i 

June 2017 

TABLE OF CONTENTS 

ADMINISTRATIVE LAW JUDGE DECISIONS 

06-02-17 PINTO VALLEY MINING CORP. WEST 2016-0729 Page 1209

06-02-17 SEMINOLE COAL RESOURCES, 

LLC 

WEVA 2016-0621 Page 1213

06-05-17 NALLY & HAMILTON 

ENTERPRISES, INC. 

KENT 2016-439 Page 1215

06-05-17 BIG RIDGE, INC LAKE 2009-57 Page 1226

06-08-17 THOMPSON ELECTRIC, INC. LAKE 2015-596 Page 1228

06-09-17 BUNDY AUGER MINING, INC. WEVA 2015-1036 Page 1240

06-15-17 THE AMERICAN COAL COMPANY LAKE 2009-0035 Page 1247

06-21-17 CONSOLIDATION COAL CO. now 

THE OHIO COUNTY COAL CO. 

WEVA 2016-0123 Page 1271

06-30-17 CONSOL PENNSYLVANIA COAL 

COMPANY, LLC 

PENN 2014-816 Page 1279

ADMINISTRATIVE LAW JUDGE ORDERS 

06-19-17 JASON FARMER v. SPARTAN 

MINING CO., LLC, AND ALPHA 

NATURAL RESOURCES 

HOLDINGS, INC. 

WEVA 2017-343-D Page 1301
ii 

06-21-17 CONSOL PENNSYLVANIA COAL 

COMPANY, LLC 

PENN 2015-260 Page 1309

06-28-17 ARGUS ENERGY WV, LLC WEVA 2017-0158 Page 1317
iii 

Review was granted in the following cases during the month of June 2017: 

Michael Wilson, et al v. Armstrong Coal Company, Inc. and Brandon Shemwell v. Armstrong 

Coal Company, Inc. and Justin Greenwell v. Armstrong Coal Company, Inc., Docket Nos. 

KENT 2015-673-D, et al (Judge Lewis, May 9, 2017) 

Secretary of Labor v. The American Coal Company, et al, Docket No. LAKE 2011-13 (Judge 

Moran, May 2, 2017) (Interlocutory Review) 

Review was denied in the following cases during the month of June 2017: 

Matthew Bane v. Dennison Mines (USA) Corp., now known as Energy Fuels Resources (USA), 

Inc., Docket Nos. WEST 2012-1224 DM (Judge Gill, April 27, 2017) 

Secretary of Labor obo Jerry Ramsey v. Vulcan Construction Materials, LLC, Docket No. SE 

2016-145-DM (Judge Moran, May 5, 2017) 

Previously unpublished in FMSHRC’s Volume 39, No. 5: 

Secretary of Labor v. The American Coal Co., Docket No. LAKE 2011-13 (Judge Moran, May 

2, 2017) 

ADMINISTRATIVE LAW JUDGE DECISIONS
39 FMSHRC Page 1208
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004-1710 

PHONE: (202) 434-9933 | FAX: (202) 434-9949 

June 2, 2017 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), Docket No. WEST 2016-0729 

Petitioner, A.C. No. 02-01049-416209

v. 

PINTO VALLEY MINING CORP., Mine: Pinto Valley Mine 

Respondent. 

DECISION DENYING SETTLEMENT 

Before: Judge Moran 

This case is before the Court upon a petition for assessment of a civil penalty under 

section 105(d) of the Federal Mine Safety and Health Act of 1977 (“Mine Act” or “Act). On 

April 25, 2017, the Secretary filed a motion to approve settlement (“Secretary’s motion” or 

“Motion”).

The Court has considered the representations submitted in this case and, applying section 

110(k) of the Act, finds the proffered settlement wanting. Two citations are problematic.1

 The 

two citations for which insufficient information was provided are Citation Nos. 9302206 and 

8934146. 

Regarding Citation No. 9302206, a section 104(a) citation alleging a violation of 30 

C.F.R. § 56.9300(a), the inspector related,

SX Non potable and potable water service tank road access. The berm on the south side 

of the circular roadway has sloughed from wet weather leaving a section of road without 

a berm. Two traffic cones demarcating the slough have fallen over the edge. Truck tire 

tracks are approx.. 2 ft. from the edge. The operator states the road is accessed daily by 

pick up [sic] truck for tank measurement. Should normal operations continue, persons 

would be exposed to an approx. 40 - 50 ft. rollover hazard down the hillside. 

Citation No. 9302206 (emphasis added). 

The Secretary’s motion sought a 50% reduction in the penalty amount for this citation. 

Although the Respondent asserted plausible mitigating contentions, that “the cited condition was

1

 There are four citations at issue in this matter. Two are not discussed here: Citation Nos. 

8934539 and 8934544, which the Respondent agreed to pay as assessed with no modification to 

either as part of the proposed settlement. 

39 FMSHRC Page 1209
not likely to result in an injury because the cited location was wide and infrequently traveled, 

there is one truck in the area at a time, and it travels at only 5 mph,” the Secretary offered no 

useful comment to those contentions. Motion at 2. Instead, the Secretary stated only that he 

“would have presented evidence supporting the citation as written.” Id. (emphasis added). The 

Secretary then continues, “nevertheless, without admitting that Respondent’s arguments are 

relevant or persuasive, [he] agrees to modify the citation’s gravity designations from Reasonably 

Likely to Unlikely and from Significant and Substantial (“S&S”) to Non-S&S, and agrees to 

reduce the penalty from $2,398.00 to $1,200.00.” Motion at 2-3.

Accordingly, the Secretary has provided absolutely nothing to support the reduction. To 

the contrary, the Secretary did not even concede that the Respondent presented legitimate issues 

of fact that can be resolved only by going to hearing. One needs to put this insufficient statement 

in further context by appreciating that the Secretary’s offering, if it can be described as such, is 

his fallback position. The Secretary’s initial position on settlements remains that he “has 

evaluated the value of the compromise, the likelihood of obtaining a still better settlement, the 

prospects of coming out better, or worse, after a full trial, and the resources that would need to be 

expended in the attempt. The Secretary has determined that the public interest and the effective 

enforcement and deterrent purposes of the Mine Act are best served by settling the citations as 

indicated above.” Motion at 2. 

It is only after announcing his primary position, that the Secretary has determined how

the Mine Act is best served through his settlement, that he acknowledges that the Commission 

has issued a “recent decision” finding that the Commission’s procedural rules require support for 

settlements.2 Id. (emphasis added). In that context, the Secretary then “presents... information in 

support of the penalties agreed to by the parties.” Id. Though the language suggests that 

“information in support of the penalties” will then be provided in the motion, the only mitigating 

factual assertions come from the Respondent, as the Secretary, with no congruity between the 

parties at all, simply announces that he “agrees to modify the citation’s gravity designations from 

Reasonably Likely to Unlikely and from Significant and Substantial (“S&S”) to Non-S&S, and 

agrees to reduce the penalty from $2,398.00 to $1,200.00.” Motion at 3. Why the Secretary so 

agrees to the proposed changes is never explained. In fact, discordantly, the Secretary asserts that 

he would have presented evidence supporting the citation as was written, and does not admit that 

the reasons advanced by the Respondent are persuasive, or even relevant. 

Simply stated, a settlement motion such as this cannot be approved when only the mine 

operator advances claimed mitigating factors and the Secretary offers no comment in support of 

such claims and exacerbates that shortcoming by taking matters a step further, denying that the 

claimed mitigating factors are persuasive or relevant. 

2

 This presumably refers to The American Coal Company, which reaffirmed that 

Congress authorized the Commission to review in detail settlements of contested civil penalties 

before approving them. The American Coal Co., 38 FMSHRC 1972 (Aug. 2016) (citing Black 

Beauty Coal Co., 34 FMSHRC 1856, 1862 (Aug. 2012)). 

39 FMSHRC Page 1210
If one were to try to present such a motion mathematically, it might appear in this 

manner: 

Mine operator’s representations about facts that may mitigate a violation 

– Secretary failure to concede presence of genuine factual dispute regarding operator’s

representations + no additional information from the Secretary about those

representations = invalid settlement.

For the other matter, Citation No. 8934146, the Secretary takes the same approach as he 

did in the previous citation, this time seeking a 28% penalty reduction. Though the penalty 

reduction is different, the playbook is the same. The citation alleges, 

[a] 3⁄4 inch water hose was strung out on the ground level pad on the North side of the

Fine Ore Crushing building in front of the stairway to the Crusher Motor Level. The hose

was elevated off the floor on one end and coiled up in a pile on the other side about three

feet from the bottom of the steps to the Crusher Motor Level. This condition exposed

workers accessing the stairway to a slip, fall hazard that could cause a serious injury.

Citation No. 8934146. 

39 FMSHRC Page 1211
After making the condition sound less serious, describing it only as “a hose in front of a 

stairway,” the Secretary’s Motion states, the “Respondent would have argued at hearing for 

modification of the citation’s gravity designations because, Respondent argues, the hose was 

easily visible and did not present a tripping hazard.” Motion at 3. The Court observes that these 

are plausible reasons to support a reduced penalty and changes to the gravity determinations 

listed by the issuing inspector. However, as just noted, hearing only from one side is insufficient 

in matters of proposed settlements. Indeed, the idea behind a settlement often is that the parties 

acknowledge some legitimate disputes about the facts. This means that the Court must hear from 

both sides. Yet, employing his formulaic response, the Secretary again only recites his routine 

statement that he “would have presented evidence supporting the citation as written.” Id. 

(emphasis added). Then, as before, the Secretary continues that, “nevertheless, without admitting 

that Respondent’s arguments are relevant or persuasive, [he] agrees to modify the citation’s 

gravity designations from Reasonably Likely to Unlikely and from S&S to Non-S&S, and agrees 

to reduce the penalty from $722.00 to $520.00.” Id. As there is no explanation provided by the 

Secretary for the gravity modifications, nor for the penalty reduction, this proposed settlement is 

also inadequately supported. 

WHEREFORE, the motion for approval of settlement, being deficient, is DENIED. 

This matter must now be set for hearing.3

 

/s/ William B. Moran 

William B. Moran 

Administrative Law Judge 

Distribution: 

Ryan L. Pardue, Esq., Office of the Solicitor, U.S. Department of Labor, 1244 Speer Blvd., 

Suite 216, Denver, Colorado 80204 

Donna V. Pryor, Esq., Husch Blackwell LLP, 1801 Wewatta Street, Suite 1000, Denver, 

Colorado 80202 

3

 Setting a matter for hearing does not foreclose the parties’ option to submit a new, 

adequately supported motion for approval of settlement. However, this possibility is an 

insufficient basis to postpone establishing a hearing date.

39 FMSHRC Page 1212
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004-1710 

PHONE: (202) 434-9933 | FAX: (202) 434-9949 

June 2, 2017 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), Docket No. WEVA 2016-0621 

Petitioner, A.C. No. 46-04236-419753

v. 

SEMINOLE COAL RESOURCES, LLC, Mine: Maple Eagle No. 1 

Respondent. 

DECISION APPROVING SETTLEMENT 

Before: Judge Moran 

This case is before the Court upon a petition for assessment of a civil penalty under 

section 105(d) of the Federal Mine Safety and Health Act of 1977. The Secretary has filed a 

motion to approve settlement. The originally assessed amount was $5,338.00, and the proposed 

settlement is for $3,737.00. The Secretary also requests that the single citation at issue be 

modified, as indicated below. 

The Secretary presents the following basis for the proposed changes to Citation No. 

9111506, which alleged a violation of 30 C.F.R. § 75.220(a)(1):

The Respondent contends that the Section Foreman examined the working places 

and found no issues in the #5 entry. The Respondent also contends that four 

reflectors were hung in the crosscut and entry as required by the plan but that the 

inspector did not agree with the location of the reflectors. The Respondent would 

also argue if this matter went to hearing that it was not reasonably likely that 

anyone would travel inby the unsupported roof and, therefore, the citation should 

not have been designated as S&S. In light of these arguments and recognizing the 

uncertainty of the outcome of these issues, the Secretary agrees to the above 

modification and penalty reduction. 

Motion at 3. 

Again, we see the 30% reduction the Secretary seems to be offering with 

frequency. In this instance, the Court will infer that the Secretary is admitting that there 

are legitimate questions of fact raised by the Respondent, though for some reason the 

Secretary is reticent to admit this frontally, relying instead upon his wording that “[i]n 

light of these arguments and recognizing the uncertainty of the outcome of these issues, 

the Secretary agrees to the above modification and penalty reduction.” Id. 

39 FMSHRC Page 1213
With the comments above in mind, the Court has considered the representations 

submitted in this case and, with those, the implicit acknowledgement by the Secretary that the 

Respondent’s representations present legitimate issues of fact. Working under that inference, the 

Court concludes that the proffered settlement is appropriate under the criteria set forth in section 

110(i) of the Act. The settlement amounts are as follows: 

 Citation No. Assessment Settlement Amount 

9111506 $5,338.00 $3,737.00 

 

TOTAL: $5,338.00 $3,737.00 

WHEREFORE, the motion for approval of settlement is GRANTED. 

It is ORDERED that Citation No. 9111506 be MODIFIED to a section 104(a) citation, 

with a high negligence designation. 

It is further ORDERED that Respondent pay a penalty of $3,737.00 within 30 days of 

this order.1 Upon receipt of payment, this case is DISMISSED. 

 /s/ William B. Moran 

William B. Moran 

Administrative Law Judge 

Distribution: 

Jacob M. Hargraves, Esq., U. S. Department of Labor, 201 12th Street South, Suite 401, 

Arlington, VA 22202-5450 

Michael Cimino, Esq., Jackson Kelly, PLLC, 500 Lee Street East, P.O. Box 553, Suite 1600, 

Charleston, WV 25301-3202

 1

 Payment should be sent to: MINE SAFETY AND HEALTH ADMINISTRATION, 

U.S. DEPARTMENT OF LABOR, PAYMENT OFFICE, P.O. BOX 790390, ST. LOUIS, MO 

63179-0390 

39 FMSHRC Page 1214
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 

June 5, 2017 

DECISION 

Appearances: Mary Sue Taylor, U.S. Department of Labor, Office of the Solicitor 

 618 Church Street, Suite 230, Nashville, Tennessee 37219 

S. Thomas Hamilton, Nally & Hamilton Enterprises, Inc., 212 East 

Stephen Foster Avenue, Bardstown, Kentucky 40004 

Before: Judge Simonton 

I. INTRODUCTION 

This case is before me on a petition for assessment of civil penalty filed by the Secretary 

of Labor, acting through the Mine Safety and Health Administration, against Nally & Hamilton 

Enterprises, Inc. (“NHE” or “Respondent”), pursuant to the Federal Mine Safety and Health Act 

of 1977 (“Mine Act”), 30 U.S.C. §801. This case involves Citation No. 8409739, issued on 

December 16, 2016 for an assessed penalty of $634.00. The citation was designated as 

significant and substantial (S&S), highly likely to result in lost workdays or restricted duty, and 

the result of NHE’s moderate negligence. 

The parties presented testimony and documentary evidence at a hearing held in London, 

Kentucky on March 2, 2017. MSHA Inspector David Faulkner testified for the Secretary. Day 

Branch Mine Foreman Mike Shackleford testified for Nally & Hamilton. After fully considering 

the testimony and evidence presented at hearing, I find that the Secretary met his burden in 

establishing the violation and gravity as written in the citation. I reduce Nally and Hamilton’s 

negligence from moderate to low and assess a penalty of $500.00. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION, (MSHA), 

 Petitioner, 

 v. 

NALLY & HAMILTON ENTERPRISES, 

INC., 

 Respondent. 

 CIVIL PENALTY PROCEEDING 

Docket No. KENT 2016-439 

A.C. No. 15-19757-415241 

Mine: Day Branch 

39 FMSHRC Page 1215
II. STIPULATIONS OF FACT 

The parties entered the following stipulations of fact into the record at hearing: 

1. Nally and Hamilton Enterprises, Inc., extracts and produces coal for resale in interstate 

commerce at its Day Branch surface mine. See Tr. 8. 

2. Nally and Hamilton Enterprises, Inc., is an operator as defined by the Federal Mine 

Safety and Health Act of 1977 and is subject to the jurisdiction of the Federal Mine Safety 

and Health Review Commission and its administrative law judges. Id. 

3. The Day Branch surface mine reported that it had 33 to 35 employees working 99,823 

hours and producing 310,980 tons of coal in 2016. Id. 

4. The civil money penalty as assessed will not affect the ability of Nally and Hamilton 

Enterprises, Inc., to continue in business. Id. 

III. FINDINGS OF FACT AND SUMMARY OF TESTIMONY

On December 16, 2016, MSHA Inspector David Faulkner1

 visited Respondent’s Day 

Branch Mine (“Mine”) to perform a routine inspection. Tr. 13. Prior to the inspection, Faulkner 

reviewed the Mine’s ground control plan, in which the mine operator lists the type of mining, the 

seams they will mine, and any provisions the operator will follow at that specific mine. Tr. 14–

15. The provisions at issue in this case (Items 6 and 7) only apply to haul roads, which the plan 

defines as roads where coal or mining rock trucks normally operate. See Ex. 3 at 14. Item 6 

requires haul roads to have a grade below the manufacturer-recommended maximum for the 

trucks using the road. Tr. 28; Ex. 3 at 14. If there is no recommended maximum, then the road 

grade must be no greater than 15%. Id. Item 7 requires roads with grades greater than 10% to 

have additional safety precautions, including signs warning of steep grades and a reduced speed 

limit, runaway ramps, and berms at least two feet tall. Tr. 28–29, 69; Ex. 3 at 14. 

Once at the Mine, Faulkner and his supervisor traveled from the parking lot up past the 

Creech coal seam and up to a drill bench. Tr. 16–18. On the way up, Faulkner did not see 

anything that made him think the road was a haul road, but later noticed that the coal seam had 

been mined at some point. Tr. 42, 19–20. The amount of exposed highwall signaled that about a 

month’s worth of mining had been completed. Tr. 58–59. Faulkner thought that Respondent had 

recently mined the highwall because mine management added the Creech coal seam to the 

ground control plan roughly two months prior to Faulkner’s visit. Tr. 26–27. Faulkner testified 

that Day Branch Mine Foreman Mike Shackleford “insinuated” that trucks had hauled coal from 

the seam using the road, but Faulkner did not include that fact in his notes from that day or in the 

 1

 David Faulkner has worked as a mine inspector for MSHA for over 11 years and 

worked in the mining industry for 17 years prior to that. Tr. 11–12. He is licensed as a surface 

mine foreman in Kentucky and as an open pit mine foreman in Tennessee. Tr. 12. Faulkner has 

also completed all courses required for MSHA inspectors on topics such as accident 

investigation, impoundment specialist training, and regular mine inspection. Tr. 13. 

39 FMSHRC Page 1216
citation he issued. Tr. 24–25, 31–32, 41. Shackleford later testified at hearing that NHE had 

removed between 25 and 30 loads of coal from the Creech seam. Tr. 73. 

Faulkner determined that the road was a haul road because of the coal seam’s location 

relative to the rest of the equipment. Tr. 35–36. The cited road was the only way he could see to 

haul coal out from the seam, and he inferred that Respondent had used the cited road to haul it 

out. Tr. 27, 54. However, the only truck that used the road the day of the inspection was the 

powder truck, and Faulkner said that Respondent did not haul coal that day. Tr. 50-51. 

Returning from the drill bench, Faulkner stopped roughly halfway down the road to take 

pictures and measure the road grade. Tr. 20–21. He used an Abney level and a laser rangefinder 

to measure the grade from the road’s halfway point to the Creech coal seam at 25%. Tr. 29–31. 

Faulkner requested the powder truck’s manufacturer-recommended grade maximum but found 

they had not been provided, so the ground control plan’s prescribed 15% maximum applied. Tr. 

34–35; Ex. 3 at 14. He did not ask for the coal truck’s recommended maximum because in his 

experience the manufacturer normally did not provide it, in which case the 15% maximum would 

also apply. Id. 

Shackleford testified that he measured the road grade at 13% and that the road grade was 

in compliance with the ground control plan when Respondent was hauling coal the week before 

the inspection. Tr. 70–71. Shackleford attributed any increase in road grade to a construction 

project on the road at the time of the inspection, which pushed materials across the road with a 

bull dozer and raised the grade. Tr. 70–71. He told Faulkner that they were widening the road 

and reducing the grade by pushing out the material. Tr. 43–44, 66–68. However, Shackleford 

later testified that the work they were doing on the road would only change the road’s 

appearance and not the grade. Tr. 77. He also testified that the grade of the portion of the road in 

Faulkner’s photographs did not change since Respondent used the road to haul coal. Tr. 22, 75–

77. Based on the mountain’s terrain and elevation and how the road was cut into the mountain, 

Faulkner believed that the road’s grade had never been compliant. Tr. 27, 55. 

In addition to being too steep, Faulkner also alleged that the cited road provided none of 

the safety features listed in Item 7. Tr. 33–34. The road did not have a speed limit sign, but did 

have a sign at the top of the hill that warned drivers to use lower gears. Tr. 71–72. This sign did 

not specifically warn that the road grade was above 10%, and Shackleford did not show it to 

Faulkner during the inspection. Id. Shackleford also noted the road had 6-foot berms, which were 

three times the required size. Tr. 69. However, Faulkner testified that only some of the berms 

measured six feet in height. Tr. 33–34. 

Faulkner issued Citation No. 8409739 because Respondent “failed to follow the 

parameters of the Ground Control Plan,” a violation of section 30 C.F.R. §77.1000. Ex. 1. He 

alleged that Respondent violated Items 6 and 7 of the Mine’s ground control plan and that the 

violation was S&S. Id. Using his experience investigating runaway truck accidents, Faulkner 

found NHE moderately negligent based on the likelihood that haul truck drivers would lose 

control of the truck and cause an accident on the road. Tr. 37–39; Ex. 1. He testified that the dirt 

road was not durable enough to provide traction to trucks, which increased the likelihood that a 

39 FMSHRC Page 1217
driver could lose control around the curve on the road. Tr. 38–39. Faulkner said this kind of 

accident would likely result in lost work days or restricted duty. Tr. 37, Ex. 1. 

IV. PARTY ARGUMENTS 

A. Secretary’s Argument

The Secretary argues that the Respondent violated Section 77.1000 by failing to follow 

the safety provisions set out in Items 6 and 7 of the Mine’s ground control plan. Secretary’s PostHearing Brief (Sec’y Br.) at 11. The Secretary alleges that the Mine used the cited portion of the 

road to haul as many as 30 loads from the Creech coal seam. Id. at 8, 10. The Secretary contends 

that hauling coal on a road that is not compliant with Items 6 and 7 of the ground control plan 

could result in haul truck related accidents, which in turn could lead to lost workdays or injuries. 

Id. at 10. 

Faulkner found that the grade of the cited portion of the road was greater than the 

maximum grade allowed by the ground control plan. Sec’y Br. at 8; Tr. 34–35. The Secretary 

argues that Shackleford’s measurement of 13% grade was for the entire roadway, not only the 

cited portion. Sec’y Br. at 9. The Secretary alleges that the difference in measurements is due to 

the fact that the top portion of the entire roadway (the portion Faulkner cited) is much steeper 

than the bottom portion. Id. 

Even at a road grade of 13%, the Secretary argues the road should have provided safety 

precautions required by Item 7. Id. Although NHE posted a sign warning trucks to use lower 

gears at the top of the cited road, Shackleford did not show it to Faulkner, and the Secretary 

argues that the sign did not properly warn of the steep grade. Sec’y Br. at 9-10; Tr. 71. The 

Secretary also argued that the road’s berms were not high enough and the road did not have a 

runaway ramp in case a driver lost control due to the steep grade. Id. at 10. 

B. Respondent’s Argument

The Respondent argues that the citation should be vacated because it was brought under a 

regulatory section that does not apply to road grades. Respondent’s Post Hearing Brief (Resp. 

Br.) at 5, 10. Respondent alleges that the Secretary does not have the authority under the Mine 

Act to regulate road grades and improperly does so through their refusal to acknowledge plans 

without road grade maximums. Id. at 5–6. Respondent also argues that the Court should vacate 

the citation because the road cited was not being used as a haul road and was under construction 

to meet the ground control plan’s standards. Id. at 7. Inspector Faulkner did not see any coal 

trucks use the road the day he cited the Mine, and he said that the powder truck would not have 

merited a violation on its own. Id. 

Alternatively, Respondent argues that if the road had been used to haul coal, there was no 

violation because the Mine complied with the ground control plan. Resp. Br. at 8. NHE claims 

that the Secretary’s photograph exhibits show compliance with berm size and runaway ramp 

requirements, and that warning signs were present on the day of the citation and the day they 

39 FMSHRC Page 1218
were hauling coal. Id. Respondent contends that Shackleford measured the road grade below 

15% and that the road includes safety precautions required by the plan for roads over 10%. Id. 

Finally, assuming the violation occurred, the Respondent argues that it was not S&S 

because there was no likelihood the road grade would result in injuries. Resp. Br. at 10. There 

had been no injuries before the construction and none since because the road was not used while 

under construction. Id. at 11. The Respondent also argues that it was not negligent because it was 

in the process of improving the road at the time of the citation. Id. 

V. ANALYSIS 

A. Citation No. 8409739 

Inspector Faulkner alleged that Nally and Hamilton violated 30 C.F.R. § 77.1000 because 

it failed to maintain the haul road at 15% grade and did not provide adequate safety measures for 

the road, as required by its ground control plan. The provision provides in part:

Each operator shall establish and follow a ground control plan for the safe 

control of all highwalls, pits, and spoil banks to be developed...which shall 

be consistent with prudent engineering design and will insure safe working 

conditions. 

30 C.F.R. § 77.1000 (emphasis added). 

As an initial matter, Respondent argues that MSHA overstepped its authority in issuing 

the citation because section 77.1000 applies only to highwalls, pits, and spoil banks, and not to 

road grades. Resp. Br. at 5-6. NHE therefore claims that MSHA improperly cited to section 

77.1000 to require compliance “in excess of the standards required by the Act and by the 

applicable case law.” Id. at 6. 

I find that MSHA was within its power to regulate road grades and to issue the citation 

for NHE’s failure to follow its ground control plan. The Commission has held that section 

77.1000 requires operators of surface coal mines to establish and follow a ground control plan. 

RNS Services, Inc., 18 FMSHRC 523, 523 n.1 (Apr. 1996); Revelation Energy, LLC, 36 

FMSHRC 1581, 1607 (June 2014) (ALJ) (“[Section 77.1000] simply requires that an operator 

follow the ground control plan, and any failure to do so is a violation of the regulation”). In 

addition to ensuring the safe control of all highwalls, pits, and spoil banks, the ground control 

plan must “insure safe working conditions” at the mine. 30 C.F.R. § 77.1000. Commission 

judges have found this additional mandate to extend over and above the items listed in the 

provision. See Central Appalachia Mining, LLC, 29 FMSHRC 430, 437 (June 2007) (ALJ) 

(Holding that section 77.1000 is applicable to blasting procedures because the provision requires 

operators to submit a plan that will insure safe working conditions); Power Operating Services, 

16 FMSHRC 2331, 2341 (Nov. 1994) (ALJ) (Accepting that section 77.1000 could regulate 

truck dump levels and ramps, but vacating the citation because the operator adequately complied 

with the relevant provisions of the ground control plan).

39 FMSHRC Page 1219
NHE does not dispute that its ground control plan expressly requires it to maintain haul 

roads at a prescribed maximum grade and provide adequate safety measures for roads graded 

above 10%. See Ex. 3 at 14. It is also quite clear that these haul road provisions insure safe 

working conditions around the Creech coal seam. The cited road is the only means of access to 

the Creech coal seam and thus must be used to haul coal out of the mine. See Tr. 27. The road’s 

maintenance is a necessary component of its safe, efficient, and productive development, and 

failure to properly maintain the road in accordance with the ground control plan could result in 

unsafe working conditions at and near the Creech coal seam. In acknowledging the ground 

control plan, MSHA clearly and justifiably believed that haul road regulations were necessary to 

insure safe mining conditions at Day Branch. I therefore find that MSHA possessed the authority 

under section 77.1000 to include and enforce the haul road provisions in Respondent’s ground 

control plan. 

I also reject NHE’s contention that the cited road was not a “haul road” as defined by the 

ground control plan. Resp. Br. at 7. NHE’s ground control plan defines a “haul road” as “roads 

where coal or mining rock trucks normally operate.” Ex. 3 at 14. Inspector Faulkner admitted at 

hearing that NHE was not hauling coal on the day of the inspection, and testified that he issued 

the citation based on his observation of the physical condition of the highwall, the presence of 

the powder truck at the top of the hill near the drill bench, and because Foreman Shackleford 

“insinuated” that NHE hauled coal along the road prior to the inspection. Sec’y Br. at 7. 

Respondent is correct to point out that a powder truck does not haul coal or mining rock 

and therefore does not prove that the road was a haul road under the ground control plan. 

However, Faulkner’s other observations suffice to show that the cited road qualifies as a haul 

road. Faulkner credibly testified that the cited road was the only access road to the Creech coal 

seam and that the condition of the highwall indicated that coal had been mined and removed 

from the area. Tr. 36, 58. Faulkner also noted that extraction from the coal seam must have been 

relatively recent because NHE amended its ground control plan to add the Creech coal seam a 

mere two months prior to the inspection. Tr. 26-27. Faulkner’s inference was confirmed during 

the inspection when Shackleford insinuated to him that NHE previously hauled coal along the 

road. Tr. 24-25, 31-32. His inference was reaffirmed at hearing when Shackleford conceded that 

NHE used the road to haul 25 to 30 loads of coal out from the Creech coal seam a week or so 

prior to the issuance of the citation. Tr. 58, 65, 73. I credit Inspector Faulkner’s observations and 

find Shackleford’s admission to carry significant weight regarding NHE’s use of the road. Based 

on these facts, I find that the road constitutes a haul road as defined by NHE’s ground control 

plan. 

Turning now to the violation itself, I find that NHE violated provision 6 of its ground 

control plan. Provision 6 requires the maximum grade of any haul road to be either 15% or the 

maximum grade recommended by the manufacturer. Ex. 3 at 14. While Faulkner did not ask for 

coal truck manufacturer recommendations, NHE did not provide any at that time and 

Shackleford testified that none were available. Tr. 35, 73. Thus, the 15% maximum grade applies 

to the haul road. 

Inspector Faulkner measured the grade of the road from the midpoint to the Creech coal 

seam with an Abney level and determined that the upper portion of the road measured at a 25% 

39 FMSHRC Page 1220
grade. Tr. 24. He used a laser rangefinder to determine that the steep grade existed for a distance 

of 265 feet. Tr. 29; Ex. 1. Though NHE was not hauling coal at the time of his measurement, I 

credit Faulkner’s testimony that the slope and elevation of the mountain foreclosed any 

possibility that the road’s grade could have changed so drastically since NHE last hauled coal 

over it. Tr. 55. The elevation and slope of the mountain, as well as the manner in which the 

roadway was cut into the terrain of the mountain, suggested that the grade could not have been 

altered to such an extreme degree by the work that NHE was doing. Tr. 27. 

NHE argues that Shackleford measured the road at a grade of 13%, well within the 

requirements of Provision 6. Resp. Br. at 9; Tr. 43, 65. Shackleford attributed Faulkner’s 25% 

measurement to a large, temporary hump that NHE created while working on the road near the 

Creech coal seam. Tr. 65. He told Faulkner that NHE was widening the road and reducing the 

grade by pushing out material. Tr. 43–44, 66–68. He also noted that NHE did not haul over the 

hump because it would have been too steep. Tr. 43, 65. 

I find Shackleford’s testimony on this subject to be inconsistent and do not credit this 

measurement. Shackleford did not specify when he took the measurement, and testified that his 

13% grade measurement considered the entire roadway rather than the cited 265-foot segment. 

See Tr. 70-71. It is undisputed that the upper segment of the road was significantly steeper than 

the lower portion, and therefore Shackleford’s measurement of the entire road did not accurately 

reflect the grade of the cited 265-foot segment. Tr. 47-48. He conceded at hearing that the grade 

of the cited segment of road at the time that coal was being hauled was the same as it was in 

Faulkner’s photographs, which highlighted only a small portion of the road. Tr. 75-77; Ex. 4. 

Thus, I conclude that Shackleford’s 13% measurement was due at least in part to the inclusion of 

the portions of the road that were in compliance with the ground control plan and not at issue in 

this case. 

Furthermore, Shackleford’s claim that the hump significantly altered the road grade 

demonstrates that he misunderstood which segment of the road was cited. Faulkner explicitly 

testified that the violative segment of road was located well below the hump where NHE was 

performing construction. See Tr. 47-48, 53-54. At hearing, Faulkner drew a picture of the road 

clearly indicating that the cited segment was some distance from the hump, which was located at 

the Creech Coal seam elevation. Tr. 53; Ex. 5. His photographs of the cited area show no 

evidence that NHE was working on or near the cited area, as neither the hump nor any 

construction equipment are visible in the photographs. Ex. 4. 

Even if Faulkner included the hump in his measurement, Shackleford failed to explain 

why NHE needed to perform maintenance work on the road if the road grade measured 13%, a 

permissible grade under the ground control plan. Additionally, Shackleford failed to address how 

pushing out material would somehow nearly double the road’s grade in order to account for 

Faulkner’s measurement. As noted above, I find that Respondent’s construction work, as 

described by Shackleford, cannot account for the stark increase in grade along the road. 

Shackleford acknowledged as much when he testified that the work being done at the hump was 

aesthetic and would not change the grade of the road. Tr. 77. Faulkner provided similar 

testimony; while he was unsure exactly what the dozers were doing, they were pushing material 

straight out on a level area and would not affect the grade of the cited segment of road. Tr. 48, 

39 FMSHRC Page 1221
53; Ex. 4. Based on this testimony, it is clear that NHE’s construction did not significantly alter 

or affect Faulkner’s measurement of the road grade. 

Accordingly, I find that the Secretary established that NHE failed to follow provision 6 of 

its ground control plan, in violation of section 77.1000. 

The Secretary next alleges that Respondent violated provision 7 of its ground control plan 

because it did not provide additional safety measures for the road. Sec’y Br. at 9. Provision 7 

states that “[h]aul roads with grades exceeding 10% shall be provided with additional safety 

measures such as steep grade warning signs, reduced speed limits, larger berms, straddle berms, 

runaway ramps etc.” Ex. 3 at 14. Since the measurements of Shackleford and Faulkner both 

indicated that the road’s grade exceeded 10%, the issue is whether Respondent provided 

additional safety measures. 

NHE argues that it provided oversized berms, a straddle berm, a runaway ramp, and a 

sign at the top of the road urging truck operators to use lower gears. Resp. Br. at 8-9. NHE 

conceded that it did not bring up the straddle berm and runaway ramp at hearing, and I find that 

neither is clearly visible in the photographic evidence. See id. I do not credit the presence of the 

straddle berm and runaway ramp, but nonetheless find that NHE provided adequate safety 

measures along the road in compliance with provision 7. 

The photographic evidence indicates that NHE built berms exceeding the minimum 

height along the cited road segment. Ex. 4. The berms are visible in all of Inspector Faulkner’s 

photographs and clearly exceed the required minimum, in some areas by multiple feet. See id. 

Shackleford testified that NHE also placed a sign near the top of the road that cautioned drivers 

to use lower gears. Tr. 71. Though Shackleford did not show Faulkner the sign at the time of the 

inspection, the Secretary did not dispute its existence, and I credit Shackleford’s testimony as 

such. Id. 

I reject the Secretary’s contention that the sign was inadequate because it did not 

explicitly warn trucks of the steep grade or to reduce speed along the road. Sec’y Br. at 10. A 

warning suggesting that trucks use lower gears signals the driver to proceed slowly and with 

caution. Use of lower gears also suggests that a change in grade may occur. I find that the berms 

were adequate and the sign appropriately warned operators that the upcoming stretch of road was 

steep and that lower speeds were recommended. Tr. 71. Accordingly, NHE did not violate 

provision 7 of its ground control plan. 

In sum, NHE violated provision 6 of its ground control plan when it failed to properly 

maintain the haul road at or below the 15% maximum grade. However, NHE provided adequate 

safety measures around the road in compliance with provision 7. The citation is AFFIRMED. 

B. Significant & Substantial 

A violation is significant and substantial (S&S), “if based upon the particular facts 

surrounding the violation there exists a reasonable likelihood that the hazard contributed to will 

39 FMSHRC Page 1222
result in an injury or illness of a reasonably serious nature.” Cement Division, National Gypsum 

Co., 3 FMSHRC 822, 825 (Apr. 1981). 

