NOVEMBER AND DECEMBER2010 

COMMISSION DECISIONS AND ORDERS 

11-10-2010 Pinky's Aggregates, Inc. 

11-16-2010 Culp & Son, LP 

11-16-2010 Parker-Northwest Paving Co. 

11-22-2010 Giant Cement Holding Company 

11-24-2010 Washington Rock Quarries, Inc. 

11-24-2010 Lamb Rock 

11-24-2010 Custom Crushing Industries, Inc. 

11-26-2010 Coal Country Mining, Inc. 

12-01-2010 Pacific Power & Light Company 

12-01-2010 Rockspring Development 

12-02-2010 Freedom Energy Mining Company 

12-03-2010 Larry D. Baumgardner Coal Co. 

12-03-2010 Sandpoint Sand & Gravel, Inc. 

12-10-2010 Elk Run Coal Company 

12-14-2010 Mosaic Potash Carlsbad Inc. 

12-14-2010 Dodge Hill Mining Company, LLC. 

12-14-2010 Dittrich Mechanical & Fabrication, Inc. 

12-14-2010 Appalachian Stone Company 

12-14-2010 D & H Quarry, Inc. 

12-14-2010 Quality Sand & Gravel 

12-14-2010 DMC Mining Services 

12-14-2010 Elk Run Coal Company 

12-15-2010 East Tennessee Zinc Company 

12-15-2010 B & W Resources, Inc. 

12-16-2010 B & S Trucking Company, Inc. 

12-16-2010 Aracoma Coal Company- order 

12-16-2010 Aracoma Coal Company-Amended decision 

12-17-2010 Highland Mining Company 

12-17-2010 · Highland Mining Company . 

12-22-2010 Wolf Run Mining Company 

12-29-2010 Long Branch Energy· 

1 

CENT 2009-848-M 

CENT 2011-16-M 

WEST 2010-1074-M 

SE 2009-65-M 

WEST 2010-1706-M 

WEST 2011-97-M 

WEST 2011-98-M 

WEVA 2010-918 

WEST 2010-1625-M 

WEV A 2010-865 

KENT 2010-174 

PENN 2010-355 

WEST 2010-766-M 

WEV A 2009-1738 

CENT 2010-1226-M 

KENT 2010-197 

LAKE 2010-407-M 

SE 2010-852-M 

SE 2010-1223-M 

WEST 2010-1646-M 

WEST 2010-1888-M 

WEVA 2009-511 

SE 2001-177-M 

KENT 2010-1080 

KENT 2011-161 

WEV A 2006-654 

WEV A 2006-654 

WEV A 2009-688 

WEV A 2009-689 

WEV A 2006-853 

WEVA2010-992 

Pg. 1543 

Pg. 1547 

Pg. 1550 

Pg. 1554 

Pg. 1557 

Pg. 1560 

Pg. 1563 

Pg. 1566 

Pg. 1570 

Pg. 1573 

Pg. 1577 

Pg. 1581 

Pg. 1584 

Pg. 1587 

Pg. 1592 

Pg. 1595 

Pg. 1599 

Pg. 1604 

Pg. 1607 

Pg. 1611 

Pg. 1615 

Pg. 1618 

Pg. 1622 

Pg. 1627 

Pg. 1631 

Pg. 1634 

Pg. 1639 

Pg. 1659 

Pg. 1664 

Pg. 1669 

Pg. 1690 

ADMINISTRATNE LAW JUDGE DECISIONS 

11-03-2010 

11-08-2010 

11-08-2010 

11-12-2010 

11-17-2010 

11-18-2010 

11-18-2010 

11-19-2010 

11-19-2010 

11-22-2010 

12-02-2010 

12-08-2010 

12-10-2010 

12-16-2010 

12-16-2010 

12-23-2010 

12-27-2010 

12-29-2010 

U.S. Silica Company 

William Metz v. Carmeuse Lime, Inc. 

Newtown Energy, Inc. 

Caballo Coal Company, LLC. 

Knight Hawk Coal, LLC. 

Jeppesen Gravel 

Oil-Dri Production Company 

Dix River Stone, Inc. 

Granite Rock Company 

Performance Coal Company 

Freedom Energy Mining Company 

LaFarge Midwest, Inc. 

Cargill Deicing Technology 

Highland Mining Company 

Sec. Labor o/b/o Okey Sartin v. 

Kiah Creek Transport, LLC. 

Clintwood Elkhorn Mining Company 

Cemex, Inc. 

Black Beauty Coal Company 

ADMINISTRATIVE LAW JUDGE ORDERS 

11-24-2010 Marfork Coal Company 

12-08-2010 Charles Scott Howard v. 

Gumberland River Coal Company 

ii 

SE 2009-712-M 

PENN 2009-541-DM 

WEV A 2009-173 

WEST 2009-536 

LAKE 2009-523 

CENT 2009-438-M 

SE 2009-293-M 

KENT 2009-397-M 

WEST 2008-979-M 

WEV A 2008-1825 

KENT 2007-433-R 

CENT 2009-344-M 

LAKE 2009-675-M 

KENT 2008-1083 

WEVA 2010-1004-D 

KENT 2011-53-R 

KENT 2008-1592-M 

LAKE 2009-36 

Pg. 1699 

Pg. 1710 

Pg. 1730 

Pg. 1736 

Pg. 1745 

Pg. 1749 

Pg. 1761 

Pg. 1779 

Pg. 1792 

Pg. 1797 

Pg. 1809 

Pg. 1832 

Pg. 1848 

Pg. 1859 

Pg. 1868 

Pg. 1880 

Pg. 1897 

Pg. 1905 

WEVA2009-1421 Pg. 1919 

KENT 2008-736-D Pg. 1923 

NOVEMBER AND DECEMBER 2010 

Review was granted in the following cases during the months ofNovember and December 2010: 

Secretary of Labor, MSHA v. Mach Mining, LLC., Docket No. LAKE 2009-324-R. (Judge 

Weisberger, September 27, 2010) 

Secretary of Labor, MSHA v. American Coal Company, Docket No. LAKE 2010-408-R. (Judge 

Weisberger, September 28, 2010) 

Secretary of Labor, MSHA v. Twentymile Coal Company, Docket No. WEST 2008-788-R. 

(Judge Manning, October 18, 2010) 

William Metz v. Carmeuse Lime, Inc., Docket No. PENN 2009-541-M. (Judge Feldman, 

November 8, 2010) 

Secretary of Labor, MSHA v. Performance Coal Company, Docket No. WEVA 2008-1825. 

(Judge Barbour, November 22, 2010) 

Review was denied in the following cases during the months November and December 2010. 

Justin Nagel v. Newmont USA, Limited, Docket No. WEST 2010-464-DM. This order is 

published following the Commission Orders in this volume. 

Secretary of Labor, MSHA v. Kingwood Mining Company, Docket No. WEV A 2009-210. 

(Interlocutory Review of Judge Bulluck' s unpublished August 10, 2010 order.) 

iii 

COMMISSION DECISIONS AND ORDERS 
.. 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRET ARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

PINKY'S AGGREGATES, INC. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

November 10, 2010 

Docket No. CENT 2009-848-M 

A.C. No. 32-00793-188600 

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

ORDER 

BY: Young, Cohen, and Nakamura, Commissioners 

On September 22, 2009, the Commission received from Pinky's Aggregates, Inc. ("PA") 

a letter seeking to reopen Proposed Assessment No. 000188600, which proposed civil penalties 

for three citations in the sum of $463. The proposed penalty assessment had become a final 

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

the operator had failed to contest the proposed assessment within 30 days after receiving it. On 

January 12, 2019, the Commission denied the motion without prejudice on the basis that PA had 

not provided a sufficiently detailed explanation for its failure to timely contest the proposed 

penalties. Pinky's Aggregates, Inc., 32 FMSHRC 1, 3 (Jan. 2010). On January 27, the 

Commission received a second request to reopen. On July 29, the Commission denied the 

request, with prejudice, on the basis that the operator had again failed to sufficiently explain its 

failure to file a timely contest. Pinky's Aggregates, Inc., 32 FMSHRC 790, 791-92 (July 2010). 

We have discovered a letter from PA, dated January 25, 2010, explaining its failure to 

timely file a contest of the proposed penalty assessment, that was intended to be considered with 

the earlier, timely submission by PA, but was not. Upon consideration of the letter, we find good 

cause for reopening the proposed assessment. 

In the interests of justice, we hereby reopen this matter and remand it to the Chief 

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

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

32 FMSHRC Page 1543 
Secretary shall file a petition for assessment of penalty within 45 days of the date of this order. 

See 29 C.F.R. § 2700.28. 

Robert F. Cohen, Jr., Commissioner 

~· Patrick K. Nakamura, Commissioner 

32 FMSHRC Page 1544 
Chairman Jordan and Commissioner Duffy, dissenting. 

As the majority indicates, the Commission received a letter from Pinky's Aggregates, Inc. 

("PA") dated January 25, 2010, explaining the untimely filing of the contest of the proposed 

penalty assessment. The Commission received the January 25 letter by facsimile on August 24, 

2010. There are no notations on the letter explaining the discrepancy between the date of the 

letter and the date it was faxed to the Commission. 

We would deem the letter received by the Commission on August 24 to constitute a 

petition requesting the Commission to reconsider its order of denial issued on July 29, 2010. 

Pursuant to Commission Procedural Rule 78(a), a petition for reconsideration must be filed 

within 10 days after a decision or order of the Commission has been issued. 29 C.F.R. 

§ 2700. 78( a). Accordingly, we would deny P A's petition for reconsideration as untimely. 

32 FMSHRC Page 1545 

-
Distribution: 

Jenny Levtitl . 

Office Administrator 

Pinky's Aggregates, Inc. 

3731 86th St., N.E. 

Rollette, ND 58366 

W. Christian Schumann, Esq. 

Office ofthe Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. of Labor~ 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety~ Health Review Commission 

601 New Jersey Avenue, N.W., Suite 9500 

Washington, D.C. 20001-2021 

32 FMSHRC Page 1546 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

CULP & SON, LP 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

November 16, 2010 

Docket No. CENT 2011-16-M 

A.C. No. 41-03971-222096 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On October 1, 2010, the Commission received from 

Culp & Son, LP, a letter requesting that the Commission reopen a penalty assessment that had 

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

§ 815( a). On October 27, 2010, the Commission received a response from the Secretary of Labor 

stating that she ~toes not oppose the request to reopen the assessment. 

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

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

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

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

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

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

Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to 

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

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

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

See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable 

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

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

32 FMSHRC Page 1547 
for a failure to timely respond, the case may be reopened and appropriate proceedings on the 

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

Having reviewed the facts and circumstances _of this case, the operator's request, and the 

Secretary's response, we hereby reopen this matter 'and remand it to the Chief Administrative 

Law Judge for further proceedings pursuant to the Mine Act and the Commission's Procedural 

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

petition for assessmentofpenaltywithin 45 days of the date ofthis order. See 29 C.F.R. 

§ 2700.28. 

Robert F. Cohen, Jr., Commissioner 

32 FMSHRC Page 1548 
Distribution: 

Richard Culp 

Culp & Son, LP 

2230 CR335 

Burnet, TX 78611 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Melanie Garris, Acting Chief 

Office of the Penalty Compliance 

U.S. Dept. of Labor, MSHA 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

i .. 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

601 New Jersey Avenue, N. W., Suite 9500 

Washington, D.C. 20001-2021 

32 FMSHRC Page 1549 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

PARK.ER-NORTHWEST PAVING 

COMPANY 

SUITE 9500 

WASHINGTON, DC 20001 

November 16, 2010 

Docket No. WEST2010-1074-M 

A.C. No. 35-00497-191325 

Docket No. WEST 2011-72-M 

A.C. No. 35-00497-177107 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On April 20, 20 I 0, the Commission received a request to 

reopen two penalty assessments issued to Parker-Northwest Paving Company ("Parker") that 

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

§ 815(a).1 

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

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

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

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

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

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

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

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

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

consolidate docket numbers WEST 2010-1074-M and WEST 2011-72-M, both captioned 

Parker-Northwest Paving Co., and involving similar factual and procedural issues. 29 C.F.R. 

§ 2700.12. 

32 FMSHRC Page 1550 
Federal Rules of Civil Procedure under which, for example, a party could be entitled to relief · 

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

See 29 C.F.R. § 2700.l(b)(''the Commission and its Judges shall be guided so far as practicable 

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

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

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

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

On February 18, and July 15, 2009, the Department of Labor's Mine Safety and Health 

Administration ("MSHA;') issued Proposed Assessment Nos. 000177107 and 000191325, 

respectively, to Parker, proposing civil penalties for numerous citations. In its letter seeking 

reopening, Parker apologizes for "being negligent in the handling of the citations that we wished 

to contest and not following the correct MSHA procedures." 

The Secretary opposes Parker's request to reopen both assessments. As to Assessment 

No. 000177107, she maintains that Parker did not seek reopening until April 20, 2010, over one 

year after the proposed assessment became a final order of the Commission on March 27, 2009. 

The Secretary argues that because the reopening request was filed more than one year after the 

penalty assessment became a final order, it should be denied. As to Assessment No. 000191325, 

she asserts .that Parker's explanation lacks sufficient detail as to why it failed to timely contest 

the assessments and therefore does not provide adequate grounds for reopening. The Secretary 

also notes that a delinquency notice was sent to the operator on October 8, 2009, but the operator 

waited more than six months to seek reopening. 

Having reviewed Parker's· request to reopen and the Secretary's responses thereto, we 

agree that Parker has failed to provide a sufficient basis for the Commission to reopen the penalfy 

assessments. With respect to Assessment ~o. 000177107, which, according to MSHA' s records, 

was delivered on February 25, 2009, and became a final order on March 27, 2009, more than a 

year passed before the operator sought reopening with the Commission. Under Rule 60(b ), any 

motion for relief must be made within ~reasonable time, and in the case of mistake, 

inadvertence, or excusable neglect not more than one year after the order was entered. Fed. R. 

Civ. P. 60(b). The Commission denies requests for reopening that are brought more than a year 

after the order has become final. JS Sand & Gravel, Inc., 26 FMSHRC 795, 796 (Oct. 2004). 

Accordingly, we deny with prejudice the request to reopen Assessment No. 000177107. 

As to Assessment No.000191325, Parker has failed to adequately explain its failure to 

timely contest the proposed assessments. Furthermore, Parker has failed to explain the 

circumstances surrounding its receipt of the October delinquency notice. 2 Accordingly, we 

. ·

2 In considering whether an operator has unreasonably delayed in fiiing a motion to 

reopen a final Commission order, we find relevant the amount of time that has passed between an 

operator's receipt of a delinquency notice and the operator's filing of its motion to reopen. See, 

e.g .. Left Fork Mining Co., 31 FMSHRC 8, 11 (Jan. 2009). 

32 FMSHRC Page.1551 
hereby deny without prejudice Parker's request to reopen Assessment No. 000191325. FKZ 

Coal Inc., 29 FMSHRC 177, 178 (Apr1 2007); Petra Materials, 31FMSHRC47, 49 (Jan. 2009). 

The words ''without prejudice" mean that Parker may submit another request to reopen 

Assessment No. 000191325.3 Any amended or renewed request by Parker to reopen this 

assess~ent must be filed within 30 days of this order. Any such request filed after that time will 

be denied with prejudice. 

Robert F.. COhen, Jr., Comillissioner 

Patrick K. Nakamura, Commissioner 

3 If Parker submits another request to reopen, it mustestablish good cause for not 

contesting the proposed penalties within 30 days from the date it received the assessment from 

MSHA. Under Rule 60(b) of the Federal Rules of Civil Procedure, the existence of"good cause" 

may be shown by a number of different factors including mistake, inadvertence, swprise, or 

excusable neglect ori. the part of the party seeking relief, or the discovery of new evidence, or 

fraud, misrepresentation, or other misconduct by the adverse party. Parker should include a full 

description of the facts supporting its claim of"good cause," including how the mistake or other 

problem prevented it from responding within the time limits provided in the Mine Act, as part of 

its request to reopen. Parker should also submit copies of supporting documents with its request 

to reopen and specify which propo,sed penalties it is contesting. Parker should further explain in 

similar detail why it delayed in responding to MSHA's delinquency notice. 

32 FMSHRC Page 1552 
Distribution: 

Duane Johnson 

Parker-Northwest Paving Co. 

24370 S. Hwy., 99E 

Canby, OR 97013 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Melanie Garris, Acting Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 251

h Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

601 New Jersey Avenue, N.W., Suite 9500 

Washington, D.C. 20001-2021 

32 FMSHRC Page 1553 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

November 22, 2010 

Docket No. SE 2009-65-M 

A.C. No. 38-00007-165394 

GIANT CEMENT HOLDING COMPANY 

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

DIRECTION FOR REVIEW AND ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On October 9, 2008, the Department of Labor's Mine Safety 

and Health Administration ("MSHA") issued Proposed Assessment No. 000165394 to Giant 

Cement Holding Company ("Giant Cement"). On December 11, 2008, after Giant Cement had 

timely contested certain proposed penalties, the Secretary of Labor ("Secretary") filed a petition 

for assessment of civil penalty with the Commission regarding those contested penalties. On 

January 13, 2010, Chief Administrative Law Judge Robert Lesnick issued an Order to Show 

Cause to Giant Cement for failure to :file an answer to the Secretary's petition. On October 12, 

2010, the judge issued an Order of Default entering judgment for the Secretary and directing 

Giant Cement to pay the proposed civil penalties immediately. On November 10, 2010, the 

Commission received a petition for discretionary review from Giant Cement, requesting that the 

Commission issue an order directing review and vacating the default order. 

In support of its petition, Giant Cement states that on December 17, 2008, it timely filed 

its answer to the petition, but acknowledged that the answer's caption inadvertently referenced 

Docket No. "SE 2008-1016-M" as opposedto Docket No. SE 2009-65-M. An internal review of 

the case file for Docket No. SE 2008-1016-M revealed that Giant Cement's answer referencing 

contested Citation Nos. 6117058 and 6117065 was, in fact, received by the Commission on 

December 23, 2008. Giant further states that it timely filed an answer to the show cause order on 

February 1, 2010, explaining that it had timely filed its answer to the Secretary's petition. The 

32 FMSHRC Page 1554 
Commission has not received a response from the Secretary. 

The Chief Judge's jurisdiction over this case terminated when he issued his default order 

on October 12, 2010. 29 C.F.R. § 2700.69(b). Relief from a judge's decision maybe sought by 

filing a petition for discretionary review within 30 days of its issuance. 30 U.S.C. § 823(d)(2}; 

29 C.F.R. § 2700. 70(a). We conclude that Giant Cement's petition for discretionary review was 

timely filed, and we hereby grant it. 

Upon review of the record and an internal review of the case files, in the interest of 

justice, we hereby vacate the Order of Default and remand this matter to the Chief Judge for 

further appropriate proceedings. See REB Enterprises, Inc., 18 FMSHRC 311 (Mar .. 1996). 

Robert F. Cohen, Jr., Commissioner 

Patrick K. Nakamura, Commissioner 

32 FMSHRC Page 1555 
Distribution 

C. Gregory Ruffenach, Attorney at Law 

1629 K Street, N.W., Suite 300 

Washington, D.C. 20036 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. of Labor ·. 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

601 New Jersey Avenue; :N.W., Suite 9500 

Washington, D.C. 20001-2021 

32 FMSHRC Page 1556 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND·HEALTH 

ADMINISTRATION {MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

· .. WASHINGTON, DC 20001 

November 24, 2010 

DocketNo. WEST 2010-1706-M 

A.C. No. 45-03224-199237 

WASHINGTON ROCK QUARRIES INC. 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On August 20, 2010, the Commission received from 

Washington Rock Quarries fuc. ("Washington Rock") a motion by counsel seeking to reopen a 

penalty assessment thatmay have becoine a final order of the Commission pursuant to section 

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

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

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

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

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

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

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

Jim Walter Res., Inc., 15 FMSHRC-782, 786.:89 {May 1993) ("JWR"). fu evaluating requests to 

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

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

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

See 29 C.F.R. § 2700.l(b) ( .. the Commission and its Judges shall be guided so far as practicable 

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

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

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

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

32 FMSHRC Page 1557 
On October l, ,20()9, the Department of Lab.or's Mine Safety and Health Administration 

("MSHA") issued Proposed Penalty Assessment No. 000199237 to Washington Rock. The 

record indicates that the proposed assessment was delivered to a wrong address and not received 

at that time by Washington Rock. Washington Rock allegedly only learned of the assessment 

months later when it was contacted by telephone by a debt collector retained by the U.S. Treasury 

Department. The Secretary states that she does not oppose the reopening of the proposed penalty 

assessment. 

Having reviewed Washington Rock's request and the Secretary's response, we conclude 

that the proposed penalty assessment has not become a final order of the Commission because it 

was not reeeived by Washington Rock. Accordingly, we deny the request to reopen as moot and 

remand this matter to the Chief Administrative Law Judge for further proceedings pursuant to the 

Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700. If Washington Rock 

has not done so already, it must file a contest of the proposed penalty assessment within 30 days 

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

days of the date of its contest. See 29 C.F.R. §§ 2700.26 and 2700.28. 

Michael 

~r·· Cmnntl••ioPatrick K. Nakamura, Commissioner 

32 FMSHRC Page 1558 
Distribution: 

Mark N. Savit, Esq. 

Patton Boggs LLP 

1801 California Street, Suite 4900 

Denver, CO 80202 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor. 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Melanie Garris 

Office of the Penalty Compliance 

U.S. Department of Labor, MSHA 

1100 Wilson Blvd., 22nd Floor West 

Arlington, VA 22209-2247 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

601 New Jersey Avenue, N.W., Suite 9500 

Washington, D.C'. 20001-2021 

32 FMSHRC Page 1559 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LAl30R, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

LAMB ROCK 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

November 24, 2010 

Docket No. WEST 2011-97-M 

A.C. No . .02-03237-224474 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On October 15, 2010, the Commission received from 

Lamb Rock a letter requesting that the Commission reopen a penalty assessment that had become 

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

On November 9, 2010, the Commission received a response from the Secretary of Labor stating 

that she does not oppose the request to reopen the assessment. 

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

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

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

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

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

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

Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) (".!WR"). In evaluating requests to 

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

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

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

See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable 

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

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

32 FMSHRC Page 1560 
for a failure to timely respond, the case may be reopened and appropriate proceedings on the 

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

Having reviewed the facts and circumstances of this case, the operator's request, and the 

Secretary's response, we hereby reopen this matter and remand it to the Chief Administrative 

Law Judge for further proceedings pursuant to the Mine Act and the Commission's Procedural 

Rules, 29 C.F .R. Part 2700~ Accordingly, consistent with Rule 28, the Secretary shalLfile a 

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

§ 2700.28. 

Michacl~A. 

Robert F. Cohen, Jr., Commissioner 

Patrick K. Nakamura, Commissioner 

32 FMSHRCPage 1S61 
Distribution: 

Michael D. Ferris 

Lamb Rock 

16455 Santa Rita Rd. #5 

Sahuarita, AZ 85629 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Melanie Garris · 

Office of the Penalty Compliance 

U.S. Department of Labor, MSHA 

1100 Wilson Blvd., 22nd Floor West 

Arlington, VA 22209-2247 

Chief Administrative La'Y Judge Robert J. Lesnick 

Federal Mine Safety &,H~althReview Commission 

601 New Jersey Avenue, N.W., Suite 9500 

Washington, D.C. 20001-2021 

32 FMSHRC Page 1562 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

November 24, 2010 

Docket No. WEST 2011-98-M 

A.C. No. 04-05367-222547 

CUSTOM CRUSHJNG INDUSTRIES, INC. 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On October 15, 2010, the Commission received from 

Custom Crushing Industries, Inc., a letter requesting that the Commission reopen a penalty 

assessment that had become a final order of the Commission pursuant to section 105(a) of the 

Mine Act, 30 U.S.C. § 815(a) .. On November 9, 2010, the Commission received a response from 

the Secretary of Labor stating that she does not oppose the request to reopen the assessment. 

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

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

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

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

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

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

Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) ("./WR"). In evaluating requests to 

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

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

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

See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable 

by the Federal Rules of Civil Procedure"); .!WR, 15 FMSHRC at 787. We have also observed 

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

32 FMSHRC Page 1563 
for a failure to tiriiely respond, the case may be reopened and appropriate pro~c;:dings on the 

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

Having reviewed the facts and circumstances of this case, the operator's request, and the 

Secretary's response, we hereby reopen this matter and remand it to the Chief Administrative 

Law Judge for further proceedings pursuant to the Mine Act and the Commission's Procedural 

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

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

§ 2700.28. 

Patrick K. Nakamura, Commissioner 

32 FMSHRC Page 1564 
Distribution: 

Paul Goodwin, President 

Custom Crushing fudustries, Inc. 

P.O. Box 357 

Grenada, CA 96038 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Melanie Garris 

Civil Penalty Processing Office 

U.S. Department of Labor, MSHA 

1100 Wilson Blvd., 25th Floor West 

Arlington, VA 22209 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

601 New Jersey Avenue, N.W., Suite 9500 

Washington, D.C. 20001-2021 

32 FMSHRC Page 1565 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

COAL COUNTRY MINING, INC. 

SUITE9500 

WASHINGTON, DC 20001 

November 26, 2010 

Docket No. WEVA 2010-918 

A.C. No. 46-08884-203963 X359 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On April 22, 2010, the Commission received a request to 

reopen a penalty assessment issued to Coal Country Mining, Inc.("Coal Country") that became a 

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

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

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

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

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

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

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

Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to 

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

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

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

See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable 

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

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

32 FMSHRC Page 1566 
for a failure to timely respond, the case may be reopened and appropriate proceedings on the 

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

On October 20, 2009, the Department of Labor's Mine Safety and Health Administration 

("MSHA'') issued 19 citations/orders to Coal Country. On November 24, 2009, MSHA issued 

Proposed Assessment No. 00020396:3 to Coal Country, which proposed civil penalties for three 

of the citations/orders that were issued on October 20, 2009. On December 22, 2009, MSHA 

issued Penalty Assessment No. 000206855 covering the remaining 16 citations/orders from the 

inspection of October 20, 2009. Coal Country asserts that it intended to contest all citations 

stemming from the inspection on October 20, 2009. It further submits that it successfully 

conte~ted the penalties for the 16 citations that were contained on the December 2009 penalty 

assesSm:~t. With respect to Assessment No. 000203963, Coal Country submits that it sent the 

assessment to its representative to contest but that the assessment was never received. The 

representative further submits that he discovered that Penalty Assessment No. 000203963 had 

not been contested while reviewing MSHA's website but does not indicate when that occurred. 

The Secretary opposes Coal Country's request to reopen because its explanation lacks 

sufficient detail as to why it failed to timely contest the assessments. She maintains that an 

inadequate or unreliable internal office procedure does not provide sufficient grounds for 

reopening. The Secretary notes that a delinquency notice was sent to the operator on 

February 16, 2010, two months before it filed its reopening request. 

Having reviewed Coal Country's request to reopen and the Secretary's response thereto, 

we agree that the operator has failed to provide a sufficient basis for the Commission to reopen 

the penalty assessment. In addition, Coal Country has failed to explain why it delayed 

approximately two months in responding to the delinquency notice sent by MSHA. 1 

Accordingly, we herebY. de:py without prejudice Coal country's request to reopen. FKZ Coal 

Inc., 29 FMSHRC 177, 178 (Apr. 2007); Petra Materials, 31FMSHRC47, 49 (Jan. 2009). The 

words ''without prejudice" mean that Coal Country may submit another request to reopen 

Assessment No. 000203963. 2 Any amended or renewed request by the operator to reopen this 

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

reopen a final Commission order, we find relevant the amount of time that has passed between an 

operator's receipt of a delinquency notice and the operator's filing of its motion to reopen. See, 

e.g., Left Fork Mining Co., 31 FMSHRC 8, 11 (Jan. 2009); Highland Mining Co., 31 FMSHRC 

1313, 1316 (Nov. 2009) (holding that motions to reopen filed more than 30 days after receipt of 

notice of delinquency must explain the reasons why the operator waited to file a reopening 

request; and lack of explanation is grounds for the Commission to deny the motion). 

2 If Coal Country submits another request to reopen, it must establish good cause for not 

contesting the proposed penalties within 30 days from the date it received the assessment from 

MSHA. Under Rule 60(b) of the Federal Rules of Civil Procedure, the existence of "good cause" 

may be shown by a number of different factors including mistake, inadvertence, surprise, or 

32 FMSHRC Page 1567 
assessment must be filed within 30 days of this order. Any such request filed after that time will 

be denied with prejudice. 

g,Cdtmm&I 

. 7P'·. r&1-~· .· 

Robert F. Cohen, Jr., Commissioner 

96L·. 

Patrick K. Nakamura, Commissioner 

excusable neglect on the part of the party seeking relief, or the discovery of new evidence, or . . 

fraud, misrepresentation, or other misconduct by the adverse party. Coal Country should include 

a full description of the facts supporting its claim of"good cause," including how the mistake or 

other prob~em prevented it from responding within the time limits provided in the Mine Act, as 

part of its request to reopen. Coal Country should also submit copies of supporting documents 

with its request to reopen. 

32 FMSHRC Page 1568 
Distribution: 

James F. Bowman 

Coal Country Mining, Inc. 

P.O. Box 99 

Midway, WV 25878 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Melanie Garris 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review ~ommission 

601 New Jersey Avenue, N.W., Suite 9500 

Washington, D.C. 2000.1-2021 

32 FMSHRC Page 1569 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMJNISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON. DC 20001 

December 1, 2010 

Docket No. WEST 2010-1625-M 

A.C. No. 48-00152-188933 UIO 

PACIFIC POWER & LIGHT COMP ANY 

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners·· 

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On July 30, 2010, the Commission reeeived from Pacific 

Power & Light Company ("Pacific Power") a request by counsel seeking to reopen a penalty 

assessment that may have become a final order of the Commission pursuant to section 105( a) of 

the Mine Act, 30 U.S.C. § 815(a). 

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

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

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

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

The Secretary submits that upon reviewing the records in this proceeding, she has 

determined that the underlying citation in this proceeding, Citation No. 6419908, contained on 

Proposed Assessment No. 000188933, has been vacated. Accordingly, she submits that the 

request to reopen should be denied as moot. 

32 FMSHRC Page 1570 
Having reviewed Pacific Power's request and the Secretary's response, we deny the 

request to reopen as moot because the citation in question has been vacated. 

Michael ~ F. Du~~ 

Robert F. Cohen, Jr., Commissioner 

Patrick K. Nakamura, Commissioner 

32 FMSHRC Page 1571. 
Distribution: 

Jason W. Hardin, Esq. 

Fabian & Clendenin 

215 S. State Street, Suite 1200 

Salt Lake City, UT 84111-2323 . 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Melanie Garris 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. ofLabor ,. 

1100 Wilson Blvd. 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

601 New Jersey Avenue, N.W., Suite 9500 

Washington, D.C. 20001-2021 · 

32 FMSHRC Page 1572 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

ROCK.SPRING DEVELOPMENT 

601 NEW JERSEY AVENUE, NW 

SUITE 95oO 

WASHINGTON, OC 20001 

December 1, 2010 

Docket No. WEV A 2010-865 

A.C. Nq. 46-05121-206639 

.. . . . . 

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakaml.lTa, Commissioners 

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On April 6, 2010, the Commission received from Rockspring 

Development ("Rockspring") a letter seeking to reopen a penalty assessment that had become a 

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

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

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

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

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

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

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

Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) (".!WR"). In evaluating requests to 

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

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

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

See 29 C.F.R. § 2700.l{b) ("the Commission and its Judges shall be guided so far as practicable 

by the Federal Rules of Civil Procedure"); .!WR, 15 FMSHRC at 787. We have also observed 

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

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

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

32 FMSHRC Page 1573 
In its letter, Rockspring asserts that it did not timely contest the proposed assessment 

because it had not been received by its safety ~anager or accounts payable department. . . ' 

However, the Secretary states that the assessment was received on December 28, 2009 and 

signed for by a G. Merritt, the name listed on Rocksptjng's Legal ID Report's Address of 

Record. She attached to her opposition to Rockspring's motion a copy of a FedEx tracking slip 

to support this assertion. Rockspring provided no response to this submission. It also failed to 

indicate which of the 48 violations contained in the assessment it seeks to contest. 

Having reviewed Rockspring's request and the Secretary's response, we conclude that 

Rockspring has failed to provide an adequate basis for the Commissfon to re<>pen the proposed · 

penalty assessment. Rockspring has failed to explain why it did not timely contest the proposed 

assessment in light of the Secretary's substantiated claim that the assessment had been received 

by the operator. 

An operator seeking to reopen a proceeding after a final order is effective bears the 

burden of establishing an entitlement to extraordinary relief. Ata mini~um, the applicant for 

such relief must provide all known details, including relevant dates and persons involved, and a 

clear explanation that accounts, to the best of the operator's knowledge, for the failure to submit 

a timely response and for any delays in seeking relief once the operator became aware of the . 

delinquency or failure. The operator must also identify which specific citations or orders in the 

assessment it wishes to contest upon reopening. Affidavits from persons involved in and 

knowledgeable of the situation and pertinent documents should be included with the request to 

reop_ en. Higgins Stone Co., 32.FMSHRC 33 (Jan. 2010) . . 

32 FMSHRC Page 1574 
Accordingly, we hereby deny without prejudice Rockspriiig's request. FKZ Coal Inc., 29 

FMSHRC 177, 178 (Apr. 2007); Petra Materials, 31 FMSHRC 47, 49 (Jan. 2009). The words 

''without prejudice" mean that Rockspring may submit another request to reopen the 11Ssessment 

so that it can contest the penalty assessment. Any amended or renewed request by Rockspring to 

reopen the assessments must be filed within 30 days ofthis order. Any such request filed after 

that time will be denied with prejudice. 

