the victim opened the elevator door on 

the fourth floor landing, he stepped into the elevator shaft 

and fell approximately 51 feet to the top of the elevator 

car located on the ground floor. 

Exh. S-6 

The fatalgram lists six “best practices” miners are advised to take when working around 

elevators: 

• Immediately report any elevator problems to management.

• Ensure than any problems affecting the safety of an elevator

are reported promptly.

• Ensure the elevator door interlocks that prevent the door

from being opened unless the elevator car is present are

functional.

3

 A “fatalgram” is an official publication of the agency that describes a fatal accident and 

suggests “best practices” to avoid similar accidents. It is sent to mine operators, in this case the 

operators of all metal/non-metal mines. 

38 FMSHRC Page 829
• Ensure that the elevator doors will not open unless an

elevator car is at the floor landing.

• Install audible signals that sound when the elevator car is at

landing prior to the doors opening.

• Train all persons to be aware of their surroundings when

entering or exiting an elevator car.

Exh. S-6. 

THE INSPECTION AND SMITH’S FINDINGS 

Smith traveled to the plant on March 10 to conduct a “spot inspection,” one that focused 

on the plant’s elevators.4

 The purpose of the inspection, which was triggered by the February 21 

fatality, was to ensure that the elevators were in safe operating condition. Tr. 28. Smith was 

accompanied by Doniece Schlick, the Assistant District Manager of MSHA’s Southeast District, 

Metal/Non-Metal Division. Tr. 29, 124. At the plant Smith and Schlick were met by Alan 

Stephens, who at the time was the plant’s safety manager. In addition, from time to time 

throughout the inspection the party was joined by William McCalla, the pack house supervisor. 

Tr. 29-30. 

Smith stated that MSHA defines a “working place” as, “[Any] area where a miner would 

perform work.” Tr. 34. He further stated that at one point during the inspection, McCalla told 

him that the company did not designate a person to perform examinations of those areas where 

miners worked near or on elevators. Tr. 34-35. Smith also testified that a management official 

told him the plant’s elevators were used daily by miners, although Smith did not recall seeing 

any miners using the elevators on the day he conducted the inspection. Tr. 94-95. Smith cited the 

company for failing to have a designated competent person examine the elevators. Tr. 30; Exh. 

S-2. Smith believed that all of the elevators were “working places” because they were “used to

transport miners and materials from floor to floor on a daily basis.”5

 Tr. 35. In Smith’s view,

4

 There are five elevators in the cement plant. Tr. 35. Four were in service when Smith 

arrived at the plant. One, a freight elevator used to move finished product, had been taken out of 

service because of a problem with the way the elevator’s doors opened. Tr. 36. To correct the 

defect, Cemex ordered new parts through its elevator contractor, Otis Elevator Company 

(“Otis”). Id., Tr. 37. Smith stated that the company found the defects because it examined the 

elevator and its doors after it received the February 28 fatalgram with its listing of the “best 

practices” to prevent the recurrence of a Louisville plant-like accident. Exh. S-6; Tr. 36-37. 

5

 MSHA’s Program Policy Manual (the “PPM”) states as follows: 

The phrase “working place” is defined in . . . [section] 

56[.2] as ‘any place in or about a mine where work 

is being performed.’ As used in the standard, the 

phrase applies to those locations at a mine site where 

persons work during a shift in the mining or milling processes. 

(continued...) 

38 FMSHRC Page 830
failing to designate a competent person and failing to examine the elevators violated section 

56.18002(a).6

 Tr. 34-35. 

Smith also testified that one of the elevators, the elevator at the preheater tower, moves 

up and down the tower’s nine floors. Workers use the elevator to observe the flow of material 

being processed (“to make sure the material [is] moving through the process . . . fluidly” (Tr. 

38)) and to correct the flow of the material if necessary. Id. To do this task workers need access 

to all nine floors of the tower. Id. Although access can be by stairway as well as by the elevator, 

Smith believed that some materials and tools workers require for the job are too heavy to carry 

up (and down) the stairs. Tr. 39. 

Another of the plant’s elevators is located in the area of the kiln. Smith testified that 

during the kiln’s periodic shut down, workers use the elevator to transport insulating bricks from 

one floor to another. The bricks are loaded on and off the elevator. Tr. 40. According to Smith, 

there is “someone on each floor to move material in and move material out, [and to] ride the 

elevator with . . . [the material] if need be.” Id. In Smith’s opinion, moving material in and out of 

the elevator is “work.” Id. Further, Smith stated that workers are at times required to repair or 

correct defects in the operation of some equipment on the upper floor of the kiln (the “burn 

floor”). Tr. 40-41. 

According to Smith, only those parts of elevators to which miners have access must be 

examined. Tr. 76. Thus, the shafts of the elevators are exempt, but the interlocks (the safety 

latches) of elevator doors are subject to examination in order to make sure the elevator doors 

open as they should. Tr. 42, 76. The goal is to prevent the doors from opening “when the car is 

not in place” and thus to preclude a fall accident. Id; Tr. 91-92. Smith agreed, however, that 

before March 10, 2014, he never cited an operator for failing to examine safety latches on an 

elevator door. Tr. 76. He also agreed that when he checked the interlocks on March 10, they 

functioned properly. Tr. 93-94. 

5

 (...continued) 

Resp. Exh. 17 at 1; Tr. 64. 

Smith agreed that there is no mention in the PPM that qualifying as a “working place” is related 

to the frequency with which a miner visits an area or that a “working place” is a location where a miner 

is exposed to a hazard. Tr. 64-65. 

6

 Smith stated that as he understands the standard, an elevator has to be examined if it 

will be used on a shift. Tr. 86.-87. According to Smith, 

once the miner places himself or herself onto the elevator 

car to perform their duties, whether to transport from one floor 

to the other floor or that they’re bringing tools or their expertise 

as a person to a different level to perform their duties, they are 

working [and the elevator has to be examined]. 

Tr. 88. 

38 FMSHRC Page 831
Smith found that Cemex’s failure to designate a competent person to examine the plant’s 

elevators was reasonably likely to result in a serious injury. Tr. 43; Exh. S-2. He knew about the 

Louisville accident, but he was not familiar with the circumstances that led to the accident, nor 

did he know of any other occasion where a violation of section 56.18002(a) caused such an 

accident. Tr. 92-93. Nonetheless, he emphasized that he was told by employees at the Knoxville 

Plant that they used the elevators daily and on all three shifts. Tr. 43-44. Frequent use increased 

the likelihood of an accident. Further, the likely result of an accident was a fatality. (“[I]ndustry 

history . . . indicate[s] that [the] condition [if] left unabated would cause a fatal accident or 

injury.” Tr. 43.) Smith feared that due to a malfunction of an interlock an elevator’s door would 

open even though the car was not at the landing and an employee would fall down the shaft.7 Tr. 

91-93. The hazard existed despite the fact that when he checked the interlocks on the working

elevators, all of the interlocks functioned properly. Tr. 94.

Smith further found that the company was moderately negligent in allowing the violation. 

Exh. S-2. He recognized that the company and/or its contractor, Otis Elevator Co.(“Otis”), 

examined the elevators on occasion and tagged them out if they felt such action was needed. The 

company’s intermittent attention to the elevators somewhat mitigated its negligence, but did not 

overcome the fact that there was no competent person designated by Cemex to perform the 

required examinations and no policy to ensure the examinations were performed. Tr. 46. Smith 

was asked if he was familiar with an MSHA document titled, “Metal and Non-metal General 

Inspection Procedures Handbook.” Exh. R 22. Smith stated he was and explained the handbook 

governs the procedures under which he and other inspectors conduct inspections. Tr. 71. The 

handbook instructs inspectors in part that, “Documentation such as records of workplace 

examinations . . . shall be reviewed during the course of the inspection so any questions 

concerning those records can be resolved at that time.” Exh. R-22 at 46. Smith testified that he 

routinely reviews such records. Tr. 73. Although he reviewed the records at the plant when he 

conducted inspections in December 2013 and in January 2014, neither time did he ask to see 

workplace examination records for the elevators. Tr. 74-75. Prior to March 10 he never asked 

anyone at Cemex about the company’s elevator inspection records. Tr. 75. His citation was a first 

for the company. Id. 

The citation was terminated when Cemex trained and then designated competent persons 

to perform the examinations. Tr. 46-47. As part of the training Cemex created an eight point list 

of things to check inside and outside all elevator cars and specified “serious issues” that would 

require the shift supervisor to discontinue use of an elevator and block access to it. Tr. 47; Exh. 

S-10. The list helped assure MSHA that that the company was checking for hazards as required.

Tr. 47. The company also provided MSHA with copies of its training records for each shift. The

records listed the persons on the shift who were trained to conduct the elevator work area

examinations. Tr. 48; Exh. S-10 at 2-4.

Smith also cited the company for a violation of section 56.14100(c) for failing to correct 

two hazards relating to the burn floor elevator. Smith found that the “in-use” lights for the 

elevator (one at the first floor call station and one at the second floor call station) did not activate 

7

 However, Smith also agreed that all of the elevators’ landing doors have windows, and 

if a person is going to use the elevator and wants to see if the car is at the landing, he or she can 

simply look through the window. Tr. 107. 

38 FMSHRC Page 832
when the elevator was in motion. Tr. 55, Exh. S-3. He also found that the telephone inside the 

elevator car was missing.8 Id. Smith explained that an “in-use” light lets a worker know when an 

elevator car is in motion and when the car stops. Id. Smith speculated that if the light is not 

working, a worker may think the car is at his or her floor ready for use when in fact it is 

elsewhere. When the worker tries to open the elevator door to access the car, the interlock safety 

system, if it is working properly, will prevent the door from opening, and tugging on the door 

can cause the worker to sprain or strain his or her back resulting in lost workdays or restricted 

duties. Tr. 55, 56, 58. However, the elevator door has a window, and Smith agreed a worker can 

look through the window to determine if the car is at the landing before he or she attempts to 

open the door. Tr. 58. 

Removing the telephone from the car created the danger that a worker or workers trapped 

in the car are unable to call for help. Tr. 43, see also Tr. 44. Smith noted, however, that he saw 

management employees and “a few miners” who carried radios underground and many miners 

who carried cellular telephones. Both types of devices can be used to communicate with those 

outside the car. Tr. 45-46, see also Tr. 57. 

Smith considered the alleged violation of section 56.18002(a) to be directly connected to 

the alleged violation of section 56.14100(c). Smith stated, “Management did not have an 

examination program in place concerning elevator defects.” Tr. 55-56. Smith implied that had 

the company complied with section 56.18002(a) it would have observed and corrected the burn 

floor elevator’s defects or would have taken the elevator out of service. Tr. 56. 

Smith found that the alleged violation was caused by the company’s high negligence. Tr. 

58-59; Exh. S-3. Cemex did not require a workplace examination of the burn floor elevator, an 

examination that most likely would have resulted in the defects being reported and corrected or 

in the elevator being tagged out of service. Tr. 58-59. However, he agreed that if the “in use” 

lights had been defective and the telephone had been missing on February 26, the conditions 

would most likely have been fixed by the Otis employee who examined the plant’s elevators on 

that date. Tr. 104. Moreover, he acknowledged that on March 4 Leroy Lockett, an MSHA 

supervisor, inspected the plant and that Lockett issued no citations concerning the elevators. Tr. 

98-99. If the defects existed on March 4 Lockett most likely would have found them and had 

them corrected. Tr. 104-105. Therefore, Smith thought that the defects probably came into being 

between March 4 and March 10. Tr. 105. Nonetheless, Smith stated he and other MSHA 

personnel were told by both supervisors and rank and file miners that the elevators were “used 

daily per shift” and thus that management officials should have been aware of the defects. Tr. 

113; see also Tr. 102, 105. To correct the alleged conditions, Cemex called Otis who sent 

employees to the plant to fix the defective lights and to reinstall the telephone. Tr. 59. 

 DONIECE SCHLICK’S OBSERVATIONS 

Doniece Schlick has been employed by MSHA for 24 years, and she has served as an 

MSHA assistant district manager for four years. As an assistant district manager she has been 

involved in enforcement of the Act and metal non-metal safety regulations promulgated pursuant 

to the Act. Tr. 124. Prior to becoming an assistant district manager she worked as an inspector at 

 8

 The telephone is similar to a home wall telephone. Tr. 101 

38 FMSHRC Page 833
the agency’s Macon, Georgia office where she had experience inspecting cement plants. Tr. 125. 

Ms. Schlick holds a B.S. degree in mining engineering from the University of Alabama. Tr. 126. 

As an assistant district manager one of her duties is to observe how MSHA’s inspectors conduct 

inspections and how operators relate to inspectors. Pursuant to this duty she accompanied Smith 

to the Knoxville plant on March 10. Tr. 126-27. 

Schlick was clear that the Louisville accident heightened MSHA’s emphasis on the need 

to inspect elevators. She was asked by her counsel why MSHA “was . . . so intent on inspecting 

[the plant’s] elevators?” Tr. 127. She responded: “After a fatality, it is our duty to make sure that 

not just at Cemex, but [that] all cement plants in the southeast are following the best practices 

to . . . keep another accident from happening like that in the industry.” Id. Her counsel then 

asked, “So a fatality can change the way that MSHA does its job?,” and she responded, “Well, I 

would expect that a fatality . . . or . . . serious accident would be a wake-up call for us to look at 

things differently.” Tr. 128. 

Schlick testified regarding her understanding of the accident at the Louisville plant: 

A . . . worker was looking for a bucket . . . and someone 

told him they were on the fourth floor. He rode the 

elevator up to the fourth floor. He got the bucket. He 

[tried to go] back on the elevator. When he opened . . . 

the doors to the elevator and stepped on the elevator, 

the vehicle was not at that floor. It was [at] a lower floor.

Tr. 129; see also Tr. 130. 

Schlick understood that prior to the accident the victim was “manually moving” rocks. 

Tr. 130. In her opinion when he stopped and started looking for a bucket, he was still “in the 

process of doing his work and trying to perform it better.” Id. He was, she stated, “looking for 

additional tools to help to perform that task.” Id. She believed the victim was working because 

“[h]e was going from one floor to another to obtain tools to perform the task that he was doing 

better, safer, more efficiently.” Tr. 131. She added the Louisville plant is similar to the Knoxville 

plant. Id. 

When asked what she regarded as an effective workplace examination of an elevator, 

Schlick stated that at “a minimum” the elevator’s safety features should be checked. Such 

features include the inside light, the inside communication system, and the “in-use” lights. Tr. 

132. In addition, the elevator’s doors should be checked.9

 Tr. 132-133. In Schlick’s opinion, a

workplace examination should follow the best practices concerning elevators, practices that are

set forth in the February 28, 2014, fatalgram. Tr. 134; Exh. S-6.

9

 According to Schlick, a majority of elevator doors are operated manually. Tr. 133.

Schlick testified that it is important during the examination to try to open the doors when the cars 

are not at the landings to make sure the doors’ interlocks work properly. Tr. 144-145. Schlick did 

not dispute that all of the landing doors at the plant have windows and that workers are supposed 

to look through the windows to determine if the car is present, but Schlick observed that the 

victim at the Louisville plant was not tall enough to see through the window. Tr. 142. 

38 FMSHRC Page 834
Although Schlick visited the Louisville plant several times during MSHA’s 19 day 

investigation of the accident, she did not lead the investigation team, and the investigation was 

ongoing when Smith and Schlick were at the Knoxville plant. Tr. 134-135. Schlick agreed that 

she and Smith were not the first MSHA personnel to inspect the Knoxville plant’s elevators 

following the accident. Lockett inspected the plant and the elevators on March 4, six days before 

she and Smith arrived. Tr. 138. 

Schlick stated that before the accident, “some inspectors were asking for workplace 

examination [records] of elevators ” (Tr. 139), but she confirmed that before March 10 Cemex 

never received a citation for failing to designate a competent person to examine the elevators at 

its Knoxville plant. Tr. 139, 140. Schlick also stated that she was aware that a few days after the 

accident, Cemex asked Otis to come to the Knoxville plant and check all of the doors on all of 

the elevators. Tr. 140-141. She stated that she and Smith looked at the Otis service records. She 

recalled Lockett telling her that he too looked at the Otis records and that he checked all of the 

elevators’ doors. Despite the fact that Otis’s personnel inspected the elevators on occasion, 

Schlick believed a daily shift inspection conducted by a person designated by the operator was 

important because, “[m]ining is a dynamic and rugged environment that requires more 

inspections of elevators” than those provided by a contractor like Otis.10 Tr. 143. 

THE COMPANY’S WITNESSES 

ALAN STEPHENS AND CEMEX’S PRACTICES REGARDING ELEVATORS 

Alan Stephens is the maintenance manager at the plant. Tr. 150. Prior to assuming the 

position of maintenance manager, he worked as the safety manager. Tr. 151. Stephens began his 

career with Cemex at the Louisville plant before transferring to the Knoxville plant. Id. At the 

time of the hearing, Stephens had worked in the cement industry for 34 years. Id. On March 10 

Stephens traveled with the inspection party. Tr. 152. 

Stephens explained the procedures Cemex has in place for detecting and correcting 

elevator defects. Stephens stated that pursuant to a contract with Otis, it is primarily Otis’s 

personnel who inspect and test the elevators and perform needed repairs and maintenance. Tr. 

155. Stephens stated that Otis’s employees come each month to inspect the plant’s elevators [11],

10 Schlick testified that there are competent people that make workplace examinations at 

the plant on every shift. “They do the stairs. They do the walkways. They do the tow boards. So 

we are only asking that they also look at the general safety features of an elevator.” Tr. 147. 

11 In practice, the purported monthly inspections of the elevators may not be as regular as 

Stephens implied. Stephens agreed the service report for the plant’s kiln elevator shows Otis 

examined the elevator in October 2013 but not in November or December 2013. Tr. 188; Exh. S4.

38 FMSHRC Page 835
and they come when Cemex requests they fix a particular problem.

12 Tr. 154-155, 190. Stephens 

maintained he has seen Otis’s personnel at the plant, “many times.” Tr. 158. Moreover, as the 

safety manager at the plant he reviews all copies of Otis’s maintenance records. Tr. 160. Prior to 

March 10 the last time Otis personnel were at the plant was February 26 when they inspected the 

plant’s elevators at Cemex’s request. Tr. 161-162. Stephens remembered that after the February 

21 accident the employees at the Knoxville plant were asked to check all of the doors on the 

elevators, which they did. Among other things they made sure that the doors remained closed 

when the cars were not at a landing. Tr. 163. 

Stephens testified that he traveled with Lockett on March 4 and that Lockett did not find 

anything wrong with the elevators. Further, Stephens recalled that Lockett reviewed Otis’s 

maintenance records and did not ask if Cemex designated a person to examine the elevators on 

each shift pursuant to section 56.18002(a). Tr. 164-165. Indeed, although he always traveled with 

MSHA’s inspectors, before March 10 Stephens never was asked about Cemex’s examinations of 

the plant’s elevators. Tr. 165–166. Further, before March 10 Stephens never saw MSHA’s 

inspectors check the elevators’ doors to see if they would open when the cars were not at the 

landings. Tr. 166. 

On March 10 Stephens did not see anyone working in the area of the kiln elevator. Tr. 

167- 168, Exh. R-13 at 1, 2. In fact, on March 10 no work of any kind was performed on or

around the kiln elevator. Tr. 174. The kiln elevator was used so infrequently Stephens did not

know when it was used last. Tr. 168. Stephens was surprised by the March 10 citation. He stated

he did not know MSHA would apply section 56.18002(a) to the plant’s elevators. Tr. 175.

Stephens identified a photograph of the landing door of the mill room elevator. Resp. Exh. 13 at

3-5; Tr. 168-169. The door has a small window, as do all of the landing doors. Tr. 169. The

company has never been cited because a window is too high and prevents a short person from

looking to see if the car is at the landing. Id.

Stephens could not recall if Lockett checked the burn floor elevator on March 4. Tr. 176. 

In any event, Stephens stated that six days later, on March 10, he was unaware the ”in-use” lights 

for the burn floor elevator were not working and that the telephone in the car was missing. Tr. 

173. 

Stephens was adamant that he did not consider an elevator is not a “working place.” He 

testified, “We do not perform work in elevators[,]” (Tr. 177), and he was certain that no work 

was done on any of the elevators on March 10. Tr. 193. 

12 According to Stephens, employees who travel in the elevators report any defect to 

“someone in supervision. And then we call Otis, and they come and repair it.” Tr. 153. He was 

asked if employees “observe the areas [of the elevators] for hazards” when they use the 

elevators, and Stephens replied, “If we were to get on an elevator and there was something 

wrong just as you got on, yes. I mean . . . we would check and make sure the elevator was safe to 

ride.” Id. However, he agreed that no one from Cemex is performing workplace examinations 

and having the results of the examinations recorded. Id. Asked why, he stated that it “was not 

anything we’d ever been asked to do. We didn’t consider [an elevator to be] a workplace.” Id. 

38 FMSHRC Page 836
WESLEY WADDINGTON AND OTIS’S PRESENCE AT THE PLANT 

Wesley (“Wes”) Waddington is an elevator mechanic who is employed by Otis. He has 

installed and repaired elevators for 27 years. Prior to working for Otis, he worked for 

Westinghouse for three years. He has 30 years of experience in the elevator business. Tr. 199-

200. Waddington testified that in February and early March 2014 he made inspection and

maintenance visits to the Knoxville plant. Tr. 200-201. He visited the plant in February and

March at Cemex’s request because, “[T]here was some concern . . . [because Cemex] had . . . a

fatality at another plant and [Cemex] wanted us to come to make sure everything was up to par

with their elevators.” Tr. 203. He added, “And we did perform maintenance as well as other tasks

that were due at the time on those elevators.” Id. His duties at the plant included inspecting the

elevators and providing maintenance services. He testified that during his visits to the plant he

examined all of the components of the elevators’ doors. One aspect of his work is to make

certain the doors do not open when an elevator’s car is not at a landing. Id. For a door to open

under such circumstances the door’s interlock mechanism has to malfunction. Tr. 205. To check

the mechanism Otis personnel must climb on top of the elevators’ car. In Waddington’s opinion,

tugging on a door from the landing, a safety check advocated by MSHA, is unsafe, because if the

door opens and the car is not at the landing, the person tugging on the door can fall down the

shaft. Tr. 206; see also Tr. 216. In addition, too much tugging can bend and break the interlock

mechanism. Tr. 206-207, 218. In general, Waddington believed workers should not pull on an

elevator’s doors unless “they see the elevator through the door’s window.” Tr. 207.

Waddington added that if he saw a burned out light or a similar problem on any of the 

elevators he would fix what was wrong or he would advise Cemex that the problem needed to be 

fixed. Tr. 209. If he found that a telephone inside a car was missing, he “would . . . tag . . . out 

[the elevator] and notify [Cemex] not to use . . . [the elevator] until it had two way 

communication.” Tr. 210. During his February and March visits to the plant he did not see a 

missing telephone, and although there were burned out “in-use” lights, he fixed them. Tr. 210-

211. In Waddington’s opinion, burned out “in-use” lights should not be replaced by the

company; rather, they should be replaced by Otis’s technicians because they pose a hazard of

electrocution to those who are unfamiliar with the electrical system of an elevator. Id.

THE CITATIONS 

Citation No. 8733024, states: 

The mine operator failed to designate a competent person to 

examine the elevators for hazards each shift at this operation. 

Defects affecting the safe operation of the elevator car and 

hoistway doors, at each floor, exposed miners to fatal injury when 

using the elevator and/or working near the hoistway 

doors on a daily basis. 

Exh. S-2. 

38 FMSHRC Page 837
Citation No. 8733025 states: 

The IN USE light[s] provided for the [b]urn [f]loor [e]levator were 

not burning when the elevator was in motion. The defective 

lights were located on the 1st and 2nd floor call stations. 

‘The lights, when working, let the miner know when the 

car is in motion and [the lights] go out when the car stops. 

Should a miner attempt to open the door when the car 

is not at their floor, provided the hoistway door safety 

interlock is working properly, the door would not open 

and strain and sprain type injuries would occur. Also[,] 

the supplied communication phone had been removed and not 

replaced inside the car. The phone is to be maintained to allow

miners to make contact with the operator in the event the car 

becomes inoperable entrapping the miner[s] inside. Management 

did not have an examination program in place concerning elevator 

defects. 

Exh. S-3. 

CITATION NO. DATE 30 C.F.R. § 

8733024 3/10/14 56.18002(a) 

THE VIOLATION 

There are five elevators at the plant, the pack house elevator, the mill room elevator, the 

preheater tower elevator, the burn-room/kiln elevator, and the TBA-tower elevator. The 

testimony reveals that Cemex did indeed “[fail] to designate a competent person to examine the 

elevators [at its plant] for hazards each shift.” Exh. S-2. Smith credibly testified that he was told 

as much by a Cemex supervisor, and Smith’s testimony was not rebutted.13 Tr. 34. Cemex goes 

to some length to argue that “although the miners at the Knoxville . . . [p]lant did not intend to 

complete an official working place examination of the elevators . . . their actions nevertheless 

met the requirements of the standard. The miners . . . were deemed competent and trained by the 

operator to observe the elevator car for defects or issues involving lights, communication 

systems, and the general condition of the elevator prior to and during use in order to make sure it 

was safe to ride.” Resp. Br. 27. The company’s argument fails to address one of the central 

contentions of the Secretary, that the company failed to designate a competent person to conduct 

13 See also the following exchange between counsel for the Secretary and the inspector: 

Q. So how did you discover that the operator was not

conducting workplace exams on the elevator?