In order to uphold a citation as S&S, the Commission has held that the Secretary of Labor 

must prove: (1) the underlying violation of a mandatory safety standard; (2) a discrete safety 

hazard—that is, a measure of danger to safety—contributed to by the violation; (3) a reasonable 

likelihood that the hazard contributed to will result in an injury; and (4) a reasonable likelihood 

that the injury in question will be of a reasonably serious nature. Mathies Coal Co., 6 FMSHRC 

1, 3-4 (Jan. 1984). 

The Commission has held that the second element of the Mathies test addresses the extent 

to which a violation contributes to a particular hazard. Newtown Energy, Inc., 38 FMSHRC 

2033, 2037 (Aug. 2016). Analysis under the second step should thus include the identification of 

the hazard created by the violation and a determination of the likelihood of the occurrence of the 

hazard that the cited standard is intended to prevent. Id. at 2038. At the third step, the Secretary 

must prove there was a reasonable likelihood that the hazard contributed to by the violation will 

cause an injury, not a reasonable likelihood that the violation, itself, will cause injury. West 

Ridge Resources, Inc., 37 FMSHRC 1061, 1067 (May 2015) (ALJ), citing Musser Eng'g, Inc., 32 

FMSHRC 1257, 1280-81 (Oct. 2010). Evaluation of the four factors is made assuming continued 

normal mining operations. U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984). 

I have already found that Nally & Hamilton violated section 77.1000, a mandatory 

standard, when it failed to adhere to its ground control plan and maintain the haul road at a 15% 

maximum grade. The discrete safety hazard posed by the violation is that the steep grade may 

cause a coal truck driver to lose control of the vehicle and collide with a berm or overturn the 

vehicle. Given the particular facts surrounding the violation, it is highly likely that the hazard 

would occur. The road was 10% steeper than permitted and was the only means of access to the 

Creech coal seam and drill bench. Tr. 27. The Mine used the road to haul coal from the highwall. 

Tr. 73. Inspector Faulkner testified that the roadway was made out of fresh earthen dirt and not 

durable stone, which reduced traction and could affect a haul truck operator’s ability to brake or 

maintain control of the vehicle. Tr. 38-39. The road also had a relatively sharp curve, and losing 

control of a haul truck while driving along it could exacerbate the likelihood of injury. Tr. 37; 

Ex. 4. It is therefore likely that trucks would lose control or crash while hauling coal on a road 

with a grade of 25%. 

Since the road grade was 10% higher than the prescribed maximum, it is reasonably 

likely that a truck operator would lose control and crash, collide, or overturn the vehicle, 

resulting in ejections or other serious collision-related injuries. I credit Inspector Faulkner’s 

testimony that in his experience, injuries caused by runaway trucks in surface operations are 

reasonably likely to be serious. Tr. 37-38. I therefore find that the violation was S&S.

C. Negligence 

Under the Mine Act, operators are held to a high standard of care, and “must 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.” 30 C.F.R. § 100.3(d). 

39 FMSHRC Page 1223
The Mine Act defines reckless disregard as conduct which exhibits the absence of the slightest 

degree of care, high negligence as actual or constructive knowledge of the violative condition 

without mitigating circumstances; moderate negligence as actual or constructive knowledge of 

the violative condition with mitigating circumstances; and low negligence as actual or 

constructive knowledge of the violative condition with considerable mitigating circumstances. 30 

CFR § 100.3: Table X. 

I find that NHE’s negligence is low. NHE should have known that the grade of the road 

was 10% higher than its ground control plan permitted, but it provided safety measures to 

mitigate the risk of an accident and therefore did not violate provision 7 as alleged by the 

Secretary. The testimony and photographic evidence prove that Respondent built large berms 

along the road and provided a sign urging operators to use lower gears. See Tr. 38-39; Ex. 4. 

These safety measures were adequate under Respondent’s ground control plan and resulted in the 

vacatur of one portion of the citation, and also mitigated the potential risk of operating on the 

road. I also credit Shackleford’s testimony that he measured the grade of the road at some point 

before the inspection took place. Tr. 43, 65. Although, as discussed above, Shackleford’s 

measurement did not accurately portray the grade of the cited road segment, he nonetheless made 

a good faith attempt to comply with the ground control plan. I therefore reduce NHE’s 

negligence from moderate to low. 

VI. PENALTY 

 It is well established that Commission administrative law judges have the authority to 

assess civil penalties de novo for violations of the Mine Act. Sellersburg Stone Company, 5 

FMSHRC 287, 291 (March 1983). The Act requires that in assessing civil monetary penalties, 

the Commission ALJ shall consider the six statutory penalty criteria: 

(1) the operator’s history of previous violations, (2) the appropriateness of such 

penalty to the size of the business of the operator charged, (3) whether the 

operator was negligent, (4) the effect on the operator’s ability to continue in 

business, (5) the gravity of the violation, and (6) the demonstrated good faith of 

the person charged in attempting to achieve rapid compliance after notification of 

a violation. 

30 U.S.C. 820(I). 

 The Secretary proposed a regularly assessed penalty of $634.00. Nally and Hamilton 

have no history of violating section 77.1000 in the past two years. The parties stipulated that the 

Day Branch Mine produced 310,980 tons of coal and employed between 33 to 35 miners 

working 99,823 hours in 2016. Jt. Stip. 3. NHE therefore qualifies as a medium to large sized 

operator. See 30 C.F.R. § 100.3. The parties also stipulated that the civil money penalty as 

assessed will not affect NHE’s ability to remain in business. Jt. Stip. 4. 

 I discussed my gravity and negligence findings in greater detail above. NHE violated the 

standard, and the violation was S&S and highly likely to result in lost workdays or restricted 

duty. I reduced NHE’s negligence from moderate to low because while NHE should have known 

39 FMSHRC Page 1224
that the road grade violated provision 6 of its ground control plan, NHE provided adequate safety 

measures along the road and did not violate provision 7 as alleged by the Secretary. NHE acted 

in good faith to achieve compliance the same day it received the citation. After considering the 

statutory criteria, I assess a penalty of $500.00. 

VII. ORDER 

Respondent is hereby ORDERED to pay the Secretary of Labor the total sum of 

$500.00 within 30 days of this order.2

 /s/ David P. Simonton 

David P. Simonton 

Administrative Law Judge 

Distribution: (U.S. First Class Mail) 

Mary Sue Taylor, U.S. Department of Labor, Office of the Solicitor, 618 Church Street, Suite 

230, Nashville, Tennessee 37219 

S. Thomas Hamilton, Nally & Hamilton Enterprises, Inc., 212 East Stephen Foster Avenue, P.O. 

Box 327, Bardstown, Kentucky 40004 

 2

 Payment should be sent to: MINE SAFETY AND HEALTH ADMINISTRATION, 

U.S. DEPARTMENT OF LABOR, PAYMENT OFFICE, P. O. BOX 790390, ST. LOUIS, MO 

63179-0390 

39 FMSHRC Page 1225
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004 

June 5, 2017 

DECISION ON REMAND 

AND 

ORDER TO PAY 

Before: Judge Feldman 

 This remand matter concerns a Decision by Judge Melick vacating Citation No. 6674618 

in Docket No. LAKE 2009-57. 33 FMSHC 2238, 2250 (Sept. 2011) (ALJ). Judge Melick has 

since retired. Judge Melick concluded that the underlying safeguard at issue in Citation No. 

6674618 was invalid because it failed to provide the mine operator with adequate notice of the 

hazard addressed by the safeguard concerning the transportation of men and/or materials. Id. 

On appeal, the Commission reinstated the subject safeguard, holding that it provided the 

mine operator with adequate notice of the condition covered and the conduct required to satisfy 

the underlying notice of safeguard. 37 FMSHRC 213, 216 (Feb. 2015). Consequently, the 

Commission remanded this matter for assessment of the appropriate civil penalty.1 Id. at 217. 

Action on the Commission’s remand was delayed due to administrative error. This matter was 

assigned to me on May 2, 2017, for disposition of the Commission’s remand. 

 1

 The caption in the Commission’s remand also concerned Docket Nos. LAKE 2008-436, 

LAKE 2009-58, LAKE 2009-59, and LAKE 2009-378. With the exception of Citation No. 

6674618 in Docket No. LAKE 2009-57, for which the parties have not agreed upon payment of a 

$1,795.00 civil penalty, Judge Melick ordered that Big Ridge pay a total civil penalty of 

$272,961.00 in satisfaction of the all other citations/orders in these five dockets. Big Ridge has 

timely paid the $272,961.00 civil penalty. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner, 

 v. 

BIG RIDGE, INC., 

 Respondent. 

 CIVIL PENALTY PROCEEDING 

Docket No. LAKE 2009-57 

A.C. No. 11-03054-163984 

Mine: Willow Lake Portal 

39 FMSHRC Page 1226
On May 22, 2017, the parties filed a Motion to Approve Penalty that reflects that Big 

Ridge has agreed to withdraw its contest of Citation No. 6674618, and pay the Secretary’s 

proposed penalty of $1,795.00 in full. Having considered the representations and documentation 

submitted in this matter, I conclude that the proffered motion to order payment is appropriate 

under the criteria set forth in section 110(i) of the Mine Act. 

ORDER 

Accordingly, IT IS ORDERED that Big Ridge, Inc. pay the proposed $1,795.00 civil 

penalty within 40 days of the date of this Order in satisfaction of the safeguard at issue in 

Citation No. 6674618.2

 Upon receipt of timely payment, the captioned civil penalty proceeding 

in Docket No. LAKE 2009-57 IS DISMISSED. 

 /s/ Jerold Feldman 

Jerold Feldman 

 Administrative Law Judge 

Distribution: 

Emily B. Hays, Esq., U.S. Department of Labor, Office of the Solicitor, 1244 Speer Blvd., Suite 

216, Denver, CO 80204-3516 

Arthur Wolfson, Esq., Jackson Kelly PLLC, Three Gateway Center, 401 Liberty Avenue, Suite 

1500, Pittsburgh, PA 15222 

/acp 

 2

 Payment should be sent to the Mine Safety and Health Administration, U.S. Department 

of Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390. Please include the 

Docket No. and A.C. No. noted in the above caption on the check. 

39 FMSHRC Page 1227
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004 

June 8, 2017 

SUMMARY DECISION 

Appearances: Lisa A. Cottle, Esq., U.S. Department of Labor, Office of the Solicitor, Cleveland, 

Ohio, on behalf of the Petitioner; 

 Keith L. Pryatel, Esq., Kastner Westman & Wilkins, LLC, Akron, Ohio, on behalf 

of the Respondent. 

Before: Judge Feldman 

These consolidated civil penalty proceedings are before me based on petitions for 

assessment of civil penalties filed by the Secretary of Labor (“Secretary”) under section 105(d) 

of the Federal Mine Safety and Health Act of 1977, as amended (“the Mine Act” or “Act”), 

30 U.S.C. § 815(d), against the Respondent, Thompson Electric, Inc. (“Thompson Electric”). 

Thompson Electric is an independent contractor that performed electrical services at the Sober 

Sand & Gravel mine (“Sober Mine”) in Portage County, Ohio. The Sober Mine, which is owned 

and operated by Ray Bertolini Trucking Co., is a facility where a dredge is used to excavate 

submerged sand and gravel. The services performed by Thompson Electric consisted of 

disconnecting and reconnecting electrical power to a dredge to allow for the movement of the 

dredge on mine property. 

During the course of an April 29, 2015, Mine Safety and Health Administration 

(“MSHA”) inspection of the Sober Mine facility, Thompson Electric was cited for three 

violations of the Secretary’s mandatory safety standards: Citation No. 8842392, which alleges 

that a Thompson Electric employee failed to use adequate fall protection; Citation No. 8842396, 

which alleges a failure to develop and implement a written plan for new miner training; and 

Order No. 8842394, which alleges a failure to provide new miner training. 

Thompson Electric does not dispute the facts that the Secretary relies on to support the 

alleged violations. See Jt. Stip., at 1-4 (Feb. 10, 2017). However, on March 29, 2017, Thompson 

Electric filed a Motion for Summary Decision seeking that the violations be vacated based on a 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

 v. 

THOMPSON ELECTRIC, INC., 

 Respondent 

 CIVIL PENALTY PROCEEDINGS 

Docket No. LAKE 2015-596 

A.C. No. 33-04502-385170 

Docket No. LAKE 2015-639 

A.C. No. 33-04502-387619 

Mine: Sober Sand & Gravel 

39 FMSHRC Page 1228
lack of Mine Act jurisdiction. See Resp. Br., at 1-2 (Mar. 29, 2017). While the Secretary does not 

object to resolving this matter summarily, the Secretary opposes Thompson Electric’s denial of 

jurisdiction. See Sec’y Br., at 7 (Apr. 19, 2017). As both parties agree that a summary decision is 

appropriate in resolving the issue of Mine Act jurisdiction, I construe the parties’ pleadings as 

cross-motions for summary decision. 

In furtherance of resolving this matter via summary decision, the parties have filed joint 

stipulations of material facts. The parties’ Joint Stipulations provide: 

1. The Sober Mine is a surface “mine” as that term is defined in section 3(h) of the 

Mine Act. The Sober Mine is owned and operated by Ray Bertolini Trucking Co. 

Joseph F. Bertolini is the President of the Sober Mine and Eric Gross is a 

Foreman of the Sober Mine. 

2. At all material times involved in this case, the commodities of the Sober Mine 

(construction sand and gravel) entered commerce, or the operations or products 

thereof affected commerce, within the meaning and scope of Section 4 of the 

Mine Act. 

3. Respondent Thompson Electric is an independent contractor that performed 

electrical services on a dredge at the Sober Mine in Portage County, Ohio. 

4. Thompson Electric is not an “owner” or “lessee” of the Sober Mine within the 

meaning of 30 U.S.C. § 802(d), nor does Thompson Electric “control” or 

“supervise” the Sober Mine within the meaning of 30 U.S.C. § 802(d). 

5. The only equipment that Thompson Electric’s employees worked on or performed 

services on at the Sober Mine was a single dredge owned by the Sober Mine. The 

dredge is used to excavate submerged sand and gravel from the mine. 

6. The scope of Thompson Electric’s work at the mine was to disconnect the 

electrical power to the dredge where it was originally located on the mine 

property, and then later once the dredge was relocated by the Sober Mine, reconnect electrical power to the dredge. 

7. The new location of the dredge was approximately 1,500 feet from its original 

location and 2,500 feet from the entrance to the Sober Mine. At the new location, 

the dredge was scheduled to be re-connected to an electrical sectioning cabinet. 

8. At the time of the alleged MSHA citations at issue . . . the dredge had already 

been moved to its new location by the Sober Mine. 

9. Thompson Electric employees were at the Sober Mine property a total of six (6) 

days. 

39 FMSHRC Page 1229
10. On the first day (12/24/14), a single Thompson Electric employee disconnected 

the dredge power source. That Thompson Electric employee was present for 

seven (7) hours at the Sober Mine property. During this work, the dredge was 

locked-out from its power source and the Sober Mine was operating. 

11. On the second and third days (4/22/15 and 4/23/15), two employees of Thompson 

Electric worked on electrical connect components of the dredge at its new 

location. Both Thompson Electric employees worked seven (7) hour days. During 

this work, the dredge was locked-out from its power source and the Sober Mine 

was operating. 

12. On April 24 and 27, 2015, four (4) Thompson Electric employees worked on the 

electrical connect components of the dredge at its new location for seven (7) 

hours each day. During this work, the dredge was locked-out from its power 

source and the Sober Mine was operating. 

13. April 24, 2015, was the first day that the worker (Pete Aglioti) who committed the 

fall protection infraction at issue in Citation No. 8842392 was at the Sober Mine 

site during the six (6) day period at issue in the citations. 

14. On April 29, 2015, two Thompson Electric employees arrived to work at the 

Sober Mine. However, the Sober Mine had not moved the power cable to the new 

location. Therefore, two additional Thompson Electric employees were sent to the 

Sober Mine to also work on the dredge at its new location. 

15. On April 29, 2015, MSHA issued Thompson Electric Citation No. 8842392 

because Thompson Electric employee Pete Aglioti failed to utilize fall protection. 

At the time, Joe Bertolini of the Sober Mine was handing a power cable for the 

dredge to Pete Aglioti who was on the dredge, approximately 13 feet above 

ground level, without wearing fall protection. Pete Aglioti had been trained by 

Thompson Electric about the need to wear fall protection whenever working from 

a surface four or more feet above ground level. Thompson Electric immediately 

(i.e. on 4/29/15) sent Pete Aglioti home for disciplinary reasons, and ultimately 

issued him a 3-day suspension for failing to wear fall protection as he had been 

trained. 

16. On April 29, 2015, the dredge was locked-out from its power source and the 

Sober Mine was operating. 

17. On April 29, 2015, MSHA issued Thompson Electric Order No. 8842394 for 

failing to provide four employees with newly hired inexperienced miner training 

pursuant to 30 C.F.R. § 46.5(a). Thompson Electric admits that it did not provide 

newly hired inexperienced miner training to the four employees. 

18. On April 30, 2015, MSHA issued Thompson Electric Citation No. 8842396 for 

failure to develop or implement a Part 46 Training Plan. Thompson Electric 

39 FMSHRC Page 1230
admits that it did not develop or implement a Part 46 Training Plan. On April 30, 

2015, the dredge was locked-out from its power source and the Sober Mine was 

operating. 

19. Thompson Electric did not complete its work at the Sober Mine. Once the MSHA 

officer, on April 29, 2015, informed Thompson Electric of its intention to cite the 

Respondent for MSHA violations, Respondent promptly exited the Sober Mine 

location and did not return. 

20. Thompson Electric timely contested all of the issued MSHA citations. 

Jt. Stip., at 1-4. 

Thompson Electric seeks to have the subject citations and order vacated on jurisdictional 

grounds. As noted, Thompson Electric has stipulated to the facts surrounding the issuance of the 

citations and order. If Mine Act jurisdiction is found, the parties have proffered conditional 

settlement terms with respect to the issues of significant and substantial (S&S) and degree of 

negligence, and the proposed civil penalty for each of the three cited conditions. However, the 

parties reserve the right to appeal any adverse finding as a consequence of this Summary 

Decision. 

Thus, there are two threshold issues to be resolved in this Summary Decision: 1) whether 

Thompson Electric is subject to Mine Act jurisdiction; and 2) whether Thompson Electric is 

subject to Part 46 training requirements. As discussed below, although I have found that 

Thompson Electric is subject to Mine Act jurisdiction, the Part 46 training violations shall be 

vacated. Consequently, the parties’ motions for summary decision shall each be granted in part, 

in that the Secretary has prevailed on the issue of Mine Act jurisdiction, and Thompson Electric 

has prevailed with respect to the inapplicability of Part 46. 

I. Mine Act Jurisdiction 

a. Thompson Electric’s Jurisdictional Challenge

Thompson Electric argues that it should not be subject to Mine Act jurisdiction because it 

was not “engaged in the extraction process” and because its activities were de minimis in that 

they were limited solely to electrical maintenance on a dredge. Resp. Br., at 10. In this regard, 

Thompson Electric asserts that it was never present at the Sober Mine for more than five 

consecutive work days, and that at all times its employees were performing electrical 

maintenance on a dredge that was “locked out from its power source,” was “completely 

inoperable,” and “was not excavating any aggregates.” Id. at 5-6; Jt. Stip., at ¶ 9-14. Finally, 

Thompson Electric reportedly left the Sober Mine location immediately after being cited for the 

alleged violations and has no intention of returning. Id. at 7; Jt. Stip., at ¶ 19. 

In support of its motion, Thompson Electric relies on the Fourth Circuit decision in 

Old Dominion Power Co. v. Donovan, 772 F.2d 92 (4th Cir. 1985), wherein the court concluded 

that a power company that installed, maintained, and took monthly electric meter readings at a 

39 FMSHRC Page 1231
substation that was separated from the rest of mine property by a chain link fence was not 

“an operator” within the meaning of section 3(d) of the Mine Act, which includes contractors 

performing services at a mine. Thompson Electric further relies on N. Illinois Steel Supply Co. v. 

Sec’y of Labor, 294 F.3d 844, 848 (7th Cir. 2002) (citations omitted), in which the court stated 

“there may be a point ... at which an independent contractor’s contact with a mine is so 

infrequent or de minimis that it would be difficult to conclude that services were being 

performed.” In N. Illinois Steel, the Seventh Circuit held that a company whose employees drove

delivery trucks onto mine property and helped unload those vehicles was not subject to Mine Act 

jurisdiction. Id. at 848-49. 

Finally, Thompson Electric heavily relies on the recent Sixth Circuit holding in 

Maxxim Rebuild Co. v. FMSHRC, 848 F.3d 737 (6th Cir. 2017), which held that a contractor that 

repairs mining equipment in a repair shop at an off-site location is not subject to Mine Act 

jurisdiction. The distance of the repair shop from a mine site was not specified by the Sixth 

Circuit in Maxxim Rebuild as the repair shop serviced the equipment for a number of different 

mines. Id. at 737. 

The Secretary argues that the electrical contract services provided by Thompson Electric 

on the dredge located on Sober Mine property were essential to the sand dredging process and, 

thus, are subject to Mine Act jurisdiction, despite the fact that the electrical work was performed 

for only six non-consecutive days. Sec’y Br., at 4-5. 

b. Statutory Provisions 

The jurisdictional question must be resolved based on application of the statutory 

definitions of “a mine” and “a mine operator.” Section 3(h)(1) provides, in relevant part, that a 

mine is “an area of land from which minerals are extracted ... [and] private ways ... appurtenant 

to such area.” 30 U.S.C. § 802(h)(1). Included within the statutory definition of a mine is 

“equipment [and] machines ... used in, or to be used in ... the work of extracting such minerals 

from their natural deposits....” Id. As noted above, the Mine Act’s definition of a mine operator 

includes “any independent contractor performing services ... at [a] mine.” 30 U.S.C. § 802(d). 

c. Otis Elevator Test 

In its Otis Elevator cases, the Commission established a two-pronged test for determining 

whether an independent contractor shall be considered an “operator” under section 3(d). 11 

FMSHRC 1896 (Oct. 1989) (“Otis I”) and 11 FMSHRC 1918 (Oct. 1989) (“Otis II”), 

aff’d on other grounds, 921 F.2d 1285 (D.C. Cir. 1990). The first inquiry is the degree of “the 

independent contractor’s proximity to the extraction process” and whether its work is 

“sufficiently related” to that process. Otis I, 11 FMSHRC at 1902. The Commission has 

determined a contractor’s activities are sufficiently related to the extraction process when its 

employees are exposed to mining hazards and they have “a direct effect on the safety of 

others....” Id. Second, the Commission examines “the extent of [the contractor’s] presence at the 

mine.” Id. The Commission has articulated that the essence of this test is whether the 

contractor’s “contacts with the ... mine were not so rare, infrequent and attenuated as to bring 

[the] case within the holding of Old Dominion....” Otis II, 11 FMSHRC at 1922-23; see also Joy 

39 FMSHRC Page 1232
Technologies Inc., 99 F.3d 991, 999 (10th Cir. 1996) (expressly rejecting the Old 

Dominion approach and adopting the broad jurisdictional reach in Otis Elevator); see also Bulk 

Transp. Services Inc., 13 FMSHRC 1354, 1357 (Sept. 1991) (broadly construing section 3(d) in 

finding that a coal haulage company was a statutory operator that performed an essential service 

on mine property). 

In applying the Otis Elevator criteria, we first look to the independent contractor’s 

proximity and relationship to the extraction process. Thompson Electric’s reliance on 

Old Dominion and Maxxim Rebuild to support its apparent assertion that it was insufficiently 

connected to the mining process is misplaced. Unlike this case, both Old Dominion and 

Maxxim Rebuild concerned activities that either were performed in an area fenced off from the 

active mine, or not performed on mine property. As noted, Old Dominion concerned off-site 

meter readings at a substation separated from the rest of mine property by a chain link fence. 772 

F.2d at 93. Maxxim Rebuild concerned “repairs [of] mining equipment at a site that is neither 

adjacent to nor part of a working mine.” 848 F.3d at 737. In finding a lack of Mine Act 

jurisdiction, the court in Maxxim Rebuild focused on the statutory definition of a “coal or other 

mine,” which, as previously noted, includes “facilities” and “equipment ... used in, or to be used 

in ... the work of preparing coal or other minerals.” Id. at 740 (citing 30 U.S.C. § 802(h)(1)). In 

considering the Mine Act’s statutory definitions, the court stated: 

... [C]ontext and perspective are everything. In pulling back the lens, we see 

several indications that the power of the Mine Safety and Health Administration 

extends only to such facilities and equipment if they are in or adjacent to — in 

essence part of — a working mine. 

Start with what § 802(h)(1) defines: a “coal or other mine.” The term is locational. 

And the location concerns mines. Equipment by itself tells us nothing about 

where it is. And a facility by itself does not say anything about whether it is 

connected to a mine. As the title of the Act (the Federal Mine Safety and Health 

Act) and the title of the pertinent agency (the Mine Safety and Health 

Administration) suggest, the definition of “coal or other mine” relates to a place 

— land and things in or connected to a mine. 

Id. (emphasis original). It is significant that, in finding an absence of jurisdiction, the Sixth 

Circuit “pulled back the lens” to focus on the off-site location of the subject repairs — a focus 

that Thompson Electric seeks to ignore. Thus, similar to the physically isolated location of the 

substation in Old Dominion, it was the off-site location of the repairs that served as the basis for 

the Sixth Circuit’s finding of an absence of Mine Act jurisdiction. 

With regard to the question of the relationship of the electrical services performed by 

Thompson Electric to the extraction process, Thompson Electric relies on the Seventh Circuit’s 

holding in N. Illinois Steel, which exempted contractors delivering steel on mine property from 

Mine Act jurisdiction. 294 F.3d at 844. The Seventh Circuit held that the independent 

39 FMSHRC Page 1233
contractor’s delivery services were “so attenuated [from the mining process] as to remove it from 

the jurisdiction of MSHA.” Id. at 848. In this regard, the court stated: 

... [T]he work performed by the NIS drivers at the mine can only be described as 

de minimis. In fact, there is nothing to distinguish NIS’s deliveries of steel from 

deliveries by other vendors or parcel delivery companies of supplies to be used by 

the miners. 

Id. at 849. 

In Otis II, the D.C. Circuit found Mine Act jurisdiction over a contractor who had 

conceded that it had performed “limited but necessary” service at mines. 921 F.2d at 1290 n.3. 

So too, this case concerns the maintenance of heavy mining equipment, specifically a dredge, 

which is indispensable to the sand and gravel dredging process. The delivery and offloading of 

steel on mine property in N. Illinois Steel clearly is distinguishable from the maintenance of mine 

equipment on mine property — activities that are explicitly regulated by Part 56 of the 

Secretary’s mandatory safety standards governing metal and nonmetal surface mines. See 30 

C.F.R. Part 56. 

In this regard, section 56.14105 specifically requires that repairs and maintenance of 

electrical equipment may only be performed when power is off and the equipment is blocked. 30 

C.F.R. § 56.14105. To exempt on-site contract employees performing maintenance services on 

mine equipment from the protective provisions of section 56.14105 makes no sense. Thompson 

Electric’s apparent assertion that maintenance on locked-out de-energized equipment is exempt 

from Mine Act jurisdiction due to its inoperable status is a distinction without a difference that 

must be rejected. Thus, de-energizing equipment prior to maintenance is a requirement of the 

safety standards, rather than a basis for an exemption from them. 

The remaining criterion of the Otis Elevator test concerns the extent of the contractor’s 

presence at the mine. Thompson Electric asserts that its six-day presence at the Sober Mine was 

sufficiently infrequent and de minimis to exempt it from Mine Act jurisdiction. Resp. Br., at 4-

13. Moreover, Thompson Electric reportedly has no intention of performing further services at 

the Sober Mine site. Resp. Br., at 7; Jt. Stip., at ¶ 19. 

Resolving jurisdiction based on the degree of a contractor’s presence at a mine site must 

be based on an analysis of the facts as they existed at the time of the issuance of the citations, 

rather than a speculative and self-serving estimation by the contractor regarding the extent of its 

future activities, or absence thereof, at a mine site. In other words, Thompson Electric cannot 

achieve a self-imposed exemption from the Act’s jurisdiction by simply asserting that it will not 

return to the Sober Mine. Therefore, Thompson Electric’s presence at the Sober Mine for only 

six days is not dispositive of the jurisdictional question. 

Both parties agree that summary decision based on their joint stipulations is the 

preferable vehicle for resolving the jurisdictional issue. See Sec’y Br., at 7-8; Resp. Br., at 22. 

Commission Rule 67(b) provides that a motion for summary decision shall be granted if there is 

no genuine issue as to any material fact, and the moving party is entitled to summary decision as 

a matter of law. 29 C.F.R. § 2700.67(b); see also Hanson Aggregates New York, Inc., 29 

39 FMSHRC Page 1234
FMSHRC 4, 8-9 (Jan. 2007) (citations omitted). Moreover, in determining if a motion for 

summary decision should be granted, the court must construe the undisputed material facts in a 

light most favorable to the opposing party.1 Hanson, 29 FMSRHC at 9. 

Construing the evidence in a light most favorable to Thompson Electric, there are no 

outstanding issues of material fact to conclude that the services performed by Thompson Electric 

were so attenuated from the dredging process to warrant an exemption from Mine Act 

jurisdiction. Rather, Thompson Electric’s performance of maintenance services on mining 

equipment on mine property falls squarely within the statutory reach of the Mine Act. 

Consequently, as an “independent contractor performing services” at a mine, Thompson Electric 

must be considered a statutory “operator” that is subject to the Act’s jurisdiction. See 30 

U.S.C. § 802(d). 

II. Part 46 Training Requirements 

As a consequence of MSHA’s April 29, 2015, Sober Mine inspection, Thompson Electric 

received two citations alleging violations of Part 46: Citation No. 8842396, which alleges a 

failure to develop and implement a written plan for new miner training in violation of 30 C.F.R. 

§ 46.3(a)2; and 104(g)(1) withdrawal Order No. 8842394, which alleges a failure to provide new 

miner training in violation of 30 C.F.R. § 46.5(a)3,

4

. 

In addressing the validity of the alleged violations of Part 46, it is necessary to 

differentiate the statutory term “miner” in section 3(g) of the Mine Act from the regulatory term 

“miner” in 30 C.F.R. § 46.2(g). Section 3(g) of the Act broadly defines a “miner” as “any 

individual working in a coal or other mine.” 30 U.S.C. § 802(g). 

 1

 Thompson Electric is, in essence, the opposing party to the Secretary’s cross-motion for 

summary decision on this jurisdictional question. 

2

 Section 46.3(a) provides: 

[Operators] must develop and implement a written plan, approved by [MSHA] under 

either paragraph (b) or (c) of this section, that contains effective programs for 

training new miners and newly hired experienced miners, training miners for new tasks, 

annual refresher training, and site-specific hazard awareness training. 

3

 Section 46.5(a) provides, in pertinent part: 

... [Operators] must provide each new miner with no less than 24 hours of training.... 

Miners who have not yet received the full 24 hours of new miner training must work 

where an experienced miner can observe that the new miner is performing his or her 

work in a safe and healthful manner. 

4

 Section 104(g)(1) of the Mine Act requires the withdrawal from the mine of miners who 

have not received the requisite safety training. 30 U.S.C. § 814(g)(1). 

39 FMSHRC Page 1235
On the other hand, Part 46 defines a “miner” as follows: 

(1) Miner means: (i) Any person, including any operator or supervisor, who works at a 

mine and who is engaged in mining operations. This definition includes independent 

contractors and employees of independent contractors who are engaged in mining 

operations and (ii) Any construction worker who is exposed to hazards of mining 

operations. 

30 C.F.R. § 46.2(g). However, not every contractor performing services at a mine is subject to 

Part 46. In this regard, section 46.2(g)(2) provides: 

The definition of “miner” [in Part 46] does not include ... maintenance or service 

workers who do not work at a mine site for frequent or extended periods. 

30 C.F.R. § 46.2(g)(2). 

Thus, the Secretary acknowledges, given the section 46.2(g)(2) exemptions, that a 

statutory “miner” under section 3(g) of the Mine Act may not be considered a per se “miner” for 

the purposes of Part 46. Rather, it is the frequency and extent of a contract employee’s presence 

at a mine that determines whether the contract employee is subject to the training requirements 

of Part 46. 

 The parties have stipulated that Thompson Electric’s employees were present at the Sober 

Mine to perform electrical maintenance on a dredge for a total of six days: one day in December 

2014 and five work days in April 2015. Jt. Stip., at ¶ 9-14. The Secretary does not dispute that 

Thompson Electric’s services were limited in scope, in that they only required disconnecting and 

re-connecting power to a dredge to allow for its repositioning. Id. at ¶ 6. Consequently, 

Thompson Electric argues that its employees’ infrequent and limited presence at the mine 

exempts it from Part 46 training requirements. Resp. Br., at 16-20. 

Conversely, the Secretary argues that Thompson Electric’s employees spent significant 

time at the mine performing work on a dredge that was integral to the extraction process. Sec’y 

Supp. Br., at 2 (May 24, 2017). Moreover, the Secretary notes that, had MSHA’s intervention not

triggered a work stoppage, Thompson Electric would have maintained a continuing presence at 

the mine for additional time. Id. 

In considering the proper interpretation of the “miner” exemption in section 46.2(g)(2), it 

is axiomatic that, to the extent that a regulation is silent or ambiguous on a particular point, the 

Commission follows the doctrine of deference established in Bowles v. Seminole Rock and Sand 

Co., 325 U.S. 410 (1945), and reaffirmed in Auer v. Robbins, 519 U.S. 452 (1997). Under this 

doctrine, the promulgating agency’s interpretation of the regulation is entitled to full deference 

(referred to as Auer deference) unless the interpretation is unreasonable, plainly erroneous, or 

inconsistent with the regulation, or there is reason to suspect it does not reflect the agency’s fair 

and considered judgment on the matter. Drilling & Blasting Sys., Inc., 38 FMSHRC 190, 194 

(Feb. 2016) (citations omitted). 

39 FMSHRC Page 1236
Here, the Secretary’s application of the operative phrase “for frequent or extended 

periods” must be consistent with its plain meaning. Determining the appropriateness of the 

Secretary’s application of the Part 46 “miner” exemption requires a qualitative and quantitative 

analysis. Qualitatively, although the services provided by Thompson Electric were essential, they 

were very limited in scope. Quantitatively, the services only required the presence of its 

employees for a short period of time. To permit such a limited presence at a mine site to 

overcome the exemption in section 46.2(g)(2) would render the exemption meaningless. Here, 

the record reflects that Thompson Electric’s employees were present at the mine for a total of six 

days. On balance, I do not view as persuasive the Secretary’s argument that a six day presence 

(one day in December 2014 and five work days in April 2015) is sufficient to overcome the 

explicit exemption promulgated by the Secretary in section 46.2(g)(2), given the limited scope of 

the services rendered. 

In apparent recognition that the five days spent on reconnecting the dredge may not have 

been sufficient to trigger the Part 46 training requirements, the Secretary asserts that Thompson 

Electric’s presence at the mine would have been greater had it not abruptly left the mine after 

being informed of MSHA’s jurisdiction.5 Sec’y Supp. Br., at 2. However, given the parties’ 

stipulations, even if finishing the limited task of reconnecting the dredge’s power supply required 

Thompson Electric’s additional presence for a short period of time, the limited scope of the 

services performed would still exempt Thompson Electric from the Part 46 training 

requirements. 

I note that although Thompson Electric has been relieved of its obligation to satisfy 

Part 46 training requirements, it is still subject to the Secretary’s mandatory safety and health 

standards.6 In fact, Thompson Electric requires its employees to tie down when there is a danger 

of falling. See Jt. Stip., at ¶ 15. Nevertheless, the Secretary is seeking to impose the burden of 

formulation of a Part 46 training plan on a contractor that has a very limited presence at a mine, 

despite the Secretary’s own promulgation of the exception in section 46.2(g)(2). 

 5

 The Secretary refers to MSHA’s Program Policy Manual, which states that the term 

“extended” presence in section 46.2(g)(2) means more than five consecutive work days. 

Resp. Br., at 18 (citing MSHA Program Policy Manual Vol. III, Part 46 at p. 9 (May 16, 1996)). 

Although the stipulations reflect that Thompson Electric was not present at the mine for five 

consecutive work days (it was absent on April 28, 2015), nevertheless, as the Secretary is aware, 

the Commission is not bound by pronouncements contained in MSHA’s policy statements. 