Robert F. Cohen, Jr., CommissionerGITJL 

Patrick K. Nakamura, Commissioner 

32 FMSHRC Page 1575 
Distribution: 

Clark McCoy, Safety Manager 

Rockspring Development 

400 Patterson Lane 

Charleston, WV 25311 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Melanie Garris, Acting Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209.:.3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

601 New Jersey Avenue, N. W., Suite 9500 

Washington, D.C. 20001-2021 

32 FMSHRC Page l576 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION' 

SECRETARY OF LABOR,. 

MINE SAFETY AND HEALTH. 

ADMINISTRATION (MSHA) 

v. 

FREEDOM ENERGY MINING 

COMPANY 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WAsHINGTON, DC 20001 

December 2, 2010 

Docket No. KENT 2010-174 

A.C. No. 15-07082-189961 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On November 4, 2009, the Commission received a motion by 

counsel for Freedom Energy Mining Company ("Freedom") seeking to reopen a penalty 

assessment that had become a final order of the Commission pursuant to section 105(a) of the 

Mine Act, 30 U.S.C. § 815(a). 

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

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

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

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

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

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

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

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

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

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

See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable 

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

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

32 FMSHRC Page 1577 
for a failure to timely respond, the case may be reopened and appropriate proceedings on the 

merits permitted. See Coal Prep. Servs., Inc., 17FMSHRC1529, 1530 (Sept. 1995). 

Freedom received Proposed Asses~μient No. 000189961 from the Department of Labor's 

Mine Safety and Health Administration ("M;SHA") on July 10, 2009. Freedom's safety director 

stamped the assessment as having been received on July 14, 2009, and on August 11, 2009, the 

operator filed its notice of contest with MSHA. While Freedom contends that its notjce of 

contest was timely, the Secretary of Labor, who does not oppose reopening, responds that the 

notice was untimely. The Secretary points out that' the 30 days within which Freedomhad to 

respond ran from the operator's July 10 receipt of the assessment, and not the date ori whlch its 

safety director stamped it in. 

32 FMSHRC Page 1578 . 
Having reviewed Freedom's request and the Secretary's response, in the interest$ of 

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

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

Part 2700. 1 Accordingly, consistent with Rule 28, the Secretary shall file a petition for 

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

Michael ~· F. Duey,coo}Dliss~ 

Robert F. Coh~ Jr., Commissioner 

Patrick K. Nakamura, Commissioner 

1 To avoid confusion, and lessen the need to file future motions to reopen, Freedom 

should ensure that it date stamps any assessment it receives on the date on which it receives the 

assessment from MSHA, and not the date on which it delivers the assessment to its safety 

director. 

32 FMSHRC Page 1579 
Direction: 

Carol Ann Marunich, Esq. 

Dinsmore & Shohl, LLP · 

215 Don Knotts Blvd., Suite 310 

Morgantown, WV 26501 

W. Christian Scllumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Melanie Garris, Acting Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. Of Labor . 

1100 Wilson Blvd., 25m Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine .Safety & Health Review Commission 

601 New Jersey Avenue, N. W., Suite 9500 

Washington, D.C. 20001-2021 

32 FMSHRC Page 1580 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

December 3, 2010 

Docket No. PENN 2010-355 

A.C. No. 36-07561-202650 

LARRY D. BAUMGARDNER COAL 

COMP ANY, INC. 

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

ORDER 

. . .... 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On March 3, 2010, the Commission received from 

Larry D. Baumgardner Coal Company, Inc., a letter requesting to reopen a penalty assessment 

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

U.S.C. § 815(a). On March 25, 2010, the Commission received a response from the Secretary of 

Labor stating that. she. does not oppose the request to reopen the assessment. 

Under section l 05( a) of the Mine Act, an operator who wishes to contest a proposed 

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

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

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

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

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

Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (".!WR"). In evaluating requests to 

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

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

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

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

by the Federal Rules of Civil Procedure"); .!WR, 15 FMSHRC at 787. We have also observed 

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

32 FMSHRC Page 1581 
for a failure to timely respond, the case may be reopened and appropriate proceedings on the 

meritS pennitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). 'i:, . 

Having reviewed the facts and circumstances of this case, the operator's request, and the 

Secretary's response, we hereby reopen this matter and remand it to the Chief Administrative 

Law Judge for further proceedings pursuant to the Mine Act and the Commission's Procedural 

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

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

§ 2700.28. 

·Robert F. Cohen, Jr., Commissioner 

32 FMSHRC Page 1582 
Distribution: 

Larry Baumgardner, President 

Larry D. Baumgardner Coal Co., Inc. 

421 Knox Run Rd. 

Lanse, PA 16849 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

I 100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Melanie Garris, Acting Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

601 New Jersey Avenue, N.W., Suite 9500 .· 

Washington, D.C. 20001-20il 

32 FMSHRC Page 1583 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

December 3, 2010 

Docket No. WEST2010-766-M . ' 

A.C. No. 10-00792-199073 

SANDPOINT SAND & GRAVEL, INC. 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On March 3, 2010, the Commission received from 

Sandpoint Sand & Gravel, fuc., a letter requesting to reopen a penalty assessment that had 

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

§ 815(a). On March 18, 2010, the Commission received a response from the Secretary ofLabor 

stating that ~he does not oppose the request to reopen the assessment. 

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

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

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

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

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

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

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

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

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

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

See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable 

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

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

32 FMSHRC Page 1584 
for a failure to timely respond, the case may be reopened and appropriate proceedings on the 

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

Having reviewed the facts and circumstances of this case, the operator's request, and the 

Secretary's response, we hereby reopen this matter and remand it to the Chief Administrative 

Law Judge for further proceedings pursuant to the Mine Act and the Commission's Procedural 

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

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

§ 2700.28. 

Robert F. Cohen, Jr., Commissioner 

Patrick K. Nakamura, Commissioner 

32 FMSHRC Page 1585 
Distribution: · 

Frank Linscott 

Standpoint Sand & Gravel, Inc. 

256 TiniberlineDt. 

Sagle, ID 83860 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Melanie Garris, Acting ·Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 25'h Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

601 New Jersey Avenue, N.W., Suite 9500 

Washington, D.C. 20001-2021 

32 FMSHRC Page 1586 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

ELKRUN COAL COMPANY 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

.WASHINGTON, DC 20001 

December 10, 2010 

Docket No. WEV A 2009-1738 . . 

A.C. No. 46-07938-180891 

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

ORDER 

BY: Jordan, Chairman; Young, Cohen, and Nakamura, Commissioners 

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

§ 801 et seq. (2006) ("Mine Act"). On July 28, 2009, the Commission received from Elk Rlin 

Coal Company a request to reopen a penalty assessment that had become a final order of the 

Commission pursuant to section lOS(a) of the Mine Act, 30 U.S.C. § 815(a). On August 17, 

2009, the Commission received a response from the Secretary of Labor stating that she does not 

oppose the requ.est to reopen the assessment. 

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

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

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

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

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

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

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

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

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

from a final order of the Commission on the basis ofrnistak:e,madvertence, or excusable neglect. 

See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable 

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

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

32FMSHRC Page·15g7 
for a failure to timely respond, the case may be reopened and appropriate proceedings on the 

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

This motion involves Assessment Case No. 000180891, issued to Black Castle Mining 

Company ("Black Castle") and served upon Elk Run Coal Company ("Elk Run") on or about 

April 1, 2009. The Assessment Case includes 16 citations, of which 13 citations are significant 

and substantial ("S&S"). 1 All of the citations were issued between February 17 and February 25, 

2009. Elk Run filed with its motion an affidavit from Kevin Deaton, the safety director for Black 

Castle. According to Deaton's affidavit, Black Castle is a subsidiary of Elk Run, and idled the 

subject mine on April 9, 2009, leaving only a skeleton crew. The crew stacked the mail during 

the time the mine was idled and did not date-stamp it. Deaton did not learn that the assessment 

had been received until July 2009, when the mine was removed from idle status. At this time, 

Deaton gave the Assessment to counsel, indicating that the company intended to contest the 13 

S&S violations. 

The Secretary does not oppose the Motion. 

The reasons offered by Elk Run do not amount to inadvertence or excusable neglect 

within the meaning of Fed. R. Civ. P. 60(b), and do not constitute good cause to reopen the 

assessment, which became a final order of the Commission in May 2009. The Commission has 

made it clear that where a failure to contest a proposed assessment results from an inadequate or · 

unreliable internal processing system, the operator has not shown grounds for reopening the 

assessment. Pinnacle Mining Co., 30 FMSHRC 1061, 1062 (Dec. 2008); Pinna~le·Mining Co., 

30 FMSHRC 1066, 1067 (Dec. 2008); Highland Mining Co., 31FMSHRC1313,1315 (Nov. 

2009); Double Bonus Coal Co., 32 FMSHRC 1155, 1156 (Sept. 2010); see Gibbs v. Air Canada, 

810 F. 2d 1529, 1537-38 (11th Cir. 1987). In this case, the fact that an operator idles a mine does 

not relieve if of its obligation to open and deal with the mail it receives. To allow three months 

of mail to stack up unopened, without further explanation of how this was allowed by the 

management who made the decision to idle the mine, is not inadvertence; it is irresponsibility. 

Deaton' s affidavit states, "The crew of the mine did not understand the importance of the timing 

of the filing of the 1000-179 fonn." However, th!s ·is a failure of training by management, a 

failure which could have been prevented by the simplest and most basic precautions. 

Moreover, Elk Run has demonstrated a pattern of failing to deal adequately with 

proposed assessments received from MSHA. On July 2, 2007, Elk Run sought reopening of an 

assessment which had become final because it was "inadvertently lost in the office of the safety 

director." Elk Run Coal Co., 29 FMSHRC 613, 613 (Aug. 2007). The Commission remanded 

the case to the Chief Administrative Law Judge for a determination of good cause, id., and the 

Chief Adrriinistrative Law Judge ~~bsequently reopened the final assessment. Unpublished 

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

§ 8 l 4(d)(l ), which distinguishes as more serious any violation that "could significantly and 

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

32 FMSHRC Page 1588 
Order dated Sept. 4, 2008. On January 28, 2008, Elk Run sought reopening of three citations 

within a proposed assessment which its attorney had failed to contest due to an unspecified 

''clerical error." Elk Run Coal Co., 30 FMSHRC 423, 424 (June 2008). The Commission 

remanded the case to the Chief Administrative Law judge for a determination of good cause, id., 

and the Chief Administrative Law Judge subsequently reopened the final assessment. 

Unpublished Order dated Sept. 4, 2008. On December 19, 2008, Elk Run sought reopening of an 

assessment which became final because its safety director failed to successfully fax the 

assessment form to counsel, and did not check whether the fax had been received. Elk Run Coal 

Co., No. WEVA 2009-511 (motion pendjng). 

Based on the foregoing, we conclude that Elk Run has failed to provide an adequate basis 

for the Commission to reopen the penalty assessment. See Pinnacle Mining, 30 FMSHRC at 

1062-63 (denying reliefbecause operator's excuse was insufficient); Pinnacle Mining, 30 

FMSHRC at 1067-68 (same). Accordingly, we deny Elk Run's request to reopen. 

Robert F. Cohen, Jr., Commissioner 

Patrick K. Nakam~ Commissioner 

32 FMSHRC Page 1589 
Commissioner Duffy, dissenting: 

I would grant this unopposed.request to reopen. 

32 FMSHRC Page 1590 
Distribution: 

Carol Ann Marunich, Esq. 

Dinsmore & Shohl, LLP 

215 Don Knotts Blvd., Suite 310 

Morgantown, WV 26501 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Melanie Garris, Acting Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

601 New Jersey Avenue, N.W., Suite 9500 

Washington, D.C. 20001-2021 

32 FMSHRC Page 1591 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRET ARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

December 14, 2010 

Docket No. CENT 2010-1226-M 

A.C. No. 29-00802-228600 

MOSAIC POTASH CARLSBAD INC. 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On September 10, 2010, the Commission received from 

Mosaic Potash Carlsbad Inc. ("Mosaic'') a motion to reopen a penalty assessment that niay have. 

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

§ 815(a). 

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

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

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

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

The Secretary submits that upon reviewing the records in this proceeding, she has 

discovered that the proposed penalty assessment for Citation No. 6571486 was delivered on 

August 12, 2010, and that the motion to reopen was post-marked September 9, 2010, which falls 

within the 30-day time period for contesting a proposed assessment. She states that the Civil 

Penalty Compliance Office of the Department of Labor's Mine Safety and Health Administration 

has accepted Mosaic's motion to reopen as a timely contest and has added the citation to an 

active civil penalty proceeding (Docket No. CENT 2010-1166-M). 

32 FMSHRC Page 1592 
Having reviewed Mosaic's request and the Secretary's response, we find the request to 

reopen to be moot. The proposed penalty assessment did not become a final order of the 

Commission. Accordingly, the request to reopen is dismissed as moot. 

Michael ~ F. nu:cmDri~ · 

Robert F. Cohen, Jr., Commissioner 

~ Patrick K. Nakamura, Commissioner 

32 FMSHRC Page 1593 
Distribution: 

Charles C. High, Jr., Esq. 

Kemp Smith, LLP 

P.O. Box 2800 

El Paso, TX 79999-2800 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Melanie Garris, Acting Chief. 

Office of the Penalty Compliance 

U. S. Dept. Of Labor, MSHA 

1100 Wilson Blvd. 25th Floor 

Arlington, VA 22209 

Chief Administrative Law Judge Robert J. Lesnick 

federal Mine Safety & Health Review Commission 

601 New Jersey Avenue, N.W., Suite 9500 

Washington, D.C. 20001-2021 

32 FMSHRC Page 1594 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

. 601 NEW JERSEY AVENUE, NW 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

SUITE9500 

WASHINGTON, DC 20001 

December, 14, 2010 

DODGE HILL MINING COMPANY, LLC 

Docket No. KENT 2010-197 . . 

AC. No. 15-18335-1.93080 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On August 9, 2010, the Commission received from Dodge 

Hill Mining Company, LLC ("Dodge Hill") a renewed motion by counsel to reopen a penalty 

assessment that had become a final order of the Commission pursuant to section 105(a) of the 

Mine Act, 30 U.S.C. § 815(a). 

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

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

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

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

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

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

Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to 

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

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

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

See 29 C.F.R. § 2700. l (b) ("the Commission and its Judges shall be guided so far as practicable 

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

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

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

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

32 FMSHRC Page 1595 
On August4, 2009, the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued Proposed Assessment No .. 000193080 to Dodge Hill for 16 citations MSHA 

had issued to the operator in June of that year. However, the operator did not file a timely notice 

of contest. fu its first motion to reopen, filed on November 10, 2009, Dodge Hill stated that it 

intended to contest six of the proposed penalties, but because of a "clerical error" it failed to 

return the contest form to MSHA. The Commission subsequently denied the request to reopen 

without prejudice because of Dodge Hill's failure to provide a sufficiently detailed explanation 

for its failure to file a timely contest. See Dodge Hill Mining Co., 32 FMSHRC 754 (July 2010). 

The renewed request to reopen from Dodge Hill includes an affidavit from the 

Assessment Analyst for its corporate parent, who explains that the assessment was not processed 

as it normally would have been because she inadvertently misplaced it after the operator had 

decided which penalties it wished to contest. Dodge Hill also demonstrates that it had requested 

conferences on the underlying citations. The Secretary of Labor did not oppose Dodge Hill's 

original motion and has not responded to its renewed motion. 

32 FMSHRC Pagel596 
Having reviewed Dodge Hill's requests and the Secretary's response, in the interests of 

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

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

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

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

Michael -~~ F. Duffy, Comnuss1oner · · 

. Robert F. Cohen, Jr., Commissioner 

Patrick K. Nakamura, Commissioner 

32 FMSHRC Page 1597 
Distribution: 

Michael T. Cimino, Esq; 

Jackson Kelly, PLC 

1600 Laidley Tower 

P.O. Box 553 

Charleston, WV 25322 

K. Brad Oakey, Esq. 

Jackson Kelly, PLLC 

175 Main St., Suite 500 

P.O. Box 2150 

Lexington, KY 40588-9956 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA, U.S. Dept.ofLabor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

601 New Jersey Avenue, N.W., Suite 9500 

Washington, D.C. 20001-2021 

32 FMSHRC Page 1598 
F.EDERAL MINE· SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

DITTRICH MECHANICAL& 

FABRICATION, INC. 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

December 14, 2010 

Docket No. LAKE 2010-407-M 

A.C. No. 21-00057-188834 X380 

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

ORDER 

BY: Duffy, Young, and Nakamura, Commissioners 

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

§ 801 et seq. (2006) ("Mine Act"). On February 18, 2010, the Commission received from 

Dittrich Mechanical & Fabricatiori, Inc. ("Dittrich'') a request to reopen a penalty assessment that 

may have become a final order of the Commission pursuant to section lOS(a) of the Mine Act, 30 

U.S.C. § 815(a). 

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

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

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

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

Dittrich states that it never received a copy of the two May 12, 2009, citations that are the 

subject of the proposed penalty assessment at issue, No. 00018834, which was issued by the 

Department of Labor's Mine Safety and Health Administration ("MSHA") on June 23, 2009. 

Dittrich attaches a letter dated May 21, 2009, from MSHA informing it of its Contractor 

Identification Number. It also acknowledges receiving the proposed penalty assessment, but 

states that a secretary filed the assessment away, which prevented Dittrich from acting upon it. 

Dittrich also acknowledges receiving a delinquency notice from MSHA. 

The Secretary opposes reopening the assessment on the ground that the excuse offered by 

Dittrich for not responding to the assessment is not sufficiently detailed to justify reopening. The 

32 FMSHRC Page 1599 
Secretary also states that Dittrich has failed to explain why it did not respond to t}le delinquency 

notice, but instead waited until after MSHA had referred the matter to the U.S. Trea.Sury before it 

made its request to reopen. 

The Secretary does not address Dittrich' s argument that it never received the citations that 

are the subject of the assessment. Section 104(a) of the Mine Act requires that MSHA issue 

citations to operatOrs (and .thus also to contractors) in writing. See 30 U.S.C. § 814(a). The Mine 

Act :further provides in section 105( a) for proposed penalty assessments for· citations and orders 

issued pursuant to section 104. See 30 U.S.C. § 815(a). We do not condone the operator's 

handling of the proposed penalty assessment in this instance, especially its failure to act upon 

receiving an MSHA delinquency notice. However, absent evidence that the citations were ever 

issued to Dittrich~ 1 we cannot find that the assessment was ever effective. 

Consequently, we conclude that there is no final order in this case, and we dismiss the 

operator's request to reopen as moot. MSHA is free to issue another proposed penalty 

assessment once it has complied with the requirements of section 104( a). 

... 

Patrick K. Nakamura, Commissioner 

1 We note that the Secretary did not submit copies of the citations with her response in 

opposition, but rather internal MSHA documentation regarding the violations; 

32 FMSHRC Page 1600 
Chairman Jordan and Commissioner Cohen, concurring: 

Our colleagues conclude that there is no final order in this case and therefore the request 

to reopen should be dismissed as moot. We disagree, but would grant relief on alternative 

grounds. 

The majority states that, absent evidence that the citations were delivered to the operator, 

they cannot find the penalty assessmentwas ever effective. Slip op. at 2. They note that the 

Secretary submitted internal MSHA documents regarding the violations but did not submit 

copies of the citations. Our colleagues suggest that MSHA may issue another proposed penalty 

assessment once it has complied with the requirements of section 104( a) (which mandates that 

citations be issued in writing), thus finding, based only on the operator's unsubstantiated 

assertion, that no written citation was ever issued. 

The Secretary, who opposed the motion to reopen, submitted a printout (from an MSHA 

website) with information identical in almost all respects to that found in the paper version of a 

citation that MSHA traditionally provides to an operator. 1 Thus, by elevating form over 

substance, our colleagues find that the Secretary failed to offer evidence that the citations were 

ever issued to Dittrich because, perhaps out of expediency, the versions of the citations that the 

Secretary provided to the Commission were not photocopies of the paper citations. This despite 

the fact that the Secretary's submission contains the same substantive information found on a 

paper citation (for instance, it contains the citation numbers and states that the citations were 

issued to Richard Dittrich at 11 :30 a.m. on May 12, 2009 and terminated on May 12 and May 

28). We conclude that the Secretary's submission is sufficient to rebut the operator's contention 

that no written citation issued. 

We believe the majority could be setting an unfortunate precedent. It appears that in the 

future, if an operator claims to have not received a written citation, the Secretary must submit a 

photocopy of the original form given to the operator, instead of an electronic version that is 

slightly reconfigured, in order for the rebuttal evidence to be sufficient for the majority. We do 

not believe the Secretary must go to such lengths to meet her burden of proof. Additionally, 

based on the record in this case, we do not believe the Commission should order the Secretary to 

re-serve the citation before she can issue a penalty assessment. 

Consequently, we conclude that there was a final order in this case, as the Secretary 

offered sufficient proof that she issued a written citation and proposed a penalty, but the operator 

failed to timely contest it. However, we would grant relief because the operator's reason for 

failing to respond to the proposed penalty (which was that Dittrich's secretary filed it but did not 

properly inform the operator), constitutes excusable neglect. See 46 Sand & Stone, 23 FMSHRC 

1 The forms submitted by the Secretary (one of which has a website address that includes 

the term "IssuanceViewForm") may in fact simply be a printout of an electronic version of the 

same document the majority insists the Secretary submit. 

32 FMSHRC Page 1601 
1091-92 (Oct. 2001) (granting request to reopen because the proposed penalty assessment form 

was misfiled). 

Robert F. Cohen, Jr., Commissioner 

32 FMSHRC Pagel 602 
Distribution: 

Richard Dittrich 

Dittrich Mechanical & Fabrication, Inc. 

101 Kingswood Rd. 

Mankato, MN 56001 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra Jam es, Chief 

Office of Civil Penalty Compliance 

MSHA, U.S. Dept. of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

601 New Jersey Avenue, N.W., Suite 9500 

Washington, D.C. 20001-2021 

32 FMSHRC Page 1603 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

M1NE SAFETY ANO HEALTH 

ADMINISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

December 14, 2010 

Docket No. SE 2010-852-M 

A.C. No. 31-02096-216857-02. 

APPALACHIAN STONE COMPANY 

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamiira, Commissioners 

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On June 14, 2010, the Commissio11 recei.ved from , 

Appalachian Stone Co., a motion by counsel seeking to reopen a penalty assessment that had 

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

§ 815(a). On July 9, 2010, the Commission received a response from the Secretary of Labor 

stating that she does not oppose the request to reopen the assessment. 

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

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

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

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

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

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

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

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

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

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

See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable 

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

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

32 FMSHRC Page 1604 . 
for a failure to timely respond, the case may be reopened and appropriate proceedings on the 

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

Having reviewed the facts and circumstances of this case, the contractor's request, and 

the Secretary's response, we hereby reopen this matter and remand it to the Chief Administrative · 

Law Judge for further proceedings pursuant to the Mine Act and the Commission's Procedural 

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

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

§ 2700.28. 

Michael F. Duffy, Commissioner 

Rol;>ert F. Cohen, Jr., Commissioner 

Patrick K. Nakamur~ Commissioner 

32 FMSHRC Page 1605 
Distribution: 

Adele L. Abrams, Esq. . 

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

4740 Corridor Place, Suite D 

Beltsville, MD 20705 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

601 New Jersey Avenue, N.W., Suite 9500 

Washington, D.C. 20001-2021 

32 FMSHRC Page 1606 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

. v. 

D & H QUARRY, INC. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 . 

WASHINGTON, DC 20001 

December 14, 2010 

Docket No. SE 2010-1223-M 

A.C. No. 09-01057-211071 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) (''Mine Act"). On September 23, 2010, the Commission received from 

D & H Quarry, Inc. ("D & H") a motion requesting that the Commission reopen a penalty 

assessment that had become a final order of the Commission pursuant to section 105(a) of the 

Mine Act, 30 U.S.C. § 815(a). 

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

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

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

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

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

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

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

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

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

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

See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable 

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

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

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

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

32 FMSHRC Page 1607 
On February 11, 2010, the Department of Labor's Mine Safety and Health Administration 

("MSHA'') issued Proposed Assessment No. 000211071 to D & H. In its request, D & H alleges 

that its President, who is responsible for overseeing health and safety activities at the mine, had 

been diagnosed with cancer between the time the citations were issued and the time that the 

proposed assessment was issued, and was undergoing treatment and surgery at the time the 

assessment was issued. The President's wife, who is the Secretary of D & H, states that she 

believed that she had returned the assessment in a timely manner while dealing with her 

husband's surgery. She further states that she "may have sent [the assessment] to the wrong 

address or it was lost in the mail." Affidavit of Kathy Addison. D & H further alleges that it was 

unaware that MSHA had not received the contest of the assessment until it received a 

delinquency notice dated May 6, 2010, and then sent a letter to MSHA on May 31, 2010, 

explaining that it believed that the proposed assessment had been timely contested. 

The Secretary does not oppose D & H's request to reopen Assessment No. 000211071. 

. ~--

32 FMSHRCPage 1608 
Therefore, in the interests of justice, we hereby reopen this matter and remand it to the 

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

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

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

See 29 C.F.R. § 2700.28. 

Robert F. Cohen, Jr., Commissioner 

:~ Patrick K. Nakamura, Commissioner 

32 FMSHRC Page 1609 
Distribution: 

Adele L. Abrams, Esq. 

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

4740 Corridor Place, Suite D 

Beltsville, MD 20705 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Melanie Garris, Acting Chief 

Office <;>fthe Penalty Compliance 

U.S. Dept. Of Labor, MSHA . 

U 00 Wilson Blvd., 

Arlington, VA 22209 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

601 New Jersey Avenue, N.W., Suite 9500 

Washington, D.C. 20001-2021 

32 FMSHRC Page 1610 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH. 

ADMINISTRATION (MSHA) 

v. 

QUALITY SAND & GRAVEL 

601 NEW JERSEY AVENUE; NW 

SUITE 9500 

WASHINGTON; DC 20001 

December 14, 2010 

Dock~t No. WEST 2010-1646-M 

. A.C. No. 10-02141-208356 

Docket No. WEST 2010-1914-M 

A.C. No. 10-02141-179350 

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

ORDER 

BY THE COMMISSION: 

. This matter arises under the Fe4eral Mine Safety and Health Act of 1977, 30 U.S.C. 

§ 801 et seq. (2006) ("Mine Acf'). On August 6, 2010, and September 27, 2010, the . 

Commission received from Quality Sand & Gravel ("Quality'') requests to reopen two penalty · 

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

Mine Act, 30U.S.C. § 815(a). 1 . 

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

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

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

is deemed a final order of the Commission. 30 u.s.c. §, 815(a). 

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

uncontested assessments that have beqome final Commission orders under section 105(a). Jim 

Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) C'JWR"). In evaluating requests to 

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

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

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

consolidate docket numbers WEST 2010-1646-M and WEST 2010-1914-M, both captioned 

Quality Sand & Gravel, and involving similar factual and procedural issues. 29 C.F.R. 

§ 2700.12. 

32 FMSHRC Page 1611 
from a final order of the Commission on the basis of mistake, inadvertence, or excusable neglect. 

See 29 C.F.R. § 2700.l(b) ("the Commission and its Jug.ges shall be guided so far as practicable 

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

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

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

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

On March 17, 2009, and January 12, 2010, the Department of Labor's Mine Safety and· 

Health Administration (''MSHA'') issued Proposed Assessment Nos. 000179350 ahd 000208356, 

respectively, to Quality. In its request to reopen Proposed Assessment No. 000179350, Quality 

states that it is under new management and that it only learned recently that MSHA did not 

receive its contest. Quality also asserts that it never received a delinquency letter covering the 

assessment. The Secretary opposes Quality's request to reopen because it was filed more than 

one year and five months after the proposed assessment became a final order of the Commission. 

She also notes that the assessment was sent to the Treasury Department for collection on 

October 15, 2009. 

In its request to reopen Assessment No. 000208356, Quality alleges that shortly after the 

citations contained in the assessment were issued in November 2009, it sent a letter to the MSHA 

district office, disputing all 12 violations. Quality also asserts that it sent a letter to MSHA on 

February 9, 2010, within the 30-day contest period, informing MSHA of its dispute regarding the 

12 violations. Quality also attaches a letter to MSHA dated April 16, 2010, inquiring as to the 

status of its dispute of these violations. The Secretary states that she does. not. oppose Quality's 

request to reopen Assessment No. 000208356, 

Having reviewed the facts and circumstances of these proceedings, the operator's requests 

and the Secretary's responses, we agree that Quality has failed to provide a sufficient basisior 

the Commission to reopen Assessment No. 000179350, but has provided a sufficient basis for 

reopening with respect to Assessment No.· 000208356;' · 

Proposed Assessment No. 000179350 became a final order of the Commission on 

April 23, 2009, and more than a year passed befor~ the operator sought reopening with the 

Commission on September 27, 2010. In fact, we note that the reopening request was submitted 

almost a year after the matter had been referred for collection with the Treasury Department. 

Under Rule 60(b ), any motion for relief must be made within a reasonable time, and in the case 

of mistake, inadvertence, or excusable neglect not more than one year after the order was entered. 

Fed. R. Civ. P. 60(b). The Commission generally denies requests for reopening that are brought 

more than a year after the order has become final. JS Sand & Gravel, Inc., 26 FMSHRC 795, 

796 (Oct. 2004). Accordingly, we deny the request to reopen Assessment No. 000179350.2 

2 We are mindful of Quality's concern with the amount of the penalty and its effect on 

business. We note that MSHA' s Civil Penalty Compliance Office may be able to arrange an 

installment repayment plan if an operator is unable to pay this debt all at one time. See 

32 FMSHRC Page 1612 
With respect to Assessment No. 000208356, we grant the request to reopen the 

assessment and remand it to the Chief Administrative Law Judge for further proceedings 

pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700. · 

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

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

Robert F. Cohen, Jr., Commissioner 

~~L~ Patrick K. Nakamura, Commissioner 

Delinquency Letter dated June I 0, 2009. 

32 FMSHRC Page 1613 
Distribution: 

Kerry Fuller, Gen. Mngr. 

Quality Sand & Gravel, Inc. 

P.O. Box455 

Meridian, ID 83680 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Melanie Garris, Acting Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Healthlleview Commission 

601 New Jersey Avenue, N.W., Suite 9500 

Washington,' D.C. 20001-2021 

32 FMSHRC Page 1614 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

DMC MINING SERVICES 

SUITE9500 

WASHINGTON, DC 20001 

December 14, 2010 

Docket No. WEST 2010-1888-M 

A.C. No. 26-02286-212068 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) f'Mine Act''). On September 29, 2010, the Commission received from 

DMC Mining Services, a motion requesting that the Commission reopen a penalty assessment 

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

U.S.C. § 81S(a). On October 22, 2010; the Commission received a response from the Secretary 

of Labor stating that she does not oppose the request to reopen the assessment. 

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

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

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

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

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

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

Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to 

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

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

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

See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable 

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

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

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

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

32 FMSHRC Page 1615 
Having reviewed the facts and circumstapces of this case, the operator's request, and the 

Secretary's response, we hereby reopen this mattei: and remand it to the Chief Administrative 

Law Judge for :further proceedings pursuant to the Mine Act and the Commission's Procedural 

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

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

§ 2700.28. 

Michael F. Duffy, Commissioner · 

Robert F. Cohen, Jr., Commissioner 

~-Patrick K. Nakamura, Commissioner 

32 FMSHRC Page 1616 
Distribution 

C. Gregory Ruffennach, Esq. 

DMC Mining Service Corp. 

1629 K Street, Suite 300 

Washington, D.C. 20036 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Melanie Garris, Acting Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

601 New Jersey Avenue, N.W., Suite 9500 

Washington, D.C. 20001-2021 

32 FMSHRC Page 1617 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

ELK RUN COAL COMP ANY 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

December 14, 2010 

Docket No. WEV A 2009-511 

A.C. No. 46-07009-161679 

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

ORDER 

BY: Jordan, Chairman; Duffy, Young, and Nakamura, Commissioners 

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

§ 801 et seq. (2006) ("Mine Act"). On December 19, 2008, the Commission received froni Elk 

Run Coal Company ("Elk Run'') a motion seeking to reopen a penalty assessment that had 

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

815(a). 

Under section l 05( a) of the Mine Act, an operator who wishes to contest a proposed 

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

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

is deemed a final order of the Commission. 30 U.S.C. § 81S(a). 

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

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

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

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

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

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

See 29 C.F.R. § 2700. l{b) ("the Commission and its Judges shall be guided so far as practicable 

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

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

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

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

32 FMSHRC Page 1618 
Affidavits submitted by Elk Run stated that the operator intended to contest the proposed 

penalty assessment and faxed it to counsel. However, the fax allegedly never was received by 

counsel. When the operator realized that the fax had not been received, it promptly sought 

reopemng. 

The Secretary states that she does not oppose the reopening of the proposed penalty 

assessment. However, as our dissenting colleague and the Secretary note, this case represents the 

fourth time that Elk Run has filed· a request to reopen sinc.e July 2007. The Secretary urges that 

Elk Run take whatever additional steps are necessary to ensure that future contests are filed in a 

timely manner. 1 

Having reviewed Elk Run's request.and the Secretary's response, in the interests of 

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

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

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

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

.MafY_Lrd~ ~~-~ ~ · · . 

c;t:1)L 

Patrick K. Nakamura, Commissioner 

1 While the facts of the prior cases are significantly different, in light of this history of 

motions to reopen, the Commission will employ greater scrutiny in considering whether to grant 

any requests to reopen filed by Elk Run after the date of this order. See Elk Run Coal Co., 32 

FMSHRC __ ,No. WEV A 2009-1738 (Dec. 10, 2010). 