A. With discussion of the management stating that they did not.

Tr. 41. (Although counsel used the singular, “elevator,” it is clear in the context of the 

questioning that he meant to use the plural (“elevators”). 

38 FMSHRC Page 838
the working place examinations. The standard contemplates the operator’s designation of a 

specific person and the designated person’s accountability for the required examination. As 

Smith was told, Cemex did not designate a person to examine its elevators and whatever its 

employees did with regard to the elevators did not overcome Cemex’s failure to meet the 

“designation” requirement of section 56.18002. However, this only establishes a violation if at 

least one of the elevators at the plant comes within the standard. 

Section 56.18002(a) applies if an area is a “working place.” As noted previously, when 

used in Part 56, a “working place” is defined as “any place in or about a mine where work is 

being performed.” The definition is expansive (“any place in or about a mine”). It also is written 

using the present progressive tense, which means that work has started but has not yet finished. If 

read strictly, the definition means that a “working place” does not come into existence until work 

is actually performed at the cited place. Cemex points out that where a regulation is clear and 

unambiguous, effect must be given to its plain language. Resp. Br. 6 (citing Chevron U.S.A., Inc. 

v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984; United States Lines, 

Inc. v. Baldridge, 667 F.2d 42, 45 (D.C. Cir. 1982); Cyprus Emerald Resources Corp. v. 

FMSHRC,195 F.3d 42, 45 (D.C. Cir. 1982)). Thus, in the company’s view “a ‘working’ place 

encompasses only those distinct areas of a mine where miners are engaged in actual work.” 

Resp. Br. 7. Within the context of section 56.18002(a) giving effect to the “plain meaning” of the 

regulation means that a competent person is required to examine an area once work is underway. 

This is a permissible reading of the standard and an examination conducted while miners are 

working undoubtedly complies with section 56.18002(a). However, it is not the only permissible 

reading of the standard. If it were, it would leave an unacceptable “safety gap” in that workers 

could be exposed to potential hazards because although they were assigned to work in an area, 

the work had not yet started and the examination had not yet been conducted thus exposing the 

workers to potential hazards before the examination was conducted. 

The Secretary also recognizes this “safety gap.” In what is essentially an appeal for 

second step Chevron deference, the Secretary asks the court to find the standard applicable “if 

there is a reasonable expectation of work taking place” or, “if there is a reasonable expectation of 

a miner engaging in an activity where he exerts himself to perform some task, duty, function, or 

assignment as part of a greater phase or larger task.” Sec. Br. 16-17. The court agrees with the 

Secretary to this extent because the court finds extension of the standard to areas where there is 

“a reasonable expectation of work” (Sec. Br. 16) to further the purpose of the standard whose 

goal is not only to protect those who are engaged in present work, but also to offer protection to 

those who soon will be engaged in work in order to prevent them from encountering working 

place hazards in the first place. Therefore, as the court understands the standard, it applies to 

places where work is being performed during a shift, where work is assigned to be performed 

during a shift, or where work can reasonably be expected to be performed during a shift. Under 

this reading of the standard an operator may time its examination of a working place in one of 

three ways. It may have a designated competent person examine an area where work is being 

performed during a shift while the work is being performed; or, it may have a designated 

competent person examine an area where work is assigned to be performed during a shift but 

where the work has not yet started; or, it may have a designated competent person examine an 

area where it is reasonable to expect work will be performed during the shift. To prove a 

violation the Secretary must show that a designated competent person did not conduct any such 

38 FMSHRC Page 839
examinations either on the shift during which the inspection was conducted or did not perform 

any such examinations during a specifically identified prior shift. 

Turning to the wording of the citation, the court notes it charges Cemex with failing to 

examine “the elevators.” Exh. S-2. This broad brush wording implies a duty on Cemex’s part to 

examine all of its elevators simply because they are elevators. However, the standard must be 

applied individually, not to the elevators as a unit. Section 56.18002(a) is directed at the 

examination of “each working place” not at a generic type of working place, i.e., “the elevators.” 

Further, an elevator is composed of many parts. According to the Secretary some of the 

parts, i.e., the elevator’s “internal workings,” -- are not subject to examination by Cemex. See

Sec. Br. 14 n.5. Under the Secretary’s interpretation of the standard, “MSHA expects the 

contractor servicing the elevator to conduct necessary workplace exams of the . . . internal 

mechanics of the elevator . . . [and] the operator to conduct workplace exams on only those areas 

accessible by miners – the elevator car and the elevator landing.” Id. Indeed, while the citation 

seems to limit the charge of a violation to Cemex’s failure to have a competent person examine 

its “elevator car and the hoistway doors, at each floor” for “defects affecting the safe operation” 

of the elevators (Exh. S-2), the Secretary makes clear on brief that the alleged violation also 

includes the failure of a designated competent person to examine areas of the landings adjacent 

to the doors, presumably because work projects requiring the opening and the shutting of the 

doors and passage into and out of the cars must necessarily also involve the landings providing 

access to and egress from the cars. Id. 

To sum up its interpretation of the standard, it is the court’s opinion that to establish a 

violation of section 56.18002(a) in this particular case, the Secretary must show that on the shift 

when the inspection took place or on a specifically identified prior shift, a designated competent 

person did not conduct an examination of areas of a specific elevator where a work-related task 

involving the elevator’s car or landing doors was being performed, was assigned to be performed 

but not yet started, or where such a task reasonably could be expected to be performed.14 

THE INDIVIDUAL ELEVATORS 

With regard to the pack house elevator, the testimony reveals that at the time of Smith’s 

inspection, the elevator was shut down, locked and tagged out. Tr. 36, 46. No evidence was 

presented as to how long the elevator was out of service and when it would be returned to 

14 While the court believes this is a permissible reading of the standard, it is a circuitous 

way to reach the undoubtedly salutary goal of requiring the examination of elevators. Rather than 

“squeeze” the requirement for elevator examination out of section 56.18002(a), the court 

believes the Secretary is well advised to promulgate a standard specifically directed at the 

mandatory examination of all elevators, much as he has done with regard to surface coal mines 

and surface areas of underground coal mines. See 30 C.F.R. §77.1430. Cemex argues at some 

length that notice and comment rulemaking is in fact required (Resp. Br. 22-26), but the court 

disagrees. While rulemaking may well be preferable, the fact is that section 56.18002(a) as 

presently written may be read to apply to the plant’s individual elevators in certain 

circumstances. 

38 FMSHRC Page 840
service. Cemex cannot have violated the regulation by failing to have a competent person 

examine the car, doors and landings of an elevator Cemex already had taken out of service. This 

leaves the question of whether the Secretary proved that on a prior shift the car, doors and 

landings of the pack house elevator had been used as a working place and Cemex failed to 

designate a competent person to examine those parts of the elevator during the shift when it was 

so used. The Secretary did not establish what type of work was done in connection with the pack 

house elevator and did not point to a shift in the past when the company used the pack house 

elevator as a workplace but failed to examine its parts as required. In fact, the Secretary’s 

allegations regarding the pack house elevator are vague to a fault. They seem to consist of the 

assertion that “at some time or another” in the past a violation must have taken place. See e.g., 

Tr. 46. This is too slender a reed to support a violation, and the court concludes that as far as the 

pack house elevator is concerned, the Secretary did not prove the company violated section 

56.18002(a). 

With regard to the mill room elevator, Smith testified that it is a “personnel elevator 

which transports . . . miners from floor to floor.” Tr. 37. Smith stated that he found no 

deficiencies when he inspected the mill room elevator. Tr. 93-94. Smith estimated that in general 

five or six miners work in the mill on any given shift. Tr. 112. Stephens testified that some 

elevators are used daily at the plant (Tr. 176), but that on March 10 he saw no one working near 

the mill room elevator. Tr. 169. Stephens disagreed with Smith’s testimony that the mill elevator 

is used only to transport personnel. He stated that it is also used to convey materials and 

equipment (Tr. 183) (“[h]ot hand tools . . . tool bucket, stuff like that” Id.). The court accepts 

Stephen’s testimony. Tr. 182-183. Stephens was more familiar than Smith with operations at the 

plant and he was a credible witness. Use of the elevator to convey materials and equipment 

means that when it was so used the items had to be gathered on the landing, the doors had to be 

opened and the various items had to be loaded into the car and then unloaded. Loading and 

unloading the materials and equipment made the car, doors and landings for the mill room 

elevator a working place (i.e., “a place . . . where work is being performed.” 30 C.F.R. § 56.2). 

Therefore, the car, doors and landings were subject to examination by a competent person 

designated by Cemex on the shift when the inspection took place if work involving the car, doors 

and landings was being performed, was assigned to be performed or reasonably could have been 

expected to be performed or if such work took place during a prior identifiable shift. 

As the court noted, there is no evidence any of the five elevators were in use during the 

shift when Smith and Schlick were at the mine on March 10.15 Nor is there sufficient evidence 

for the court to conclude it was reasonable for Cemex to expect the mill room elevator would be 

15 The court recognizes Smith credibly testified he was told there were elevators at the 

plant that were used daily and that Stephens’ testimony corroborated that of Smith. Tr. 41, 95. 

But even if the Secretary had offered testimony of actual use this alone would not bring an 

elevator within the standard. The pertinent question is how and why an elevator is used. Tr. 35, 

43, 95. If it is used only to transport plant personnel, the court believes the elevator does not 

come within the standard. The court fully agrees with Cemex that use of an elevator solely to 

move personnel from one level to another to get them to a working place does not in and of itself 

mandate an elevator’s examination. See Resp. Br. 16. (To hold otherwise would make modes of 

transportation to, into and out of the plant also subject to examination under the standard.) 

38 FMSHRC Page 841
used to convey materials and equipment or to transport workers carrying work-related materials 

or equipment before the March 10 shift ended. Further, the evidence of prior use offered by the 

Secretary is too vague to support finding a violation. At most, the evidence leads to the 

conclusion that the mill room elevator may have been used to convey work-related materials, 

equipment, or employees transporting such equipment in the indeterminate past. The Secretary 

does not offer evidence as to when and on what shift this occurred, and the court concludes that 

as far as the mill room elevator is concerned, the Secretary did not prove the company violated 

section 56.18002(a). 

With regard to the preheater tower elevator, Smith described it as a “personnel floor to 

floor” elevator. Tr. 37. The preheater tower has nine floors. Smith estimated that four or five 

employees work on or near the preheater tower. Tr. 113. According to Smith, workers use the 

preheater tower elevator to go from floor to floor to provide maintenance and to observe the 

processing of material. Tr. 38. At the top floor of the tower, workers sometimes use a tape 

measure to check the depth of material that is being processed. They also use compressed air or 

water to help the material move through the processing system. Tr. 38-39. Although workers 

could use stairs to reach the landings, Smith thought the weight of materials and tools the miners 

often carry made use of the stairs unlikely. Tr. 39. The court agrees and finds it highly unlikely 

miners would walk up the stairs rather than use the elevator. The court further finds that loading 

equipment onto and off the elevator car to facilitate the processing of plant material makes the 

landings, doors, and car of the preheater tower elevator working places within the meaning of 

section 56.18002(a).16 

The court finds it significant that the purpose of the work conducted at the preheater 

tower is to maintain the smooth processing of material at the plant. While there is no evidence 

the preheater tower elevator was in use while Smith was at the mine (Tr. 95, 169), the court 

infers from the fact the task to be accomplished is production-related and from the fact 

production was and had been ongoing (the plant was not shut down), that it is reasonable to 

conclude the preheater tower elevator was used on the most recent production shift to move 

workers and their equipment to the top of the tower to monitor and expedite the processing of 

material. The loading and unloading of the necessary equipment and materials by the employees 

made the elevator’s car, doors and landings working places and, in the court’s view, brought the 

preheater tower elevator within the standard on the production shift most recent and prior to the 

March 10 inspection when it was so used. For these reasons the court concludes the evidence 

supports finding a violation of section 56.18002(a) regarding the preheater tower elevator. 

With regard to the burn room/kiln elevator, Smith testified that it is used to transport both 

personnel and materials from floor to floor. Tr. 37. Smith remembered seeing plant personnel 

walking around the burn floor, but he could not recall what they were doing and no one was 

 16 The court rejects Cemex’s argument that the transportation of miners does not make 

the mill room elevator a working place. Resp. Br. 16. More than just transporting employees 

from one place to another is involved. The employees themselves are transporting work-related 

equipment from the landing, through the door and into the car of the elevator and reversing the 

process at another landing and this work is part of the process of production at the plant. In the 

court’s view, when the preheater tower elevator is so used, the work of the employees makes the 

car, doors, and landings a working place subject to the standard. 

38 FMSHRC Page 842
working in the area of the elevator’s first and second floor landings on March 10. Tr. 167-168. In 

fact, Stephens testified he did not know the last time the elevator was in operation. He stated that 

based on the company’s records the elevator had not been operated two months before March 10 

and two months after March 10. Tr. 168. He described the elevator as “hardly ever use[d].” Id. 

The court finds that record confirms the burn room/kiln elevator was not in use during the 

shift when Smith conducted the inspection and there is no evidence it was going to be so used if 

the shift continued after the inspection ended. In the court’s view, Stephens’ unrebutted 

testimony that he could not recall when the burn room/kiln elevator was last used, that its use 

was infrequent, and the lack of any testimony as to when it was last used in the performance of 

work-related activities means that as far as the burn room elevator is concerned, the Secretary 

failed to prove the company violated section 56.18002(a). 

There is very little evidence regarding the TBA tower elevator. Smith described it as a 

“personnel elevator.” Tr. 37. There is no evidence of the elevator’s other use or uses, if any. As 

the court stated, using an elevator solely to transport workers does not, in and of itself, make the 

elevator a “working place” and bring the elevator’s car, doors, and landings within the strictures 

of section 56.18002(a). The court therefore finds the Secretary did not prove a violation 

regarding the TBA tower elevator. 

For reasons set forth above the court finds that the Secretary established that Cemex 

violated section 56.18002(a), but only with regard to the preheater tower elevator. 

S&S AND GRAVITY 

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). 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, 2-4 (Jan. 1984); accord

Buck Creek Coal Co., 52 F.3d 133, 135 (7th Cir. 1995); Austin Power Co., Inc., 861 F.2d 99, 103 

(5th Cir. 1988) (approving the Mathies criteria). 

The S&S nature and the gravity of a violation are not synonymous. “[T]he focus of the 

seriousness of the violation 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). 

The court concludes the Secretary established that the violation was of an S&S nature. 

The first Mathies element has been established in that the court finds that Cemex violated the 

standard when it failed to designate a competent person to examine the preheater tower elevator. 

To prove the second element, the Secretary needs only to identify a discrete safety hazard 

38 FMSHRC Page 843
associated with the S&S violation. Highland Mining Co., 34 FMSHRC 3434, n.5 (Dec. 2012). 

The possibility that a defective locking mechanism on the preheater tower elevator’s doors 

would not be detected and corrected because a section 56.18002 examination was not conducted 

presented the associated hazard that an unsuspecting worker, mistakenly thinking the elevator car 

is at the landing, would open the elevator’s door and would slip or fall into the empty shaft. This 

happened at the Louisville plant and by applying the standard to the elevator in question, the 

Secretary hoped to prevent the hazard’s recurrence. With regard to the third element of the 

Mathies formula, the Secretary established that the hazard contributed to by the violation was 

reasonably likely to result in an injury. The issue must be viewed in the context of continuing 

operations at the plant. Use of the preheater tower elevator was related to production, which on 

March 10 had been and was ongoing, and which means the elevator had been and would 

continue to be regularly used. When regular use is coupled with the fact the locks on an 

elevator’s door can malfunction and the door can be opened without the car being present (see

Tr. 51), the court finds that as mining continued, it was reasonably likely a malfunctioning 

elevator door would not be detected and a worker, mistakenly thinking the car was at the landing, 

would open the door and fall into the shaft. Any resulting injury was reasonably likely to be at 

least of a reasonably serious nature. 

There is no doubt that the violation was serious. The “effect of the hazard” assuming it 

occurred was at least a serious injury. Consolidation Coal Co., 18 FMSHRC at 1550. 

NEGLIGENCE 

Smith found that Cemex was moderately negligent. The court disagrees and concludes 

the company was not negligent. The Secretary’s definitions of negligence (30 C.F.R. §100.3(d)) 

are not binding on the Commission. See Brody Mining, LLC., 37 FMSHRC 1687, 1701-02 (Aug. 

2015). The Commission has stated, “In determining whether an operator met its duty of care, we 

consider what actions would have been taken under the circumstances by a reasonably prudent 

person familiar with the mining industry, the relevant facts, and the protective purpose of the 

regulation.” Brody Mining at 1702 (quoting Jim Walter Resources, 36 FMSHRC at 1975). The 

Commission also has stated that the court should “consider the totality of the circumstances 

holistically” (37 FMSHRC at 1702) and that in doing so it should take account of “the actions 

that a reasonably prudent operator would or would not have taken under the circumstances 

presented.” Id. at 1703. As set forth more fully in its discussion of due process, the court finds 

that while application of the standard to one of the elevators at the plant is a permissible way to 

read section 56.18002(a), given the broad wording of the standard and the Secretary’s consistent 

failure to apply the standard at the plant, Cemex reasonably could have read the standard as 

inapplicable to its elevators, and the company cannot be held to have failed to meet a standard of 

care it was reasonable to conclude did not exist. 

38 FMSHRC Page 844
DUE PROCESS 

Cemex would have the court vacate the citation on due process grounds. It contends the 

Secretary violated its Constitutional rights by failing to provide it with fair notice of his 

interpretation of the standard. Id. 17. 

The Commission has held: 

Where an agency imposes a fine based on its 

interpretation [of a standard], a separate inquiry 

may arise concerning whether the respondent has 

received “fair notice” of the interpretation it was 

fined for violating. Energy West Mining Co., 17 

FMSHRC 1313, 1317-18 (Aug. 1995). . . . The 

Commission has not required that the operator 

receive actual notice of the Secretary’s interpretation. 

Instead, the Commission uses an objective test, 

i.e., “whether a reasonably prudent person familiar 

with the mining industry and the protective 

purposes of the standard would have recognized 

the specific prohibition or requirement of the 

standard.” Ideal Cement Co.,12 FMSHRC 2409, 2416 

(Nov.1990). 

Island Creek Coal Co., 20 FMSHRC 14, 24 (Jan. 1998). 

But this does not end the matter because an agency’s interpretation may be reasonable 

and nevertheless fail to provide the notice required in some circumstances to support the 

imposition of a penalty. General Electric Co. v. EPA, 53 F.3d 1324, 1333-34 (D.C. Cir. 1995). 

There is no doubt that the Secretary’s application of the standard to the plant’s elevators was a 

“first” at the plant. Tr. 139; see also Tr. 140. Before March 10 the company relied on its 

contractor, Otis, to examine all of its elevators and to correct reported elevator defects on an “as 

needed” basis. Tr. 96, 141. Stephens testified that when a defect was reported by an employee, 

the company “would call Otis, and they would come and repair it.” Tr. 153. He added, “We 

relied on Otis[.]” Tr. 154, See also Tr. 179. In December 2013 and again in January 2014, Smith 

reviewed workplace examination records at the plant. Tr. 74. Although at the time a designated 

person was not conducting workplace examinations of the elevators, Smith did not cite the 

company for a violation of section 56. 18002(a) and did not ask the company about its policy and 

practice with regard to elevator workplace examinations. Tr. 74-76, 166. Moreover, on March 4, 

2014, Lockett, who was conducting a spot inspection at the plant that included the elevators, did 

not issue any elevator related citations Tr. 98-99, 164. Nor did Lockett ask Stephens if Cemex 

had designated an individual to examine the elevators. Tr. 165. Smith’s and Lockett’s lack of 

action in December 2013, January 2014 and early March 2014 reflects either the agency’s lack of 

concern with elevator inspection at the plant, its uncertainty as to whether the standard applied, 

its conviction the standard did not apply to any of the elevators, or its determination that the 

38 FMSHRC Page 845
company’s reliance on Otis provided its employees with adequate protection.17 Not until 

sometime after the February 21, 2014, accident and Lockett’s March 4 inspection did MSHA 

decided to apply section 56.18002(a) to elevators at metal/non-metal facilities. Once the decision 

was made, it was announced to Cemex not through a program policy letter or through the 

February 28, 2014, “fatalgram” (Gov’t Exh. S-6), but through the agency’s issuance of the 

subject citation. Gov’t Exh. S-2. No prior notice was given to Cemex that MSHA would apply 

the standard to the plant’s elevators. Indeed, if anything, Lockett’s “citationless” inspection on 

March 4 reasonably could have been interpreted by Cemex to signal that the then status quo

complied with the Act. By issuing the citation without prior notice on March 10, the agency 

effectively “sandbagged” the company. This does not mean, however, that Cemex necessarily 

was deprived of fair notice. Another analytical step is required. 

When an agency uses a citation as the initial means for announcing a particular 

interpretation, the court must “ask whether the regulated party received . . . notice of the 

agency’s interpretation in the most obvious way of all; by reading the [regulation].” General 

Electric, 53 F.3d at 365. The court has concluded that it is permissible to read section 

56.18002(a) to require a designated person to examine a particular elevator car, doors and 

landings on each shift when an operator’s employees will be conducting work-related activities 

(e.g. the transportation of work-related equipment or materials) on, in, or through an elevator’s 

car, door or landing on or during a shift when such work is or will be conducted or when such 

work reasonably can be expected to be conducted. The court also concludes that the Secretary’s 

total lack of prior enforcement, the broad wording of the definition of “working place” and the 

fact that elevators are not specifically mentioned in the regulations for surface and underground 

metal and non-metal mines[18] means that Cemex reasonably could have read section 

56.18002(a) as not applying to its elevators. Therefore, even though the court finds Cemex 

violated section 56.18002(a) with regard to one of its elevators and that the violation was S&S, 

the court’s findings are a nullity, because in the court’s view, Cemex was not provided with 

constitutionally adequate notice of the Secretary’s interpretation of section 56.18002(a), and the 

citation must be vacated.19

17 Given the documented history of Secretarial non-enforcement at the plant, the 

Secretary’s assertion that “MSHA simply expected the elevator car and the surrounding landing 

area to fall under the exam umbrella” rings hollow. Sec. Br. 22. A far more likely scenario is that 

MSHA never gave a thought to the inspection of elevators under any standard until after the 

February 21, 2014, accident and then decided that section 56.18002(a) could be stretched to fit 

the need. As Schlick put it, “[A] fatality . . . would be a wake-up call for us to look at things 

differently.” Tr. 128. 

18 In contrast, see the detailed regulation of hoists, equipment that like elevators, is raised 

and lowered by cables. 30 C.F.R. § 56.19045 - § 56.19083; 30 C.F.R. § 57.19.000 – 57.19135. 

19 The Secretary’s arguments to the contrary are not persuasive. The Secretary states that 

Cemex’s contract with Otis put the company on notice that areas not listed in the contract are 

Cemex’s responsibility subject to inspection by the company. Sec. Br. 23. However, a more 

reasonable conclusion is that the long standing nature of the contract, which went into effect in 

1977, and the lack of any indication from MSHA that Cemex’s practice of relying on Otis 

(continued...) 

38 FMSHRC Page 846
CITATION NO. DATE 30 C.F.R. § 

8733025 3/10/14 56.14100(c) 

THE VIOLATION 

Section 14100(c) requires that when defects make continued operation of self-propelled 

mobile equipment hazardous to persons, defective equipment shall be “taken out of service and 

placed in a designated area posted for that purpose, or a tag or other effective method of marking 

the defective items shall be used to prohibit further use until the defects are corrected.” The 

Secretary charges that the “in-use” lights on the first and second floor call stations of the burn 

floor elevator did not activate when the elevator car was in motion or go out when the car 

stopped. As a result a worker might think the car was at the first or second floor when it was not. 

The worker might try to open the door of the elevator and because the interlock prevented the 

door from opening, might strain his or her back. Exh. S-3, Tr. 55-56. In addition, the telephone 

inside the elevator car was missing. Workers could not communicate over the phone with 

rescuers if workers became trapped in the elevator. Exh. S-3, Tr. 55-56. 

Based on Smith’s undisputed testimony, the court finds both conditions existed as alleged 

in the citation. Tr. 54-55. The court agrees with Smith that each condition posed a hazard to 

persons. The fact that the “in-use” lights were not working means a worker might think the car 

was at either the first floor or second floor call station when it was not, might try to open the 

locked door, and in the process might injure himself or herself. Further, as Smith implied, lack of 

working “in-use” lights created the possibility, if coupled with a failure of the interlock 

mechanism, for another Louisville-type accident. Tr. 56. In addition, the lack of a telephone in 

the elevator car clearly deprived workers of a way to call for help should they become trapped in 

the car. Tr. 57. The court agrees with Smith that the cited defects made operation of the elevator 

hazardous to persons riding in it or working on the landings near it. Smith testified, and Cemex 

does not dispute, that the elevator was not taken out of service and the court finds, in the words 

of the standard, that the elevator was not marked “to prohibit further use until the defects [were] 

corrected.” For these reasons, the court concludes that Cemex violated section 56.14100(c) as 

charged. 

19 (...continued) 

violated any regulatory provision, led the company logically to conclude its practice did not run 

afoul of the Act and Part 56. The Secretary also argues the accident at the Louisville plant should 

have alerted the company to “[bring] the elevator cars and landing areas under the workplace 

exam umbrella.” Id. However, rather than alert the company to the fact it was in violation of a 

regulation because of its adherence to a contractually based practice, a practice for which it never 

had been cited, a more logical conclusion for the company to draw was to request its contractor 

ensure the interlock mechanisms on the plant’s elevators doors were properly functioning. This is 

exactly what Cemex did. Finally, the Secretary states that the “clear mandate” of the standard 

should have alerted Cemex to its duty to comply. Id. But, as noted above, the standard is open to 

interpretation to say the least. The Secretary failed to apply it prior to the accident and reversed 

its course after the accident. If the standard provided a clear mandate it is logical to assume the 

Secretary’s actions would have been consistent. 