Old Ben Coal Co., 2 FMSHRC 2806, 2809 (1980). 

6

 While I have found that the employees of Thompson Electric are not “miners” as 

contemplated by the definition in section 46.2(g), the provisions of 30 C.F.R. § 46.11 

nevertheless require that its employees must be provided site-specific hazard awareness training. 

Section 46.11 has not been cited by the Secretary in this matter. 

39 FMSHRC Page 1237
 In view of the above, the record stipulations reflect that Thompson Electric is exempt 

from the training requirements of Part 46 as its presence at the Sober Mine was sufficiently 

limited in scope and frequency. Accordingly, Citation No. 8842396 and Order No. 8842394 

shall be vacated. 

III. Fall Protection Citation 

On April 29, 2015, an MSHA inspector observed a Thompson Electric employee failing 

to utilize fall protection when he was reaching for a power cable while standing on a dredge 

while located approximately 13 feet above the ground. As a consequence, the MSHA inspector 

issued Citation No. 8842392 alleging a violation 30 C.F.R. § 56.15005, which requires that 

safety belts be worn when there is a danger of falling. 

Thompson Electric has stipulated to the fact of the violation of Citation No. 8842392. Jt. 

Stip., at ¶ 15. However, the parties’ proffered settlement terms regarding Citation No. 8842392 

reduce the degree of negligence attributable to Thompson Electric from “moderate” to “low,” 

with a corresponding proposed penalty reduction from $540.00 to $250.00. The parties’ 

settlement terms seek to maintain the S&S designation. The reduction in negligence and civil 

penalty is supported by the parties’ stipulation that the employee who committed the violation 

was suspended immediately by Thompson Electric as he had been trained to wear fall protection. 

Jt. Stip., at ¶ 15. 

The mitigating circumstances noted above support the parties’ proposed reduction in 

negligence and civil penalty. Having determined that Thompson Electric is subject to Mine Act 

jurisdiction, I conclude that the proffered settlement is appropriate under the statutory penalty 

criteria set forth in section 110(i) of the Mine Act.7

 Consequently, the parties’ settlement terms 

regarding Citation No. 8842392 shall be approved. As previously noted, the parties’ settlement 

terms are contingent on final disposition of these matters. Thus, the parties’ have reserved their 

right to appeal the jurisdictional question, as well as any adverse finding regarding Part 46 

applicability. 

 7

 30 U.S.C. § 820(i) provides: 

In assessing civil monetary penalties, the Commission shall consider the 

operator’s history of previous violations, the appropriateness of such penalty to 

the size of the business of the operator charged, whether the operator was 

negligent, the effect on the operator’s ability to continue in business, the gravity 

of the violation, and the demonstrated good faith of the person charged in 

attempting to achieve rapid compliance after notification of a violation. 

39 FMSHRC Page 1238
ORDER 

 In view of the above, Thompson Electric, Inc., as an independent contractor performing 

services at a mine, is a statutory “operator” as contemplated by section 3(d) of the Mine Act. 

Accordingly, IT IS ORDERED, consistent with the parties’ settlement terms, that Thompson 

Electric, Inc. PAY, within 40 days of this Order, a $250.00 civil penalty in satisfaction of 

Citation No. 8842392.8

IT IS FURTHER ORDERED that Citation No. 8842396 and 104(g)(1) withdrawal 

Order No. 8842394, which concern the training provisions of Part 46, ARE VACATED. 

IT IS FURTHER ORDERED that upon timely receipt of the $250.00 civil penalty, the 

captioned matters ARE DISMISSED. 

 /s/ Jerold Feldman 

Jerold Feldman 

 Administrative Law Judge 

Distribution: 

Lisa Cottle, Esq., U.S. Department of Labor, Office of the Solicitor, 1240 East Ninth Street, 

Room 881, Cleveland, OH 44199 

Keith L. Pryatel, Esq., Kastner Westman & Wilkins, LLC, 3550 West Market Street, Suite 100, 

Akron, OH 44333 

/acp 

 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. Please include the 

Docket No. and A.C. No. noted in the above caption on the check. 

39 FMSHRC Page 1239
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004-1710 

PHONE: (202) 434-9933 | FAX: (202) 434-9949 

June 9, 2017 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), Docket No. WEVA 2015-1036 

Petitioner, A.C. No. 46-09415-391343

v. 

BUNDY AUGER MINING, INC., Mine: Lost Flats Highwall Miner 

Respondent. 

DECISION APPROVING AMENDED SETTLEMENT MOTION 

Before: Judge Moran 

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

801 et seq. (2012) (“Mine Act”) and is before the Court upon a petition for assessment of a civil 

penalty under section 105(d) of the Federal Mine Safety and Health Act of 1977. On May 25, 

2017, the Court issued its Decision Denying Settlement Motion and following that, the case was 

set for a hearing scheduled to commence on August 29, 2017. On June 1, 2017, the Secretary 

filed a Motion for Reconsideration.1 That Motion for Reconsideration included an Amended 

Motion for Decision and Order Approving Settlement, which contained significant additional 

information in support of the proposed settlement and, as a consequence, the Court is now able to 

approve the settlement.2 Motion for Reconsideration at 16-22. However, while the settlement can 

now be approved, the Motion continues to include disconcerting assertions which are antithetical 

to the Commission’s Congressionally delegated statutory obligation under 30 U.S.C. § 820(k) 

and which require additional comment from the Court. 

Background 

In the Court’s May 25, 2017 Decision Denying Settlement Motion, it was noted that “2 

(two) specially assessed alleged violations of the Mine Act [were in issue]. One is a section 

104(d)(1) citation, No. 9082933, and the other is a section 104(d)(1) order, No. 9082935. While 

the proposed penalty amounts differ, $2,900 in the case of No. 9082933, with a settlement figure 

of $2,030, and $3,400 in the case of 9082935, with a settlement figure of $2,380, both reductions

1

 As distinct from the e-CMS filing date, the Motion for Reconsideration and the 

accompanying Amended Motion for Decision and Order Approving Settlement are dated May 

31, 2017. 

2

 Because this decision approves the Amended Motion, the previously scheduled 

hearing is now CANCELLED. 

39 FMSHRC Page 1240
amount to the ubiquitous 30% penalty reduction that has appeared in other cases.”3

 Decision 

Denying Settlement at 1. 

The section 104(d)(1) citation, No. 9082933, involved 30 C.F.R. § 77.1004(b), titled 

“Ground control; inspection and maintenance; general,” which provides at subsection (b) that 

“Overhanging highwalls and banks shall be taken down and other unsafe ground conditions shall 

be corrected promptly, or the area shall be posted.” 30 C.F.R. § 77.1104(b). The Court noted that 

“[t]he entire text of the 57 words offered as ‘justification’ for the 30% reduction regarding the 

(d)(1) Citation, No. 9082933 state[d], ‘Respondent presented evidence that it relied upon the 

representations of the owner Operator that it was only required to set the miner back 20 feet in 

order to be in compliance with the ground control plan. In consideration of this evidence and the 

risks inherent in proceeding to trial, the Secretary agreed to the reduction in penalty.’” Motion at 

3. 

However, once boilerplate language was removed, the essence of the justification offered 

was that the Respondent relied upon the representations of the owner Operator that it was only 

required to set the miner back 20 feet in order to be in compliance with the ground control plan. 

Id. The Court then explained that the Motion was insufficient because the standard does not 

speak at all in such terms. Rather, 

[i]t deals only with unsafe ground conditions, requiring that they “shall be 

corrected promptly, or the area shall be posted.” 30 C.F.R. § 77.1004(b). The 

standard makes no mention of ground control plans [and it] offers nothing to 

explain how the claim that Bundy Auger Mining was allegedly told by the “owner 

Operator,” that “it was only required to set the miner back 20 feet in order to be in 

compliance with the ground control plan,” applies to the requirements of the 

standard. [Further, the Motion offered] no explanation of the relationship between 

Bundy Auger and the unnamed ‘owner Operator,’ nor how that relationship would 

absolve Bundy from compliance with the standard or reduce the amount of its 

penalty liability [nor did the Motion explain] the asserted relevance of the claim 

that, if the miner was set back 20 feet . . . 

Id. at 4-5. 

Problems of the same ilk existed for the other matter, the section 104(d)(1) order, No. 

9082935. That involved standard 30 C.F.R. § 77.1713(a), titled, “Daily inspection of surface coal 

mine; certified person; reports of inspection,” which provides that, 

[a]t least once during each working shift, or more often if necessary for safety, 

each active working area and each active surface installation shall be examined by 

a certified person designated by the operator to conduct such examinations for 

hazardous conditions and any hazardous conditions noted during such 

 3

 The originally assessed total amount was $6,300.00, and the proposed settlement total is 

for $4,410.00. 

39 FMSHRC Page 1241
examinations shall be reported to the operator and shall be corrected by the 

operator. 

30 C.F.R. § 77.1713(a). 

The Order alleged that “[t]he operator failed to conduct an adequate on-shift examination 

to identify hazardous conditions in the active working area at the Taylor Highwall Mine, Pit 

#001.” Decision Denying Settlement Motion at 5. 

As set forth in more detail in the Decision Denying Settlement Motion, effectively only 

17 words were offered to support the penalty reduction and those words were simply an echo of 

the justification presented for the other matter, Citation No. 9082933. As the Court noted, the 

justification was empty, being “devoid of any meritorious explanation for the proposed 

reduction.” Id. at n.3. 

The Secretary’s Motion for Reconsideration 

In conjunction with the Secretary’s “Motion for Reconsideration,” (“Reconsideration”) 

the Secretary provided an “Amended Settlement Motion with additional factual support.” 

(“Amended Motion”). Reconsideration at 1 (emphasis added). 

Near the end of its lengthy resubmission, most of which is a regurgitation of material 

previously submitted, the Secretary finally offers in its Amended Motion for Citation No. 

9082933 that 

[t]he subject violations were issued in the course of a technical compliance

investigation of the Ground Control Plan submitted on March 9, 2015 for the

Moran Coal Company’s4

 Taylor Highwall Mine owned by ARJ Construction Co.

("owner Operator"). Bundy Auger is the independent contractor retained by ARJ

to mine the Taylor Highwall. ARJ was also issued citation No. 9082934 and

Order No. 9082936 for violations of the same standard. Those violations were

accepted as issued. In reaching this settlement, the Secretary considered evidence

gathered during a related 110(c) investigation that revealed that when similar

over-steepened spoils were cited on March 26, 2015, Bundy Auger's foreman was

instructed by the owner-operator that the only remedial effort required was

moving the miner 20 feet back from the highwall. Respondent presented evidence

that its agents were never instructed to develop or maintain berms along the base

of the low wall. In addition, the contracting agreement between ARJ and Bundy

4

 There is no “Moran Coal Company.” The Secretary acknowledged this in an email 

response to the Court’s inquiry about this, advising, “References to Moran Coal were made in 

error. The Taylor Highwall Mine (ID No. 1800794) is owned by ARJ Construction. The related 

violations which were issued to ARJ, copies of which are attached, were not contested and 

accepted as issued. Citation 9082934 was assessed a penalty of $5,200 and Order 9082936 was 

assessed a penalty of $6,100. Both penalties have been paid in full.” June 6, 2017 email to the 

Court from Solicitor’s Office Attorney Helga Spencer 

39 FMSHRC Page 1242
provided that the responsibility of maintaining the pit rested solely with ARJ. 

After the miner was relocated, Bundy auger resumed mining of the highwall as it 

understood that this had been approved by MSHA per representations made by 

agents of the owner-operator. The Operator contends, and the issuing Inspector 

does not dispute that there was probable confusion concerning Bundy's 

understanding of what was required of it after similar conditions were cited by 

him on March 26.The evidence presented tended to indicate that Bundy Auger's 

agents were acting in good faith and with the understanding, albeit mistaken, that 

its actions were in compliance with MSHA and Inspector Jones' instructions. 

Therefore, the Secretary believes Respondent's negligence, while high was 

somewhat less than originally assessed and that the reduction of the assessed 

penalty in this particular case is consistent with his enforcement responsibility 

under the Mine Act. 

Amended Motion at 4-5 (emphasis added). 

The Amended Motion also provided, with regard to Order No. 9082935, that 

[e]vidence presented by Respondent and gathered during the course of MSHA's

investigation indicate that in the week preceding the issuance of the subject

violations, Bundy Auger's foreman had been conducting the requisite

examinations and recording conditions in the pit, including instances of oversteepened spoils. Respondent presented evidence indicating, however, that it did

not have the authority or the equipment necessary to lower the height of the low

wall or expand the width of the pit and that such authority rested solely with ARJ.

Additionally, the evidence presented indicated Bundy Auger's agents were acting

in good faith and with the understanding that its actions were in compliance with

MSHA and Inspector Jones' instructions. Therefore, the Secretary believes that

the reduction of the assessed penalty in this particular case is consistent with his

enforcement responsibility under the Mine Act.

Amended Motion at 6-7. 

Accordingly, with this new submission, the Secretary now has provided facts sufficient to 

support the proposed penalty reduction and on that basis, the settlement is now approved. 

However, more must be expressed about persistent disconcerting elements in the amended 

settlement motion. 

Although this Court has already provided in a number of its previous orders denying

insufficiently supported settlements several examples from the Secretary’s own submissions 

which contain the kind of facts needed in order to justify penalty reductions for proposed 

settlements, by the Amended Motion in this very case, the Secretary has again demonstrated that 

he fully knows how to provide the kind of supporting information required for the Commission 

to perform its statutory responsibilities under section 110(k) of the Mine Act and that it is neither 

burdensome nor difficult to provide this information. 

39 FMSHRC Page 1243
 Yet, before ultimately providing the needed supporting information, and then only in the 

context of its Amended Motion, the Secretary begins once again with his new formulation, 

which is an undisguised attempt to avoid presenting violation-related facts to support the reduced 

penalties. 

Thus, the Secretary now routinely offers up, in place of useful information, the following 

language: 

In reaching the settlement, the Solicitor's Office reviewed Citations, the 

inspector's notes, and discussed at length, with the issuing inspector and other 

MSHA personnel, the positions between the parties during the course of 

negotiations. . . . In this case, the mine operator and the Secretary reached a 

compromise to resolve a docket of 2 contested violations and proposed the terms 

of the settlement agreement in a motion to the Court. [with the motion often 

adding that] [u]nder the proposed settlement, [mine operator’s name inserted 

here] agreed to accept the violations as issued by the MSHA inspector, including 

the levels of gravity and negligence alleged [and the operator] also agreed to pay 

[some percentage of the original] penalty proposed by MSHA. . . . In reaching this 

settlement, the Secretary has evaluated the value of the compromise, the 

likelihood of obtaining a better settlement, and the prospects of coming out better 

or worse after a trial. In deciding that such a compromise is appropriate, the 

Secretary has not given weight to the costs of going to trial as compared to the 

possible monetary results that would flow from securing a higher penalty total. He 

has, however, considered the fact that he is maximizing his prosecutorial impact 

in settling this case on appropriate terms and in litigating other cases in which 

settlement is not appropriate. The Secretary believes that maximizing his 

prosecutorial impact in such a manner serves a valid enforcement purpose. Even 

if the Secretary were to substantially prevail at trial, and to obtain a monetary 

judgment similar to or even exceeding the amount of the settlement, it would not 

necessarily be a better outcome from the enforcement perspective than the 

settlement, in which all alleged violations are resolved and violations that are 

accepted can be used as a basis for future enforcement actions. A resolution of 

this matter in which all violations are resolved is of significant value to the 

Secretary and advances the purposes of the Act. Thus, the Secretary requests that 

Court (sic) to reconsider rejection of the proposed settlement agreement. 

Reconsideration at 2-3. 

It must therefore be directly called out that what is going on here is a power struggle. As 

the language quoted above now appears routinely in the Secretary’s settlement motions, it was 

not created by some maverick attorney within the Solicitor’s Office but rather obviously 

originated at some higher level. But this is not a power struggle over some ambiguous provision 

of the Mine Act, the language for which it can be claimed equally by the Commission and the 

Secretary of Labor as containing unclear or indefinite terms. Rather, the terms of section 110(k) 

could not be more clear, providing, without ambiguity on the subject of “Compromise, 

mitigation, and settlement of penalty,” that “[n]o proposed penalty which has been contested 

39 FMSHRC Page 1244
before the Commission under section 815(a) of this title shall be compromised, mitigated, or 

settled except with the approval of the Commission.” 30 U.S.C. § 820(k) (emphasis added). 

Although the words in the provision could not be clearer, the legislative history also confirms the 

statutory terms and the Commission has made note of this fact in its decisions on this issue. Yet, 

the Secretary has treated the words in that Congressionally-expressed legislative history as “old,” 

as if they had an expiration date. It should also be noted that one will not find the words “The 

Secretary” anywhere in section 110(k) and Congress certainly knew how to refer to the 

“Secretary of Labor” when it wanted to, as it defined “Secretary” in the Mine Act to mean the 

“Secretary of Labor” and then proceeded to refer to the Secretary of Labor hundreds of times in 

that Act, but with no such reference to the Secretary in section 110(k). 

As the Court noted in its May 2, 2017 Order Denying Settlement Motion 

in the larger picture, if this formulation were to be accepted by the Court, apart 

from the failure to meet 110(k)’s language, every case the Secretary submitted for 

settlement hereafter could adopt essentially the same language presented here. In 

that way, though it failed to prevail before this Court, and then failed again before 

the Commission and, effectively, failed for a third time, after he decided to 

withdraw his appeal before the United States Court of Appeals for the District of 

Columbia of those prior denials, this non-factually based language in his present 

motion, if accepted, would enable the Secretary to achieve his original goal of 

unfettered, unreviewable settlement offerings before the Commission. 

Order Denying Settlement at 6-7. 

Emphasis about this point was made in the Court’s May 19, 2017 Order Denying 

Secretary’s Motion to Certify May 2, 2017 Order for Interlocutory Review, in The American 

Coal Company (“Interloc Denial”) where it was observed that if the Secretary’s position were 

accepted that 

[b]ased on the calculations above of litigation risk, a 30 percent reduction is

reasonable from the Secretary's perspective in exchange for a guarantee that none

of the violations will be set aside or modified.... Because the violations are all 

being admitted, an across-the-board reduction in penalties is reasonable,” then “all 

dockets for which all violations are admitted, could form the justification for a 

30% reduction. But that is not all. As just mentioned, applying the same 

reasoning, if the principle were to be accepted, it could be applied to justify any 

other across-the-board percentage figure that the Secretary tossed out. 

2017 WL 2306332 at *5 (emphasis omitted). 

Restated, the Court also noted that 

if the Secretary’s expression was deemed sufficient here, then in future cases, the 

Commission could not logically assert any section 110(k) considerations where all 

violations were admitted. Such a result would effectively neuter the 

39 FMSHRC Page 1245
Commission’s review authority under section 110(k). Beyond ignoring the plain 

language of that section, the Commission could not reasonably object to a higher 

percentage reduction. Accordingly, if the Secretary’s position were adopted, a 40 

or 50 percent reduction, or more, would also fit within the Secretary’s authority. 

Id. (emphasis omitted). 

WHEREFORE, with the above-described chronic problems identified, the amended 

motion for approval of settlement having provided legitimate factual grounds in support of the 

reduced penalties, the Motion is now hereby GRANTED. 

Within 30 days of the date of this Order, Respondent shall send a check in the amount of 

$4,410 made payable to "U.S. Department of Labor/MSHA", to P.O. Box 790390, St. Louis, MO 

63179-0390. Upon receipt of payment, the case is dismissed. 

SO ORDERED. 

/s/ William B. Moran 

William B. Moran 

Administrative Law Judge 

Distribution: 

Joseph G. Jacobs, Bundy Auger Mining, Inc., PO BOX 249, Stanville, KY 41569 

Helga P. Spencer, Esq., U.S. Department of Labor, Office of the Regional Solicitor, 170 S. 

Independence Mall West, Suite 700 East, Philadelphia, PA 19106-3306

39 FMSHRC Page 1246
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 

June 15, 2017 

DECISION AND ORDER ON REMAND

Appearances: Travis W. Gosselin, Esq., Office of the Solicitor, U.S. Department of 

Labor, Chicago, Illinois, for Petitioner 

Jason W. Hardin, Esq., & Mark E. Kittrell, Esq., Salt Lake City, Utah, for 

Respondent 

Before: Judge McCarthy 

This case is before me upon a Petition for the Assessment of Civil Penalty under section 

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

or “the Act”). This docket involves two section 104(d)(2) orders issued to Respondent, American 

Coal Company (“Respondent”), for violations of 30 C.F.R. § 75.400 at Respondent’s Galatia 

Mine.1 For both Order No. 7490584 and Order No. 7490599, the Petitioner proposed the 

assessment of “flagrant” penalties under the “repeated failure” provision of section 110(b)(2) of 

the Act. 

1

 30 C.F.R. § 75.400 governs accumulations of combustible materials in underground 

coal mines. The regulation provides that “coal dust, including float coal dust deposited on rockdusted surfaces, and other combustible materials, shall be cleaned up immediately and not be 

permitted to accumulate in active workings, or on diesel-powered and electrical equipment 

therein.” 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

v. 

THE AMERICAN COAL COMPANY, 

 Respondent 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 2009-0035 

A.C. No. 11-02752-164722

Mine: Galatia Mine 

39 FMSHRC Page 1247
I. STATEMENT OF THE CASE ON REMAND

A hearing was held in Henderson, Kentucky on August 23-24, 2011. During the hearing, 

the parties offered testimony and documentary evidence.2

 Witnesses were sequestered. I issued 

my initial Decision and Order on July 30, 2013. American Coal Co., 35 FMSHRC 2208 

(July 2013) (ALJ).3

 For Order No. 7490584, I affirmed the Secretary’s significant and substantial 

(S&S), unwarrantable failure, and flagrant designations. Id. at 2226-30, 2240-41, 2264-65. I 

modified Order No. 7490584 to reduce the likelihood of injury or illness from “highly likely” to 

“reasonably likely,” and to reduce the injury that could reasonably be expected to occur from 

“fatal” to “lost workdays or restricted duty.” Id. at 2226-30. I assessed a civil penalty of 

$101,475. Id. at 2266-68. For Order No. 7490599, I also affirmed the Secretary’s S&S, 

unwarrantable failure, and flagrant designations. Id. at 2230-31, 2240-41, 2264-65. I modified 

Order No. 7490599 to reduce the level of negligence from “high” to “moderate” and to reduce 

the likelihood of injury or illness from “highly likely” to “reasonably likely.” Id. at 2230-31, 

2241. I assessed a civil penalty of $77,737. Id. at 2266-68. 

Both the Secretary and Respondent filed Petitions for Discretionary Review, which the 

Commission granted on September 4, 2013. The parties submitted briefs, and the Commission 

held an open meeting on June 3, 2015. The Commission issued its decision on August 30, 2016. 

American Coal Co., 38 FMSHRC 2062 (Aug. 2016). 

The Commission affirmed all of my holdings regarding Order No. 7490584. For Order 

No. 7490599, the Commission affirmed my gravity and unwarrantable failure findings, and 

vacated, in part, my determinations regarding both Respondent’s negligence and the Secretary’s 

flagrant designation. Specifically, then-Chairman Jordan, Commissioner Nakamura, and 

Commissioner Cohen found that substantial evidence supported my determination that the 

accumulations presented a smoke hazard that could reasonably be expected to cause death or 

serious bodily injury. Id. at 2078-29. Commissioner Young disagreed, and, joined by 

Commissioner Althen, wrote separately to recommend that that issue be remanded to me for 

further findings of fact in the first instance. Id. at 2079 n.22. Commissioners Young and Cohen 

also found that my determination regarding Respondent’s knowledge of the accumulations cited 

in Order No. 7490599 was not supported by substantial evidence. Id. at 2080. Commissioner 

Althen joined in that finding, but wrote separately to argue that section 110(b)(2) requires actual 

knowledge, and not merely constructive knowledge. Id. at 2081 n.27; see infra pp. 19-20. ThenChairman Jordan and Commissioner Nakamura dissented from the majority on the issue of 

Respondent’s knowledge, and wrote separately to affirm my finding that Respondent had 

2

 In this decision, “Tr.I-#” and “Tr. II-#” refer to the first and second volumes of hearing 

transcripts, “P. Ex. #” refers to the Petitioner’s exhibits, and “R. Ex. #” refers to the 

Respondent’s exhibits. Petitioner’s Exhibit Nos. 1-31 and Respondent’s Exhibit Nos. 1-43 were 

received into evidence at the hearing. 

3

 This docket was stayed during the Commission’s interlocutory review of Wolf Run 

Mining Co., in which the Commission considered whether an operator’s past violation history 

can be used to support allegations of “repeated” flagrant violations under section 110(b)(2). 

American Coal Co., 35 FMSHRC at 2209; see also Wolf Run Mining Co., 35 FMSHRC 536 

(Mar. 2013). 

39 FMSHRC Page 1248
knowledge of the cited accumulations. 38 FMSHRC at 2080 n.25. Although Commissioner 

Cohen concurred with all parts of the majority opinion, he wrote separately to state his view 

concerning the broad interpretation of section 110(b)(2). Commissioner Young joined this 

concurring opinion. 38 FMSHRC at 2086. 

In sum, a majority of the Commission remanded this docket to me for further 

consideration of three issues: (1) whether the Secretary established that Order No. 7490599 was 

a flagrant violation; (2) the level of Respondent’s negligence in connection with the violation; 

and, if necessary, (3) reassessment of the civil penalty in accordance with my findings on 

remand. American Coal Co., 38 FMSHRC at 2085 (Jordan, Chairman; Cohen, Young, 

Nakamura, Althen, Comm’rs). After reconsideration of these issues on remand, I affirm the 

Secretary’s original high negligence and flagrant designations for Order No. 7490599. I assess a 

civil penalty of $112,380. 

II. PRINCIPLES OF LAW

A. “Repeated Flagrant” Designations under Section 110(b)(2) of the Act

Section 110(b)(2) of the Mine Act provides: 

Violations under this section that are deemed to be flagrant may be assessed a 

civil penalty of not more than $220,000. For purposes of the preceding sentence, 

the term “flagrant” with respect to a violation means a reckless or repeated failure 

to make reasonable efforts to eliminate a known violation of a mandatory health 

or safety standard that substantially and proximately caused, or reasonably could 

have been expected to cause, death or serious bodily injury. 

30 U.S.C. § 820(b)(2).4

 In light of the statutory language, the Commission has determined that 

there are five elements the Secretary must establish to uphold a flagrant designation: (1) there 

was a condition that constituted a violation of a mandatory health or safety standard; (2) the 

violation was “known” by the operator; (3) the violation either (a) substantially caused death or 

serious bodily injury, or (b) reasonably could have been expected to cause death or serious 

bodily injury; (4) there was a failure on the part of the operator to make reasonable efforts to 

eliminate the violation; and (5) that failure was either “reckless” or “repeated.” American Coal, 

4

 Section 110(b)(2) was added to the Mine Act with the passage of the Mine 

Improvement and New Emergency Response Act of 2006 (the MINER Act), which Congress 

passed on August 17, 2006, following the Aracoma and Sago mine disasters. Mine Improvement 

& New Emergency Response Act of 2006, Pub. L. No. 109-236, sec. 8(a)(2), § 110(b)(2), 120 

Stat. 493, 501 (June 15, 2006). 

39 FMSHRC Page 1249
38 FMSHRC at 2066.5

 Thus, all violations designated as flagrant fall into one of two categories: 

they are either “reckless” flagrant violations, or “repeated” flagrant violations. In the instant 

case, the Secretary alleged that Order No. 7490599 was a “repeated” flagrant violation, rather 

than a “reckless” flagrant violation. 

The Commission has recognized that the Secretary can prove repeated flagrant violations 

under either a “broad” or a “narrow” interpretation of section 110(b)(2). The Commission has 

described “broad” repeated flagrant violations as “recurrent-type violation[s].” Wolf Run Mining 

Co., 35 FMSHRC at 543 n.15. Under the broad interpretation, the Secretary may introduce an 

operator’s history of violations to show that the alleged violation was “repeated.” The Secretary 

therefore establishes a “broad” repeated flagrant violation where he shows that the operator 

“failed to make reasonable efforts to eliminate at least one previous known violation that 

substantially and proximately caused, or reasonably could have been expected to cause, death or 

serious bodily injury, prior to failing to make reasonable efforts to eliminate the known violation 

alleged to be flagrant.” 35 FMSHRC at 2248. 

At hearing in the instant matter, the Secretary argued that both Order No. 7490584 and 

Order No. 7490599 were repeated flagrant violations by virtue of Respondent’s past history of 

similar section 75.400 violations. 35 FMSHRC at 2254-55. In essence, the Secretary adopted the 

broadest possible interpretation of section 110(b)(2), taking the position that the mere existence 

of one or more prior similar violations may be sufficient to support a flagrant designation under 

the broad interpretation of “repeated.” 35 FMSHRC at 2247. I noted that in addition to 

advancing “constantly evolving interpretations of section 110(b)(2) in litigation before the 

Commission and its judges,” the Secretary failed to engage in substantive notice and comment 

rulemaking regarding the flagrant provision’s meaning. I therefore declined to defer to the 

Secretary’s interpretation.6

 35 FMSHRC at 2253-58; see also Chevron U.S.A., Inc. v. Nat. Res. 

Def. Council, 467 U.S. 837 (1984); Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945). 

Although the Commission’s decision in Wolf Run established that an operator’s history of 

violations is relevant to proving a “repeated” flagrant violation, the precise contours of the broad 

interpretation remain unsettled. See 38 FMSHRC at 2100 n.4 (Comm’r Althen, dissenting); see, 

e.g., Blue Diamond Coal Co., 36 FMSHRC 541, 550 (Feb. 2014) (ALJ) (“[T]he narrow,

5

 In my initial Decision and Order, I found that the Secretary must prove the following 

elements in order to establish a repeated flagrant violation: (1) a repeated failure, (2) to make 

reasonable efforts to eliminate, (3) a known violation of a mandatory health or safety standard, 

(4) that substantially and proximately caused or reasonably could have been expected to cause,

(5) death or serious injury. 35 FMSHRC at 2258 (citing Wolf Run Mining Co., 35 FMSHRC 734,

735 (Mar. 2013) (ALJ); Wolf Run Mining Co., 34 FMSHRC 337, 345 (Jan. 2012) (ALJ);

Stillhouse Mining LLC, 33 FMSHRC 778, 802 (Mar. 2011) (ALJ)).

6

 In their concurring opinion, Commissioners Cohen and Young also declined to extend 

Chevron deference to the Secretary’s broad interpretation of section 110(b)(2). They found that 

the Secretary’s formulation “offered no principled basis for making the determination” regarding 

whether and when a prior violation would be sufficient to support a finding that a subsequent 

violation amounted to a repeated flagrant violation. They thus concluded that the Secretary’s 

formulation “lacks practical utility for Commission judges.” 38 FMSHRC at 2087-88. 

39 FMSHRC Page 1250
interlocutory nature of the Commission’s Wolf Run decision leaves open the level of similarity 

and or pervasiveness necessary for past conduct to prove a present violation as a repeated failure 

under section 110(b)(2) of the Mine Act.”). I determined in my initial Decision and Order that 

the broad interpretation requires the Secretary to show that the prior violation or violations 

introduced as part of an operator’s past violation history must have been “known” to the operator 

and either killed or seriously injured a miner, or reasonably could have been expected to kill or 

seriously injure a miner. 35 FMSHRC at 2248-49. I suggested that the Secretary could 

demonstrate an operator’s knowledge of a prior violation through “a high negligence stipulation 

or proof of knowledge in the unwarrantable failure analysis.” Id. at 2249. Likewise, the Secretary 

could demonstrate the requisite gravity by showing that a prior violation was designated as 

“permanently disabling” or “fatal,” i.e., the violation reasonably could have been expected to 

cause death or serious bodily injury. Id. 

The majority of the Commission, perhaps failing to reach a consensus, did not address the 

approach to the broad interpretation that I detailed in my initial Decision and Order. Instead, the 

majority directed that I fashion my own broad interpretation “which permits the Secretary to 

establish a violation as flagrant by taking the operator’s history of previous accumulations 

violations into account.” 38 FMSHRC at 2082. Although the Commission majority declined to 

provide guidance relating to the broad interpretation, three Commissioners wrote separately to 

provide their views on the broad interpretation. Commissioner Cohen, joined in his concurring 

opinion by Commissioner Young, recognized that “the essence of a repeated violation is a 

condition which threatens miners with serious bodily injury or death and which has been ignored 

or disregarded often enough to demonstrate intolerable irresponsibility.” 38 FMSHRC at 2087 

(Cohen & Young, Commr’s, concurring). Commissioners Cohen and Young found my 

characterization of the broad interpretation to be too narrow, and disagreed that the Secretary 

must prove the knowledge element for each prior citation or order introduced into the record to 

support the flagrant designation at issue. Id. Thus, “while a mere listing of violations of the same 

standard may be insufficient to establish repetition, evidence of a large number of substantially 

similar violations arising from general practices or neglect, or a smaller number of violations that 

may be shown to share a common cause that was known and disregarded, may meet the statutory 

criteria.” Id. 

Although Commissioners Jordan and Nakamura did not directly address the broad 

interpretation, they stated that they nevertheless felt “constrained to comment on the substance of 

[Commissioner Cohen’s and Commissioner Young’s] suggested approach” because it “raises as 

many questions as it strives to answer.” Id. at 2095 (Chairman, Jordan and Comm’r, Nakamura, 

concurring and dissenting). They noted, for example, that their colleagues’ guidance did not 

clearly delineate how the Secretary would prove that prior violations amounted to a “known 

pattern” or were “substantially similar” to the subsequent violation, and they wondered whether 

the Secretary would be compelled to produce specific evidence on all of the prior violations. In 

other words, they seemed skeptical of an approach that would require the Secretary to litigate 

aspects of prior violations. Despite this apparent skepticism, Chairman Jordan and Commissioner 

Nakamura did not explicitly opine on whether a known history of similar violations, without 

more, could be enough to support a repeated flagrant finding. Id. at 2096. 

39 FMSHRC Page 1251
Then-Commissioner Althen (now Acting Chairman Althen) also addressed the broad 

interpretation in his concurring and dissenting opinion.7

 He made two arguments: first, the plain 

language of section 110(b)(2) refers to a single, specific violation, id. at 2108-09 (Althen, 

Comm’r, concurring in part and dissenting in part); and second, the practical application of the 

Commission’s interpretation of section 110(b)(2), as presented in its Wolf Run decision, raises 

insurmountable procedural concerns relating to fair notice and due process. Id. at 2111-12. As a 

result, Commissioner Althen concluded that an operator’s history of prior violations is not 

relevant to a flagrant determination, and only single, continuing violations may be designated as 

flagrant. Id. at 2108. 

Commissioner Althen argues first that the plain language of section 110(b)(2) refers to “a 

single, specific violation—“a known violation.”” Id. at 2108. This plain language construction is 

supported by “the uniqueness of a flagrant violation” in the Mine Act’s enforcement scheme: 

Congress has established a scheme of “increasingly severe sanctions for 

increasingly serious violations of operator behavior.” At the far end, those 

progressive sanctions apply to violations resulting from [the] highest levels of 

negligence—that is, gross negligence or reckless disregard (unwarrantable 

failures) and violations that could contribute significantly and substantially to the 

likelihood of serious injuries (S&S violations). For unwarrantable failure 

violations, the progressive discipline culminates in a difficult to break chain of 

withdrawal orders under section 104(d). For S&S violations, the progressive 

discipline culminates in a perhaps more difficult to break chain of withdrawal 

orders under section 104(e). Such violations carry a maximum civil penalty of 

slightly less than $70,000. 

38 FMSHRC at 2101 (internal citations omitted). 

Recognizing that the MINER Act was passed in direct response to serious mine disasters, 

Commissioner Althen argues that section 110(b)(2) was enacted to “penalize severely any 

violations where operator conduct goes substantially beyond violations previously established in 

the Mine Act.” Id. at 2105. Thus, the gravity aspect for flagrant violations (death or serious 

bodily injury) goes beyond the gravity required for S&S violations (reasonably likely to result in 

a reasonably serious injury). Id. at 2105. Likewise, “[a] flagrant violation . . . goes beyond the 

level of extreme negligence or reckless disregard already dealt with as unwarrantable failures 

and the requirement of reasonable expectation of death or serious bodily injury essentially 

reaches the gravity level necessary for an imminent danger.” Id. at 2105. Commissioner Althen 

recognizes that “clearly, a uniquely violative circumstance is at the heart of a ‘flagrant’ 

violation[:] ... failing repeatedly to correct a specific violation of which the operator has 

knowledge and is so serious that it creates a reasonable expectation of death or serious injury.” 