32 FMSHRC Page 1619 
Commissioner Cohen, dissenting: 

I cannot agree with my colleagues' determination that Elk Run has established 

inadvertence or excusable neglect so as to justify reopening the assessment in this case. Elk Run 

attributes the failure to file its notice of contest to the fact that the Safety Director had "only 

recently" been transferred to that position and ''was in the process oflearning her job duties." 

Mot. at 1-2. The Safety Director attempted to fax the proposed assessment to counsel so that a 

notice of contest could be filed, but the fax did not go through '~due to the large vollillle of · 

documents being faxed." Id. at 2. As Elk Run acknowledges, "[the Safety Director] did not 

check to make sure that the fax was accepted and a confirmation received." Id. The penalties 

which Elk Run intended to contest total $75,394. Id. at Ex. 1. 

In view of Elk Run's history of failing to file timely contests ofproposed assessments,' I 

view the Safety Director's failure to successfully fax the proposed assessment to counsel (and, 

more importantly, the failure to check on whether the fax had gone through) not as an isolated 

instance of inadvertence but as the result of an inadequate and unreliable internal processing 

system, which does not justify reopening. Pinnacle Mining Co., 30 FMSHRC 1061 (Dec. 2008); 

Pinnacle Mining Co., 30 FMSHRC 1066 (Dec. 2008); Highland Mining Co., 31FMSHRC1313, 

1315 (Nov. 2009); Double Bonus Coal Co., 32 FMSHRC 1155 (Sept. 2010); see Gibbs v. Air 

Canada, 810 F.2d 1529, 1537-38 (11th Cir. 1987) (District Court did not abuse its discretion for 

denying RUle 60(b) mQtion on the grounds that the movant failed to establish minimum 

procedural safeguards that would have avoided default). Not to check a fax confirmation cannot 

be justified by relative inexperience, and the fact of a "large volume of documents being faxed'' 

demonstrates the need for greater attention rather than being an excuse for failure, especially 

given the large amount of money at stake. 

Robert F. Cohen, Jt., Commissioner 

1 This is the fourth time that Elk Run filed a request to reopen within an 18 month period. 

In at least three of these four instances, including this case, the failure was due to an avoidable 

mistake on its part. Moreover, since this motion was filed, Elk Run filed another motion to 

reopen an assessment which had become final because of an avoidable mistake. See Elk Run 

Coal Co., 29 FMSHRC 613 (Aug. 2007); Elk Run Coal Co., 30 FMSHRC 423 (June 2008); Elk 

Run Coal Co., 32 FMSHRC __ , WEVA2009-1738 (Dec. 10, 2010). 

32 FMSHRC Page 1620 
Distribution: 

Max L. Corley, III, Esq. 

Dinsmore & Shohl, LLP 

P. 0. Box 11887 

900 Lee Street, Suite 600 

Charleston, WV 25339 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA, U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

601 New Jersey Avenue, N.W., Suite 9500 

Washington, D.C. 20001-2021 

32 FMSHRC Page 1621 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRET ARY OF LABOR, 

MINE SAFETY ANO HEALTH 

ADMINISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

December 15, 2010 

Docket No. SE 2010-177-M 

A.C. No. 40-00168-175532 

EAST TENNESSEE ZINC COMP ANY 

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners·· 

ORDER 

BY: Jordan, Chairman; Young, Cohen, and Nakamura, Commissioners 

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

§ 801 et seq. (2006) ("Mine Act"). On November 30, 2009, the Commissic.m received from 

East Tennessee Zinc Company ("ETZC") a motion by counsel seeking to reopen a penalty . 

assessment that had become a final order of the Commission pursuant to section 105(a) of the 

Mine Act, 30 U.S.C. § 815(a). 

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

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

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

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

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

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

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

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

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

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

See 29 C.F.R. § 2700.l{b) {"the Commission and its Judges shall be guided so far as practicable 

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

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

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

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

32 FMSHRC Page 1622 
On February 3, 2009, the Department of Labor's Mine Safety an:d Health Adininistration 

("MSHA") issued Proposed Assessment No. 000175532 to ETZC for fifteen citations that 

MSHA had issued to the operator in December 2008. MSHA also issued Proposed Assessment 

No. 000175533 to ETZC on February 3, 2009. ETZC states that upon receipt, it forwarded both 

proposed assessments to counsel to have contests filed as to each, but that "during subsequent 

administrative handling of the cases, Case No. 000175533 was contested, but inadvertently Case 

No. 000175532 was not." Mot. at 2. ETZC asserts that it discovered it was delinquent upon 

consulting MSHA's data retrieval system. Id. On December 24, 2009, the Commission received 

a response from the Secretary of Labotstating that she does not oppose the request to reopen the 

assessment. 

Having reviewed ETZC's request and the Secretary's response, we conclude that ETZC 

has failed to provide a sufficiently detailed explanation for its failure to timely contest the 

proposed penalty, assessment. The operator's explanation that it failed to file a timely contest due 

to "administrative oversight" by counsel (Mot. at 2), without any further elaboration, does not 

provide us with an adequate basis to justify reopening the assessment. We note in particular that 

ETZC fails to provide any explanation for its inaction during the prolonged period of over eight 

months between the assessment becoming a final order and the filing of the motion to reopen. 

Accordingly, we deny without prejudice ETZC's request. See, e.g., Eastern Associated Coal 

LLC, 30 FMSHRC 392, 394 (May 2008); James Hamilton Constr., 29 FMSHRC 569, 570 (July 

2007). 

32 FMSHRC Page 1623 
Any amended or r~newed request by ETZC to reopen Assessment No. 000175532 must 

be filed within 30 days of the date of this order. Any such request filed after that time will be 

denied with prejudice. . ·· . · 

Robert F. Cohen, Jr., Commissioner 

~ Patrick K. Nakamura, Commissioner 

32 FMSHRC Page 1624 
Commissioner Duffy, dissenting: 

I would grant this unopposed motion to reopen. In the past the Commission has denied a 

motion to reopen because of the operator's delay in seeking relief after having been notified by. 

the Secretary of its delinquency. Here, there is no evidence that a delinquency notice was sent 

prior to the operator's discovery ef the delay upon its own investigation. On the basis of that 

distinction and the Secretary's non-opposition, the motion should be granted 

32 FMSHRC Page 1625 
Distribution: 

Michael T. Heenan; Esq. 

Ogletree, Deakins, Nash, 

Smoak & Stewart, P.C. 

2400 N Street NW, 5th Floor 

Washington, DC 20037 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

601 New Jersey Avenue, N.W., Suite 9500 

Washington, D.C. 20001-2021 

32 FMSHRC Page 1626 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, . 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

B & W RESOURCES, INC. 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

. December 15, 2010 

Docket No. KENT 2010-1080 

A.C. No.15-19008-212909 

BEFORE: Jordan, Chairman; Duffy, Young, Cohen, and Nakamura, Commissioners . . 

ORDER 

BY THE COMMISSION: . 

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

§ 801 et seq. (2006) (''Mine Act"). On May 18, 2010, the Commission received :from B & W 

Resources, Inc. ("B & W") a letter seeking to reopen a penalty assessment that had beconie a 

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

Under section I 05( a) of the Mine Act, an operator who wishes to contest a proposed 

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

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

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

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

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

Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (MayJ993) ("JWR"). In evaluating requests to 

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

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

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

See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable 

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

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

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

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

32 FMSHRC Page 1627 
On March 4,2010, the Department of Labor's Mine Safety and Health Administration 

C'MSHA'') issued Proposed Assessment No. 000212909 to B & W proposing a penalty for one 

order that had been issued to the operator on January 6, 2010. According to B & W, it had 

moved its office and hired new personnel to manage the office. The operator explains that the 

recipient's inexperience in promptly delivering mail to the appropriate person, and a change in 

Safety Director personnel, contributed to the responsible person not receiving the assessment 

fonn until April 15, 2010. The operator states that when the appropriate person received the 

assessment form, the contest was promptly faxed to MSHA. The operator submits that it has 

since corrected the personnel problem. 

The. Secretary opposes the request to reopen. She states that B & W's explanation for the 

failure to file a timely contest is conclusory and thus insufficient to establish grounds for 

reopening the assessment. The Secretary notes that the fact of inadequate or unreliable office 

procedures does not constitute an adequate excuse under Rule 60(b) of the Federal Rules of Civil 

Procedure. The Secretary also points out that B & W is currently delinquent at this mine with 

eight separate penalty assessments totaling $95,984.07, including this case, and has three oth~ 

mines sites that have an outstanding, delinquency totaling $4, 785.39, which she alleges is an . 

indication that the operator has acted in bad faith in seeking to reopen this final order. 

Having reviewed B & W's request and the Secretary's response, we conclude that the. 

operator has not provided a sufficiently detailed explanation for its failure to timely contest the 

proposed penalty assessment. Without further elaboration on all of the relevant circumstances, 

including the allegations of delinquent penalties raised by the Secretary, the operator's 

explanation has not provided the Commission with an adequate basis to reopen. Accordingly, we 

hereby deny the request for relief withoμt prejudice. · See Eastern Assoc. Coal, LLC, 30 

FMSHRC 392, 394 (May 2008); James Hamilton Constr., 29 FMSHRC 569, 570 (July 2007). 

The words "without prejudice" mean that B. & W may submit another request to reopen 

Assessment.No. 000212909. 1 

1 IfB & W submits another request to reopen these cases, it must establish good cause for 

not contesting the citations and proposed assessments within 30 days from the date itreceivoo the 

proposed penalty assessments from MSHA. Under Rule 60(b) of the Federal Rules of Civil 

Procedure, the existence of "good cause" may be shown by a number of different factors 

including mistake, inadvertence, surprise, or excusable neglect on the part of the party seeking 

relief, or the discovery of new evidence, or fraud, misrepresentation, or other misconduct by the 

adverse party. B & W should include a full description of the facts supporting its claim of"good 

cause," including how the mistake or other problem prevented it from responding within the time 

limits provided in the Mine Act, as part of its request to reopen these cases. B & W should also 

include copies of all documents supporting its request to reopen these cases. 

32 FMSHRC Page 1628 
At a minimum, the operator must provide an affidavit satisfactorily responding to the 

allegations raised in the Secretary's response, an explanation of how it normally contests 

proposed penalties, and specific information regarding why that process did not work in this 

instance. Any amended or renewed request by B & W to reopen Assessment No. 000212909 

must be filed within 30 days of the date of this order. Any such request filed after that time will 

be denied with prejudice. 

Michael 

Robert F. Cohen, Jr., Commissioner 

~L Patrick K. Nakamura, Commissioner 

32 FMSHRC Page 1629 
Distribution: 

Scott Warren · 

B& W Resources, fuc. 

P.O. Box 249 

Stanville, KY 41659 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Melanie Garris, Acting Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 25th· Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

601 New Jersey Avenue, N.W., Suite 9500 

Washington, D.C. 20001-2021 

32 FMSHRC Page 1630 
FEDERAL MINE SAFETY. AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

. 601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

December 16, 2010 

Docket No. KENT 2011- 161 

A.C. No. 15-17077-229820 Q7G 

B & S TRUCKING COMP ANY, INC. 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) (''Mine Ac;t"). On November 1, 2010, the Commission received from 

B & S Trucking Company, Inc.,. a letter requesting that the Commission reopen a penalty 

assessment that had become a final order of the Commission pursuant to section 105(a) of the 

Mine Act, 30 U.S.C. § 815(a). On December 1, 2010, the Commission received a response from 

the Secretary of Labor stating that she does not oppose the request to reopen the assessment. 

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

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

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

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

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

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

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

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

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

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

See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable 

32 FMSHRC Page 1631 
by the Federal Rules of Civil Procajure"); .!WR, 15 FMSHRC at 787. We have also observed 

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

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

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

Having reviewed the facts and circumstances of this case, the operator's request, and the 

Secretary's response, we hereby reopen this matter and remand it to the Chief Administrative 

Law Judge for further proceedings pursuant to the Mine Act and the Commission's Procedural 

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

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

§ 2700.28 . 

. 

Michael 

·~ F. Duffy~s:ill; 

Robert F. Cohen, Jr., Commissioner 

I 

·~.J . ·.·.·W~·-··· ·. 

Patrick K. Nakamura, Commissioner· 

32 FMSHRC Page 1632 
Distribution: 

Jim Brummett 

Conference & Litigation Officer 

B & S Trucking Co., Inc. 

P.O. Box 313 

Pineville, KY 40977 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Melanie Garris, Acting Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

601 New Jersey Avenue, N.W., Suite 9500 

Washington, D.C. 20001-2021 

32 FMSHRC Page 1633 
FEDERAL MINE SAFETY AND H~AL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

December 16, 2010 

Docket Nos. WEV A 2006-654, et al. . 

ARACOMA COAL COMPANY, INC. 

BEFORE: Jordan, Chairman; Duffy, Young, and Cohen Commissionera1 

ORDER ON MOTION FOR RECONSIDERATION 

BY THE COMMISSION: 

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

§ 801 et seq. (2006). On December 18, 2008, the parties filed with the Chief Judge a joint 

motion to approve settlement of 102 penalty dockets consisting of 1 ',302 separate citations and 

orders, covering two mines. The joint motion enumerated the 102 penalty dockets and 1,302 

citations and orders in Addendum 1 and Addendum 2 attached to the motion. Chief Judge 

Robert Lesnick issued a Decision Approving Settlement/Order to Pay on December 23, 2008. 

30 FMSHRC 1160 (Dec. 2008) (ALJ}. On January 22, 2009, the Commission on its own 

motion, directed review of the judge's decision approving the settlement. 

On January 23, 2009, the parties filed with the judge a Joint Motion to Correct Settlement 

Order. The motion explained that the enumeration of the penalty dockets and of the citations and 

orders in Addendum I and Addendum 2 of the settlement motion had contained inaccuracies. 

Specifically, it had inadvertently contained 21 citations which were not part of the settlement, 

and contained a number of errors in associating citations and orders with the correct penalty 

docket. In their joint brief filed with the Commission, the parties noted the motion to the judge 

1 A new Commissioner possesses legal authority to participate in pending cases, but such 

participation is discretionary. Mid-Continent Res., Inc., 16 FMSHRC 1218 (June 1994). In the 

interest of efficient decision making, Commissioner Patrick K. Nakamura has elected not to 

participate in this matter. 

32 FMSHRC Page 1634 
and pointed out that pursuant to Commission Procedural Rule 69(c), 29 C.F.R. § 2700.69(c), the 

judge did not have authority to correct the clerical errors without leave of the Commission. Jt. 

Br. at 1 n.l. 

On November 17, 2010, the Commission issued a decision affirming the judge's approval 

of the settlement. 32 FMSHRC _,Nos. WEVA 2006-654, et. al. (Nov. 17, 2010). On 

November 24, 2010, the Secretary filed a motion for reconsideration pursuant to Commission 

Procedural Rule 78(a), 29 C.F.R. § 2700.78(a), on behalf of the parties, which asked the' 

Commission to reconsider its decision of November 17, 2010, so as to address the Joint Motion 

to Correct Settlement Order previously filed with the Chief Judge. 

The parties' joint motion to correct the Chief Judge's Decision Approving 

Settlement/Order to Pay is granted, and pursuant to the January 23, 2009letter from the Solicitor 

of Labor to Judge Lesnick, the Judge's December 23, 2008 Decision shall be corrected as 

follows: 

1. In the caption of the Decision, Docket Nos. WEVA 2007-444 and WEVA 2007-525 

shall be deleted; 

2. Docket Nos. WEVA 2006-659 and WEVA 2006-661 shall be added to the caption on 

the first cover page of the Decision; 

3. In the first paragraph of the Decision, the reference to "1,302 citations and orders" 

shall be changed to "1,281 citations and orders;" 

4. In both the first paragraph of the Decision and in footnote 1 on page 1 of the Decision, 

the amount of the total assessment shall be changed from "$2,806,027to $2,803,293;" 

5. In relation to Addenda 1and2 of the parties' Motion to Approve Settlement, 

incorporated by reference into the court's December23, 2008 Decision Approving 

Settlement/Order to Pay: · 

(a) the 20 citations set forth within Docket No. WEVA 2007-444 on pages 9 and 

10 of Addendum 1 (relating to the Aracoma Alma Mine #1) shall be deleted, and 

(b) the one citation set forth within Docket No. WEVA 2007-525 on page 3 of 

Addendum 2 (relating to the Hernshaw Mine) shall be deleted; 

6. That the following 19 citation numbers previously associated with Docket No. WEV A 

2006-660- set forth on page 3 of Addendum 1 (relating to the Aracoma Alma Mine #1)- shall 

be associated with Penalty Docket No. WEV A 2006-659: 

32 FMSHRC Page 1635 
7241394, 7241396, 7244374, 7244375, 7244376, 7244377, 

7244378, 7244379, 7244380, 7244381,7249273, 7250537, 

7250538, 7252615, 7252805, 7252808, 7252810, 7252811, 

7252812; 

7. That the following 20 citation numbers - set forth on pages 23 and 24 of Addendum 1 

(relating to the Aracoma Alma Mine #1 )-shall be associated with Penalty Docket No. WEV A 

2006-660: 

7241398, 7241399, 7241400, 7244382, 7244383, 7244384, 

7244386, 7252618, 7252619, 7252630, 7252640, 7252834, 

7252838, 7252844,7252845, 7252850, 7252855,7252857,: 

7252858, 7252859; 

8. That the following two citation numbers - set forth on page 24 of Addendum I 

(relating to the Aracoma Alma Mine #1) - shall be associated with Penalty Docket No. WEV A 

2006-661: 

7252866, 7253425; 

9. That the following six citation and order numbers- set forth on pages 23 and 24 of 

Addendum 1 (relating to the Aracoma Alma Mine #1)-shall be associated with Penalty Docket 

No. WEV A 2008-1577: 

6612795, 7182014, 7265918, 7265920, 7273497, 7280540; 

10. That the following 30 citation numbers - set forth on pages 5 and 6 of Addendum 2 

(relating to the Hernshaw Mine)- shall be associated with Penalty Docket No. 2008-1567: 

6616651,6616652,6616653,6616654,6616655,6616658, 

6616659,6616660,6616663,6616670,6616672,6616673, 

6616679,6616680,6616681,6616682,6616717, 7279591, 

7279594, 7279595,7279596, 7279599, 7279606, 7279607, 

7279608, 7279609, 7279610, 7279612, 7279615, 7279618. 

32 FMSHRC Page 1636 
Accordingly, this matter is remanded to the Chief Judge to correct the settlement order as 

indicated above to conform to the corrections submitted by the parties. 

Mary Lu Jordan, Chairman 

Michael F. Duffy, Commissioner 

Robert F. Cohen, Jr., Commissioner 

32 FMSHRC Page 1637 
Distribution 

Jerald Feingold, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22n<1 Floor 

Arlington, VA 22209-2247 

Mark E. Heath, Esq. 

Spilman, Thomas & Battle, PLLC. 

300 Kanawha Blvd., East 

P.O. Box273 

Charleston, WV 25321 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA, U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J: Lesnick 

Federal Mine Safety & Health Review Commission 

601 New Jersey Avenue, N.W., Suite 9500 

Washington, D.C. 20001-2021 

32 FMSHRC Page 1638 
FEDERAL MINE SAFETY AND·HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

December 16, 2010 

Docket Nos. WEV A 2006".'654, et al. 

ARACOMA COAL COMP ANY, JNC. 

BEFORE: Jordan, Chairman; Duffy, Young, and Cohen Commissioners1

. 

AMENDED DECISION 

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

§ 801 et seq. (2006) ("Mine Act"). On December 23, 2008, Chief Administrative Law Judge 

Robert Lesnick approved a settlement agreement between the Secretary of Labor and Aracoma 

Coal Company ("Atacoma"), which disposed of 102 penalty dockets that encompassed 1,281 

citations and orders. 30 FMSHRC 1160 (Dec. 2008) (ALJ).2 Some of the citations and orders 

resulted from an investigati9n by the Department of Labor's Mine Safety and Health 

Administration ("MSHA") into conditions at Aracoma's Alma No. 1 Mine and the Hernshaw 

Mine, following a fire at the Alma mine that resulted in two fatalities on January 19, 2006. Id. 

at 1167. Others were alleged violations occurring at the two mines after the fire. 

1 A new Commissioner possesses legal authority to participate in pending cases, but such 

participation is discretionary. Mid-Continent Res., Inc., 16 FMSHRC 1218 (June 1994). In the 

interest of efficient decision making, Commissioner Patrick K. Nakamura has elected not to 

participate in this matter. 

2 The decision is amended pursuant to the parties' joint motion for reconsideration, filed 

November 24, 2010. In that motion, the parties asked the Commission to reconsider its original 

decision in this matter dated November 17, 2010, in order to address a joint motion to correct the 

settlement order that had initially been filed with the Chief Judge after the Commission granted 

review of this case on its own motion. 

32 FMSHRC Page 1639 
On J~uary22, 2009, pursuant to section ll3(d)(2)(B) of the Mine Act, 30 U.S.C. 

§ 823( d)(2)(B), Chairman Jordan and Commissioner Cohen voted to order sua sponte review of 

the judge's decision on the grounds that the decision may be contrary to law and presented a 

novel question of policy. The Commission direction for review was limited to ''the question of 

whether the provisions of the settlement agreement ... relating to the pattern of violations 

procedures are consistent with the provisions and objectives of section 104( e) of the Mine Act, 

30 U.S.C. § 814(e)." After receiving permission from the Commission, the Secretary and 

Aracoma filed a joint brief on the question. 

Having considered the judge's decision and the settlement agreement in light of thejoint 

brief, Chairman Jordan and Commissioners Duffy and Young affirm the judge's decision. · 

Commissioner Cohen would vacate and remand the judge's decision approving the settlement. 

Separate opinions of Commissioners follow. 

Commissioners Duffy and Young, affirming the judge's decision: 

We did not join in ordering sua sponte review because nothing at that time led us to 

believe that the judge had abused his discretion in approving the settlement. Nothing we have 

seen since disturbs that conclusion, so we affirln his decision. 

Michaei F. Duffy, CoJJ)Jllissioner 

32 FMSHRC Page 1640 
Chairman Jordan, affirming the judge's decision: 

I. Introduction 

In this civil penalty proceeding arising under-the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 801 et seq. (2006) ("Mine Act"), the Commission granted review on: its own 

motion of a decision approving a settlement agreement between the Secretary of Labor and 

Aracoma Coal Company, Inc. ("Aracoma"). In his decision, Chief Judge Robert Lesnick 

approved the settlement of proceedings consisting of 102 penalty dockets and 1,281 citations and 

orders~ 30 FMSHRC 1160 (Dec. 2008) (ALJ) .. Twenty-five of these violations were designated 

as contributing to the January 19, 2006 fire at Aracoma's Alma Mine No. 1 that resulted in the 

deaths of two miners. Id. at 1167. The proposed penalties totaled $2,803,293. In the settlement 

agreement, Aracoma agreed to accept all the violations as written and to pay a penalty of 

$1,700,000. Id. 

In addition to the civil penalties, Aracoma agreed with the United States Attorney for the 

Southern District of West Virginia to enter a guilty plea to a ten-count information related to the 

accident, and to pay a criminal fine of $2,500,000. Id. at 1169. The court subsequently accepted 

this plea agreement. Letter of April 21, 2009, from Jerald S. Feingold, Attorney, United States 

Department of Labor. 

As part of the settlement, the parties also reached an agreement, discussed in detail below, 

providing Aracoma with an opportunity to voluntarily provide the Department of Labor's Mine 

Safety and Health Administration ("MSHA") with plans to reduce the rate of significant and 

substantial ("S&S") violations at both its Alma No. I Mine and its Hernshaw Mine. Pursuant to 

the agreement, each mine could remain on the plan as long as it continued. to maintain the goals 

in its plan. MSHA would forego issuing a warning letter that would normally begin the process 

of designating amine as exhibiting a "pattern of violations" (or "POV"), pursuant to 30 C.F.R. 

§ 104.4, 30 FMSHRC at 1168, which as explained below, has potentially severe consequences 

for an operator. 

It is this latter portion of the settlement that is the focus of my review. In the Directfon 

for Review, the Commission limited its consideration to "the question of whether the provisions 

in the judge's settlement order relating to the pattern of violations procedures are consistent with 

the provisions and objectives of section 104(e) ofthe Mine Act, 30 U.S;C. § 814(e)." Direction 

for Review at 8. 1 

1 Section 11 O(k) of the Mine Act provides that "[ n]o proposed penalty. which has been 

contested before the Commission under section 105(a) shall be compromised, mitigated, or 

settled except with the approval of the Commission." 30 U.S.C. § 820(k). In considering 

settlements, Commission judges must review each proposed settlement in light of the six 

statutory factors set forth in section l lO(i) of the Mine Act. 30 U.S.C. § 820(i). 

32 FMSHRC Page 1641 
II. The Fire at the Alma No. 1 Mine 

On January 19, 2006, a fire occurred at the Alma Mine No. 1 which resulted in the deaths 

of two miners. Jt. Br. at 2. The fire resulted from frictional heating that occurred when the 

longwall belt became misaligned in the 9 Headgate longwall belt takeup storage unit. Order 

No. 7435539. This frictional heating ignited accumulations of combustible materials which 

"were present in the form of grease, oil, coal dust, float coal dust, coal fines and loose coal 

spillage at numerous locations along the approximate 2,000 feet (sic) length of the 9 Headgate 

longwall belt conveyor." Order No; 7435532. "[T]he need for additional cleaning and rock 

dusting" along the 9 Headgate longwall belt conv~yor was noted in the mine record books but not 

corrected "for38 of the 56 examinations" between January 2, 2006 and January 19, 2006. 

Order No. 7435527. Once ignited, the accumulations "quickly grew into the strong flaming fire 

needed to ignite the flame resistant belt." . Order No. 7435532. The resulting belt fire generated 

"copious quantities of hot, dense, toxic smoke." Id. 

Immediately upon discovery of the fire, the belt examiner notified the responsible person 

designated by the operator for that shift, but that individual failed to initiate an .immediate mine 

evacuation. Order No. 7435538. The Atmospheric Monitoring System ("AMS") should have 

provided a visual and audible signaI to all affected working sections when the carbon monoxide 

concentration reached alarm level. However, the miners at 2 Section did not receive an 

automatic notification because "[ n ]o carbon monoxide alarm unit was installed at a location 

where it could be seen or heard by miners on 2 Section." Order No. 7435523. Adequate visual 

examinations ofthe alarms and sensors, as required by 30 C.F.R. § 75.351(n)(l) would have 

revealed the lack of an alarm unit on 2 Section, as would have adequate training in the 

installation of the system components. Order Nos. 7435521 and 7435548. There was an AMS 

operator who was on duty when the mine fire occurred, but that person "did not promptly notify 

the appropriate personnel that an alarm signal had been generated." Order No. 7435529. 

During the preceding month, "[t]wo other fires occurred at this mine." Order 

No. 7435524. Alarm signals were activated in the dispatcher's office on the surface but "[i]n 

both cases, the miners in the affected areas of the mine were not notified of the alarms and were 

not withdrawn to a safe location." Order No. 7435524. 

When the fire occurred-on January 19, 2006, a breach in the separation between the belt 

and escapeway "allowed smoke and carbon monoxide gas to inundate the primary escapeway 

used by the miners during the evacuation from 2 Section." Order No. 7435530. The breach 

existed because "prior to November 2005 ... one or more of the permanent stoppings that 

provided separation between the No. 7 Belt conveyor entry and the primary escapeway in the 

North East Mains were (sic) removed." Id. This condition should have been detected during 

preshift exams. Order No. 7435108. An "inaccurate map" also "resulted in the operator not 

correcting the lack of separation between the primary escapeway and the belt entry." Order 

No. 7435537. 

32 FMSHRC Page 1642 
Efforts to fight the fire were hampered by several factors .. The fire-fighting equipment 

was inadequate in that "[t]he threads of the female coupling of the fire hose were not compatible 

with the threads of the male pipe of the fire hose outlet valve." Oider No. 7435534. The 

pertinent water supply line ''was not capable of delivering 50 gallons of water per minute at a 

nozzle pressure of 50 pounds per square inch." Order No. 7435533. According to an eye 

witness, ''while attempting to fight the fire, the fire hose outlet valve located near the belt 

conveyor takeup storage unit wa8 opened and no water was produced." Id. ·In addition, "[t]he 

mine operator failed to install the water sprinkler system in accordance with 30 C.F.R. 

§ 75.1101-S(a)." OrderNo. 7435535. 

MSHA issued 25 citations and orders to Aracoma as a result of the fire and resulting 

deaths of miners Don Bragg and Ellery Hatfield. All were denoted as significant and 

substantial.2 Of these, 21 were the result of"reckless disregard" which is defined in 30 C.F.R. 

§ 100.3( d) as "conduct which exhibits the absence of the slightest degree of care." The 

remaining four orders were characterized by MSHA as resulting from "high negligence." 

MSHA assessed each of the 25 contributory violations the then-maximum penalty of $60,000. 

Aracoma contested the assessments for these 25 citations· and orders. In addition to these 

proposed assessments, Aracoma contested 1,256 other proposed assessments: Indeed, it appears 

that Aracoma contested every penalty for a citation or order that MSHA issued between January 

19, 2006, and May 6, 2008; the inclusive dates of the citations and orders in this case. The 

citations and orders appended to the In Camera Joint Motion to Approve Settlement 

("Settlement") include 298 proposed assessments for $60 each and 162 proposed settlements for 

$100 each. 

ill. Overview of Commission Review of ALJ Decisions on Settlement Agreements 

The Commission has recognized that oversight of proposed settlements of contested cases 

is an important aspect of its adjudicative responsibilities under the Mine Act. Birchfield Mining 

Co., 11FMSHRC1428, 1430 (Aug. 1989). Section llO(k) of the Mine Act, 30 U.S.C. § 821(k), 

requires the Commission and its judges "to protect the public interest by ensuring that all 

settlements of contested penalties are consistent with the Mine Act's objectives." Knox County 

Stone Co, 3 FMSHRC 2478, 2479 (Nov. 1981); see also Co-op Mining Co., 2 FMSHRC 3475, 

3475-76 (Dec. 1980) (rejecting judge's approval of a settlement after directing case for review 

sua sponte). Our own procedural rules also require that all settlements be approved by the 

Commissfon. Commission Procedural Rule 31, 29 C.F.R. § 2700.31. 

The Commission has acknowledged that, although judges have wide discretion in their 

oversight of the settlement process, "it is not unlimited and at least some of its outer boundaries 

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

§ 814( d)(l ), which distinguishes as more serious any violation that "could significantly and 

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

32 FMSHRC Page 1643 
are clear." Knox, J FMSHRC at 2479. As it has declared.in Knox, if a judge's approval or 

rejection of a settlement is fully supported by the re~ord, consistent with the statutory penalty 

criteria and not otherwise improper, the Commission will not disturb it. Id. at 2480. 

However, the Commission has at the same time cautioned that in reviewing such cases, 

"abuses of discretion or plain errors are not immune from reversal." Id. We have held that abuse 

of discretion maybe found when "there is no evidence to support the decision or if the decision 

is based on an improper understanding of the law." Akzo Nobel Salt, Inc., 19 FMSHRC 1254, 

1258 n.3 (July 1997). Thus, "the abuse of discretion standard cannot be used as a rubber stamp 

to approve all settlements." United States v. City of Miami, 614 F.2d 1322, 1335 (5th Cir. 1980). 

As stated above, the Commission's review ofthejudge's decision approving settlement 

in this case is limited to the portion of the agreement regarding how notification of potential 

pattern of violations would occur. In examining the non-financial.aspect of the settlement, I take 

into account the principle set forth in the separate opinion issued by Commissioner Marks and 

me in Madison Branch Management, 17 FMSHRC 859, 867-68 (June 1995), that "[t]he 

'affirmative duty' that section 11 O(k) places on the Commission and its judges to 'oversee 

settlements,' .... necessarily requires the judge to accord due consideration to the entirety of the 

proposed settlement package, including both its monetary and non-monetary aspects." Thus, the 

judge properly took the. POV section of the settlement intq account in issuing his decision and 

consequently, the Commission has the authority to review the POV issue in the parties' 

settlement agreement.3 

IV. MSHA Procedures for Enforcement of Section 104(e) of the Mine Act 

Before proceeding with a discussion of the parties' agreement relating to the POV 

process, it is helpful to review the legal authority,on which the implementation of this heretofore 

seldom-used provision of the Mine Act rests.4 Section I 04( e) of the Mine Act states in relevant 

part: 

( 1) If an operator has a pattern of violations of mandatory 

health or safety standards in the coal or other mine which are of 

3 In Madison Branch the Commission split evenly on the issue of whether a judge must . 

consider both the monetary and non-monetary aspects of settlement agreements. 17 FMSHRC 

at 860 n.l. For pmposes of this case, the parties have assumed that the law requires the 

Commission and its judges to consider both monetary and non-monetary aspects of settlements. 

Jt. Br. at 6 n.5. 

4 One administrative law judge has concluded that the POV procedures and policy "are 

little understood by many in industry and the bar," and acknowledged the "difficulty 

comprehending the POV process." RockhouseEnergy Mining Co., 30 FMSHRC 1125, 1129 

(Dec. 2008) (ALJ). 

32 FMSHRC Page 1644 
·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 ), 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. 

(2) If a withdrawal order with respect to any area in a coal 

or other mine has been issued pursuant to paragraph (1), a 

withdrawal order shall be issued by an authorized representative of 

the Secretary who. finds upon any subsequent inspection the 

existence in such mine of 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 health or 

safety hazard. The withdrawal order shall remain in effect until an 

authorized representative of the Secretary determines that such 

violation has been abated. 