38 FMSHRC Page 847
GRAVITY and NEGLIGENCE 

The court concurs with Smith’s finding that the violation was not serious and that it was 

unlikely to result in an injury producing more than lost workdays or restricted duty. First, as 

Smith noted, the doors of the elevator were provided with windows. Tr. 58. Thus, a worker could 

see if the elevator car was at the landing before he or she tried to open the door. Moreover, Smith 

checked the interlocks during the course of his inspection and found they functioned properly. Id. 

The court concludes that it was therefore unlikely the non-functioning “in-use” lights would lead 

to any injury. The court also concludes, given the presence in the mine of other communication 

devices, namely portable radios and cellular phones (Tr. 57), it was highly unlikely that an injury 

would result from the fact the car’s telephone was missing. 

While the court agrees with the inspector regarding the gravity of the violation, it takes 

issue with the inspector’s finding of high negligence. Exh. S-3; Tr. 58-59. The finding is based 

upon the fact that Cemex had not conducted a workplace examination of the elevator. “A 

workplace exam being performed daily on the elevator would have addressed the defects when 

observed.” Tr. 59. Rather than high negligence, the court concludes the company’s negligence 

was moderate. While the cited conditions were visually obvious and should have been detected 

and corrected, as the court has found, it was reasonable for the company to conclude section 

56.18002(a) did not apply to its elevators and thus not to designate a competent person to 

examine their car, doors and landings on a shift when they were or would be used for workrelated activities. Further, while section 56.14100(a) requires that when self-propelled mobile 

equipment is used during a shift, the equipment be examined before it is placed in operation, 

there is no evidence the cited elevator was used during the shift on which the inspection took 

place or on a prior identifiable shift. Nor is there certainty as to how long the cited conditions 

existed. The most likely implication is that they occurred sometime between Lockwood’s and 

Smith’s inspections, a not inordinately long period. Tr. 105, The court therefore finds that 

Cemex’s negligence was moderate. 

OTHER PENALTY CRITERIA 

The burden of establishing that any penalty assessed will affect the company’s ability to 

continue in business is born by Cemex. The company did not offer evidence or make an 

argument on the issue, and the court finds that the penalties it assesses will not affect Cemex’s 

ability to continue in business. The parties stipulated that Cemex has a small history of previous 

violations. Tr. 24; see Exh. S-1. The parties did not stipulate or present evidence as to the size of 

the operator, but the court notes that when proposing penalties, the Secretary based the proposals 

in part on the fact that the plant is of a medium size, but that Cemex’s controlling entity is large. 

Petition for Assessment of Civil Penalty, Exh. A. The court therefore finds that Cemex is large in 

size. Finally, when proposing penalties the Secretary gave the company a 10 percent reduction 

because of its abatement efforts. The court therefore finds that Cemex exhibited good faith in 

seeking to rapidly abate the violations. 

CITATION NO. DATE 30 C.F.R. § PROPOSED PENALTY ASSESSMENT 

8733024 3/10/14 56.18002(a) $1,530 $0 

38 FMSHRC Page 848
The court has found that the Secretary’s application of the standard deprived Cemex of 

fair notice. The citation must be vacated. A penalty cannot be assessed. 

CITATION NO. DATE 30 C.F.R. § PROPOSED PENALTY ASSESSMENT 

8733025 3/10/14 56.14100(c) $308 $208 

The court has found that the violation was not serious and was due to Cemex’s moderate 

negligence. The Secretary proposes a penalty of $308. Given the court’s gravity and negligence 

findings and the civil penalty criteria discussed above, the court finds that a penalty of $208 is 

appropriate. The court departs from the Secretary’s proposed penalty because it finds the 

negligence of the company to be less than the Secretary alleges. 

ORDER 

Citation No. 8733024 IS VACATED. Citation No. 8733025 IS MODIFIED by reducing 

the Secretary’s negligence finding from “high” to “moderate.” Within 30 days of the date of this 

decision, Cemex SHALL PAY a civil penalty of $208.20 Upon payment of the penalty this 

proceeding IS DISMISSED. 

/s/ David F. Barbour 

David F. Barbour 

Administrative Law Judge 

Distribution: (Certified Mail) 

Timothy Turner, Esq., U.S. Department of Labor, Office of the Solicitor, 1244 Speer Blvd., 

Suite 216, Denver, Colorado 80204-3516 

Michael T. Cimino, Esq.; Adam J. Schwendeman, Esq., Jackson Kelly, PLLC, 1600 Laidley 

Tower, P.O. Box 553, Charleston, WV 25322 

/db 

20 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 

38 FMSHRC Page 849

ADMINISTRATIVE LAW JUDGE ORDERS
38 FMSHRC Page 850
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 

April 1, 2016 

ORDER GRANTING RESPONDENT’S MOTION TO DISMISS 

Before: Judge Simonton 

This discrimination case is before me under section 105(c) of the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 815(c). The Complainant, Ms. Gina Hacking, worked as an 

equipment operator at the Respondent’s Lehi Point East mine from September 2004 to April 

2011. After formally informing the Respondent that she was suffering from back pain in 

September 2010, the Complainant began leave in April 2011 under the Family and Medical 

Leave Act (FMLA) to undergo back and neck surgery.1 

Hacking’s allowable FMLA leave expired in August 2011 when her doctor cleared her to 

return to a “light duty” position. However, she was not cleared to work with heavy equipment. 

Glassford Medical Order, August 10, 2011. The Respondent subsequently informed the 

1

 Ms. Hacking filed a workmen’s compensation claim with the Utah Labor Commission 

on January 25, 2011 while she was still working for Staker & Parson Companies. The 

Respondent contested this claim and argued that Ms. Hacking had not provided timely 

notification of her injuries and that her injuries were not work related. Following a decision by 

the Utah Labor Board and multiple appeals, the Complainant and Respondent eventually settled 

the workmen’s compensation claim in December 2013. December 12, 2013 Settlement Order. 

GINA HACKING, 

 Complainant, 

 v. 

STAKER & PARSON COMPANIES, 

 Respondent. 

DISCRIMINATION PROCEEDING 

Docket No. WEST 2014-931-DM 

RM MD 14-11 

Mine: Lehi Point East 

Mine ID: 42-02130 

38 FMSHRC Page 851
Complainant that they did not have any light duty positions2

 available for her and terminated the 

Complainant’s employment on August 11, 2011. 

Hacking first filed a section 105(c) complaint with MSHA on May 1, 2014, two years 

and nine months after her discharge, alleging that the Respondent had terminated her 

employment based upon her workplace injuries, gender, and safety complaints. MSHA May 1, 

2014 Complaint, 2. On July 11, 2014, MSHA notified Hacking that “MSHA does not believe 

that there is sufficient evidence to establish, by a preponderance of the evidence that a violation 

of Section 105(c) occurred.” July 11, 2014 MSHA Notification Letter. Hacking then filed a 

105(c)3 complaint with the Commission on August 13, 2014 and the Chief Judge assigned this 

matter to the court on June 9, 2015. 

Following further discovery, this matter must be dismissed as the Complainant has not 

offered a justifiable excuse for the extremely late filing of her complaint and the delay has 

prejudiced the Respondent’s ability to defend itself. 30 U.S.C. 815(c)(2) (requiring miners to file 

discrimination claims with the Secretary of Labor within sixty days of the date of 

discrimination); see also Hollis v. Consolidation Coal, 6 FMSHRC 21, 25 (affirming ALJ 

dismissal of 105(c) claim filed four months late and stating that Congress did not intend to 

“excuse a miner's late-filing where the miner has invoked the aid of other forums while 

knowingly sleeping on his rights under the Mine Act”). 

Commission Procedural History3

Hacking initially filed a discrimination claim with MSHA on May 1, 2014. The 

complaint alleged that the Respondent failed to adequately respond to Hacking’s complaints 

regarding a faulty haul truck seat, bad haul roads, and treated her differently as a woman. MSHA 

2

 The Respondent does not offer light duty to workers with off-duty injuries but does 

offer light duty positions to workers injured on the job. Wilson Aff., 2. In August 2011, the 

Respondent considered Hacking’s injuries non-work related based upon the evaluation of the 

company physician. Thackery Aff., 2.; Oct. 2, 2012 ULB Decision, 4. Even if this matter were to 

proceed to hearing, the dispute regarding the cause of the Complainant’s injuries and the 

Respondent’s response to those injuries is not one this court could resolve. Delisio v. Mathies 

Coal Co., 12 FMSHRC 2535, 2544 (December 1990)(“the Commission does not sit as a super 

grievance board to judge the industrial merits, fairness, reasonableness, or wisdom of an 

operator's employment policies except insofar as those policies may conflict with rights granted 

under section 105(c) of the Mine Act.”); Jason Sheperd v. Black Hills Bentonite, 25 FMSHRC 

129, 133 (ALJ Manning)(March 2003)(operator’s refusal to offer miner light duty position after 

suffering workplace injury was not governed by section 105(c) of the Mine Act). 

3

 Both parties submitted numerous documents and records concerning Hacking’s 

employment with Staker & Parson Companies. The court has reviewed all documents submitted 

but has only referenced those relevant to the threshold issue of timeliness under section 105(c)2 

of the Mine Act. 

38 FMSHRC Page 852
May 1, 2014 Complaint, 2. MSHA notified Hacking it did not find sufficient evidence to pursue 

the claim on July 11, 2014.4

 

Hacking filed a 105(c)3 complaint with the Commission on August 14, 2014, restating 

the allegations contained in her initial complaint to MSHA. The Respondent failed to answer the 

Complaint and the Chief Judge ordered the Respondent to submit an answer on April 10, 2015. 

The Respondent filed a response on May 11, 2015, moving to dismiss the complaint on 

jurisdictional, timeliness, and factual grounds. The Respondent specifically objected to the 

Complainant’s two and a half year delay in filing her initial complaint. Resp. May 11, 2015 Mot. 

to Dismiss,1. The Respondent also cited Hacking’s failure to file her 105(c)3 complaint with the 

Commission within 30 days after receipt of the Secretary’s decision as additional grounds to 

dismiss the complaint for timeliness concerns. Id. at 2. 

On June 1, 2015, the Chief Judge denied the Respondent’s Motion to Dismiss. The Chief 

Judge directly addressed and excused Hacking’s failure to file with the Commission within thirty 

days of receiving notice that MSHA would not pursue her claim, stating, 

Although it is not clear when Complainant actually received the

Secretary's July 11, 2014 letter, I do not consider a three day delay 

to be prejudicial. Delays much greater than this have been 

approved by the Commission. 

Chief Judge June 1, 2015 Order, 2. 

However, the cases cited by the Chief Judge dealt with delays caused by the Secretary 

after the miner filed their claim with MSHA within the statutory period. The Chief Judge did not 

appear to specifically address Ms. Hacking’s failure to initially file her claim with the Secretary 

within sixty days of the alleged discrimination. Chief Judge June 1, 2015 Order, 2, citing Sec 'y 

Labor ex ref. Hale v. -1-A Coal Co, 8 FMSHRC 905, 909 (June 1986)(reinstating 105(c) 

complaint when miner filed complaint with MSHA 5 days after alleged discrimination and 

Secretary delayed filing a discrimination complaint with the Commission for over two years); 

Secretary of Labor on behalf of Nantz v. Nally & Hamilton Enters., 16 FMSHRC 2208, 2214-

15(Nov. 1994)(excusing Secretary’s four month filing delay when miner submitted 

discrimination complaint to MSHA approximately forty days after alleged discrimination 

occurred). 

The Chief Judge stated that all other matters were “factual in nature and should be 

remanded to the Judge.” Chief Judge June 1, 2015 Order, 2. The Chief Judge subsequently 

4

 MSHA did issue Citation No. 8824803 to the Respondent on July 31, 2014, for failure 

to report an injury pursuant to 30 CFR 50.20(a). Staker & Parson Companies, 37 FMSHRC 

2099, 2100 (September 2015) (ALJ Gill). Citation No. 8824803 alleged that the Respondent 

failed to report Hacking’s injuries as a workplace injury after being given official notice on July 

2, 2013 by the Utah Labor Board that her injuries were workplace related. Id. The ALJ affirmed 

Citation No. 8824803 and assessed a penalty of $100.00 after the Respondent failed to respond 

to a motion for summary judgment submitted by the Secretary. Id. at 2101-2102. 

38 FMSHRC Page 853
assigned this matter to me on June 9, 2015. After conducting a teleconference call with the 

parties, the court permitted the Complainant to respond to the Respondent’s Motion to Dismiss. 

Hacking submitted a response on July 20, 2015 restating many of her initial complaints to 

MSHA, but also alleging that she complained to her supervisor about unsafe haul road and pit 

conditions. Hacking July 20, 2015 Response, 2. 

On August 17, 2015, the court denied the Respondent’s Motion to Dismiss. Within, the 

court restated the Chief Judge’s initial findings regarding timeliness without further analysis. 

August 17, 2015 Order, 2. The court also rejected the Respondent’s objection that Hacking’s 

pleading failed to properly allege a prima facie case of discrimination. The court noted that the 

Commission maintains a lenient pleading standard for pro se discrimination complainants and 

determined that the Complainant’s supplemental answer satisfied the minimal pleading burdens 

of 30 CFR 2700.42. Id. at 4. 

The court then scheduled this matter for hearing in December 2015 and subsequently 

rescheduled the hearing to permit further discovery. Following the close of discovery, the 

Respondent submitted a motion for summary judgment on February 16, 2016. The Respondent 

stated within the motion that the Complainant’s claim should be dismissed for the following 

reasons: 

1) A claim waiver in a December 2013 settlement agreement executed by the parties barred

claims arising from Hacking’s employment with Staker-Parson from 2004 through 2011.

2) The claim was time-barred by section 105(c)2 of the Mine Act as Hacking filed more

than two years past the 60 day statutory filing period and has not provided a justifiable

excuse for the delay.

3) The claim failed to provide any evidentiary link between Hacking’s safety complaints

and Respondent’s management decision to terminate her employment in August 2011.

4) The Complainant is unsuited for backpay or reinstatement as she continues to suffer from

significant back pain and requires prescription medication during work activities.

February 16, 2016 Resp. Mot.,6, 9, 11, 17. 

The court again postponed the hearing and allowed the Complainant three weeks to 

respond with instructions to answer the specific issues outlined above. Hacking filed a response 

on March 8, 2016 and the court reviewed all submissions at length before issuing this decision. 

After careful review, the court finds that the Complainant has not provided a justifiable 

explanation sufficient to excuse the nine-hundred day initial filing delay. Having made this 

determination, further analysis of the Respondent’s alternate grounds for dismissal is 

unnecessary. 

38 FMSHRC Page 854
Section 105(c)2 Discrimination Claim Filing Requirements 

Under 30 U.S.C. § 815(c)(2), “Any miner ... who believes that [s]he has been discharged, 

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

may, within 60 days after such violation occurs, file a complaint with the Secretary [of Labor] 

alleging such discrimination.” (emphasis added). After a miner files a complaint, the Mine Safety 

and Health Administration (MSHA) investigates it on behalf of the Secretary of Labor. See, e.g., 

Simpson v. Fed. Mine Safety & Health Review Comm'n, 842 F.2d 453, 456 n. 3 (D.C.Cir.1988). 

If the Secretary finds that a violation occurred, the Secretary may pursue the claim on the miner's 

behalf before the Commission. 30 U.S.C. § 815(c)(2). If not, the miner may file a claim with the 

Commission on her own behalf under 30 U.S.C. § 815(c)(3). 

The Mine Act’s legislative history relevant to the 60–day time limit states: 

While this time-limit is necessary to avoid stale claims being 

brought, it should not be construed strictly where the filing of a 

complaint is delayed under justifiable circumstances. 

Circumstances which could warrant the extension of the time-limit 

would include a case where the miner within the 60–day period 

brings the complaint to the attention of another agency or to his 

employer, or the miner fails to meet the time limit because he is 

misled as to or misunderstands his rights under the Act. 

S.Rep. No. 181, 95th Cong., 1st Sess. 36 (1977), reprinted in Senate Sub-committee on Labor,

Committee on Human Resources, 95th Cong., 2d Sess., Legislative History of the Federal Mine

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

Accordingly, the Commission does not consider the 60–day limit of § 815(c)(2) to be 

jurisdictional. See Morgan v. Arch, 21 FMSHRC 1381, 1386 (1999) (“Commission case law is 

clear that the 60–day period for filing a discrimination complaint under section. . . .§ 815(c)(2), 

is not jurisdictional.”). It will hear cases in which a complaint's untimely filing is due to 

“justifiable circumstances, including ignorance, mistake, inadvertence and excusable neglect.” 

Perry v. Phelps Dodge Morenci, Inc., 18 FMSHRC 1918, 1921–22 (1996). 

On the other hand, “[e]ven if there is an adequate excuse for late filing, a serious delay 

causing legal prejudice to the respondent may require dismissal.” Id. at 1922. The Commission 

places the burden of proving justifiable circumstances on the miner, and places the burden of 

demonstrating material legal prejudice on the mine operator. See id.; Schulte v. Lizza Indus. Inc., 

6 FMSHRC 8, 13 (1984). 

Analysis 

The Respondent terminated Hacking’s employment on August 11, 2011 and Hacking did 

not file a claim with MSHA until over two years and nine months later on May 1, 2014. February 

16, 2016 Resp. Mot., 9; March 8, 2016 Hacking Ans., 3; August 11, 2011 Wilson E-Mail. Thus, 

38 FMSHRC Page 855
the Complainant must demonstrate that justifiable circumstances explain the nine hundred day 

delay that occurred after the 60 day filing period expired on or about November 11, 2011. 

 The court is sympathetic to Hacking’s contention that she was suffering from 

complications from surgery, undergoing a divorce, and caring for her son during the two plus 

years that elapsed between her termination and her claim filing. March 8, 2016 Hacking Ans., 3. 

However, less than a month after being terminated by the Respondent, Hacking testified at length 

on September 8, 2011 before the Utah Labor Board (ULB). 

 Following a ULB decision on October 2, 2012 and multiple appeals proceedings, 

Hacking, with aid of counsel, later negotiated a settlement agreement finalizing all issues related 

to her workmen’s compensation claim. December 12, 2013 Settlement Agreement. Hacking has 

stated that she took a very active stance during those settlement negotiations, refusing to sign an 

expansive liability waiver presented by the Respondent when the parties reduced their agreement 

to writing. March 8, 2016 Hacking Ans., 2. 

 Thus, Hacking’s personal affairs did not prevent her from participating in work-related 

legal action in a different jurisdiction from September 2011 through December 2013. 

Accordingly, this court cannot accept Hacking’s personal affairs as a legitimate excuse for the 

lengthy delay that occurred in this matter. 

 Furthermore, the workmen’s compensation claim did not serve as a substitute for filing a 

complaint with MSHA, as the workmen’s compensation claim centered on the cause of the 

Complainant’s injury rather than on the Complainant’s protected safety activities. October 2, 

2012 ULB decision. As such, the Complainant cannot rely on the ULB proceedings to toll or 

extend the section 105(c) filing deadlines. Hollis, 6 FMSHRC 25 (affirming ALJ dismissal on 

timeliness grounds when miner filed a 105(c) complaint with MSHA four months late after first 

pursuing a claim before state agency alleging racial discrimination). 

 The Complainant has not claimed that she was ignorant of her rights under the Mine Act. 

Hacking has readily acknowledged that the Respondent provided yearly refresher training on 

miner’s safety rights. March 8, 2016 Hacking Ans., 5-6. Hacking has specifically confirmed that 

this training covered protection from discrimination, stating “I know that in MSHA training we 

learned that we are supposed to be able to make a complaint without fear of being terminated.” 

Id. at 5. 

 Hacking does contend that the Respondent failed to instruct on her how to file a 

discrimination claim during miner training and was unaware of the 60 day filing requirement. 

March 8, 2016 Hacking Ans., 6; Hacking Admission Response No. 5. Even accepting these 

contentions as true, this rather bare explanation is insufficient to explain the nine hundred day 

delay that occurred after her termination. As an initial matter, Hacking had clear notice that 

MSHA was the governing regulatory agency in regards to her discrimination claim. The training 

documents submitted by the Respondent and acknowledged by the Complainant clearly outline 

MSHA’s authority to issue fines for various infractions and list discrimination against safety 

activities as prohibited conduct. Resp. Miner Training Outline, 4; March 8, 2016 Hacking Ans., 

5. 

38 FMSHRC Page 856
Neither the Commission nor MSHA have ever required an operator to give miners 

explicit step-by step instructions on how to file a discrimination claim. Hollis, 6 FMSHRC 24 

(holding that miner’s regular participation in safety committees and MSHA meetings indicated 

that miner was sufficiently aware of his 105(c) rights to enforce filing requirements); Sinott v. 

Jim Walter Resources, Inc., 16 FMSHRC 2445, 2448 (Dec. 1994)(ALJ Maurer)(holding that 

section 105(c)2 does not require operators to notify discharged miners that discrimination may 

have occurred). Furthermore, the court is not persuaded that the lack of specific instructions 

regarding filing requirements is in fact the actual reason for more than two years of delay in 

filing. Olson v. FMSHRC, 381 F.3d 1007, 1012-1013 (affirming Commission ALJ finding that 

Complainant’s alleged fear of retaliation was not, under the circumstances, a credible 

explanation for filing delay). 

In fact, Hacking states in her answer that she “had other things to deal with that took time 

and money and had the need of my immediate attention.” Id. at 3. While the Commission has 

listed “excusable neglect” as a justifiable circumstance that may excuse a late filing, the 

Commission has clarified that “the fair hearing process does not allow us to ignore serious 

delay.” Hollis, 6 FMSHRC 25. Indeed, a fellow ALJ has previously characterized a claim filed 

three years and three months after the alleged discrimination as “extra-ordinarily late” and 

“inherently prejudicial.” Sinott, 16 FMSHRC 2447-48. 

In this matter, one potential witness who appears to have worked closely with Hacking 

died in October 2015. Thackeray Aff., 3. The court notes that transcripts and recordings of Utah 

Labor Board proceedings on July 7, 2011 and September 8, 2011 are available, including 

testimony from Hacking’s deceased co-worker. March 8, 2016 Hacking Ans., 5. However, upon 

review, the testimony in these proceedings centers almost exclusively on the condition of the 

haul truck seat beginning as early as 2006 and whether or not Hacking notified her supervisors of 

her back pain in a timely fashion. July 7, 2011 Hacking Deposition; September 8, 2011 ULB 

Hearing. The circumstances and possible motivations surrounding Hacking’s dismissal in August 

2011 were not detailed during either of these hearings.5

 As such, transcripts and recordings of 

those hearings offer this court little relevant evidence regarding a possible connection between 

Hacking’s safety complaints and the Respondent’s decision to terminate her employment in 

August 2011. 

Hacking has indicated that she intends to call a number of Staker & Parson Companies 

employees to testify at hearing. The court does not doubt that these witnesses would attempt to 

5

 Hacking testified in the Utah Labor Board proceedings that she had recently been 

terminated due to her inability to work in a loader pursuant to the company’s policy regarding 

light duty positions and off-duty injuries. The manager responsible for her termination, David 

Wilson, did not testify at the September 8, 2011 ULB Hearing as it does not appear he was 

involved with her injury report. Wilson Aff., 2. 

38 FMSHRC Page 857
describe events from early 2011 and earlier to the best of their ability. However, a fellow 

Commission ALJ has noted in similar circumstances arising from a three year delay, 

it is highly questionable whether the other company employees 

who might have had some knowledge of the events surrounding 

(the) termination would have a present recollection of those events. 

Sinott, 16 FMSHRC 2448. 

Indeed, Hacking’s own testimony during a recent deposition indicates that she has 

difficulty remembering the details and sequence of her alleged safety complaints and 

termination. February 11, 2016 Hacking Depo., 65, 92, 94,109. As such, the quality of testimony 

that would be produced at hearing is likely to prejudice the Respondent’s ability to defend itself. 

The court notes that the Respondent’s failure to timely answer the Complainant’s 105(c)3 

filing with the Commission added seven months to the delay present in this case. June 1, 2015 

Chief Judge Order, 1. The court is also aware that this matter has proceeded for an additional ten 

months after being assigned by the Chief Judge. Nevertheless, the Respondent has never waived 

their timeliness objection and the court has only considered the thirty-one month delay 

attributable to the Complainant. 

To this court’s knowledge, a thirty-one month filing delay is more than three times longer 

than any similar initial filing delay previously excused by the Commission. Morgan, 21 

FMSHRC 1386 (excusing claim filed by miner nine months late when miner initially lodged 

complaint with union). Furthermore, there has been no showing that the Respondent, MSHA, or 

any other agency or entity is responsible for the initial thirty one month filing delay. Thus, the 

Complainant’s individual delay is unlike lengthy delays caused by the Secretary that have been 

previously excused by the Commission. Hale v. -1-A Coal Co, 8 FMSHRC 909 (reinstating 

105(c) complaint when miner filed complaint with MSHA 5 days after alleged discrimination 

and Secretary delayed filing a discrimination complaint with the Commission for over two 

years); Nantz v. Nally & Hamilton Enters., 16 FMSHRC 2214-15 (excusing Secretary’s four 

month filing delay when miner submitted discrimination complaint to MSHA approximately 

forty days after alleged discrimination occurred). 