Id. at 2109. Commissioner Althen therefore argues that allowing the use of an operator’s history 

of violations renders section 110(b)(2) a duplicative enforcement mechanism to those contained 

in sections 104(e) and 110(b)(1), both of which deal with an operator’s failure to abate already7

 Acting Chairman Althen did not join the Commission until August of 2013, and 

therefore did not participate in the Commission’s Wolf Run decision. 35 FMSHRC 536 (Mar. 

2013). 

39 FMSHRC Page 1252
cited conditions.8

 Unlike section 104(e) and section 110(b)(1), Commissioner Althen argues that 

the plain language of section 110(b)(2) does not require that the “known violation” must be a 

violation which has already been cited. 38 FMSHRC at 2110 n.9 (Althen, Comm’r, concurring 

and dissenting). Thus, when viewed as part of the Mine Act’s progressively severe enforcement 

scheme, the plain language of Section 110(b)(2) does not permit the consideration of an 

operator’s past violation history, in Commissioner Althen’s view. 

While Commissioner Cohen and Commissioner Young argue that an operator’s history of 

violations may be introduced to show a pattern of neglect or a common, disregarded cause of 

similar violations, Commissioner Althen recognizes that using an operator’s history of violations 

for this purpose presents concerns regarding fair notice and due process. As the Commission has 

acknowledged, its broad interpretation of section 110(b)(2) provides no notice to operators 

regarding the “number, type, or similarity of prior violations that would be necessary for prior 

violations to sustain a flagrant penalty.” Id. at 2111. Commissioner Althen also observed (as I 

did in my initial Decision and Order) that 

a new violation could only “repeat” a prior violation if such prior violation and 

the new violation share the same fundamental elements. Here, that means that in 

the prior violation the operator (1) failed to eliminate a known violation that (2) 

could reasonably be expected to cause death or serious injury. . . . [T]he vast 

majority of prior violations do not demonstrate either that the operator had 

8

 Section 104(e)(1) provides: 

If an operator has a pattern of violations of mandatory health or safety standards 

in the coal or other mine which are of such nature as could have significantly and 

substantially contributed to the cause and effect of coal or other mine health or 

safety hazards, he shall be given written notice that such pattern exists. If, upon 

any inspection within 90 days after the issuance of such notice, an authorized 

representative of the Secretary finds any violation of a mandatory health or safety 

standard which could significantly and substantially contribute to the cause and 

effect of a coal or other mine safety or health hazard, the authorized representative 

shall issue an order requiring the operator to cause all persons in the area affected 

by such violation, except those persons referred to in subsection (c) of this 

section, to be withdrawn from, and to be prohibited from entering, such area until 

an authorized representative of the Secretary determines that such violation has 

been abated. 

30 U.S.C. § 814(e)(1). Section 110(b)(1) provides: 

Any operator who fails to correct a violation for which a citation has been issued 

under section 814(a) of this title within the period permitted for its correction may 

be assessed a civil penalty of not more than $7,500 for each day during which 

such failure or violation continues. 

30 U.S.C. § 820(b)(1). 

39 FMSHRC Page 1253
knowledge of the violation or that the prior violation created a reasonable 

expectation of death or serious bodily injury. 

Id. at 2114; see also 35 FMSHRC at 2249. As Commissioner Althen argues, the mere occurrence 

of a prior violation, “standing alone,” does not demonstrate the requisite negligence and gravity 

elements required for a flagrant violation, i.e., an S&S violation need not necessarily be expected 

to cause “death or serious bodily injury,” and an unwarrantable failure designation does not 

necessarily require that the violation was “known” to the operator. See 38 FMSHRC at 2115. 

Consequently, the “vast majority of prior violations do not demonstrate either that the operator 

had knowledge of the violation or that the prior violation created a reasonable expectation of 

death or serious bodily injury.” Id. at 2114. Commissioner Althen therefore concludes that “the 

clear purpose of section 110(b)(2) is to incentivize operators strongly to eliminate known 

violations reasonably expected to cause serious injury without waiting for an inspector to 

discover the violative condition.” Id. at 2110. 

I find Commissioner Althen’s reasoning to be clear, sensible, and highly persuasive. He 

additionally noted that Judge Barbour and Judge Feldman have also persuasively explained that 

“the plain statutory language in section 110(b)(2) with respect to ‘repeated conduct’ refers to a 

single known violation, rather than a series of recurring violations.” Id. at 2109 (citing Conshor 

Mining, LLC, 33 FMSHRC 2917, 2927-28 (Nov. 2011) (ALJ Feldman)); see also Wolf Run 

Mining Co., 34 FMSHRC 337, 346 (Jan. 2012) (ALJ Barbour), rev’d, 35 FMSHRC 536 (Mar. 

2013). After reconsideration of this issue, and after considering the Commissioners’ separate 

comments on the broad interpretation, including several Commissioners’ rejection of my efforts 

to fashion a broad interpretation consistent with the statutory language of section 110(b)(2) after 

Wolf Run, I decline to address the broad interpretation.9

 

As an alternative to the “broad” interpretation, the Commission adopted my 

characterization of the second approach to establishing repeated flagrant violations as the 

“narrow” interpretation of section 110(b)(2). Under that interpretation, the Secretary is 

required to show that the cited and assessed violation, discreetly [sic] and without 

reference to the operator’s past violation history . . . was a single, continuing 

violation serious in nature that the operator could or should have become aware of 

at some point, i.e. known, such that it had multiple opportunities to address the 

condition, but did not avail itself of those opportunities (repeated failure to take 

reasonable steps to eliminate). 

American Coal Co., 38 FMSHRC 2063, 2065 (Aug. 2016); see also Wolf Run Mining Co., 

35 FMSHRC 536, 543 n.14 (Mar. 2013). In other words, the broad interpretation involves 

multiple, separate instances of recurring violations, whereas the narrow interpretation involves 

only a single, ongoing violation. 

 

 9

 If I were writing on a clean slate, I would be inclined to concur with the well-reasoned 

opinions of Commissioner Althen, Judge Feldman, and Judge Barbour that a series of separate, 

recurring violations should not constitute the basis for a finding of a repeated flagrant violation. 

39 FMSHRC Page 1254
B. Negligence Principles

Negligence is not defined in the Mine Act. The Commission has found that “[e]ach 

mandatory standard thus carries with it an accompanying duty of care to avoid violations of the 

standard, and an operator’s failure to satisfy the appropriate duty can lead to a finding of 

negligence if a violation of the standard occurred.” A.H. Smith Stone Co., 5 FMSHRC 13, 15 

(Jan. 1983) (citations omitted). In determining whether an operator meets its duty of care under 

the cited standard, the Commission considers what actions would have been taken under the 

same or similar circumstances by a reasonably prudent person familiar with the mining industry, 

the relevant facts, and the protective purpose of the regulation. See generally U.S. Steel Corp., 

6 FMSHRC 1908, 1910 (Aug. 1984); see also Jim Walter Res., Inc., 36 FMSHRC 1972, 1975-77 

(Aug. 2014) (requiring Secretary to show that operator failed to take specific action required by 

the standard violated); Spartan Mining Co., 30 FMSHRC 669, 708 (Aug. 2008) (negligence 

inquiry is circumscribed by the scope of duties imposed by the regulation violated). In this 

regard, the gravamen of high negligence is “an aggravated lack of care that is more than ordinary 

negligence.” Brody Mining, LLC, 37 FMSHRC 1687, 1701 (Aug. 2015) (citing Topper Coal Co., 

20 FMSHRC 344, 350 (Apr. 1998)). 

Commission judges are not required to apply the level-of-negligence definitions in the 

Part 100 penalty regulations and may evaluate negligence from the starting point of a traditional 

negligence analysis rather than from the Part 100 definitions. Brody Mining, 37 FMSHRC at 

1701; accord Mach Mining, LLC v. Sec’y of Labor, 809 F.3d 1259, 1263-64 (D.C. Cir. 2016). 

Thus, in making a negligence determination, a Commission judge is not limited to an evaluation 

of alleged mitigating circumstances, but may consider the totality of the circumstances 

holistically. Under such an analysis, an operator is negligent if it fails to meet the requisite high 

standard of care under the Mine Act. Brody Mining, 37 FMSHRC at 1701. 

C. Penalty Assessment Principles

Under the Mine Act’s bifurcated penalty assessment process, the Secretary initially 

proposes a penalty. 30 U.S.C. § 815(a). The operator has the right to contest the Secretary’s 

proposed penalty assessment. Id. This contest results in a penalty proceeding before the 

Commission. There is no requirement in the Mine Act or its regulations mandating that the 

Secretary explain the basis for his proposed penalty when he makes the discretionary decision to 

specially assess a penalty. 30 C.F.R. § 100.5. 

An Administrative Law Judge has the independent authority to assess all penalties. 

30 U.S.C. § 820(i). In so doing, he or she must consider the six statutory criteria set forth in 

section 110(i) and the deterrent purpose of the Mine Act. The six statutory criteria are: 1) the 

operator’s history of previous violations; 2) the appropriateness of the penalty to the size of the 

business; 3) the operator’s negligence; 4) the operator’s ability to stay in business; 5) the gravity 

of the violation; and 6) any good-faith compliance after notice of the violation. See e.g., Douglas 

R. Rushford Trucking, 22 FMSHRC 598, 600 (May 2000); 30 U.S.C. § 820(i). Equal weight

need not be given to each criterion. Spartan Mining, 30 FMSHRC at 723.

Commission Judges are not bound by the Secretary’s proposed assessment or by his Part 

100 regulations governing the penalty proposal process. American Coal Co., 38 FMSHRC 1987, 

1993-94 (Aug. 2016) (citing Sellersburg Stone Co. v. FMSHRC, 736 F.2d 1147, 1150-51 (7th 

39 FMSHRC Page 1255
Cir. 1984)); Mach Mining, LLC, 809 F.3d 1259, 1263-64 (D.C. Cir. 2016) (MSHA Part 100 

regulations are not in any way binding in Commission proceedings). The Judge must provide an 

explanation for a substantial divergence between the Secretary’s proposed penalty and the 

Judge’s assessed penalty. Sellersburg Stone Co., 5 FMSHRC 287, 290-94 (Mar. 1983). The 

Commission reviews a Judge’s civil penalty assessment under an abuse of discretion standard. 

Douglas R. Rushford Trucking, 22 FMSHRC at 601. 

In another recent American Coal decision, the majority of Commissioners (Young, 

Cohen and Althen), observed that 

[f]or either regular or special assessments, the Secretary’s proposal is not a

baseline from which the Judge’s consideration of the appropriate penalty must

start. The Judge’s assessment is made independently, and, regardless of the

Secretary’s proposal, the Judge must support the assessment based on the penalty

criteria and the record.

38 FMSHRC 1987, 1995 (Aug. 2016). In that decision, MSHA issued a special assessment 

without explaining the basis for the special assessment in its Narrative Findings. Id. at 1996. The 

majority noted that the Secretary bears the burden of “providing evidence sufficient in the 

Judge’s discretionary opinion to support the proposed assessment under the penalty criteria.” Id. 

at 1993. “When a violation is specially assessed, that obligation may be considerable.” Id. While 

the Secretary may provide an explanatory narrative to support the special assessment sought, 

Judges must “be attentive to the rationale and facts and circumstances supporting the decision to 

seek a special assessment, so that the ultimate assessed penalty conforms to the Judge’s findings 

and conclusions.” Id. 

III. FINDINGS OF FACTS, ANALYSIS, AND CONCLUSIONS OF LAW ON REMAND

MSHA inspector Steven Miller issued Order No. 7490599 on September 23, 2007, 

alleging a violation of 30 C.F.R. § 75.400 based on the following condition: 

Float coal dust, a distinct black in color, and loose coal were allowed to 

accumulate under and around the energized tail roller of the Flannigan Tailgate 

conveyor belt. The accumulations measured approximately 6 inches to 14 inches 

in depth. Loose coal and coal float dust also extended outby the tail roller 

approximately 450 feet as well. The area was black and the turning tail roller was 

suspending float coal dust into the atmosphere. The bottom belt and bottom 

rollers were in contact with these accumulations. 

P. Ex. 3. As noted above, I found in my initial Decision and Order that the cited accumulations

constituted a violation of the mandatory safety standard at § 75.400. I found the violation to be

S&S and reasonably likely to result in serious and possibly fatal injuries, including injuries from

smoke inhalation, carbon monoxide poisoning, burns, or entrapment, to the six miners working

inby the hazard. I further found that the violation constituted an unwarrantable failure to comply

with the cited standard. These findings were not disturbed on appeal.

39 FMSHRC Page 1256
The sole matters I must address on remand are the “flagrant” designation, the operator’s 

degree of negligence, and the penalty. 38 FMSHRC at 2085. 

A. The Violation in Order No. 7490599 Reasonably Could Have Been Expected to Cause

Death or Serious Bodily Injury

In my initial Decision and Order, I found that the accumulations at the pony belt and 

Flannigan tailgate intersection were reasonably likely to contribute to a mine fire that would 

result in serious and possibly fatal injuries to the six miners on the working section inby the 

belts: 

In the condition cited in Order No. 7490599, the accumulations were much closer 

inby [than the conditions cited in Order No. 7490584], only a few crosscuts 

removed from the working section. Tr. I-121. There appears to be no stoppings 

that would isolate escaping miners from the effects of a fire. See R. Ex. 4, at 5. As 

the miners would be exposed to an unmitigated smoke hazard, I affirm Miller’s 

determination that any injuries that were to occur from a fire could reasonably be 

expected to result in serious, possibly fatal injuries. In addition, based on Miller’s 

uncontroverted testimony that only the miners working inby the Flannigan 

Tailgate would be exposed to the hazardous condition, I find that the number of 

miners affected is six. Tr. I-121. 

35 FMSHRC at 2231. 

Respondent challenged my findings, arguing on appeal that substantial evidence did not 

support my determination. Respondent specifically argued that Respondent’s Exhibit 4, a mine 

map used to illustrate witness testimony at trial, was not prepared for use as evidence regarding 

the existence and location of stoppings, and that I therefore erred in relying on that exhibit to 

support my finding that there were no stoppings isolating miners from the potential ignition 

source at the belt intersection. 38 FMSHRC at 2078.10

In its decision on appeal, the Commission majority of then-Chairman Jordan, 

Commissioner Nakamura, and Commissioner Cohen accepted Respondent’s argument regarding 

Respondent’s Exhibit 4, without critique, and found that my possible misuse of the mine map 

10 Absent a limited proffer or stipulation that has been received into evidence, I am aware 

of no evidentiary principle that restricts an Administrative Law Judge from interpreting a 

document consistent with its markings and witness testimony, as I did here with the testimony of 

foreman Raney. See Tr. II-20-46, 101-102. Respondent made no such limited proffer at hearing 

regarding the use of Respondent’s Exhibit 4, nor did the Secretary and Respondent offer any 

agreed-upon stipulations regarding any of the exhibits received into evidence at the hearing. Tr. 

I-28-33. I also note that the Federal Rules of Evidence do not directly apply to Commission

proceedings. Leeco, Inc., 38 FMSHRC 1634, 1639 (July 2016).

39 FMSHRC Page 1257
constituted harmless error.11 The Commission majority concluded that substantial evidence 

supported my findings regarding the section crew’s exposure to the possible smoke hazard. 

38 FMSHRC at 2078-79.12 

11 Commissioner Young dissented, and took issue with the majority’s decision (at the 

Secretary’s request) to make a discrete “finding in support of their conclusion that death or 

serious injury to miners could reasonably be expected to result from the accumulations [at issue] 

here.” 38 FMSHRC at 2092. He argued that “where the Judge errs in failing to understand the 

evidence presented . . . our standard practice is to remand the case to him to make the necessary 

findings of fact in the first instance, using a correct understanding of the evidence.” Id. (citing 

Wolf Run Mining Co., 32 FMSHRC 1669, 1676-77 (Dec. 2010) (vacating Judge’s affirmance of 

citation and remanding for factual determination and to address operator’s argument erroneously 

unaddressed)). Commissioner Young further stated that “remand on the issue of the gravity [of 

the violation in Order No. 7490599] was clearly necessary” since my findings rested on “clear 

error.” Id. Commissioner Althen joined in Commissioner Young’s partial dissent on this issue. 

Id. at 2079 n.22. 

12 The majority opinion also stated that “[t]he Secretary concedes that the Judge 

misconstrued the evidence and that there were in fact stoppings between the primary and 

secondary escapeways on the Flannigan Tailgate belt.” 38 FMSHRC at 2078 (citing S. Br. at 21, 

Tr. II-37-46; R. Ex. 4 at 5). That is an overstatement. In his Response Brief on appeal, the 

Secretary stated, in full: 

American Coal asserts that the ALJ erroneously relied on a “demonstrative 

exhibit” to find that there were no stoppings that would isolate escaping miners 

from the smoke generated by a fire. R. Br. at 49-52. That finding, American Coal 

contends, is “wholly inconsistent with testimony and other evidence adduced at 

trial on this very issue.” Id. at 49. The Secretary does not dispute that stoppings 

isolated the belt entry from the primary and secondary escapeways in the 

Flannigan Tailgate. The pony belt, however, was not located in the Flannigan 

Tailgate, but rather was located in the set-up area for the longwall panel. Tr. II37-42; R. Ex. 4 at 5. The pony belt intersected the belt in the Flannigan Tailgate at

a 90 degree angle. Id.; see also Tr. I-356; R. Ex. 4. at 5. In testifying that

stoppings isolated the belt entry in the Flannigan Tailgate from the primary and

secondary escapeways in the Flannigan Tailgate, Section Foreman Rocky Raney

specifically emphasized that he was not talking about the pony belt. Tr. II-101-

102. Raney’s testimony is consistent with the “demonstrative exhibit” the ALJ

relied on in finding no stoppings isolating the pony belt entry from the adjacent

entry where the crew was working in the longwall set-up area. R. Ex. 5. Raney’s

testimony is also consistent with American Coal’s approved ventilation plan,

which required stoppings separating intake and return air courses “up to an[d]

including fourth connecting crosscut outby the working faces.” R. Ex. 18 at

TACC001635. Under that plan, stoppings were not required between the pony

belt entry in the longwall panel set-up area and the adjacent entry in which the

crew was working at the face, which was approximately six cross-cuts inby the

(continued...) 

39 FMSHRC Page 1258
In any event, Respondent is enjoined by the law of the case as set forth in the 

Commission majority opinion from re-litigating this issue on any appeal from this Decision and 

Order on Remand. Nevertheless, given the split Commission and the expiration of 

Commissioner Nakamura’s term, I write briefly here to clarify my factual findings. 

In my initial Decision and Order, I stated that “[t]here appear to be no stoppings to isolate 

escaping miners from the effects of a fire. See R. Ex. 4 at 5.” 35 FMSHRC at 2231. Having 

reviewed the record on remand, I recognize that that statement was perhaps overbroad. As the 

Respondent argued, the record demonstrates that stoppings do isolate the primary and secondary 

escapeways from the potential ignition point at the Flannigan Tailgate and pony belt intersection. 

R. Ex. 5 at 1-2; R Ex. 4 at 5. The primary and secondary escapeways, however, are located outby

the belt intersection where the accumulations were discovered. R. Ex. 4, at 5. The section crews

were working inby the ignition point at the belt intersection, no more than two or three crosscuts

outby the working face. R. Ex. 20 at 33, 35, 37, 39, 41, and 43; R. Ex. 5 at 1-2; R. Ex. 4 at 5.

While the stoppings separating the primary and secondary escapeways would have isolated

evacuating miners from smoke once they passed outby the belt intersection, there were no

stoppings inby that point. Respondent’s “approved ventilation plan only required

stoppings separating [the] intake and return air course[s] up to and including the fourth

connecting cross-cut outby the working faces.” 38 FMSHRC at 2078 (citing R. Ex. 18 at 7).

While evacuating miners would have been isolated from the effects of a fire once they reached

the primary or secondary escapeway, they would have been exposed to the effects of a fire until

they reached the escapeways.

I therefore conclude, as did the majority of Commissioners, that “the evidence 

demonstrates that the pony belt entry, which ran from its intersection with the Flannigan Tailgate 

to the set-up area for the longwall panel[,] lacked stoppings,” and therefore the miners working 

inby the pony belt and Flannigan Tailgate belt intersection would be exposed to smoke in the 

event of an ignition resulting from the accumulations at issue in Order No. 7490599. 

38 FMSHRC at 2078; see Tr. II-42, R. Ex. 4 at 5. In these circumstances, I reaffirm my finding 

that the smoke to which the miners were reasonably likely to be exposed in the event of an 

ignition could reasonably have been expected to cause death or serious bodily injury. 

30 U.S.C. § 820(b)(2). 

12 (...continued) 

site of the violation and approximately four cross-cuts inby the feeder for the 

pony belt. Tr. II-42; R. Ex. 4 at 5. 

S. Resp. Br. at 21 (footnotes omitted). In my opinion, this is not a concession by the Secretary

that I misconstrued the evidence, but an argument that the operator has misconstrued my

findings. While the Secretary agrees that stoppings separated the escapeways at the Flannigan

Tailgate, he argues that the evidence supports my determination that there were no stoppings

isolating the working miners from the cited accumulations and potential ignition sources at the

pony belt. I therefore respectfully disagree with the Commission majority’s characterization of

the Secretary’s argument as a concession that I misconstrued the evidence.

39 FMSHRC Page 1259
B. The Violation in Order No. 7490599 Resulted from Respondent’s Repeated Failure to

Make Reasonable Efforts to Eliminate a Known Violation

Commissioners Young, Cohen, and Althen, writing for the Commission majority, also 

remanded the issue of whether Respondent repeatedly failed to make reasonable efforts to 

eliminate a known violation. In my initial Decision and Order, I credited inspector Miller’s 

testimony that the accumulations existed for at least two shifts. Tr. I-108; 35 FMSHRC at 2236. 

In addition, I relied on Respondent’s printed production and delay (“P&D”) reports and 

testimony from section foreman Rocky Raney to infer that Respondent had constructive 

knowledge of the cited accumulations for at least two shifts prior to the Order’s issuance, but 

nevertheless failed to address them. 35 FMSHRC at 2239, 2259, and 2265; see also Tr. II-66-68. 

The printed P&D reports document the electrical issues with the pony belt that caused it to 

intermittently start and stop during the five shifts preceding the issuance of Order No. 7490599. 

R. Ex. 21. Raney testified that the pony belt’s starting and stopping problems could cause

spillage and float coal dust accumulations around the belt. Tr. II-66-69. Based on the pony belt’s

documented electrical issues and Raney’s acknowledgment that such issues can cause

accumulations, I concluded that Respondent “knew or should have known that the violation

existed for at least two shifts.” 35 FMSHRC at 2265.

The Commission majority found that my “analysis of the evidence of [Respondent’s] 

knowledge of the accumulations was insufficient.”13 38 FMSHRC at 2080. The Commission 

majority characterized my reliance on Respondent’s printed P&D reports as “problematic,” 

because, in contrast to the handwritten P&D reports created by the section foremen during their 

shifts, the printed P&D reports were not “printed until the morning of September 24, the day 

after [Respondent] was cited for the accumulations.” Id. at 2080; see also R. Exs. 20 

(handwritten P&D reports) & 21. In addition, the Commission majority noted that the cited 

accumulations were not recorded in the pre-shift and on-shift examination books. See R. Ex. 25. 

The Commission recognized that inspector Miller did not “issue a citation or order to 

[Respondent] for having failed to conduct a proper examination of the belts during the preceding 

shifts,” despite his opinion regarding the duration of the accumulations and the lack of any 

record of them in the belt examination books. 38 FMSHRC at 2080. Although I credited Miller’s 

testimony regarding the duration of the violation and consequently inferred from the P&D 

reports and Raney’s testimony that Respondent “knew or should have known” about them prior 

to the issuance of Order No. 7490599, the Commission majority concluded that it could not 

determine whether my inference was reasonable because I did not give consideration to possible 

alternative conclusions regarding why Miller failed to cite Respondent for an inadequate belt 

exam. Therefore, in addition to reviewing the record evidence to “determine at what point, prior 

13 Chairman Jordan and Commissioner Nakamura dissented from this holding, and wrote 

separately to affirm the flagrant determination for Order No. 7490599. They found that 

“substantial evidence supports [my] decision regarding the extent to which AmCoal was or 

should have been aware of the accumulations.” American Coal Co., 38 FMSHRC at 2093 

(Jordan, Chairman & Nakamura, Comm’r, dissenting). Commissioner Althen joined in the 

majority decision to remand the issue, but also wrote separately to express his opinion that the 

plain language of section 110(b)(2) requires that the operator have actual knowledge (rather than 

constructive knowledge) of the violation. 38 FMSHRC at 2099 (Althen, Comm’r, concurring and 

dissenting). 

39 FMSHRC Page 1260
to Miller’s discovery of the accumulations, [Respondent] should have become aware of the 

accumulations,” the Commission majority directed that I also consider: (1) whether the 

accumulations were not included in the belt examination records because they did not exist at the 

time the exams were conducted, or (2) whether “Miller, exercising his discretion, decided not to 

cite [Respondent] for failure to conduct a proper belt examination.” 38 FMSHRC at 2080-81. 

I begin my review of the record with the handwritten P&D reports. Both the printed and 

the handwritten P&D reports generally identify the same delays, but the handwritten P&D 

reports contain the exact start and stop times for each delay (e.g., from 1:15 a.m. to 1:45 a.m.), 

while the printed P&D reports record only the length of the delay (e.g., 30 minutes). See R. Exs. 

20 & 21. The handwritten P&D reports also contain additional information, including the time 

the crew arrived and departed the section, when and where each cut was made, and when the first 

and last shuttle cars of coal were loaded onto the belt. See, e.g. R. Ex. 20 at 32. 

Galatia North mine operated three shifts: foreman Jim Gass’s shift from 12:00 a.m. to 

8:00 a.m., foreman Randy Robertson’s shift from 8:00 a.m. to 4:00 p.m., and foreman Rocky 

Raney’s shift from 4:00 p.m. to 12:00 a.m. Although the shifts began at 12:00 a.m., 8:00 a.m., 

and 4:00 p.m., respectively, the crews were “hot-seating” each shift, meaning the working crew 

would wait on the section until replaced by the next crew. Due to the hour-long travel time from 

the mine portal to the working section, the shift crews would change at approximately1:00 a.m., 

9:00 a.m., and 5:00 p.m., respectively. See R. Ex. 20; Tr. II-303-04. Respondent entered into the 

record handwritten P&D reports for the five shifts preceding the issuance of Order No. 7490599, 

and for the shift during which Miller issued Order No. 7490599. I summarize the relevant 

information for each shift below. 

The handwritten reports indicate that the pony belt was already experiencing electrical 

issues when foreman Jim Gass arrived on the section with his crew at 1:15 a.m. on September 

22, 2007. There were four pony belt delays (resulting in a total of 122 minutes of downtime for 

the pony belt) during Gass’s eight-hour shift. The belt was down for 30 minutes from 1:15 a.m. 

until 1:45 a.m., for another 30 minutes from 1:46 a.m. to 2:16 a.m., for 55 minutes from 4:10 

a.m. to 5:05 a.m., and for seven minutes from 8:23 a.m. until 8:30 a.m. The notation recorded 

next to the 55-minute delay explains that the “unit pony belt would not stay running,” indicating 

that the belt may have been subject to additional starts and stops beyond the four recorded. Gass 

and his crew left the section at 9:15 a.m. R. Ex. 20 at 32. 

 The pre-shift examination for the shift following Gass’s (headed by section foreman 

Randy Robertson) was conducted concurrently with the last part of Gass’s shift from 4:00 a.m. to 

8:00 a.m. on September 22, 2007. R. Ex. 25 at 1. The pre-shift examiner noted that the head area 

of the Flannigan Tailgate belt was “sloppy.” Id. The subsequent on-shift examination report 

indicates that the belt head area was cleaned by Robertson and his section crew during the 

subsequent shift. R. Ex. 25 at 2. This entry, made more than 36 hours before Miller issued Order 

No. 7490599, is the only indication that accumulations existed around the belt area prior to the 

issuance of Order No. 7490599. 

 The P&D reports show that there were two pony belt outages totaling 80 minutes of 

downtime during the shift following Gass’s. Robertson and his section crew arrived on the 

39 FMSHRC Page 1261
section at 9:15 a.m., indicating that Gass’s crew waited until Robertson’s crew arrived before 

leaving the working section.14 The first pony belt stoppage lasted for 50 minutes, from 1:50 p.m. 

until 2:40 p.m. The second stoppage lasted for 30 minutes, from 4:20 p.m. until 4:50 p.m. 

Robertson’s crew dumped the last shuttle car of coal onto the belt at 5:05 p.m. and departed the 

section at 5:10 p.m. R. Ex. 20 at 34. 

The P&D report for the final shift on September 22, 2007 also shows two pony belt 

outages. Raney’s crew arrived on the section at 5:15 p.m., and the first pony belt outage occurred 

about two hours and forty-five minutes later from 8:00 p.m. until 8:30 p.m. due to a problem 

with the pony belt’s ground fault. See R. Ex. 21 at 2; R. Ex. 20 at 36. The second outage began at 

11:50 p.m. and continued until the end of the shift when Raney’s crew left the section at 1:00 

a.m. R. Ex. 20 at 36.

On September 23, 2007, the day Order No. 7490599 was issued, the handwritten P&D 

reports show that there were a total of four pony belt outages equaling a total of 195 minutes of 

belt downtime during Jim Gass’s shift.15 Gass and his crew arrived on the section at 1:15 a.m., 

15 minutes after Raney’s crew departed the section. The first three outages, totaling 75 minutes 

of downtime, occurred as a result of problems with the “pony belt ground fault.” Those outages 

occurred from 2:00 a.m. to 2:25 a.m., from 4:00 a.m. to 4:30 a.m., and from 5:15 a.m. to 5:35 

a.m. During the remaining 120 minutes of outage, which occurred from 7:00 a.m. until 9:00 a.m.,

the “pony belt would not run for more than 2-3 min[utes] and [then] kick [the] breaker.” R. Ex.

20 at 38. Gass also included a notation in the handwritten P&D report that the section crew

“scooped and dusted and serviced equip[ment] during [the] downtime.”16 Id. Gass and his crew

left the section at 9:15 a.m. Id. Inspector Miller testified that the accumulations existed at least as

early as this shift. Tr. I-108.

14 Robertson appears to have been misidentified as section foreman Rocky Raney in the 

printed P&D report for the second shift on September 22, 2007. R. Ex. 21 at 2. The handwritten 

report, however, indicates that Robertson, and not Raney, was the section foreman for that shift. 

R. Ex. 20 at 34. Since the handwritten reports were prepared by the section foreman over the

course of the shift, I rely on the handwritten P&D report.

15 The printed P&D report for Gass’s shift on September 23 consolidates the first three 

outages into one entry indicating a 75-minute outage, but otherwise corroborates the information 

contained in the handwritten report. R. Ex. 21 at 2. 

16 Gass’s crew “scooped & dusted & serviced equip[ment]” during the two-hour delay 

that occurred from 7:00 a.m. to 9:00 a.m. on September 23. This notation is included in the P&D 

report section titled “Explanation of Delays.” R. Ex. 20 at 38. Immediately above that section, in 

the “Comments” section for the entries to “Mining Details,” Gass made the following notation: 

“Dusted Unit, Scooped Unit, Serviced Equipment During [Down] Time.” (Instead of the word 

“down,” the actual notation contains an arrow pointing down. I interpret the arrow to mean 

“down.”) Id. I infer that “unit” refers to “mechanized mining unit,” or MMU, a commonly-used 

mining term. I therefore conclude that “unit” refers to the MMU, or the equipment at the working 

face, rather than the pony belt and Flannigan Tailgate belt intersection outby the working section. 

39 FMSHRC Page 1262
Robertson and his crew arrived on the section at 9:15 a.m. on September 23, 2007. His 

handwritten P&D report shows two pony belt delays: a 30-minute delay from 9:15 a.m. to 9:45 

a.m. resulting from a bad ground monitor card, and a 30-minute delay from 12:50 p.m. to 1:20

p.m. resulting from an issue with the AMR, a type of electrical card. R. Ex. 20 at 40; Tr. II-65.

Raney testified that Robertson’s shift “found the problem” and fixed the pony belt electrical

issue. Tr. II-65. Neither the handwritten nor the printed P&D reports show ongoing issues with

the pony belt after Robertson and his crew left the section at 5:15 p.m. on September 23, 2007.

Raney also confirmed that the P&D reports (both handwritten and printed) do not reflect any

pony belt issues after he and his crew arrived on the section at 5:15 p.m. R. Ex. 20 at 42; R. Ex.

21 at 3; Tr. II-66. As noted above, Order No. 7490599 was issued at 6:45 p.m. on September

23rd, about an hour and a half after Raney arrived on the section with his crew.

The handwritten and printed P&D reports demonstrate that mine management was wellaware that the pony belt was having significant electrical and operational issues during the five 

shifts preceding issuance of Order No. 7490599. These electrical problems led to multiple 

instances where the pony belt was starting and stopping intermittently over the course of each 

shift. R. Exs. 20, 21. Foreman Jim Gass’s September 22 shift experienced four pony belt delays, 

which resulted in 122 minutes of downtime. Foreman Randy Robertson’s September 22 shift 

experienced two delays, which resulted in 80 minutes of downtime. Foreman Raney’s 

September 22 shift experienced two delays, which resulted in 140 minutes of downtime. On 

September 23, Gass’s shift experienced four delays, which resulted in 195 minutes of downtime, 

and Robertson’s shift experienced two delays, resulting in 60 minutes of downtime. R. Ex. 20 at 

32-42, R. Ex. 21 at 8-10. As then-Chairman Jordan and Commissioner Nakamura emphasized in

their dissenting opinion, “the daily reports indicate electrical and breaker problems with the belt

during all three shifts on September 22nd, which grew worse during the first two shifts on

September 23rd, before repairs were made on the second shift.” 38 FMSHRC at 2094 (citing

Tr. II-61-66, R. Ex. 20 at 8-10).

Foreman Raney admitted that the recurrent stopping and starting that characterized the 

pony belt delays on September 22 and 23 could cause spillage from the pony belt and float coal 

dust accumulations around the belt, especially if the coal had been sitting on the belt for an 

extended period of time and had consequently dried out. Tr. II-68, 70. As the handwritten P&D 

reports show, there was, in fact, coal sitting on the belt during the production delays. See R. Ex. 

20 at 38-43. During Robertson’s September 23rd shift (the shift before Miller and Meyer 

observed the accumulations), the crew dumped 18 shuttle cars of coal prior to 4:00 p.m., despite 

the two separate pony belt delays from 9:15 a.m. to 9:45 a.m. and from 12:50 p.m. to 1:20 p.m. 

R. Ex. 20 at 41. During Gass’s shift on September 23 (the shift identified by Miller as the latest

point in time when the accumulations would have been present), the crew loaded ten shuttle cars

of coal onto the belt between 6:00 a.m. and 7:00 a.m. The belt then went down for two hours and

the crew was subsequently unable to get the belt to run for more than two to three minutes at a

time. R. Ex. 20 at 39.

Raney also testified that the feeder, if not manually turned off during belt stoppages, 

would continue to grind the coal stalled on the belt, creating float coal dust that would be 

suspended in the air once the belt was turned back on and coal was transferred from the pony belt 

39 FMSHRC Page 1263
to the Flannigan Tailgate belt. Tr. 68-69.17 Although there was no specific testimony regarding 

whether Respondent had a policy or practice of turning off the feeder during belt delays, Miller 

observed loose coal and float coal dust extending 450 feet outby the tail roller. P. Ex. 3. In 

addition, Miller found that the bottom belt and bottom rollers of the pony belt were in contact 

with the accumulations, and determined that “the tail roller was suspending float coal dust into 

the atmosphere,” which would take at least more than one shift to occur. P. Ex. 3; Tr. I-206-07. 

Given the frequency of belt delays during the five shifts preceding Order No. 7490599 and the 

fact that Miller observed rollers in contact with accumulations, I find that the manual feeder was 

grinding coal during the pony belt production delays over several shifts, which likely contributed 

to the extensive float coal dust cited in Order No. 7490599. 