(3) If, upon an inspection of the entire coal or other mine, 

an authorized representative of the Secretary finds no violations of 

mandatory health or safety standards that could significantly and 

substantially contribute to the cause and effect of a coal or other 

mine health and safety hazard, the pattern of violations that 

resulted in the issuance ofa notice under paragraph ( 1) shall be 

deemed to be terminated and the provisions of paragraphs (1) and 

(2) shall no longer·apply. However, if as a result of subsequent 

violations, the operator reestablishes a pattern of violations, 

paragraphs ( 1) and (2) shall again be applicable to such operator. 

30 U.S.C. § 814(e). 

32 FMSHRC Page 1645 
In enacting this provision, Congress explicitly recognized why such a sanction was 

necessary: 

The need for such a provision was forcefully demonstrated during 

the investigation by the Subcommittee on Labor of the Scotia mine 

disaster which occurred in March 1976 in Eastern Kentucky. That 

investigation showed that the Scotia mine, as well as other mines, 

had an. inspection history of recurrent violations, some of which 

were tragically related to the disasters, which the existing 

enforcement scheme was unable to address. The Committee's 

intention is to provide an effective enforcement tool to protect 

miners when the operator demonstrates his disregard for the health 

and safety of miners through an established pattern of violations; 

. . . . The Committee believes that this additional sequence 

and closure sanction is necessary to deal with continuing violations 

of the Act's standards. The Committee views the [pattern of 

violations] notice as indicating to both the mine.operator and the 

Secretary that there exists at that mine a serious safety and health 

management problem, one which pennits continued violations of 

safety and health standards. The existence of such a pattern; should 

signal to both the operator and the Secretary that there is a need to 

restore the mine to effective safe and healthful conditions and that 

the mere abatement of violations as they are cited is insufficient. 

S. Rep. No._95-181, at 32-33 (1977), reprinted in Senate Subcomm. On Labor, Comm. on 

Human Res., Legislative History of the Federal Mine Safety and Health Act of 1977, at 620-21 

(1978). 

Despite the insistence of Congress on the need for this enforcement mechanism, 

implementing regulations were not promulgated until 1990. See 55 Fed. Reg. 31,128 (July 31, 

1990). The regulations describe MSHA's procedures for determining whether an operator has 

demonstrated a POV. 30 C.F.R. § 104.1 et seq. They establish a four-step process to designate a 

POV and to terminate POV status: (1) initial screening (section 104.2); (2) identification by 

MSHA of mines with a potential POV by applying the regulatory criteria (section 104.3); 

(3) designation of POV status and issuance of the designation to the operator (section I 04.4); and 

(4) termination of POV status (section 104.5). 

The first step includes an initial annual screening (which takes into account, among other 

factors, the mine's history of S&S violations). 30 C.F.R. § 104.2. If the initial screening 

indicates that the operator "may habitually allow the recurrence of' S&S violations, the second 

32 FMSHRC Page 1646 
step, MSHA's identification of mines with a potential POV, is triggered. 30 C.F.R. § 104.3. 

The criteria used to make this determination include (1) a history of repeated S&S violations of a 

particular standard, (2) a history of repeated S&S violations of standards related to the same 

hazard, or (3) a history of repeated S&S violations caused by unwarrantable failure to comply. 

30 C.F.R § 104.3: By use of the word "or," MSHA indicated that any one of these three 

circumstances would trigger the next step. Significantly, pursuant to section 104.3(b ), only 

citations and orders which have become final shall be used to identify mines with a potential 

POV. 

Next, pursuant to section 104.4(a), if a potential pattern of violations is identified, MSHA 

is to notify the operator in writing. The operator then has a variety of ways to respond, including 

instituting a program to avoid repeated S&S violations at the mine. 30 C.F.R. § 104.4(a)(4). 

However, if the district manager continues to believe that a potential POV exists at the mine, he 

or she is to send a report to the appropriate MSHA Administrator, with a copy to the operator. 

30 C.F .R. § l 04.4(b ). The operator has an opportunity to respond to the report. After all of these 

procedures, the MSHA Administrator decides whether to issue a notice of POV, constituting the 

third step in the process. 30 C.F .R. § 104.4( c ). Finally, the regulations provide for the 

termination of POV status. 30 C.F.R. § 104.5. 

Even after these regulations were in place, however, for many years no enforcement 

action was taken byMSHA under section 104(e). US. Steel Mining Co., 18 FMSHRC 862, 872 

(June 1996) (Comm 'r Marks, concurring). In fact, the agency only recently has begun to exercise 

its authority under section 104(e) of the Act. Rockhouse, 30 FMSHRC at 1129. 

MSHA issued a screening criteria and scoring model to determine if a potential POV 

exists, and revised it in 2009. MSHA, Pattern of Violations Screening Criteria and Scoring· 

Model - 2009, previously available at http://www.msha:gov/POV /POVScreeningCriteria.pdf. . 

This document focuses on the initial screening criteria under 30 C.F.R. § 104.2, and lists a 

number of initial screening factors. It lists a series of eight specific criteria, 5 five of which are 

triggered by the issuance.of citations or orders, while the other three are triggered by citations or 

orders becoming final orders of the Commission. Significantly, the initial screening criteria· 

provides that unless a mine meets all of the criteria, it will not be considered under the next step 

of the process, the pattern of violations criteria set forth in 30 C.F.R. § 104.3. One of the eight 

initial screening factors is that "[t]he mines' (sic) rate of S&S Citations/Orders issued per 100 

inspection hours during the 24 month review period is equal to or greater than 125% of the 

National rate of S&S Citations/Orders issued per 100 inspection hours for that mine type and 

classification." As described infra, this screening factor ofl25% of the national average is at the 

heart of the settlement agreement between MSHA and Aracoma in this case. 

5 Literally, there are 10 criteria listed. However, four of them are essentially pairs, one 

being applicable to surface mines and facilities and the other being applicable to underground 

mmes. Thus, effectively, there are eight criteria applicable to any given mine. 

32 FMSHRC Page 1647 
V. The Settlement Agreement Between MSHA and Aracoma 

With regard to pattern of violations, the Aracoma settlement agreement focuses entirely 

on reducing the S&S violation issuance rate to 125% of the national average for underground 

bituminous coal mines. (According to the agreemi:mt, the issuance rate for all underground 

bituminous mines of S&S violations per l 00 inspection hours during the 24 months ending 

June 30, 2008, was 7.1. During the same period, the Aracoma Alma #1 Mine had an issuance 

rate of 15.6, while theHernshaw Mine had an issuance rate of 8.9). It provides that Aracoma 

may submit a plan to reduce (for the Alma Mine, over two to three calendar quarters) and 

maintain (for Hernshaw Mine) the rate to 125% of the national average .. No other action is 

required of Aracoma to avoid a POV Notice. 

I granted review of the judge's decision approving the settlement because the agreement 

involved enforcement of section 104( e ), the pattern of violations provision in the Mine Act that 

the Secretary had not enforced against an operator to date. Although this statutory provision has 

been in effect for over 30 years, the historic lack of enforcement means that both the practical 

and legal implications of the Secretary's recent decision to breathe life into this once moribund 

provision are still untested. 

The settlement agreement states that ''[a ]s long as the mine's S&S issuance rate remains 

at or below 125% of the national average for that quarter; the mine will not.be considered as. · 

exhibiting a potential pattern of violations .... As long as each mine continues to achieve and 

maintain the goals described above, that mine will be able to remain on its S&S reduction plan 

indefinitely and MSHA will forego issuing potential pattern warning letters.'' Settlement at 6~ 7. 

The "goals described·above" refer to the reduction of overall S&S violations to ·125% of the 

national average. The language in this section suggests that MSHA is agreeing to permanently 

forego issuing a POV warning letter to Aracoma as long as the mine's S&S violation rate does 

not exceed l 25% of the national average. 

However, -the agreement also states that the reduction plan "will remain in effect only as 

long as the mine remains in immediate jeopardy of receiving a potential pattern warning letter 

after the plan's adoption." Settlement at 5 n.3. It goes on to state that upon the first POV review 

in which it is determined that an Aracoma·mine "is no·longer in jeopardy of receiving a potential 

POV warning letter because the mine does not meet the screening criteria set forth at 

http://www.msha.gov/Pov/POVScreeningCriteria.pdf, that mine will no longer qualify for 

participation in the voluntary S&S reduction plan described herein, and will thereafter be 

evaluated, along with all other mines, under MSHA 's normal pattern. of violations process," Id. 

This language suggests that the plan, with its reliance on the 125% S&S violation rate, is not.· 

permanent, and that Aracoma will be treated just like other companies after it achieves a 

violation rate of 125% of the national average. Thus, it appears that the language of the 

settlement agreement is inconsistent with regard to the duration of the reduction plan. 

32 FMSHRC Page 1648 
One might a8k why the duration of the reduction plan matters, since no mine can be 

considered as having a potential pattern of violations if its overa11·s&S issuance rate is within 

125% of the national average. My concern was that the Screening Criteria then published on the 

internet could change in the future. MSHA could reconsider its Screening Criteria in the future, 

and eliminate the 125% industry-wide.norm as a sine qua non of POV consideration. In that 

case, based on the language contained on page 7 of the Settlement, Aracoma might contend that 

MSHA could never enforce section 104( e) of the Mine Act against it so long as its overall S&S 

issuance rate was within 125% of the national average. (Indeed, MSHA recently did revise its 

Screening Criteria and withdrew the criterion regarding the 125% industry-wide norm, 

http://www.msha.gov/pov/povsinglesource.asp, but those revised criteria are not at issue in this 

case). 

The Commission now has the benefit of a joint brief from the parties. 6 The joint brief . . does not directly address the ambiguity in the settlement agreement regarding its duration, but it 

states that the agreement would ''temporarily remove the Alma #1 Mine and the Hernshaw Mine 

from the POV screening process and permit them to continue to operate under the voluntary S&S 

reduction plan as long as the mines .continued to achieve the goals set forth in the agreement or 

until they were no longer in jeopardy of receiving a potential POV warning letter at the time of a 

subsequent POV review by the Secretary. Thereafter, Aracoma's mines would be treated 

precisely like all other mines during a POV review." (Jt. Br. at 4-5). 

VI. Conclusion 

Although I would have preferred more clarity on the question of the duration. of the 

settlement agreement, it does not appear that the parties intended to permanently insulate 

Aracoma from any future changes in the screening criteria that may occur. Consequently, I find 

that the judge did not abuse his discretion in approving the settlement agreement between the 

parties. Theref~re, I would affirm his decision . 

. ·~?~·--- Mary L~Chairman · . ·. 

6 The joint brief makes a general assertion that "in practical effect," Aracoma's voluntary 

reduction plan is identical to the one an operator may provide under section 104.4(a)( 4), but 

provides no explanation to support this claim. Jt. Br, at 14; see also id. at 18 (Aracoma's 

voluntary plan "requires no less than what would be required in plans submi.tted pursuant to a 

formal notice issued under Section 104(e)"). 

32 FMSHRC Page 1649 
Commissioner Cohen, dissenting: 

It is a fundamental function of the Commission to ensure that the public interest is 

adequately protected before a settlement is approved. Birchfield Mining Co., 11 FMSHR.C 1428, 

1430 (Aug. 1989). In this case, the Commission took review on its own motion to detennine 

whether this settlement of 1,281 citations and orders, including 24 section 104( d)(2) orders and 

one section 104(a) citation resulting from the fatal fire at Aracoma's Alma No. 1 Mine on 

January 19, 2006, metthatstandard. 

My dissent is based on the Secretary's implementation of Section 104(e) of the Mine Act. 

Section 104(e) is a provision under which Congress gave the Secretary strong powers to take 

decisive action when an operator displays a "pattern of violations of mandatory health or safety 

standards ... which are of such nature as could have significantly and substantially contributed 

to the cause and effect of coal or other mine health-or safety hazards." 30 U.S.C. § 814(e)(l). 

At the onset, it is important to recognize that the tragic deaths of Don Bragg and Ellery 

Hatfield should never have occurred. The Secretary issued 25 citations and orders for violations 

which contributed to the fire and the deaths ofBragg and Hatfield. 30 FMSHRC 1160, 1167 

(Dec. 2008) (ALJ). The Secretary detennined that all of these citations and orders showed either 

"reckless disregard" (defined in 30 C.F.R. § 100.3(d) as "conduct which exhibits the absence of 

the slightest degree of care") or .. high negligence.". Aracoma has withdrawn its contests of these 

citations and orders as part of the settlement agreement, In Camera Jt. Mot. to Approve 

Settlement ("Settlement") at 9-10, 1 and thus the Commission accepts these citations as being 

accurate and true. 

I. 

As Chairman Jordan has described, the fire resulted from frictional heating caused by a 

misaligned longwall belt. The inspector observed numerous conditions which were "indicative 

of prolonged operation of the longwall belt conveyor while the belt was misaligned." Order 

~ · The Secretary assessed each of the 25 contributory citations and orders the thenmaximum penalty of$60,000. _She assessed a total of$2,803,293 for the total 1,281 citations and 

orders included in the settlement. In reducing the total penalties to $1,700,000, the settlement 

agreement merely stated that "[t]he civil penalty is to be apportioned in payment of each covered 

citation and order in the same proportion as $1,700,000 is to the total assessment of$2,806,027." 

Settlement at 4 n.2. (The assessment as subsequently corrected is $2,803,293). Thus, in terms of 

the monetary settlement, the judge was informed only that each penalty was being settled for a 

little less than 61 cents on the dollar. I question how a judge can fulfill his statutory 

responsibility under section llO(k) of the Mine Act, so as to review a settlement of 1,281 

citations and orders, when the judge has been informed only of the total amount of the 

settlement. However, this issue is not part of the Direction for Review, and so I will not address 

it. 

32 FMSHRC Page 1650 
No. 7435539: The frictional heating ignited accumulations of combustible material in the form 

of grease, oil, coal dust, float dust, coal fines, and loose coal spillage at numerous locations along 

the longwall belt conveyor. Order No. 7435532. The hazardous conditions of a misaligned belt 

and accumulations of combustible material had not been identified in Aracoma's on-shift 

examinations, Order No. 7435526. Where hazardous conditions, such as the need for cleaning 

and rock dusting, were recorded in mine record books, they had not been corrected. Order 

No. 7435527. 

The miners on the longwall section were unable to fight the fire effectively because 

of a number of violations. The water supply'line was not capable of delivering the required 

volume of water. fudeed, when the fire hose outlet valve was opened, "no water was produced." 

Order No. 7435533. Moreover, the threads of the female coupling of the fire hose were not 

compatible with the threads of the male pipe of the fire hose outlet valve. Order No. 7435534. 

Additionally, the water sprinkler system was improperly installed, and failed to provide coverage 

over the belt takeup storage unit where the fire began. Order No. 7435535. The water sprinkler 

system, fire hydrants and fire hoses had not been properly examined and tested before the fire. 

Order Nos. 7435536 and 7435522. 

Although the dispatcherwas immediately notified of the fire by the mine examiner, mine 

management failed to initiate and conduct an immediate evacuation despite imminent danger to. 

the miners. Order No. 7435538. Moreover, theAtmospheric Monitoring System ("AMS") 

operator who was on duty when the fire occurr~ did not promptly notify appropriate personnel 

that an alarm signal had been generated. Order No. 7435529. Miners were not promptly 

evacuated to a safe area in response to AMS alarm signals. Order No. 7435524. · 

The miners on 2 Section, where Bragg and Hatfield worked, were unaware· that a fire 

existed outby their location. The AMS, which was supposed to provide visual and audible 

signals at all af(ectedworking sections when the carbon monoxide concentration at CO sensors 

reached alarm level; failed because 1).0 carbon monoxide alarm unit had been installed at a 

location where it could be seen or heard by miners on 2 Section.· Order No. 7435523. 

When the miners on 2 Section finally attempted to evacuate the mine, their ability to 

escape was compromised by additional violations. Aracoma had removed permanent stoppings 

which provided separation between the belt conveyor entry and the primary escapeway in the 

North East Mains. This lack of separation ''allowed smoke and carbon monoxide gas to inundate 

the primary escapeway used by miners during the evacuation from 2 section." Order · 

No. 7435530. Moreover, adequate escapeway drills had not been conducted as required, Order 

No. 7 435531, the location of personnel doors in stoppings were not clearly marked so that doors 

could be easily identified to someone traveling in the escapeways, Order No. 7435109, and the 

mine map did not accurately depict the. location .of permanent ventilation controls or the 

designations of escapeways, Order No. 7435537. Preshift and weekly examinations of the entries 

were inadequate in failing to identify and correct the lack of separation between the belt conveyor 

entry and the primary escapeway, and the lack of a clearly marked primary escapeway and 

32 FMSHRC Page 1651 
location of personnel doors. Order Nos. 7435525, 7435110, 7435108, 6643276, and 7435528. 

Because of reduced visibility caused by the thick smoke; Bragg and Hatfield were separated from. 

the section crew, and were unable to escape. Id. 

,. This was not the first time that Aracoma had reacted to a fire in an improper manner. 

Two fires had occurred at this mine withiil a month of this fire, on December 23, 2005, and 

December 29, 2005, and on both occasions CO sensors had activated alarm signals in the 

dispatcher's office, but miners in affected areas were not notified of the alarms and were not 

withdrawn to a safe location. On both previous occasions, MSHA had issued section 104( d)(2) 

orders. MSHA determined that Aracoma's "repeated lack of proper response to the carbon 

monoxide alarm signals is an indication of an attitude of indifference" to the requirements of 

response to AMS alarm signals. Order No. 7435524. 

II. 

Chairman Jordan's opinion sets forth the text and legislative history of section 104(e) of 

the Mine Act, the provision addressing a pattern of violations ("POV"). Slip op .. at 6-8. 

Chairman Jordan also notes that although Congress enacted this provision in 1977, the Secretary 

did not promulgate implementing regulations until 1990. Her opinion describes the 

implementing regulations set forth at30 C.F .R. Part 104~ .the non-enforcement of those 

regulations for many years, and the Secretary's issuance several years ago of a Screening Criteria 

and Scoring Model (hereinafter "Screening Criteria") to determine if a POV exists. Id. at 8-9. 2 

The purpose of the Screening Criteria appears to be to screen out all but the most 

egregious mine operators from even being considered for POV designation. Thus, one of the 

Screening Criteria provides: 

The mines' rate of S&S Citations/Orders issued per 100 inspection hours 

during the 24 month review period is equal to or greater than 125% of 

the National rate of S&S Citations/Orders issued per I 00 inspection hours 

for that mine type and classification. 

In other words, a mine, during the 24 month review period, can not only have an S&S issuance 

rate greater than the national average for such mines, but can be up to 25% worse than the 

national average, and be excluded from consideration forPOV, no matter what else is in the 

mine's violation or accident history.3 

·

2 On September 28, 2010, MSHA issued a set of revised Pattern of Violations Screening 

Criteria, which replace the Screening Criteria discussed herein. 

3 The revised Screening Criteria published September 28, 2010, supra, do not contain a 

requirement that a mine's S&S issuance rate be at least 125% of the national average before the 

mine can be considered as having a pattern of violations. The revised Screening Criteria appear 

32 FMSHRC ~age 1652 · 
The Screening Criteria provision that no mine can be considered. for POV unless its S&S 

issuance rate is at least 125% of the national average is contrary to the regulation it purports to 

implement. Section 104.2 provides: 

§ 104.2 Initial screening. 

At least once each year, MSHA shall review the 

compliance records of mines. MSHA's review shall include an 

examination of the following: 

(a) The mine's history of-'-

(1) Significant and substantial violations; 

(2) Section 104(b) of the Act closure orders resulting from 

significant and substantial violations; and 

(3) Section 107(a) of the Act imminent dangerorders. 

(b) In addition to the compliance records listed in paragraph 

(a) of this section, the following shall also be considered as part of 

the initial screening: 

(1) Enforcement measures, other than section I 04( e) of the 

Act, which have· been applied at the mine. 

(2) Evidence of the mine operator's lack of good faith in 

correcting the problem that results in repeated S&S violations. 

(3) An accident, injury, or illness record that demonstrates a 

serious safety or health management problem at the mine. 

(4) Any mitigating circumstances. 

( c) Only citations and orders issued after October 1, 1990, 

shall be considered as part of the initial screening. 

Screening criteria which prevent consideration for pattern of violations status if the operator has 

an S&S issuance rate no more than 125% of the national average preclude consideration of 

factors required to be considered under 30 C.F.R. § 104.2, such as a history of section 104(b) 

closure orders and a history of section 107( a) imminent danger orders. It would not matter if, for 

example, a mine had an egregious and dangerous history of imminent danger orders, as long as 

the operator kept its S&S issuance rate within 125% of the national average. Thus, the Screening 

Criteria are in conflict with 30 C.F.R. § 104.2. 

fu the preamble to the final rule on POV, MSHA stated that the regulations 0should focus 

on the safety and health record of each mine rather than "strictly quantitative comparisons of 

mines to industry-wide norms." 55 .Fed. Reg. 31,128, 31,129 (July31, 1990). Significantly, 

when 30 C.F .R. § 104.2 was initially published as a proposed rule, comnienters - citing the need 

for operators to receive adequate notice of the specific factors which would cause them to be 

identified through initial screening as having a potential POV - suggested that MSHA utilize a 

to be designed to apply all of the factors set forth in 30 C.F.R. § 104.2. Hence, the discussion of 

the Screening Criteria contained in this opinion does not apply to present MSHA policy. 

32 FMSHRC Page 1653 
statistical comparison of a mine's rate of violations with an industry-wide average, and the 

agency rejected the suggestion: 

Id. at 31,131. 

A number of commenters stated thatthe initial screening 

factors do not provide adequate notice to operators of the specific 

number or combination ofcitations and orders which would cause 

an operator to be identified through initial screening as having a 

potential pattern of violations. Commenters suggested a variety of 

specific statistical screening mechanisms, including comparison of 

a mine's rate of violations with an industry~wide average. 

Although the Agency has consider~ such a scheme, MSHA 

believes that the initial screening criteria will allow identification 

of those mines which are in a recurrent cycle of violation and 

abatement with no correction of the underlying circumstances 

giving rise to the violations. Additionally, the final rule is 

consistent with the legislative history of section l 04( e ), which 

stresses that a pattern of violations does not necessarily mean a 

specific number of violations of any particular standard. 

Although the preamble made clear that the POV screening criteria were not to be based 

on "strictly quantitative comparisons of mines to industry-wide norms," it appears that MSHA 

did precisely that in providing that any mine within 125% of the industry average for S&S 

violations will be excluded from further consideration as a mine on POV status. Thus, despite its 

notice-and-comment rulemaking, MSHA has adopted a strictly quantitative sine qua non, 

contrary to the language of the regulations. 

ill. 

With respect to Aracoma's POV status, the settlement agreement in this case focuses 

entirely on whether Aracoma's S&S issuance rate exceeds 125%:of the national average. I 

question the validity of the settlement agreement for that reason, and thus would find that the 

judge erred in approving the settlement agreement. 

The Commission has emphasized that a judge's approval or rejection of a settlement 

agreement must "be based on principled reasons.'' Madison Branch Mgmt., 17 FMSHRC 859, 

864(June1995) (quoting Knox County Stone Co., 3 FMSHRC 2478,2480 (Nov.1981)). Here, 

the judge merely recited the terms of the section of the settlement agreement pertaining to the 

POV provisions. However, the Screening Criteria, with the 125% issuance rate threshold for. 

POV consideration, are in contradiction of 30 C.F.R. § 104.2, which provides for consideration 

of a variety of factors, and, as explained in the preamble, are not to be based on "strictly 

32 FMSHRC Page 1654 
quantitative comparisons of mines to industry-wide norms." Clearly, a threshold of a 125% S&S 

issuance rate is a quantitative comparison to an industry-wide norm. Mindful that a judge's 

abuse of discretion in approving a settlement is ''not immune from reversal," Madison Branch, 

17 FMSHRC at 864, I conclude that the judge abused his discretion in approving the pattern of 

violations aspect of this settlement agreement. 

In voting to review the judge's decision, I also sought to determine whether, in the 

settlement agreement, the Secretary was enforcing the POV provision of the Mine Act more 

leniently against Aracoma, as compared with other operators. 4 According to the Settlement, the 

4 If this were the case, it could be the resultof Aracoma's litigation strategy, which 

involved contesting every single penalty MSHA assessed for each of the 1,281 citations and 

orders issued over a period of two years and three months, beginning with the date of the Alma 

No. 1 fire. In this group of 1,281 citations and orders were 298 assessments for the previous 

minimum of$60.00and162 assessments for the later minimum of$100.00. I question whether 

there is a basis to contest 1,281 consecutive penalties, including 460 minimum penalties, other 

than an intent to obstruct the enforceDJ.ent system. Such has been the practice in other industries, · 

such as tobacco. For example, R.J. Reynolds Tobacco Company was able to win dismissal of a 

case by burying its opponent in paper. In a confidential memo, an attorney for R.J. Reynolds 

boasted about the strategy: "The aggressive posture we have ta.ken regarding depositions and 

discovery in general continues to make these cases extremely burdensome and expensive to 

plaintiffs' lawyers, particularly sole [practitioners] ..... To paraphrase General Patton, the· way 

we won these cases was not by spending all of Reynolds' money, but by making that other son of 

a bitch spend all his." See Kenneth Lasson, Lawyering Askew: Excesses in the Pursuit of Fees 

and Justice, 74 B.U.L. Rev. 723, 755 (1994). It would be outrageous if an operator was able to 

ignore mine safety, and then achieve a more favorable settlement of the resulting violations by 

clogging the appellate system with frivolous penalty contests. From a purely economic 

standpoint, this would give such an operator a competitive advantage over mine operators which 

were spending the necessary money to keep their mines safe~· More law-abiding operators would 

have an incentive to change their practices for the worse, calculating that they could similarly 

stonewall penalties for better than two years, settle everything for 61 cents on the dollar, and 

walk away with no sanction other than a requirement to bring their S&S rates down to 125% of 

the national average. 

This poses an especially difficult problem in an industry where there have historically 

been some operators willing to subordinate safety responsibilities to production imperatives. 

See, e.g., Consolidation Coal Co., 23 FMSHRC 588, 597 (June 2001) (operator subordinated 

cleanup responsibilities to its desire to complete construction); Consolidation Coal Co., 22 

FMSHRC 328, 332 (Mar. 2000) (operator failed to rectify a violative condition so as not to 

interfere with production); Jim Walter Res., Inc., 19 FMSHRC 1761, I 770 (Nov. 1997) (in order 

to continue production, operator made a conscious decision to evade a device designed to act as 

an important preventive safeguard). The January 19, 2006 fire at Aracoma's Alma No. 1 Mine is 

consistent with the Supreme Court's characterization of the mining industry as "industrial 

32 FMSHRC Page 1655 
Alma Mine# 1 had a rate of 15.6 S&S citations and orders per 100 on-site inspection hours 

during the baseline 24 month period ending on the last day of June 2008. Settlement at 5. The 

Settlement further indicates that the National Average for All Underground Bituminous Mines 

was 7 .1 S&S citations and orders per 100 on-site inspection hours, so that 125% of the national 

rate was 8.9 S&S citations and orders per 100 on-site inspection hours. Id. at 6. Presumably, 

with an S&S issuance rate which was 220% of the national average, the Alma No.I Mine was a 

prime candidate for POV status, at least after the requisite violations had become final. 

If MSHA had issued a notice of potential pattern of violations for the Alma No. 1 Mine 

pursuant to 30 C.F.R. § 104.4(a), Aracoma would have had an opportunity to "[i]nstitute a 

program to avoid repeated significant and substantial violations at the mine" pursuant to 30 

C.F.R. § 104.4(a)(4). The record does not indicate what requirements MSHA typically imposes 

on other operators in their section 104.4(a)(4) programs. 

Specifically, assuming hypothetically that an operator has received a section 104.4( a) 

warning letter because its section 104.3 analysis revealed a history of repeated S&S violations of 

standards relating to respirable dust hazards, would MSHA require this operator to specifically 

address respirable dust in its section 104.4(a)(4) program, or would MSHA be satisfied ifthe 

operator simply reduced its overall rate of S&S violations to 125% of the national average or 

less? If it is the latter, then Aracoma is not being treated differently. However, if MSHA 

normally requires .an operator to address specifically the problems which have been identified in 

the section 104.3 analysis (e.g., respirable dust), then Aracoma is being treated differently from 

other operators. One could pose similar hypothetical· questions based on any of the pattern . 

criteria contained in 30 C.F .R. § 104.3 (i.e., repeated S&S violations of a particular standar~ 

repeated S&S violations relating to the same hazar~ or repeated S&S violations caused by 

unwarrantable failure to comply). The question is whether a section 104.4(a)(4) remediation 

program requires an operator to focus on the particular issue which brought about the written 

warning of a potential pattern ofviolation:s under section 104.4(a), or whether MSHA is satisfied .. 

that an operator-brings its S&S issuance rate down to 125% of the national average. There is no 

information in the record to clarify this point. 

activity with a notorious history of serious accidents and unhealthful working conditions." 

Donovan v. Dewey, 452 U.S~ 594, 603 (1981). 

32 FMSHRC Page 1656. 
Based on the record before us, I would hold that the Chief Administrative Law Judge 

abused his discretion in approving a settlement agreement which, with respect to the pattern of 

violations provisions, is based on a principle - that an operator cannot be found to have 

committed a pattern of violations pursuant to section 104(e) of the Mine Act unless its S&S 

issuance rate is at least 125% of the national average for similar mines -which is contrary to the 

regulations, 30 C.F.R. § 104.2. Therefore, I respectfully dissent. 

Robert F. Cohen, Jr., Commissioner 

32 FMSHRC Page 1657 
Distribution 

Jerald Feingold, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22nd Floor 

Arlington, VA 22209-2247 

Mark E. Heath, Esq. 

Spilman, Thomas & Battle, PLLC. 

300 Kanawha Blvd., East 

P.O. Box273 

Charlesto~ WV 25321 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA, U.S. Dept. Of Labor 

1100 Wilson Blvd., 25'h Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

601 New Jersey Avenue, N.W., Suite 9500 

Washington, D.C. 20001-2021 

32 FMSHRC Page 1658 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

HIGHLAND MINING COMP ANY 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

December 17, 2010 

Docket No. WEV A 2009-688 

A.C. No. 46-08693-164121 

Docket No. WEVA 2009-1037 

A.C. No. 46-06558-169988 

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

ORDER 

BY: Duffy, Young, Cohen, and Nakamura, Commissioners 

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

§ 801 et seq~ (2006) ("Mine Act"). On January 21 and March 25, 2009, the Commi~sion 

received from Highland Mining Company (''Highland") motions made by counsel tO reopen, 

respectively, Proposed Assessment Nos. 000164121and000169888, ~ach of which had become 

a final order of the Commjs~ionpursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). 

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

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

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

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

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

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

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

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

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

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

See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable 

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

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

32 FMSHRC Page 1659 
for a failure to timely respond, the case may be reopened and appropriate proceedings on the 

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

In the case of Proposed Assessment No. 000164121, Highland originally explained that it 

was signed for by the company receptionist but was subsequently lost within the operator's 

internal mail system and never delivered to that mine's safety director for processing. With 

respect to Proposed Assessment No. 000169988, Highland stated that the proposed penalty 

assessment was mispla.Ced on the desk of the safety director for that mine, and that, as a result, 

Highland inadvertently failed to transmit the proposed penalty assessment to counsel for the 

filing of a contest. In both instances Highland moved to reopen soon after receiving a notice 

from the Department of Labor's Mine Safety and Health Administration ("MSHA") stating that 

payment on the proposed assessment was delinquent. The Secretary did not oppose either of the 

requests to reopen. 1 

In Highland Mining Co., 31 FMSHRC 1313, 1316 (Nov. 2009), a consolidated order that 

also addressed other Highland motions to reopen, a majority of the Conunission denied 

Highland's requests to reopen Proposed Assessment Nos. 000164121 and 000169988 without 

prejudice. The Commission stated that should Highland renew its request to reopen, it would 

need to "fully explain the circumstances" of its failure to timely contest the assessments at issue, 

and what steps it has taken to ensure both that it does not misplace assessments in the future and 

that it responds to them in a more timely manner. Id. 

Highland has now filed renewed motions to reopen the two assessments. With regard to 

Proposed Assessment No. 000164121, it again states that the proposed assessment was lost in 

transit between a secretary for Highland and its safety director for the mine. Highland notes that 

no other persons have knowledge of what happened. In the case of Proposed Assessment 

No. 000169988, the safety director for that mine received the assessment and marked which · 

penalties Highland intended to contest, but failed to forward it to the operator's counsel to submit 

1 We consider the Secretary's position in light of the provisions of the Informal 

Agreement between Dinsmore & Shohl Attorneys and Department of Labor - MSHA -

Attorneys Regarding Matters Involving Massey Energy Company Subsidiaries" dated September 

13, 2006. That agreement was in effect when the Secretary filed her responses. Therein, the 

Secretary agreed not to object to any motion to reopen a matter in which any Massey Energy 

subsidiary failed to timely return MSHA Form l 000-179 orinadvertently paid a penalty it 

intended to contest so long as the motion to reopen is filed within a reasonable time. Thus, we 

assume that the Secretary was not considering the substantive merits of a motion to reopen from 

any Massey Energy subsidiary so long as the motion was filed within a reasonable time. Such 

agreements obviously are not binding on the Commission, and the Secretary's position in 

conformance with the agreement in this case has no bearing on our determination on the merits 

of the operator's proffered excuse. The Commission has been informed that, since the time the 

Secretary filed her responses, she has rescinded the agreement. 

32 FMSHRC Page 1660 
to MSHA. The safety director's affidavit explains in detail what other duties and obligations 

prevented him from acting on the assessment. 

Highland also states that, starting in June 2009, before the issuance of the Commission's 

order, it began to coordinate its response to proposed assessments with its parent company, 

Massey, so as to better keep track of assessments. Since then, the process has been further: 

centralized, with MSHA mailing all assessment· forms issued to Massey subsidiaries directly to 

Massey, which then consults With the subsidiary in responding to the assessment. 