38 FMSHRC Page 858
Therefore, allowing the Complainant to proceed without a justifiable excuse would 

exceed the limits of delay permissible under the Mine Act. Sinott, 16 FMSHRC 2447, (stating 

that, “At some point there has to be an outer limit, if the 60 day rule contained in the statute has 

any meaning at all”). 

ORDER

The Respondent’s Motion to Dismiss is GRANTED. Accordingly, this matter is 

DISMISSED with prejudice. The Complainant may appeal this matter to the Commission within 

30 days of the date of this order. 

/s/ David P. Simonton 

David P. Simonton 

Administrative Law Judge 

Distribution: (U.S. First Class Mail) 

Gina Hacking, 165 East 100 North, Cedar Fort, UT 84013 

Brad Kinkeade, Counsel, Staker & Parson Companies, 900 Ashwood Parkway, Suite 600, 

Atlanta, GA 30338 

38 FMSHRC Page 859
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9956 / FAX: 202-434-9949 

April 7, 2016 

ORDER 

This proceeding is before me upon a complaint of discrimination under section 105(c)(3) 

of the Federal Mine Safety and Health Act of 1977, as amended, 30 U.S.C. § 815(c)(3). The 

complaint was initially filed with the U.S. Department of Labor’s Mine Safety and Health 

Administration (MSHA), which conducted an investigation pursuant to section 105(c)(2) but 

declined to pursue the matter through litigation. The Complainant subsequently initiated this case 

before the Commission on his own behalf pursuant to 105(c)(3). 

Procedural Background 

In February 2016, the Respondent requested a subpoena to compel MSHA to produce its 

investigative file in the matter of Woodward v. Carmeuse Lime & Stone, MSHA Case No. SEMD-15-23. The Respondent had previously filed a FOIA (Freedom of Information Act) request 

for the investigative file. MSHA had replied with a letter stating that the statutory time limits for 

processing the request could not be met due to “unusual circumstances.” The delay would have 

made production untimely for litigation purposes, as a hearing is scheduled for May 9-12, 2016. 

In order to protect the rights of both parties to this litigation, on February 24, 2016, I issued a 

subpoena to MSHA under Rule 60(a) of the Commission’s procedural rules, 29 C.F.R. § 

2700.60(a), and section 113(e) of the Mine Act, 30 U.S.C. § 823(e), and ordered MSHA to 

submit the entire investigative file to the Court within thirty days for in camera review and 

distribution of properly releasable documents to the parties. 

On March 24, 2016, the Secretary of Labor filed a letter asserting he “cannot comply” 

with my order, citing FOIA (5 U.S.C. § 552), the Privacy Act (5 U.S.C. § 552a), and the 

Secretary’s own regulations at 29 C.F.R. Part 2, Subpart C (“Employees Served with 

Subpoenas”). The Secretary did, however, produce a redacted version of the investigative file in 

JONATHAN BETHEL WOODWARD, 

 Complainant, 

v. 

CARMEUSE LIME AND STONE, 

 Respondent. 

DISCRIMINATION PROCEEDING 

Docket No. SE 2016-59-DM 

SE-MD-15-23 

Mine: Filled Products – North Mill 

Mine ID: 09-01094 

38 FMSHRC Page 860
response to the Respondent’s FOIA request.1

 Claiming exemptions under subsections (b)(7)(C) 

and (b)(7)(D) of FOIA, the Secretary withheld two documents identified in his disclosure as 

Exhibits 3 and 8 containing statements of interviews with two unnamed individuals. 

The Respondent has now filed a letter asking me to enforce my February 24 subpoena 

and order and compel the Secretary to produce the two withheld interview statements. The 

Respondent argues that such action is necessary so that the parties may have access to the factual 

material gathered by the Secretary during his investigation of the discrimination complaint. 

Discussion 

The sole issue before me is whether the Secretary must release for in camera review the 

two withheld interview statements, Exhibits 3 and 8, sought by the Respondent. 

My February 24 subpoena and order directing MSHA to produce the entire investigative 

file, including the two withheld interview statements, were issued under the authority of section 

113(e) of the Mine Act, which provides in pertinent part: 

In connection with hearings before the Commission or its administrative law 

judges under this Act, the Commission and its administrative law judges may 

compel the attendance and testimony of witnesses and the production of books, 

papers, or documents, or objects, and order testimony to be taken by deposition at 

any stage of the proceedings before them. Any person may be compelled to 

appear and depose and produce similar documentary or physical evidence, in the 

same manner as witnesses may be compelled to appear and produce evidence ... 

In case of contumacy, failure, or refusal of any person to obey a subpoena or 

order of the Commission or an administrative law judge, respectively, to appear, 

to testify, or to produce documentary or physical evidence, any district court of 

the United States ... within the jurisdiction of which such person is found, or 

resides, or transacts business, shall, upon the application of the Commission, or 

the administrative law judge, respectively, have jurisdiction to issue to such 

person an order requiring such person to appear, to testify, or to produce evidence 

as ordered by the Commission or the administrative law judge, respectively, and 

any failure to obey such order of the court may be punished by the court as 

contempt thereof. 

30 U.S.C. § 823(e) (emphasis added). Thus, Congress has expressly authorized Commission 

ALJs to compel the production of documents by issuing a subpoena or order that is enforceable 

in the federal district courts. See, e.g., Justice v. Gateway Eagle Coal Co., 2014 WL 4491138 

(Aug. 22, 2014) (ALJ) (unpublished order requesting enforcement of subpoena); Justice v. 

Gateway Eagle Coal Co., 36 FMSHRC 2371 (Aug. 2014) (ALJ) (order compelling Secretary to 

1

 The Respondent submitted a copy of the file to this Court. The Secretary still has not 

submitted any documents to the Court and maintains that he is barred from doing so for the 

reasons set forth in his March 24 letter, which was submitted after he had responded to the FOIA 

request. 

38 FMSHRC Page 861
produce documents for in camera review); Olson v. Triton Coal Co., 25 FMSHRC 649 (Oct. 

2003) (ALJ) (same). 

Consistent with this Congressional authorization, the Commission’s procedural rules 

provide that the “Commission and its judges are authorized to issue subpoenas, on their own 

motion or on the oral or written application of a party, requiring the attendance of witnesses and 

the production of documents or physical evidence.” 29 C.F.R. § 2700.60(a). A person served 

with a subpoena may move to revoke or modify it within five days of service. Id. § 2700.60(c). 

The judge should grant the motion if the subpoena seeks information outside the proper scope of 

discovery, does not describe with particularity the evidence sought, or for any other reason is 

found to be invalid or unreasonable. Id. Neither the Mine Act nor the procedural rules contain 

any other limitations on the Commission’s or Commission ALJs’ subpoena authority. 

In refusing to comply with my subpoena and order, the Secretary contends that this 

matter involves “an intersection between the Touhy regulations, the Privacy Act, the Freedom of 

Information Act (FOIA), issues of privilege, and the scope of subpoenas.” Sec’y Resp. at 2. 

However, the Secretary has failed to identify any privileges or exemptions that excuse him from 

producing the subpoenaed documents for in camera review. 

The Touhy regulations are set forth in 29 C.F.R. Part 2, Subpart C. These regulations 

were promulgated by the Secretary to implement internal procedures for Department of Labor 

employees to follow when responding to subpoenas. See 29 C.F.R. §§ 2.20 to 2.25; United States 

ex rel. Touhy v. Ragen, 340 U.S. 462 (1951) (upholding authority of head of Department of 

Justice to promulgate similar rules). As explained in one of the cases cited by the Secretary in his 

subpoena response, these are intra-agency “housekeeping rules” promulgated under the authority 

conferred by 5 U.S.C. § 301. Herr v. McCormick Grain-The Heiman Co., No. 92-1321-PFK, 

1994 WL 324558, *1 (D. Kan. June 28, 1994). The enabling statute provides, in full: 

The head of an Executive department or military department may prescribe 

regulations for the government of his department, the conduct of its employees, 

the distribution and performance of its business, and the custody, use, and 

preservation of its records, papers, and property. This section does not authorize 

withholding information from the public or limiting the availability of records to 

the public. 

5 U.S.C. § 301. The statute does not authorize the Secretary to refuse to comply with a court 

order or subpoena, and the Secretary’s Touhy regulations do not and cannot create such a 

privilege. The regulations merely delegate exclusive authority to one of the Secretary’s highranking subordinates to respond to subpoenas after being furnished with a written summary of 

the information sought and its relevance to the proceeding. In this case, the Secretary is aware 

which documents are sought and why they are relevant to this proceeding. He cannot hide behind 

his own intra-agency procedures as a rationale for refusing to comply with the subpoena and 

order. 

The Secretary asserts that the Privacy Act, 5 U.S.C. § 552a, prohibits disclosure of the 

investigative file without the permission of the individual to whom the file pertains – in this case, 

38 FMSHRC Page 862
the Complainant. However, this prohibition is expressly inapplicable to disclosures that are made 

“pursuant to the order of a court of competent jurisdiction.” 5 U.S.C. § 552a(b)(11). The 

Secretary cites Doe v. DiGenova, 779 F.2d 74 (D.C. Cir. 1985), as standing for the proposition

that “a routinely issued subpoena does not overcome the Privacy Act’s prohibition on disclosure 

without consent.” Sec’y Resp. at 4. However, that case concerned a grand jury subpoena. As 

explained by the D.C. Circuit, that particular type of subpoena does not fall under § 552a(b)(11) 

because it does not necessarily originate with a court of competent jurisdiction, as it can be 

issued by a prosecutor without an agency head, grand jury, or judge reviewing it to ensure that 

the relevant privacy interests are being carefully considered and weighed against the need for 

information. 779 F.2d at 79-85. By contrast, the subpoena in question here was issued by this 

Court with the stated intent of reviewing the subpoenaed records in camera before distributing 

the releasable portions. The Privacy Act does not bar disclosure under these circumstances. 

The Secretary also references FOIA in its response to the subpoena and cites FOIA 

Exemptions 7C and 7D, 5 U.S.C. § 552(b)(7)(C)-(D), as justification for refusing to produce the 

two interview statements identified as Exhibits 3 and 8 in its FOIA response to the Respondent. 

To the extent that the Secretary relies on the FOIA exemptions to establish a discovery 

privilege, this reliance is misplaced. See Friedman v. Bache Halsey Stuart Shields, Inc., 738 F.2d 

1336, 1344 (D.C. Cir. 1984). FOIA was enacted to require agencies to disclose records to the 

public, not to create new privileges for agencies to withhold information in contexts where a 

privilege would not otherwise exist. As the D.C. Circuit explained in Friedman v. Bache Halsey 

Stuart Shields, information unavailable under FOIA is not necessarily unavailable through 

discovery, in which context the litigant’s need is a key factor that must be weighed against the 

government’s interest in confidentiality. Id. In addition to litigants’ needs, discovery implicates 

the court’s interest in developing a complete and accurate record. Courts have the ability to 

pursue this interest while still protecting confidential information by conducting in camera 

review and sealing records upon request. 

Although the FOIA exemptions are not discovery privileges, they are relevant to this case 

in that they reflect a Congressional preference for cautious treatment of certain types of sensitive 

government information. Exemptions 7C and 7D provide that the following documents need not 

be disclosed in a FOIA response: 

records or information compiled for law enforcement purposes, but only to the 

extent that the production of such law enforcement records or information ... (C) 

could reasonably be expected to constitute an unwarranted invasion of personal 

privacy, [or] (D) could reasonably be expected to disclose the identity of a 

confidential source, including a State, local, or foreign agency or authority or any 

private institution which furnished information on a confidential basis. 

5 U.S.C. § 552(b)(7). 

Presumably, the two documents that the Secretary has refused to release are the 

memoranda of interviews of the Complainant and either a confidential miner informant or an 

MSHA employee. Both interviewees have a privacy interest in nondisclosure of personal 

38 FMSHRC Page 863
information such as addresses and phone numbers, and any interviewee other than the 

Complainant has an interest in nondisclosure of his identity and his connection with the 

investigation. However, this does not provide a basis for the Secretary to withhold the documents 

in their entirety. See Justice v. MSHA, Civil Action No. 2:14-14438, slip op. at 30-31 (S.D.W. 

Va. July 31, 2015) (unpublished order) (citing Nation Magazine, Washington Bureau v. U.S. 

Customs Serv., 71 F.3d 885, 896 (D.C. Cir. 1995)). In Justice v. MSHA, which concerned a FOIA 

suit filed by a coal miner to compel MSHA to release the entire investigative file related to his 

discrimination complaint, MSHA withheld several memoranda of interviews under color of 

Exemptions 5 and 7C. In discussing Exemption 7C, the District Judge weighed MSHA’s interest 

in maintaining the privacy of the individuals mentioned in the file against the public interest in 

disclosure, which he characterized as an overriding interest in shedding light on MSHA’s 

performance of its statutory duties. Id., slip op. at 27-32. He concluded that MSHA’s general 

claim of exemption under 7C failed to meet the agency’s burden of justifying its wholesale 

withholding of the interview memoranda, and the appropriate resolution was to submit the 

documents to the court for in camera review and release of segregable non-exempt information. 

Id. at 32-33. This makes sense, because withholding entire documents “reach[es] far more 

broadly than is necessary to protect the identities of individuals mentioned” therein, and is 

“contrary to FOIA’s overall purpose of disclosure.” Nation Magazine, 71 F.3d at 896. Personally 

identifying information should be redacted from FOIA-responsive documents under Exemptions 

7C and 7D. However, segregable factual information within the documents is not subject to those 

exemptions and must be disclosed. 

This case, unlike Justice v. MSHA, is not a FOIA case. Exemptions 7C and 7D identify 

relevant privacy interests. However, because this is a discovery matter, these privacy interests 

must be balanced against the litigants’ and the Court’s strong interest in developing a complete 

record in this particular case. When a dispute arises over the balancing of these interests, as it has 

in this case, the appropriate remedy is in camera review. If there are overriding privacy concerns 

or the identity of a miner witness is protected under 29 C.F.R. § 2700.62, I will make that 

determination after reviewing the documents and will release the miner’s identity at the 

appropriate time as prescribed by that rule. If the Complainant’s interview statement is one of the 

withheld documents, there is nothing that prevents the disclosure of this document under the 

rules of evidence and the Respondent is entitled to it. 

The Secretary of Labor is hereby ORDERED to produce the two interview statements 

for in camera review by submitting them directly to me by mail marked “Private, Judge’s Eyes 

Only” within ten (10) days of the date of this order. 

/s/ Priscilla M. Rae 

Priscilla M. Rae 

Administrative Law Judge 

38 FMSHRC Page 864
Distribution: 

Jason Grover, Esq., Office of the Solicitor, U.S Department of Labor, 201 12th Street South, 

Arlington, VA 22202-5452 

Arthur M. Wolfson, Esq., Jackson Kelly PLLC, Three Gateway Center, Suite 1500, 401 Liberty 

Avenue, Pittsburgh, PA 15222 

L. Hugh Kemp, Esq., 100 North Selvidge Street, Suite B, Dalton, GA 30720

38 FMSHRC Page 865
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 

April 8, 2016 

ORDER ON COMPLAINANT’S MOTION TO AMEND TO ADD VARIOUS 

WHITEBOX ENTITIES AS PARTIES 

Before: Judge Moran 

Complainant Daniel Lowe has filed a motion to amend his original complaint “so as to 

join ‘Whitebox Entities’ to include Whitebox Asset Management, Whitebox Advisors LLC, 

Wbox 2014-1 Ltd., Jerritt Canyon Gold, LLC,1 Sprott Mining Inc., and Eric Sprott as successors 

in interest to Veris Gold USA Inc.” Mot. to Deny “Whitebox Entities” Contest of Jurisdictional 

Authority and Mot. to Deny “Whitebox Entities” Mot. Regarding Compl’t’s Mot. to Amend at 1 

(“Lowe Response”); see also Mot. to Amend and Mot. for Expedited Consideration at 1. 

Following that motion, on February 16, 2016, counsel on behalf of the Whitebox Entities 

(“Whitebox Counsel”) filed a Special Limited Appearance to contest this Court’s jurisdiction and 

to challenge whether the Court can attach liability against the parties Lowe wishes to join for the 

acts of discrimination against Lowe committed by Veris Gold USA, Inc. (“Veris Gold”). The 

Court actually received Lowe’s response on February 8, 2016, prior to receiving Whitebox 

Entities’ response. Thereafter, on February 19, 2016, Whitebox Counsel also filed a sur-reply. 

Lowe then filed a response to the sur-reply. 

For the reasons which follow, the Court holds that it has jurisdiction to determine if other 

entities may be added as successors in interest, but that there is insufficient information in the 

1

 Lowe’s Motion to Amend asserts that Jerritt Canyon Gold, LLC, Whitebox Asset 

Management, Whitebox Advisors LLC, Wbox 2014-1 Ltd., Sprott Mining Inc., and Eric Sprott 

are the purchasers of Veris Gold Inc. and the successors in interest to Veris and that the three 

principals of Jerritt Canyon Gold LLC are Gregory Gibson, Jacob Mercer, and Erik Sprott, as its 

managers. Mot. to Amend 3. 

DANIEL B. LOWE, 

 Complainant, 

v. 

VERIS GOLD USA, INC., 

and 

JERRITT CANYON GOLD, LLC, 

 Respondents. 

DISCRIMINATION PROCEEDING 

Docket No. WEST 2014-614-DM 

WE-MD 14-04 

Mine: Jerritt Canyon Mill 

Mine ID: 26-01621 

38 FMSHRC Page 866
record to make such a determination and that discovery may be had in furtherance of resolving 

those issues.2

Successorship Basics 

The Commission has recognized that, in certain cases, the imposition of liability on a 

successor is appropriate. Munsey v. Smitty Baker Coal Co., Inc., 2 FMSHRC 3463 (1980), aff’d 

in part, rev’d in part sub nom. Munsey v. FMSHRC, 701 F.2d 976 (D.C. Cir. 1983); Sec’y of 

Labor on behalf of Corbin v. Sugartree Corp., 9 FMSHRC 394 (Mar. 1987), aff’d sub nom.

Terco v. FMSHRC, 839 F.2d 236 (6th Cir. 1987). 

In Secretary of Labor on behalf of Keene v. S&M Coal Company, Inc., 10 FMSHRC 

1145 (Sept. 1988), the Commission noted that in 

the cases in which the Commission and the courts have found successorship 

liability there has been some type of transaction (a “transactional element”) with 

respect to the business between the predecessor and the entity against which 

liability is being asserted and/or there has been a continuation of activity at the 

predecessor’s site. In Munsey, supra, for example, the company that was held 

liable as a successor had acquired leases and mining equipment from the former 

employer, substantially replacing the predecessor’s operation. Similarly, in Terco, 

supra, successorship liability attached because there was substantial continuity of 

business interests at the same site. 

Id. at 1152. 

The Commission then observed that 

[a]ssumption of the predecessor’s position by the successor underlies the

successorship cases. For example, in Wiley & Sons v. Livingston, 376 U.S. 543

(1964), successorship was found where the predecessor company was merged into

the acquiring company, a process that also involved the wholesale transfer of the

predecessor’s employees to the successor. The Court observed that for an

employer to be considered a successor, there must be a substantial continuity in

the identity of the business enterprise before and after a change. Wiley, supra, 376

U.S. at 551. Another example of the acquisition element underlying these cases

can be found in Golden State Bottling Co. v. NLRB, 414 U.S. 168, (1973) which

involved a bona fide purchase of a company that had committed an unfair labor

practice. Issuance of a reinstatement and back-pay order was upheld against the

2

 This Order parallels the March 21, 2016, Order issued by this Court in Matthew 

Varady’s discrimination complaint against Veris, WEST 2014-307-DM. Lowe and Varady, both 

non-attorneys, with each presently proceeding pro se, have assisted one another in their 

respective filings. In this instance their motions to amend, seeking to add Jarrett Canyon Gold as 

a party were nearly identical submissions. Accordingly, except for minor adjustments, this Order 

tracks the substance of Varady Order. 

38 FMSHRC Page 867
acquiring company, which occupied the site where the unfair practice had 

occurred. 

Id. 

Clearly, the “transactional element,” at least as to Jerritt Canyon Gold, LLC, (“JCG”) has 

been conceded. This led to the Court’s determination adding that entity as a Respondent in its 

March 14, 2016, Order. See Order on Compl’t’s Mot. to Amend, Mar. 14, 2016. Whether other

entities may be shown to have such transactional elements, and therefore be added as successors, 

is a subject of this Order, though, as explained below, conclusions about the status of those 

entities are not presently possible. 

Apart from determining if a company occupies the position of a successor is the separate 

issue of determining whether such a successor should be liable to remedy the unlawful 

discrimination of its predecessor. For that determination, the Commission has followed the 

courts and has approved consideration of nine specific factors: 

(1) whether the successor company had notice of the charge, (2) the ability of the 

predecessor to provide relief, (3) whether there has been a substantial continuity 

of business operations, (4) whether the new employer uses the same plant, (5) 

whether he uses the same or substantially the same work force, (6) whether he 

uses the same or substantially the same supervisory personnel, (7) whether the 

same jobs exist under substantially the same working conditions, (8) whether he 

uses the same machinery, equipment and methods of production and (9) whether 

he produces the same products. 

Keene, 10 FMSHRC at 1153 (quoting Munsey, 2 FMSHRC at 3465-66). 

The Commission has further noted that 

the key factor for determining successorship liability is whether there is a 

substantial continuity of business operations. This question is fact intensive and 

must be resolved on a case-by-case basis. Howard Johnson, Inc. v. Detroit Local 

Joint Executive Board, 417 U.S. 249, 256 (1974). In Sugartree, 9 FMSHRC at 

398, the Commission emphasized that factors (3) through (9) provide the 

framework for analyzing whether there is a continuity of business operations and 

work force between the successor and its predecessor. 

Id. (citing Munsey, 2 FMSHRC at 3467; Sugartree, 9 FMSHRC at 398).

Similarly, in Secretary of Labor on behalf of Zambonino v. Colonial Mining Materials, 

LLC, 36 FMSHRC 1239 (May 2014) (ALJ), an administrative law judge determined a mine 

operator was a successor and liable for the complainant’s termination. That judge noted that in 

Golden State Bottling Co., Inc. v. NLRB, 414 U.S. 168 (1973), the Supreme Court determined 

that 

the successor company acquired the predecessor with notice of unfair labor 

practice litigation, and continued the business without substantial interruption or 

38 FMSHRC Page 868
change in operations, employee or supervisory personnel, [and then] upheld the 

Board’s order requiring the successor to reinstate with back-pay an employee 

discharged by the predecessor company. Both companies were held jointly and 

severally liable for the back-pay award. 

Zambonino, 36 FMSHRC at 1259 (emphasis added). 

The judge took note that the Supreme Court also expressed that 

[t]o further the public interest involved in effectuating the policies of the Act and

achieve the ‘objectives of national labor policy, reflected in established principles

of federal law,’ we are persuaded that one who acquires and operates a business

of an employer found guilty of unfair labor practices in basically unchanged form

under circumstances which charge him with notice of unfair labor practice

charges against his predecessor should be held responsible for remedying his

predecessor’s unlawful conduct.

‘In imposing this responsibility upon a bona fide purchaser, we are not 

unmindful of the fact that he was not a party to the unfair labor practices and 

continues to operate the business without any connection with his predecessor. 

However, in balancing the equities involved there are other significant factors 

which must be taken into account. Thus, ‘It is the employing industry that is 

sought to be regulated and brought within the corrective and remedial provisions 

of the Act in the interest of industrial peace.’ When a new employer is substituted 

in the employing industry there has been no real change in the employing industry 

insofar as the victims of past unfair labor practices are concerned, or the need for 

remedying those unfair labor practices. Appropriate steps must still be taken if the 

effects of the unfair labor practices are to be erased and all employees reassured 

of their statutory rights. And it is the successor who has taken over control of the 

business who is generally in the best position to remedy such unfair labor 

practices most effectively. The imposition of this responsibility upon even the 

bona fide purchaser does not work an unfair hardship upon him. When he 

substituted himself in place of the perpetrator of the unfair labor practices, he 

became the beneficiary of the unremedied unfair labor practices. Also, his 

potential liability for remedying the unfair labor practices is a matter which can be 

reflected in the price he pays for the business, or he may secure an indemnity 

clause in the sales contract which will indemnify him for liability arising from the 

seller’s unfair labor practices.’ 

Id. at 1260 (quoting Golden State Bottling, 414 U.S. at 171 n.2 (quoting Perma Vinyl Corp., 164 

N.L.R.B. 968 (1967) (footnotes omitted), enforced sub nom., U.S. Pipe and Foundry Co. v.

NLRB, 398 F.2d 544 (5th Cir. 1968))).

38 FMSHRC Page 869
The Motion and Responses

Lowe’s Motion to Amend3 states that Veris Gold began its bankruptcy proceeding in 

June 2014, which was after Lowe had filed his discrimination complaint in November 2013. 

Mot. to Amend 1-2. Lowe asserts that 

Jerritt Canyon Gold LLC, Whitebox Advisors LLC, Sprott Mining Inc., and Eric 

Sprott had knowledge of the Complainant’s discrimination action before the 

Commission because Jerritt Canyon Gold LLC . . . [was] represented by the same 

law firm as Veris Gold USA Inc., Goicoechea, Di Grazia, Coyle and Stanton, 

Ltd., and in particular both were represented by Attorney David M. Stanton. 