Despite the progressively worsening problems with the pony belt documented in the 

handwritten P&D reports, the pre-shift and on-shift examination reports from September 22 and 

September 23 make no mention of accumulations around the intersection of the Flannigan 

Tailgate belt and the nearby pony belt. R. Ex. 25. The only notation regarding accumulations 

contained in those records is from the pre-shift examination conducted from 4:00 a.m. to 8:00 

a.m. on September 22nd, which states that the Flannigan Tailgate head area was “sloppy.” R. Ex.

25 at 1. The pre-shift notation regarding the sloppy head area on the Flannigan Tailgate belt

coincides with the 55-minute production delay because the “pony belt would not stay running,”

as documented in Gass’s September 22 P&D report. R. Ex. 20 at 32. The following on-shift

examination record indicated that the belt head area had been cleaned. R. Ex. 25 at 2. Thereafter,

there are no references to accumulations near the pony belt or Flannigan Tailgate belt in the preshift or on-shift examination records for the final two shifts on September 22, or in the

examination records from the first two shifts prior to the issuance of Order No. 7490599 on

September 23. R. Ex. 25 at 2-10.

In order for the lack of notations regarding the accumulations in the September 23 preshift and on-shift examination records to be accurate, the accumulations must have occurred after 

the last examinations were conducted, i.e., between the time the examiners signed off on the 

examination record books and when the accumulations were discovered by inspector Miller. 

Respondent’s examination records state that the last on-shift examination before Miller issued 

Order No. 7490599 was conducted by Raney over the course of eight hours from 4:00 p.m. on 

September 23 to 12:00 a.m. on September 24. In that on-shift examination, Raney described the 

Flannigan Tailgate belt area as “safe.” R. Ex. 25 at 10. However, the on-shift examination 

records do not indicate the exact time that Raney examined the Flannigan Tailgate. Since the 

accumulations were discovered at 6:50 p.m. (about three hours after Raney started his on-shift 

examination), it is possible that Raney examined the Flannigan Tailgate after he and his crew 

cleaned up the accumulations and abated the violation. If such was the case, then Raney’s “safe” 

notation would be accurate. 

17 Raney testified that the feeder has a water spray that normally keeps the coal wet as it 

is loaded into the feeder, moves past the choke breaker, and onto the belt. Tr. II-69. However, the 

spray normally operates only when the belt is “completely full of coal.” If there are interruptions 

in the coal being fed through the feeder, the spray will turn off and on. Tr. II-69-70. Coal that is 

sitting on the stagnant belt may dry out if the belt is down for a long enough period of time. 

Tr. II-70. 

39 FMSHRC Page 1264
The last pre-shift examination before the discovery of the accumulations was conducted 

from 12:00 p.m. to 4:00 p.m. R. Ex. 25 at 9. The pre-shift mine examiner signed off on the 

examination records at 3:47 p.m. on September 23, about three hours before Miller discovered 

the accumulations. Id. The record for that pre-shift examination makes no mention of any 

accumulations near the Flannigan Tailgate and pony belt intersection. In order for that 

examination record to be accurate, the accumulations must have occurred within the brief threehour window between when the pre-shift examiner signed the records at 3:47 p.m. and when 

Miller discovered the accumulations at 6:50 p.m. 

I find it unlikely that the accumulations occurred in the short, three-hour window between 

the last pre-shift examination and the issuance of Order No. 7490599. When asked why the 

examinations records might not reflect accumulations that existed at the time the examinations 

were conducted, inspector Miller stated that each examiner reported hazardous conditions 

differently, and that examiners exercise some level of discretion when conducting their 

examinations. Tr. I-358-59. Miller also opined that the accumulations had existed for at least two 

shifts. R. Ex. 25 at 1-2; Tr. I-108, 314. Miller emphasized that the loose coal accumulations were 

a “distinct black in color,” or “jet black,” rather than the “red-brown” or “shiny,” “glaze[d]” 

color of fresh coal.18 Tr. I-108, 314-15; P. Ex. 4 at 8. Miller also testified that there was float coal 

dust on top of the accumulations. He testified that as float coal dust settles on rock-dusted 

surfaces, those surfaces change from white, to gray, to black. Tr. I-71-72, 315. In addition, 

Respondent’s safety director, Joseph Myers, who accompanied Miller on his inspection, testified 

that the conditions were “obvious,” and that he was “upset at the conditions that [they] found.” 

Myers “immediately shut down the pony belt to correct the situation” after Miller issued Order 

No. 7490599. Tr. II-143-44. 

Based on the printed and handwritten P&D reports and the testimony of Miller, Raney, 

and Myers, I find that the accumulations existed for at least two shifts, and Respondent knew or 

should have become aware of the accumulations no later than foreman Gass’s 12:00 a.m. to 

8:00 a.m. shift the morning of September 23. I also conclude that Miller exercised discretion 

when he failed to cite Respondent for the inadequate belt examinations on September 23. As 

noted above, Raney admitted that the belt’s intermittent starting and stopping could cause 

accumulations, and the section foremen (including Raney) were aware of the progressively 

serious pony belt delays occurring on September 22 and 23, since the shift foremen themselves 

were responsible for creating the handwritten P&D reports. Tr. II-461-62; see R. Ex. 20. As thenChairman Jordan and Commission Nakamura noted in their dissenting opinion, “[a] knowing 

violation occurs when an individual ‘in a position to protect employee safety and health fails to 

act on the basis of information that gives him knowledge or reason to know of the existence of a 

violative condition.’” 38 FMSHRC at 2095 (citing Cougar Coal Co., 25 FMSHRC 513, 517 

(Sept. 2003) (quoting Richardson, 3 FMSHRC 8, 16 (Jan. 1981), aff’d on other grounds, 

689 F.2d 632 (6th Cir. 1982), cert. denied 461 U.S. 928 (1983)). In addition, and apart from 

troubleshooting the electrical issues with the pony belt, both Gass’s and Robertson’s section 

18 Miller also testified that float coal dust is usually black, and that a “reddish-brown” 

cast to the float coal dust indicates that the dust “has been there for quite some time.” Tr. I-64, 

206. In contrast, newly-mined loose coal on the belt is “reddish-brown” in color or has a shiny,

glazed cast to it because it has been sprayed with water as it travels through the feeder and onto

the belt. Tr. I-314-15.

39 FMSHRC Page 1265
crews were actively mining in the Nos. 1, 2, and 3 entries on September 23, only five cross cuts 

inby the belt intersection where the accumulations were found. R. Ex. 20 at 37, 39. As noted in 

my initial Decision and Order, “given the scope of the condition cited, it seems difficult to 

believe that reasonably attentive on-shift examiners would not have reported this condition.” 

35 FMSHRC at 2239. 

The accumulations at issue here existed for more than two shifts. During those shifts, 

multiple belt examinations were conducted, and mine foreman were traveling past the 

accumulations with their section crews as they traveled to and from the working face. 

Respondent clearly had multiple opportunities to discover, document, and correct the violative 

conditions, but nonetheless failed to take action. I therefore conclude that the accumulations 

resulted from Respondent’s repeated failure to make reasonable efforts to eliminate a known 

violation that existed for at least two shifts. 

Although the Commission’s majority decision declined to address whether constructive 

knowledge is sufficient for a flagrant designation, then-Chairman Jordan and Commissioner 

Nakamura found that Respondent had actual knowledge of the violation. 38 FMSHRC at 2093 

(Chairman, Jordan, and Nakamura, Comm’r, concurring and dissenting). Commissioner Althen, 

in his dissent, thoughtfully discusses the Commission’s jurisprudence regarding negligence, 

unwarrantable failures, and the standard of knowledge required under the plain language of 

section 110(b)(2). He notes the subtle difference between actual implied knowledge and 

constructive knowledge, and concludes that the plain language of Section 110(b) requires actual 

knowledge on the part of the operator: 

The notion of constructive knowledge comprehends the notion of a “legal” duty to 

make an inquiry. If an actor has a duty to undertake an inspection for example, the 

actor may have constructive knowledge of an event he should have discovered by 

performing his duty. In such instance, the actor “should have known” certain facts 

but did not know those facts because of his failure to meet a legal duty of 

care. . . . . The notion of implied actual knowledge, on the other hand, is a factual 

construct based upon information of which the actor actually was aware. Thus, if 

an actor performing an inspection actually detects facts (former facts) that would 

have led a reasonable actor to learn of a specific problem (latter facts), a court 

may infer actual knowledge of the latter facts due to the actor’s express 

knowledge of the former facts. 

38 FMSHRC at 2104 n.7 (Althen, Comm’r, concurring and dissenting). 

While recognizing the difference between actual implied and constructive knowledge in 

the abstract, I note that the practical application of these definitions to the facts at issue here 

yields the same substantive outcome: the mine foremen knew that the pony belt delay could

cause accumulations, and therefore had a duty to inspect and determine whether accumulations 

had occurred; or, alternatively, the mine foremen knew that the pony belt was experiencing 

delays, knew that the such delays might cause accumulations (former facts), and therefore a 

reasonable foreman would have learned of the accumulations (latter facts). Either way, the 

Respondent knew (had actual implied knowledge) or should have known (had constructive 

39 FMSHRC Page 1266
knowledge) of the accumulations. Although I found in my initial Decision and Order that 

Respondent had constructive knowledge of the accumulations, see 35 FMSHRC at 2239 (“[T]he 

Secretary has shown that Respondent knew or should have known of the accumulation 

problem.”), my review of the record on remand leads me to conclude that Respondent also had 

actual implied knowledge of the accumulations for at least two shifts. 

As I have concluded as a matter of law that the violative conditions in Order No. 

7490599 satisfy the requirements of the “narrow” interpretation of section 110(b)(2)’s repeated 

flagrant designation, I decline to address whether the violative conditions were also “flagrant” 

under the broad interpretation of section 110(b)(2). 

C. The Violation in Order No. 7490599 was the Result of Respondent’s High Negligence

In determining whether an operator meets its duty of care under the cited standard, I 

consider what actions would have been taken under the same or similar circumstances by a 

reasonably prudent person familiar with the mining industry, the relevant facts, and the 

protective purpose of the regulation. See generally U.S. Steel Corp., 6 FMSHRC 1908, 1910 

(Aug. 1984); see also Jim Walter Res., Inc., 36 FMSHRC 1972, 1975-77 (Aug. 2014) (requiring 

the Secretary to show that the operator failed to take specific action required by the standard 

violated); Spartan Mining, 30 FMSHRC 669, 708 (Aug. 2008) (negligence inquiry 

circumscribed by scope of duties imposed by regulation violated). In this regard, the gravamen of 

high negligence is “an aggravated lack of care that is more than ordinary negligence.” Brody 

Mining, LLC, 37 FMSHRC 1687, 1701 (Aug. 2015) (citing Topper Coal Co., 20 FMSHRC 344, 

350 (Apr. 1998)). 

In my initial Decision and Order, I found that the cited accumulations were not reported 

in the examination record books by the mine examiners, who are the agents charged with 

responsibility for identifying hazardous conditions and ensuring that they are addressed in a 

timely manner. Thus, the accumulations were not reported to mine management through the 

normal channels by which such conditions would be identified and addressed. I viewed this as a 

mitigating factor. Accordingly, I reduced the negligence designation from “high” to “moderate.” 

35 FMSHRC at 2241. 

On appeal, the Commission took issue with my finding that the presence of a mitigating 

factor reduced the negligence, and instructed me to reevaluate the degree of negligence “from the 

starting point of a traditional negligence analysis.” 38 FMSHRC at 2083. The Commission also 

pointed out that the negligence of a mine examiner is imputable to the mine operator. Id. 

Accordingly, I reevaluate Respondent’s degree of negligence, taking into account the culpability 

of Respondent’s shift examiners regarding their knowledge of the violative accumulations. 

38 FMSHRC at 2083. 

I also found in my initial Decision and Order that Order No. 7490599 was the result of 

Respondent’s unwarrantable failure to comply with section 75.400. Unwarrantable failure is 

aggravated conduct characterized by such conduct as “reckless disregard,” “intentional 

misconduct,” “indifference,” or a “serious lack of reasonable care.” 35 FMSHRC at 2240, 2231 

(citing Emery Mining Corp., 9 FMSHRC 1997, 2003-04 (Dec. 1987)). I found that the six-to39 FMSHRC Page 1267
fourteen-inch-deep accumulations of loose coal around the tailgate roller and the 450 feet of 

loose coal and float coal dust extending outby the tailgate were extensive, obvious, and 

dangerous. 35 FMSHRC at 2231. I noted that “the size and location of the accumulations, in 

addition to the fact that the area was not isolated from active workings, contributed to the likely 

risk of a serious and possibly fatal injury to miners working inby.” 35 FMSHRC at 2238. I have 

credited Miller’s testimony that the accumulations were present for at least two shifts. As stated 

in my initial Decision and Order, “given the scope of the condition cited, it seems difficult to 

believe that reasonably attentive on-shift examiners would not have reported this condition.” 

35 FMSHRC at 2239. The Commission has long recognized that mine foremen, who conduct 

pre-shift and on-shift examinations, are agents of the mine operator. See, e.g., Southern Ohio 

Coal Co., 4 FMSHRC 1459, 1463–64 (Aug. 1982) (“It is well established that the negligent 

actions of an operator’s foremen, supervisors, and managers may be imputed to the operator in 

determining the amount of a civil penalty.”). In addition, I found that mine management had both 

actual implied knowledge and constructive knowledge of the accumulations and repeatedly 

failed to make reasonable efforts to eliminate them over the course of at least two shifts. 

Respondent was also on notice that greater efforts were necessary in order to comply with 

section 75.400. I found in my initial Decision and Order that “the record establishes that 

Respondent was warned repeatedly through meetings, training sessions, and prior citations [and] 

orders[] about belt accumulation problems . . . .” 35 FMSHRC at 2237 (citing Tr. I-86-90, 123). 

In addition, I noted Respondent’s efforts to abate belt accumulation violations: 

[A] group of MSHA employees came from Beckley, West Virginia to train Respondent’s

examiners; [] Respondent held special safety talks and manager meetings; [] changes

were made in the work force allocation to increase belt examinations; and [] Respondent

created PowerPoint training guidelines on July 7, 2007.

35 FMSHRC at 2240 (citing Tr. I-123, 448-49, 455-56; R. Ex. 16). Despite these efforts, 

Respondent repeatedly continued to violate section 75.400. Id. at 2237. Respondent violated 

section 75.400 approximately 162 times in the fifteen months preceding Order No. 7490599. 

MSHA Mine Data Retrieval System, available at 

https://arlweb.msha.gov/drs/ASP/MineAction.asp (last accessed Mar. 6, 2017); see also

35 FMSHRC at 2267. Moreover, out of the 361 violations of section 75.400 that Respondent 

received in the twenty-four months preceding the issuance of Order No. 7490599, seventy-seven 

of the violations were designated as S&S, and eleven of the violations were designated as 

unwarrantable failures to comply with section 75.400. P. Ex. 1; see also 35 FMSHC at 2211. 

For the reasons stated above, I find that the violation in Order No. 7490599 was the result 

of Respondent’s high negligence. 

D. Penalty Assessment

The Secretary has proposed a specially assessed penalty of $164,700 for the violation 

alleged in Order No. 7490599. Because the Secretary has proposed a penalty substantially higher 

than would have been proposed under the regular assessment system, I look to the record to 

determine whether the Secretary introduced evidence to support an elevated assessment under 

39 FMSHRC Page 1268
the rationale and facts supporting the Secretary’s decision to seek a special assessment. I then 

assess the penalty independently in light of my findings of fact, analysis, and conclusions of law 

on remand about the record evidence concerning Section 110(i) criteria and the deterrent 

purposes of the Act. 

The Secretary’s narrative findings for the special assessment contain terse support for the 

specially-assessed proposed penalty. The Secretary states that the violation was “flagrant” and 

that the gravity was “serious.” Narrative Findings for a Special Assessment, Petition for the 

Assessment of Civil Penalties, Docket No. LAKE 2009-0035. After my review of the record on 

remand, I have affirmed these findings.19 Respondent is a large operator, and mined seven 

million tons of coal in 2007. MSHA Mine Data Retrieval System, available at 

https://arlweb.msha.gov/drs/ASP/MineAction.asp (last accessed Mar. 6, 2017). The parties 

stipulated that the proposed special assessment will not affect Respondent’s ability to stay in 

business. The parties made no stipulation regarding good faith abatement, but the record 

demonstrates that the violation was abated in good faith. See also 35 FMSHRC at 2267. 

I have found that the violation in Order No. 7490599 was S&S, an unwarrantable failure 

resulting from Respondent’s high negligence, and a repeated flagrant violation. In addition, as 

noted in my initial Decision and Order, 

[i]n the twelve months preceding the issuance of Order No. 7490599, Respondent

was issued twenty-seven citations/orders for alleged violations of [section] 75.400

involving accumulations of coal, lump coal, coal dust, float coal dust, and coal

fines on and around conveyor belts and belt structures in the Galatia Mine. P. Exs.

5-31. Nineteen of the aforementioned citations/orders were issued as S&S

violations. P. Ex. 5, 8, 10-12, 14, 15-18, 20, 22, 25-31. In the twenty-four months

preceding [Order No. 7490599], Respondent was cited for violations a total of

361 times. P. Ex. 1. Among those 361 citations and orders, seventy-seven were

issued as S&S violations and eleven were issued as unwarrantable failure

violations under Section 104(d) of the Mine Act. P. Ex. 1.

35 FMSHC at 2211. 

Given Respondent’s repeated and extensive violation history under section 75.400, it 

cannot be gainsaid that non-flagrant civil penalty assessments under the progressive enforcement 

scheme of the Mine Act, including 77 penalties for S&S violations and 11 penalties for 

unwarrantable failures, have not deterred Respondent from continuing to violate the cited 

standard. In Order No. 7490599, the Secretary demonstrated that the Respondent repeatedly 

failed for at least two shifts to make reasonable efforts to eliminate known accumulations which 

19 The Secretary originally designated the accumulations as contributing to a hazard that 

was highly likely to lead to a reasonably serious injury. P. Ex. 3. In my initial Decision and 

Order, I affirmed the Secretary’s S&S designation for Order No. 7490599, but found that the 

accumulations contributed a hazard that was reasonably likely and not highly likely to lead to an 

injury of a reasonably serious nature. 35 FMSHRC at 2225; see Mathies Coal Co., 

6 FMSHRC 1, 3-4 (Jan. 1984). The Commission did not disturb that finding when remanding 

this matter. 

39 FMSHRC Page 1269
could reasonably be expected to cause death or serious bodily injury to six miners. As 

Commissioners Cohen and Young recognized, “the essence of a repeated violation is a condition 

which threatens miners with serious bodily injury or death and which has been ignored or 

disregarded often enough to demonstrate intolerable irresponsibility.” 38 FMSHRC at 2087 

(Cohen & Young, Comm’rs, concurring). As Commissioner Althen concluded, “the clear 

purpose of section 110(b)(2) is to incentivize operators strongly to eliminate known violations 

reasonably expected to cause serious injury without waiting for an inspector to discover the 

violative condition.” 38 FMSHRC at 2110 (Althen, Comm’r, concurring and dissenting). Based 

upon my consideration of the section 110(i) penalty criteria and the deterrent purposes of the 

Act, a “repeated flagrant” penalty assessment is warranted here under the Mine Act’s progressive 

enforcement scheme. I assess a penalty of $112,380. 

IV. ORDER

Order No. 7490599 is AFFIRMED, including the S&S, high negligence, unwarrantable 

failure, and flagrant designations. Respondent American Coal Company is ORDERED to pay a 

total civil penalty of $112,380 within thirty days of this Decision and Order on Remand.20 

/s/ Thomas P. McCarthy 

Thomas P. McCarthy 

Administrative Law Judge 

Distribution: 

Travis W. Gosselin, U.S. Department of Labor, Office of the Solicitor, 230 S. Dearborn Street, 

Room 844, Chicago, IL 60604 

Jason W. Hardin, Mark E. Kittrell, Fabian & Clendenin, 215 S. State St., Ste. 1200, Salt Lake 

City, UT 84111-2323 

/ccc 

20 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. 

39 FMSHRC Page 1270
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004-1710 

PHONE: (202) 434-9933 | FAX: (202) 434-9949 

June 21, 2017 

SECRETARY OF LABOR, CIVIL PENALTY PROCEEDING 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), Docket No. WEVA 2016-0123 

Petitioner, A.C. No. 46-01436-396817

v. 

CONSOLIDATION COAL CO. now 

 THE OHIO COUNTY COAL CO., Mine: Shoemaker Mine 

Respondent. 

DECISION DENYING SETTLEMENT MOTION 

Before: Judge Moran 

This case is before the Court upon a petition for assessment of a civil penalty under 

section 105(d) of the Federal Mine Safety and Health Act of 1977. The docket involves 5 (five) 

citations for which the Secretary has filed a motion to approve settlement (“Motion”). The 

originally assessed amount for the five citations was $72,500.00, and the proposed settlement is 

for $39,875.00. The Secretary also requests that two of the citations be modified, as described 

below. For the reasons which follow, the motion must be denied.

Citation No. 9083154: The Court begins with the one citation which, per the settlement, 

is to be paid in full and without any modifications. This involved 104(a) Citation No. 9083154, 

citing 30 C.F.R. §75.223(a)(1),1

 for which the negligence was marked as “high,” and which was 

marked as “Significant and Substantial,” with the gravity listed as “reasonably likely,” 

“permanently disabling,” with one person affected. The issuing inspector described the following 

condition or practice: 

The mine operator failed to propose revisions of the roof control plan. Mine 

conditions indicate the currently approved roof control plan is not suitable to 

control the mine ribs. The consistency of the rock binder has changed since the 

roof control plan was approved. The binder ranges between 5 and 18 inches in 

thickness. The binder begins to deteriorate in 2-3 shifts after an area has been 

mined allowing large pieces of coal/rock to fall out above and below the binder. 

The binder has also fallen out in large pieces. Numerous citations for failure to 

adequately support the ribs have been issued to the mine operator. Additionally, 

the mine operator has been placed on notice that the existing roof control plan is 

1

 30 C.F.R. § 75.223, titled, “Evaluation and revision of roof control plan,” provides at 

subsection (a)(1), “Revisions of the roof control plan shall be proposed by the operator - (1) 

When conditions indicate that the plan is not suitable for controlling the roof, face, ribs, or coal 

or rock bursts.” 30 C.F.R. § 75.223. 

39 FMSHRC Page 1271
not adequate to address current mining conditions on June 11, 2015 and July 6, 

2015. Mine management recognizes the adverse conditions as evidenced by an 

internal written standard operating procedure (email) mandating the installation 

of rib support. However, based on the observation of mining conditions, the 

installation of rib supports has been sporadic and intermittent, and miners 

continue to be exposed to the hazard of inadequately supported ribs. 

Citation No. 9083154 (emphasis added).2

It is against this backdrop that the Secretary presented the following bases for the 

proposed reductions and modifications of the four other citations in this case. The reader should 

be mindful that when presenting his rationale for these significant reductions, about half (i.e. 

50%) of each rationale offered by the Secretary repeats essentially the same mantra, that “[i]n 

consideration of this evidence, which slightly mitigates the negligence, and the risks inherent in 

proceeding to a hearing, the Secretary agreed to reduce the penalty.” Motion at 3. 

For Citation No. 9083151, involving a 104(a) citation, invoking § 75.202(a) (failure to 

adequately control rib), and which was marked as S&S, Reasonably Likely, Permanently 

Disabling, with 1 Affected, Moderate Negligence, and with a proposed penalty of $11,500.00, 

the settlement amount is $6,513.00, representing a 43% reduction in the penalty. 

The Citation identified 8 (eight) areas where 

[t]he mine ribs where persons work or travel are not being adequately controlled

to protect persons from falling coal and rock on the 4 West TG Section in the

following locations: 1) 4 WEST TG Track switch on left rib measuring 53 ̎ wide

by 70 ̎ high and 8 ̎ thick [;] 2) 8S2-29 wall, #4-5 crosscut right rib measuring 24 ̎

2

 Further evidencing the seriousness of this citation invoking 30 C.F.R. §75.223(a)(1), 

five “subsequent actions,” dated August 28, 2015 through September 4, 2015, informed: 

“Extended to allow time for a geologist from Murray Energy and MSHA to determine the 

appropriate method to support mine ribs and submit a revised roof control plan. As part of this 

extension the operator agreed to conduct a safety meeting with all employees before going 

underground on heightened rib awareness to support and scale ribs down where men are required 

to work or travel.” Subsequent Action August 27, 2015. Following that, the next continuation 

data for the citation informed that, “[t]he operator has submitted an action plan which will take 

effect until a revision can be made to the approved roof control plan. The action plan will place 

an additional certified foreman on each producing section to monitor rib conditions in all entries 

and scale down as needed. The results of all scaled ribs will be recorded in the section 

examination book.” Subsequent Action August 28, 2015. Another Subsequent Action/ 

Continuation Data noted progress in the revision of the roof control plan, while remarking that 

the August 28, 2015 action plan remained in place until such plan was approved. Subsequent 

Action, August 31, 2015. This process continued, as reflected in Subsequent Action dated 

September 1, 2015, with the same proviso that the August 28, 2015 action plan remained in 

effect until a revised roof control plan was approved. Three days later, the revised plan was 

approved. Subsequent Action September 4, 2015. 

39 FMSHRC Page 1272
wide by 32 ̎ high by 7 ̎ [;] 3) 8S2-28 wall, #5-6 crosscut right rib measuring 18’ 

long by 3-5’ high and 6 ̎ thick [;] 4) 8S2-28 wall, #7-8 crosscut, left inby corner 

measuring 45 ̎ wide by 58 ̎ high by 8 ̎ thick and 2 ˈ wide by 4 ˈ high and 8 ̎ 

thick. [;] 5) 4 WEST TG #5 entry inby #8 entry of the Mains measuring 24 ̎ wide 

by 5 ˈ high and 5 ̎ thick [;] 6) 4 West TG #4 entry just inby 0 + 08 on left rib 

measuring 8 ˈ long 5 ˈ high by 8 ̎ thick [;] 7) 4 West TG # 2 entry just inby 0 +08 

right rib measuring 3ˈ long by 4ˈ high and 7 ̎ thick [;] 8) 4 West TG # 1 entry just 

outby 0 + 08 right rib measuring 5 ˈ long by 4 ˈ high and 6 inches thick and left 

rib measuring 5 ˈ long by 2 ˈ wide and 6 ̎ thick. 

Citation No. 9083151. 

Notably, the Citation then added, “Standard 75.202(a) [the standard violated] was cited 

90 [ninety] times in two years at mine 4601436 (90 to the operator, 0 to a contractor.)” Id.

Employing an economy of words, a trait this Court has noted before in the Secretary’s 

settlement motions, the rationale states, in full, 

[t]hough there was visible deterioration to the ribs, Respondent presented

evidence that this condition did not exist for an extended period of time. In

consideration of this evidence, which slightly mitigates negligence, and the risks

inherent in proceeding to a hearing, the Secretary agreed to reduce the penalty.

Motion at 3. 

Thus, though providing no details, and informing only that the “Respondent presented 

evidence that this condition did not exist for an extended period of time,” (though the eight areas 

are described singularly as a “condition,” not conditions,) the Secretary’s rationale must 

necessarily suggest that all eight areas did not exist for an “extended” period of time, a decidedly 

unusual situation. 

Further, what the Secretary means by an “extended period” is not amplified. Beyond that 

is the more fundamental issue of whether the Secretary’s declaring that the Respondent presented 

evidence that this condition did not exist for an extended period of time is sufficient. This is 

because telling the Commission that the Respondent presented evidence is simply an 

uninformative declaration, as contrasted with the presentation of facts, disputed or agreed upon. 

If such a declaration suffices, and the Commission is presented with nothing more, then the 

Secretary will have, as a practical matter, succeeded with his original stance in settlement 

submissions, that he need not provide the Commission with any real information. Such an 

outcome would be essentially no different, substantively, than his repeated expression that “[i]n 

39 FMSHRC Page 1273
consideration of this evidence,

3

 which slightly mitigates negligence, and the risks inherent in

proceeding to a hearing, the Secretary agreed to reduce the penalty.” Motion at 3 (emphasis 

added). 

For Citation No. 9083289, involving a 104(a) citation, which also invoked § 75.202(a) 

(another failure to adequately control ribs), and which was also marked as S&S, and Reasonably 

Likely, but “Fatal,” instead of Permanently Disabling, and again with 1 Affected, Moderate 

Negligence, and with a proposed penalty of $12,900.00, a 75% reduction was presented, the 

settlement amount being $3,225.00. To justify this very large reduction, the Secretary advised 

that the “Respondent presented evidence that, based on their size, consistency, and location, the 

cited ribs would not have caused fatal injuries.” Motion at 3. For the expectation of a 

“permanently disabling” injury which, though not fatal, at least to the Court does not seem to be 

a trifling injury, and for no other basis, the Secretary seeks the 75% penalty reduction. 

By the Court’s reading of the Citation which, under the settlement, is not challenged, 

except as to the fatal versus permanently disabling injury issue, the areas cited seem extensive. 

The citation declared, 

[t]he operator failed to adequately support or otherwise control the ribs in the # 2

entry (track) of 2- East. Hazardous rib conditions were observed in the following

locations gapped/separated and were easily pried down: – Between 71 and 72

block on the belt side rib, the loose rib measured 10.5 feet long, up to 3 feet wide,

and 8 inches thick. The binder in this area measured 2 feet thick[.] Between 76

and 77 block on the belt side rib, the loose rib measured 8 feet long, 6 feet wide,

and 4 inches thick. The binder in this area measured 2 inches thick. This is a

highly traveled area as miners walk past these conditions to get from the end of

the track to the longwall face. Some areas on this section have been rib bolted and

some areas have not been. The areas that are rib bolted do not slough and fall out

in big pieces like the areas that have not been supported. The cited location[s]

were along a rib line that was not supported. Standard 75.202(a) was cited 83

times in two years at mine 4601436 (83 to the operator, 0 to a contractor.

Citation No. 9083289. 

The rationale provides no information as to the basis for the claim that the “size, 

consistency and location” of the cited ribs would not cause a fatal injury but the settlement 

concedes that a permanently disabling injury would occur and that it was reasonably likely to 

3

 To be clear, the Court does not consider an unadorned assertion that the “Respondent 

presented evidence that this condition did not exist for an extended period of time,” standing 

alone, as useful information. In numerous settlement motions before this Court the Secretary has 

provided more information, at least as asserted from the perspective of a Respondent, to support 

a proposed penalty reduction based on the contention that a condition had not existed for long. In 

such cases, typically the settlement motion would then acknowledge that, in light of the 

particular facts asserted by the Respondent, those asserted facts present legitimate questions of 

fact which could only be resolved by way of a hearing. 

39 FMSHRC Page 1274
result. Motion at 3. Nor does the Secretary concede, in any manner, that the size, consistency and 

location claim creates legitimate factual disputes which could only be resolved through a 

hearing. The citation, it should be recalled, referred to “big pieces” and noted that it was “a 

highly traveled area.” Citation No. 9083289. 

For Citation No. 9083153, involving a 104(a) citation, which again invoked § 75.202(a) 

(another failure to adequately control rib), and which was also marked as S&S, and Reasonably 

Likely, Permanently Disabling, and again with 1 Affected, Moderate Negligence, and with a 

proposed penalty of $11,500.00, a 43% reduction reappears, with the settlement amount being 

$6,513.00. To justify this very large reduction, the Secretary advised, in a reprise of its 

justification for Citation No. 9083151, that the “[t]hough the cited condition was in a traveled 

area, Respondent presented evidence that this condition did not exist for an extended period of 

time.” Motion at 3. 

The Citation stated that “[t]he mine ribs where persons work or travel are not being 

adequately controlled to protect persons from falling coal and rock on the 8 South Mains track 

entry left rib from 8S2-49 to 8S3-01 a piece of rib was scaled down with little to no effort 

measuring 12ˈ long by 5ˈ high and 9 thick.” Citation No. 9083153. ̎

The Secretary’s rationale for the 43% reduction provides in its entirety, 

Though the cited condition was in a traveled area, Respondent presented evidence 

that this condition did not exist for an extended period of time. In consideration of 

this evidence, which slightly mitigates the negligence, and the risks inherent in 

proceeding to a hearing, the Secretary agreed to reduce the penalty. 

Motion at 3. 

It should be recognized that, reduced to its essence, the rationale offers 15 (fifteen) 

words: “Respondent presented evidence that this condition did not exist for an extended period 

of time.” Id. 

Accordingly, the Court notes the same deficiencies for Citation No. 9083153 as it 

highlighted for Citation No. 9083151. If section 110(k) is to be meaningful, it is patently 

insufficient for the Secretary to merely state that the Respondent presented evidence that this 

condition did not exist for an extended period of time. Some basis for the Respondent’s claim 

must accompany such an assertion. 

39 FMSHRC Page 1275
For Citation No. 9083292, once again involving a 104(a) citation, and which also 

invoked § 75.202(a) (another failure to adequately control rib), and which was also marked as 

S&S, Reasonably Likely, and “Fatal,” with 1 Affected, Moderate Negligence, and with a 

proposed penalty of $17,300.00, a 75% reduction was presented, the settlement amount being 

$4,324.00. To justify this very large reduction, the Secretary advised that the 

Respondent presented evidence that, based on its size and consistency, the cited 

rib would not have caused fatal injuries. Respondent also presented evidence that 

this condition did not exist for an extended period of time. In consideration of this 

evidence and the risk inherent in proceeding to a hearing, the Secretary agreed to 

modify the type of injury and reduce the penalty. 

Motion at 4. 

The citation asserted that, 

[t]he operator failed to adequately support or otherwise control the ribs in the belt

entry of the 2-East Longwall. Between 77 and 76 block, a piece of rib is

gapped/separated and was easily pried down on the walk side of the belt. The void

in the rib after the area was scaled down measured 4 feet long, up to 3 feet wide,

and up to 8 inches thick. The loose rib was at the top portion of the rib line. The

bottom half of the rib had already had already sloughed and fallen out prior to

the condition being found. A miner was working beside the belt with his back to

the rib when the condition was found. No rib bolts were installed in this area.

Standard 75.202(a) was cited 93 times in two years at mine 4601436 (93 to the

operator, 0 to a contractor).

Citation No. 9083292 (emphasis added). 

Again, in what the Court considers a jaw-dropping justification for a 75% reduction, the 

settlement rests on the idea that a merely permanently disabling injury warrants such a reduction. 

Notably, the Secretary dropped the “size, consistency, and location” description utilized in 

Citation No. 9083289 (uninformative as it is), leaving “size and consistency,” without including 

“location,” in support of the reduction. Motion at 3-4. This was not surprising, given that the 

citation noted that “[a] miner was working beside the belt with his back to the rib when the 

condition was found [and that] [n]o rib bolts were installed in this area.” Citation No. 9083292. 

As he did for Citation Nos. 9083151 and 9083153, the Secretary again asserted the 

unilluminating claim that the “Respondent also presented evidence that this condition did not 

exist for an extended period of time,” but without any information about the nature of that 

evidence. Motion at 4 (emphasis added). 

When the above-articulated deficiencies in these rationales are considered in the context 

of the one matter that was entirely conceded in the settlement, Citation No. 9083154, it strikes 

the Court that the enormous penalty reductions for the other citations are unexplained anomalies. 

Given the fully admitted conditions identified in Citation No. 9083154, and the concession that 

the proposed penalty for that citation should remain intact, the other citations require substantial 

39 FMSHRC Page 1276
justification to support reductions of this order. 4 After all, that fully-admitted violation, Citation 

No. 9083154, describes a rib stability issue of long and known duration, with numerous citations 

for failure to adequately support the ribs issued to the operator. 

As noted at the outset of this decision, that citation informs, 

the mine operator has been placed on notice that the existing roof control plan is 

not adequate to address current mining conditions on June 11, 2015 and July 6, 

2015. Mine management recognizes the adverse conditions as evidenced by an 

internal written standard operating procedure (email) mandating the installation of 

rib support. However, based on the observation of mining conditions, the 

installation of rib supports has been sporadic and intermittent, and miners 

continue to be exposed to the hazard of inadequately supported ribs. 

Citation No. 9083154. 

Accordingly, based on the foregoing reasons, and because merely asserting that a 

respondent has “presented evidence,” is insufficient, the Secretary’s Motion for Decision and 

Order Approving Settlement, being inadequate under Section 110(k), is DENIED. This case is 

now to be set for a prompt hearing. 

SO ORDERED. 