Having reviewed Highland's renewed requests to reopen, in the interests of justice, we 

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

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

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

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

Robert F. Cohen, Jr., Commissioner 

Patrick K. Nakamura, Commissioner 

32 FMSHRC Page 1661 
Chairman Jordan, dissenting: 

In my dissent from the prior Commission order in this case, I stated that I would deny the 

motions at issue with prejudice. I concluded that "indifference, as opposed to inadvertence, 

would appear to more accurately describe the underlying reason for Highland's pattern of 

untimely contests." Highland Mining CQ., 31FMSHRC1313, 1318 (Nov. 2009). Highland's 

renewed motions to reopen fail to provide a sufficient ratiol)ale for revising this determination. 

Accordingly, I conclude that relief is not warranted and would deny the renewed motions with 

prejudice. 

32 FMSHRC Page 1662 
Distribution: 

Max L. Corley, III, Esq. 

Dinsmore & Shohl, LLP 

P. 0. Box 11887 

900 Lee Street, Suite 600 

Charleston, WV 25339 

W. Christiap Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA, U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

601 New Jersi;:y Avenue, N.W., Suite 9500 

Washington, D.C. 20001-2021 

32 FMSHRC Page 1663 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

M1NE SAFETY ANb HEALTH 

ADMINISTRATION (MSHA) 

v. 

HIGHLAND MINING COMP ANY 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, PC 20001 

December 17, 2010 

Docket No. WEV A 2009-689 

A.C. No. 46-08693-167069 

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

ORDER 

BY: Jordan, Chainnan; Young, Cohen, and Nakamura, Commissioners 

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

§ 801 et seq. (2006) ("Mine Act"). On January 21, 2009, the Commission received from 

Highland Mining Company ("Highland") a motion made by counsel to reopen a penalty 

assessment that had become a final order of the Commission pursuant to section 105(a) of the 

Mine Act, 30 U.S.C. § 815(a). 

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

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

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

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

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

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

Jim Walter Res., Inc., 15 FMSHRC 782, 786-89(May1993) ("JWR"). In evaluating requests to 

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

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

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

See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable 

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

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

32 FMSHRC Page 1664 
for a failure to timely respond, the case may be reopened and appropriate proceedings on the 

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

Highland's original request stated that the proposed penalty assessment, No. 000167069, 

was misplaced on the desk of the operator's safety director, and that; as a result, Highland 

inadvertently failed to transmit the proposed penalty assessment to counsel for the filing of a 

contest. The operator further stated that, after discovering the mistake, it immediately 

transmitted the matter to counsel, who submitted the contest to the Department of Labor's Mine 

Safety and Health Administration ("MSHA") that same day. After MSHA rejected the 

submission as untimely, the operator filed its motion to reopen. The Secretary stated that she did 

not oppose the reopening of the proposed penalty assessment. 1 

In Highland Mining Co., 31 FMSHRC 1313, 1316 (Nov. 2009), a consolidated order that 

also addressed other Highland motions to reopen, a majority of the Commission denied 

Highland's request to reopen Proposed Assessment No. 000167069 without prejudice. The 

Commission stated that should Highland renew its request to reopen, it would need to "fully 

explain the circumstances" of its failure to timely contest the assessments at issue, and what steps 

it has taken to ensure both that it does not misplace assessments in the future and that it responds 

to them in a timely manner. Id. 

Highland has filed a renewed motion to reopen Proposed Assessment No. 000167069. Its 

safety director explains that he received the assessment and marked those penalties Highland 

intended to contest, but the inteiruption·of other job duties led to the form remaining on his desk. 

The safety director further states that, over time, the form got intermingled with other documents, 

and consequently was not forwarded in a timely manner to operator's counsel, as it otherwise 

would have been. 

Highland also states that, starting in June 2009, it began to coordinate its response to 

proposed assessments with its parent company, Massey, so as to better keep track of assessments. 

1 We consider the Secretary's position in light of the provisions of the Informal 

Agreement between Dinsmore & Shohl Attorneys and Department of Labor- MSHA -

Attorneys Regarding Matters Involving Massey Energy Company Subsidiaries" dated September 

13, 2006. That agreement was in effect when the Secretary filed her response. Therein, the 

Secretary agreed not to object to any motion to reopen a matter in which any Massey Energy 

subsidiary failed to timely return MSHA Form I 000-179 or inadvertently paid a penalty it 

intended to contest so long as the motion to reopen is filed within a reasonable time. Thus, we 

assume that the Secretary was not considering the substantive merits of a motion to reopen from 

any Massey Energy subsidiary so long as the motion was filed within a reasonable time. Such 

agreements obviously are not binding on the Commission, and the Secretary's position in 

conformance with the agreement in this case has no bearing on our determination on the merits 

of the operator's proffered excuse. The Commission has been informed that, since the time the 

Secretary filed her response, she has rescinded the agreement. 

32 FMSHRC Page 1665 
Since then, the process has been further centralized, with MSHA mailing all assessment forms 

issued to Massey subsidiaries directly to Massey, which then consults with the. subsidiary in · 

responding to the assessment. 

With regard to Proposed Assessment No~ 000167069, we find Highland's explanation for 

why it did not respond in a timely manner to be insufficient, especially in light oforir previous 

order. The safety director's excuse that other job duties interrupted him from forwarding the 

assessment on a timely basis cannot be accepted without further details regarding what those .l 

duties were, whether those duties were extraordinary, and the amount of time devoted to those 

duties. Consequently, we again deny Highland's request, this time with prejudice. 

Robert F. Cohen, Jr., Commissioner 

Patrick K. Nakamura, Commissioner 

32 FMSHRC Page 1666 
Commissioner Duffy, dissenting: 

While the explanation Highland provided in its renewed motion for why it was delinquent 

in responding to the proposed penalty assessment was not as detailed as it could have been, the 

renewed motion explains how Highland had begun to improve its assessment response 

procedures even before we issued our earlier order denying its motion to reopen. Moreover, 

Highland has not moved to reopen a default in over 20 months. Consequently, I would deem 

Highland's renewed motion as sufficiently responsive to our earlier order, and grant its request to 

reopen. 1 

Michael F. Duffy, Commissioner 

1 My colleagues' reference to a now-defunct agreement between the Solicitor of Labor 

and counsel for the operator may not be relevant here. See supra, at 2 n. l. While that general 

agreement not to oppose certain motions to reopen did not allow one to determine whether the 

Secretary's non-opposition.was substantive or not, the Secretary ultimately rescinded that 

agreement in May of2009, six months prior to our initial denial of Highland's request to reopen 

and ten months before this renewed motion was filed. The Secretary did not respond to the 

renewed motion, so one could just as easily presume that her prior notice of non-opposition was a 

substantive rather than a pro forma position. 

32 FMSHRC Page 1667 
Distribution: 

Max L. Corley, ill, Esq. 

Dinsmore & Shohl, LLP · 

P. 0. Box 11887 

900 Lee Street, Suite 600 

Charleston, WV 25339 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-:2296 

Myra James, Chief, 

Office of Civil Penalty Compliance 

MSHA, U.S. Dept. Of Labor 

1100 Wilson Blvd., 251h Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

601 New Jersey Avenue, N.W., Suite 9500 

Washington, D.C. 20001-2021 

32 FMSHRC Page 1668 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

WOLF RUN MINING COMP ANY 

. SUITE9500 

· WASHINGTON, DC 20001 

December 22, 20 I 0 . 

Docket Nos. WEVA 2006-853 

A.C. No. 46-08791-090341-01 

Docket No. WEV A 2006-854 

A.C. No. 46-08791-090341-02 

Docket No. WEV A 2007-666 

A.C. No. 46-08791-121866 

BEFORE: Jordan, Chairman; Duffy, Young, and Nakamura, Commissioners1 

DECISION 

BY THE COMMISSION: 

These consolidated civil penalty proceedings, arising under the Federal Mine Safety and 

Health AC:t of 1977, 30 U.S;C. § 801 et seq. (2006) ("Mine Act" or "Act"), involve five citations 

issued to Wolf Run Mining Company ("Wolf Run") for violations of30 C.F.R. 75.521.2 Judge 

1 Commissioner Robert F. Cohen, Jr., is recused in this case. 

·

2 Section 75.521 states: 

[ 1 ]Each ungrounded, exposed power conductor and each 

ungrounded, exposed telephone wire that leads underground shall 

be equipped with suitable lightning arresters of approved type 

within 100 feet of the point where the circuit enters the mine. 

[2]Lightning arresters shall he connected to a low resistance 

grounding medium on the surface which shall be separated from .. 

neutral grounds by a distance of no less than 25 feet. 

30 C.F.R. § 75.521. The regulation as it pertains to power conductors originated as section 

305(p) of the Federal Coal Mine Health and Safety Act of 1969 ("Coal Act"), and was carried 

over as the same section of the Mine Act, 30 U.S.C. § 865(p). The statutory language was 

promulgated as section 75.521 after the enactment of the Coal Act. 35 Fed. Reg. 17,890, 17,910 

32 FMSHRC Page 1669 
Jerold Feldman affirmed three citations that allegeclviolations of the standard but vacated two 

others. 31 FMSHRC 640, 666 (June 2009) (ALJ). He also concluded that the Secretary of Labor 

had established that one of the violations he.affirmed was significant and substantial ("S&S"), but 

that she had failed to establish as S&S the other violation that the Department of Labor's Mine 

Safety and Health Administration ("MSHA") had designated as such. 3 Id. The Commission 

subsequently granted cross-petitions for discretionary review filed by Wolf Run and the Secretary 

challenging the judge's determinations. 

I. 

Factual and Procedural Backa=round 

In early January 2006, 12 miners died and one was seriously injured as a result of an 

explosion caused by lightning at Wolf Run' s Sago Mine, an underground coal mine in Upshur 

County, West Virgina. 31 FMSHRC at 641, Jt. Ex. 2, at 2 (stipulations). MSHA's inspection of 

the mine as part of its subsequent accident investigation resulted in the agency issuing a total of 

149 citations and orders to Wolf Run, including the five citations now before the Commission, 

though none were alleged to have contributed to the explosion. See Jt. Ex: 2, at 3, 5, 6, 7, 8, 9.4 

MSHA's investigation included a complete inspection of all electrical equipment at the 

mine, which resulted in the issuance of many citations and orders to the operator. 31 FMSHRC 

at 641-42; Jt. Ex. 2, at 3. In these three dockets, Wolf Run contested 36 of the electrical citations 

and orders and their associated penalties. 31 FMSHRC at 640. The Secretary and WolfRuri 

settled 31 of the citations and orders, with the operator agreeing to pay $25~257 of the $28,339 

that MSHA had initially proposed in penalties for those violations. Id. The judge approved the 

settlement as part of his decision. Id. at 640, 666-67. The remaining five citations, all aUeging a 

violation of the requirements of section 75.521 regarding the use oflightning arresters, went to 

hearing. 

By way of background, a lightning strike from as much as a mile away can cause a surge 

of energy on a power conductor. Id. at 645. Even when it does not hit the conductors directly, 

(1970). It was revised in 1973 to include ungrounded, exposed telephone wires. See 38 Fed. 

Reg. 4974, 4975 (1973). 

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

§ 814( d)( 1 ), which distinguishes as more serious any violation that "could significantly and 

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

4 According to MSHA's investigation, the lightning ignited methane in an inactive 

portion of the mine. 31 FMSHRC at 641 & n. l; Jt. Ex. 2, at 3. This destroyed seals separating 

that area of the mine from its active portion, which permitted toxic levels of carbon monoxide to 

enter a portion of th~ active mine. 31 FMSHRC at 641 & n. l. 

32 FMSHRC Page 1670 
such a strike can induce thousands of volts and amps of electric current into a power conductor. 

Tr. 238-40. The purpose of a lightning arrester required by section 75.521 is to minimize the 

amount of such energy entering into the underground portions of the mine. 31 FMSHRC at 643. 5 

Unless a power conductor entering a mine from the outside is protected by a lightning 

arrester, the excess energy from a lightning strike on the conductor would not be dissipated into 

the ground, but could instead travel into the mine: via the conductor. Id .. at 645. This could 

energize the frames of equipment, resulting in a shock or electrocution hazard, and the energy 

could cause an arcing that would pose a fire hazard and an ignition source for methane. Id. 

Four of the five citations at issue here involve the same type of allegation: a lightning 

arrester was required but not provided for a power conductor or communications wire that was 

located in whole or part aboveground on the surface at the Sago Mine, and either ran to, or 

originated in, an underground portion of the mine.6 In Citation No. 7582485, MSHA charged that 

the lack of arresters on a 120-volt cable running from the fan house on the surface, through the 

track entry; to a water pump underground, constituted a non-S&S violation of the standard. 

Gov'tEx. l, 11, 12, 14, 16. Citation Nos. 7583316and7583317,whichwerebothdesignated 

S&S, each involved the lack of arresters on two 575-volt cables, both of which originated at a 

power center underground and powered separate battery cable chargers located on the surface. 

Gov't Ex. 2, 3, 13, 20, 21. Citation No. 7335233, also designated S&S, charged Wolf Run with 

violating the arrester requirement with respect to telephone paging and trolley phone system wires 

that ran from the Dispatcher's Office and entered the mine through the track entry. Gov't Ex. 5. 

5 The parties stipulated as follows regarding lightning arresters: 

Jt. Ex. 1, at 3. 

A lightning arrester is a device that liniits the overvoltage of 

lightning or other electrical surges by providing an electrical path 

between an ungrounded conductor and earth which is used as the 

grounding medium. A simple lightning arrester consists of two 

contacts that are separated by an air gap. One contact is connected 

to the transmission line and the other is connected to earth. The 

normal voltage of the circuit cannot bridge the gap. When an 

overvoltage occurs it sparks the gap between the contacts. This 

creates an electrical path for the excess energy to discharge to 

earth. 

6 Apparently it is rare for a mine to have equipment on the surface directly powered from 

an underground source, or underground equipment directly powered from a source on the 

surface. 31 FMSHRC at 659 n.4. Both types of situations occurred· at the mine. 

32 FMSHRC Page 1671 
The fifth citation in this case, referred to ,herein as the "grounding medium citation," 

involves the second sentence of section 75.521, which states that "[l]ightning arresters shall be 

connected to a low resistance grounding medium on the surface which shall be separated from 

neutral grounds by a distance of no less than 25 feet." When an arrester directs overvoltage from 

lightning into the ground on the surface of the mine, an electrical field is created there, and serves 

as the grounding medium for that arrester. That area cannot be too close to the separate area 

serving as the neutral ground for a mine's underground electrical equipment,7 otherwise electrical 

current from.a lightning strike could travel along the neutral.grounding medium to the 

underground equipment. To reduce the likelihood of such an event occurring, the second sentence 

of section 75.521 requires that the grounding medium for a lightning arrester must be at least 25 

feet away from the neutral grounding medium for the underground equipment. Tr. 344, 398-400; 

Gov'tEx. 8 (MSHA Program Policy Manual ("PPM") excerpt for section 75.521 stating that 

"[t]his distance prevents lightning surges from being transmitted to the neutral field where they 

could momentarily energize the frames of equipment grounded to the neutral ground field"). 

The 25-foot distance was originally maintained at the Sago Mine, as there was a neutral 

resistance ground field located more than 25 feet away from the electrical substation at the mine. 

Tr. 333-35, 380; Jt. Ex. 1, at 2; Gov't Ex. 9. A gr01md wire ran to the field from the μnderground 

portion of the mine, first in a high-voltage shielded cable running from the power center to a pole 

outside the track portal and then as an overhead bare ground wire via another p,ole. Tr. 333-34, 

339-40, 383-88. 

The surface area around the substation was considered to be part of the grounding medium 

for the arresters in question in this instance because the arresters were connected to the substation. 

Tr. 325-26, 335, 340-46, 380-82, 397-98. Specifically, running from the substation, along a series 

of power poles, were three high voltage power lines and a "static wire" above the lines, which was 

there to provide "umbrella" type protection from lightning f9r those lines. Tr. 333-37, 348-49, 

357, 364, 367-68, 374, 517-19; Gov't Ex. 9, 11, 23. Attached to one of the poles were a phone 

line ground wire, three transformers, and multiple lightning arresters for the power lines. Tr. 326-

27, 347, 350, 355-56; Gov't Ex. 9, 23. The arresters and the static line had a common grounding 

to earth via a copper wire running down that pole, known as a "butt ground," designed to transfer 

the energy from any lightning strike down to the earth. Tr. 327, 331, 337-38, 347-48, 356, 358-

59, 378-79, 535-36; Gov't Ex. 9, 23. 

Intermingled with the high voltage lines was a cable that included a ground wire, and that 

cable powered the stacker belts, which were entirely above ground. Tr. 335-37, 359-60, 520-23; 

Gov't Ex. 9, 23. That ground wire was also attachaj to the butt ground. Tr. 335-37, 359-60, 

369-73. The Secretary alleges in Citation No. 7583340 that the ground wire in the cable did not 

extend all the way to the stacker belts, but rather terminated early by connecting to the metal 

. , 7 The area designated to serve as the neutral ground for the ilnderground equipment is a 

low resistance ground bed, which would serve to dissipate electricity from -the frames of that 

equipment in the event of an electrical fault in the system. Tr. 383'"'.84. 

32 FMSHRC Page 1672 
rame of the conveyor belt structure, thus resulting in the neutral ground becoming common with 

he lightning arrester ground, because that belt ran underground. Tr. 360, 366-67, 369~ 70, 375-77, 

~79-80, 398-99, 523-24, 540-43; Gov't Ex. 4, 9. 

After the hearing, the judge found that for the four citations alleging the lack of one or 

nore required lightning arresters, the Secretary's interpretation of the term "exposed" was 

·easonable and thus deserved deference. 31 FMSHRC at 656. ·He furtherconcluded, however, 

hat it was impossible to install a lightning arrester on a cable that is connected underground 

>ecause it would defeat the 25-foot separation requirementrequired bythe second sentence of the 

:tandard; Id. at 657. Consequently, he held that power conductors containing such cables are not 

:ubject to the provisions of section 75.521 because they are not ''ungrounded," while "power 

:ables, telephone wires and trolley wires that are not grounded are subject to section 75.521." 

d. at 659. 

Turning to the individual citations, the judge started by addressing the grounding medium 

:itation, holding that it 

was issued because the lightning arrester' ground for the overhead 

high voltage lines was connected to a ground wire for the power 

cable supplying the surface belts which in tum was connected to the 

conveyor belt frame on the surface. The problem arose beca.use the 

U.nderground portion of the conveyor frame was the medium used.to 

connect the underground equipment to the neutral grounds. This 

condition clearly constitutes a violation ofthe25 feet separation 

required in section 75.521. Citation No. 7583340 exemplifies why 

section 75;521 does not apply to power conductors in cables that are 

· connected through the neutral ground medium. 

i. at 660. The judge also upheld the designation of the violation as S&S and the Secretary's 

roposed penalty of $963. Id. at 661-62. 

As for the two citations alleging violations of the arrester requirement with respect to the 

attery charger cables (Citation Nos. 7583316 and 7583317), the judge vacated the citations. 

t. at 649, 662; The judge found that the power center was grounded through the metal frame of 

ie belt conveyor to the neutral ground field on the surface, and that, consequently, lightning 

rresters could not be used on the power conductors contained in the cables under the second 

~ntence of section 75.521. Id. at 662. Accordingly he vacated the two citations, and thus did not 

~ach the issue of whether the violations were S&S. Id. 

With regard to the water pump cable (Citation No. 7582485), the judge found that the 

:tble was not connected to the conveyor frame or otherwise connected to neutral grounds, and 

mid not be considered grounded as its ground wire was conducting electricity. Id. at 663. The 

32 FMSHRC Page 1673 
judge consequently found that the cable was subject to the lightning arrester provisions of section 

7 5 .521, upheld the citation, and assessed the $60 penalty requested by the Secretary. Id~ 

Finishing with the citation alleging the lack of lightning arresters on the communication 

wires (Citation No. 7335233), the judge held the grounding of one of the trolley wires at issue to 

the track at the track entry constituted· adequate grounding for purposes of section 7 5 .521, as the 

Secretary had conceded. Id. at 664; He also held that the grounding of the second trolley wire, at 

the far end of the track, after it ran along the roof, complied with section 75.521 as well. Id. 

Nevertheless, the judge concluded that there was a violation of section 75.521 because neither of 

the two conductors in the cited telephone wires was grounded. Id. He refused to uphold the 

designation of the violation as S&S, however, .because of his finding that any electrical surge from 

lightning would destroy the 12-volt telephone wires before the wires entered the mine p-ortal. Id. 

Consequently, the judge did not assess the penalty at $440 as requested by the Secretary, but 

rather at $60. Id. at 663, 665. 

II. 

Disposition 

Both parties filed petitions for discretionary review which the Commission granted. The 

Secretary seeks review of the following: ( 1) whether the judge erred in finding that section 

75.521 did not apply to the cables supplying the battery chargers because of the ground wires 

within the cables and that to require the operator to ground the other conductors contained within 

the cable would resultin a violation ofthe second sentence of the standard; and (2) whether the 

judge erred when he found that the violation of the standard posed by the telephone wires was not 

S&S.8 WolfRun's PDR challenges: (1) the judge's decision to the extent that it upheld the 

citations charging that the power conductors were subject to section 75.521 because they were 

"exposed" under the standard; (2) the judge's determination that the grounding medium violation 

had been established; and (3) the judge's conclusion that the grounding medium violation was an 

S&S violation. 

A. The Groundin& Medium Citation (No. 7583340) 

We begin with the grounding medium violation, even though it involves the second 

sentence of section 7 5 .521, because the judge employed his understanding of the basis for this 

citation in determining that two of the four other alleged violations, involving the lightning 

arrester requirement in.the first sentence of the standard, could not be established. 

8 While the Secretary's petition for review included the question of whether the judge 

erred in concluding that the grounding of the trolley wire at the far end of the track constituted 

effective grounding for purposes of section 75.521 (S. PDR at 18-19), in her brief she withdrew 

her request for review of that issue. S. Br. at 4. 

32 FMSHRC Page 1674 
1. Violation 

·Wolf Run argues that a violation of the second sentence of section 75.521 was not 

established and thus that the judge's finding should be reversed. WR Br. at 35-38. According to 

Wolf Run, the Secretary's witness acknowledged that the violation hinged on whether the ground 

wire among the power cables was attached to the belt structure, and the evidence does not 

establish that it was. Id. at 35-36. Wolf Run submits that the judge failed to resolve this key 

factual dispute and to address its arguments that, even if there was a solid connection between the 

ground wire and the belt frame; there was not necessarily a violation of section 7 5 .521 in this 

instance. Id. at 36-38. 

The Secretary agrees with Wolf Run that the judge erred by not resolving the factual 

dispute of whether the ground wire was connected to the structure, and thus urges the Commission 

to vacate and remand the finding of violation. S. Br. at 28-29. The Secretary further agrees that 

the judge failed to address Wolf Run' s additional arguments, previously set forth in the operator's 

PDR, and states that on remand the judge should be instructed to do so. Id. at 29. 

We agree with Wolf Run and the Secretary that the judge committed a fundamental error 

in concluding that there was a violation in this instance. Arthur Wooten, the MSHA inspector 

who issued the grounding medium citation, was the Secretary's primary witness at the hearing. 

Tr. 158-60, 325. He stated early in his testimony regarding the citation that, if the ground wire in 

the power cable had not been attached to the frame of the conveyor belt that led underground, no 

citation would have been issued. Tr. 341. He explained that the grounding field for the three 

arresters would have been the butt ground and the substation from which the cable originated, and 

thus the 25-foot distance requirement of section 75.521 would have been maintained. Tr. 380-81, 

560-61, 570-71. 

Throughout his testimony, Wooten referred to the ground wire in the power cable as 

having been attached not only to the butt ground wire (Tr. 335-37, 359-60, 369-73), but also to the 

conveyor belt structure:, thus defeating the separation requirement. Tr. 360, 366-67, 369-70, 

375-77, 379-80, 398-99, 523-25; Gov't Ex. 9, 23. However, WolfRun's safety manager, John 

Semple, denied that the wire was attached to, and terminated at, the conveyor belt structure. 

Tr. 727. He instead described the wire as bypassing the conveyor belt and ultimately being 

attached to a control box for the,surface stacker belts. Tr. 726-29, 761-65. Another member of 

the MSHA electrical inspection team, James Honaker, was called as a rebuttal witness to Semple. 

Tr. 828-31. Honake~ confirmed Wooten's account and disputed part ofSemple's, testifying that 

he had observed a solid connection between the ground wire at issue and the conveyor belt 

structure. Tr. 831-32. 

The judge essentially accepted as true the citation as written (see 31 FMSHRC at 660), but 

at the hearing Wolf Run had clearly challenged the factual predicate of the citation. See also 

WR Post-Hearing Br. at 13 (one issue in matter was "(w]hether the ground wire for the cable 

conveying power to the surface conveyor equipment was attached to the underground conveyor 

32 FMSHRC Page 1675 
structure").9 Without resolution of the dispute over whether the ground wire was attached to the 

conveyor belt structure, it is impossible to determine whether the Secretary has established the 

condition that she alleges violated section 75.521 in this instance, and thus whether substantial 

evidence supports the judge's decision to affirm the grounding medium citation. 10 Resolving the 

dispute over whether the ground wire was so attached is primarily a matter of deciding which 

witness or witnesses to credit, and is thus within the province of the judge in the first instance. 11 

Consequently, we vacate the judge's affirmance of the grounding medium citation and remand it 

for a resolution of whether the ground wire was attached to the belt structure. See Mid-Continent 

Res., Inc., 16FMSHRC1218, 1222-23 (June 1994) (remand appropriate when judge has failed to 

analyze and weigh all probative record evidence, make appropriate findings, and explain the 

reasons for his or her decision). 

Should he find that the.ground wire was so attached, the judge on remand must then also 

address WolfRun's remaining arguments as to whether the Secretary had established a violation 

of the second sentence of section 7 5 .521. Wolf Run made these arguments in the brief that it 

submitted after the hearing (at 3 8-40), but the judge did not address them. It preserved these 

9 Citation No. 7583340 states: 

The lightning arresters grounding medium was not separated from 

the neutral grounds by a distance of 25 feet. The arresters were 

wired in a manner that would not prevent the frames· of the 

equipment being used underground which are connected to the 

neutral grounding field from becoming energized in the event of a 

strike on the surface. The arrester ground was connected to the 

frames of the swface belt structure which are entering the mine 

and are connected to the mine track and all underground electrical 

equipment. · 

Gov't Ex. 4 (emphasis added). 

10 When reviewing an administrative law judge's factual determinations, the Commission 

is bound by the terms of the Mine Act to apply the substantial evidence test. 30 U.S.C. 

§ 823(d)(2)(A)(ii)(I). "Substantial evidence" means" 'such relevant evidence as a reasonable 

mind might accept as adequate to support [the judge's] conclusion."' Rochester &Pittsburgh 

Coal Co., 11FMSHRC2159, 2163 (Nov. 1989) (quoting ConsolidatedEdison Co. v. NLRB, 

305 U.S. 197, 229 (1938)). 

1

' B<:!cause the judge ''has an opportunity to hear the testimony and view the witnesses[,] 

he [or she] is ordinarily in the best position to make a credibility determination." In re: Contests 

of Respirable Dust Sample Alteration Citations, 17 FMSHRC 1819, 1878 (Nov. 1995) (quoting 

Ona Corp. v. NLRB, 729F.2d 713, 719 (11th Cir.1984)), ajf'd sub nom. SecyofLaborv. 

Keystone Coal Mining Corp., 151F.3d1096 (D.C. Cir. 1998). 

32FMSHRCPage1676 
issues in its PDR (at 19-21) and its opening briefhere (at 36-38). Consequently, the judge is 

required to address the arguments on remand. See Haro v. Magma Copper Co., .4 FMSHRC 

1935, 1941 (Nov. 1982) (instructing the judge on remand to address arguments he had, in error, 

failed to address originally). 

2. S&S 

Vacating the judge's decision affirming the citation means that the judge's finding 

upholding the violation as S&S is also vacated. 12 In addition to that ground for vacating and 

remanding the S&S finding, the parties again agree that there are other grounds on which to do so. 

Wolf Run argues thatthe conclusion that a violation is S&S requires a finding that there 

was a reasonable likelihood that the hazard posed by a violation would result in an injury, and that 

therefore the judge applied the wrong legal standard for S&S when he stated that an electrical 

surge "could" result in a fire or explosion. WR Br. at 39-40 (quoting 31 FMSHRC at 661 ). The 

operator also takes issue with thejudge's conclusion that the electricity from a lightning strike 

would have necessarily been conveyed underground, or even if it was, whether it would have been 

of sufficient voltage to be hazardous. Id. at 40-42. 

The Secretary agrees that the judge misstated the legal standard for S&S in this instance, 

and that he should have determined whether the evidence was sufficient to establish that there was 

a reasonable likelihood that a lightning strike would result in an event causing injury. S. Br. at 30.,. 

31. The Secretary would have the Commission remand the case to the judge to apply the proper 

standard. Id. at 31. According to the Secretary, there is substantial record evidence to support an 

S&S finding under existing law. Id. atJl n.1.8.-

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

and refers to "significant and substantial," i.e., more serious, violations. A violation is S&S if, 

based on the particular facts surrounding the violation, there exists a reasonable likelihood that the 

hazard contributed to will result in an injury or illness ofa reasonably serious nature. See Cement 

Div., Nat'/ Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). In Mathies Coal Co., 6 FMSHRC 1 

(Jan. 1984), the Commission further explained: 

In order to establish that a violation of a mandatory safety 

standard is significant and substantial under National Gypsum, the 

12 In affirming that the violation was S&S, the judge found that, while lightning is 

unpredictable and random, it was dangerous to~expose miners underground to the significant 

electrical surge that could result from a lightning strike on the high voltage lines. 31 FMSHRC 

at 661. The judge further found that this created both an electrocution hazard with respect to 

those miners in the vicinity of the underground equipment and an ignition source that could result 

in a fire or explosion. He concluded that the Sago tragedy demonstrated the serious hazard posed 

to miners by lightning. Id. at 661-62. 

32 FMSHRC Page 1677 
Secretary of Labor must prove: ( 1) the underlying violation of a 

mandatory safety standard; (2) a discrete safety hazard·- that is, a 

measure of danger to safety- contributed to by the violation; (3) a 

reasonable likelihood that the hazard contributed to will result in. an 

injury; and (4) a reasonable likelihood that the injury in question 

will be of a reasonably serious nature. 

Id. at 3-4 (footnote omitted); accord Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 

1995); Austin Power, Inc. v. Secretary of Labor, 861 F.2d99, 103 (5th Cir. 1988) (approving 

Mathies criteria). 

Should the judge conclude on remand that a violation of section 75.521 was established, 

he will need to apply the Mathies factors to determine whether the violation was. properly 

designated S&S. We note that in past cases we have not agreed that it is sufficient that a violation 

''could" result in an injury. See Peabody Coal Co., 17 FMSHRC 26, 29 (Jan. 1995). 

Accordingly, on remand the judge should be more precise when discussing the potential for 

various injuries in the context of the Mathies analy$.is. · 

Moreover, the judge's decision does not reflect that he fully considered the evidence 

proffered by the parties and mentioned in their briefs regarding. the likelihood of dangerous levels 

of electricity surging underground in the event of a lightning strike. See 31 · FMSHRC at 661-62 .. 

His decision on remand should reflect that he considered the specific evidence that the parties 

submitted on that key issue. 

B. The Arrester Requirement Citations (Nos. 7583316. 7583317.7582485, 

7335233) 

Only .those power conductors that run in part underground and are both "exposed" and 

"ungrounded" on the surface are subject to the lightning arrester requirement contained in the first 

sentence of section 75 .52 l. Therefore, to establish a violation, the Secretary had to prove that at 

least one conductor contained in the cable or wire at issue in a citation was both "exposed" and 

"ungrounded" as those terms are used in the standard. The judge held that the conductors were 

uniformly "exposed" for purposes of the regulation, but that only some of the conductors could be 

considered "ungrounded," and thus onlythose were subject to the arrester requirement. 3 l 

FMSHRC at 655-59. 

Where the language of a regulatory provision is clear, the terms of that provision must be 

enforced as they are written unless the regulator clearly intended the words to have a different 

meaning or unless such a meaning would lead to absurd results. Dyer v. United States, 832 F.2d· 

1062, 1066 (9th Cir. 1987) (citations omitted); see also Utah Power & Light Co., 11 FMSHRC 

1926, 1930 (Oct. 1989) (citations omitted); Consolidation Coal Co., 15 FMSHRC 1555, 1557 

(Aug.1993). If, however; a standard is ambiguous, courts have deferred to the Secretary's 

reasonable interpretation of the regulation. See Energy West Mining Co. v. FMSHRC, 40 F .3d 

32 FMSHRC Page 1678 
457, 463 (D.C. Cir. 1994); accord Sec'y of Labor v. Western Fuels-Utah, Inc., 900 F.2d 318, 321 

(D.C. Cir. 1990) ("agency's interpretation ... is 'of controlling weight unless it is plainly 

erroneous or inconsistent with the regulation"') (quoting Bowles v. Seminole Rock & Sand Co., 

325 U.S. 410, 414 (1945) (other citations omitted)). 

The Secretary's interpretation of a regulation is reasonable where it is "logically consistent 

with the language of the regulation[] and ... serves a permissible regulatory function." General 

Elec. Co. v. EPA, 53 F.3d 1324, 1327 (D.C. Cir. 1995) (citation omitted). The Commission's 

review, like the courts' review, involves an examination of whether the Secretary's interpretation 

is reasonable .. Energy West, 40 F .3d at 463 (citing Sec 'y of Labor on behalf of Bushnell v. 