Id. at 4. Lowe adds that “[a] business filing with the State of Nevada – Secretary of State’s 

Office filed on June 9, 2015 states that the age of the company, Jerritt Canyon Gold LLC., was 4 

months old,” and Lowe therefore contends that “Jerritt Canyon Gold LLC., had been [in] 

operation since March of 2015 and that the Registered Agent was the law firm of Goicoechea, Di 

Grazia, Coyle and Stanton, Ltd.” Id. at 4-5. 

The motion asserts that 

[t]here has been a 100 % continuity of business operations between Veris Gold

USA Inc. and Jerritt Canyon Gold LLC, Whitebox Advisors LLC, Sprott Mining

Inc., and Eric Sprott. The same surface mill has operated without any hiatus by

Jerritt Canyon Gold LLC, Whitebox Advisors LLC, Sprott Mining Inc., and Eric

Sprott. Jerritt Canyon Gold LLC, Whitebox Advisors LLC, Sprott Mining Inc.,

and Eric Sprott are engaged in all of the exact same operations (crushing,

screening and processing gold ore) as Jerritt Canyon Gold LLC, Whitebox

Advisors LLC, Sprott Mining Inc., and Eric Sprott use the exact same equipment.

Id. at 5. 

As to this assertion, the Court would observe that Complainant is making allegations in 

support of his claim that the parties he wishes to add are successors. The Court notes that with its 

previous order, issued March 14, 2016, Jerritt Canyon Gold, as the acknowledged new owner of 

the Jerritt Canyon Mill, has been added as a party. However, as to the other entities and 

individuals Complainant seeks to add, Complainant apparently does not realize that his 

assertions about their involvement with Jerritt Canyon Gold, and previously with Veris Gold, are 

not evidence of such claims. Instead, evidence to support Lowe’s claims about the relationship of 

those other entities and individuals with Veris Gold and JCG must be established. Discovery is 

the initial means to learn about the nature of the relationship of those other entities and 

individuals with Veris Gold and JCG. Discovery vehicles include official records, requests for 

admissions, interrogatories, stipulations, and depositions. 

3

 Complainant Lowe’s motion also requests expedited consideration. As this case is one 

of many dockets before the Court and as the Court has already issued many rulings regarding 

Lowe’s Complaint, the request to expedite is DENIED. 

38 FMSHRC Page 870
Complainant also asserts that 

[t]he vast majority of Jerritt Canyon Gold LLC’s employees are all former Veris

Gold USA Inc.’s employees and are engaged in the same types of job

classifications as they were when they worked for Veris Gold USA Inc. The

transfer from one company to the other is likened to flipping a light switch at the

time of the sale date. At the stroke of midnight all to the Veris Gold USA Inc.’s

employees became Jerritt Canyon Gold LLC’s employees with a very minor

exception of less than approximately five employees. According to a local

newspaper article the number of employees effected [sic] in the transfer of

ownership was approximately 400 employees.

Mot. to Amend 5-6. This assertion is also not evidence. 

The same deficiencies exist with regard to items 6 through 9 of Complainant’s Motion; 

they are assertions of the claims made in those items, not evidence thereof.4 See id. at 6. 

The Court has urged Complainant, following the determination that he was discriminated 

against by Veris Gold, to make efforts to find legal counsel in support of his efforts to establish 

that these various entities should be determined to be successors and to present a well-founded 

claim for his submission of damages. It again urges Complainant to make efforts to secure legal 

counsel. While retaining counsel would not assure a successful outcome, it can be stated with 

some confidence that continuing to proceed without such counsel, in these complex legal 

matters, presents a disadvantage. The Court will not, and cannot, act as if it were Complainant’s 

attorney in fact, as the Court cannot operate in such dual, and conflicting, roles. Discovery and 

how to conduct it effectively are Complainant’s burdens. 

Further, it is difficult for the Court to appreciate why such efforts to obtain legal counsel 

have apparently not been made, as Complainant has a judgment of discrimination in hand and 

attorney’s fees would be recoverable for the efforts to hold a successor liable, if such attorney is 

successful in that effort. Such attorney’s fees would not diminish the recovery of the 

respondent’s damages at all, as they are a separate line item for a respondent’s damages in 

discrimination claims. However, the Court is not suggesting that Complainant retain an attorney 

on a fee basis, as the cost would be prohibitive and the final outcome remains uncertain. Another 

arrangement would be on a contingency basis under which the attorney would be able to file for 

such attorney’s fees plus be entitled to a share of any damages. These are matters for 

Complainant and an attorney to work out, not the Court. The benefit for Complainant would be 

having the expertise and skill provided by legal counsel. 

The Court will now address the responses from “the Whitebox Entities,” as provided 

through the limited appearance of its counsel, the law firm of Fennemore Craig, P.C. 

4

 The motion concludes with Complainant’s citation to case law, which he maintains 

support his claim that these entities should be deemed successors. Such legal conclusions cannot 

come about until the facts supporting such a claim have been adduced. 

38 FMSHRC Page 871
The “Whitebox Entities,” which are defined in counsel’s response as Whitebox Asset 

Management, Whitebox Advisors LLC, WBox 2014-1 Ltd, and any other Whitebox entity or 

individual including Jacob Mercer and Jeff Sterling, assert that the Whitebox Entities did not 

purchase any of assets of Veris Gold, and do not operate the Jerritt Canyon Gold mine or mill. 

Special Limited Appearance on Behalf of Whitebox Entities to Contest Jurisdiction in Resp. to 

ALJ’s Order Regarding Sec’y’s Mot. for Reconsideration and Compl’t’s Mot. to Amend at 1 

(“Whitebox Response”). 

The Response maintains that the Whitebox Entities had no involvement with Debtor 

Veris Gold entities5

 prior to filing of bankruptcy proceedings on June 9, 2014; were not creditors 

or equity holders of Veris Gold entities; and were not officers, directors, or control persons of 

Veris Gold entities. Id. at 2. Jerritt Canyon Gold, LLC, was the purchaser of Veris Gold’s assets. 

Id. However, the Response relates that “WBox 2014-1 Ltd.” loaned $12 million to Veris Gold 

for “their post-petition operations.” Id.

The Response then identifies Deutsche Bank as the “first position secured creditor” of the 

debtors, and informs that the bank declined to advance funds to keep the debtors in business, 

post-petition.6 Id. The Response then asserts that post-petition financing was approved by 

bankruptcy courts around October 6, 2014, with WBox 2014-1 Ltd. loaning $12 million to the 

debtors, then increasing that loan to $15 million in May 2015, secured by a “first position 

priming lien” on all of debtors’ assets. Id. The recounting of events by the Response then informs 

that the sale process was approved in November 2014, but no buyer was found. Id. Following 

that, the Response advises that WBVG LLC, an affiliate of WBox 2014-1 Ltd, made an offer to 

purchase Veris Gold assets and after notice and hearing, that sale was approved. Id. at 2-3. 

Thereafter, WBVG LLC changed its name to Jerritt Canyon Gold LLC. Id.

The Response further asserts that Complainant had notice of Veris Gold’s bankruptcy, 

both actual and constructive. Id. at 3. The Response states written notice was given in the Sale

Motion and hearing and also in the notice of entry of sale order in June 2015. Id. As to the 

written notice given in the Sale Motion and hearing, the Response, pointing to Paragraph G of 

the Sale Order, advises that the order found that “the Secretary of Labor, Inspector of Mines, 

EEOC, MSHA and OSHA and any known claimants that have asserted Claims against the 

 5

 The bankruptcy proceedings concerned not only Veris Gold USA, Inc., but also Veris 

Gold Corp., Queenstake Resources, Ltd., and Ketza River Holdings, Ltd. (collectively, “Veris 

Gold entities”). See Whitebox Resp. Ex. A, at 1. 

6

 The Response also asserts that Deutsche Bank, with $80 million in secured claims, and 

Small Mine Development, with an asserted $40 million of secured claims, and various 

unidentified “environmental creditors,” asserting $20 million in penalties, all received no funds 

for the payment of their claims from the sale of the assets. Whitebox Resp. 3. This seems 

unimaginable, if the Response is suggesting that two significant creditors, with $120 million in 

secured claims, walked away from the bankruptcy proceeding with nothing. Whitebox Counsel 

is directed by the Court to address this issue.

38 FMSHRC Page 872
Debtors were given actual notice of the Sale Motion and hearing.” Whitebox Resp. 3. It is not 

clear that Complainant was one of those known claimants given actual notice.7

 

The Response then points to the Sale Order and its statement that 

[t]he transactions contemplated under the Agreement do not amount to a

consolidation, merger or de facto merger of the Purchaser and the Debtors and/or

the Debtors’ estates, there is not substantial continuity between the Purchaser and

the Debtors, there is no common identity between the debtors and the Purchaser,

there is no continuity of enterprise between the Debtors and the Purchaser, the

Purchaser is not a mere continuation of the Debtors or their estates, and the

Purchaser does not constitute a successor to the Debtors or their estates.

Whitebox Resp. 4 (quoting Sale Order at 9, In re Veris Gold Corp., No. 14-51015-gwz (Bankr. 

D. Nev. June 4, 2015), ECF No. 318 [hereinafter “Sale Order”]).

Thus, the Purchaser and Debtors happily agreed that none of the factors which would 

point toward a successorship were present. This Court would be surprised to learn that the 

bankruptcy courts engaged in any detailed review of those claims. Rather, they more likely 

accepted in good faith that those representations were made to them in good faith and grounded 

in fact, as opposed to being mere assertions. As mentioned in its Order of March 14, 2016, it is 

this Court’s understanding that bankruptcy courts of necessity rely upon the representations of 

the parties and the monitor. Depending upon what is learned about the relationships between 

Veris Gold, Jarrett Canyon Gold, the Whitebox Entities, and the various individuals who may 

have commonality among those enterprises, the bankruptcy courts may have been misled.8

 

7

 It does appear to be admitted that the Complainant filed a Motion to stay the Sale on 

June 15, 2015, that the motion was denied and that Complainant did not appeal the Sale order. 

Whitebox Resp. 3-4. 

8

 In the Court’s estimation, some aspects of the bankruptcy proceeding involving at least 

the monitor, Veris Gold, and Jerritt Canyon Gold are disconcerting. The Court’s concerns, which 

are not yet conclusions or findings, stem in part from yet another discrimination action against 

Veris in which there was a settlement agreement between Veris and discrimination complainant 

Jennifer Morreale. A Commission Order involving that case informs there was a settlement 

agreement in February 2015 with Morreale within which agreement “Veris Gold represented that 

it had received approval from a bankruptcy monitor to make the [settlement] payment, as the 

operator had previously filed U.S. Chapter 15 bankruptcy proceedings concurrent with Canadian 

bankruptcy filings and was subject to the financial oversight of a bankruptcy monitor.” Sec’y of 

Labor on behalf of Morreale v. Veris Gold USA, Inc., 38 FMSHRC ___, slip op. at 2, No. WEST 

2014-793-DM (Mar. 8, 2016) (emphasis added). However, Morreale was never paid, the 

settlement agreement never lived up to, and in June 2015, the presiding judge in that case learned 

“that the bankruptcy monitor overseeing the bankruptcy proceedings had withheld payment to 

both the Secretary [of Labor] and Ms. Morreale pending the resolution of an asset sale of the 

mine by the operator to a separate entity, Jerritt Canyon Gold, LLC.” Id. Given the above- 

(continued...) 

38 FMSHRC Page 873
Further, a case such as this lays bare the problems identified by the law review 

commentaries when 11 U.S.C. § 363(f) proceedings supplant those brought under § 1141(c), 

despite the former’s narrower language and the absence of the procedural protections which are 

available under the latter, all as cited in the Court’s previous Order on Complainant’s Motion to 

Amend, issued March 14, 2016. For example, if through discovery, it is shown that there are 

individuals who had financial or management interests in Veris, Jarrett Canyon Gold and/or the 

Whitebox Entities, such linkage could be troublesome and point to the appropriateness of 

holding others accountable as successors. 

As if the foregoing proclamations advanced by the Response were not enough, the 

Response then lards: 

Furthermore, Paragraph 38 of the Sale Order concludes that there is no 

“successor” liability as to the Purchaser. The sale was free and clear of any 

successor liability. [The Sale Order] expressly rules: . . . The Purchaser is not a 

“successor” to the Debtors or their estates by reason of any theory of law or 

equity, and the Purchaser shall not assume, nor be deemed to assume, or in any 

way be responsible for any liability or obligation of any of the Debtors and/or 

their estates including, but not limited to, any bulk sales law, successor liability, 

transferee liability, derivative liability, vicarious liability or any other liability or 

responsibility of any kind or character for any Liens, Claims, or Interests against 

the Debtors or against an insider of the Debtors, or similar liability except as 

otherwise expressly provided in the Agreement, whether known or unknown as of 

the Closing, now existing or hereafter arising, fixed or contingent, asserted or 

unasserted, or liquidated or unliquidated. 

Whitebox Resp. 4 (emphasis added) (footnote omitted) (quoting Sale Order at 21). 

Though the above language crafted by the purchaser and debtor would seem to have 

created an insurmountable barrier to successorship claims, that is, if one accepts the lawyering 

employed and disregards due process concerns and the issues concerning the propriety of using 

§ 363, instead of § 1141(c), additional barriers were nevertheless employed. Paragraphs N and Q

of the Sale Order provide that the term “claims” captures successor or transferee liability and that

8

 (...continued) 

mentioned dates, it can be stated with some confidence that the bankruptcy monitor must have 

been fully aware of Matthew Varady’s discrimination complaint in Docket No. WEST 2014-

307-DM, and been aware of, and likely approved, Veris’ employing legal counsel to defend that

complaint during the June 8 through 10, 2015, hearing held before this Court in Elko, Nevada.

Similarly the monitor was likely fully aware of the present complaint brought by Lowe against

Veris, which was heard by this Court on June 18, 2015, and that the monitor approved the legal

defense fees associated with that matter as well, until it became clear that Veris would not

prevail in either matter. Thus, it seems reasonable to conclude that money was flowing freely for

the legal defense of Veris in both the Varady and Lowe matters, but stopped once it became clear

that Veris would be held accountable for its discrimination against those miners. The Court

doubts that the bankruptcy courts were fully apprised of these doings.

38 FMSHRC Page 874
the parties would not have entered into their agreement if the purchaser acquired the property 

with such claims. Id. at 5. 

Even with that, more efforts to protect against such claims were layered onto those 

already described, as the Response then points to Paragraph 39 of the Sale Order. That paragraph 

lists, in the fashion employed by the other provisions, just discussed, any other conceivable soul9

as being “forever barred, estopped and permanently enjoined from asserting, prosecuting or 

otherwise pursuing such Liens, Claims, or Interests . . . against the Purchaser or any affiliate, 

successor or assign thereof, or the Assets.” Id. at 5 (quoting Sale Order at 21). 

The Response concludes with the assertion that only the U.S. Bankruptcy Court can 

address the issues raised by the Complainant and that this Court has no jurisdiction over the 

Whitebox Entities. Yet, while asserting that this Court has no jurisdiction, Whitebox 

simultaneously requests attorneys’ fees and costs for having to file its response. Id. at 6. 

The request for attorneys’ fees is DENIED. 

Subsequent to its Response, the Whitebox Entities then filed a Special Limited 

Appearance on Behalf of Whitebox Entities for Sur Reply to Complainant’s Motion to Amend 

(“Whitebox Sur-reply”). For the most part, the Sur-reply reasserts its previous arguments or 

those made by Jarrett Canyon Gold in its responses. These include the claim that this Court has 

no jurisdiction over successorship vis-à-vis findings of Mine Act discrimination. Whitebox Surreply 1-2. Again, the Sur-reply from the Whitebox Entities points to the Order Approving the 

Sale. However, regarding that Order Approving Sale, through the process of discovery, as 

conducted by Complainant, not the Court, it is necessary to learn who drafted the Order 

9

 Displaying lawyering that frequently causes public revulsion, in stating that “to make 

sure the Purchaser [is] protected from further actions,” the Whitebox Entities Response points to 

this passage from Paragraph 39 of the Sale Order which provides: 

Except to the extent expressly included in the Assumed Liabilities or to 

enforce the Agreement or Permitted Encumbrances, pursuant to Bankruptcy Code 

Sections 105 and 363, all persons and entities, including but not limited to, the 

Debtors, the Monitor, all debt security holders, equity security holders, the 

Debtors’ employees or former employees, governmental, tax and regulatory 

authorities, lenders, parties to or beneficiaries under any benefit plan, trade and 

other creditors asserting or holding Liens, Claims, or Interests of any kind or 

nature whatsoever against, in or with respect to any of the Debtors or the Assets 

(whether legal or equitable, secured or unsecured, matured or unmatured, 

contingent or non-contingent, senior or subordinated), arising under or out of, in 

connection with, or in any way related to the Debtors’ business prior to the 

Closing Date or the transfer of the Assets to the Purchaser, shall be forever barred, 

estopped and permanently enjoined from asserting, prosecuting or otherwise 

pursuing such Liens, Claims, or Interests whether by payment, setoff, or 

otherwise, directly or indirectly, against the Purchaser or any affiliate, successor 

or assign thereof, or the Assets. 

Whitebox Resp. 5 (quoting Sale Order at 21-22). 

38 FMSHRC Page 875
approving the sale, the date that order was presented to the court(s), the circumstances of that 

presentation, including the party or parties who presented the Order to such bankruptcy court(s), 

the parties present at that presentation, the record, including any transcripts, of any inquiry 

between the bankruptcy court(s) and those presenting the Order for the courts’ approval, whether 

this occurred only by written submissions or through a hearing, if any hearing in fact occurred, 

and the date the Order was approved. 

The Whitebox Entities repeat that they are not “miners, operators, or employers that fall 

within the definitions and jurisdiction of FMSHA.” Whitebox Sur-reply 2. But, they admit that 

“WBox 2014-1 Ltd. owns 20% of the membership interest [which the Sur-reply characterizes as 

analogous to 20% shareholder of a corporation] in Jerritt Canyon Gold, LLC, not the assets.”10

Whitebox Sur-reply 3. In this regard, the Sur-reply contends that 

the Whitebox Entities did not purchase, do not have title to and do not own any of 

the assets previously owned by Veris Gold, do not operate the mine or mill 

previously operated by Veris Gold and do not employ any employees previously 

employed by Veris Gold at the mine or mill [and that] . . . [t]here are no facts or 

law that could be used to find or conclude that any of the Whitebox Entities 

are the successor of Veris Gold. 

Id. at 2 (emphasis added). The Court agrees with the last quoted statement but adds the important 

qualifier, “at least for now.” This is because, until discovery occurs, a definitive statement about 

that claim cannot be made. 

The Sur-reply then speaks to the role of Jacob Mercer, described as a manager of Jerritt 

Canyon Gold, LLC, and states that being a manager or a member of a limited liability company 

does not make such a person liable for the debts or obligations of such a company. Id. at 3-4. The 

balance of the Sur-reply repeats previous contentions and concludes with the assertion that 

Nevada common law is to be applied to determine successor liability and that such state law does 

not speak to the issue of whether a member or manager of a purchaser would be subject to such 

liability as a successor.11 Id. at 4-5. 

Lowe filed a short response to the Whitebox Sur-reply, asserting that the Mine Safety and 

Health Review Commission has the final jurisdictional authority in this matter, not the United 

States Bankruptcy Court. Lowe’s response admits that he did not appeal the bankruptcy court’s 

adverse ruling to his motion to stay the sale, but stated that “[o]nce denied there was nothing new 

to provide to the Bankruptcy Court where a reasonable and prudent person could believe that 

10 The Sur-reply adds that it is not correct that “one of the Whitebox Entities purchased 

purchased 20% of the assets and that Jerritt Canyon Gold LLC purchased 80%.” Whitebox Surreply 3. Instead, it is stated that WBox 2014-1 Ltd. owns 20% of the membership interest in 

Jerritt Canyon Gold LLC, which it characterizes as akin to 20% of the stock of a corporation. Id. 

11 As with its Response, the Whitebox Entities’ Counsel seeks attorney’s fees and costs 

for filing its Sur-reply. Consistent with the Court’s ruling in the Whitebox Entities’ Counsel 

seeking such fees for its Response, this request is similarly DENIED. 

38 FMSHRC Page 876
they could reasonably prevail and therefore no appeal was made.” Compl’t’s Reply to Resp’t’s 

“Sur Replay” at 3 (“Lowe Resp. to Sur-Reply”).

Discussion 

In order to determine the appropriate parties potentially to be added as successor entities 

and to determine if liability as successors is warranted, it is necessary to pull back the covers, so 

to speak, in order to fully understand the relationship(s), if any, between Jarrett Canyon Gold, the 

“Whitebox Entities,” Veris Gold, and the owners of those entities, in order to determine if they 

share common identities. This is a purpose of discovery, which the complainant is entitled to 

utilize. 

Commission Procedural Rule 56(b) states that “[p]arties may obtain discovery of any 

relevant, non-privileged matter that is admissible evidence or appears likely to lead to the 

discovery of admissible evidence.” 29 C.F.R. § 2700.56(b) (“emphasis added”). That provision 

allows parties to use depositions, written interrogatories, requests for admissions, and requests 

for documents or objects to obtain such information. A party served with interrogatories and 

requests for production must answer within 25 days of service and must state the basis for any 

objections in its answer. 29 C.F.R. §§ 2700.58(a), (c). 

In addition, it has also been observed that: 

[f]or procedural questions not regulated by the [Mine] Act, [the Commission’s]

Procedural Rules, or the Administrative Procedure Act,” the Federal Rules of

Civil Procedure guide Commission Judges as “far as practicable.” 29 C.F.R. §

2700.1(b). Guidance, though, does not require strict adherence. See Rushton

Mining Co., 11 FMSHRC 759, 765 (May 1989) (observing “[Commission]

Procedural Rule 1(b) reserves to the Commission considerable discretion in

deciding whether and to what extent it is to be ‘guided’ by a particular Federal

Rule of Civil Procedure.”)

Like the Commission's rules, the Federal Rules of Civil Procedure establish a 

broad discovery regime. See Schlagenhauf v. Holder, 379 U.S. 104, 114-15 

(1964) (“We enter upon determination of this construction with the basic premise 

‘that the deposition-discovery rules are to be accorded a broad and liberal 

treatment’ to effectuate their purpose that ‘civil trials in federal courts no longer 

need to be carried on in the dark.’”) (quoting Hickman v. Taylor, 329 U.S. 495, 

501, 507 (1947)). Notwithstanding recent changes intended to involve courts’ fine 

tuning of overabundant discovery, Federal Rule 26(b)(1) continues to authorize 

parties to “obtain discovery regarding any nonprivileged matter that is relevant to 

any party’s claim or defense--including the existence, description, nature, 

custody, condition, and location of any documents or other tangible things and the 

identity and location or persons who know of any discoverable matter.” Fed. R. 

Civ. P. 26(b)(1). Like the Commission’s rules, the Federal Rules’ regime also 

specifies that “[r]elevant information need not be admissible at the trial if the 

38 FMSHRC Page 877
discovery appears reasonably calculated to lead to discovery of admissible 

evidence.” 

Greyeagle Coal Co., 35 FMSHRC 3321, 3324 (Oct. 2013) (ALJ). 

The Way Forward 

The information provided by both sides on the issue of determining which entities, 

(beyond Jarrett Canyon Gold, which was added as a party pursuant to the Court’s March 14, 

2016, Order),12 may be considered as successors, has largely consisted of assertions. 

Complainant, it would seem, has two options. One is to pursue only Jarrett Canyon Gold to 

establish that entity as a successor to Veris Gold. The other would be to learn more about the 

various other entities Complainant believes should also be deemed as successors. Under both 

approaches, discovery needs to occur, beginning with the basics by Complainant seeking 

information from those entities, to include the identification all the owners of Veris Gold, its 

officers, the management individuals running that mine, and stockholders, and then seeking the 

same identifying information from each of the Whitebox Entities, including WBVG LLC, an 

affiliate of WBox 2014-1 Ltd, which later changed its name to Jerritt Canyon Gold LLC. There 

needs to be a full understanding of the various entities, including the individuals which embody 

and comprise them, all with the purpose of ascertaining if there are threads of commonality 

between some or all of those entities as, for example, if names associated with Veris Gold 

reappear with Jarrett Canyon Gold and the Whitebox Entities. If such commonalities appear, this 

would tend to show that the sale of Veris was not an arms-length transaction. If present, given 

that Veris was trying to avoid being saddled with a pattern of violations designation by MSHA 

not long before opting for bankruptcy and was also facing multiple discrimination claims, see

Varady v. Veris Gold USA, Inc., 37 FMSHRC 2037, 2050 (Sept. 2015) (ALJ), such relationships 

could be considered in evaluating successorship claims. 

 

 12 Complainant Lowe has provided business records from MSHA showing Jerritt Canyon 

Gold LLC as beginning operations at the Jerritt Canyon Mill on the day following the cessation 

of Veris Gold USA, Inc.’s operation at that Mill, with Veris Gold’s operation at that Mill ending 

on June 23, 2015, and Jerritt Canyon Gold LLC’s operation starting on June 24, 2015. Current 

Mine Information, Mine Safety and Health Administration, http://arlweb.msha.gov/drs/ 

drshome.htm#MID (input “2601621” in the MSHA Mine ID searchbox). The same MSHA 

records list “WBOX 2014-1 LTD; Eric Sprott” as the “Current Controller.” Id. Although Lowe 

also listed other sources as associated with Whitebox entities, including 

http://www.corporationwiki.com and LinkedIn, which list Jacob Mercer as the Senior Portfolio 

Manager at Whitebox Advisors LLC, and Greg Gibson and Eric Sprott, as managers for Jerritt 

Canyon Gold LLC, and http://www.bloomberg.com, which lists other information about 

executives for Whitebox Advisors, LLC, these sources and others of that ilk (e.g., Bizapedia, 

http://www.foxrothschild.com) are insufficient to establish the information contained in them for 

purposes of this proceeding. 