/s/ William B. Moran 

William B. Moran 

Administrative Law Judge 

4

 As noted, each of these involved 30 C.F.R. §75.202(a) violations. Three of these were 

found on August 26, 2015, (Citation Nos. 9083151, 9083289, and 9083153, at 5:05 p.m., 5:25 

p.m., and 9:00 p.m., respectively.) Thus, the three citations found on August 26, 2015

precipitated the issuance of Citation No. 9083154, as reflected by that citation’s issuance at the

end of that day. The fourth § 75.202(a) violation, Citation No. 9083292, was issued two days

later, on August 28, 2015.

39 FMSHRC Page 1277
Distribution: 

Jane Hwang, Office of the Solicitor, U.S. Department of Labor, Suite 630E, The Curtis Center, 

170 S. Independence Mall West, Philadelphia, Pennsylvania, 19106 

Jason Hardin, Fabian and Clendenin, 215 S. State Street, Suite 1200, Salt Lake City, Utah 84111 

Artemis Vamianakis, Fabian and Clendenin, 215 S. State Street, Suite 1200, Salt Lake City, Utah 

84111 

39 FMSHRC Page 1278
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 

June 30, 2017 

DECISION AND ORDER 

Appearances: Jennifer Gold, Esq., Office of the Solicitor, U.S. Department of Labor, 

Representing the Petitioner 

James P. McHugh, Hardy Pence, PLLC, Representing the Respondent

Before: Judge Lewis 

I. Statement of the Case

This case is before me upon a petition for assessment of a civil penalty under section

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

815(d). On May 29, 2014, the Secretary filed an Assessment of a Civil Penalty for Citation No. 

7076747 for an alleged violation of 30 C.F.R. § 50.10(b) to Consol Pennsylvania Coal Company, 

LLC (“Respondent”) at Bailey Mine. On July 2, 2014, Respondent filed an answer contesting 

Citation No. 7076747 and the negligence findings. This case was assigned to the undersigned on 

April 28, 2016. On December 13, 2016, a hearing was scheduled to take place on March 8, 2017, 

in Pittsburgh, PA. The parties presented testimony and documentary evidence, filed post-hearing 

briefs, and reply briefs.

SECRETARY OF LABOR, 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner 

v. 

CONSOL PENNSYLVANIA COAL 

COMPANY, LLC, 

 Respondent 

 CIVIL PENALTY PROCEEDING 

 Docket No. PENN 2014-816 

A.C. No. 36-07230-346706

 Mine: Bailey Mine 

39 FMSHRC Page 1279
II. Joint Stipulations1

The parties have stipulated to the following facts:

1. The Respondent was an "operator" as defined in § 3(d) of the Federal Mine

Safety and Health Act of 1977, as amended (hereinafter "the Mine Act"), 30

U.S.C. §§ 802(d) and 803, at the mine at which the Citation(s)/Order(s) at issue in

this proceeding were issued.

2. Operations of the Respondent at the mine at which the Citation(s)/Order(s)

were issued are subject to the jurisdiction of the Mine Act.

3. Bailey Mine is operated by the Respondent.

4. Payment of the total proposed penalty of $5,000.00 in this matter will not affect

the Respondent’s ability to continue in business.

5. The individual whose name appears in Block 22 of the Citation(s)/Order(s) in

contest was acting in an official capacity and as an authorized representative of

the Secretary of Labor when the Citation(s)/Order(s) were issued.

6. The Citation contained in Docket No. PENN 2014-816 was issued and served

by a duly authorized representative of the Secretary of Labor upon an agent of

Respondent at the date, time, and place stated in the Citations, as required by the

Act.

7. Exhibit “A” attached to the Secretary’s Petition in Docket No. PENN 2014-816

contains true and authentic copies of Citation No. 7076747 with all modifications

or abatements, if any.

8. The R-17 Certified Assessed Violation History Report is an authentic copy and

may be admitted as a certified business record of the Mine Safety and Health

Administration.

(JX-1). 

1

 The Joint Stipulations were submitted at hearing as Joint Exhibit 1 (JX-1). Each 

stipulation will hereinafter be cited to as J.S. followed by the stipulation number. The Secretary’s 

exhibits will be cited to as GX followed by its number and Respondent’s exhibits will be cited to 

as RX followed by its number. 

39 FMSHRC Page 1280
III. Summary of Testimony

Thomas Bochna 

Thomas Bochna investigated the accident at issue on August 12, 2013.2

 (Tr. 38).3 Bochna 

had first learned of the Bailey Mine accident at issue here on August 12, 2013, shortly after he 

arrived for work at 5:30 a.m. (Tr. 38). He had inspected Respondent’s mine “many times” in the 

past. (Tr. 43). 

On August 12, 2013, Bochna had reduced to writing the initial 103(j) order to a 103(k) 

order which was terminated that day. (Tr. 45-48; GX-2). Bochna had initially interviewed 

witnesses at Bailey Mine on the day of the accident, later interviewing the victim, Robert Stern, 

at Health South Rehab facility. (Tr. 49). As a result of his investigation, Bochna eventually 

issued his 104(a) citation, Citation No. 7076747, on September 23, 2013. (GX-1). 

According to the MSHA Escalation Report, GX-3, Respondent’s safety supervisor at 

Bailey Mine, Michael Tennant, first notified MSHA of the accident at 5:09 a.m. (and 55 

seconds). (Tr. 51). Bochna’s investigation had established that the accident had taken place at 

around 3:15 a.m. (Tr. 52). Bochna did not know why the escalation report had given 4:45 a.m. as 

the accident time. (Tr. 52). 

Respondent had indicated according to the report that the “types of injuries” sustained 

were “unknown.” (Tr. 53; GX-3). 

In his preliminary report of the accident, GX-1, Bochna described the accident as a GMS 

Repair Employee being injured when he became caught between the bucket of a battery scoop 

and a supply car. (Tr. 56). Referring to his Accident Investigation-Data Report, Bochna found 

the “root cause” of the accident to be the employee positioning himself in a “pinch point red 

zone area” between the scoop bucket and the rail car. (Tr. 57; GX-1). 

After conducting both individual and ground interviews at Bailey Mine, Bochna ended 

his questioning at 10:25 a.m. (Tr. 62-63). He learned that the accident had come about because 

Mr. Stern had entered the area between the scoop and the end of the rail car to determine why the 

scoop was stuck. (Tr. 66-67). Due to some slack in a safety chain and drifting forward of a rail 

car, Stern became crushed between the scoop and the end of the rail car. (Tr. 68-71). Both the 

scoop and rail car were large objects weighing 5-10 tons. (Tr. 69). 

2

 He had worked as a supervisory coal health and safety inspector for three years, first 

beginning work as a regular coal health inspector in 2008. (Tr. 36). His coal mine inspector 

duties involved conducting E01 and spot inspections, issuing citations, and performing accident 

investigations. (Tr. 37). Prior to joining MSHA, Bochna had worked for 30 years as a coal miner. 

(Tr. 37). His positions included continuous miner operator and fire boss. (Tr. 37). Possessing a 2-

year degree from Penn State in mine engineering, Bochna had a total of 39 years of experience in 

coal mining. (Tr. 36-37). 

3

 References to the hearing transcript will be cited as Tr. followed by the page number. 

39 FMSHRC Page 1281
Bochna reviewed his inspection notes at hearing. He had interviewed Daniel Greathouse, 

who operated the scoop when the accident had taken place and who had participated in a recreation of the accident. (Tr. 77, 82). Greathouse reported that Stern stated that it felt like his 

“guts were coming out of his penis.” (Tr. 83). 

Bochna also interviewed two GMS “red hats,” Travis Barber and Garret Scales, who 

were working with Stern at the time of the accident. (Tr. 78-80). Although neither Barber nor 

Scales had actually witnessed the accident take place, they heard and saw Stern immediately 

thereafter. (Tr. 79). Both Barber and Scales recalled Stern stating that he was hurt “real bad,” 

was in some pain, and felt like something was coming out of his penis. (Tr. 81). 

Travis Stillwell was also interviewed. (Tr. 84). Stillwell was at the scene at the time of 

the accident and heard Greathouse say, “scoop stuck” and then Stern say, “help me.” (Tr. 85). 

When Stillwell approached Stern—the victim was laying on the ground, complaining that his 

stomach hurt and that he could not feel his legs. (Tr. 85). 

Bochna also reviewed his interview of John McDonald, section foreman at Bailey Mine. 

(Tr. 85). McDonald had been notified about the accident at approximately 3:25 a.m. (Tr. 86). He 

issued instructions to Colby Watson to bring a gurney and EMT kits to the accident site. (Tr. 85). 

McDonald had called the bunker, stating that a Life Flight would be needed. (Tr. 86). Life Flight 

was a helicopter brought in when there was a serious injury and speedy transportation to a 

hospital was necessary. (Tr. 86). McDonald noticed that Stern was experiencing stomach 

swelling and was in extreme pain. (Tr. 86). 

Bochna had also interviewed Shannon Smith, an EMT, who gave treatment to Stern at the 

scene. (Tr. 86). Smith found Watson, Greathouse, and McDonald attempting to put Stern on a 

backboard. (Tr. 87). Stern’s head was being held up because no neck brace was available. (Tr. 

87). His visible injuries included abrasions on the right side around the waist area, a little 

(amount of) blood on the right hip area, and bruising around the hip area. (Tr. 87). Stern could 

not move his left leg and had no feeling in his right leg. (Tr. 87). No oxygen was available at the 

scene and was only given by EMS when Stern was transported to the surface on a mantrip. (Tr. 

87, 88). 

Smith related that Stern had never lost consciousness. (Tr. 88). Smith spoke with Stern on 

the mantrip all the way to the surface. (Tr. 88). Haulage had been cleared all the way out.4 (Tr. 

88). 

Bochna interviewed Stern at a rehab facility on September 4, 2013. (Tr. 89). Stern had a 

plate inserted into his hip area. (Tr. 89). Bochna’s review of hospital records disclosed that after 

Stern’s internal bleeding had stopped, surgery on the pelvis was performed on August 12, 2013. 

(Tr. 90). Stern was reported to have a crushing injury to his spine/pelvis. (Tr. 90). 

4

 There was a call on the mine radio to signal that all equipment traffic should be stopped 

so as to make way for Stern’s mantrip transport to the surface. (Tr. 88). 

39 FMSHRC Page 1282
Bochna had also spoken with Roy Cumberledge, coordinator for GMS at Enlow and 

Bailey Mines, who had been at the hospital when Stern had been admitted. (Tr. 91). 

Cumberledge had been unable to view the injuries well, except for an abrasion on Stern’s right 

hip. (Tr. 91). The doctor at the hospital predicted Stern’s bleeding would stop in one to one and a 

half hours, which it did, without the necessity for surgery to prevent further bleeding. (Tr. 91). 

Surgery on the pelvis was performed at around 1:00 p.m. (Tr. 91). 

Documentary Evidence Regarding the Nature of the Accident 

At hearing, the Secretary offered into evidence GX-12A, MSHA’s Accident Prevention 

Program Safety Idea, Proper Blocking, in order to establish that failing to block against 

hazardous motion was one of the most frequently cited regulations when investigating serious 

accidents and fatalities. 5 (Tr. 95). 

The Secretary also introduced into evidence, MSHA’s Accident Prevention Program 

Safety Idea: Blocking against Motion. (GX-12B). This document disclosed that “in the past 

years, seven miners died...[because] safety props [were] not available and block was either not 

used or ineffective.” (Tr. 102). This exhibit also reported the case of a miner who was crushed 

between the bucket lift arms and front-end loading frame because the loader was not effectively 

secured from movement. (Tr. 102-03)6

. 

Another MSHA Accident Prevention Program Safety Idea, Stay Seen - Stay Alive was 

offered by the Secretary. (GX-12C). In this report, MSHA announced that during the period 

spanning January 2000-July 2011, there had been 76 fatalities due to miners being struck by 

surface and underground equipment. 7 (Tr. 103). 

The Secretary also offered an MSHA Accident Prevention Program/Miner’s Tip—work 

experience around machinery. (GX-12E). This Bulletin, dated April 30, 2002, included the 

                                                             5

 Over objections of Respondent, this Court allowed the admission of said document and 

similar documents as being relevant evidence regarding the “nature of the accident.” As 

discussed intra this Court holds that the proper test for determining a violation of §50.10(b) is 

whether, considering the totality of the circumstances, including the nature of the accident, an 

operator knew or should have known that the injury/injuries sustained by the miner had a 

reasonable potential to cause death. This Court specifically rejects any argument advanced by 

Respondent that this test is limited to assessing signs and symptoms associated with the miner’s 

injury. (See also Parties’ arguments regarding such at Tr. 94-100). 

6

 For the same reasons above referenced, this Court also allowed admission of such, over 

objection, into the record. 

7

 Given that Stern also had been struck/crushed between large pieces of equipment, this 

Court once again, over objections of Respondent, allowed this exhibit’s admission. This Court, 

as noted intra, found such evidence relevant in considering the “nature of the accident” vis-à-vis 

the reasonable potential for fatal injury and Respondent’s at least constructive knowledge of its 

duty to immediately notify MSHA under such circumstances. 

39 FMSHRC Page 1283
specific advice: “Do not get between two pieces of mobile equipment. They could crush you.” 

(Tr. 105). 

Also admitted into evidence, over objection of Respondent8

, were a series of fatalgrams, 

all of which involved miners being killed when pinned or crushed between heavy machinery and 

a coal rib. (GX-13B, 13C). 

Based inter alia upon Bochna’s interviews with Bailey Mine, Consol Corporate, and 

GMS personnel, his personal investigation of the accident, Stern’s complaints voiced at the 

scene, the observations of Stern by on-the-scene witnesses, the calls to clear haulage and for a 

Life Flight, and the treatment rendered, Bochna concluded that Respondent had violated 

§50.10(b). (Tr. 111-12).

Cross Examination of Bochna 

On cross examination, Bochna was asked to explain why it had taken 43 days for him to 

conclude that Respondent had failed to call MSHA within 15 minutes of learning of the accident. 

(Tr. 114). Bochna explained that it had taken this period to fully complete his investigation. (Tr. 

115). He had conducted ten or more accident investigations in the past. (Tr. 115). 

As far as Stern’s injuries were concerned, Bochna did not know what was actually told to 

John McDonald by the “red hats.” (Tr. 118). Neither did Bochna know what Greathouse, 

Stillwell, or Tennant had actually relayed to McDonald. (Tr. 119). 

Bochna had not spoken to EMS personnel regarding Stern’s injuries. (Tr. 120). He had 

been informed that a doctor at the hospital had opined that Stern’s bleeding would “stop on its 

own.” (Tr. 121). Bochna did not know the circumstances under which Respondent might call for 

Life Flight. (Tr. 122). 

During his interview of John McDonald, Bochna was informed that subsequent to the 

accident Stern had not lost consciousness, was speaking, and was answering questions. (Tr. 123-

24). Bochna had been further informed that no CPR was given. (Tr. 124). Bochna had never 

asked McDonald if McDonald thought Stern’s injuries had a reasonable potential to cause death. 

(Tr. 125). Nor did he pose this question to anyone else. (Tr. 125). Bochna had not called any 

medical professional at the hospital to determine whether there was any surgery for internal 

bleeding. (Tr. 128). 

Bochna acknowledged that he had commended Respondent for its speedy treatment of 

Stern. (Tr. 131). 

Given that the accident involved two very heavy pieces of equipment crushing an 

individual, the victim’s stomach distention and inability to move his legs, Bochna reiterated that 

8

 As in the foregoing instances, this Court allowed the admission of the fatalgrams to 

establish that Respondent had been put on notice of the potentially fatal nature of crush injuries. 

39 FMSHRC Page 1284
Respondent should have been “pretty quickly” aware that Stern’s injuries required immediate 

MSHA notification. (Tr. 133). 

Shannon Smith 

At hearing, Shannon Smith, the fire boss mine examiner at Bailey Mine, testified that he 

had worked in such position since 2009.9(Tr. 163-64). Smith had first learned via a radio call at 

Bailey Mine that “there was a man crushed.” (Tr. 165). Together with a fellow fire boss, Donald 

Wolf, Smith arrived at the accident site within 12 minutes of the call. (Tr. 166). When he first 

arrived upon the scene, Smith found John McDonald, Danny Greathouse, and some contractors. 

(Tr. 167). Stern was lying on his side. (Tr. 169). He had a bend to his knee—“like his leg’s 

broken.” (Tr. 170). Stern complained of being in pain. (Tr. 171). He was unable to move one of 

his legs. (Tr. 171). Don Wolf applied a “C spine,” which holds the neck straight. (Tr. 171). 

Stern’s stomach “felt like it was getting hard,” and it was distended. (Tr. 172). Smith 

acknowledged that this could be a sign of internal bleeding. (Tr. 172). There was a “little dab” of 

blood on his leg. (Tr. 173). 

Stern further complained that he felt like something was coming out of his penis. (Tr. 

173). Upon examining Stern, Smith, however, did not see “anything coming out.” (Tr. 173). 

Stern further asked Smith that if something happened to him, to tell Stern’s wife and 

family that he loved them. (Tr. 174). 

Smith characterized Stern’s injury as “pretty bad” and traumatic, Stern’s accident being

the worst he had ever been involved with. (Tr. 174). 

Smith himself had never called for Life Flight, nor has Life Flight been called since the 

accident at issue. (Tr. 175). However, Smith had heard that it had been called in the past. (Tr. 

175). 

Smith had not administered oxygen—because none was available at the scene, and Smith 

did not want to stop as he wanted to get Stern outside as quickly as possible. (Tr. 176-77). Smith 

did not take Stern’s blood pressure because he did not have a cuff with him. (Tr. 177). 

Smith called the bunker in order to have Life Flight contacted. (Tr. 179). In calling for 

Life Flight, Smith “wanted to err on the side of caution” because Stern might have possible 

internal bleeding that could lead to death. (Tr. 180). 

9

 Smith was also a licensed and certified EMT. (Tr. 164). He had previously worked in 

mining as a bolter operator and bolter helper. (Tr. 165). 

39 FMSHRC Page 1285
Cross Examination of Smith 

On Cross Examination, Smith said he had utilized an assessment phase called 

DCABPTLS10 in examining Stern. (Tr. 183). Once he had gone through the assessment, Smith 

knew he “had to get him (Stern) out of the mine...fairly quickly.” (Tr. 183). 

Stern did not lose consciousness at the scene and was able to understand questions. (Tr. 

184). He did not have any problems with his pulse. (Tr. 184). There was a “bruising-type thing” 

across Stern’s belly11. (Tr.185). There was no evidence of head injury. (Tr. 186). Stern was able 

to answer “sample questions.” (Tr. 187). Smith noted no change in Stern’s condition when he 

was handed-off to the paramedics. (Tr. 188). 

John Henry McDonald, Jr. 

John McDonald, Jr., a section supervisor at Bailey Mine since 2007 appeared and 

testified at hearing.12 (Tr. 192-93). McDonald first learned of Stern’s accident from Stern’s 

fellow GMS worker, Garret Scales. (Tr. 194). It was approximately quarter after 3:00 a.m. when 

McDonald was first contacted. (Tr. 195). He was approximately 900 feet from Stern’s accident 

site. (Tr. 195). Three to four minutes elapsed before McDonald arrived at the scene. (Tr. 195). 

McDonald found Stern lying on his side, saying he had gotten “pinched” and was in a lot of pain. 

(Tr. 196). McDonald called the bunker to contact 9-1-1 to get an ambulance. (Tr. 196). 

McDonald called MSHA with the same bell phone13 that he had used to call the bunker. (Tr. 

196). 

McDonald had called Shannon Smith on the radio to come to the scene. (Tr. 198). All 

McDonald understood as to the nature of the accident was that Stern “got pinched between the 

scoop and the [rail] car.” (Tr. 200). Initially, McDonald thought Stern had sustained a femur 

injury; but after talking to Stern, Smith thought it was higher up in the hip area. (Tr. 201). 

McDonald had noticed “a lump” in Stern’s stomach and felt “hardness” on his stomach. 

(Tr. 201). Colby Watson had accompanied McDonald to the scene and had been instructed by 

McDonald to get a gurney and EMT kits. (Tr. 202). 

Daniel Greathouse had informed McDonald that he had backed the scoop up in order to 

let Stern free. (Tr. 202). Stern was unable to move his legs and could only feel a pinch in one of 

                                                             10 This acronym stands for: deformities, contusions, abrasions, punctures, bruising/burns, 

tenderness, lacerations, and swelling. 

11 In pointing to where the bruising was located on Stern’s body, Smith placed his hand a 

little above his belt. (See also Tr. 185-86). 

12 McDonald had also worked at Bailey Mine as a foreman trainee. (Tr. 193). He had 

received an associate degree in mining technology at Penn State University. (Tr. 193). McDonald 

had at least 15 years of total mining experience. (Tr. 194). 

13 Bell phones can be used to call outside lines. (Tr. 196). 

39 FMSHRC Page 1286
his legs. (Tr. 203). When Stern’s legs were moved, he screamed in extreme pain. (Tr. 203). 

McDonald had requested haulage be cleared for Stern’s exit.14 (Tr. 204). It took approximately 

40 minutes for Stern to be taken out. (Tr. 204). Once Stern was placed in the ambulance, 

McDonald did not know where Stern was headed. (Tr. 204). 

McDonald testified he was familiar with a document entitled Immediately Reportable 

Accident as contained in GX-8. (Tr. 206-07). This document was posted on the bulletin board in 

the shift foreman’s office and on bulletin boards around Bailey Mine. (Tr. 207). This document 

had at one time also been in McDonald’s locker. (Tr. 206). 

McDonald testified that during his years at Consol, he had never been given specific 

instruction as to how to interpret the reportable event: “an injury to an individual at a mine which 

has a reasonable potential to cause death.” (Tr. 208; GX-8). McDonald was acquainted with GX7—a Bailey Mine document entitled Reportable Incident Guidelines. (Tr. 209). McDonald also 

acknowledged that GX-10 was a Consol Energy safety presentation regarding “Pinch Points/Red 

Zones” that described the Bailey Mine Incident at issue as being one which “had a high potential 

for a fatal accident.” (Tr. 213). 

GX-9 contained another Consol Energy safety talk entitled “proper blocking,” dated June 

20, 2011. (Tr. 2014-15). McDonald agreed with the first sentence of the presentation, which 

read: “one of the most frequently cited regulations when serious accidents and fatalities are 

investigated is the failure to block equipment against motion.” (Tr. 215). 

McDonald was an unlicensed EMT at the time of the instant accident. (Tr. 217). 

McDonald had called the bunker to contact an ambulance. (Tr. 219). It had taken Shannon Smith 

8 to 10 minutes to arrive at the accident site. (Tr. 218). Stern was on the ground, was in pain, and 

could not move his leg. (Tr. 218). He could speak and answer questions intelligibly. (Tr. 219). 

He did not exhibit any breathing problems. (Tr. 219). He did not appear to a have head injury or 

to be in shock. (Tr. 220). McDonald could not detect any deterioration in Stern’s condition from 

when he first observed Stern until Stern was handed off to the EMTs. (Tr. 220). 

Based upon his observations of Stern, McDonald had concluded that his injuries did not 

have a reasonable potential to cause death. (Tr. 222). McDonald did not have specific 

responsible person training as to immediate reportable accidents. (Tr. 224; See also GX-8). But 

he had participated in a group presentation when he had received his foreman papers. (Tr. 224). 

Red zone training was given because of all the tight areas and mobile equipment at Bailey Mine, 

red zone violations being particularly dangerous. (Tr. 224). 

14 Haulage was cleared anytime someone became sick or needed to leave the mine. (Tr. 

222). 

39 FMSHRC Page 1287
On redirect examination15 McDonald stated that Life Flight had been called for on the 

ride out “for precaution” because “when we felt his stomach, we got nervous.” (Tr. 225). 

Testifying that he and Shannon Smith tried to hide their conversation about Stern’s stomach 

hardening from Stern, McDonald explained that stomach swelling could indicate internal 

bleeding and internal bleeding had a reasonable potential to cause death. (Tr. 225). 

Michael Tennant 

Michael Tennant had been safety supervisor at Bailey Mine since September 2008.16 (Tr. 

231). Tennant had first learned of Stern’s accident when he had been called by Eric Cecil from 

the bunker at approximately 3:30-3:45 a.m. (Tr. 233). Tennant had been advised that Stern “was 

pinched between two cars and EMTs were on their way.” (Tr. 233). Tennant was at his home at 

the time, and during his drive to the mine, he received a second call in which he was informed 

that Life Flight had been called. (Tr. 234). Stern’s injuries were described as involving “a broken 

leg, dislocated hip or some lower-type pelvis-type incident...” (Tr. 234). Stern was reported to 

be conscious and alert. (Tr. 234). Tennant did not make any calls from his car regarding the 

accident but did initially call from his home, notifying his supervisor, Eric Shuble, who was the 

general superintendent. (Tr. 235). 

Tennant reported initially to Steve Apperson, manager of safety. (Tr. 235-36). Apperson 

would report to Chuck Shaynak, who was vice president of Consol’s Pennsylvania operations. 

(Tr. 236). 

Tennant arrived at the mine at about 4:50 a.m., approximately one hour after the bunker 

person’s original call. (Tr. 237). Stern was already gone. (Tr. 245). Tennant did not call Steve 

Apperson or anybody from GMS. (Tr. 238). He eventually called MSHA at around 5:09 a.m. 

(Tr. 239). Tennant had received a call from Randy Cumberledge, a GMS coordinator, to update 

Tennant on Stern’s condition. (Tr. 219). Stern was reported to have a broken pelvis and internal 

bleeding. (Tr. 239). 

Tennant did not go to Bailey Mine every time that there was an accident but had chosen 

to go to Bailey Mine because Stern had been pinched between two large pieces of equipment. 

(Tr. 243). Tennant did not know why the MSHA Escalation Report gave 4:45 a.m. as the time of 

the accident. (Tr. 243; GX-3). 

Tennant testified that, subsequent to mine accidents, safety talks as contained in GX-10 

were generally given as soon as possible. (Tr. 246). Tennant agreed with the final sentence under 

Pinch Points/ Red Zones, which read: “This had a high potential for a fatal accident.” (Tr. 247). 

15 As discussed infra McDonald’s statements on redirect examination essentially 

contradict Respondent’s argument that Stern’s injuries did not appear to have a reasonable 

potential for death. 

16 From 2001 to 2008, he had been a safety inspector at the mine. (Tr. 231). Tennant 

possessed a bachelor’s degree in safety engineering and had an assistant mine foreman 

certification. (Tr. 232). 

39 FMSHRC Page 1288
Tennant further agreed that, as outlined in Bailey Mines/ Reportable Incident Guidelines bulletin, 

he was to be immediately notified following any agency notification of an injury, which had the 

reasonable potential to cause death. (Tr. 251; GX-7). Tennant also confirmed that a Consol 

Energy safety talk on “proper blocking,” dated June 20, 2011, indicated that the failure to block 

equipment against motion was one of the most frequently cited regulations when serious 

accidents and fatalities are investigated. (Tr. 253; GX-9). 

According to Consol documents, the Bailey Mine incident17 at issue was reported to have 

fatal potential of “5” and the “high probability to cause death.” (Tr. 262-67; See also GX-14). 

Based upon the information given to him by Cecil over the phone—that there was 

something wrong about Stern’s leg or pelvis, that Stern might have a dislocated hip or broken 

leg, but that he was conscious and alert—Tennant did not believe that any of Stern’s injuries 

posed a reasonable potential to cause death. (Tr. 269-70). Tennant received basically the same 

information from EMT Smith that he received from Shift Foreman Tomlin at the mine site. (Tr. 

270-71). He did not receive any information from the hospital to alter his opinion. (Tr. 271).

Given that Life Flight had been called and there was a serious accident, Tennant decided to call

MSHA so that inspectors coming in would know something “about the event.” (Tr. 272).

In addition to Tennant, Danny Tomlin was the “responsible person” to make the call to 

MSHA. (Tr. 272). In the past, Tennant had made approximately 15-25 (or less) calls to MSHA to 

report injuries which had the reasonable potential to cause death. (Tr. 274). Tennant “typically 

use[d] common sense” in deciding to make such calls; he considered such factors as 

amputations, CPR, attempts to stop bleeding, lack of alertness, unconsciousness, blunt force 

trauma to the head or upper extremities to be triggers to call MSHA. (Tr. 274). Tennant never 

took into account the nature of the event in determining “reportability” under § 50.10(b), but 

only the seriousness of the injuries. (Tr. 275). 

During his initial phone conversation with Cecil, Tennant had not asked questions about 

whether Stern had upper body or lower body injuries, whether CPR had been performed, whether 

there were any amputations, any kind of profuse bleeding or internal bleeding, whether there 

were any blood pressure issues, or why EMT had thought it necessary to call Life Flight. (Tr. 

282-83). After learning of the accident, Tennant was initially concerned about Stern receiving

proper care—not calling MSHA. (Tr. 284-85).

17 As argued at hearing and indeed throughout these proceedings, both parties contested 

whether this and similar phrases referred to the type of injury or the type of accident. (See also

Tr. 266). 

39 FMSHRC Page 1289
Susan Bealko 

Susan Bealko, corporate safety director for GMS, testified at hearing.18 (Tr. 288). Bealko 

had first learned of Stern’s accident on August 12, 2013, at approximately 3:45-4:00 a.m. from 

Mike Fleece, GMS’s PA ops coordinator. (Tr. 289-90). After getting dressed and dropping off 

grain for her horse, she left for the hospital at approximately 4:15-4:20 a.m. (Tr. 291). She met 

Fleece at the hospital; Fleece advised her that Randy Cumberledge, the site coordinator, was 

speaking with Stern. (Tr. 290-91). At some point, a doctor came out, announcing that Stern was 

stable and was being prepped for surgery. (Tr. 293). There had been a “small bleed” that had 

since ceased. (Tr. 293). Surgery was performed at around 1:00 p.m. (Tr. 293). 

Bealko had heard nothing that led her to believe that Stern’s injuries had a reasonable 

potential to cause death. (Tr. 293). She did not contact MSHA regarding such because as GMS’s 

safety director she felt Stern’s injuries were not life threatening. (Tr. 294). 

Bealko had not gone to Bailey Mine before going to the hospital and had therefore not 

observed Stern at the accident site. (Tr. 300). 

Richard Marlowe 

At hearing, Richard Marlowe testified on behalf of Respondent.19 (Tr. 301-02). Marlowe 

testified that in August 2013, Marlowe was “probably” the director of safety awareness. (Tr. 

302). Referring to RX-5, “RPI’s August 2013,” Marlowe stated that reports of personal injury 

were put together and distributed to various business units in mines. (Tr. 303). He had circulated 

the August 2013 RPI in question. (Tr. 304). Based upon his review of the (Stern) incident, 

Marlowe had determined the situation had a potential for fatality. (Tr. 305). The form was not 

meant to indicate the likely outcome of injuries. (Tr. 310). In a situation involving an individual 

getting pinched between two pieces of equipment, Marlowe testified that, if such a condition was 

allowed to continue, a fatality could reasonably be expected to take place. (Tr. 310-11). There 

could be a situation with a high fatal potential but with no actual injuries involved. (Tr. 311). 

Marlow had not been present at the Bailey Mine when Stern was injured, had not directly 

observed any of Stern’s injuries, and had not specifically participated in the accident 

investigation. (Tr. 315). 

IV. Contentions of the Parties

Respondent argues that the Secretary failed to meet its burden of proof in proving a

§50.10(b) violation for Citation No. 7076747. Resp’t Post-Hearing Br. at 11-26. Respondent

18 She had been corporate safety director for 5 years and had been in the mining industry 

for 27 years. (Tr. 288). Bealko had a mining engineer degree from Penn State. (Tr. 288). She had 

also worked for NIOSH, the mining research branch of MSHA. (Tr. 288). 

19 Marlowe had an undergraduate degree in mining engineering technology and a 

master’s in safety management. (Tr. 302). 

39 FMSHRC Page 1290
contends that Stern’s injuries were not life-threatening and did not have the reasonable potential 

to cause death. Resp’t Post-Hearing Br. at 12-21. Respondent also contends that the surrounding 

circumstances of the accident are not relevant and that the accident did not involve an injury with 

the reasonable potential to cause death. Resp’t Post-Hearing Br. at 21-22, 26-27. Respondent 

further contends that the statutory provision in 30 U.S.C. § 813(j) is in conflict with the 

regulation in 30 C.F.R. § 50.10(b), and in such instances the statute prevails. Furthermore, it 

argues that the reporting requirement is subjective and should be subjectively applied. Resp’t 

Post-Hearing Br. at 22-26. Additionally, Respondent argues the negligence should be assessed at 

low, there was no fair notice of the violation’s interpretation, and the penalty should be 

decreased from $5,000.00. Resp’t Post-Hearing Br. at 31-33. Respondent also essentially argued 

that neither a totality of the circumstances test nor a reasonable person test are not appropriate for 

§50.10(b). Resp’t Reply Br. at 12-17.

The Secretary argues that Respondent violated 30 C.F.R. § 50.10(b), that the Respondent 

was moderately negligent, and that the penalty should be assessed at $5,000.00. Sec’y PostHearing Br. at 12-30. The Secretary contends that the Respondent knew or should have known 

within 15 minutes of its occurrence that Stern’s accident involved injuries with a reasonable 

potential to cause death. Sec’y Post-Hearing Br. at 14-28. The Secretary further contends that the 

Respondent had adequate notice of the standard. Sec’y Reply Br. at 9-12. 

V. Issue Presented

In determining whether 50.50(b) has been violated, should a “totality of the

circumstances” test be utilized, including such factors as a “nature of the accident” and signs and 

symptoms of injury at the time of accident and immediately thereafter? 

VI. Law and Regulations

30 C.F.R. § 50.10(b) Immediate notification in pertinent part provides as follows:

The operator shall immediately contact MSHA at once and without delay and

within 15 minutes...once the operator knows or should know that an accident has

occurred involving: ...(b) an injury of an individual at the mine which has a

reasonable potential to cause death.

VII. Findings of Fact and Conclusions of Law

In arriving at its within decision that Stern’s injuries evinced a reasonable potential to

cause death and that Respondent had correspondingly failed in its notification duty under § 

50.10(b), this Court recognizes that operators are not expected to be experts in diagnosis or 

prognosis at the scene of a mine accident. This Court also recognizes that there is not a statutory 

or a regulatory definition of “reasonable potential to cause death” and further notes the 

39 FMSHRC Page 1291
Commission’s declining to define such in Signal Peak Energy, LLC, 37 FMSHRC 470 (Mar. 

2015).20

Moreover, there is undoubtedly a gray area in determining whether an injury is 

potentially fatal and actually fatal.21

However, operators are not left at sea—without direction—as to when to notify MSHA of 

an accident. There are numerous navigational instruments to guide them to a proper 

determination. 

A. Any Reasonable Doubt Must Be Resolved in Favor of Notification

As the Commission has made abundantly clear in Signal Peak Energy, LLC, any 

“reasonable doubt” in determining whether MSHA should immediately be notified must be 

resolved in favor of notification. 37 FMSHRC 470, 477 (Mar. 2015). 

This should be the North Star directing all mine operators in their search for a proper 

determination under §50.10(b). 

The Respondent had advanced various arguments (of varying merit) explaining its failure 

to immediately notify MSHA. However, the circumstances surrounding Stern’s injuries should 

have raised multiple red flags of doubt to any prudent operator—doubt that should have been 

resolved in favor of notification. 

B. Operators Must Be Guided by the Protective Purpose of the Act and the Standard

As held by the Commission in Signal, in determining whether or not to call MSHA, an 

operator should be guided by the protective purpose of the Act and § 50.10(b) mandatory 

standard. Signal at 477. The preamble to the final rule addressing 30 C.F.R. § 50.10 in 2006 

stated: 

In emergencies, where delay in responding can mean the difference between life 

and death, immediate notification leads the mobilization of an effective mine 

emergency response. Immediate notification activates MSHA emergency 

response efforts, which can be critical in saving lives, stabilizing the situation, and 

preserving the accident scene. Immediate notification also promotes Agency 

assistance of the mine’s first responder efforts. In other situations, it allows for a 

range of appropriate Agency responses depending on the circumstances. It alerts 

MSHA to trends or warning signals that can trigger a special inspection, an 

investigation, or targeted enforcement. This communication also encourages 

20 See also Commissioner Cohen’s dissent calling for a definition in Signal Peak Energy, 

LLC, 37 FMSHRC at 477 n. 8. 

21 T.S. Eliot’s lines in The Hollow Men are called to mind “between the potency and the 

existence...falls the shadow.” 