Cannelton Indus., Inc., 867F.2d1432, 1439 (D.C. Cir. 1989)); see also Consolidation Coal Co., 

14 FMSHRC 956, 969 (June 1992) (examining whether Secretary's interpretation was 

reasonable). 

1. Whether the Power Conductors Were "Exposed" 

Below, the parties stipulated that, for each of the power cables cited, certain wires within 

the cables were the "power conductors" at issue, and that none of those wires were bare, as all 

were insulated and were contained within an outer protective jacket covering the cable. Jt. Ex. 2, 

at 5, 6-7, 7-8. The telephone wire and the trolley phone wires were also covered by insulation. 

Id. at 9. Wolf Run contended that this established that the conductors could not be considered 

"exposed" and thus the operator could not be found in violation of section 75.521 with regard to 

any of the four citations. WR Post Hearing Br. at 16-19. 

The Secretary disputed that the presence of the insulation and outer jacket established that 

the conductors were not "exposed" under section 75.521. Inspector Wooten testified thatthe 

insulation simply serves to keep the electrical current confined within, thus protecting anyone who· 

may come in contact with the live copper leads inside the wires from the hazard of electrical 

shock. Tr. 218-220. He further explained that the outer jacket was merely designed to provide 

mechanical protection for the inner leads and to prevent them from being damaged. Tr. 218. 

According to the Secretary's witnesses, neither the insulation nor the outer jacket protected the 

conductors from the atmospheric effects of lightning, and thus MSHA considered the conductors 

"exposed" under section 75.521. Tr. 218, 222-23, 276, 632. 

At the hearing, the Secretary's witnesses also explained that, well prior to· 2006, the PPM 

for section 75.521 provided a comprehensive illustration of the various ways in which a c6nductor 

could be protected from the effects of lightning, and thus not be considered "exposed" under the 

standard. Tr. 244-59. The PPM states that with regard to the first sentence of section 75.521: 

Conductors that are (1) provided with metallic shields; (2) 

jacketed by a ground metal covering or enclosure; (3) installed 

under grounded metal· framework; ( 4) buried in the earth; or ( 5) 

made of triplex or qliadraplex that is supported by a grounded 

32 FMSHRC Page 1679 
messenger wire, are not considered f!Xposed for the length so 

protected. 

Gov't Ex. 8 (emphasis added). The parties stipulated that none of the conductors at issue in the 

four citations had the shielding referred to in the PPM (Jt. Ex. 2, at 5, 7, 8, 9), and it was 

established at the hearing that none of the cables or wires at issue met any of the four other 

qualifications. Tr. 258-59 (water pump cable), 289-91 (battery charger cables). 

As it did below, Wolf Run maintains that the ordinary meaning of the tenn "exposed" is 

"bare," as in lacking insulation or otherwise uncovered, and that the conductors at issue in each of 

the four citations here were not bare. WR Br. at 9-19; WR Reply Br. at 8-10. 13 The Secretary 

responds that "exposed" is an ambiguous term and that her interpretation of it to mean "exposed 

to the effects of lightning" is a reasonable one, given that it is used in the context of a regulation· 

designed to protect against the dangers oflightning. S. Br. at 20-25; S. Resp. Br. at 11-14. 

To establish its asserted "ordinary" meaning of the term "exposed" in relation to 

con,ductors, Wolf Run relies upon Merriam-Webster's Online Dictionary, http://www.merriamwebster.com/dictionaty/exposed (as accessed Oct. 13, 2008), which defines the term to mean "not 

shielded or protected; also: not insulated <an exposed electric wires>." WR Br. at 1 O; ·WR Ex. 1. 

However, a number of other dictionary definitions of "exposed" support the Secretary's 

interpretation of the term to mean "subject to the atmospheric effects oflightning."14 Under those 

definitions, to "expose" a conductor can mean to put it in a. position in which it is subject to the 

effects of lightning. 

Where dictionary definitions must be relied μpon to establish the meaning of a term, and 

those definitions show that a· term as it is used in a regulation is open to alternative interpretations, 

the Commission has found the term to be ambiguous .. See Island Creek Coal Co., 20 FMSHRC 

13 This argument is thus offered by Wolf Run as both as a basis on which it is appealing 

the judge's decision affirming the water pump cable and telephone wire citations, and as an 

alternative basis on which the Commission can uphold the judge's decision to vacatethe battery 

charger cables citations, which the Secretary is challenging on appeal. As the party defending the 

judge's decision with respect to the battery charger cable citations, Wolf Run can argue in 

support of the judge's vacatur of those citations a basis for vacatur that the judge rejected - that· 

the conductors cannot be considered "exposed" under the terms of section 75.521. See Sec '.Yon 

behalf of Price & Vacha v. Jim Walter Res.~Jnc., 14 FMSHRC 1549, 1552 n.2 (Sept. 1992). 

14 For instance, one definition of "expose" is "'to lay open (as to attack, danger, trial, or 

test): make accessible to S()mething that may prove detrimental: deprive of shelter, protection, or 

care." See Webster's Third New Int'/ Dictionary Unabridged 802 (1993). Another dictionary 

defines "expose" to mean "to lay open to something specified." See The Random House 

Dictionary of the English Language Unabridged 682 (2d ed. 1987). 

32 FMSHRC Page 1680 
14, 19 (Jan. 1998). Consequently, while the term "exposed" can be used to describe a wire that is 

not insulated or otheiwise not covered, that is by no means the only meaning of the term. 

Moreover, we ascertain the meaning of regulations not in isolation, but rather in the · 

context in which those regulations appear. RAG Shoshone Coal Corp., 26 FMSHRC 75, 80& n.7 

(Feb. 2004). As the Secretary points out (S. Br. at 22), MSHA's Part 75 electrical regulations 

demonstrate that when the agency refers to uninsulated wires, it uses the term "bare." See 30 

C.F.R. §§ 75.516 ("bare or.insulated ground or-return wires"), 75.517 ("bare signal wires"). 

Accordingly, if MSHA had meant to limit the scope of section 75.521 to uninsulated wires, it 

would have made more sense to use the term "bare" than the term "exposed." 

Further, the terms of section 75.521 must be read in the context of a regulation clearly 

designed with protection from the effects of lightning in mind. Consequently, interpreting the 

term ''exposed" as referring to those effects makes much more sense than the interpretation 

offered by Wolf Run;· We thus agree with the judge's reasoning upholding the Secretary's 

interpretation of the term: 

section 75.521 seeks to mitigate, by means oflightning arresters, the 

hazard posed by the high[-]powered transmission of electrical 

energy from a lightning strike from the surface to the underground 

mine. Thus, the focus of the cited standard is on power cables that 

are situated on the earth's surface and ''exposed" to lightning. It 

naturally follows that the·term "exposed conductors" refers to the 

location outside the underground mine, rather than their method of 

insulation and protection from human contact. 

31 FMSHRC at 656. 15 

Finally, and perhaps most importantly, the meaningof"exposed" in section 75.521 is best 

understood by the equivalent regulation that applies to underground metal and nonmetal mines. 

Using more precise language, that regulation states: 

Each ungrounded conductor or telephone wire that leads 

widerground and is directly exposed to lightning shall be equipped 

with suitable lightning arrester of approved type within I 00 feet of 

the point.where the circuit enters the mine. Lightning arresters shall 

be connected to a low resistance grounding medium on the surface 

15 We also agree with the judge that this case can be decided without relying on the PPM. 

Id. at 655-56. The purpose of the PPM is to explain to operators the different methods they can 

employ under the regulation to protect power conductors from "exposure," and the citations in 

this instance would have been justified even in the absence of the PPM. 

32 FMSHRC Page 1681 
and shall be separated from neutral grounds by a distance of not less 

than 25 feet. 

30 C.F.R. § 57.12069 (emphasis added). There is no logical reason why underground coal mines 

would be subject to a regulation designed to be less protective with regard to the effects of 

lightning than the regulation governing other mines, and it would make little sense for MSHA or 

its predecessor agency to have intended such a result. Consequently, we uphold the Secretary's · 

interpretation ·of the term "exposed" as eminently reasonable in this instance. 

Wolf Run argues that even if we accept the Secretary's interpretation of the term 

"exposed," there remains the issue of whether the operator had been provided adequate notice of 

that interpretation. WR Br. at 19-21. Separate from the issue of regulatory interpretation is 

whether the regulated party has received fair notice of the Secretary's interpretation of the 

regulation. Where the imposition of a civil penalty is at issue, considerations of due process 

prevent the adoption of an agency's interpretation "from validating the application of a regulation 

that fails to give fair warning of the conduct it prohibits or requires." Gates & Fox Co. v. OSHRC, 

790 F.2d 154, 156 (D.C. Cir. 1986) (citations omitted). An agency's interpretation maybe 

pennissible but nevertheless may fail to provide the notice required to support imposition of a 

civil penalty. See Gen. Elec, 53 F.3d at1333-34; PhelpsDodge Corp. v. FMSHRC, 681 F.2d 

1189, 1193 (9th Cir. 1982). 

The Commission's test for notice under the Mine Act is "whether a reasonably prudent 

person familiar with the mining industry and the protective purposes of the standard would have 

recognized the specific prohibition or requirement of the standard." Ideal Cement Co., 12 

FMSHRC 2409, 2416 (Nov. 1990). In deciding whether a party had adequate notice of regulatory 

requirements, a wide variety of factors is relevant, including the text of a regulation, its placement 

in the overall regulatory scheme, its regulatory history, the consistency of the agency's 

enforcement, and whether MSHA has published notices informing the regulated community with 

ascertainable certainty of its interpretation of the standard in question, Lodestar Energy, Inc., 

24 FMSHRC 689, 694-95 (July 2002); see Island Creek, 20 FMSHRC at 24-25; Morton Int'/, 

Inc., 18 FMSHRC 533, 539 (Apr. 1996); see also DiamondRoofing Co. v. OSHRC, 528 F.2d 645, 

649 (5th Cir. 1976); United States v. Hoechst Celanese Corp., 128 F.3d 216, 224 (4th Cir. 1997). 

As discussed; the Secretary's interpretation is practically a self-evident one, given the 

context of the regulation. In addition, the PPM clearly indicates that "exposed" was being used in 

section 75.521 in the context of protection from the effects oflightning. Finally, as the Secretary 

points out in her brief, there is record evidence from WolfRun's own witness that it attached 

lightning arresters to insulated cables running from the surface to underground locations. S. Br. 

at 24-25 (citing Tr. 823). We therefore conclude that Wolf Run had adequate notice of the 

Secretary's interpretation of the term "exposed" as it appears in section 75.521. 

32 FMSHRC Page 1682 
2. Whether the Power Conductors Were "Un1rounded" 

The Secretary argues that, in vacating the two battery charger cable citations, thejudge 

failed to properly understand the concept of grounding as it is used in section 75.521. She 

submits that the judge confused the concept of the grounding of a "conductor" with the grounding 

ofthecableorwireinwhichitiscontained. S.Br. at 14-15, 16-19; S.Resp.Br. at2-5, 7-11. The 

Secretary further contends that the judge also erred in concluding that connecting a lightning 

arrester to a cable that was connected to a power source underground would necessarily result in a 

violation of the 25-foot separation requirement set forth later in the standard. S. Br. at 15-16; 

S. Resp. Br. at 5-7. WolfRun's position is that thejudge had numerous grounds to reject the 

Secretary's arguments that the battery charger cables should be considered ungrounded for 

purposes of section 75.521. WR Br. at24-31, WR Reply Br. atl-8. 16 

The judge found that the cables that originated underground from the underground power 

source and ran to the surface to the battery chargers were connected to the neutral grounding 

medium. He further concluded that if Wolf Run had installed lightning arresters on those cables, 

as MSHA alleges that it should have, the operator would have violated the 25-foot separation 

requirement with respect to the grounding fields. 31 FMSHRC at 657-59. 

Because the judge concluded that it would have thus been impossible for the operator to 

comply with both sentences ofsection 75.521 in this instance, he vacated the two battery cable 

charger citations, as they were connected to the underground power center. Id. at 662. 17 In so 

doing, the judge misapprehended the record evidence with respect to this issue. Consequently, 

substantial evidence in the record does not support the judge with respect to this basis Jor his 

vacatur of the two battery charger cable citations. 

The judge apparently concluded that installing an arrester on any cable that ran to the 

underground power center would result in the same violation of the second sentence of section 

75.521 that is alleged in the grounding medium citation. With regard to the grounding medium 

citation, however, as discussed supra, slip op. at [ 4-5, 7], the record establishes that the butt 

ground wire connected the arresters and a grounding wire that ran to the belt conveyor (which, if 

connected to that structure, defeated the 25-foot separation requirement). Tr. 335-37, 359-60, 

369-73. 

With regard to all the cables or wires at issue in the four arrester requirement citations, the 

arresters would only have been installed on the ungrounded conductors within the cables or wires, 

16 The judge found that neither the water pump cable nor the telephone wires were 

grounded, which led him to affirm the citations. 32 FMSHRCat 663, 664. Wolf Run did not 

appeal those findings. 

17 The judge also noted this issue when discussing the water pump cable citation; but 

found that the cable was not connected to the neutral ground medium. Id. at 663. 

32 FMSHRC Page 1683 
as they carried current to the equipment. Tr. 199-201, 206-07, 276-77, 844, 861. The arresters 

would not have been connected to any ground wires in the cables, because such wires do not 

nonnally carry such current. Tr. 201-02, 207, 842, 844, 860-61. The lack ofa connection 

between a ground wire and an arrester thus makes the two situations quite different. 

Consequently, the judge erred in concluding that it would have been impossible to comply with 

the first sentence of section 75.521 with respect to the two battery charger cables without violating 

the second sentence ofthe.standard. 18 

The judge also considered the issue of grounding in the context of whether the cables or 

telephone wires at issue contained a properly functioning ground wire. In the judge's view, if 

such a ground wire were present, as was the case with the battery charger cables, the cable would 

not be considered ''ungrounded" under section 75.521. 31 FMSHRC at 658'-59. Conversely, the 

judge held that those power conductors that were within cables that did not include a properly 

functioning ground wire were "ungrounded," so he affirmed the water pump cable and telephone 

wire citations. Id. at 659. 

We agree with the Secretary that the judge erred in focusing on whether the cables at issue 

contained a ground wire. Section 75.521 plainly states that it is directed at ungrounded 

"conductors," and not the cables which contain the conductors. Compare 30 C.F.R. §§ 75.516-2, 

75.517, 75.517-1, 75.517-2 (nearby regulations regulating the use of"cables"). Moreover, 

throughout the hearing, the Secretary was clear that the violation occurred in each instance to the 

extent that one or more wires, contained in the cable or wire that was the subject of the citation, 

were serving as a "power conductor," .Tr. 199-201 (two.phase conductors in water pump cable); 

212-13 (improperly connected ground wire in water pump cable), 276 (three phase conductors in 

each battery charger cable), 621-22 (trolley wires), 622-24 (telephone wires). Indeed, the parties' 

stipulations contain multiple references to one of the issues being whether "conductors" were 

ungrounded. Jt. Ex. 2, at 4, ii~ 13, 15. Thus, even ifa proper functioning ground wire was present 

in a cable, th~ proper inquiry was whether any of the power conductors contained in the cable was 

itself ''ungrounded." 

As to the term "ungrounded," we agree-with the judge that the term is ambiguous as it 

applies to "conductors." There is no applicable regulatory definition of the term; and while 

Subpart Hof Part 75 governs grounding (see 30 C.F. R. § 75.700 et seq.), it does not address the ·. 

grounding of "conductors." 

.. 18 We note that Wolf Run did not argue to the judge that complying with the arrester 

requirement for cables powered from underground would result in a violation of the second 

sentence of section 75.521; the judge apparently arrived at that conclusion on his own. See S. Br. 

at 15. On review, Wolf Run argues in defense of the judge's opinion that the proximity within a 

cable of the ground wire to the conductors supports thejudge' s conclusion, but cites no record 

evidence in support of this view. See WR Br. at 28-29; WR Reply Br. at 4-5. 

32 FMSHRC Page 1684 
·The only reason the judge gave for holding that the Secretary unreasonably interpreted 

''ungrounded" in applying it to conductors in cables containing a properly functioning ground wire 

is the definition of"grounded power conductor" contained in the Dictionary of Mining, Minerals, 

and Related Terms (2d ed. 1997) (''DMMRT?). See 31 FMSHRC at 658. There a "grounded 

power conductor" is defined as "[a ]n insulated or bare cable that constitutes one side of a power 

circuit and normally is connected to ground. It differs from a ground wire in that a grounded 

power conductor normally carries the load current while the equipment it serves is in service." 

DMMRTat 247. 

The Secretary objects to the judge's consideration of this definition because it was not 

included in the record, and the Secretary did not have an opportunity to address it during the 

hearing. S. Br. at 16-17. While this is true, we do not hold that the judge necessarily erred in 

looking to the DMMRT definition. The technical usage of a term is quite relevant in determining 

its meaning, 19 and the DMMRT is a recognized authority for such usage. 

However, we cannot hold that the DMMRT definition in question is dispositive in this 

instance. The definition essentially treats a "conductor" as the equivalent of a "cable," but in this 

case the cables at issue were composed of multiple conductors, some of which connected to 

ground and thus did not power the equipment, but others of which were not connected to ground 

and carried current to the equipment. Tr. 200-04; Gov 't Ex. 16. ··Consequently the judge, in 

deciding whether the Secretary's interpretation was reasonable, should have considered more than 

the DMMRT definition. 

As with the entire standard, there is no regulatory history that could assist in understanding 

section 75.521 's use of the term ''ungrounded" as it applies to conductors. Consequently, we look 

to the explanation provided at hearing by the Secretary's witnesses as to why the conductors 

themselves would have had to be grounded to not fall Within the scope of the regulation, and why 

it was not sufficient that they were contained in a cable that contained a ground wire. 

The Secretary's witnesses explained that to escape the purview of the arrester requirement 

of section 75.521, the conductors themselves must be grounded, given the amount of electricity 

that could surge through them in the event of a lightning strike. The ground wire in a cable is 

designed merely to protect against a fault, short circuit, or damage to the cable. Because of the 

considerably greater danger posed by the energy from lightning, in the absence of lightning 

arresters MSHA would require any exposed conductor to be grounded to direct that energy to the 

earth, where it will dissipate. Tr. 276-79, 284, 873-74. 

As the Secretary notes, WolfRun's witnesses did not contradict her witnesses on this 

issue. S. Br. at 15. Rather, Wolf Run has argued that the Secretary's evidence establishes that the 

19 If there is no regulatory definition of a term, the Commission will look to its technical 

usage. Bluestone Coal Corp., 19 FMSHRC 1025, 1029(June1997); Peabody Coal Co., 18 

FMSHRC 686, 690 (May 1996), aff'd, 111 F.3d 963 (table), 1997 WL 159436 (D.C. Cir. 1997). 

32 FMSHRC Page 1685 
grounding of a conductor prevents electricity from flowing to the equipment it serves, and that 

therefore the Secretary's interpretation of the standard is not entitled to deference because it wouk 

lead to the absurd result of preventing a power conductor from serving its intended pmpose. 

WR Br. at25. 

Wolf Run correctly characterizes the testimony, as MSHA electrical engineer Honaker 

testified that a grounded conductor will not provide power to the equipment to which it is 

connected. Tr. 861, 873. However, this does not establish that the Secretary's interpretation of 

''ungrounded" is absurd in this instance. Honaker stated that it is rare to have an underground 

source for surface equipment and vice-versa (Tr. 862), so section 75.521 is rarely applicable. 

Moreover, he attempted to explain that, at the time the. standard originated, it was .common at 

small mines for there to be direct current ("DC") electrical systems which had grounded 

conductors, but references to the "grounding" of a conductor now make less sense with the 

predominance of alternating current ("AC") systems throughout mining. Tr. 848-50. 

Thus, it is true that time has likely rendered ·the standard's reference to "ungrounded" with 

respect to conductors superfluous, as Wolf Run argues. WR Br. at 26; WR Reply Br. at 7. 

However, the obsolescence of a single term in the standard does not make continued application 

of the entire standard "absurd." The lightning arrester requirement only applies to ungrounded 

conductors that are "exposed." Accordingly, while it may be impossible for a conductor to 

provide power while grounded, and thus an operator cannqt ground a conductor to avoid the 

arrester requirement, an operator has control over the design of its mine's electrical system, and 

can still avoid the arrester requirement as to that conductor by not having an "exposed" power 

conductor running between the surface and underground. 

In light of the foregoing, we cannot agree with the judge that the Secretary's interpretation 

of ''ungrounded conductor'' to include the conductors at issue here is unreasonable and thus not 

deserving of deference. Accordingly, we vacate the judge's determination that section 7 5 .521 was 

not violated as alleged in the two battery charger cable citations. 

On remand, thejudge needs to decide one or more additional issues with respect to the 

battery charger cable citations which he did not reach because he vacated the citations: 

(1) whether Wolf Run had adequate notice regarding the Secretary's interpretation of the term 

"ungrounded" as it applies to a power conductor contained in a cable that has a properly 

functioning ground wire (see S. Post-Hearing Br. at 39-41; WR Post-Hearing Br. at 36-37);20 and. 

if Wolf Run had such notice, (2) whether it was established that the two violations of section 

75.521 were S&S, as alleged in the citations, and (3) the penalties for the citations. 

20 Because Chairman Jordan believes that a reasonably prudent pe~son familiar with the 

mining industry and the protective purpose of lightning arresters would have recognized that the 

presence of a ground wire in a cable does not comply with the requirement in section 75.521 that 

an exposed power conductor in such a cable must itself be grounded, she does not join in 

including the issue of notice in the remand. 

32 FMSHRC Page 1686 
3. The Telephone Wire Non-S&S Findin& 

The telephone and trolley wires citation was deiignated by MSHA as S&S as to the 

violation of section 75.521 posed by the two-conductor telephone wire, and not the trolley wires. 

The judge, however, concluded that the energy from a lightning strike would be unlikely to enter 

the mine via the telephone wires, because the wires have a relative low voltage capacity of 12 

volts. 31 FMSHRC at 664. Because the surge from a lightning strike can exceed one million 

volts, the judge reasoned that the telephone wire likely would be destroyed by Stich a surge before 

the energy entered the mine. Id. Consequently, the judge modified the citation to· delete the S&S 

designation. Id. at 664-65. 

The Secretary urges the CommissiOn to reinstate· the S&S designation and remand the case 

for a recalculation of the penalty on the ground that the judge confused the figure cited for the 

normal voltage carriedbythe telephone wire - 12 volts -with the wire's capacity to conduct 

electricity. S. Br. at26-27. The Secretary also argues that the judge erred in assuming that 

electricity from a lightning strike would not be conducted into the mine via the wires before the 

wires were destroyed. Id. at 27. 

Consistent with the position it takes with respect to whether the battery charger cable 

citations could properly be found to be S&S (WR Br. at 42), Wolf Run argues that there are too 

many variables to predict what would happen in the event any of the cables or wires at issue in 

this case were affected by a lightning strike. WR Br. at 43-45; WR Reply Br. at 11. Wolf Run 

maintains that in the case of the telephone wires, there is a lack of evidence to support an S&S 

finding. WR Br. at 45-46; WR Reply Br. at 11. 

We agree with the Secretary that the judge's conclusion regarding the capacity of the 

telephone wire is not supported by substantial evidence, in that MSHA Engineer Kevin Hedrick 

only testified regarding the voltage normally can?ed by Wolf Run' s telephone wires, and did not 

discuss the capacity of such wires. Tr. 622, 624, 644. We also agree with the Secretary that it 

was error for the judge to fail even to acknowledge Hedrick's statement that a surge of electrical 

energy from lightning could enter a mine via the wire before that energy destroyed the wire. 

Tr. 654. While Wolf Run makes a number of possibly valid points regarding the quality of the 

Secretary's evidence on the S&S issue, this is an issue that is best decided by the judge on 

remand. Consequently, we vacate. and remand the judge's non-S&S finding for his consideration 

of the overall record with regard to whether the violation of section 75.521 was S&S in this 

instance. 

32 FMSHRC Page 1687 
III. 

Conclusion 

For the foregoing reasons, we (1) vacate and remand the judge's determination that an. 

S&S violation of section 75.521 was established with regard to the grounding medium (Citation 

No. 7583304); (2) reverse the judge's determinations that violations of section 75.521 were not 

established with respect to the two battery charger cables (Citation Nos. 7583316 and 7583317), 

and remand for a determination whether the operator had adequate notice of the term 

"ungrounded" with respect to those cables, and, if there was such notice, the further 

determinations of whether the violations were S&S and the appropriate penalties for the 

violations; (3) affirm in result the judge's determination .that a violation of section 7 5 .521 was 

established with respect to the water pump cable (Citation No. 7582485); and.( 4) affirm in result 

the judge's determination that a violation of section 75.521 was .established with respect to the · 

telephone wire (Citation No. 7335233), and vacate and remand the judge's finding that the 

violation was not S&S. 

Mic 

r-~JL Patrick K. Nakamura, Commissioner 

32 FMSHRC Page 1688 
Distribution: 

R. Henry Moore, Esq. 

Jackson Kelly, PLLC 

Three Gateway Center, Suite 1340 

401 Liberty A venue 

Pittsburgh, PA 15222 

Edward Waldman, Esq. 

Esq., Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Melanie Garris 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 251h Floor 

Arlington, VA 22209-3939 

Administrative Law Judge Jerold Feldman 

Federal Mine Safety & Health Review Commission 

Office of Administrative Law Judges 

601 New Jersey Avenue, N. W., Suite 9500 

Washington, D.C. 20001-2021 · 

32 FMSHRC Page 1689 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

LONG BRANCH ENERGY 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON. DC 20001 

December 29, 2010 

Docket No. WEVA 2010-992 

A.C. No. 46-04955-212816 

BEFORE: Jordan, Chairman; Duffy, Young, Cohe~ and Nakamura, Commissioners 

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act''). On May 6, 2010, and November 15, 2010, the Commission 

received from Long Branch Energy ("Long Branch") motions by colUlsel seeking to reopen a 

penalty assessment that had become a final order of the Commission pursuant to section 105( a) 

of the Mine Act, 30 U.S.C. § 815(a). 

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

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

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

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

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

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

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

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

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

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

See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable 

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

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

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

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

32 FMSHRC Page 1690 
On October 21, 2010, the Commission denied without prejudice Long Branch's request 

on the basis that the operator had failed to provide a "sufficiently detailed explanation for its· 

failure to timely contest the proposed penalty assessment." Long Branch Energy, 32 FMSHRC 

1220, 1221 (Oct. 2010). The Commission stated that at a minimum, Long Branch "must provide 

an explanation of how it normally contests proposed penalties and specific infomiation regarding 

why that process did not work in this instance," and file any amended or renewed request within 

30 days of the date of the order. Id. at 1222. 

On November 12, 2010, Long Branch filed a second motion to reopen the penalty 

assessment with an affidavit and documentation that explain the reason for its delay in contesting 

the assessment in much more detail Long Branch explains that, after receiving the proposed 

assessment on March 8, 2010, it gathered information about the citations and placed the proposed 

assessment form on the desk of its president/ general manager during the week of March 31 to 

April 2, 2010. The operator's president/general manager intended to contest Citation Nos. 

8078978, 8078979, and 8078980: However, on April 5, 2010, an explosion occurred at the 

Upper Big Branch mine, which is close to one of Long Branch's mines. The president/general 

manager became engaged in answering multiple questions regarding how the explosion would 

impact Long Branch's mine and, as a result, the president/ general manager mistakenly failed to 

timely contest the citations. 

The Secretary has not opposed Long Branch's second request to reopen. 

32 FMSHRC Page 1691 
Having reviewed Long Branch's requests and the Secretary's response, in the interest of 

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

further proceedings pursuant to the Mine Act.~nd the Commi~~ion's Pr9cedural Rules, 29 C.F.R. 

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

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

li~~ 

Michael ~ F. Duffy, Commissioner 

Robert F. Cohen, Jr., Commissioner 

Patrick K. Nakamura, Commissioner 

32 FMSHRC Page 1692 
Distribution: 

Melissa Robinson, Esq. 

Jackson Kelly PLLC 

1600 Laidley Tower 

P.O. Box 553 

Charleston, WV 25322 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Melanie Garris, Acting Chief 

Office of Civil Penalty Compliance, MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 251h Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. ·Lesnick 

Federal Mine Safety & Health Review Commission 

601 New Jersey Avenue, N. W., Suite 9500 

Washington, D.C. 20001-2021 

32 FMSHRC Page 1693 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

JUSTIN NAGEL 

v. 

NEWMONT USA LIMITED 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

November 23, 2010 

Docket No. WEST 2010-464-DM 

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

DIRECTION FOR REVIEW AND ORDER 

BY THE COMMISSION: 

On January 5, 2010, Justin Nagel, acting prose, filed a complaint of discrimination 

against Newmont USA Limited (''Newmont") under section 105(c)(3) of the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 815(c)(3) (2006). The c~e had a compiex procedural 

history before the Administrative Law Judge ("the judge"), which culminated on October 27, 

2010, when the judge issued an order entitled, "Order Certifying Interlocutory Discovery Ruling 

to the Commission; Order Granting Respondent's Motion to Dismiss for Failure to Comply with 

Discovery Orders and Repeated Lack of Candor with Tribunal; Order Staying Dismissal Pending 

Commission Ruling on Certified Interlocutory Discovery Order." We will refer to this combined 

order as the "October 27 Dismissal Order." In this Direction for Review and Order, the 

Commission will consider whether to address two issues which Mr. Nagel has raised before the 

Commission, and will also address the legal implications of the Judge's attempt to stay the 

October 27 Dismissal Order. 

I. 

Factual and Procedural Background 

On September 24, 2010, the judge orally granted Newmont' s oral request that it be 

allowed to hire private security guards for the scheduled September 28, 2010 deposition of Mr. 

Nagel, and that all participants in said deposition submit to a reasonable search upon entry. This 

oral order was confirmed by a written Order Granting Respondent's Request for Security on 

October 13, 2010. Mr. Nagel filed a document entitled "Petition for discretionary review" with 

the Commission on October 26, 2010. In his October 27 Dismissal Order, the judge treated this 

32 FMSHRC Page 1694 
submission as a motion to certify this interlocutory ruling1 tinder Commission Procedural Rule 

76, 29 C.F.R. § 2700. 76. He declined to certify the issu,e for intedocutory review, stating that the 

order did not materially advance the final disposition of the proceeding and was moot because 

the deposition had already occurred. Oct. 27 Dismissal Order at 17. 

In addition, after a protracted discovery dispute involving recordings Mr. Nagel had made 

of conversations with representatives of Newmont management, the judge on October 18, 2010 

issued an order partially granting Newmont's motion to compel production of the recorded 

conversations. Although the judge ordered Mr. Nagel to produce copies of the audio tapes of inperson conversations with Newmont management (but not tapes of telephone conversations), 

Mr. Nagel did not comply with this order. Oct. 27 Dismissal Order at 5-6. On October 19, 2010, 

Newmont filed a motion to dismiss, arguing that Mr. Nagel had demonstrated a pattern of 

unwillingness to comply with direct orders from the judge .. Oct. 27 Dismissal Order at 6. During 

a conference call on October 21, 2010, the judge issued an order to show cause why the case 

should not be dismissed due to Mr. Nagel' s failure to comply with the discovery order to produce 

the tapes. This was followed by a written show cause order issued on October 22. Id. at 11. Mr. 

Nagel responded to the motion to dismiss, stating that he intended to appeal the discovery order 

to the Commission. Id. at 10. 

On October 25, 2010, Mr. Nagel filed a Petition for Discretionary Review, asking the 

Commission to review the judge's order requiring him to turn over copies of the audio 

recordings. As with the petition relating to the hiring of private security guards, the judge treated 

this document as a motion for certification of his interlocutory discovery ruling. Unlike the issue 

of the private security guards, however, the judge ruled that the order to turn over the tapes 

involved a controlling question of law that would materially advance the final disposition of the 

proceeding, and certified the question to the Commission for interlocutory review. Id. at 16-17. 

In his October 27 Dismissal Order, the judge discussed whether dismissal of the case as a·. 

1 An interlocutory ruling is an order issued during the pendency of a lawsuit, prior to the 

final decision in the case. Generally, the Commission is reluctant to review interlocutory rulings 

because such review is inefficient, and interferes with the flow of the case before the judge. 

Interlocutory rulings can generally ,be reviewed after the judge has issued a final decision as part 

of an overall appeal to the Commission. For this reason, the Commission has enacted separate 

regulations addressing review from a judge's final decision and review from a judge's ruling 

prior to his final decision. Thus, Commission Procedural Rule 70, 29 C.F.R. § 2700.70, 

addresses "Petitions for discretionary review," which is the procedure used to obtain review of a 

judge's final decision. Where a party seeks review of a judge's interlocutory ruling, it may file a 

"petition for interlocutory review" under Commission Procedural Rule 76, 29 C.F.R. § 2700. 76. 

However, petitions for interlocutory review are granted only under very narrow circumstances. 

Piecemeal appeals are usually not favored, as they often result in additional costs to the parties 

and the judiciary. Certification of an interlocutory order is considered' an exception, not a rule. 

20 James Wm. Moore etal., Moore's Federal Practice~ 305.03 (3d ed. 2010). · 

32 FMSHRC Page 1695 
discovery sanction was appropriate. He held that it was appropriate, due to Mr. Nagel's 

"repeated failure to comply with discovery Orders and lack of candor with the tribunal, which 

has interfered substantially with a fair hearing in this matter, unduly burdened the record, and 

caused additional work, delay, and expense through refusal to comply with discovery Orders and 

Commission rules." Id. at 18. He dismissed the case but stayed the dismissal pending the 

Commission'.s ruling on the certified interlocutory discovery ruling. Id. at 23. 