38 FMSHRC Page 878
Based upon the Court’s comments to the Response, supra, one would anticipate that 

Complainant would also want to discover a host of details such as the dates of bankruptcy court 

hearings, the participants in such hearings, the parties given notice of such hearings, and the 

transcripts of such proceedings before any bankruptcy court involved with this matter and the 

aforementioned relationships, if any, between Veris Gold, and the Whitebox entities, including 

Jarrett Canyon Gold LLC, formerly known as WBVG LLC.13

To that end, the Court ORDERS and DIRECTS Fennemore Craig, P.C., Whitebox 

Counsel, as the representative for the Whitebox Entities, including Whitebox Asset Management, 

Whitebox Advisors LLC, WBox 2014-1 Ltd, to provide the service address for those entities to 

the Court and Complainant within 10 days of the date of this Order to enable Complainant to 

pursue discovery of Jarrett Canyon Gold, the Whitebox Entities, and such individuals related to 

those entities. 

/s/ William B. Moran 

William B. Moran 

Administrative Law Judge 

Distribution: 

Mark Kaster, Dorsey & Whitney, LLP, 1500 South 6th Street, Minneapolis, MN 55402 

Annette Jarvis, Dorsey & Whitney, LLP, 136 South Main Street, Suite 1000, Salt Lake City, UT 

84101 

Daniel B. Lowe, P.O. Box 2608, Elko, NV 89801 

Cathy L. Reece, Fennemore Craig, P.C., 2394 East Camelback Rd., Suite 600, Phoenix, AZ 

85016 

Brad J. Mantel, Esq., Department of Labor, SOL – Regional Solicitor’s Office, 201 12th Street 

South – Suite 401, Arlington, VA 22202-5450 

13 Failure to respond to discovery requests may have consequences. The Commission’s 

rules require that discovery requests be responded to fully and in writing within 25 days of 

service unless the party initiating discovery agreed to a longer time. 29 C.F.R. § 2700.58. While 

that procedural rule does not itself deem unanswered requests as admitted, an order to compel 

discovery may follow and Federal Rule of Civil Procedure 36(a) provides additional guidance on 

this issue. See, e.g., Gray v. North Fork Coal Corp., No. KENT 2010-430-D, 2013 WL 4648492 

(FMSHRC Aug. 22, 2013); Sw. Quarry & Materials, 26 FMSHRC 116 (Feb. 2004) (ALJ); 

Hamilton v. Stone Mountain Trucking Co., 6 FMSHRC 2300 (Sept. 1984) (ALJ). 

38 FMSHRC Page 879
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 

April 11, 2016 

ORDER DENYING SECRETARY’S MOTION TO ADMIT INVESTIGATION REPORT

Before: Judge Barbour 

The issues in these consolidated contest and civil penalty proceedings arise out of an 

accident and presumed fatality that occurred on December 10, 2013, when an employee of 

Hunter Sand and Gravel, LLC (“Hunter” or “the company”) disappeared in the middle of the 

night from a dredge on the Ohio River. The employee was working on the dredge. He was last 

seen beginning a transfer from the dredge to a barge located immediately adjacent to the dredge. 

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 

38 FMSHRC Page 880
No one observed the employee fall into the river. However, the employee was wearing a cap 

lamp and a light was seen moving downstream from the dredge. A “man overboard” call was 

given and the operator of a tug that had pulled up to the dredge backed away and headed 

downstream toward the light. As the tug neared the light, it disappeared beneath the water. 

Neither the employee nor his body were found, and he has been declared dead. 

Following the disappearance, inspectors from the Secretary’s Mining Enforcement and 

Safety Administration (“MSHA”) conducted an investigation. The investigation resulted in the 

issuance of two citations and three orders to Hunter. One citation (No. 8728537), issued pursuant 

to section 104(d)(1) of the Federal Mine (the “Act”), 30 U.S.C. § 814(d)(1), states that the 

employee slipped and fell into the water while walking on the deck of the barge and charges the 

deck was covered with snow and ice and that Hunter did not sand, salt or clear the deck of the 

snow and ice in violation of 30 C.F.R. § 56.11016, a standard requiring regularly used walkways 

and travelways to be sanded, salted, and cleared of snow and ice as soon as practicable. Another 

citation (No. 8728540) issued pursuant to section 104(d)(1), charges that Hunter violated 30 

C.F.R. § 46.7(b) in that the snow and ice on the barge deck affected the safety of the employee 

and changed the nature of the task the employee was assigned, but that the company did not 

provide new task training to the employee to account for the changed conditions. An order issued 

pursuant to section 104(d)(1) (No. 8728538) asserts that the employee was not wearing a life 

jacket and charges the company with violating 30 C.F.R. §56.15020, a standard requiring the 

wearing of life jackets where there is a danger of falling into water. Another order (No. 8725539) 

issued pursuant to section 104(d)(1) asserts the company violated 30 C.F.R. § 56.15005 in that it 

failed to provide safety belts and lines for employees working on the barge where there was a 

danger of falling into the water.1

 Finally, in a citation issued pursuant to section 104(a) of the Act 

(No. 8728541), Hunter is charged with violating 30 C.F.R. § 56.18002(a) in failing to have a 

competent person examine a working place (presumably the barge) for conditions affecting 

miners’ safety and to do so at least once each shift. 

After the citations and orders were issued, the company contested the validity of each. 

MSHA then proposed aggregate civil penalties in the amount of $152,820 for the violations 

alleged in the contested citations and orders. 2 Hunter contested each of the proposed penalties. 

An extensive hearing followed on January 6 and 7, 2016, at which the issues before the 

court included the validity of the contested citations and orders, the existence of the alleged 

violations, the validity of the inspector’s findings relating to the alleged violations and the 

appropriateness of the proposed penalties. During the hearing the court listened to the testimony 

of four witnesses, two for each side. The court also admitted into evidence 22 documents and 

copies of photographs offered by the Secretary, including the report of MSHA’s investigation of 

the presumed accident and 16 documents offered by the company. 

During the first day of the trial Mr. Ed Jewell, an MSHA inspector who testified on 

behalf of the Secretary, was asked by the court whether to his knowledge any other government 

                                                             1

 The order was subsequently vacated by the Secretary. Tr. 290. 

2

 A penalty of $5,645 was proposed for the violation of section 56. 15005 alleged in 

Order No. 8725539. Vacation of the order means that the total of the proposed penalties is 

$147,175.

38 FMSHRC Page 881
agency investigated the purported accident and if so whether the agency issued a report. Mr. 

Jewell stated he did not know. Tr. 104-105. The following day, counsel for the Secretary advised 

the court that she spoke with representatives of the Coast Guard (“USCG”) several times and that 

she understood a report of the incident authored by the USCG was “forthcoming” but that the 

report “ha[d] not yet been finalized.” Tr. 292. The following exchange then took place: 

Attorney for the Secretary: I would be happy to provide a copy of [the USCG report] 

 to everyone when [it is finalized]. 

Attorney for Hunter: I know there is in . . . civil court proceedings a 

 federal statute that provides that Coast Guard 

 reports of investigations are not admissible. Whether 

 there is some exception that would apply here . . . I 

 really don’t know. 

The court: Well . . . I only expect that I would see it or get it if 

 both of you agree. 

Attorney for Hunter: Right. That’s right. 

The court: And we’ll see how that develops down the road.

Tr. 293-294. 

At the close of the hearing the court advised counsels that, “[T]he record is . . . complete 

with the possible exception of the [USCG] report, should that be an issue.” Tr. 489. The 

eventuality of which the court spoke became a reality when the Secretary received a copy of the 

report, moved for its admission and inclusion in the record (Motion to Admit [USCG] Report of 

Investigation (March 8, 2016)), and Hunter lodged objections. (Response to the Secretary’s 

Motion to Admit [USCG] Report of Investigation (March 29, 2016). 

The Secretary argues that the report is relevant and, as such, should be admitted. The 

Secretary notes that he contends the victim slipped on the snow, and possible ice, present on the 

walkways of the adjacent barge and fell to his death and that the conditions cited in the citations 

and orders “contributed to the fatality.” Motion 3. According to the Secretary, the report “is a 

publically available summary of the USCG’s investigation findings and, as such contains the 

USCG’s final conclusions as to the cause of the accident and what happened to [the victim]. As 

such, it makes the determination of a fact more probable than it would be without the evidence 

and is of consequence in a determination of the action.” Id. The Secretary also notes that as an 

official government document, the report is self-authenticating. Id. 3-4. Further, the Secretary 

cites the liberal nature of admissibility in administrative law cases, and argues that, “another 

agency’s perspective is relevant to the determination of the facts at issue in this matter.” Id. 5. 

Finally, the Secretary advises the court that it may take judicial notice of the facts contained in 

38 FMSHRC Page 882
the report as they are, according to the Secretary, “accurately and readily determined from 

sources whose accuracy cannot reasonably be questioned.” Id. 

Hunter disagrees with the Secretary on every point. The company also asserts it is 

prejudiced by the delay in the issuance of the report which, although it is dated well before the 

hearing, was not available to Hunter until seven weeks after the hearing, thus preventing the 

company from making the report the object of discovery.3 Response 2-3. Hunter points out that it 

has had “no opportunity to submit rebuttal evidence or conduct cross-examination of the Coast 

Guard personnel responsible for investigating and issuing [the] Report.” Id. 3 (emphasis in 

original). Thus, Hunter has been unable to gauge the accuracy and reliability of the report, the 

details of the Coast Guard investigation, the credibility of the investigators and explore the 

differences between MSHA’s and the Coast Guard’s findings. Finally, Hunter raises other 

objections disputing the fact that the report is self-authenticating and challenging the assertion 

that the court may take judicial notice of the report’s contents. Response 6-7. 

3

 The Secretary replies that despite the April 16, 2015, date on the report, the report was 

not available until January 7, 2016, the last day of the hearing, and the Secretary’s counsel did 

not become aware the report had been issued until after the hearing. Secretary’s Reply to Hunter 

Sand & Gravel, LLC’s Response to the Secretary’s Motion to Admit [USCG] Report of 

Investigation (March 31, 2016) at 2. 

38 FMSHRC Page 883
RULING

While the report may contain relevant information, this does not automatically render it 

admissible. Admission is not a right but rather is the result of a court’s exercise of its discretion. 

Courts often deny admission to relevant evidence as they balance the interests of the parties, the 

public and the judicial system in the development of cogent, concise records and seek to render 

timely decisions. 

Here, the court concludes the balance tips in favor of Hunter. Were the court to grant the 

motion, it is likely the company would be severely prejudiced unless the court also afforded the 

company the opportunity to apply the mechanics of discovery to the report, procedures that 

would inevitably delay a decision. Following such discovery, the court also might be required to 

reconvene the hearing to take additional testimony relating to the report, which would engender 

further delay. The parties had a full and fair opportunity to present their cases at the hearing. It is 

doubtful that at this juncture admission of the report would add information that is necessary to 

an accurate and legally correct resolution of the issues before the court, issues which center on 

the existence of alleged violations of mine safety standards, not violations of marine safety 

standards and procedures. Moreover, since no one saw the assumed accident or found the body 

of the assumed victim, admission of the report is likely only to augment already extensive 

speculation as to what may have happened. 

The motion IS DENIED.

/s/ David F. Barbour 

David F. Barbour 

Administrative Law Judge 

Distribution: (1st Class Mail) 

Willow E. Fort, Esq., U.S. Department of Labor, Office of the Solicitor, 618 Church Street, Suite 

230, Nashville, TN 37219 

Robert Nienhuis, Esq.; Elana Charles, Esq., Goldstein & Price, L.C., One Memorial Drive, Ste. 

1000, St. Louis, MO 63102 

38 FMSHRC Page 884
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 

April 15, 2016 

ORDER DENYING COMPLAINANT’S “PRO SE” 

TEMPORARY REINSTATEMENT APPLICATION 

Before: Judge Simonton 

This motion is before me under section 105(c)(2) of the Federal Mine Safety and Health 

Act of 1977, 30 U.S.C. § 815(c). The Complainant, Ms. Jennifer Morreale, first filed a 

discrimination complaint against Veris Gold U.S.A with the Mine Safety and Health 

Administration (MSHA) on March 18, 2014. On June 23, 2014, the Secretary of Labor filed a 

formal 105(c)2 complaint with the Commission, seeking civil penalties and personal damages on 

behalf of the Complainant. The Secretary did not file an application for temporary reinstatement 

on behalf of the Complainant at any point. Following protracted motions practice, the parties 

submitted a joint settlement motion to this court on February 20, 2015. In critical part, the 

Respondent agreed to pay the Secretary a civil penalty of $1,000 and an undisclosed monetary 

payment to the Complainant within 30 days of the final order. The Respondent specifically 

stated within the settlement motion that, 

Respondent's counsel has petitioned and secured approval from the 

bankruptcy monitor to approve this settlement in the ordinary 

course of business and allow payment to be made outside of the 

general unsecured creditor process. 

February 20, 2015 Settlement Agreement, 2. 

Relying on these representations, the court approved the joint settlement motion on 

February 27, 2015. However, on May 27, 2015, Morreale filed a “Motion to Compel” on her 

own behalf with this court. Morreale stated within her motion that the Respondent had not made 

any payment to her and requested that this court enforce the terms of the settlement agreement. 

Through a series of conference calls with the Secretary of Labor, the Complainant, and the 

Respondent’s counsel, the court confirmed that the Respondent had not made any payments to 

the Complainant or the Secretary. The court also learned that the Respondent did not plan to 

SECRETARY OF LABOR, MSHA, 

 On behalf of JENNIFER MORREALE, 

 Complainant, 

 v. 

VERIS GOLD U.S.A., INC., 

 Respondent. 

DISCRIMINATION PROCEEDING 

Docket No. WEST 2014-793-DM 

MSHA Case No.: WE MD 14-13 

Mine: Jerritt Canyon Mill 

Mine ID: 26-01621 

38 FMSHRC Page 885
honor the agreement pursuant to a pending asset sale in which the Jerritt Canyon Mill mine 

would be sold free and clear of all interests. June 3, 2015 Notice Reserving Judgment. 

On June 19, 2015, Morreale filed a joint motion with several other 105(c) complainants 

in the District of Nevada U.S. Bankruptcy court, seeking to stay the pending asset sale to Jerritt 

Canyon Gold (JCG). Although the Secretary continued to officially represent Ms. Morreale and 

another 105(c)2 complainant with a claim against Veris before the Commission, the Secretary 

did not join the complainants’ motion to stay the asset sale. The bankruptcy court denied the 

complainants’ stay motion that same day and the asset sale was finalized on June 24, 2015. On 

July 8, 2015, this court issued an order denying the Complainant’s motion to compel payment as 

the court had released jurisdiction upon issuing the final settlement order. 

On October 14, 2015, Morreale petitioned the Commission to reopen this matter for 

further proceedings in aid of compliance. On February 3, 2016, Morreale filed a formal motion 

to amend with the Commission, naming JCG and its controlling entities as liable successors in 

interest. On March 8, 2016, the Commission reopened and remanded this matter for further 

proceedings, including consideration of Morreale’s motion to add JCG, Eric Sprott, and 

Whitebox Asset Management as successors in interest. 

That same day, Morreale filed a “Motion for Temporary Reinstatement and Financial 

Reinstatement” with this court. Within, Morreale requested reinstatement to her former 

environmental technician position at the Jerritt Canyon Mill Mine and requested “temporary 

financial reinstatement, including interest, from March 2014 until (the conclusion of this case).” 

Morreale TR Motion, 2. The Secretary did not sign or appear to join Morreale’s request for 

temporary reinstatement and backpay. 

ANALYSIS 

The Mine Act sets forth clear procedural requirements for temporary reinstatement 

applications, stating that, 

Upon receipt of (a discrimination) complaint, the Secretary shall 

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

such investigation to be made as he deems appropriate. Such 

investigation shall commence within 15 days of the Secretary's 

receipt of the complaint, and if the Secretary finds that such 

complaint was not frivolously brought, the Commission, on an 

expedited basis upon application of the Secretary, shall order the 

immediate reinstatement of the miner pending final order on the 

complaint. 

30 U.S.C. 815 (c)2 (emphasis added). 

Thus, a complainant is not eligible for temporary reinstatement unless the Secretary has 

submitted an appropriate application to the Commission. The Secretary has not filed an 

application for temporary reinstatement at any time during these proceedings. Solicitor Doherty 

38 FMSHRC Page 886
February 26, 2015 E-Mail. The Secretary did not join Morreale in submitting her March 8, 2016 

motion for temporary reinstatement. Thus, I must deny Complainant’s application for temporary 

reinstatement at the Jerritt Canyon Mill mine. 

With this finding in mind, the court notes that it is the Secretary that brought this matter 

before the Commission in June 2014, seeking both civil penalties and personal damages on 

behalf of the Complainant. As such, the court is perplexed that after obtaining a final settlement 

agreement, the Secretary failed to aid Morreale in her efforts before the U.S. bankruptcy courts 

and the Commission. However, the court is well aware that the Commission cannot order the 

Secretary to pursue enforcement of monetary judgments in the federal courts. Tolbert v.Chaney 

Creek Coal Corp., 12 FMSHRC 615, 618. The court is also aware that the Secretary has 

previously informed the Commission that it does not act as a legal representative for 

discrimination complainants in section 105(c)2 proceedings. Disciplinary Proceeding, 24 

FMSHRC 28, 34 (January 2002). The Commission in that case found nothing in the manner in 

which the Solicitor of Labor handles section 105(c)(2) discrimination cases that indicates to 

miners that counsel in the Solicitor’s Office are not their attorneys. I note this is also true of the 

way the Solicitor of Labor enters their representation on the record before the Commission. I 

echo the Commission’s view as applied in this case. 

However, now that the Commission has reopened this matter, the Secretary has not 

withdrawn their initial 105(c)2 complaint or released their claim for the agreed upon civil 

monetary penalty.1

 As such, the Complainant and Secretary are ORDERED to jointly submit all 

future filings in this section 105(c)(2) proceeding. 

 Furthermore, Morreale’s request for reinstatement and backpay would in effect void the 

terms of the parties’ prior voluntary settlement agreement. Although the listed Respondent has 

failed to honor the terms of the settlement agreement to date, the court currently considers the 

February 20, 2015 settlement agreement to be in full effect. What is at issue is whether JCG, 

Eric Sprott, and Whitebox Asset Management should be added as successors in interest parties.2 

As such, even if the Secretary were to submit an application for temporary reinstatement on 

behalf of Ms. Morreale, it is unlikely that the court would grant such a request. 

 1

 The court does not suggest that the Secretary withdraw from this matter. The Secretary 

may, as it has in Garcia v. Veris WEST 2014-905, submit filings detailing the Secretary’s 

position on the successorship issues raised by the Complainant. 

2

 The court could, if appropriate, ultimately award additional damages such as interest or 

incurred legal expenses to the Complainant due to the Respondent’s failure to timely honor the 

settlement agreement. However, the court does not intend to reopen the substance of this case or 

the primary terms of the parties’ final settlement agreement. 

38 FMSHRC Page 887
ORDER 

The Complainant’s application for temporary reinstatement is DENIED. The 

Complainant is directed to submit all future filings jointly through the Secretary of Labor. As 

directed by the Commission, the court will promptly issue further direction on the outstanding 

question of successorship liability. 

/s/ David P. Simonton 

David P. Simonton 

Administrative Law Judge 

Distribution: (U.S. First Class Mail) 

Brad Mantel, U.S. Department of Labor, Office of the Solicitor, Division of Mine Safety and 

Health, 201 12th Street South, Suite 401, Arlington, VA 22202 

Niamh E. Doherty, Office of the Solicitor, U.S Department of Labor, 350 S. Figueroa Street, 

Suite 370 Los Angeles, CA 90071 

Jennifer Morreale, 686 Westcott Dr, Spring Creek, NV 89815 

Annette Jarvis, Dorsey & Whitney LLP, Counsel for Jerritt Canyon Gold, 136 South Main 

Street, Suite 1000, Salt Lake City, UT 84101 

Mark R. Kaster, Dorsey & Whitney LLP, Counsel for Jerritt Canyon Gold, 50 South Sixth Street, 

Suite 1500, Minneapolis, MN 55402 

Shaun Heinrichs, Veris Gold, 688 West Hastings Street, Suite 900, Vancouver, BC V6B 1P1, 

Canada 

Tevia Jeffries, Dentons Canada LLP, Counsel for Bankruptcy Monitor, 250 Howe Street, 20th

Floor, Vancouver, BC V6C 3R8, Canada 

38 FMSHRC Page 888
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 

April 21, 2016 

BRIEFING ORDER 

Before: Judge Simonton 

This discrimination case is before me under section 105(c) of the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 815(c).1 On March 8, 2016 the Commission reopened and 

remanded this matter to the court for further proceedings and stated that, 

The Judge shall consider Morreale’s motion to amend her 

complaint to add Jerritt Canyon Gold, LLC; Eric Sprott; and 

Whitebox Asset Management as successors in interest. 

March 8, 2016 Commission Order WEST 2014-793, 5. 

Jerritt Canyon Gold (JCG) has previously noted that they acquired the Jerritt Canyon Mill 

mine from Veris Gold U.S.A (Veris) under section 363(f) of the U.S. Bankruptcy Code. 11 

U.S.C. 363(f) (mandating that, under certain conditions, a bankruptcy trustee may sell property 

of a bankrupt corporation “free and clear of any interest in such property.”) As such, JCG has 

argued that the “free and clear” provisions of section 363(f) asset sales completely bar recovery 

attempts against JCG vis a vis successorship liability. See Garcia v. Veris, WEST 2014-905 

Stay Order, 2 (March 4, 2016) (ALJ Simonton). The Secretary of Labor has joined JCG in this 

1

 The court detailed this docket’s protracted procedural history in a recent order denying 

the Complainant’s self-filed application for temporary reinstatement. In summary, the parties 

reached a finalized settlement agreement on February 20, 2015 in which the Respondent agreed 

to pay a civil monetary penalty and separate personal payment to the Complainant. The court 

approved the settlement agreement on February 27, 2015. However, the listed Respondent failed 

to honor the agreement and the Jerritt Canyon Mill mine was sold to Jerritt Canyon Gold (JCG) 

in a section 363(f) asset sale free and clear of all liabilities in June 2015. The Complainant filed 

a motion to reopen with the Commission and subsequently filed a motion to amend, formally 

naming JCG, Eric, Sprott, and Whitebox Asset Management as successors-in interest. 

SECRETARY OF LABOR, MSHA, 

 on behalf of JENNIFER MORREALE, 

 Complainant, 

 v. 

VERIS GOLD U.S.A., INC., and its 

 successors, 

 Respondent. 

DISCRIMINATION PROCEEDING 

Docket No. WEST 2014-793 

MSHA Case No.: WE MD 14-13 

Mine: Jerritt Canyon Mill 

Mine ID: 26-01621 

38 FMSHRC Page 889
position. Id. The complaining miner in this matter, Ms. Jennifer Morreale, does not. The court 

acknowledges that the correct interaction of bankruptcy law and the Commission’s successorship 

doctrine must be definitively answered at some point. However, the Commission declined to 

address this issue of first impression in their remand order above. Additionally, in a detailed 

decision that named JCG as a potential successor in interest to Veris, a fellow Commission ALJ 

has recently held that section 363(f) asset sale protection should not necessarily bar recovery of 

section 105(c) discriminations claims against bona-fide successors in interest. Varady v. Veris, 

WEST 2014-307, 17 (March 4, 2016) (ALJ Moran). 

 With this present legal ambiguity in mind, the most prudent course of action is to first 

resolve the factual question of JCG’s successorship status before proceeding to potential 

bankruptcy protection issues. Varady, WEST 2014-307, 17 (stating that successorship findings 

should precede consideration of enforcement issues); See also Sec'y of Labor o/b/o Michael L. 

Price and Joe John Vacha v. Jim Walter Resources, Inc., 12 FMSHRC 1521, 1528-30 (August 

1990) (holding that section 362(b) of the U.S. Bankruptcy code permits the Commission to make 

liability determinations separate and apart from enforcement concerns governed by other 

jurisdictions). 

 In her self-filed motion to amend before the Commission, the Complainant alleged that 

the primary controller of JCG, Eric Sprott, also controlled Whitebox Investments, the DIP lender 

that approved the parties’ February 20, 2015 settlement agreement. Morreale Motion to Amend, 

5. Morreale has also stated that news reports indicate that JCG has maintained the same on-site 

personnel, equipment, and operation methods since it assumed control of the Jerritt Canyon Mill 

mine in June 2015. Id. at 6-7. In a separate docket, JCG has argued that it does not meet the 

Commission’s succesorship test, relying primarily on JCG’s newly formed corporate identity and 

changes in upper level management at the Jerritt Canyon Mill mine. JCG March 1, 2016 

Response, 13-14, Garcia v. Veris WEST 2014-905. The Secretary has to date declined to 

provide any input on JCG’s successorship position. Sec’y March 1, 2016 Response, 7, Garcia v. 

Veris WEST 2014-905. Veris has not responded to any of this court’s orders since June 17, 

2015. 

 Thus, further discovery into the facts of JCG’s acquisition and operation of the Jerritt 

Canyon Mill mine is necessary to determine if JCG, Eric Sprott and Whitebox Asset 

Management are liable as successors in interest for the conduct of Veris. Accordingly, the 

Complainant2

, Veris, and JCG (as well as Eric Sprott and Whitebox Asset Management) are 

directed to promptly begin discovery regarding JCG’s, Eric Sprott’s and Whitebox Asset 

Management’s relationship to Veris. 