39 FMSHRC Page 1292
operators and miners to work with MSHA to develop procedures that prevent 

incidents from resulting in more hazardous situations, ultimately leading to 

disasters. 

71 Fed. Reg. at 71, 431. 

Thus, in addition to Signal’s directive that all reasonable doubts be resolved in favor of 

notification, operators have two other bright beacons directing their § 50.10(b) considerations: 

the protective purpose of the Act and mandatory safety standard. 

 

It is clear that the circumstances surrounding the accident and injury must be considered. 

For example, under the definition of accident provided in §50.2, several examples are given as to 

what constitutes an accident, including an injury at a mine with the reasonable potential to cause 

death, entrapment for more than 30 minutes, unplanned inundation, and an unplanned fire. See

30 C.F.R § 50.2. Most of the enumerated examples describe circumstances, rather than injuries. 

Thus it is clear that §50.10(b) does not exclude and in fact encourages an analysis of the 

circumstances surrounding the event causing a mine injury. See id. 

Similar to most controversies arising out of the Mine Act, determinations regarding § 

50.10(b) notifications are necessarily fact specific and must be evaluated on a case-by-case basis 

with due consideration for the totality of the circumstances. See e.g., Black Beauty Coal Co., 36 

FMSHRC 1821 (March 10, 2014) (ALJ) (holding safeguard notice requirements for a water 

accumulation violation are analyzed on a case-by-case basis). 

This Court rejects the Respondent’s arguments that a totality of the circumstances 

approach, including consideration of the nature of the accident, should not be employed in 

determining whether a miner’s injury is reportable under § 50.10(b). 

In Signal Peak Energy, the Commission unequivocally held that all “readily available 

information”—“including the nature of the accident” should be considered in determining 

whether an injury was reportable. Signal Peak Energy, LLC, 37 FMSHRC at 476. The 

Commission noted that such evidence was “highly relevant.” Id. Because the extent of an injury 

is not always immediately apparent, the Commission reasoned that the specific circumstances, 

including how the injury occurred, should be considered by the mine operator.22 Id. As discussed 

intra, the Secretary has presented persuasive documentary and testimonial evidence that the type 

of accident in which Stern was involved—being crushed23 in a red zone between two large 

pieces of machinery—often leads to fatal injury. 

                                                             22 In Red River Coal Co., 39 FMSHRC 368, 391 (Feb. 2017)(ALJ) Judge Feldman 

considered the nature of the miner’s accident in concluding that the operator had violated § 

50.10(b). 

23 Although the word “pinched” is used in the technical sense to describe the type of Red 

Zone incident in which Stern was involved, the word “crushed” more accurately describes the 

injury process actually suffered by Stern. 

39 FMSHRC Page 1293
In arguing that the nature of Stern’s accident should not be taken into account, 

Respondent ignores Signal’s holding that “the nature of the accident” is highly relevant 

information in determining whether an injury should be reported. This Court cannot accept 

Respondent’s suggested analytical approach. Any prudent operator, familiar with the industry, 

knew or should have known that the type of accident that Stern suffered often leads to death.24

To ignore this elephant in the room is a sophistic misadventure that no mine operator, including 

Respondent, should engage in when determining to alert MSHA. 

C. Reasonable Potential to Cause Death Interpretation

Respondent argued that §50.10(b) is not clear, and does not include an analysis of the 

nature of the accident.25 When the plain language of a standard is clear and unambiguous, the 

Commission has held that the standard provides operators with fair notice. Dynamic Energy, 

Inc., 32 FMSHRC 1168, 1172 (Sept. 2010); Bluestone Coal Corp., 19 FMSHRC 1025, 1031 

(June 1997). The Commission has held that the “reasonable potential to cause death” uses a 

reasonable person standard. Signal Peak, LLC, 37 FMSHRC at 477. The Commission has 

specifically stated that the reasonable potential to cause death is case specific and requires 

consideration of the accident causing the injury. Wolf Run Mining Co., 35 FMSHRC 3512, 3517 

(December 2013). It is this Court’s view that a reasonable potential to cause death is a clear 

standard. 

If the meaning of a standard is ambiguous, the Secretary’s interpretation of its own 

regulation may be given deference. See Auer v. Robbins, 519 U.S. 452 

(1997); Udall v. Tallman, 380 U.S. 1, 16-17 (1965); Dynamic Energy, Inc., 32 FMSHRC 1168, 

1171-72 (2010). Deference is not appropriate when an agency’s interpretation is unreasonable or 

inconsistent with the regulation. Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 155 

(2012) (citing Auer, 519 U.S at 462). An agency’s interpretation may also not be given deference 

when it conflicts with a prior interpretation. See, Christopher v. SmithKline Beecham Corp., 567 

U.S. at 155 (2012)(citing Thomas Jefferson Univ. v, Shalala, 512 U.S. 504, 515 (1994)). While 

this Court does find §50.10 to be clear and unambiguous, the Secretary’s interpretation that a 

totality of the circumstances test should be used is also reasonable and should be given 

deference. The Mine Act was written in order to protect miners’ health and safety. When 

analyzing MSHA’s reporting requirement under §50.10(b), it is reasonable that the Secretary 

24 Additionally, it should be noted that many injuries, such as inhalation, internal 

bleeding, and the like are not visible. Therefore, the circumstances surrounding the injury are 

highly relevant in determining the extent of the possible injury. 

25 Respondent also argues that 30 U.S.C. § 813(j) conflicts with 30 C.F.R. § 50.10(b) in 

that §813(j) states that an operator must call MSHA when he realizes an injury has occurred with 

the reasonable potential to cause death. Whereas §50.10(b) states that an operator must call 

MSHA when an operator knows or should have known of an accident involving an injury with 

the reasonable potential to cause death. (Resp’t Post-Hearing Br. at 22-27). This Court finds 

there to be no conflict in this case as the facts and testimony provide the same result. Due to the 

circumstances surrounding the accident and injury, it is clear that MSHA should have been 

called within 15 minutes of the accident. 

39 FMSHRC Page 1294
should consider the circumstances that resulted in an injury. Thus, a totality of the circumstances 

test is appropriate under the regulations. 

D. Preamble to Final Rule for Section 50.10 

Contrary to Respondent’s suggestions otherwise, the preamble to section 50.10 does not 

contain an exhaustive all-inclusive list of injuries requiring immediate MSHA notification. 

Rather it is a practical guide to operators citing “some” types of injuries that, based upon 

MSHA’s past experience and based upon common medical knowledge, have the reasonable 

potential to cause death.26

E. Signs and Symptoms of Injury 

When considering the totality of the circumstances, the Respondent argues correctly that 

signs and symptoms of injury are important factors in considering a § 50.10(b) MSHA 

notification. 

However, in considering Stern’s mental and physical signs and symptoms, this Court has 

given much more probative weight to the evidence of injury available at the scene of the accident 

and at the time of the accident and immediately thereafter. Medical information gathered from 

treatment sources at the hospital and thereafter—for example, reports that Stern’s condition was 

improving and that, with or without surgical intervention, Stern’s intestinal bleeding had 

ceased—has been accorded much less substantive weight in assessing the propriety of operator’s 

§ 50.10(b) determination than the signs and symptoms witnessed at the accident scene and time. 

In proceeding thusly, this Court has been guided by the Commission’s holdings in Signal

and Cougar Coal that the need for a prompt determination is inherent in § 50.10 and that 

permitting operators to wait for a medical or clinical opinion would frustrate the immediate 

reporting of accidents.27

1. Consciousness and Alertness 

This Court further agrees with Respondent that consciousness and alertness are factors 

which may indicate a non-fatal injury. However, standing alone, they are not necessarily contra 

                                                             26 The ALJ notes a back and forth between counsel questioning Shannon Smith as to 

whether Stern’s blunt force trauma was in the upper or lower body. Any doubt regarding such at 

the accident scene should again have been resolved in favor of MSHA notification. 

27 If an operator is permitted to wait for and consider information beyond the narrow 

confines of time and space addressed herein, all types of speculation and delay may enter his 

determination. For instance, in this case, Stern had to undergo hospitalization and surgery. Given 

that medical error is now the 3rd leading cause of death in the U.S. and given that thousands of

our citizens die annually due to hospital borne infection—should an operator be required to deem 

any injury requiring later surgery and/or hospitalization to have a reasonable potential to cause 

death? 

39 FMSHRC Page 1295
indicative of a potentially fatal injury. Bartlett’s Familiar Quotations is full of memorable dying 

declarations which—though quite lucid and profound—were uttered by individuals close to 

death.28

Likewise, the Commission and its judges have recognized that the maintenance of 

consciousness at the scene does not by itself preclude a finding of a § 50.10(b) violation. Webster 

County Coal, LLC, 2017 WL 2306333 (May 23, 2017)(ALJ). 

In Red River Coal, a miner had been struck in the head by a pressurized end cap. Red 

River Coal, 39 FMSHRC 368, 389 (Feb. 21, 2017)(ALJ). The maintenance shop foreman, a 

certified EMT, found the miner conscious at the scene with stable vital signs and minimal blood 

loss—as in the case sub judice. Id. at 389-90. After considering however, the totality of the 

evidence, including the nature of the accident which involved blunt force trauma to the head and 

the fact that Life Flight had been called, Judge Feldman concluded § 50.10(b) had been violated. 

Id. at 391-92. 

In Cougar Coal Co., 25 FMSHRC 513 (Sept. 2003) the Commission on its own motion 

reviewed an ALJ’s dismissal of a citation under 30 C.F.R. § 50.10. In Cougar Coal the victim 

had received an electric shock of exposure to 7,200 volts of electricity and had fallen a distance 

of 18 feet. Cougar, 25 FMSHRC at 514. Rejecting the ALJ’s reliance upon the operator’s 

assertion that the victim was conscious and alert when management personnel arrived at the 

scene, the Commission specifically found that the judge “incorrectly discounted testimony 

related to ‘the nature of the accident’ as irrelevant to the question of whether the injuries had a 

reasonable potential to cause death.” Id. at 520 

2. Complaints of Pain

At hearing, there was consistent testimony that Stern had voiced complaints of being in 

severe pain to Bailey Mine and GMS personnel. A prudent miner might reasonably consider 

such a symptom as being indicative of potentially fatal injury.

At hearing, it was reported that Stern had also described a sensation that his “guts were 

coming out of his penis.” (Tr. 83). This symptom was so severe in nature that Shannon Smith 

was compelled to check Stern’s genitals. (Tr. 173). Such a bizarre and extreme sensation might 

also be reasonably interpreted as indicative of a potentially fatal injury. 

3. Bent Leg and Lower Extremity Paralysis

At hearing it was also reported that Stern also had an odd bend to one of his legs and had 

complained of being unable to move a leg. (Tr. 270-71). Signs of fracture and complaints of 

lower extremity paralysis would be additional symptoms alerting a prudent miner of his duty to 

immediately notify MSHA. 

28 Witness Moliere’s reported last words: “Draw the curtain, the farce is over.” 

39 FMSHRC Page 1296
4. Abrasions and Blood Loss

Visible signs of abrasions and some blood loss were also witnessed at the accident scene. 

(Tr. 87). Considered alone, these signs may not have been indicative of injuries with the 

reasonable potential to cause death. However, when viewed in combination with Stern’s other 

signs and symptoms, a reasonably prudent miner would be motivated to immediately notify 

MSHA. 

At hearing, Respondent argued that bruising could be associated with relatively minor 

injuries. (Tr. 180-81). The ALJ took Respondent’s point that there are different degrees of 

bruising and associated internal bleeding dependent upon the type of trauma and body part 

affected. However, in the instant matter, there was obvious major trauma to Stern’s torso. 

5. Stomach Swelling and Internal Bleeding

One of the most ominous signs of potentially fatal injury testified to at hearing was that 

of Stern’s reported stomach swelling/distention. (See Tr. 83). 

At hearing, Smith acknowledged that Life Flight had been called due to fear that Stern 

might be experiencing internal bleeding which could lead to death. (Tr. 179-80). 

The fact that Stern’s internal bleeding had eventually receded, does not diminish the point 

that such a sign at the mine accident site immediately after the accident would have alerted a 

prudent operator to notify MSHA under § 50.10(b). 

6. Stern’s Farewell to Family

In addition to Stern’s physical symptoms and signs which supported a determination that 

his injuries might be fatal in nature, Stern exhibited mental symptoms in support of such. 

At the accident scene Stern requested that, if anything happened to him, Shannon Smith 

tell Stern’s wife and family that he loved them. (Tr. 174). Individuals do not normally make such 

a request unless they themselves fear that their injuries are life threatening. 

A prudent operator would reasonably find such a fear-filled family farewell to have been 

further evidence of a potentially fatal injury. 

7. Call for Life Flight

Regardless of Respondent’s various explanations minimizing its call for Life Flight—a 

reasonable inference to be drawn was that Respondent was justifiably concerned that Stern’s 

injuries might be life-threatening. Smith’s essential admission that Stern’s injuries may be lifethreatening pulled the lynch pin out from under Respondent’s arguments otherwise. (Tr. 180). 

39 FMSHRC Page 1297
F. Given the Totality of the Circumstances a § 50.10(b) Notification was Mandated

Respondent has raised various points of arguable merit justifying its failure to notify 

MSHA under § 50.10(b). Further, this Court grants that Respondent may have been acting in 

good faith in its violative actions. However, considering the totality of the circumstances in light 

of the protective purpose of the Act and mandatory safety standard, a prudent operator, 

knowledgeable of the industry would have or should have known that Stern’s injuries had the 

reasonable potential to cause death, and therefore, had a duty to immediately notify MSHA. 

G. Negligence

Respondent has argued that the Secretary’s assessment of moderate negligence should be 

modified to low negligence. (Resp’t Post-Hearing Br. at 31-33). An operator is moderately 

negligent when “the operator knew or should have known of the violative condition or practice 

but there are mitigating circumstances.” 30 C.F.R. § 100.3 Table X. Low negligence conversely 

requires “considerable mitigating circumstances.” Id. 

As stated above, this Court finds that Respondent knew or should have known that an 

accident occurred with the reasonable potential to cause death. The nature of the accident, Stern 

being crushed between two several ton machines, Stern’s belief that he might die, Stern’s 

description of his injury including the feeling of something coming out of his genitals, Stern’s 

stomach swelling indicating internal bleeding, and his inability to move his legs properly—all 

indicated that the Respondent knew or should have known that an accident occurred that had the 

reasonable potential to cause death. 

Respondent did not call MSHA within the 15-minute time limit as §50.10(b) required 

when an accident with the reasonable potential to cause death has occurred. Although 

Respondent called Life Flight and seemed to react quickly and efficiently to help Stern after his 

injury, and although Respondent eventually called MSHA approximately two hours after Stern’s 

injury occurred, nonetheless this Court does not find considerable mitigating circumstances, and 

affirms the Secretary’s moderate negligence assessment. 

H. Fair Notice

Respondent also argues that it did not have fair notice of the meaning and interpretation 

of the phrase “Operator realizes that...an injury...which has a reasonable potential to cause 

death.” Resp’t Post-Hearing Br. at 27-31. 

To satisfy constitutional due process requirements, regulations must be sufficiently 

specific to give adequate notice of the conduct they prohibit or require. See Grayned v. 

Rockford, 408 U.S. 104,108 (1972). The Commission has stated that notice for an ambiguous 

regulation asks “whether a reasonably prudent person familiar with the mining industry and the 

protective purposes of the standard would have recognized the specific prohibition or 

requirement of the standard.” DQ Fire & Explosion Consultants, 36 FMSHRC 3083, 3087 (Dec. 

2014) (internal quotations omitted)(quoting Ideal Cement Co., 12 FMSHRC 2409, 2416 (Nov. 

1990)). Thus, a reasonably prudent miner has adequate notice of a regulation when he knows—

39 FMSHRC Page 1298
after considering the purpose of the provision—that said provision applies to a particular 

situation. See e.g. Grayned, 408 U.S. at 112; Freeman United Coal Mining Co. v. FMSHRC, 108 

F.3d 358, 362 (D.C. Cir. 1997).

In this case, Stern was crushed between a scoop and railcar, both of which weighed 

between 5 and 10 tons. Stern complained of extreme pain, could not move his legs properly, 

believed something was coming from his genitals. Futher, he had stomach swelling, which 

indicated internal bleeding. Respondent’s witness Smith, a fire boss examiner, believed that 

Stern’s internal bleeding had the potential to cause death. See (Tr.180). All of these 

circumstances demand that a reasonably prudent miner would believe that Stern’s condition had 

the potential to cause death. 

VIII. Penalty

The Act requires that in assessing civil monetary penalties, the Commission ALJ shall

consider the six statutory penalty criteria: 

...the operator's history of previous violations, the appropriateness of such penalty 

to the size of the business of the operator charged, whether the operator was 

negligent, the effect on the operator's ability to continue in business, the gravity of 

the violation, and the demonstrated good faith of the person charged in attempting 

to achieve rapid compliance after notification of a violation. 

30 U.S.C. 820(i). 

30 C.F.R. §100.4(c) states that the penalty for failure to provide timely notification to 

MSHA “will not be less than $5,000 and not more than $65,000 for the following accidents:...2) 

An injury...of an individual at the mine, which has a reasonable potential to cause death.” 

Section 110(a)(2) of the Act similarly states that an operator “who fails to provide timely 

notification to the Secretary as required under 103(j) of [the Act] (relating to the 15 minute 

requirement) shall be assessed a civil penalty by the Secretary of not less than $5,000 and not 

more than $60,000.”29 30 U.S.C. §820(a)(2). 

The Secretary assessed a penalty of $5,000.00, and for the following reasons, this Court 

affirms the assessment of $5,000.00. 

The Secretary has brought forward no evidence of previous §50.10(b) violations. 

Additionally, Bailey Mine is a large mine with an annual production capacity of 10.2 million 

tons in 2015 and 12.3 million tons in 2014. (GX-15). Respondent was moderately negligent as 

set forth above. The parties have stipulated that an assessment of $5,000.00 would not affect the 

operator’s ability to continue in business. J.S.-4. 

29 In 2012, the $60,000 maximum was raised to $65,000 to account for inflation. Signal, 

at 484, n. 21. 

39 FMSHRC Page 1299
The gravity of the violation is “No Likelihood” of a “No Lost Workdays” injury. Based 

on the foregoing, this Court finds that a penalty of $5,000.00 is appropriate. 

ORDER 

The Respondent, Consol Pennsylvania Coal Company, LLC, is ORDERED to pay the 

Secretary of Labor the sum of $5,000.00 within 30 days of this order. 30

/s/ John Kent Lewis 

John Kent Lewis 

Administrative Law Judge 

Distribution: 

Jennifer Gold, Esq., Office of the Solicitor, U.S. Department of Labor, The Curtis Center, 170 

S. Independence Mall West, Philadelphia, PA 19106

James P. McHugh, Hardy Pence, PLLC, P.O. Box 2548, Charleston, WV 25329 

30 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 

39 FMSHRC Page 1300
ADMINISTRATIVE LAW JUDGE ORDERS

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 

June 19, 2017 

JASON FARMER, 

 Complainant 

v. 

SPARTAN MINING CO., LLC, AND 

ALPHA NATURAL RESOURCES 

HOLDINGS, INC., 

 Respondent

DISCRIMINATION PROCEEDING 

Docket No. WEVA 2017-343-D 

MSHA No. PINE-CD-2017-01 

Mine: Road Fork #51 Mine 

Mine ID: 46-01544 

ORDER DENYING SPARTAN MINING CO., LLC’S MOTION TO DISMISS 

Before: Judge McCarthy 

I. Statement of the Case

This matter is before me upon a discrimination complaint filed by Jason Farmer 

(“Farmer” or “Complainant”) on April 19, 2017 pursuant to section 105(c)(3) of the Federal 

Mine Safety and Health Act of 1977 (“the Act” or “Mine Act”). 30 U.S.C. § 815(c)(3). 

Respondent Alpha Natural Resources Holdings, Inc. (“Alpha”) filed its Motion to Dismiss and 

Answer on May 12, 2017, and Respondent Spartan Mining Co., LLC (“Spartan”) filed its Motion 

to Dismiss and Answer on May 15, 2017. 

For the reasons set forth below, I DENY Spartan’s Motion to Dismiss, and GRANT 

Farmer’s request to withdraw his complaint against Alpha, rendering Alpha’s Motion to Dismiss 

as moot.1

II. Factual and Procedural Background

Beginning in 2006, Farmer worked for Spartan for approximately ten years. Compl. 1. 

On July 18, 2016, Farmer began to experience breathing difficulties, which ultimately rendered 

him unable to work for several weeks. Id. During this time period, Farmer learned that he had 

developed Coal Worker's Pneumoconiosis (“Black Lung”). Id. 1-2.

1

 Alpha is the ultimate parent holding company of Spartan. Alpha Mot. to Dismiss 2. As 

noted by Alpha in its Answer and Motion to Dismiss, “Alpha Holdings is many steps removed 

from Spartan in the corporate hierarchy. In fact, numerous partially and/or wholly-owned 

subsidiaries separate Alpha Holdings and Spartan.” Id. In any event, Farmer has requested 

judicial approval for withdrawal of his complaint against Alpha pursuant to Commission 

Procedural Rule 11. 29 C.F.R. § 2700.11. Farmer Resp. to Mot. to Dismiss 1. As stated above, 

this request is granted. 

39 FMSHRC Page 1301
On or about September 1, 2016, Farmer returned to work for Spartan, informed Spartan 

of his breathing difficulties, and requested to be moved away from the working face of the mine 

to a less-dusty area. Id. 2. Farmer also “informed the Respondents that he had recently filed for 

protection under 30 C.F.R. Part 90, that his Part 90 application was currently pending review,” 

and that “he had a positive x-ray showing that he was suffering from black lung disease.” 2 Id. 

Spartan denies that Farmer filed for Part 90 protection upon his return on September 1, 2016, but 

that Farmer had instead only “mentioned his intent to file.” Spartan Answer 2. 

At Farmer’s request, he was subsequently reassigned to a position outby the face. Compl. 

2. However, following his reassignment, Farmer alleges his hours were reduced and that he was

still subjected to dusty conditions, which further aggravated his breathing difficulties. Id. 2-3.

Spartan disputes any loss of Farmer’s income due a reduction in hours, or that the outby

assignment “would be considered highly dusty or otherwise violate the appropriate respirable

dust standard.” Spartan Answer 2-3. Further, Spartan “specifically denies the allegations related

to aggravation of his breathing condition as no such complaints or issues were raised with

management while Complainant worked with Spartan.” Id. 3.

 Farmer alleges that on or about September 25, 2016, he notified Spartan via facsimile 

that “having already complained to the Respondents about excessive dust on numerous occasions 

– only to be misled into working in yet another highly dusty position [he] became unable to

continue working his job.” Compl. 3. Spartan disputes this, and instead alleges that Farmer filed

his 105(c)(2) discrimination complaint with MSHA on October 24, 2016 before reporting to

work that day, and that Farmer then faxed his notice that he was unable to continue working in

his job the next day, October 25, 2016. Spartan Answer 3.

The parties do not dispute that Farmer filed his 105(c)(2) discrimination complaint with 

the Mine Safety and Health Administration (“MSHA”) on October 24, 2016. 3 Compl. 3. 

Farmer’s discrimination complaint states, in relevant part: 

On July 18, 2016, I had begun struggling to breathe and became 

unable to work the next day. I was out till [sic] September 1, 2016. 

Severe breathing difficulty has caused me to request not to work in 

return air. Company requires roof bolt operators to bolt in return 

air multiple times per shift. I seek an injunction to keep me out of 

return air and dusty environments at all times. I filed for Part 90 

and company officials told me that I had to continue working in

dust. Since I filed for Part 90 and returned to work, I have lost 

wages and hours, and have been moved to a less desirable schedule 

that precludes me from honoring my family commitments. I have 

2

 30 C.F.R. § 90.1 provides coal miners who provide evidence of black lung the option to 

work in less dusty areas of a mine. 

3

 Farmer’s 105(c)(2) complaint consists of two, one-page forms, MSHA 2000-123 and 

MSHA 2000-124. Compl. Ex. 1 at 1-2. 

39 FMSHRC Page 1302
been constructively discharged by having to work in dust after my 

protests, Part 90 application, and my movement to another job 

outby. I have to shovel belt and operate a roof bolt machine outby 

after filing for Part 90. I request to be made whole for my losses of 

wages and hours, be restored to my former swing schedule, and be 

kept in low-dust working conditions. 

Compl. Ex. 1, at 2. On Form 2000-123, Farmer alleged that the date of the discriminatory action 

was September 1, 2016. Id. at 1. Under Section E of the same form, Farmer indicated that a copy 

of all MSHA correspondence should be sent to his attorney, Samuel K. Petsonk. Id.

4

 

On or about October 25, 2016, MSHA complaint processor Angela K. Thomas sent an 

acknowledgement letter to Farmer that his 105(c)(2) complaint had been assigned to special 

investigator Tim Brown. Farmer Resp. to Mot. to Dismiss Ex. A, at 1. There is no indication that 

a copy of the acknowledgment letter was sent to Petsonk, Farmer’s attorney, as requested in 

Farmer’s complaint. Id. Petsonk “continued representing Mr. Farmer by appearing along with 

him in front of special investigator Tim Brown, and at all other points of the investigation by 

MSHA District 12.” Compl. 4. 

On or about December 16, 2016, MSHA’s Chief of the Technical Compliance and 

Investigation Office, Carolyn T. James, purportedly sent a standard pro forma determination 

letter to Farmer, with copy to Spartan, stating in relevant part: 

Based on a review of the information gathered during the 

investigation, 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. For that reason, the Secretary 

of Labor will not file a discrimination case with the Federal Mine 

Safety and Health Review Commission (“the Commission”) in this 

matter. 

However, you continue to have the right to file a discrimination 

case on your own behalf with the Commission. If you decide to file 

your own case, you must do so within 30 days of this letter by 

sending a discrimination complaint to the Commission at the 

following address . . . . 

Compl. Ex. 2, at 3. There is no evidence in the record indicating that a copy of the December 16, 

2016 determination letter was sent to Petsonk, as per Farmer’s request under Section E of his 

discrimination complaint. Compl. Ex. 1 at 1 and Ex. 2 at 3-4. 

 4

 Section E of MSHA Form 2000-123 states: “[i]f you desire that a copy of all 

correspondence addressed to you from MSHA be provided to a representative (e.g. Union 

representative, attorney, etc.) please give his/her name and address to the right.” Id. 

39 FMSHRC Page 1303
On February 17, 2017, Petsonk states that he “verbally contacted” MSHA to follow-up 

with the status of their investigation. Farmer Resp. to Mot. to Dismiss 3. On February 21, 2017, 

MSHA supervisory special investigator/conference litigation representative, Charles R. Bigley, 

emailed Petsonk, and stated the following: 

The 105 you questioned, concerning the status, was closed on 

12/16/2016. Records indicate the decision was made on 

12/13/2016 that the evidence did not support a violation of 105c. 

The letter notifying the complainant of the decision was mailed

from TCIO on 12/16/2016. 

Compl. Ex. 2, at 1-2. On March 21, 2017, Petsonk responded: 

I was registered as his representative from the time of the initial 

filing of the 123/124 forms, and I have never yet been sent a copy 

of the decision by TCIO. Accordingly, I believe that an effective 

final decision from TCIO has not yet issued in this matter of Jason 

Farmer v. Spartan Mining. Please advise. 

Id. at 1. The next day, March 22, 2017, Bigley replied: 

Attached is the decision letter from TCIO to Mr. Farmer copied 

from the case file. Likely just an oversight that a copy was not 

mailed to you the same day it was mailed to the complainant. Sorry 

for any inconvenience this may have caused. 

Id. On April 19, 2017, and within 30 days of Petsonk’s receipt of the determination letter from 

TCIO, Petsonk filed a 105(c)(3) action on Farmer’s behalf with the Commission against 

Respondents Alpha and Spartan. 

On May 12, 2017, Respondent Alpha Natural Resources Holdings, Inc. (“Alpha”) filed 

its Answer and Motion to Dismiss. 

On May 15, 2017, Spartan filed its Answer, Affirmative Defenses, and Motion to 

Dismiss. In its motion, Spartan moved to dismiss Farmer’s complaint as untimely under section 

105(c)(3) arguing that “MSHA’s Technical Compliance and Investigations Office (TICO) [sic] 

issued its decision on December 16, 2016, but Complainant did not file his Complaint until April 

12, 2017, well outside the 30-day deadline.” Spartan’s Mot. to Dismiss 1. 

On May 22, 2017, Farmer filed his response to Spartan, and requested judicial approval 

to withdraw his complaint against Alpha. 

 

39 FMSHRC Page 1304
III. Principles of Law

A. The Act

Section 105(c)(3) of the Act provides that: 

[w]ithin 90 days of receipt of a 105(c)(2) discrimination complaint,

the Secretary shall notify, in writing, the miner, applicant for

employment, or representative of miners of his determination

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

investigation, determines that the provisions of this subsection 

have not been violated, the complainant shall have the right, within 

30 days notice of the Secretary’s determination, to file an action in 

his own behalf before the Commission . . . . 

30 U.S.C. § 815(c)(3). The Act’s legislative history instructs that the time limits imposed in 

105(c) should not be considered jurisdictional: 

In addition, under section [105(c)(3)], if the Secretary determines 

that no violation has occurred, the complainant has the right within 

30 days of receipt of the Secretary's determination, to file an action 

on his own behalf before the Commission . . . . this thirty-day

limitation may be waived by the court in appropriate circumstances 

for excusable failure to meet the requirement. 

S. Rep. No. 95-181, 37 (1977), reprinted in Senate Subcomm. on Labor, Comm. on Human Res.,

Legis. Hist. of the Fed. Mine Safety and Health Act of 1977 at 37 (1978). This interpretation is

consistent with “the primary objective of [the] Act,” which is “to assure the maximum safety and

health of miners.” Id at 46.

B. Commission Precedent

The Commission similarly interprets 105(c) time limitations as non-jurisdictional. E.g.,

Sec’y of Lab. o/b/o Clayton Nantz v. Nally & Hamilton Enter., Inc., 16 FMSHRC 2208, 2215 

(Nov. 1994) (internal citation omitted); Ronny Boswell v. Nat’l Cement Co., 14 FMSHRC 253, 

257 (Feb. 1992) (internal citations omitted). Accordingly, 105(c) time limitations are treated as a 

statute of limitations period subject to equitable tolling. N. Assoc. Coal Co., 8 IBMA 164 (Sept. 

1977).5

 Ultimately, however, the decision to permit or reject an untimely 105(c) filing is 

determined on a case-by-case basis, “taking into account the unique circumstances of each 

5

 The Commission’s interpretation was recently upheld by the Tenth Circuit. Olson v. 

Fed. Mine Safety & Health Review Comm'n, 381 F.3d 1007, 1012 (10th Cir. 2004) (“[T]he 

Commission's interpretation of the Mine Act to permit equitable tolling is supported by both the 

background presumptions against which the Act was written and the Act's legislative history . . . 

. the Commission's interpretation is reasonable and deserves deference.”). 

39 FMSHRC Page 1305
situation.” Robinson v. Vulcan Constr. Materials, LP, 36 FMSHRC 1084, 1093–94 (April 2014); 

see also Boswell, 14 FMSHRC at 257; Clyde Perry v. Phelps Dodge Morenci, Inc., 

18 FMSHRC 1918, 1921-22 (Nov. 1996) (internal citation omitted). 

One relevant factor in a 105(c) timeliness analysis is a good-cause showing of “justifiable 

circumstances” for a late filing in order to prevent stale claims brought by one who has 

“knowingly slumbered on his rights.” Farmer v. Island Creek Coal Co.,13 FMSHRC 1226, 

1230–31 (May 1991); Herman v. Imco Servs., 4 FMSHRC 2135, 2137–38 (Dec. 1982); 

Cf. Hollis v. Consolidation Coal Co., 6 FMSHRC 21 at 25 (Jan. 1984). Justifiable circumstances 

have been found in instances of “ignorance, mistake, inadvertence, and excusable neglect.” 

Perry, 18 FMSHRC at 1921–22 (citation omitted); see also Boswell, 14 FMSHRC at 257. A 

good-cause showing must then be weighed against any demonstration of material legal prejudice 

by the operator. Hale, v. 4-A Coal Co., 8 FMSHRC 905, 908 (June 1986). Legal prejudice is 

“material” when it affects “issues necessary to a meaningful opportunity to defend,” and can 

include instances of “serious delay” by Complainant. Farmer, 13 FMSHRC at 1231 (citation 

omitted).6

 The Commission has held that an operator’s demonstration of material legal prejudice 

is a “primary consideration” in the timeliness analysis. Lujan v. Signal Peak Energy, LLC, 

38 FMSHRC 78, 95 (2016) citing Hale, 8 FMSHRC at 908-09; see also Boswell, 14 FMSHRC at 

257. 

IV. Analysis

It is undisputed that Farmer filed his discrimination complaint with MSHA within the 60-

day time-frame allotted under 105(c)(2). At issue here is the timeliness of Farmer’s subsequent 

105(c)(3) complaint, which was filed three months after Farmer, but not his counsel, received 

TCIO’s determination that MSHA would not prosecute his complaint. For the following reasons, 

I find dismissal on the basis of untimeliness to be unwarranted. 

A. Justifiable Circumstances

On his 105(c)(2) discrimination complaint, Farmer listed counsel Petsonk’s name and 

address under Section E of MSHA Form 2000-123. Compl. Ex. 1, at 1. Section E of said form 

instructs: “If you desire that a copy of all correspondence addressed to you from MSHA be 

provided to a representative (e.g. Union representative, attorney, etc.) please give his/her name to 

the right.” Id. Although the record indicates that MSHA’s determination letter was sent to 

6

 Regarding material prejudice, the Commission has recognized that “[w]hile the 

expenditure of time and money involved in litigation should not be discounted, neither should it 

be overstated” and that more relevant examples of material legal prejudice include “tangible 

evidence that has since disappeared, faded memories, or missing witnesses.” Schulte v. Lizza 

Indus., Inc., 6 FMSHRC 8, 13 (Jan. 1984) (citing Herman, 4 FMSHRC at 2139). Moreover, 

“material legal prejudice means more than merely being required to defend a case that could 

have been avoided if failure to file on time were treated as a jurisdictional defect.” Farmer, 13 

FMSHRC at 1231 (citing Schulte, 6 FMSHRC at 13). Regardless, “any delay is a potentially 

serious matter.” Id. 

39 FMSHRC Page 1306
Complainant Farmer on December 16, 2016, it appears that a copy was not provided to Petsonk 

until March 21, 2017. When Petsonk asked MSHA about the status of the investigation and 

learned that MSHA had informed Complainant Farmer that it was not pursuing the matter, 

Petsonk asked why he had not been notified as Farmer’s counsel. Compl. Ex. 2, at 1-2. MSHA 

stated in an email reply to Petsonk that it was “[l]ikely just an oversight that a copy was not 

mailed to you the same day it was mailed to the complainant. Sorry for any inconvenience this 

may have caused.” Id. at 1.7

 

The Commission has ruled that a miner cannot file a 105(c)(3) discrimination complaint 

until they have received the Secretary’s determination that there is insufficient evidence that a 

violation has occurred. Gilbert v. Sandy Fork Mining Co., Inc. 9 FMSHRC 1327, 1336 (Aug. 

1987). Thus, the 105(c)(3) 30-day time period commences with notice of the Secretary’s 

determination. S. Rep. No. 95-181 at 37; Boswell, 14 FMSHRC at 257 (“The statute makes clear 

that the time for filing begins to run upon ‘notice’ of the Secretary's action.”); Keys, Jr. v. 

Reintjes of the South, Inc., 21 FMSHRC 1127, 1128 (Oct. 1999) (ALJ) (“the 30 day time period 

prescribed in section 105(c)(3) of the Act and Commission Rule 2700.412 commences with 

receipt of the determination, not the purported mailing date”) (footnote omitted). Absent any 

showing to the contrary, the record indicates that Petsonk first became aware that a 

determination letter had been issued on February 21, 2017, and first received a copy of said letter 

from MSHA on March 21, 2017. If March 21, 2017 is taken as the date of written notice to 

Complainant’s legal representative that MSHA was not pursuing Farmer’s complaint, then the 

complaint was timely filed within the requisite 30-day period. In any event, Farmer has made a 

good-cause showing that an inadvertent administrative oversight was a circumstance justifying 

Farmer’s delayed 105(c)(3) filing.8 

B. Seriousness of Delay

If proper notice of MSHA’s determination letter had been issued to Farmer’s counsel on 

December 16, 2016, the 30-day limit would have tolled on January 15, 2017, and Farmer’s 

subsequent filing on April 19, 2017 would constitute a delay of just over three months. While 

there is no absolute barometer for how far beyond the 30-day period a complaint can be filed 

before it is considered to constitute serious delay, it appears that a three-month delay under the 

instant circumstances is permissible. See Boswell, 14 FMSHRC at 257 (12-day delay de minimis

and resulting “at least in part, from mistake, inadvertence, or excusable neglect.”); Schulte, 6 

7

 MSHA’s Special Investigations Procedures Handbook similarly instructs that Section E 

“[s]hould be completed if Complainant desires copies of correspondence forwarded to another 

party.” MSHA Special Investigations Procedures Handbook PH05-I-4, Chapter 2-1, at 3 (2005). 