II. 

Disposition 

Before considering Mr .. Nagel' s two petitions, we must first consider the legal 

implications ofthejudge staying the October 27 Dismissal Order. In Capitol Aggregates, Inc., 2 

FMSHRC 1040, 1041 (May 1980), the Commission held that a judge who had issued a stay of 

bis decision lacked the authority to issue the stay. See also Sec. of Labor on behalf of Pasula v. 

Consolidation Coal Co., 1FMSHRC25 (Apr. 1979){neither the Mine Act nor the 

Commission's Interim Rules of Procedure provide for a stay of the effective date of a judge's 

decision once the decision is issued). 2 Thus, if the judge in the present case lacked the authority 

to issue the stay, the effect is that the October 27 Dismissal Order was a final decision which 

commenced the running of the 30-day period in Which a party may file a petition for 

discretionary review under section l 13(d)(2)(A)(i) of the Mine Act, 30 U.S.C.§·823(d)(2)(A)(i); 

and Commission Procedural Rule 70(a), 29 C.F.R. § 2700.70(a). Because of the stay, Mr. Nagel 

is,not on notice that his time for filing a petition for discretionary review from the October 27 

Dismissal Order is running. 

For this reason, the Commission will, on its own motion pursuant to Commission 

Procedural Rule 71, 29 C.F.R. § 2700.71, review the October 27 Dismissal Order. Our review is 

limited to t~e issue of whether the judge had the authority to stay the effect of his decision. We 

conclude that he did not have this authority. Capitol Aggregates, Inc., supra at 1041. Therefore, 

we must vacate the October 27 Dismissal Order. 

We have before us Mr. Nagel's two petitions. Although these are styled aS petitions for 

discretionary review under Rule 70, they are really"'- as the judge recognized - petitions for 

interlocutory review under Rule 76. Although the judge certified to the Commission, pursuant to 

Rule 76(a)(l)(i), the issue involving the partial granting ofNewmont's motion to compel 

production of audio tape recordings, which was appealed by Mr. Nagel in one of his petitions; we 

conclude that review of these issues is not appropriate at this time. We note that the Commission 

usually does not grant interlocutory review of discovery orders. See Asarco, Inc., 14 FMSHRC 

1323, 1328 (Aug. 1992)("unless there is a 'manifest abuse of discretion' on the part of a judge, 

discovery orders are not ordinarily subject to interlocutory appellate review") (citations omitted); 

2 Commission Rule. 69(b) states that, except for the. correction of clerical errors, "the 

jurisdiction of the Judge terminates when his decision has been issued." 29 C.F.R. § 2700.69(b). 

32 FMSHRC Page 1696 
In re: Contests of Respirable Dust Sample Alteration Citations, 14 FMSHRC 987, 1004 (June 

1992) ("discovery orders are usually not appealable"). Accordingly, we deny both petitions. 

III. 

Conclusion 

Consequently, we vacate the judge's Dismissal Order of October 27, 2010, and remand 

the case to him for further proceedings consistent with this decision. Once the judge has issued a 

final decision, a petition for discretionary review of that decision may be filed within 30 days 

after issuance of the decision or order, pursuant to section 113(d)(2)(A)(i) of the Mine Act, 30 

U.S.C. § 823(d)(2)(A)(i), and the Commission's Procedural Rule 70(a), 29 C.F.R. § 2700.70(a). 

IfMr. Nagel files a petition for discretionary review, he may include the issues set forth in his 

interlocutory petitions on the security and discovery issues. 3 

~r:mmIB~oPatrick K. Nakamura, Commissioner 

3 On November 19, 2010, the Commission received from Mr. Nagel another petition for 

discretionary review, which asked the Commission to review the judge's denial, on October 20, 

2010, of Mr. Nagel's Motion to Order Respondent to Reduce Verbal Motion to Writing. As with 

the other two petitions, we find it inappropriate to review this ruling on an interlocutory basis. 

Therefore, we deny this petition. Mr. Nagel may raise this issue in the context of a petition for 

discretionary review after the judge has issued a final decision in the overall case. 

32 FMSHRC Page 1697 
Distribution 

Justin Nagel 

P.O. Box 182 

Rathdrum, ID 83858 

Richard Tucker 

Newmont Mining Company 

1655 Mountain City Highway 

Elko, NV 89801 

Donna Vetrano Pryor, Esq. 

Patton Boggs, LLP 

1801 California Street, Suite 4900 

Denver, CO 80202 

W. Christian Schumann, Esq. 

Offi~e of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., 22nd Floor 

Arlington, VA 22209-2247 

Administrative Law Ju,dge Thomas McCarthy 

Federal Mine Safety & Health Review Commission 

Office of Administrative Law Judges 

601 New Jersey Avenue, N.W., Suite 9500 

Wa.5hington, D.C. 20001-2021 · . 

32 FMSHRC Page 1698 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY & HEALTH 

ADMINISTRATION (MSHA), 

Petitioner, 

v. 

U.S. SILICA COMP ANY, 

Respondent. 

721 19th STREET, SUITE 443 

DENVER, CO 80202-2500 

303-844-5266/FAX 303-844-5268 

November 3, 2010 

.. · 

.. 

DECISION 

CIVIL PENALTY PROCEEDING 

Docket No. SE 2009-712-M 

A.C. No. 40-02937-190347 

Mine: Jackson Plant 

Appearances: Matthew Shepherd, Office of the Solicitor, U.S. Department of Labor, Nashville, 

Tennessee, for Petitioner; Bob Dailey, Safety Director, U.S. Silica Company, 

Jackson Tennessee, for Respondent. ·· 

Before: Judge Miller 

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 (''MSHA"), against U.S. 

Silica Company (''U.S. Silica" or "Respondent"), pursuant to sections 105 and 110 of the Federal 

Mine Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the "Mine Act"). The case 

involves three dtations issued by MSHA under section 104(a) of the Mine Act at the Jackson 

Plant located in Jackson, Tennessee. The parties presented testimony and documentary evidence 

at the hearing held on September 9, 2010, in Nashville, Tennessee. A decision was issued on the 

record at the conclusion of the hearing. Portions of the transcript, with necessary edits and 

amendments, are included in this decision. The parties stipulated that, at all pertinent times, U.S. 

Silica was a mine operator subject to the provisions of the Mine Act. Stip. 2-'3. 

I. FINDINGS OF FACT AND CONCLUSIONS OF LAW 

U.S. Silica is the owner and operator of the Jackson silica plant (the "plant" or "mine") in 

Jackson, Tennessee. On June 2, 2009, Kenneth Large, a twenty-five year veteran MSHA 

inspector, conducted a regular inspeetion at the mine. Large has worked in the mining industry 

for 42 years. Prior to working for MSHA, Large worked for a number of mine operators and 

held numerous positions, including assistant mine superintendent. 

32 FMSHRC Page 1699 
The mine operates three shifts, i.e., two production shifts and one maintenance shift. The 

mine processes sand that is hauled to the procesS~g plant by trucks. During the inspection 

Large was accompanied at various times by Anna Walters and Dan Simms, both representatives 

of the Respondent. 

Transcript pages 96-97: 

fu the case of the U.S. Silica Company, Docket No. SE 2009[-]712, I make the 

following finding[s]: U.S. Silica Company is the owner and 

operator of the Jackson silica plant located in Jackson, Tennessee. 

The parties have entered into stipulations that have been accepted 

into the record, and those stipulations refer to the jurisdiction of 

the Mine Safety and Health Administration to conduct an 

inspection at the plant, as well as the jurisdiction of the Review 

Commission to hear the case and issue a decision. I accept the 

stipulations and enter those into the record at this time. 

The stipulations also refer to a number of the penalty criteria, including the fact 

that the proposed civil penalties will not affect U.S. Silica's ability 

to ... [continue in] business. I find that the Jackson plant is a 

medium-sized sand operation, but it is owried by a large company. 

U.S. Silica Company is, indeed, a large operator within the · 

meaning of the Mine Safety and Health Act. 

On June 2nd, 2009, fuspector Kenneth Large conducted a regular inspection at the 

U$. Silica Jackson plant. He was accompanied, at least during 

part of his inspection, by a representative from the plant. fuspector 

Large has manyyears' experience -- over 40 years' experience in 

the mining industry and many years' experience with the Mine 

Safety and Health Administration. 

a. Citation.No. 6517158 

As a result of the investigation Large issued Citation No. 6517158 to U.S. Silica alleging 

a violation of30 C.F.R. § 56.14112(a)(2), which requires that "[g]uards shall be constructed and 

maintained to ... [ n ]ot create a hazard by their use." The citation described the violation as 

follows: 

The guard on Conveyer #13 which feeds Mill #1, was tOose at the head pulley and sharp edges. 

were exposed. The area is easily accessed and is.accessed by the Mill.operator at le.ast six times 

a day for regular equipment checks. The guard had created a hazard to the miners and a cut 

injury could occur. 

32 FMSHRC Page 1700 
Large determined that the violation was reasonably likely to result in an injury, that it was 

significant and substantial("S&S"), that one employee was affected, and that the negligence was 

moderate. A civil penalty in the amount of $150.00 has been proposed for this violation. 

The Commission interprets safety standards to take into consideration "ordinary human 

carelessness." Thompson Bros. Coal Co., 6 FMSHRC 2094, 2097 (Sept. 1984). In Thompson 

Bros., the Commission held that the guarding standard must be interpreted to consider whether 

there is a "reasonable possibility of contact and injury, including contact stemming from 

inadvertent stumbling or falling, momentary inattention, or ordinary human carelessness." Id. 

Human behavior can be erratic and unpredictable. Guards are designed to prevent accidents. 

The fact that no employee has ever been injured by an unguarded or inadequately guarded area is 

not a defense because there is a history of such injuries at crushing plants throughout the United 

States. "Even a skilled employee may suffer a lapse of attentiveness, either from fatigue or 

environmental distractions .... " Great Western Electric Co., 5 FMSHRC 840, 842(May1983). 

Large explained that the edges protruding from the guard were a hazard since persons are 

in the area and could, with little effort, brush against the sharp edges and be cut. The mine 

operator agrees that the guard had sharp edges protruding but denies that it was a hazard. The 

mine submits that access to the sharp edges was prevented by the belt pulley and shaft guards. 

Transcript pages 97-99: 

As a result of his investigation on June 2nd, [Large] issued Citation No. 6517158 

for a violation of ... [30 C.F.R. § 56.14112(a)(2)], which requires 

that guards shall be constructed and maintained to not create a 

hazard by their use. He issued the citation based upon observation 

of a guard that had come loose or out of its place and had exposed 

sharp edges. Inspector Large determined that it was reasonably 

likely that a violation would result in an injury, that the violation 

was S and S, one employee would be affected and negligence 

would be moderate. 

I credit Inspector Large's testimony, that he observed that the gwird was loose, 

had jagged edges sticking out. Exhibit 2 is a photograph of the 

guard with the jagged edges, and Exhibit 3 is a photograph of the 

guard after the violation was terminated. 

The guard was located at the head of the conveyor belt. The conveyor belt was 

used to carry material into the mill. It was made of expanded 

metal. Jagged edges were sticking out a couple inches away from 

the guard. 

32 FMSHRC Page 1701 
Someone at -- there is at least one employee working in the area and passes 

· through this area at least six times per day. I believe Inspector 

Large's testimony was that he was ·told that someone walked 

through the area, that is shown in Exhibit S(a), at least six times a 

day, every hour and 20 minutes. When Inspector Large entered 

the area, the violation was obvious to him. Although he did not 

touch it, he could see that the edges were sharp. I understand that 

one of~- the operator believes that the edges were burred and were 

not sharp. But a look at the photograph, Exhibit 2, particularly, 

makes it clear that those edges would cut someone if they came in 

contact with [them]. So I credit Inspector Large's testimony in that 

regard. 

Large stated that the hazard was obvious, that it should have been pre-shifted, and 

that it was most likely there for a number of shifts in order for it to 

get in that condition. He also testified.that the area is open and 

'that it would be easy for someone to come in contact with it. 

I will note that the Commission interprets safety standards to take into 

consideration ordinary human carelessness. And in the case of 

Thompson Brothers Coal, the Commission held that a guarding 

standard must be interpreted to consider whether there is a 

reasonable possibility ofcontact[] [that would result in] injury, 

including contact stemming from· an inadvertent stumbling or 

falling, momentary inattention, or ordinary human carelessness. 

In this particular case, the area is.open, and certainly there is a reasonable 

possibility ofcontact and injury, including contact from 

inadvertent stumbling, falling, momentary inattention, or 

carelessness. If someone were specifically standing in the area 

talking to someone and moved back out of the way, they would 

come in contact with the guard. Therefore, I fmd that the violation 

is established as alleged by the Secretary, based on - primarily on 

the testimony of Inspector Large and the testimony of Mr. 

McK.ibbin, who was not present during the inspection, but did 

agree that the guard was in the condition as cited by the inspector. 

1. Significant and Substantial 

A S&S violation is described in section 104(d)(l) of the Act as a violation "of such 

nature as could significantly and substantially contribute to the cause and effect of a coal or other 

mine safety or health hazard." A violation is properly designated S&S "if, based upon the 

particular facts surrounding that violation, there exists a reasonable likelihood that the hazard 

32 FMSHRC Page 1702 
contributed to will result in an injury or illness of a reasonably serious nature." Cement Div., 

Nat'! Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). 

The Commission has explained that: 

[i]n order to establish that a violation of a mandafocy safety standard is significant and 

substantial under National Gypsum, the Secretary of Labor must prove: ( 1) the underlying 

violation of a mandatory safety standard; (2) a discrete safety hazard--that is, a measure of 

danger to safety--contributed to by the violation; (3) a reasonable likelihood that the hazard 

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

will be of a reasonably serious nature. 

Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); see also, Buck Creek Coal, 

Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Secretary, 861 F.2d 99, 

103-04 (5th Cir. 1988), ajj'g AustinPower, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987) (approving 

Mathies criteria). 

As noted above, I find that there is a violation of the mandatory safety standard as alleged 

by the Secretary. I find, further, thatthe violation contributed to the hazard of persons walking 

by, or working in, the area and contacting the jagged metal edges. Third, the hazard contributed 

to will result in an injury as a result of someone coming in contact with the sharp edge. Finally, 

given the sharpness, and the fact that any cut or ga8h would be caused by metal, the injury would 

certainly be serious. 

Transcript pages 100-103: 

Next, is the issue of whether or not this particular violation is significant and substantial. The 

Review Commission has indicated that a significant and substantial violation is a violation of 

such a nature as could significantly and substantially contribute to the cause and effect of a mine 

safety or health hazard. The violation is properly desigilated S and S ... [if] based upon the 

particular facts ... [ s ]urrounding that violation, there exists a reasonable likelihood that the 

hazard could contribute to or result in an injury or illness of a reasonably serious nature. 

In order to establish the violation as significant and substantial, I must first find 

that there is an underlying violation of the mandatory safety 

standard, which I do in this case. I have already found that there is 

a violation. · 

Next I must find that there is a discrete safety hazard, that is a measure of danger 

to safety contributed to by the violation. And I find in this case · 

that the -- that there is a discrete safety hazard and measure of 

danger to safety, and that hazard is those sharp edges of the guard 

sticking out in ail area where someone may come in contact with 

32 FMSHRC Page 1703 
them. And if, in fact, someone does come in contact with those 

edges, an injury is likely to result, and that injury would be of a 

serious nature. 

. . . Inspector Large testified that the injury would result in lost workdays or 

restrictive, duty. I credit[] his testimony in that regard. The 

Commission and Courts have observed that an experienced MSHA 

inspector's opinion thata violation [is] significant and substantial 

is entitled to substantial weight. [Harlan Cumberland Coal CQ., 20 

FMSHRC 1275, 1278-79 (Dec. 1998); Buck Creek Coal Inc. v. 

MSHA, 52 F.3d. 133, 135-136 (7th Cr. 1995).] Inspector Large ... 

qualifies, without question, as an experienced MSHA inspector. 

He described the violation as significant and substantial, and 

explained that it is likely that someone would come in contact with 

the sharp edges of the guard, and that as a result, someone would 

suffer a serious scrape or cut. 

In making his determination, he relied upon hi~ e_xperience as a mine inspector, 

and particularly in a recent accident investigation that he had 

conducted, wherein a miner had been scraped by the sharp edge 

inadvertently, accidentally, of expartded,μietal and as a result 

suffered a serious injury, including the amputation of his leg .. 

In his view, it's reasonably likely this violation was reasonably likely to lead to an 

event that causes a serious injury, and that serious injury could be 

as serious as the amputation of a leg or an arm . 

. . . [T]he mine, operator ... [argues] thatthe violation is not significant and 

substantial for a number of reasons, including that the guard -- the 

sharp edges of the guard are not next to the walkway, that the 

walkway is -- somehow is back and that the guard is set back 

under .... [T]he photograph shows that the walkway is not far 

away, and certainly it is an open area up to the guard. If it were 

somehow blocked -- it's not blocked by something else that l can 

see in the photograph . 

. . . I find that this violation is significant and substantial as Inspector Large 

indicated. I credit his testimony in that regard. I find -- I also 

agree with Inspector Large that the negligence for this violation is 

moderate. The guard was visible. Inspector Large saw it 

immediately upon entering the area. In his view, it should have 

been detected and repaired immediately. If it continued to exist, it 

would again contribute to an accident or an injury. There were 

32 FMSHRC Page 1704 
two shifts. People were walking by it on both of those production 

shifts and most likely on the maintenance shift for the third shift. l 

find that the facts of this violation clearly lead to a significant and 

substantial finding. 

With regard to the penalty, the parties have stipulated to the history, which l --

this mine has a stellar history, and I give the mine credit for having 

such a good history and such a good safety record .... 

The mine -- U.S. Silica is a large mine operator. A penalty 

will not affect its ability to continue its business. It engaged in a 

good faith abatement of the violation. The gravity is, as I 

described above, in the significant and substantial discussion, and 

the negligence was moderate, as the inspector indicated. The 

violation was obvious. No one knows how long it existed, but it 

certainly didn't get in that condition overnight. The condition 

should have been seen and corrected, or should have been noted at 

least on a pre-shift. I assess a $500 .penalty for this violation. 

b. Citation Nos. 6517159 and 6517160 

As a result of the investigation Large issued Citation Nos. 6517159 and 6517160 to U.S. 

Silica alleging violations of 30 C.F.R. § 56.20003(a), which requires that "[a]t all mining 

operations ... [w]orkplaces, passageways, storerooms, and service rooms shall be kept clean and 

orderly." Citation No. 6517159 describes the violation as follows: 

On top of 7B1N2 there was material build up and in some areas the 

build up was over the toe board. There were footprints on top of 

the bin which shows that someone had been in the area. An injury 

could occur from a slip, trip or fall. 

Large determined that it was reasonably likely that the violation would result in an injury, that 

the violation was S&S, that one employee was affected, and that the negligence was moderate. 

A civil penalty in the amount of $150.00 has been proposed for this violation. The Secretary 

moved to modify the citation to non-S&S based upon the testimony at hearing and I accept the 

Secretary's modification. 

Citation No. 6517160 describes the violation as follows: 

32 FMSHRC Page 1705 
On top of7BIN15 there was material build up and in some areas 

the build· up was over the toe board. This area is only accessed by 

maintenance personnel and hasn't been accessed in over a month. 

An injury could occur from a slip, trip or fall. 

Large determined that it was unlikely that the violation would result in an injury, that the 

violation was non-S&s; that one employee was affected, and that the negligence was moderate. 

A civil penalty in the amount of $100.00 has been proposed for this violation. . . 

The cited standard does not require that the area be a ''travelway," i.e., a passage, walk or 

way that is regu.larly used and designated for persons to go from one place to another. Rather; as 

pertinent to this matter, the area need only be a workplace or passageway. Section 56.2 of the 

Secretary's regulations defines "working place" as "any place in or about a mine where work is 

being perfonned." 30 CF.R. § 56.2. The Seeretary's regulations do not define "passageway." 

The dictionary defines "passageway" as "a way that allows passage," while "pa8sage" is defined 

as "a way of exit or entrance: a road, path, channel, or course by which something passes," or 

alternatively as "a corridor or lobby giving access to different room:s or parts of a building or 

apartment." Webster's New Collegiate Dictionary (1979) at 830. 

A number of the Commission's judges have addressed in similar cases the issue of what 

constitutes a workplace or passageway. In USS, a Division of USX Corp., 13 FMSHRC 145, 

153(Jan 1991) (ALJ), the judge determined that s.ection 56,20003 applied to "allworkplaces and 

passageways, even though no work was being performed at the t4ue of the cited violations, and 

even though the passageways were not designated or regularly used as such." Similarly in 

Brubaker-Mann Inc., 8 FMSHRC 1482, 1483 (Sept.1986) (ALJ), violations were affirmed where 

the inspector observed a build up of powdery fines, which created a slipping and tripping hazard, 

on top of a storage tank. 

With regard to both citations, Inspector Large testified that sand and fine material were 

located on top of the bins. Gov. Exs. 8, 9, 14. The bins are used to store sand. There is an access 

ladder to the top of the bins, a cat'i• alk around the top of each bin. and a catwalk leading to other 

bins. Thereis a footprint in the acc·.umulated material on top of the one bin cited in Citation No. 

6517159. Gov. Ex. 11. Workers travel around the bins to conduct inspections, and maintenance 

persons access the area to do routine maintenance and repairs. The accumulated material was as 

deep as 12 inches in places and was over the toe board at points. Id. The material constituted a 

tripping hazard. 

There is no dispute that the accumulations existed as cited by the inspector. The 

Respondent, however, argues that the area is not a ''workplace" or "passageway" as required by 

the standard. There are twelve bins, connected by walkways and ladders. According to the 

32 FMSHRC Page 1706 
Respondent, employees perform limited work on top of the bins. Occasionally, persons climb 

the ladder to the top of a bin to inspect piping and ensure that it is not clogged or, if clogged, to 

unclog the pipes. At times an electrician may walk on top of the bins to do repair work. In 

addition, workers regularly climb up to the area to clean it when the dryer operation is complete. 

Transcript pages 103-106: 

The next two violations I'll talk about together. Citation 

No[s]. 6517159 and [6517)160 are both violations of the same 

standard, ... (30 C.F.R. § 56.20003(a)], which requires that 

"[ w ]orkplaces, passageways, storerooms, and service rooms shall 

be kept clean and orderly." There is no question, and I don't think 

the mine disputes, that there was an accumulation of sands on the 

top of those bins, and certainly they were not kept clean and 

orderly. 

The issue in both of these citations is whether or not the 

bins were a workplace, passageway, store room, or service room. I 

will focus on the issue of workplace or passageway. And I would · 

note for the record -- I believe it's already in there - that originally 

one of the citations was S and S, but the Secretary has moved to 

modify, so both of these violations are non S and S. And I will 

just address the issue of the violation and the penalty. 

The photographs in evidence clearly show the 

accumulation of material on top of the bin. The issue then is 

whether or not they were a workplace or passageway; I looked at 

the cases regarding this particular standard. There are no 

Commission decisions that address what -- the workplace or 

passageway, as it's used in this standard. There are ALJ decisions, 

and there are decisions of the Commission that address this 

language under other standards. 

In this particular area, there is an access ladder to the top of 

the bin. There's a catwalk leading to other bins. There were 

footprints indicating, at some point, whether before or after the 

spill, someone was up there. The testimony is clear that people do 

work on there. It may only be -- I think, the inspector mentioned --

he was told once c: month, but people do go Up there, workers go 

up to inspect, maintenance people go up on top of the bin, and 

certainly people access it, pass through it, and perform work there. 

It doesn't have to -- the work doesn't have to be ongoing --

doesn't have to be going on when the inspector visits or sees the 

32 FMSHRC Page J 707 
violation, nor does someone have to be walking through there at 

the time ofthe violation. Based on the inspector's testimony and 

the testimony of Mr. McKibbin, I find that the area is a 

passageway and a workplace, that both things occur in that area, 

that the Commission has interpreted that language in a broad 

sense. And the case law[] by the administrative law judges that I 

read found it was not a workplace or passageway in areas that were 

under a. belt -- under a belt where no one would go for any reason 

that -- or in a grease pit, in certain areas that people just really 

would not travel in any sense for work. 

. . .. I find that it is a passageway or a work way. I find that 

there is a violation as alleged in both citations, 6517159 and 

657160 as alleged by the Secretary. Both of the violations are non 

Sand S. I've already discussed the mines -- the penalty criteria 

with regard to these. I find I agree with the inspector's indication 

that the negligence was moderate. Even though some of the spill 

could, in the inspector's view, be seen from below the bin, I would 

still indicate negligence to be moderate, and the - that neither of 

them are Sand S. The gravity of the violation then would be low 

-- would not be very high. . ... I woμld assess $100 penalty for 

each of those violations. 

II. PENALTY. 

The principles governing the authority of Commission administrative biw judges to 

assess civil penalties de novo for violations of the Mine Act are well established. Section 1 IO(i) 

of the Mine Act delegates to the Commission and its judges "authority to assess all civil 

penalties provided in [the] Act." 30 U.S.C. § 820(i). The Act delegates the duty of proposing 

penalties to the Secretary. 30 U.S.C. §§ 815(a), 820(a). Thus, when an operator notifies the 

Secretary that it intends to challenge a penalty, the Secretary petitions the Commission to assess 

the penalty. 29 C.F.R § 2700.28. The Act requires, thar '"in assessing civil monetary penalties, 

the Commission [AL.r! shall consider" six statutory r·-~r·alty criteria: 

[l] 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 demonst~·ated good faith of the 

person charged in attempting to achieve rapid compliance after 

notification of a violation. 

30 u.s.c. § 820(1). 

32 FMSHRC Page 1 708 
I accept the stipulation of the parties that the penalties proposed are appropriate to this 

operator's size and ability to continue in business and that the violations were abated in good 

faith. The history is normal for this size operator. I accept the Secretary's finding of low 

negligence. Finally, I find that the Secretary has estabiished the gravity as described .in the 

citations. 

Transcript page 106: 

[B]ased on the criteria in Section 11 O[(i)] of the Act, the 

proposed penalty is $500 for the first violation, [and $100 dollars 

each] for the other [two] violations, for a total [penalty] of$700. 

III. ORDER 

Based on the criteria in section 11 O(i) of the Mine Act, 30 U.S.C. § 820(i); I assess a 

penalty of $700.00 for the violations. U.S. Silica is hereby ORDERED to pay the Secretary of 

Labor the sum of $700.00 within 30 days of the date of this decision. 1 

Distribution: 

Matthew S. Shepherd, U.S. Dept. of Labor, Office of the Solicitor, 618 Church St., Suite 230, 

Nashville, TN 37219-2456 

Bob Dailey, Safety Director, U.S. Silica Company, P.O. Box 187. Berkely Springs, WV 25411 

i Payment should be sent to the Mine Safel)' and Health Administration, U.S. Department of Labor, Payment Office, 

P.O. Box 790390, St. Louis, MO 63179-0390. . 

32 FMSHRC Page 1709 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

601 New Jersey Avenu~. N.W., Suite 9500 

Washington, D.C. 20001 

WJLLIAM METZ, 

Complainant 

v. 

CARMEUSE LIME, INC., 

Respondent 

November 8, 2010 

DISCRIMINATION PROCEEDING, 

Docket No. PENN 2009-541-DM 

NE MD 2009-02 

Carmeuse Lime 

Mine 36-00017 

DECISION 

Appearances: Kim Lengert, Esq., Lengert Law LLC, Robesonia, Pennsylvania, for the 

Complainant; 

R. Henry Moore, Esq~, Jackson Kelly PLLC, Pittsburgh, PennsylVania, for the 

Respondent. 

Before: Judge Feldman 

This case is before me based on a discrimination complaint filed on June 4, 2009, 

pursuant to section 105(c)(3) ofthe'Federal Mine Safety and Health Act of 1977, 

30 U.S.C. § 815(c)(3) (2006) ("Mine Act'} The complaint, filed by William Metz, 

concerns his March 18, 2009,·tennination by Canneuse Lime, Inc. ("Canneuse") from a 

lime processing plant located in Annville, Pennsylvania. 1 Section 105( c )(1) of the Mine Act, 

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

No person shall discharge or in any manner discriminate against . . . any miner ... 

because such miner . . . has filed or made a complaint under or related to this Act, 

including a complaint notifying the operator or the operator's agent ... of an alleged 

danger or safety or health violation in a coal or other mine ... or because such miner ... 

instituted any proceeding under or related to this Act .... 

1 Metz' s complaint which serves as the jurisdictional basis for this matter was filed 

with the Secretary of Labor (the "Secretary") on March 28, 2009, in accordance with section 

105(c)(2) of the Act, 30 U.S.C. § 815(c)(2). Metz's complaint was investigated by the Mine Safety 

and Health Administration ("MSHA"). On May 11, 2009, MSHA advised Metz that its 

investigation did not disclose any section 105(c) violations. On June 4, 2009, Metz filed 

his discrimination complaint with this Commissfon which is the subject of this proceeding. 

The hearing in this matter was delayed because Metz had difficulty obtaining counsel. 

32 FMSHRC Page 1710 
The hearing was conducted in Lancaster, Pennsylvania from April 13 to April 15, 2010. 

The parties have filed post-hearing briefs and replies that have been considered indisposition of 

this matter. 

I. Statement of the Case 

Metz's discrimination allegation primarily is based on his complaint, expressed·shortly 

before his termination, concerning his belief that contract employees were dismantling a kiln i.n an 

unsafe manner. As discussed below,· direct evidence of discriminatory motive is rare. More 

commonly, acts ofdiscrimination are inferred from circumstantial indicia such as, coincidence in 

time between a safety related complaint and the adverse action, hostility or animus towards the 

complaint, and disparate treatment of the complainant. Secy of Labor o/b/o Chacon v. Phelps 

Dodge Corp., 3 FMSHRC 2508, 2516-17 (Nov. 1981) (citations omitted), rev'd on other grounds, 

709 F.2d 86 (D.C. Cir. 1983). Metz presented a prima facie case of discrimination as his safety 

related complaint occurred shortly before his March 18, 2009, termination of employment. 

In response, Canneuse seeks·to rebut the primafacie case by·demonstrating that the 

termination of Metz was not motivated by his protected activity. Rather, Carmeuse asserts that 

Metz was terminated as a direct result of an·incident that occurred on March 12, 2009, in which 

Metz used profanity and expressed hostility towards a Carmeuse human resources official. This 

incident was unrelated to any protected activity under the Mine Act. The hostility occurred during 

a meeting in which Metz was protesting a company policy that denied retroactive back pay for 

on-call employees who now are receiving compensation for their on~call status. In the alternative, 

Carmeuse seeks to affirmatively defend by demonstrating that it would have terminated Metz 

regardless of any protected activity. 

With the exception of coincidence in time, the evidence does not reflect any other 

circumstantial evidence of discriminatory motive to support Metz's complaint. Rather, the 

evidence reflects that his unprotected belligerent conduct provided an adequate independent basis 

for his termination. In this·regard, Metz's hostile reaction to the company's refusal to provide him 

with a written denial of his back pay request was an unreasonable response that was not elicited by 

any wrongful provocation.· Moreover, Metz's hostility was related to a personnel matter rather 

than any activity protected by the Mine Act. Accordingly, Metz' s discrimination complaint must 

be denied. 

II. Findines of Fact 

a. Background 

Carmeuse is an affiliate ofCarmeuse Lime and Stone, Inc. (Resp. Br. 1). The company 

operates approximately 35 sites across the United States and Canada and employs approximately 

2,400 people. (Tr. 368-69, 683). Its North American headquarters is in Pittsburgh, Pennsylvania. 

(Tr. 368). There are approximately 50 employees at the Annville; Pennsylvania plant. (Tr. 612). 

32 FMSHRC Page 1711 
The plant produces lime from stone extracted from an adjacent quarry that is owned and 

operated by an unaffiliated company. (Tr. 639). Raw stone extracted from the adjacent quarry is 

heated in kilns. (Tr. 639). The by-product is a powdery lime substance that can be crushed into 

different sizes for commercial sale. (Tr. 639 ). 

William Metz was employed by Canneuse and its predecessor companies at the Annville 

plant for approximately 22 years. (Tr. 32). At the time of his March 2009 termination, Metz was 

employed in the maintenance department as a milhyright. (Tr. 33). His responsibilities 

included working on general maintenance, inspecting equipment, and welding and fabricating. 

(Tr. 33, 226). Metz also served on the safety committee and periodically acc()mpanied mine 

inspectors asa miners' representative. (Tr. 35-37, 195). 

Metz filed two previous discrimination complaints under section 105 of the Mine Act 

against Canneuse and a predecessor company. Metz's initial complaint, filed against predecessor 

company Wimpy Minerals (''Wimpy" ) and Wimpy' s successor Tarmac America, Inc, concerned his 

March 21, 1995, termination of employment. At that time, Metz was allegedly terminated for 

confronting a supervisor with "loud," "insubordinate" and "threatening behavior." Metz's 

employment was ordered to be reinstated after a Commission hearing on the merits. The decision 

was based on a finding that the conduct, relied on by Wimpy: as an independent basis for Metz' s 

termination, was provoked by the company's response to Metz' s safety related protected 

complaints. Metzv. Wimpy Minerals, 18FMSHRC 1087, 1089-90, 1100-01 {J11ne1996)(AIJ). 

An investigation by MSHA following Metz's second complaint, filed in March 2007, found 

no evidence of discrimination. Metz did not pursue this complaint after MSHA informed him of the 

results of its investigation. Metz does not contend that his previous discrimination complaints were 

a motivating factor in his March 18, 2009, discharge. · 

b. Metz's Behavioral Histozy 

Metz is an assertive and opinionated individual who was not hesitant to express safety 

concerns to management, or, to act as an employee spokesman who COillll1unicated personnel 

grievances. (TL 228, 514, 547). Metz's brief characterizes Metz's reported safety related 

complaints as, "caus[ing] friction with management." (Metz.Br. at 2). However; with the · 

exception ofMetz's termination 14 years earlier by a predecessor company, the evidence, including 

testimony by a Metz witness, does not reveal any history of animus or retribution by Canneuse in 

response to safety related complaints. 