 No later than June 1, 2016, the parties shall file briefs regarding JCG’s, Eric Sprott’s and 

Whitebox Asset Management’s relationship to Veris as successors in interest under the 

Commission’s successorship test. See Munsey v. Smitty Baker Coal Co., 2 FMSHRC 3463 (Dec. 

1980) (adopting a nine factor successorship test), aff’d in relevant part sub nom. Munsey v. 

                                                             2

 The court has recently directed the Complainant to submit all filings through the 

Secretary pursuant to the normal operation of section 105(c)(2) proceedings. 

38 FMSHRC Page 890
FMSHRC, 701 F.2d 976 (D.C. Cir. 1983). Within their responses, the parties shall also respond 

to the following questions: 

1) Did JCG management learn of the finalized settlement agreement between the Secretary,

Ms. Morreale, and Veris prior to JCG’s purchase of the Jerritt Canyon Mill mine?

2) Did JCG management learn of any pending 105(c) discrimination claim against Veris

Gold USA prior to JCG’s purchase of Veris?

3) What percentage of Veris Gold USA did Eric Sprott and his subsidiary holdings, own

and/or control prior to JCG’s acquisition of the Jerritt Canyon Mill mine?

4) What percentage of JCG does Eric Sprott and his subsidiary holdings own and/or

control?

5) What percentage of Veris employees employed at the Jerritt Canyon Mill mine did JCG

rehire following their assumption of mining operations in June 2015?

6) What percentage of Veris supervisory agents at the Jerritt Canyon Mill mine were

retained by JCG? In addition to senior management personnel, the Commission

generally considers supervisors with production and safety responsibilities agents of the

operator. Nelson Quarries, Inc., 31 FMSHRC 318, 328-31 (Mar. 2009) (affirming ALJ

holding that onsite foremen who conducted safety examinations and assigned tasks were

agents of the operator).

7) Has JCG substantially altered production methods at the Jerritt Canyon Mill mine?

38 FMSHRC Page 891
The parties are strongly encouraged to submit supporting documentation and/ or 

affidavits to substantiate their positions. The parties are directed to reserve arguments 

concerning the correct application of bankruptcy law for future proceedings.

ORDER 

The Complainant, Veris Gold U.S.A., and JCG3 are ORDERED to submit briefs on the 

successorship issues outlined above no later than June 1, 2016. 

/s/ David P. Simonton 

David P. Simonton 

Administrative Law Judge 

Distribution: (U.S. First Class Mail) 

Brad Mantel, U.S. Department of Labor, Office of the Solicitor, Division of Mine Safety and 

Health, 201 12th Street South, Suite 401, Arlington, VA 22202 

Niamh E. Doherty, Office of the Solicitor, U.S Department of Labor, 350 S. Figueroa Street, 

Suite 370, Los Angeles, CA 90071 

Jennifer Morreale, 686 Westcott Drive, Spring Creek, NV 89815 

Annette Jarvis, Dorsey & Whitney LLP, Counsel for Jerritt Canyon Gold, 136 South Main 

Street, Suite 1000, Salt Lake City, UT 84101 

Mark R. Kaster, Dorsey & Whitney LLP, Counsel for Jerritt Canyon Gold, 50 South Sixth Street, 

Suite 1500, Minneapolis, MN 55402 

Shaun Heinrichs, Veris Gold, 688 West Hastings Street, Suite 900, Vancouver, BC V6B 1P1, 

Canada 

Tevia Jeffries, Dentons Canada LLP, Counsel for Bankruptcy Monitor, 250 Howe Street, 20th

Floor, Vancouver, BC V6C 3R8, Canada 

3

 Briefs may also be submitted by Eric Sprott and Whitebox Asset Management at their 

election as necessary. 

38 FMSHRC Page 892
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 

April 25, 2016 

BHP COPPER, INC., CONTEST PROCEEDINGS 

Contestant, 

 Docket No. WEST 2013-189-RM 

v. Citation No. 8751238; 10/18/2012 

 Docket No. WEST 2013-190-RM 

SECRETARY OF LABOR, Order No. 8751239; 10/18/2012 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION, (MSHA), Mine: Pinto Valley Operations 

Respondent. Mine ID: 02-01049 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION, (MSHA), Docket No. WEST 2013-636-M 

Petitioner, A.C. No. 02-01049-315370

v. 

BHP COPPER, INC., 

Respondent. Mine: Pinto Valley Operations 

TETRA TECH CONSTRUCTION SERVICES, CONTEST PROCEEDINGS 

Contestant, 

 Docket No. WEST 2013-187-RM 

v. Citation No. 8751236; 10/18/2012 

 Docket No. WEST 2013-188-RM 

SECRETARY OF LABOR, Order No. 8751237; 10/18/2012 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION, (MSHA), Mine: Pinto Valley Operations 

Respondent. Mine ID: 02-01049 A0380 

38 FMSHRC Page 893
SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION, (MSHA), Docket No. WEST 2013-587-M 

Petitioner, A.C. No. 02-01049-315369

v. 

TETRA TECH CONSTRUCTION SERVICES, 

Respondent. Mine: Pinto Valley Operations 

ORDER GRANTING IN PART AND DENYING IN PART 

THE SECRETARY’S MOTION TO COMPEL 

The Secretary of Labor filed a motion to compel BHP Copper (“BHP”) and Tetra Tech 

Construction Services (“Tetra Tech”) to produce their Fatal Accident Report (“ICAM”) 

concerning the September 22, 2012 death of Jon Vanoss in the Pinto Valley Mine, and related 

investigation documents, including photographs and a videotape. BHP and Tetra Tech refused to 

produce these materials, and contend that they are protected under the work product and 

attorney-client privilege doctrines. BHP and Tetra Tech argue that because an attorney directed 

and participated in the investigation process, the accident report and related documents are 

protected. 

 On September 22, 2012, Jon Vanoss, a contract employee with Tetra Tech with six days 

of experience, began work at Pinto Valley Operations at his normal 6:00 a.m. start time. Tetra 

Tech was hired by BHP as a Contractor to provide rehabilitation services for the mill and 

processing equipment. The mine ceased production in February 2009 and began rehabilitation 

operations in February 2012. On the day of the accident, Vanoss and a co-worker, Edwards, were 

sent to the fourth floor of the secondary crusher building to perform fire watch duties while 

welders worked on the chute above them. As a part of the rehabilitation of the building, certain 

equipment and screens had been removed from the building, leaving a number of large gaps in 

the floor. Sometime, after lunch, when Vanoss returned to the building alone, he fell through one 

of the floor openings and was found several hours later 30 feet below. As a result of the fatal 

accident, MSHA conducted an investigation and issued two citations each to BHP and to Tetra 

Tech. 

MSHA conducted an accident investigation at the site shortly after the incident, as did 

BHP with the cooperation of Tetra Tech.1

 During the investigation, both MSHA and the mine 

operator photographed the scene and took witness statements. MSHA issued a report, and that 

report, along with photographs and other materials have been released to both BHP and Tetra 

Tech. BHP also drafted a report, along with photos, videotapes and witness statements, but has 

refused to provide the bulk of that report and its accompanying emails and photos, to the 

Secretary. On March 22, 2016 the Secretary filed a motion to compel the production of the 

mine’s investigation report and all documents, witness statements, emails and photographs that 

1

 There have been some allegations that the accident scene had been altered between the 

time of the accident and the time MSHA arrived to conduct its investigation. 

38 FMSHRC Page 894
were a part of that investigation. Both BHP and Tetra Tech responded by arguing that the 

documents are subject to the work product and attorney client privilege. For the reasons set forth 

below, I find that the factual information contained in the files must be released to the Secretary, 

but that any attorney thoughts, advice, or opinions are protected and should not be produced. 

Work Product Privilege 

Work product privilege protects materials prepared by an attorney in anticipation of 

litigation from discovery by the adverse party. See Hickman v. Taylor, 329 U.S. 495, 511-12 

(1947). The doctrine is codified in section 26(b)(3) of the Federal Rules of Civil Procedure. 

Commission Procedural Rule 1(b), 29 C.F.R. § 2700.1(b) incorporates the Federal Rules of Civil 

Procedure, as is practicable, on any procedural question that is not regulated under the Mine Act 

or the Commissions Procedural Rules. See Secretary v. Consolidation Coal Co., 19 FMSHRC 

1239, 1242 (July 1997). As the party invoking the privilege, BHP Copper bears the threshold 

burden to prove that the requested materials are (1) documents and tangible things (2) prepared 

in anticipation of litigation or trial (3) by or for another party or by or for that parties’ 

representative. Hickman v. Taylor, 329 U.S. 495, 508 (1947). 

Here, the Secretary seeks an accident investigation report, referred to as an ICAM, along 

with all witness statements and emails that relate to the investigation. With regard to accident or 

investigation reports, the dispositive question is whether the material at issue was prepared in 

anticipation of a trial or litigation. If the documents serve dual purposes, work product privilege 

applies to materials that were prepared because of the prospect of litigation. United States v. 

Adlman, 134 F.3d 1194, 1202 (2nd Cir. 1998) (emphasis added). BHP asserts that the report and 

its accompanying documents were prepared at the direction of an attorney and for the purpose of 

defending both a wrongful death action and any regulatory action taken by MSHA. The 

Secretary argues that ICAM documents are routine at this mine, and are prepared in most 

instances where litigation is not anticipated. 

If the invoking party demonstrates that the materials qualify as work product, the 

requesting party bears the burden to justify production of the privileged documents. See Hickman 

v. Taylor, 329 U.S. 495, 512. Two categories of work product require different thresholds of

proof. “Core” work product consists of “mental impressions, conclusions, opinions, or legal

theories concerning the litigation” and may only be compelled in the rarest of circumstances.

National Union Fire Insurance Company v. Murray Sheet Metal Company Inc., 967 F.2d 980,

984 (4th Cir. 1992). “Ordinary” work product consists of facts, and the requesting party may

compel discovery through showing (1) a substantial need for the material and (2) an inability to

produce the substantial equivalent of the material without enduring undue hardship. See Hickman

v. Taylor, 329 U.S. 495, 509 (1947); In Re Grand Jury Proceedings, Thursday Special Grand

Jury Term, 33 F.3d 342, 348 (4th Cir. 1994).

The Secretary argues that BHP’s ICAM report does not qualify as work product because 

BHP and Tetra Tech had a legislative duty under 30 C.F.R. § 50.11(b)2 to perform an accident 

report for Vanoss’ death. In addition, the Secretary points to the internal procedures that BHP 

2

 Section 50.11(b) states: “Each operator at a mine shall investigate each accident and 

each occupational injury at the mine. Each operator of a mine shall develop a report of each 

investigation.” 

38 FMSHRC Page 895
and Tetra Tech have had in place since at least 2008. These prior obligations, the Secretary 

argues, indicate that the accident report withheld was not created because of the prospect of 

litigation. BHP argues that the investigation was initiated by an attorney and that the report was 

not one that BHP would do in its normal course of business. However, the depositions testimony 

attached to the Secretary’s motion gives a contrary impression that in fact a similar report is and 

has been prepared by BHP for a number of incidents at the mine, and they routinely conduct an 

investigation into an accident in order to prevent future injuries and deaths. While the mine may 

not have a statutory duty to create the exact report that it did, it does have the duty to investigate 

any accident or incident at the mine: In this case, the report was a result of that investigation and 

therefore I find it is not subject to the work product privilege. 

BHP argues that the report has two purposes, but that the primary purpose is to prepare 

for litigation. The mine argues that since BHP contacted its attorney to investigate the accident, it 

was in anticipation of litigation not only concerning any MSHA citations, but the wrongful death 

action that was sure to follow. Counsel for the mines directed the investigation and was an active 

participant. Further, BHP argues that the investigation is separate and apart from its duty to 

investigate the accident because it was directed by an attorney for the company. However, even 

if the materials generated serve a function that is separate and apart from litigation, they should 

only be withheld if they reveal the mental impressions or opinions of an attorney who prepared 

them. United States v. Adlman, 134 F.3d 1194, (2nd Cir. 1998). 

BHP’s mandatory ICAM procedures have existed since 2008. Moreover, both BHP and 

Tetra Tech have provided their accident review guidelines in Exhibits 5 and 6. These indicate 

that both entities have accident reporting procedures in place regardless of whether litigation is 

anticipated. In addition, BHP has conducted ICAM investigations without the request of counsel 

for much less serious accidents. The ICAM procedures focus on gathering information to explain 

technical problems that caused the accidents. Robert Krohn, the mine operations manager, 

testified that the ICAM practice is a “normal company process” and that anyone receiving it 

“would know what to do without advice from anybody.” (Secretary’s Motion to Compel. at 9). 

National Union Fire Ins. v. Murray Sheet Metal, 967 F.2d 980 (4th Cir. 1992). “Materials 

prepared in the ordinary course of business or pursuant to regulatory requirements or for other 

non-litigation purposes are not documents prepared in anticipation of litigation within the 

meaning of Rule 26(b)(3).” See also Secretary v. ASARCO, Inc., 12 FMSHRC 2548, 2558 (Dec. 

1990) where the Commission found that an investigation report was work product because the 

Secretary produced it to determine whether to commence litigation, and therefore was in 

anticipation of litigation. “If, on the other hand, litigation is contemplated but the document is 

prepared in the ordinary course of business rather than for purposes of litigation, it is not 

protected.” (Id.) 

Thus, without a substantial showing otherwise, the ICAM does is not eligible for work 

product privilege. The emails and other documents associated with the ICAM are also not 

subject to the work product privilege since they are intimately tied to the investigation and also 

contain factual information that was incorporated into the final report. However, as discussed 

below, parts of the investigation report and the documents associated with that investigation may 

be subject to the attorney-client privilege. 

38 FMSHRC Page 896
Attorney-Client Privilege 

BHP next argues that the information requested by the Secretary, specifically the ICAM 

report, emails, photos, a videotape, witness statements and other documents associated with the 

mine’s investigation into the fatal accident, are subject to the attorney-client privilege and 

therefore should not be released. Attorney-client privilege serves to promote full and frank 

communication between attorneys and their clients. Upjohn Co. v. United States, 449 U.S. 383, 

388 (1981). The privilege rests on the need for advocate and counselor to know all that relates to 

the client’s reasons for seeking representation to effectively carry out his or her objectives. 

Trammel v. United States, 445 U.S. 40, 41 (1980). 

Yet attorney-client privilege also impedes the full discovery of the truth, and therefore 

must be strictly construed. United States v. Ruehle, 583 F.3d 600, 607 (9th Cir. 2009) citing

United States v. Martin, 278 F.3d 988, 999 (9th Cir. 2002). Attorney-client privilege protects 

communications between an attorney and their client and does not extend to facts disclosed by 

the clients while communicating with the attorney. Upjohn, 449 U.S. at 395. 

Again, BHP and Tetra Tech bear the burden of proving that the accident investigation 

meets the eligibility requirements for attorney-client privilege. BHP and Tetra Tech must show 

that: 

(1) [the] asserted holder of the privilege is or sought to become a client, (2) person to

whom communication was made (a) is a member of the bar of a court, and (b) in

connection with this communication is acting as a lawyer; (3) communication relates to a

fact of which the attorney was informed (a) by his client, (b) without the presence of

strangers (c) for the purpose of securing primarily either (i) an opinion on law or (ii) legal

service or (iii) assistance in some legal proceeding, and not (d) for the purpose of

committing a crime or a tort; and (4) the privilege has been (a) claimed and (b) not

waived by the client.

See Secretary of Labor O/B/O Charles Scott Howard v. Cumberland River Coal Co., 34 

FMSHRC 311, 314 (Jan. 2012) (ALJ); citing Hawkins v. Stables, 148 F.3d 379, 383 (4th Cir. 

1998) (citations omitted). The Secretary, in its motion to compel, suggests a different test, 

promulgated by the 9th Circuit in United States v. Ruehle, 583 F.3d 600 (9th Cir. 2009) which 

uses a substantially similar 8-part test. However, the Commission has consistently relied on the 

4th Circuit test and therefore it is relied upon here. 

BHP and Tetra Tech together argue that BHP engaged outside counsel to provide legal 

advice as to the regulatory actions that may follow as well as the wrongful death action based 

upon the death of Vanoss. The emails, slides and other information were created with counsel 

and for counsel to aid him in providing legal advice to his clients. In addition, MSHA conducted 

its own investigation and received volumes of documents and has not shown a need for the 

information gathered by the attorney for the mine operator. 

The Secretary argues that the primary purpose of the ICAM report is to determine what 

caused an accident and identify corrective actions to prevent reoccurrence. With this purpose in 

mind, the Secretary asserts that BHP provided no evidence indicating that the ICAM report 

intended to seek legal advice. The Secretary further argues that BHP asserted privilege based on 

38 FMSHRC Page 897
the fact that the attorney directed and participated in the accident investigation yet, attorneyclient privilege requires that the client communicate facts to the attorney, and he responds with 

legal advice and in his capacity as their attorney. The Secretary asserts that the report contains no 

legal advice. In addition, the ICAM procedure in Exhibit 6, as well as Robert Krohn’s testimony, 

indicate that multiple parties receive copies of the ICAM report. If an individual outside of the 

employ of BHP or Tetra Tech received a copy, the dispersal may qualify as a waiver of attorneyclient privilege. 

Attorney-client privilege applies to communications between company employees and 

the counsel for the company acting in a legal capacity, in order to secure legal advice, and only if 

employees were aware of that purpose. Upjohn Co. v. United States, 449 U.S. 383, 394 (1981). 

The courts have also determined that the underlying facts are separate and may not be withheld 

based upon the attorney client privilege. United States v. Ruehle, 583 F.3d 600, 609 (9th Cir. 

2009). Here, emails were sent to any number of people; information was provided and shared, 

not always with an attorney; and the report was disseminated to managers at both BHP and Tetra 

Tech. The fact that emails were directed to or copied to an attorney does not alone make them 

privileged. Further, documents that contain factual information may not be privileged. Laws v. 

Stevens Transport, Inc., 2013 WL 941435, (S.D. Ohio, 2013). 

A number of Courts have determined that confidential communications made to attorneys 

“hired to investigate through the trained eyes of an attorney” are privileged, In re International 

Sys., 91 F.R.D. at 557, the same is not true for the entire investigation file. Courts have 

consistently recognized that investigation may be an important part of an attorney's legal services 

to a client. See, e.g., United States v. Rowe, 96 F.3d 1294, 1297 (9th Cir.1996); Dunn v. State 

Farm Fire & Casualty Co., 927 F.2d 869, 875 (5th Cir.1991) (applying Mississippi law); In re 

Grand Jury Subpoena, 599 F.2d 504, 510-11 (2d Cir.1979); Diversified Indus. v. Meredith, 572 

F.2d 596, 606-10 (8th Cir.1977) (en banc hearing 1978); In re Int'l Sys. & Controls Corp. Sec.

Litig., 91 F.R.D. 552, 557 (S.D.Tex.1981), vacated on other grounds, 693 F.2d 1235 (5th

Cir.1982); In re LTV Sec. Litig., 89 F.R.D. 595, 599-611 (N.D.Tex.1981). Upjohn made “clear

that fact finding which pertains to legal advice counts as professional legal services.” Rowe, 96

F.3d at 1297 (internal citations omitted). Further, the 4th Circuit has found that an attorney did

not act solely as an investigator when hired by the state Attorney General, but also as an attorney

and therefore could invoke the privilege. In re Allen, 106 F.3d 582, 600 (4th Cir. 1997).

However, neither the attorney-client nor the work product privilege protects underlying 

facts. As the Supreme Court explained in Upjohn Co. v. United States, 449 U.S. 383, 389, 101 

S.Ct. 677, 682 (1981), the client cannot be compelled to answer the question, “What did you say

or write to the attorney?” but may not refuse to disclose any relevant fact within his knowledge

merely because he incorporated a statement of such fact into his communication to his attorney.

Thus, “a party cannot conceal a fact merely by revealing it to his lawyer.” Id., 449 U.S. at 396,

101 S.Ct. at 686.

I agree with BHP that many of the communications between the mine operators and the 

attorney are protected by the attorney-client privilege, and particularly conversations that involve 

or include legal advice or the attorney’s impressions or legal strategy. To that extent, emails and 

documents that contain any deliberation, attorney opinion, comment, legal strategy or mental 

impression are protected and need not be produced. However, given the nature of this case, and 

the importance of having all facts available to all parties, any documents that contain factual 

38 FMSHRC Page 898
information must be produced, after protected information is redacted. All photographs, 

whenever taken, must also be produced. There are not sufficient facts in the file to determine 

whether or not the video made after the investigation is subject to any privilege, or is even 

relevant to the MSHA matter as opposed to the wrongful death case, and therefore it is not 

included in this decision. 

ORDER 

BHP and Tetra Tech are hereby ORDERED to provide a copy of the ICAM report, along 

with any emails, photographs, witness statements or other documents related to the ICAM report 

that contain any factual information. The operator may remove from any document any 

deliberation, opinion, comment, legal strategy or mental impression of any attorney or a 

representative of the attorney. The documents shall be produced within ten days of the date of 

this order.

/s/ Margaret A. Miller 

Margaret A. Miller 

Administrative Law Judge 

Distribution: (U.S. First Class Mail) 

Isabella Finneman, Office of the Solicitor, U.S. Department of Labor, 90 Seventh Street, Suite-3-

700, San Francisco, CA 94103 

Michael C. Ford, Snell & Wilmer, LLP, One Arizona Center, 400 East Van Buren Street, Suite 

1900, Phoenix, AZ 86004 

Peter S. Gould, Squire Patton Boggs (US), LLP, 1801 California Street, Suite 4900, Denver, CO 

80202 

38 FMSHRC Page 899
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 

April 26, 2016 

ORDER ON JERRITT CANYON GOLD’S MOTION FOR CERTIFICATION OF 

INTERLOCUTORY REVIEW 

Before: Judge Moran 

Dorsey & Whitney LLP, on behalf of Jerritt Canyon Gold, LLC, (“JCG”) has filed a 

motion seeking interlocutory review, per 29 C.F.R. § 2700.76.1 The Motion requests that the 

Court “certify that [its] ruling to add JCG as a respondent in this matter involves a controlling 

question of law and that immediate review will advance the final disposition of the proceeding.”2

Motion at 1 (emphasis added). 

For the reasons which follow, the Court, by not having determined that immediate review 

will materially advance the final disposition of the proceeding, DENIES the motion.3

1

 The Court, after checking with the Commission’s electronic filing system, emailed the 

Complainant on April 19, 2016, to determine if any response was made to this motion. The 

Respondent confirmed via email the same day that he had not submitted a response. 

2

 An unexplained oddity, under § 2700.76, when a judge is addressing a motion for 

interlocutory review, part of the test is whether immediate review will materially advance the 

final disposition of the proceeding, but the same section provides that, if the motion is denied by 

the judge, the Commission’s review is whether “immediate review may materially advance the 

final disposition of the proceeding.” 29 C.F.R. § 2700.76(a)(1)(i), (a)(2) (emphasis added). 

3

 Given this Court’s denial of the motion, the provisions at 29 C.F.R. § 2700.76(a)(1)(ii) 

and (a)(2) come into effect. JCG Counsel is aware of these provisions. 

MATTHEW A. VARADY, 

 Complainant, 

v. 

VERIS GOLD USA, INC., 

and 

JERRITT CANYON GOLD, LLC, 

 Respondents. 

DISCRIMINATION PROCEEDING 

Docket No. WEST 2014-307-DM 

WE-MD 14-03 

Mine: Jerritt Canyon Mill 

Mine ID: 26-01621 

38 FMSHRC Page 900
 In pertinent part, the provision addressing interlocutory review by a judge provides: 

(a) Procedure. Interlocutory review by the Commission shall not be a matter of 

right but of the sound discretion of the Commission. . . . 

(1) Review cannot be granted unless: 

(i) The judge has certified, upon his own motion or the motion of a 

party, that his interlocutory ruling involves a controlling question of law 

and that in his opinion immediate review will materially advance the final 

disposition of the proceeding; or 

(ii) The Judge has denied a party's motion for certification of the 

interlocutory ruling to the Commission, and the party files with the 

Commission a petition for interlocutory review within 30 days of the 

Judge's denial of such motion for certification. 

29 C.F.R. § 2700.76 (emphasis added). 

 The motion contends that there is no jurisdiction to add JCG as a party. It then revisits all 

of the arguments previously made to, and rejected by, this Court,4

 in support of its claim of lack 

of jurisdiction, which arguments will not be repeated here.5

 

 The motion incorrectly describes the “Issue” as whether allowing the Complainant to 

amend his discrimination complaint “to add JCG as an additional respondent in the case [is] in 

contravention of the Canadian and U.S. Bankruptcy Courts’ automatic stay, prior adjudication, 

discharge and free and clear sale of the Veris Gold assets to JCG under Section 363(f) of the 

Bankruptcy Code.” Motion at 7. The issue, however, is whether the asserted jurisdictional bar 

involves a controlling question of law and whether, in the Court’s opinion, immediate review of 

that issue will materially advance the final disposition of the proceeding.6 

 Among the many reasons advanced by JCG, all rejected by this Court in its previous 

ruling, are that any actions taken in violation of the bankruptcy court’s automatic stay are void 

ab initio, that only the bankruptcy courts can modify the automatic stay and, because of that, all 

MSHA proceedings are stayed. Id. at 10. JCG then continues with citations to the Canadian and 

U.S. Bankruptcy Courts’ holding that JCG acquired the assets of Veris Gold free and clear of any 

 4

 In fact, and as a matter of practicality, the motion essentially repeats, verbatim, large 

portions from previous submissions to this Court. 