8

 It is unclear to what extent this oversight was exacerbated by Petsonk’s delay in 

following-up with MSHA. The record shows that Petsonk learned of the final determination 

letter via Bigley’s February 21, 2017 email. Petsonk waited 28 days after receipt of the email to 

respond. Petsonk contends that during this time he was “investigating the records and confirming 

that MSHA had not sent any notice of the Dec. 16, 2016 decision to the Complainant’s 

representative.” Farmer Resp. to Mot. to Dismiss 4. In these circumstances, I find that 

Complainant did not sleep on his rights. Farmer, 13 FMSHRC at 1230. 

39 FMSHRC Page 1307
FMSHRC at 13 (31-day delay excusable under the circumstances); see also Jones v. Dee Gold 

Mining Co., 9 FMSHRC 1631, 1634 (Sept. 1987) (ALJ) (five-month delayed filing excusable 

under the circumstances); Hale, 8 FMSHRC at 909 (Jun. 1986) (two-year delay attributable to 

Secretary’s delay excusable under the circumstances); Sinnott v. Jim Walter Resources, Inc., 16 

FMSHRC 2445, 2446 (1994) (ALJ) (denying three-year delay as extraordinarily late). 

C. Material Legal Prejudice

Although the Complainant bears the burden of demonstrating a good-cause showing of 

justifiable circumstances for a late filing, the operator bears the burden of demonstrating material 

legal prejudice. Schulte, 6 FMSHRC at 13. Here, Spartan alleges no material legal prejudice 

arising from Farmer’s delayed filing. 

V. Order

Complainant has made a good-cause showing of justifiable circumstances for his late 

filing. The length of delay for the late filing is negligible and resulted from an inadvertent 

administrative oversight by MSHA. Respondent Spartan has demonstrated no material legal 

prejudice from the delay. Accordingly, I DENY Spartan’s Motion to Dismiss, and GRANT 

Farmer’s request to withdraw his complaint against Alpha, thus rendering Alpha’s motion to 

dismiss as moot. 

/s/ Thomas P. McCarthy 

Thomas P. McCarthy 

Administrative Law Judge 

Distribution: 

Samuel K. Petsonk, Esq., Mountain State Justice, 1031 Quarrier Street, Ste. 200, Charleston, 

West Virginia, 25301 

Eric L. Silkwood, Esq., Hardy Pence PLLC, 500 Lee Street, East, Suite 701, Charleston, WV 

25301 

/cmc 

39 FMSHRC Page 1308
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 

June 21, 2017 

ORDER GRANTING MOTION FOR LEAVE TO FILE LATE PETITION 

ORDER DENYING MOTION TO DISMISS 

This docket contains one 104(d)(1) Citation No. 7030582 issued on October 21, 2014, to 

Consol Pennsylvania Coal Company, LLC (“Consol”) at its Harvey mine. Consol checked the 

appropriate block on MSHA Form 1000-179 contesting the citation, and notice of the contest 

was received by MSHA on June 10, 2015. Under Commission Procedural Rule 28, the filing of a 

Petition for the Assessment of Civil Penalty (“Petition”) was due within 45 days, or by July 25, 

2015. 29 C.F.R. § 2700.28. 

The Secretary of Labor’s (“Secretary”) Motion for Leave to File a Late Petition was filed 

on March 23, 2016; attached was the Secretary’s Petition. Incorporated by reference was a 

Memorandum in Support of Secretary’s Motion for Leave to File a Late Petition.1

 This 

memorandum included the declarations of two MSHA Coal District 2 employees, set forth

infra.

2

On April 1, 2017, Respondent filed a Response in Opposition to the Secretary’s Motion 

to File a Late Petition.3 On April 14, 2017, the Secretary filed a Motion to Accept the Secretary’s 

Reply to Respondent’s Response in Opposition to the Secretary’s Motion to Permit Late Filing, 

and also the Secretary’s Reply to Respondent’s Response in Opposition.4

 On April 20, 2017, 

1

 The Secretary’s memorandum will be abbreviated SMEM. 

2

 The Declaration of Susan Sikora is marked GX-1; the Declaration of Rebecca L. Kollar 

is marked GX-2. 

3

 The Respondent’s opposition will be abbreviated ROPP. 

4

 The Secretary’s reply will be abbreviated SREP. 

SECRETARY OF LABOR 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA), 

 Petitioner, 

v. 

CONSOL PENNSYLVANIA COAL 

COMPANY, LLC, 

 Respondent. 

 CIVIL PENALTY PROCEEDING 

 Docket No. PENN 2015-260 

A.C. No. 36-10045-382289

 Mine: Harvey Mine 

39 FMSHRC Page 1309
Respondent filed a Motion to Dismiss, which included, in the alternative, an Answer to the 

Petition.5

Contentions 

The Respondent argues it timely contested the citation, but the Petition was submitted 

more than 7 months after the date required by Rule 28. ROPP 3; RMD 3. It argues that the 

Secretary’s proffered reasons do not establish “adequate cause” for this delay, but instead 

demonstrate MSHA has failed to implement checks and balances necessary to protect the rights 

of operators. ROPP 3. In PBS Coals, Inc., 35 FMSHRC 1501 (May 2013)(ALJ), the filing 

procedures of MSHA Coal District 2 were examined and found to be minimally adequate; 

however, there is no indication District 2 has altered its procedure with checks and balances or 

back-up systems to ensure compliance with the rules. RMD 2-4. It contends that the Secretary’s 

justification is not “plausible” and the absence of system improvements is a “capricious” failure 

to comply with Rule 28 and grounds for default. ROPP 5; RMD 5. It concludes that the 

Secretary’s superficial explanation that a new employee failed to enter the contest into a tracking 

spreadsheet does not meet the minimum requirements for adequate cause for the delay. ROPP 

3,4. 

In addition, Consol argues that it has suffered real prejudice since the mine is idled and 

the availability of records may be affected. Employees have been transferred to other mines, and 

the miner who worked on the system at issue in the citation is no longer employed. With time, 

memories fade and evidence becomes stale. Respondent suggests that like PBS Coals, a hearing 

should be required to obtain more information on the issue of “adequate cause”. ROPP 4. 

The Secretary argues a clerical error caused the inadvertent failure of the Secretary to file 

a Petition until March 23, 2016. SMEM 1,2. This was due to an unusual oversight related to a 

change in administrative personnel, during the final week of employment of a short-term 

assistant in the District office; the notice of contest was not entered into a case tracking 

spreadsheet and was not mailed to the Solicitor’s office where the Petition would have been 

timely filed. SMEM 2, 3, 6; SREP 1, 2. The error was discovered by another assistant. When 

compared to the many matters transferred between District 2 and the offices of MSHA and the 

Solicitor since 2006, the oversight was a rare occurrence and not indicative of a systemic 

breakdown in filing procedures. SMEM 2, 3; SREP 2. There is no evidence to suggest this was 

anything but an inadvertent oversight exacerbated by the departure of an employee. SMEM 3. 

In addition, the Secretary notes that it is well settled the filing time deadlines are not 

jurisdictional, and out-of-time Petitions may be filed if an adequate cause for the delay can be 

shown. SMEM 4. Further, Respondent has failed to show actual prejudice arising from the delay, 

claiming essentially that records and people may not be readily available; however, Respondent 

is responsible for the preservation of relevant notes and the preparation of a defense. SREP 2,3. 

Even if the mine operator can establish actual prejudice, the public interest in enforcement of the 

Mine Act is paramount to strict procedural regularity. SMEM 4,7; SREP 4. 

5

 The Respondent’s Motion to Dismiss will be abbreviated RMD.

39 FMSHRC Page 1310
Legal Principles 

Section 105(a) of the Mine Act provides: 

If, after an inspection or investigation, the Secretary issues a citation or order 

under section 104, he shall, within a reasonable time after the termination of such 

inspection or investigation, notify the operator...of the civil penalty proposed to 

be assessed... 

30 U.S.C. § 815(a). 

If a timely notice of contest is filed, section 105(d) provides: 

The Secretary shall immediately advise the Commission of such notification, and 

the Commission shall afford an opportunity for a hearing.... 

30 U.S.C. § 815(d). 

Commission Procedural Rule 28 provides: 

Within 45 days of receipt of a timely contest of a proposed penalty assessment, 

the Secretary shall file with the Commission a petition for assessment of penalty. 

29 C.F.R. § 2700.28(a). 

The legislative history of the Mine Act reveals the express intent of Congress that “there 

may be circumstances, although rare, when prompt proposal of a penalty may not be possible, 

and the Committee does not expect that the failure to propose a penalty with promptness shall 

vitiate any proposed penalty proceeding.” S. Rep. No. 95-181, 95th Cong., 1st Sess. at 34 (1977), 

reprinted in Senate Subcommittee on Labor, Comm. on Human Resources., 95th Cong., 2nd Sess., 

Legislative History of the Federal Mine Safety and Health Act of 1977, at 622 (1978). 

 In Twentymile Coal Company, 411 F. 3d 256 (2005), the D.C. Circuit Court held that an 

11-month delay between an investigation report and the issuance of a proposed penalty

assessment was not unreasonable. Two Supreme Court cases were cited, Brock v. Pierce County,

476 U.S. 253 (1986) and Barnhart v. Peabody Coal Co., 537 U.S. 149 (2003). In Brock, the

Supreme Court warned that it “would be most reluctant to conclude that every failure of an

agency to observe a procedural requirement voids subsequent agency action, especially when

important public rights are at stake.” Id. at 260, and concluded that the statutory time provision

in that case “was clearly intended to spur the Secretary to action, not to limit the scope of his

authority. Congress intended that the Secretary should have maximum authority to protect the

integrity of the program.” Id. at 265. In Barnhart the Supreme Court noted that not “since Brock

have we ever construed a provision that the Government ‘shall’ act within a specified time,

without more, as a jurisdictional limit precluding action later.” Id. at 158.

39 FMSHRC Page 1311
In 1981 the Commission considered a proposed penalty filed about 2 months after the 

date it was due. Salt Lake County Road Department, 3 FMSHRC 1714 (July 1981). Referring to 

the legislative history, it was determined that the overriding concern was with enforcement, and 

the Commission’s Rule did not create a “statute” of limitations or procedural “strait jackets.” Id.

at 1715, 1716. The Commission held that upon seeking permission to file late, the request must 

be predicated upon adequate cause. However, the Commission also held that an operator may 

object to a late penalty proposal on the grounds of prejudice. Id. at 1716. 

The Commission has clarified that “adequate cause” will not be found to exist unless a 

non-frivolous explanation for the delay is provided. The Secretary’s excuse may not be facially 

implausible, and the delay must not result from “mere caprice” or through willful delay, 

intentional misconduct, or bad faith. Should the Secretary meet the burden of showing adequate 

cause, the Commission further explained: 

[A]n operator must show at least some actual prejudice arising from the delay in

order to secure a dismissal of a penalty proceeding due to a late-filed petition.

Mere allegations of potential prejudice or inherent prejudice should be rejected.

Of course, occasions may arise where a judge will find that the Secretary has

demonstrated adequate cause and that the operator has brought forth evidence of

actual prejudice. The judge in such instances must weigh the interest of fairness to

the operator against the public interest in upholding the enforcement purpose

inherent in section 105(d).

Long Branch Energy, 34 FMSHRC 1984, 1991 (Aug. 2012). 

Therefore, the burden shifts to the operator to establish actual prejudice. The prejudice 

must be “real” or “substantial”, and demonstrated by a specific showing by the operator. Id., at 

1993. There must be more than “inherent prejudice” or mere “danger of prejudice”. Webster

County Coal, LLC, 34 FMSHRC 1946, 1951 (Aug. 2012), citing Long Branch. 

The Declarations 

In pertinent part, the Declaration of Susan Sikora is as follows: 

1. I am currently employed by the U.S. Department of Labor, Mine Safety and

Health Administration (“MSHA”), as a Coal Mine Safety and Health

Assistant (“CMS&H Assistant”) a position I have held since September 22,

2015.

2. The Coal District 2 CMS&H Assistant is responsible for keeping track of and

carrying out all of the administrative tasks executed by the Conference and

Litigation Representatives (“CLR’s”) of Coal District 2. These tasks include

processing new civil penalty contests and keeping track of important case

filing deadlines, such as the due dates of civil penalty petitions and mailing

cases to the Philadelphia Office of the Regional Solicitor (“Solicitor’s

Office”).

39 FMSHRC Page 1312
3. I am familiar with MSHA’s civil penalty assessment process and the

procedures of civil penalty proceedings before the Commission.

4. Coal District 2 typically receives an automated e-mail from MSHA’s internal

citation and case tracking software that a matter has been docketed at the

Federal Mine Safety and Health Review Commission (“FMSHRC”). This email alerts the CMS&H Assistant that a contest has been filed and whether a

CLR or the Solicitor’s Office will handle the matter. In either case, the

CMS&H Assistant enters the docket number on an Excel spreadsheet.

5. As a CMS&H Assistant I am responsible for implementing a system to

manage and track the various cases that came into the office. At Coal District

2 we use an Excel Spreadsheet to organize and maintain information about

cases including petition deadlines. This Spreadsheet automatically calculates

the petition’s due date. If a case is to be transferred to the Solicitor’s Office,

then the matter is entered in the spreadsheet. The procedure is for the case to

be removed from the spreadsheet once a return receipt is e-mailed from

United Parcel Services (“UPS”) indicating that the package transmitting the

case has been delivered.

6. Ms. Neiderheiser was employed as a CMS&H Assistant from on or about

March 23, 2015 to on or about July 23, 2015.

7. I was told by former CMS&H Rebecca Kollar that Docket PENN 2015-266,

an unrelated which originated in Coal District 2, was not received or sent to

the Solicitor’s Office sometime in July 2015 during Ms. Neiderheiser’s final

week of employment as a CMS&H Assistant.

8. Since the Petition had not been filed timely for Docket No. PENN 2015-266, I

decided to run a report for all cases transferred to the Solicitor’s Office on or

about the time Ms. Neiderheiser left her employment with MSHA to ensure

that no other cases were similarly lost. During my search I discovered that

Docket PENN 2015-260 had not been designated to the Solicitor’s Office at

that time.

9. On or about March 10, 2016, I contacted the Solicitor’s Office regarding

Docket No. PENN 2015-260. The Solicitor’s Office stated that it had never

received the case. Since Ms. Neiderheiser’s last date of employment with

MSHA was July 23, 2015, I could not get her input as to what may have

happened with Docket No. PENN 2015-260.

10. I also reviewed the Excel spreadsheet and determined that Docket No. PENN

2015-260 was not included on this list. I searched through our e-mailed

receipts and could not find an e-mail receipt from UPS showing that the case

had been mailed to the Solicitor’s Office. As a result of my review, I found no

evidence that the case was ever sent to the Solicitor’s Office or that a civil

penalty petition was filed by Coal District 2.

11. Because the file for PENN 2015-260 could not be located, our office created a

new case file for the docket. The new case file was mailed to the Philadelphia

Solicitor’s Office for litigation.

GX-1 

39 FMSHRC Page 1313
In pertinent part, the Declaration of Rebecca L. Kollar is as follows: 

1. I am currently employed by the U.S. Department of Labor, Mine Safety and

Health Administration (“MSHA”), as Secretary to the Assistant District

Manager at the MSHA Coal District 2 (“Coal District 2”). I joined MSHA on

October 15, 2006, when I was hired as a Coal Mine Safety and Health

Assistant (“CMS&H Assistant”).

2. On December 14, 2014, I was promoted to my current position. On or about

March 23, 2015, April Neiderhiser was hired to replace me as a CMS&H

Assistant. Ms. Neiderhiser was in this role until on or about July 23, 2015,

when she resigned. I trained Ms. Neiderhiser as a CMS&H Assistant.

3. I am familiar with MSHA’s civil penalty assessment process and the

procedures of civil penalty proceedings before the Commission.

4. Coal District 2 typically receives an automated e-mail from MSHA’s internal

citation and case tracking software that a matter has been docketed at the

Federal Mine Safety and Health Review Commission (“FMSHRC”). This email alerts the CMS&H Assistant that a contest has been filed and whether a

CLR or the Solicitor’s Office will handle the matter. In either case, the

CMS&H Assistant enters the docket number on an Excel spreadsheet.

5. I developed an Excel Spreadsheet to organize and maintain information about

cases including petition deadlines. This spreadsheet automatically calculates

the petition’s due date. If a case is to be transferred to the Solicitor’s Office,

then the matter is entered in the spreadsheet. The procedure is for the case to

be removed from the spreadsheet once a return receipt is e-mailed from

United Parcel Services (“UPS”) indicating that the package transmitting the

case has been delivered.

6. I trained Ms. Neiderheiser how to populate the Excel spreadsheet, keep track

of cases, file petitions, and mail cases to the Solicitor’s Office.

7. On or about March 10, 2016, CMS&H Susan Sikora told me that she spoke to

Regional Counsel Gayle Green regarding the status of Docket PENN 2015-

260. The Solicitor’s Office stated it never received the case. Ms. Sikora also

informed me that she reviewed the Exel spreadsheet and could not locate the

Petition for the Docket.

GX-2 

Analysis 

Adequate Cause

A short term employee, whose tenure at MSHA lasted only about 3 months, just before 

leaving the job apparently failed to respond to an automated e-mail from MSHA’s tracking 

software that this case had been docketed at the Commission. What is known is that this docket 

was not entered into the Excel spreadsheet at Coal District 2, and this case was not mailed to the 

Solicitor’s Office in order for a timely Petition to be filed. The Secretary contends this was a 

clerical error, an unusual oversight that occurred at the time of a change in personnel. Initially, I 

39 FMSHRC Page 1314
note that the record does not suggest bad faith, intentional misconduct, or that the resulting delay 

was willful in nature. Long Branch, at 1991. Rather, the Secretary’s characterization of the 

failure as inadvertent appears accurate. Id. 

Respondent contends the Secretary’s justification is not plausible and the explanation is 

superficial and does not meet the minimum requirements for “adequate cause”. But the 

explanation provided is “non-frivolous.” Id. Even if the employee had not been in the process of 

leaving the job, this was nothing more than simple error; either a missed e-mail resulting in no 

further processing, or if not missed, the inadvertent oversight of not entering the docket into the 

Excel spreadsheet and the further oversight of not mailing the case to the Solicitor’s office. 

Under these circumstances the excuse is “facially plausible.” Id. 

Respondent makes much of the allegation that the failure of the Secretary to implement 

“checks and balances” amounts to “caprice”. Referring to PBS Coals and Long Branch, the 

argument is essentially that the lack of improvements, safeguards and/or back-up systems is 

evidence of “mere caprice”. However, neither case supports the allegation that such “checks and 

balances” must be implemented to protect operators. Nor does the record show that in designing 

and implementing the case tracking spreadsheet the District office personnel acted impulsively, 

on a whim or in dereliction of duties, but rather as discussed in PBS Coals, the system was 

intended to meet the need to handle a heavy caseload. PBS Coals, at 1516-17. That the system is 

not infallible is not controlling. As the Commission has observed, “dedicated public servants 

may stumble in the performance of their duties” Long Branch, at 1991. Further, that over about a 

ten year period with many transfers between entities a handful of cases might “slip through the 

cracks” or get “lost in the shuffle” hardly suggests a compelling reason for change, much less the 

dismissal of an enforcement proceeding. I would also observe it is not the function of the 

Commission to tell the Secretary how to administer his case tracking procedures. 

I find there was adequate cause for the delay. 

Actual Prejudice 

Respondent argues it has suffered real prejudice. With the passage of time memories do 

fade, witnesses can become unavailable, and evidence may be lost or destroyed. But this is true 

in any long-delayed case and without information that the events have actually happened and 

will have a significant effect on the presentation of the case this presents only “inherent” 

prejudice. Randy Howell, 20 FMSHRC 556, 558-9 (May 1998) (ALJ). Where, as here, a mine

has been idled, and employees have been transferred to other mines, there could be difficulties 

locating records and miner witnesses. However, there is no demonstration of an unavailability of 

witnesses or loss of records with supporting reasons given. See, PBS Coals at 1519. 

Even where an important witness has left employment at the mine and will need to be 

found, the possible difficulty in contacting that person presents only potential prejudice. Indeed, 

just how this possible difficulty would prejudice Respondent is not explained. Steve B. Rees, 37 

FMSHRC 1852, 1855 (Aug. 2015) (ALJ); Randy Howell, at 558, 559. Respondent must cite 

specific instances and provide specific facts to support difficulties locating evidence or a witness. 

Dino Trujillo, 35 FMSHRC 1485, 1487 (May 2013) (ALJ). 

39 FMSHRC Page 1315
I find actual prejudice has not been shown. 

Only where both parties carry their respective burdens is there a requirement to balance 

the public and private interests at stake. Long Branch, at 1996. Assuming, Arguendo, that 

prejudice had been shown, resolving competing interests requires consideration of a number of 

factors, including the length of the delay, the type of alleged violation and whether designated 

S&S or UWF, whether an accident was involved, or injury or death, and the number of persons 

potentially affected. See, PBS Coals, at 1521. Here, the Inspector issued a citation when he found 

that a system used to track miners had failed to operate in a section of the mine for several days. 

The Inspector designated the gravity as S&S, and determined that injury was highly likely and 

could be expected to be fatal to 35 persons. The alleged violation was also found to be UWF. If 

proven as written, this would be a very serious matter, suggesting a compelling interest in 

enforcement of the Mine Act Provisions. The delay of almost 8 months is significant, but not 

protracted. The balancing of interests is in favor of allowing the out-of-time filing of the Petition. 

I find the public interest in enforcement of the health and safety standards under the Mine Act 

outweighs the harm to the parties caused by the delay. 

The Secretary of Labor’s Petition for the Assessment of Civil Penalty is of record. 

The Respondent’s Answer to Petition is also of record. 

WHEREFORE, the Secretary’s Motion for Leave to File Late Petition is GRANTED; 

Respondent’s Motion to Dismiss is DENIED. 

/s/ Kenneth R. Andrews 

Kenneth R. Andrews 

Administrative Law Judge 

Distribution: (First Class Mail) 

Jennifer L. Gold, Esq., Office of the Solicitor, U.S. Department of Labor, The Curtis Center, 170 

S. Independence Mall West, Suite 630E, Philadelphia, PA 19106

James P. McHugh, Esq., Hardy Pence, PLLC, 500 Lee Street, East, Suite 701, Charleston, WV 

25301 

39 FMSHRC Page 1316
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N 

WASHINGTON, DC 20004-1710 

PHONE: (202) 434-9933 | FAX: (202) 434-9949 

June 28, 2017 

SECRETARY OF LABOR CIVIL PENALTY PROCEEDING 

 MINE SAFETY AND HEALTH 

 ADMINISTRATION (MSHA) Docket No. WEVA 2017-0158 

Petitioner, A.C. No. 46-07809-426807

 v. 

 Mine: Kiah Creek Preparation 

ARGUS ENERGY WV, LLC, 

Respondent. Judge Moran 

ORDER DENYING SETTLEMENT MOTION 

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

1977, 30 U.S.C. § 801 et seq. (2012) (“Mine Act” or “Act”). Before the Court is the Secretary of 

Labor’s Motion to approve settlement (“Motion”). If there was any doubt that the Secretary 

continues to seek an emasculated construction of section 110(k) of the Mine Act, neutering the 

Commission’s role, this submission makes the intention clear. Despite the clear language of 

Section 110(k) that “[n]o proposed penalty which has been contested before the Commission 

under section 815(a) of this title shall be compromised, mitigated, or settled except with the 

approval of the Commission,” the Secretary continues his effort to thwart the statutory language 

and Congress’ expressed intent regarding the provision. Accordingly, the Motion must be 

DENIED. As the Secretary continues to balk at compliance with the statutory provision, this 

case is to be set for a prompt hearing. 

A single citation is involved in this docket. The standard cited, 30 C.F.R. § 77.1606(a), 

titled, “Loading and haulage equipment; inspection and maintenance,” provides at subsection (a), 

“Mobile loading and haulage equipment shall be inspected by a competent person before such 

equipment is placed in operation. Equipment defects affecting safety shall be recorded and 

reported to the mine operator.” 30 C.F.R. § 77.1606(a). 

The issuing inspector’s 104(a) citation stated, “[t]he spot mirror was busted out on the 

Komatsu HD 785 Haulage Truck, No. 137. Equipment defects affecting safety shall be recorded 

and reported to the mine operator. There was no pre-operational record completed and reported 

to the mine operator on this date for this piece of mobile equipment. This truck was being 

operated to haul overburden on mine property.” Citation No. 8128099. The inspector marked the 

citation as S&S, with the gravity of the injury as “reasonably likely,” the injury reasonably 

expected to be fatal, affecting 1 (one) person, with moderate negligence.1 Id. The citation was 

assessed at $666.00. Secretary’s Petition, Exhibit A. Thus, while the broken mirror triggered the

1

 The violation was abated upon installation of a new spot mirror. 

39 FMSHRC Page 1317
inspector’s inquiry, it was the failure to conduct the pre-operational inspection and to record the 

defect which is the gravamen of the citation. 

The Secretary’s Motion. 

Oddly, though the Motion presented by the Secretary is described as being submitted, 

“[p]ursuant to Section 110(k) of the Federal Mine Safety and Health Act of 1977 (“Mine Act”) 

and Commission Procedural Rule 31” Motion at 1 (emphasis added), the Court finds that the 

submission is not pursuant2 to that section, as it is not in accordance with its plain terms. 

Instead, the Secretary informs that “[r]epresentatives for the Secretary and Respondent 

have discussed the alleged violation and MSHA’s proposed penalty, and have agreed to settle the 

contested citation and penalty in the above-captioned docket as follows: Citation No. 8128099 

shall be modified to delete the significant and substantial (“S&S”) finding, change the gravity 

designation from reasonably likely to unlikely and reduce the penalty from $666.00 to $532.00.” 

Motion at 1-2. The settlement represents a 20% reduction from the proposed penalty. The 

$666.00 figure was derived after applying a 10% reduction for good faith.3 

The Secretary then announces that he 

has evaluated the value of the compromise, the likelihood of obtaining a better 

settlement, and the prospects of coming out better or worse after a trial. In 

deciding that such a compromise is appropriate, the Secretary has not given 

weight to the costs of going to trial as compared to the possible monetary results 

that would flow from securing a higher penalty. He has, however, considered the 

fact that he is maximizing his prosecutorial impact in settling this case on 

appropriate terms and in litigating other cases in which settlement is not 

appropriate. The Secretary believes that maximizing his prosecutorial impact in 

such a manner serves a valid enforcement purpose. Even if the Secretary were to 

substantially prevail at trial, and to obtain a monetary judgment similar to or even 

exceeding the amount of the settlement, it would not necessarily be a better 

outcome from the enforcement perspective than the settlement, in which the 

alleged violation is resolved and can be used as a basis for future enforcement 

                                                             2

 “Pursuant” is defined as “in accordance with.” Webster’s New World College 

Dictionary 4th ed. 1166; “‘pursuant’ means in conformity to,” Brotherhood of Ry and S.S. 

Clerks, Freight Handlers, Exp.& Station Emp. v. Railway Express Agency, Inc., 238 F.2d 181, 

(6th Cir. 1956). 

 

3

 30 C.F.R. §100.3(f) affords a “10% reduction in the penalty amount of a regular 

assessment where the operator abates the violation within the time set by the inspector.” 

39 FMSHRC Page 1318
actions.4

 A resolution of this matter in which the violation is resolved is of 

significant value to the Secretary and advances the purposes of the Act. 

Motion at 2. 

The Motion continues that “[t]o assist the Commission in evaluating the appropriateness 

of the settlement under Section 110(i), the Secretary presents the following information in 

support of the penalty agreed to by the parties.” Id. As the following “information” from the 

Secretary reveals, all that is presented by the Secretary is his conclusion that the “S&S and 

gravity determinations in the citation at issue shall be modified as discussed above.” Id.

(emphasis added). 

That “discussion above” from the Secretary is free of any facts pertaining to the violation 

itself. Instead, it rests upon the Secretary’s odds-making, upon his evaluation of “the value of the 

compromise, the likelihood of obtaining a better settlement and the prospects of coming out 

better or worse after a trial.” Id. 

The Commission’s function, so says the Secretary, is limited to “whether the agreed-upon 

penalty amount is consistent with the agreed-upon substantive modification.” Motion at 2-3. 

Thus, the Secretary pronounces that he “has determined that the S&S and gravity determinations 

in the citation at issue shall be modified as discussed above. Substantive modifications to 

citations and orders, including the S&S designation, are within the prosecutorial discretion of the 

Secretary. Mechanicsville Concrete Inc., 18 FMSHRC 877 (1996)” The Commission’s review of 

settlement proposals involving such substantive modifications is limited to whether the agreedupon penalty amount is consistent with the agreed-upon substantive modification. Here, a 

$134.00 reduction in the penalty from $666.00 to $532.00 is appropriate and supported by the 

reduction in the gravity findings.” Motion at 2-3 (emphasis added). In the Court’s estimation, the 

Secretary improperly conflates his presently existing prosecutorial discretion to vacate citations 

                                                             4

 Even this non-informative basis is incorrect. The Secretary spins the tale that, even if he 

were to win at a hearing and even if the civil penalty was similar to the settlement, or the penalty 

was even greater, “it would not necessarily be a better outcome from the enforcement 

perspective than the settlement, in which the alleged violation is resolved and can be used as a 

basis for future enforcement actions.” Motion at 2 (emphasis added). However, the Motion itself 

seems to refute the notion that this settlement can be used as a basis for future enforcement 

actions, as the settlement terms provide, “[e]xcept for proceedings under the Act, Respondent 

contends that nothing contained herein is intended to be deemed an admission of a violation of 

the Act or regulations.” Settlement Motion at 3. 

39 FMSHRC Page 1319
without any explanation with the claim that the information supplied in settlements is also 

entirely within his discretion.” (“Mechanicsville”).5

 

Discussion 

While it should be obvious that the Secretary elected to supplant CLR Trent as his 

representative with a Regional Counsel because the relatively small penalty involved makes it a 

superficially attractive vehicle to assert its broad claim of settlement authority, the subject of 

section 110(k) is not solely about money. Congress’ overarching concern was about the safety 

and health of miners. The Commission took note of this as well in its American Coal decision, 

wherein it observed, “a settlement agreement involving violations of mandatory safety standards 

affects all miners working in the cited mine. Thus, the miners may be likened to a class affected 

by a settlement.” American Coal at 1984. Here, the Secretary’s Motion says not a word about the 

health or safety of the mining industry’s “most precious resource – the miner.” 30 U.S.C. § 

801(a). 

Further, even on the subject of the civil penalty amount itself, on numerous occasions, 

this Court has expressed that the amount of information it requires in support of a reduced 

penalty is proportional to the percentage reduction of that penalty. Significant reductions require 

more supporting facts than modest reductions. But, in either scenario, the facts are to be tied to 

the considerations identified in the gravity and negligence sections of the citation or one of the 

other statutory penalty factors that the Commission has the authority to assess, as identified in 

section 110(i) of the Act. 

 The Commission, both in its Black Beauty and American Coal decisions has made this 

quite clear. As it noted in American Coal, which also referenced its decision in Black Beauty, 6 

the legislative history of section 110(k) reveals that Congress authorized the 

Commission to approve the settlement of contested civil penalties in order to 

                                                             5

 The Secretary employs an expansive reading to the Mechanicsville decision and this 

Court does not believe it is on point. First, that case went to hearing; it was not a settlement. As 

the issuing inspector never marked the violation as S&S, the issue was whether the judge could 

find an S&S violation sua sponte. The Commission’s decision was limited to that issue, holding, 

“we conclude that the judge lacked authority to find, sua sponte, that Mechanicsville’s violation 

was S&S and we reverse the judge’s conclusion that the violation was S&S.” Mechanicsville at 

882. However, the Commission affirmed “the judge’s assessment of a $200 civil penalty.” Id. It 

also noted that “[i]n contested civil penalty cases, the Mine Act requires that the Commission 

make an independent penalty assessment based on the statutory criteria of section 110(i) of the 

Act, 30 U.S.C. § 820(i).” Sellersburg Stone Co., 5 FMSHRC 287, 291 (March 1983), aff’d, 736 

F.2d 1147, 1152 (7th Cir. 1984). The Commission has explained that “[t]he determination of the 

amount of the penalty that should be assessed for a particular violation is an exercise of 

discretion by the trier of fact. This discretion is bounded by proper consideration of the statutory 

criteria and the deterrent purpose underlying the Act’s penalty assessment scheme.” Id. at 881 

(internal citation omitted). 

6 Black Beauty Coal Co., 34 FMSHRC 1856, 1862 (Aug. 2012). 

39 FMSHRC Page 1320
ensure that penalties serve as an effective enforcement tool, prevent abuse, and 

preserve the public interest.7

 34 FMSHRC at 1862. The Commission and its 

Judges must have information sufficient to carry out this responsibility. 

Consequently, through its procedural rules, the Commission has required parties 

to submit facts supporting a penalty amount agreed to in settlement. In particular, 

Commission Procedural Rule 31 requires that a motion to approve penalty 

settlement must include for each violation the penalty proposed by the Secretary, 

the amount of the penalty agreed to in settlement, and facts in support of the 

penalty agreed to by the parties. 29 C.F.R. § 2700.31(b)(1). Rule 31 also requires 

that “[a]ny order by the Judge approving settlement shall set forth the reasons for 

approval and shall be supported by the record.” 29 C.F.R. § 2700.31(g). The 

requirements to provide factual support in the settlement proposal and for the 

Judge’s decision approving settlement to be supported by the record have been 

largely unchanged since the inception of the Commission’s procedural rules in 

1979. 

The American Coal Company, 38 FMSHRC 1972, 1981 (Aug. 2016) 

The Secretary’s self-aggrandizement of power regarding settlements, despite Congress’ 

clear statement that no proposed penalty which has been contested before the Commission shall 

be compromised, mitigated, or settled except with the approval of the Commission, should not 

come as a surprise.8 

The essential problems with the Secretary’s claim, if accepted, are twofold. First, it 

would render the statutory provision and the legislative history for section 110(k) nugatory. 

Second, in each instance, the Secretary could present such boilerplate language, untethered 

to any facts in support of a reduced likelihood of injury or illness, the nature of the 

expected injury, the number of persons affected or the degree of negligence. 

                                                             7

 The Commission, in American Coal, noted that “[t]he Secretary downplays the 

significance of the legislative history. . . . However, Congress chose to explain the purpose of 

section 110(k) and the Commission’s role in approving settlements in unusually specific terms. 

That legislative history cannot be ignored simply because of the passage of time or because it 

may be convenient for the Secretary to do so.” 38 FMSHRC at 1986, n 5. 

8

 The Secretary, it will be recalled, previously attempted an overreach in another matter, 

taking the position that he need not announce the basis for a claimed pattern of violations until 

after the conclusion of a hearing on such a charge. Sec. v. Brody Mining LLC, 37 FMSHRC 

1914, 1928-29 (Sept. 2015). 

39 FMSHRC Page 1321
Accordingly, for the foregoing reasons, and though the Secretary may believe he knows 

best in terms of the information needed for settlement approvals, Congress has determined 

otherwise by virtue of section 110(k). The Secretary may either submit an appropriately based 

settlement or prepare for a hearing. 

SO ORDERED. 

 /s/ William B. Moran 

William B. Moran 

Administrative Law Judge 

Distribution:

Robert S. Wilson, Esq., U.S. Department of Labor, 201 12th Street South, Suite 401, Arlington, 

VA 22202-5450, wilson.robert.s@dol.gov

David C. Trent, CLR, U.S. Department of Labor, MSHA, 4499 Appalachian Highway, Pineville, 

WV 24874 

Tiffany Fannin, Esq., 2408 Sir Barton Way, Suite 325, Lexington, KY40509, tiffany@czarky.net

39 FMSHRC Page 1322