5

 The Court’s March 4, 2016, Order on Complainant’s Motion to Amend addresses JCG’s 

contentions. See generally Varady v. Veris Gold USA, Inc., No. WEST 2014-307-DM, 2016 WL 

944251 (FMSHRC Mar. 4, 2016) (ALJ). 

6

 JCG also requests that “in the interest of judicial economy and fairness to the parties, 

[the] proceedings in th[is] docket . . . be stayed pending a final determination on the issue of 

jurisdiction.” Motion at 8. This request is DENIED. The proceedings are stayed but only until 

the Commission rules on the motion for interlocutory review. 

38 FMSHRC Page 901
interest, claim or liability. Id. at 10-12. These claims rest upon the asserted legitimacy of the § 

363(f) proceeding under the Bankruptcy Code. In its prior ruling, the Court has addressed this 

issue as well. 

The motion then discounts this Court’s reference to the Commission’s Order “in a recent 

parallel proceeding, Lowe v. Veris Gold USA, Inc., No. WEST 2014-614-DM, 2016 WL 197500, 

at *2 n.4 (FMSHRC Jan. 2016), in stating that JCG’s asset purchase in bankruptcy ‘free and 

clear’ of employment claims may not extinguish successorship liability,” as dicta and contends 

that the Court’s reference to “the much criticized 35 year old NLRB opinion, In International 

Technical Products Corp. (“ITP”), 249 NLRB 1301 (June 1980),” is misplaced as outdated. Id. 

at 14. The motion also contends that this Court’s reference to “dicta in Chicago Truck Drivers, 

Helpers, and Warehouse Union (Independent) Pension Fund v. Tasemkin, Inc., 59 F.3d 48, 49 

(7th Cir. 1995), in stating that a bankruptcy disposition did not preclude creditors from a 

successor liability claim . . . is distinguishable from the facts of the Varady case.” Id. at 15. 

The motion also maintains that “[t]he doctrine of res judicata bars the Complainant from 

attaching his discrimination claim to JCG.” Id. at 17. However, the Court notes that this theory 

extends the res judicata claim beyond the bankruptcy court’s sale order, asserting that it controls 

any Mine Safety and Health Review Commission decision. The Court, in the context of the 

entirety of its previous order addressing JCG and Varady, has spoken to this claim and rejected 

it. 

JCG’s motion ends with the assertion that “[t]here are strong preemptive and public 

policy considerations under the Bankruptcy Code that support the conclusion that the ALJ and 

Commission do not have jurisdiction to add JCG as a respondent to Varady’s claims against 

Veris Gold, in an effort to manufacture a successor liability claim.” Id. at 19 (emphasis added). 

Discussion 

The Court cannot, in effect, endorse JCG’s Motion because its previous ruling points in a 

very different direction.7

 That previous ruling provides a detailed basis for the Court’s 

conclusion but the reasoning will be briefly highlighted here. 

While JCG refers to cases in which it has been held that any actions taken in violation of 

the bankruptcy court’s automatic stay are void ab initio, and that only the bankruptcy courts can 

modify the automatic stay and that, in light of those arguments, all MSHA proceedings are 

stayed, no cases involving MSHA discrimination proceedings have been cited. The same point 

applies to the assertion that no challenge can be made contravening a bankruptcy court’s holding 

that assets of a successor are acquired free and clear of any interest, claim, or liability — there is 

no case law applying such a holding to MSHA discrimination actions. 

The issue at this point is whether JCG and potentially others may be liable as successors 

for acts of discrimination committed by Veris Gold. The Commission has found that 

successorship liability may be available in a given case where an action is brought under section 

105(c)(2) of the Mine Act, and no case has held that such relief is unavailable merely because a 

7 See generally Varady, 2016 WL 944251. 

38 FMSHRC Page 902
discrimination claim has been brought under section 105(c)(3). Munsey v. Smitty Baker Coal 

Co., 2 FMSHRC 3463, 3465-66 (Dec. 1980), aff’d in relevant part sub nom. Munsey v. 

FMSHRC, 701 F.2d 976 (D.C. Cir. 1983), cert. denied sub nom. Smitty Baker Coal Co. v. 

FMSHRC, 464 U.S. 851 (1983); see also Sec’y of Labor on behalf of Keene v. Mullins, 888 F.2d 

1448, 1453 n.15 (D.C. Cir. 1989). Certainly there is no suggestion in the language employed by 

Congress in section 105(c)(3) matters that miners proceeding under that provision are to be 

treated as second class complainants. Though it may be that some other court may side with 

JCG’s position, it is not for the Commission’s judges to anticipate what another tribunal may 

conclude about the breadth and effect of Mine Act discrimination. 

Discovery remains vital to the fair determination of potential successor liability for a 

number of reasons.8 First, though the § 363(f) proceeding under the Bankruptcy Code has been 

8

 It is noted that fellow Administrative Law Judge David Simonton recently issued a 

briefing order relevant to these issues. After noting that there is legal ambiguity concerning the 

“correct interaction of bankruptcy law and the Commission’s successorship doctrine,” Judge 

Simonton concluded that “the most prudent course of action is to first resolve the factual 

question of JCG’s successorship status before proceeding to potential bankruptcy protection 

issues,” and, in line with view, that stated “further discovery into the facts of JCG’s acquisition 

and operation of the Jerritt Canyon Mill mine is necessary to determine if JCG, Eric Sprott and 

Whitebox Asset Management are liable as successors in interest for the conduct of Veris.” 

Briefing Order at 2, Sec’y of Labor on behalf of Morreale v. Veris Gold U.S.A. Inc., WEST 

2014-793 (FMSHRC Apr. 21, 2016). Helpfully, Judge Simonton directed the respondents to 

respond to the following non-exclusive, preliminary questions regarding successorship: 

1) Did JCG management learn of the finalized settlement agreement

between the Secretary, Ms. Morreale, and Veris prior to JCG’s purchase of the 

Jerritt Canyon Mill mine? 

2) Did JCG management learn of any pending 105(c) discrimination claim

against Veris Gold USA prior to JCG’s purchase of Veris? 

3) What percentage of Veris Gold USA did Eric Sprott and his subsidiary

holdings, own and/or control prior to JCG’s acquisition of the Jerritt Canyon Mill 

mine? 

4) What percentage of JCG does Eric Sprott and his subsidiary holdings

own and/or control? 

5) What percentage of Veris employees employed at the Jerritt Canyon

Mill mine did JCG rehire following their assumption of mining operations in June 

2015? 

6) What percentage of Veris supervisory agents at the Jerritt Canyon Mill

mine were retained by JCG? In addition to senior management personnel, the 

(continued...) 

38 FMSHRC Page 903
held up by JCG as a badge of authority, this Court’s March 4, 2016, Order noted that several 

commenters have criticized that provision as being extended beyond its natural language and 

seriously deficient from a due process standard. The Court raised several concerns in this regard, 

including the nature of the hearing which occurred before the bankruptcy courts and the 

transcript of such proceeding. Also, as the Court previously noted, the bankruptcy monitor was 

apparently aware of, and inferentially approved, Veris Gold’s attempt to defend the Varady 

discrimination claim at the hearing.9

 That action, in the Court’s view, implicitly accepted that 

the bankruptcy proceeding may not have barred the discrimination action. More likely, Veris 

might have calculated that it could prevail at the hearing but, after it did not, it employed a 

“heads I win, tails you lose” strategy, the latter approach now being asserted. 

Accordingly, for the reasons expressed both in this Court’s March 4, 2016, Order on 

Complainant’s Motion to Amend as well as those stated above, in this Order on Jerritt Canyon 

Gold’s Motion for Certification of Interlocutory Review, JCG’s Motion is DENIED. 

/s/ William B. Moran 

William B. Moran

Administrative Law Judge 

8

 (...continued) 

Commission generally considers supervisors with production and safety 

responsibilities agents of the operator. Nelson Quarries, Inc., 31 FMSHRC 318, 

328-31 (Mar. 2009) (affirming ALJ holding that onsite foremen who conducted

safety examinations and assigned tasks were agents of the operator).

7) Has JCG substantially altered production methods at the Jerritt Canyon

Mill mine? 

Id. at 3. 

9

 Only through discovery can Complainant learn both of the legitimacy of the § 363(f) 

proceeding and the appropriateness of any successorship application. Questions abound. For 

example, in the related matter of Daniel Lowe v. Veris Gold USA, Inc., and Jerritt Canyon Gold, 

LLC, WEST 2014-614-DM, it was earlier suggested that two secured creditors, owed $120 

million, received nothing. See Lowe v. Veris Gold USA, Inc., No. WEST 2014-614-DM, 2016 

WL 1553724, at *6 n.6 (FMSHRC Apr. 7, 2016) (ALJ). Yet, in the present Motion for 

Certification of Interlocutory Review, JCG advises that “the secured creditors received no 

monetary payments.” Motion at 20 (emphasis added). 

38 FMSHRC Page 904
Distribution: 

Mark Kaster, Dorsey & Whitney, LLP, 1500 South 6th Street, Minneapolis, MN 55402 

Annette Jarvis, Dorsey & Whitney, LLP, 136 South Main Street, Suite 1000, Salt Lake City, UT 

84101 

Matthew Varady, 701 S. 5th Street, #6, Elko, NV 89801 

Cathy L. Reece, Fennemore Craig, P.C., 2394 East Camelback Rd., Suite 600, Phoenix, AZ 

85016 

38 FMSHRC Page 905
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

WASHINGTON, DC 20004-1710 

TELEPHONE: 202-434-9900 / FAX: 202-434-9949

April 29, 2016 

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), on 

Behalf of ADAM WHITON, 

Complainant 

v. 

WHARF RESOURCES (USA), INC., 

Respondent 

DISCRIMINATION PROCEEDING 

Docket No. CENT 2016-0221-DM 

RM-MD-16-04 

Mine: The Wharf Mine 

Mine ID: 39-01282

ORDER GRANTING IN PART, AND DENYING IN PART, 

 RESPONDENT’S MOTION TO COMPEL 

Before: Judge McCarthy 

This proceeding involves a discrimination complaint brought by the Secretary of Labor 

on behalf of Adam Whiton under section 105(c)(2) of the Federal Mine Safety and Health Act of 

1977 (the Mine Act}, 30 U.S.C. § 815(c)(2).1 The matter is set for hearing in Deadwood, South 

Dakota on June 14 and 15, 2016, and continuing dates thereafter until completed. 

On April 11, 2016, the Respondent filed a Motion to Compel 18 documents withheld 

during discovery pursuant to the Secretary’s privilege log. On April 15, 2016, the Secretary filed 

an Opposition to Respondent’s Motion to Compel. During an April 20, 2016 conference call, I 

ordered in camera review of the documents at issue. 

Commission Procedural Rule 56(b) provides that parties may obtain discovery of any 

relevant matter that is not privileged. 29 C.F.R. § 2700.56(b). A Commission judge is authorized 

to exercise wide discretion in ruling on discovery issues and the Commission does not substitute 

its judgment for that of the judge unless error or abuse of discretion has occurred. In Re: 

Contests of Respirable Dust Sample Alteration Citations, 14 FMSHRC 987, 1004 (1992). 

Following my in camera review, I grant the motion to compel production of five 

Memorandums of Interview taken from management agents. The Secretary is ORDERED to 

turn these witness statements over immediately. In all other respects, the Respondent’s Motion to 

1

 On January 21, 2016, I issued an Order of Temporary Economic Reinstatement in 

Docket No. CENT 2016-0136. 

38 FMSHRC Page 906
Compel is DENIED. The remaining seven Memorandums of Interview are subject to the Jenks

rule. See generally Jenks v. United States, 353 U.S. 657, 667-69 (1957); 18 U.S.C. § 3500.2

 

Documents at Issue 

1. MSHA Case Analysis

The first document at issue is an undated Case Analysis, prepared by MSHA analyst, Joel

Gerhard, recommending that further action be pursued on Whiton’s behalf under section 

105(c)(2). The Secretary claims work product, deliberative process, and attorney client 

privilege. I agree, but need not pass on the latter two privileges. 

The document was prepared in anticipation of litigation or for trial on behalf of a party or 

that party’s representative. Accordingly, the document is privileged work product. The work 

product privileged is qualified and subject to disclosure only upon a showing that the requesting 

party has substantial need for the material to prepare its case and cannot, without undue hardship, 

obtain the substantial equivalent by other means. See e.g., Consolidation Coal, 19 FMSHRC 

1239, 1242-43; Fed. R. Civ. P. 26(b)(3), incorporated by Commission Procedural Rule 1(b), 29 

C.F.R. § 2700.1(b). Respondent makes no such showing. See R. Mot. at 6-7. Even if

Respondent had made such a showing, the document discloses a party representative’s mental

impressions, conclusions, opinions, and legal theories, and such work product, including the

evaluative and analytical discussion of facts inextricably intertwined therein, cannot be disclosed

simply on a showing of substantial need or inability to obtain the equivalent without undue

hardship. Upjohn Co. v. U.S., 449 U.S. 383, 400 (1980); Fed. R. Civ. P. 26(b)(3)(B).

2. Special Investigator Dan Scherer’s Special Investigative Report

The second document at issue is Special Investigator Dan Scherer’s December 10, 2015

Special Investigative Report. The Secretary claims work product, deliberative process, 

informant, and attorney client privilege. I agree, but need not pass on the latter three privileges. 

The document is privileged work product that is not subject to disclosure for all of the reasons 

set forth in 1 above. 

3. 12 Memorandums of Interview

The Secretary asserts work product privilege and informant’s privilege for each of the 12

Memorandums of Interview documents at issue in his privilege log. The informant’s privilege 

protects the identity of the informant, not his statement, unless disclosure of the contents of the 

statement would tend to reveal the identity of the informant. See Brock v. Frank V. Panzarino, 

Inc., 109 F.R.D. 157, 158 (1986), citing Roviano v. United States, 353 U.S. 53, 60 (1957) and 4 

Moore’s Federal Practice ¶ 26.61 [6.-2] (2d Ed. 1981). An informant is any person who has 

2

 The Jenks Rule applies to civil proceedings. See e.g., Thunder Basin Coal Company, 15 

FMSHRC 2228, 2237 (1993); Brennan v. Engineered Products, Inc., 506 F.2d 299, 303 (8th Cir. 

1974); National Labor Relations Board, Division of Judges Bench Book, An NLRB Trial 

Manual, August 2010, § 8-500. 

38 FMSHRC Page 907
furnished information to a government official to assist in the government’s investigation of a 

possible violation of the law, including the Mine Act. Bright Coal Co., 6 FMSHRC 2520, 2525 

(1984). The Memorandums of Interview taken by Special Investigator Scherer include both 

privileged and unprivileged matter, to wit, the identities of the informants and the substance of 

their statements. The in camera review ordered properly balances the public interest in efficient 

enforcement of the Mine Act, the informants’ right to be protected against possible retaliation, 

and Respondent’s need to prepare for trial. Cf., Hodgson v. Charles Martin Inspectors of 

Petroleum, Inc., 459 F.2d 303, 305 (5th Cir. 1972); Bright Coal, FMSHRC at 2525. 

Applying the Bright Coal balancing test, I find the Memorandums of Interview to be 

relevant and discoverable. I further find them subject to qualified informant and work product 

privileges at the discovery stage, except for statements taken from management agents with 

counsel present, which must be turned over immediately. I have considered the discriminatory 

discharge alleged, the Respondent’s defense that Whiton called another miner a derogatory 

name, the significance of certain informant testimony concerning Whiton’s protected activity and 

Respondent’s defense, the possibility of retaliation or harassment against said informants, and 

the fact that the substantial equivalent of the information elicited by Special Investigator Scherer 

is available through the same sources based on Respondent’s own investigatory prowess. I 

conclude that the Secretary’s need to maintain the privileges to preserve the identity of 

informants and the work product of its special investigator outweighs the Respondent’s need for 

the information, until witnesses are called at trial. 

The Secretary asserts in his Opposition that there are two types of witness interview 

memorandums. The first are unsigned memorandums, which represent the work product of 

investigator Scherer and may be withheld from disclosure. Baylor Mining, Inc., 26 FMSHRC 

739, 742 (2004)(ALJ).3

 The second are memorandums signed and adopted by the interviewees, 

which may be disclosed at trial pursuant to the Jenks Act, 18 U.S.C. § 3500. See Thunder Basin, 

15 FMSHRC at 2237 (1993). 

Contrary to the Secretary, I find no difference between the two types of statements in the 

circumstances of this case. Under the Jenks Act, the term “statement” includes not only a written 

statement made and signed or otherwise adopted or approved by the witness, but also any 

“ ... other recording, or a transcription thereof, which is a substantially verbatim recital of an oral 

statement made by said witness and recorded contemporaneously with the making of such oral 

statement ...” 18 U.S.C. § 3500(e)(1) and (2). 

Three Memorandums of Interview were signed and adopted by the interviewees. Each of 

the nine unsigned Memorandums of Interview were prepared from notes made by Special 

Investigator Scherer during and immediately after the interview and Scherer verified that he 

3 In Bright Coal, the Commission found it apparent that the Secretary’s underlying 

motive for invoking the executive and work product privilege was to shield the identity of 

informants. Accordingly, the Commission found that the memorandum of interview issue should 

be resolved in straight-forward fashion by addressing the issue solely in the context of the 

informant’s privilege. See Bright Coal, 6 FMSHRC at 2520 n. 1. There was no discussion of why 

the Commission’s conclusion regarding the Secretary’s motive was apparent. 

38 FMSHRC Page 908
recorded in summary fashion all pertinent matters discussed with the interviewee. Accordingly, I 

find that all 12 Memorandums of Interview are “statements” for purposes of Jenks. 

Five of the nine unsigned Memorandums of Interview were given by management agents, 

with counsel present. Under these circumstances, Respondent is entitled to a copy of these 

previous statements in discovery as they are not protected by the work product or informant’s 

privilege. See Fed. R. Civ. P. 26(b)(3); Rovario, 353 U.S. at 60 (suggesting that informant’s 

privilege is waived once the identity of the informant is disclosed); Thunder Basin, 15 FMSHRC 

at 2236 (informant privilege waived where there is an express identification of the individual as 

an informant). 

With regard to the remaining seven Memorandums of Interview, based on the Bright 

Coal factors balanced above, I find that the Secretary’s interest in protecting the identity of its 

informants and work product outweigh the Respondent’s need for the statements of potential 

government witnesses at the discovery stage. See Brennan v. Engineered Products, Inc., 506 

F.2d 299, 303 (8th Cir. 1974). I also note that the contested issues of protected activity, adverse

action, nexus, and Respondent’s defense are peculiarly within Respondent’s knowledge, and if it

had no knowledge, there is no prima facie case. Further, Respondent can take its own statements

and depose potentially adverse witnesses. “Discovery was hardly intended to enable a learned

profession to perform its functions . . . on wits borrowed from the adversary.” Hickman v.

Taylor, 329 U.S. 495, 516 (1947)(Justice Jackson concurring).

In the exercise of my discretion, after in camera review, I will order the remaining seven 

witness statements to be turned over at trial, pursuant to a proper invocation of the Jenks rule by 

Respondent, after each potential witness has testified under direct examination. The Secretary 

may request appropriate redactions at that time. See 18 U.S.C. § 3500(c). 

4. Memorandum to File From Special Investigator Scherer Dated November 5, 2015

The Secretary claims that this document is privileged work product. I agree. The

document was prepared in anticipation of litigation or for trial on behalf of a party or that party’s 

representative. Accordingly, the document is privileged work product. The work product 

privileged is qualified and subject to disclosure only upon a showing that the requesting party 

has substantial need for the material to prepare its case and cannot, without undue hardship, 

obtain the substantial equivalent by other means. See e.g., Consolidation Coal, 19 FMSHRC at 

1242-43; Fed. R. Civ. P. 26(b)(3), incorporated by Commission Procedural Rule 1(b), 29 C.F.R. 

§ 2700.1(b). Respondent makes no such showing. See R. Mot. at 10. Even if Respondent had

made such a showing, the document was incorporated into the Special Investigative Report to

disclose a particular legal theory and therefore cannot be disclosed simply on a showing of

substantial need or inability to obtain the equivalent without undue hardship. Upjohn, 449 U.S.

at 400 (1980); Fed. R. Civ. P. 26(b)(3)(B).

5. Memorandum to File From Special Investigator Scherer Dated November 2, 2015

The Secretary claims that this document is protected from disclosure by work product,

informant, and common interest privileges. I need not pass on the latter two privileges. The 

38 FMSHRC Page 909
document was prepared in anticipation of litigation or for trial on behalf of a party or that party’s 

representative. Accordingly, the document is privileged work product. The work product 

privilege is qualified and subject to disclosure only upon a showing that the requesting party has 

substantial need for the material to prepare its case and cannot, without undue hardship, obtain 

the substantial equivalent by other means. See e.g., Consolidation Coal, 19 FMSHRC at 1242-

43; Fed. R. Civ. P. 26(b)(3), incorporated by Commission Procedural Rule 1(b), 29 C.F.R. § 

2700.1(b). Respondent makes no such showing. See R. Mot. at 10. Further, Respondent has 

other means to obtain the same or equivalent information without undue hardship. Even if 

Respondent had made such a showing, the Memorandum to File refers to certain documents 

given to Special Investigator Scherer by complainant Whiton to support the legal theory of the 

case in the Special Investigative Report and such work product cannot be disclosed simply on a 

showing of substantial need or inability to obtain the equivalent without undue hardship. 

Upjohn, 449 U.S. at 400; Fed. R. Civ. P. 26(b)(3)(B). 

6. Various Handwritten Notes from Special Investigator Scherer

The Secretary claims that these notes are protected from disclosure by work product,

attorney client, informant, and common interest privileges. I need not pass on the latter three 

privileges. The handwritten notes were prepared by Scherer in anticipation of litigation and the 

notes record the results of witness leads or interviews conducted during the course of the special 

investigation. Accordingly, the notes are privileged work product. The work product privilege 

is qualified and subject to disclosure only upon a showing that the requesting party has 

substantial need for the material to prepare its case and cannot, without undue hardship, obtain 

the substantial equivalent by other means. See e.g., Consolidation Coal, 19 FMSHRC at 1242-

43; Fed. R. Civ. P. 26(b)(3), incorporated by Commission Procedural Rule 1(b), 29 C.F.R. § 

2700.1(b). Respondent makes no such showing. See R. Mot. at 10. Further, Respondent has 

other means to obtain the same or equivalent information without undue hardship. Respondent 

can conduct its own expansive investigation, take its own notes from potential witnesses, and 

depose potentially adverse witnesses. As noted, discovery was hardly intended to enable learned 

counsel to perform its functions on wits borrowed from its adversary. Hickman v. Taylor, 329 

U.S. at 516. In the exercise of my discretion following in camera review, I find that the 

Respondent has failed to demonstrate either the substantial need or the undue hardship necessary 

to overcome the qualified immunity provided by the work product privilege. See Brock v. Frank 

V. Panzarino, 109 F.R.D. at 160.

7. Typewritten Pages Given by Complainant Whiton to Special Investigator Scherer4

The Secretary claims that this document is protected from disclosure by work product

informant, and common interest privileges. I need not pass on the latter two privileges, although 

I note that the document lists informants and potential informants. The document was prepared 

in anticipation of litigation or for trial on behalf of a party or that party’s representative. 

Accordingly, the document is privileged work product. The work product privilege is qualified 

4

 The Secretary’s privilege log describes this document as an undated, typewritten page, 

but the document that was provided for in camera review is a two-page email from Complainant 

Whiton to Special Investigator Scherer, incorporating the apparent typewritten material. 

38 FMSHRC Page 910
and subject to disclosure only upon a showing that the requesting party has substantial need for 

the material to prepare its case and cannot, without undue hardship, obtain the substantial 

equivalent by other means. See e.g., Consolidation Coal, 19 FMSHRC at 1242-43; Fed. R. Civ. 

P. 26(b)(3), incorporated by Commission Procedural Rule 1(b), 29 C.F.R. § 2700.1(b).

Respondent makes no such showing. See R. Mot. at 10. Further, Respondent has other means to

obtain the same or equivalent information without undue hardship. Even if Respondent had made

such a showing, the document, apart from the informant and potential informant contact

information, was given to Special Investigator Scherer by complainant Whiton to support

Whiton’s opinion, mental impression, and legal theory about the case. Such work product cannot

be disclosed simply on a showing of substantial need or inability to obtain the equivalent without

undue hardship. Upjohn, 449 U.S. at 400; Fed. R. Civ. P. 26(b)(3)(B).

ORDER 

Respondent’s Motion to Compel is GRANTED for the five Memorandums of Interview 

taken from management agents, with counsel present. The Secretary is ORDERED to turn these 

witness statements over immediately. In all other respects, the Respondent’s Motion to Compel 

is DENIED. The remaining seven Memorandums of Interview are subject to the Jenks rule. 

It is FURTHER ORDERED that the privileged documents be placed under seal as part 

of the record for use on any appeal. 

SO ORDERED. 

/s/ Thomas P. McCarthy 

Thomas P. McCarthy 

Administrative Law Judge 

Distribution: (Electronic and First Class Mail) 

Donna Pryor, Esq., Jackson Lewis LLP, 950 17th Street, Suite 2600, Denver, CO 80202 

Michele Horn, Esq., U.S. Department of Labor, Office of the Solicitor, 1244 Speer Blvd., Suite 

216, Denver, CO 80204 

38 FMSHRC Page 911