Metz had a history of engaging in confrontational and abusive behavior. At trial, Metz was 

questioned about an incident that occurred on or about March 5, 2007, in which Metz was seeking 

the approval of area manager Ken Kauffman for four hours of compensation that had been docked 

from Metz for a previous incident. Metz was asked; 

Metz Counsel: In 2007 - and I only bring this up because it was part of the 

consideration that was used for your termination. In 2007, did you ever threaten 

Ken Kauffinan? 

32 FMSHRC Page 1712 
Metz: Oh, yeah. Yeah. 

Metz Counsel: How did you threaten him? 

Metz: Well, I, actually, don't call it a threat; I didn't then until I looked it up; but it 

had to do with when I was helping Jim Smith. They sent me home. ·I filed a peer 

review. Ken Kauffman denied it~ 

(Tr. 112). 

Contrary to Metz's characterization of his behavior as non-threatening, Kauffman 

testified that Metz told him, and an MSHA inspector who was present at the time, that he would 

"kick both of [their] asses." (Tr. 572). As a result of this incident, a written warning was.placed in 

Metz's personnel file cautioning him of termination if his threatening behavior should reoccur. 

(Resp. Ex. 6). 

· Metz also had a history of abusive and harassing behavior towards a fellow employee. 

Metz teased the employee about the fact that the employee's mother, who had separated from his 

father, was in a relationship with another,Carmeuse employee. Metz told the employee that his 

mother was "pretty hot," and he suggested that he wanted to have sexual relations with her in crude 

and obscene language. {Tr. 418). 

Carmeuse's harassment assertion was presented through hearsay rather than.direct 

evidence. (Tr. 418). However, Metz'sinappropriate conduct was corroborated by Metz's witness, 

Robert Boehler, who testified that the victim of Metz's harassment quit his employment because 

Metz harassed him about his mother. (Tr. 312). 

At trial, Metz again was equivocal when given the opportunity to deny that he had, in fact, 

teased this employee: 

Metz Counsel: Did you ever tease [this employee]? 

Metz: I don't remember teasing him. 

Metz Counsel: Not the same thing. Did you ever tease him? ... 

Metz: I can't remember a specific incident, but we all teased around with him 

some, a little bit. 

(Tr. 120). 

32 FMSHRC Page 1713 
c. Kiln Complaints 

During Metz' s employment at the Annville plant, there were four kilns that were used to 

process lime from limestone rock. These kilns were suspended on solid steel girders that were 

connected to a wheel called a truniuon that allows the kilns to spin. Kilns and their supporting 

structures weigh several· tons. During approximately the first week in March 2009, independent 

contractors started to dismantle and remove two of the four kilns that had been inactive for several 

years. (Resp. Br. 12) .. Instead of being paid by Carmeuse, the contractor was allowed to sell the 

scrap metal salvaged during the dismantling and removal of the kilns. (Tr. 25, 50-55, 577, 669). 

Metz was concerned that someone could be struck by falling material because the area 

being dismantled was not properly dangered-off. Metz was also concerned about possible 

electrocution because the kiln area was not de-energized. (Tr. 53-55). During the week preceding 

Metz's termination, Metz and several other hourly employees expressed their safety related 

concerns to mine management officials, Ron Popp, Greg Doll, Keith Lambert, Mark Miller, 

and area manager Ken Kauffman. (Tr. 56). 

Although Kauffman could not specifically recall Metz~s kiln related complaints, Kauffman 

testified, "it wouldn't be uncommon for [Metz] to come in and talk about issues at the plant." 

(Tr. 581 ). Kauffman testified that he had met with Metz and other employees numerous times 

about various safety issues. (Tr. 581-82). In this regard, BruceKercher,.a friend of Metz, who was 

also an hourly employee at the plant, also complained to mine management about the kiln 

contractor. (Tr. 252, 284). Kercher testified that he did not experience any company retaliation as 

a consequence of his safety complaints. (Tr. 252). In fact, Kercher testified that he would feel 

comfortable making safety complaints to management. (Tr. 283-84). 

The activities of the independent contractor were the subject of an MSHA inspection on 

March 5 and March 6, 2009. (Tr. 583-85, 669-70). The mine inspector spoke to the contractor but 

no violations were cited. (Tr. 583-84, 669-70). The contractor ultimately discontinued the work 

because the price of scrap metal was low and the job was unprofitable. (Tr. 276, 577). At trial, 

Carmeuse stipulated that "[t]here were complaints by any number of people," including Metz. 

(Tr. 59). Carmeuse also stipulated that these complaintS were communicated within no more than 

two to three weeks prior to Metz's termination. (Tr. 60). Although Carmeuse maintains that the 

contractor was operating in a safe manner, Carmeuse stipulated that Metz's complaints were made 

in good faith. (Tr. 60-61). 

d. The On-Call Policy 

Carmeuse has an "on-call policy" that requires certain maintenance and electrical 

employees to be available to work on their days off if their services are needed at the plant. 

(Tr. 72-76, 219). On-call employees have always been paid for at least four hours if they were 

summoned to work. However, prior to January 2009, it was Carmeuse's policy not to pay on-call 

employees for their on-call status, even though their required availability disrupted their personal 

lives. (Tr. 169-71 ). In January 2009, in response to employee requests, a new on-call policy was 

implemented at the plant. (Tr. 74-76, 219, 718 ). On-call employees continued to receive at least 

32 FMSHRC Page 1714 
four hours pay if their services were required. However, the new policy paid employees $25.00 

for each day that they were on-call, but not required to work. (Tr. 74•76, 219, 501, 718). 

Some employees, including Metz, believed that they deserved back pay for at least the prior 

two"-year period when the new on-call program had not been in place. (Tr. 169; Resp. Ex. 15). 

Determined to obtain the back pay he believed was owed to employees, Metz acted as a 

representative of the millwrights. (Tr. 76, 222). Metz approached several members of the human 

resources department, including Annville plant human resources representatives Becky Vinton and 

Ed Jones about this issue. (Tr. 427-28). Metz testified that Vinton promised that on-call 

compensation would be paid retroactively, (Tr. 93, 191). Consequently, the company's refusal to 

pay retroactively was a contentious issue. (Tr. 72). 

e. Metz's Peer Review Request 

.Peer review is a method of addressing employee grievance and discipline issues .. It is a 

process where aggrieved employees can request review by the employee's supervisor, the human 

resources area manager, and the plant manager. Alternatively, an employee can request peer 

review before a panel of hourly and salaried employees who have completed peer review training. 

(Metz Ex. 10). Certain subjects are excluded from the peer review process, including the setting 

or changing of company policy and issues concerning sexual harassment. (Metz Ex. 10). 

On December 29, 2008, Metz filed a written peer review request concerning the back pay 

issue. Metz's request for peer review stated: 

Per HR Pittsburg [sic] agrees compensation for being on call is reviewable by peer 

review -:- maintenance has been on-call for over. yr and hlf [sic J with no . 

compensation for om lives being interrupted. Back pay for an agreed amount that's 

fair for the troubles on-call cause and has caused. 

(Metz Ex. 15). Metz's request for peer review was denied by supervisor Ron Popp and area 

manager Ken Kauffman. (Resp. Ex. 15). 

f. Croll's Account of the March 12. 2009. Meeting 

Melissa Croll is a corporate human resources manager based out of Carmeuse' s. corporate 

headquarters in Pittsburgh, Pennsylvania. (Tr. 364-68). Croll's supervisor is Kathy Wiley. 

Wiley is a Vice President of Human Resources who also is based in Pittsburgh, Pennsylvania. 

(Tr. 367-68). Croll, who recently had been assigned to oversee the Annville plant, made her initial 

visit to the plant in February 2009. (Tr. 370). 

On March 12, 2009, Croll returned to the plant to finalize her performance goals with 

human resources assistant Ed Saterstad. (Tr. 371-72). After the meeting, Saterstad informed Croll 

that an employee wanted to meet with her. (Tr. 372). Croll initially testified that Saterstad did not 

identify or tell her anything about the employee she was about to meet. (Tr. 373). However, 

when confronted with her deposition, Croll later admitted that Saterstad told her the employee 

32 FMSHRC Page 1715 
was Bill Metz and that Metz was a "complainer." (Tr. 453-54). Moreover, Croll admitted in a 

March 12, 2009, e-mail, sent to Wiley shortly after her meeting with Metz, that she had known tha.t 

Metz was a "disgruntled employee" prior to the March 12, 2009, meeting. (Resp. Ex. 18). 

Metz denies that he requested the March 12, 2009, meeting with Croll, claiming that it was 

Saterstad and Croll who initiated the meeting. (Tr. 71). However, Metz testified that he previously 

had called Croll in Pittsburgh in January 2009. (Tr. 81). At that time, Metz left Croll a message 

requesting that Carmeuse explain in writing why the men were not getting back pay for being 

on-call. (Tr. 81 ). However, Croll reportedly did not recall receiving a message from Metz, and she 

did not return his call. (Tr. 371). Regardless of who initiated the meeting, given Metz's December 

2008 written request for peer review on the back pay issue, and his January 2009 telephone 

message to Croll, the company had reason to believe that Metz wanted to speak to Croll. 

Saterstad called Metz to come to the plant conference room to meet with Croll. (Tr. 374). 

Upon entering the conference room, Metz was greeted by Croll who was sitting at the conference 

table. (Tr. 376). Saterstad, a human resources assistant who worked at the Annville plant and 

knew Metz, departed the conference room leaving Metz and Croll alone. Metz sat down next 

to Croll, a distance of approximately three to four feet, and they faced each other as the 

conversation began. (Tr. 377; Metz Ex. 24). 

Metz began the conversation by stating that he wanted to invoke the company's peer 

review process to resolve whether maintenance workers were entitled to receive back pay for 

being on-call for the past two years. (Tr. 378-79). Croll infonned Metz that the company's new 

on-call policy did not include back pay for employees who had been on-call. Croll reminded 

Metz that issues concerning company polic'y were notsubject to the peer review process. 

(Tr. 379; Metz Ex. 10). Croll testified that Metz became agitated and irate and yelled at her, 

''that's fucking bullshit." (Tr. 379). 

Croll testified that she tried to placate Metz, but he again yelled, ''that's fucking bullshit." 

(Tr. 3.80). He rep.ortedly repeated similar statements several more times. (Tr. 381 ). Croll stated 

she again attempted to diffuse the situation by offering to bring the back pay issue to the attention 

of her supervisor Kathy Wiley. (Tr. 381). Consistent with the prior telephone message he had 

left Croll requesting a written decision, Metz demanded, '~I want a fucking formal response on 

this issue." (Tr. 382). Croll re.lated that Metz continued to be loud and aggressive, and before 

exiting the room, he sprang from his chair in a manner that made it appear that he was lunging at 

Croll. (Tr. 382-83). · 

g. Metz's Account of the March 12. 2009. Meeting 

Metz's account of the March 12, 2009, meeting cannot be reconciled with Croll's account 

of the meeting. Metz testified that he was summoned to Saterstad's office without explanation, 

where he was met by Saterstad and Croll. (Tr. 77, 85). Shortly thereafter, Croll exited her 

meeting with Saterstad and joined Metzwho was waiting in.the conference room. (Tr. 85). 

Saterstad left the area and did not participate in the meeting. (Tr. 93). 

32 FMSHRC Page 1716 
Although Croll testified that she initially became aware of a previous incident that· 

occurred when Metz confronted Mei Lorick, a former human resources representative at the 

plant, after the March 12 meeting, Metz testified that Croll began the meeting by stating to him, 

"you are the one who hates Mei Lorick." (Tr. 85-8, 391-93). Metz testified that he denied hating 

Lorick, but he told Croll that "[Lorick] doesn't do her job." (Tr; 87). 

Metz testified that Croll explained Carmeuse's position on peer review. Metz responded 

that he already understood the peer review policy. (Tr. 88). Metz testified that he requested a 

written document formalizing Carmeuse's refusal to provide back pay for retroactive on-call 

service. (Tr. 89). Metz stated that he sought this document as a means to extricate himself from 

his role as intermediary between Carmeuse and its employees on the back pay controversy. · 

(Tr. 89). In this context; Metz instructed Croll to "have Ms. Wiley ... make this document up." 

(Tr. 89). Croll reportedly responded, "[d]on't talk to me like that," to which Metz reportedly 

responded, "what do you mean?" (Tr. 89). Metz testified that he concluded that, "something 

screwy is going on here. I am going to get out of here and try to save myself," and then he left the 

conference room. (Tr. 89). 

Conspicuously absent from Metz's account is any admission that he used profane language, 

or, that he acted in a hostile or otherwise inappropriate manner. Metz' s testimony regarding his 

behavior on March 12, 2009, was evasive and lacking in credibility. In this regard, Metz testified: 

Metz Counsel: Did you swear at Melissa Croll? 

Metz: I don't remember swearing at her. 

Court: Mr. Metz, the question was: did you swear at Ms. Croll? You said you 

don't remember swearing at Ms. Croll or you didn't swear at Ms. Croll? What 

was yo~ response? 

Metz: If I did, I wouldn't have had to ask her what I did or said. I don't remember 

swearing at her. 

Court: That's what I'm asking. Is your testimony that you didn't swear at her or is 

your testimony that you don't remember swearing at her? 

Metz: I would say it would be out of character for me to swear in front of a lady, 

first of all. Not that I don't; but, accidentally, you could maybe say something. 

Court: So I'll ask you again. Is it your testimony that you don't remember 

swearing at her or that you didn't swear at her? 

Metz: I would say I didn't because since she couldn'ttell me what it was when I 

asked her a couple times. 

32 FMSHRC Page 1717 
Court: l ~not asking you to tell me what she told you. I am asking you to try to 

remember what you said. Do you remember what you said Qr was your testimony 

that you remember what you said and you didR't swear at her? 

Metz: I don't remember swearing at her .... 

Court: So you don't remember what you said? 

Metz: No. 

Court: Was that a yes? 

Metz: No. 

Court: You do remember what you said? 

Metz: Okay, no. You are confusing me. 

Court: Well you are confusing me; My question: is: do you remember what you 

said to her? 

Metz: I don't recall swearing at her. I thought that's what you asked. I didn't 

swear at her. 

Court: Your testimony is you didn't swear at all at her? 

Metz: Not that I remember. I am confusing you again. 

Court: No, you are not confusing me. Your testimony is that you don't remember 

swearing at her. That's the best we are going to get, right? 

Metz: I am saying that there's-there could be sometimes when someone swears, 

and they don't remember swearing or-. 

Court: I am not asking you to recall what happened on March 12 ... I am asking 

you: since this was a topic of discussion all during that time; March 12, 13, 14 -

when were you finally terminated? March 18? 

Metz: Yes. 

Court: So it was a topic of conversation. I don't find it credible that you don't 

remember what you said. Because this would have been discussed over the course 

of that week. Did you or didn't you swear at all at her. 

32 FMSHRC Page 1718 
Metz: I say I didn't swear at her. 

Court: Your testimony is you didn't swear at her? 

Metz: No, I didn't. I hate to say not that I know of. I am going to say no. 

Court: All right. 

Metz: I didn't swear at her. 

Court: It's an equivocal no. 

(Tr. 107-10). 

h. The Events Following the March 12. 2009. Meeting 

Metz's behavior reportedly startled Croll. (Tr. 384). She left the conference room and 

went to Kauffman's office where Kauffman testified he noticed she appeared ''very shaken." 

(Tr. 385, 587). Croll reported to Kauffman what had happened. Shew~ concerned about Metz 

returning to work in his agitated state. (Tr. 385). Croll asked Kauffman to call Metz to the office 

so that she could express her concerns and explain to Metz that his behavior in the conference 

room was, inappropriate. (Tr. 385). 

Kauffman called Maintenance Manager Keith Lambert, and Lambert escorted Metz to 

Kauffman's office. (Tr. 387, 587-88). When Croll explained to Metz that his behavior was 

unacceptable, Metz replied, "this is all bullshit." (Tr. 388, 588-89). Concerned by Metz's 

agitation, Croll suggested to Metz that he should look :(or another job if working at the plant was 

making him tha~ unhappy. (Tr. 389). Metz promptly left the room at which time Croll, 

Kauffman and Saterstad left to go to lunch. (Tr. 391-92). 

During lunch, Saterstad remembered an incident involving Metz and Mei Lorick. 

(Tr. 391). Saterstad explained that Metz had been upset <:ibout an incident where he was accused 

of intentionally burning an employee by giving the employee a recently welded hot piece of 

metal. The company ultimately found that Metz WflS not at fault. However, Saterstad recalled 

that Metz became hostile in his meeting with Lorick .in that he yelled and pointed his finger in 

Lorick's face. (Tr. 392-93). Saterstad further related to Croll that Metz was known to exhibit. 

anger and hostility in the workplace. (Tr. 393). 

Upon returning from lunch, Croll, Kauffman and Saterstad were met by maintenance 

supervisor Ron Popp who had just spoken to Metz. (Tr. 394). Popp gave Croll written notes he 

had taken after his encounter with Metz. (Tr. 395; Resp. Ex. 20). Popp explained that he.had 

asked Metz what was wrong after seeing Metz, who was apparently upset, standing by one of the 

kilns. (Tr. 396, 644). Metz responded, "who the fuck does she think she is," and "she is a waste . 

of my fucking time." (Tr. 396, 644; Resp. Ex. 20). Metz then said, at least twice, that he needed 

to go home before "I hurt myself or someone else." (Tr. 396, 644, Resp. Ex. 20). 

32 FMSHRC Page 1719 
Concerned for the we11 being of Metz and the safety of the plant employees, Popp agreed 

that Metz should go home. (Tr. 644). Popp drove Metz to the locker room and waited until he 

observed Metz leave plant property. (Tr. 645). Popp opined to Croll that he believed Metz was 

"a time bomb ready to explode." (Tr. 395; Resp. Ex. 20). 

After listening to Popp, Croll felt threatened and believed Metz was capable of workplace 

violence. (Tr. 397-98). Mark Miller, an area loss prevention manager, also testified that an 

hourly employee came to see him after the Metz incident because he too was afraid Metz could 

return and harm people at the plant. (Tr. 673-74, 679-80). 

Kauffinan and Croll called Roger Downham, Vice President of Operations, who is based 

in Toronto, Canada, as Croll's supervisor Wiley was unavailable because she was on jury duty. 

(Tr. 19, 398-99). They explained the series of events that had occurred. Downham decided that 

Metz should be suspended without pay pending further investigation. (Tr. 399). Pursuant to 

Downham's decision, Croll and Kauffinan decided they would have Lambert meet Metz at the 

gate entrance to plant property the next morning at 5:30 a.m. before the start of the 6:00 a.m. 

shift to inform Metz of his suspension. (Tr. 399-400). 

In the meantime, Croll decided to review Metz's personnel file and to interview 

employees about their interactions with Metz before speaking to Wiley. (Tr. 410). In addition 

to the incident involving Metz' s hostile reaction to Lorick, Croll noted the March 6, 2007, 

discipline notice concerning Metz's threatening behavior towards Kauffinan, and the· warning 

that Metz would be terminated if his threatening behavior toward management should reoccur. 

(Tr. 404, 571-72; Resp. Ex. 6). 

Croll e-mailed Wiley a detailed description of the March 12 events, including attachments 

of copies from Metz's personnel file. (Tr. 406, 685; Resp. Ex. 18). Wiley telephoned Croll to 

discuss the :incident and they agreed on a plan to determine if this was an isolated event or a 

pattern of behavior. (Tr. 406, 685, 687). Wiley suggested contacting the local police to provide 

security at the plant if Metz became angry about being prevented from entering plant property. 

(Tr. 407). Carmerise informed the North Landonderry Township Police of their concerns 

regarding Metz. (Tr. 406-08, 597; Resp. Ex. 27B). 

Metz did not attempt to come to work on March 13, 2009. (Tr. 106, 407-08). 

Concerned that Metz would be upset by the investigation and suspension, Miller arranged for 

Metz's suspension notice to be delivered by-the state constable as suggested by the Township 

Police. (Tr. 409; Resp. Ex. 21 ). · 

Croll continued her investigation by interviewing employees about their interactions with 

Metz. (Tr. 410; Resp. Ex. 26). Croll learned about the previously noted incident in which 

Metz harassed a fellow employee and made lewd comments about that employee's mother. 

(Tr. 418-20). After completing her interviews, Popp escorted Croll to the highway for her return 

to Pittsburgh. (Tr. 420). ·- · · · 

32 FMSHRC Page 1720 
Upon returning to Pittsburgh, Croll called Lorick and Jones as they were former 

human resources representatives at the Annville Plant who were familiar with Metz. (Tr. 424-28; 

Resp. Exs. 22, 23). Croll testified that each described Metz as a "hot head" with a bad temper. 

(Tr. 424-28). Lorick also described Metz as a "time bomb ready to explode." (Tr. 426). 

Jones told Croll that Metz also had previously contacted him about obtaining peer review 

for the on-call back pay issue. (Tr. 428). 

Croll reported to Wiley a chronological account of the relevant events concerning Metz. · 

(Tr. 695-96; Resp. Ex 18(a)). Wiley testified she reviewed the information and discussed the 

March 12 incident with Downham and Canneuse's in-house counsel Kevin Whyte. {Tr. 699-

700; Resp. Exs. 22, 23). Their conclusion was that Metz should be terminated. (Tr. 597, 685, 

699). 

In a telephone conversation on March 18, 2009, Wiley explained to Metz Canneuse's 

decision to terminate his employment because of his "repeated use of profanity, vile, threatening 

and/or abusive conduct in the workplace with [his] peers and members of management." 

(Tr. 701-02; Resp. Ex. 1 ). Wiley informed Metz that his personnel file had been reviewed and it 

too demonstrated a "clear pattern of harassing, abusive and offensive behavior" that would not be 

tolerated in the workplace. (Tr. 702). 

A letter from Wiley summarizing her conversation with Metz and outlining the reasons 

for his termination was sent to Metz on March 18, 2009. (Resp. Ex. 1). The letter stated, in 

pertinent part: 

Effective Wednesday, March 181

'\ 2009, you are being terminated from 

employment with Canneuse Lime and Stone for violation of the Corporate 

Harassment Policy in addition to General Rules and Regulations as outlined in the 

Annville Handbook (plant specific). Your repeated use of profane, vile, 

threatening and/or abusive language in the workplace used with your peers and 

members of management, in addition to a thorough review of your personnel file, 

has demonstrated a clear pattern of harassing, abusive and offensive behavior in 

the workplace as well as a lack of respect for others. This behavior will not be 

tolerated in the workplace. 

{Resp. Ex. 1 ). 

Metz requested peer review of his termination. (Tr. 704). The request was denied due to 

the confidential nature of information obtained during the investigation concerning harassment of 

a Canneuse employee. (Tr. 704.;.05; Resp. Ex. 27 A). A formal letter dated March 23, 2009, was 

sent to Metz detailing the reasons for the denial of his request for peer review. (Resp. Ex. 27 A). 

32 FMSHRC Page 1721 
III. Further Findin&s and Conclusions 

a. Analytical Framework 

Section 105( c) of the Mine Act prohibits discriminating against a miner because of his 

participation in safety related activities. Congress provided this statutory protection to encourage 

miners "to play an active part in the enforcement of the Act" recognizing that, "if miners are to 

be encouraged to. be active in matters of safety and heal.th, they must be protected against any 

possible discrimination which they might suffer as a result of their participation." S. Rep. No. 

95-181, at 35 (1977), reprinted in Senate Subcomm. on Labor, Committee on Human Res., 

Legislative History of the Federal Mine Safety and Health Act of 1977at 623 (1978). It is the 

intent of Congress that, "[ w ]henever protected activity is in any manner a contributing factor to 

the retaliatory conduct, a finding of discrimination should be made." Id. at 624. 

Metz, as the complainant in this case, has the burden of proving a prima facie case of 

discrimination. In order to establish a prima f acie case, Metz must establish that he engaged in 

protected activity, and that the termination of his employment was motivated, in some part, by . 

that protected activity. See Secy of Labor on behalf of Pasula v. Consolidation Coal Co., 

2 FMSHRC 2786, 2797-2800(October1980) rev'd on other grounds sub nom. Consolidation 

Coal Co. v. Marshall, 663 F.2d 1211 (3d Cir. 1981); Secy of Labor on behalf of Robinette v. 

United Castle Coal Co., 3 FMSHRC 803, 817-18(April1981). 

Carmeuse may rebut a prima facie case by demonstrating, either that no protected activity 

occurred, or, that the termination of Metz was not motivated in any part by his protected activity. 

Robinette, 3 FMSHRC at 818 n.20. Carmeuse may also affirmatively defend against a 

prima facie case by establishing that it was also motivated by unprotected activity, and that it 

would have taken the adverse action for the unprotected activity alone. See also Jim Walter 

Resources, ~20 F.2d at 750, citing with approval Eastern Associated Coal Corp. v. FMSHRC, 

813 F.2d 639, 642 (4th Cir. 1987); Donqvan v. Stafford Constr. Co., 732 F.2d.954, 958-59 

(D.C. Cir. 1984); Boich v. FMSHRC, 719F.2d194, 195-96 (6th Cir. 1983) (specifically 

approving the Commission's Pasula-Robinette test). 

b. Metz's Prima Facie Case 

As the complainant, Metz has the burden of proving that his termination violated the 

anti-discrimination provisions of section I 05( c) of the Act. While Metz testified that he 

occasionally served as a miners' representative; the primary protected activity relied upon is 

Metz's safety related complaints concerning the contractor's method of dismantling the kilns. 

To .establish a prima facie case, Metz need only demonstrate a proximity in time between his 

protected activity and the adverse action complained of, in this case his termination, and 

company knowledge of the protected activity. Although Carmeuse maintains that the contractor 

was dismantling the kiln in a safe manner, Metz's kiln related complaints are protected as long as 

he had a good faith belief that a hazard existed, regardless of whether the activities of the kiln 

contractor were in fact hazardous. Robinette, 3 FMSHRC 810-812. 

32 FMSHRC Page 1722 
Carmeuse has stipulated that several employees, including Metz, communicated 

kiln related safety complaints no more than two to three weeks prior to Metz' s termination. 

(Tr. 60-61). Carmeuse also stipulated that Metz's complaints were made in good faith. (Tr. 61). 

Consequently Metz has satisfied his burden of demonstrating a prima facie case of 

discrimination. 

As·a threshold matter, Carmeuse contends that the protected activity relied upon by Metz 

is not material because Croll, Wiley, and Downham, who made the ultimate decision to terminate 

Metz, had no knowledge ofMetz's safety related complaints. However, plant management 

personnel who knew Metz well, such as, Kauffman, Saterstad, and Popp, counseled Croll in her 

deliberations concerning Metz. Moroover, the Annville plant is a: relatively small facility with 

approximately 50 employees. Notwithstanding whether actual knowledge of protected activity 

has been demonstrated, the Commission has held that the small size of a mine supports an 

inference that an operator was aware of a miner's protected activity. Morgan v. Arch of Ill., 

21FMSHRC1381, 1391(December1999) (citations omitted). Consequently Carmeuse is 

deemed to have had actual knowledge ofMetz's protected activity when they decided to 

teiminate him. 

c. Carmeuse's Rebuttal 

However the analysis does not stop there. In ail effort to rebut Metz' s prima facie case, 

Carmeuse contends that Metz's termination was motivated solely by his inappropriate and hostile 

conduct on March 12, 2009, as well as his history of abusive and threatening behavior. In this 

regard, Carmeuse contends that Metz's reported safety related protected activity was not 

considered in any way in the company's decision. 

Having concluded that Carmeuse was aware ofMetz's protected activity, the analysis 

shifts to whether Carmeuse's reported rationale for terminating Metz, i.e., his profane, 

insubordinate and belligerent behavior, is a pretext for an ulterior motive of retaliation. · 

Determining whether Carmeuse's reported rationale is a pretense requires analysis of the 

credibility of the differing accounts of Metz and Croll with respect to their March 12, 2009, 

meeting. In resolving credibility issues, the.judge "[who] has an opportunity to hear the testimony 

and view the witnesses ... is ordinarily in the best position to make a credibility determination." 

In re: Contests of Respirable Dust Sample Alteration Citations, 17 FMSHRC 1819, 1878 (Nov. 

1995) (quoting Ona Corp. v. NLRB, 729 F.2d 713, 719 (11th Cir. 1984)), ajf'd sub nom. Secretary 

of Labor v. Keystone Coal Mining Corp., 151 F.3d 1096 (D.C. Cir. 1998). 

Croll's initial testimony that she was totally unprepared for Metz's outburst, because she 

did not know prior to their meeting the identity of Metz nor his history, lacks credibility. (Tr. 353). 

Croll later admitted that Saterstad had told her, prior to the meeting, that Metz was a complainer. 

Moreover, Croll' s e-mail to Wiley after the meeting reflects that Croll had reason to know before 

the meeting that Metz was a "disgruntled employee." (Tr. 353, 453-54; Resp. Ex. 18). Thus, the 

degree to which Croll contends that she was startled by Metz's conduct is suspect. 

32 FMSHRC Page 1723 
Despite her unsubstantiated claim that she was not forewarned about Metz, Croll's account 

ofMetz's profane and belligerent conduct is entitled to great weight because it is corroborated by 

evidence of similar conduct both before and after the March 12 meeting. Kauffman testified about 

an incident that occurred in March 2007 when Metz threatened him. (Tr. 573). Metz's threat was 

taken seriously enough to warrant a written disciplinary notice cautioning Metz that he would be 

terminated if such threatening conduct directed at management reoccurred. (Resp. Ex 6). Metz 

had also reacted aggressively during a previous meeting with Lorick, a company human resources 

employee. (Tr. 391-93). 

Popp encountered Metz shortly after the meeting with Croll, at which time Metz used 

profanity and threatened to hurt himself or someone else. (Tr. 394-96; Resp. Ex. 20). Popp 

escorted Metz off mine property because he was so concerned about Metz' s hostile behavior. 

Miller also testified that employees were afraid that Metz was capable of harming people at the 

plant. (Tr. 673-74, 679-80). Saterstad also believed Metz had a reputation for exhibiting anger 

and hostility in the workplace. (Tr. 393). Even Metz's own witness, Jeffrey Englehart, related that . . 

. Metz was known to be the one to confront management on employee issues because "[h]e has more 

balls than we do." (Tr. 222). ·. 

Finally, the company's claim that Metz's behavior could no longer be tolerated is supported 

by the information contained in Metz's March 18, 2009, termination letter. The termination letter 

described Metz's language as "profane, vile, threatening and/or abusive." (Resp. Ex. 1). Jn short, 

unless Croll, Kauffinan, Lambert, Saterstad and Popp have all conspired to falsely report that they 

witnessed Metz's hostile and abusive conduct on March 12, 2009, the evidence amply supports 

Croll's testimony that Metz acted in a profane arid hostile manner during their meeting. 

Although Metz has attempted to discredit Croll, his testimony concerning whether he had 

acted inappropriately and used profane language was evasive. Moreover, Metz's testimony that he 

could not recall whether he used profanities during his meeting with Croll is not worthy of belief. 

Metz's March 12 conduct was the focus of discussion and consideration from March 12 until 

March 18, 2009. (Resp. Exs. 1, 21). On March 18, 2009, Wiley telephoned Metz to inform him 

that his employment was terminated because of his "repeated use of profanity, vile, threatening 

and/or abusive conduct in the workplace with [his] peers and members of management." · · 

(Tr. 701-02; Resp. Ex. 1 ). Wiley also informed Metz that his personnel file had been reviewed 

and it too demonstrated a "clear pattern of harassing, abusive and offensive behavior" that would 

not be tolerated in the workplace. (Tr. 702). Their telephone conversation was committed to 

writing in Metz's March 18, 2009, termination letter. (Resp. Ex. 1). 

It is in this context that Metz's claim that he is not certain that Croll's accusations are true, 

because he cannot recall how he behaved during their meeting, is incredulous. It is also 

noteworthy that Metz also could not recall his behavior with regard to the Kauffman incident and 

the events concerning his harassment of a fellow employee. (Tr. 572, 312). Thus, in the final 

analysis, the great weight of the evidence supports Carmeuse's contention that Metz's conduct on 

March 12, 2009, was insubordinate and intolerable. 

32 FMSHRC Page 1724 
d. Metz' s Reliance on Circumstantial Evidence 

The focus now shifts to whether Carmeuse was also motivated, in any part, by Metz's 

protected activity. In determining whether Metz's conduct, alone, was the basis for Carmeuse's 

decision to terminate his employment, it is significant that the "Commission does not sit as a super 

grievance board to judge the industrial merits, fairness, reasonableness, or wisdom of an 

operator's employment policies except insofar as those policies may conflict with rights granted 

under section 105(c) of the Act." Delisio v. Mathies Coal Co., 12 FMSHRC 2535, 2544 

(December 1990) (citations omitted). 

The Commission has addressed the proper criteria for considering the merits of an 

operator's asserted business justification: 

Commission judges must often analyze the merits of an operator's 

alleged business justification for the challenged adverse action. In 

appropriate cases, they may conclude that the justification is so 

weak, so implausible, or so out of line with normal practice that it 

was mere pretext seized upon to cloak the discriminatory motive. 

The Commission and its judges have neither the statutory charter 

nor the specialized expertise to sit as a super grievance or 

arbitration board meting out industrial equity. Once it appears that 

a proffered business justification is not plainly incredible or 

implausible, a finding of pretext is inappropriate. We and our 

judges should not substitute for the operator's business judgement 

our views on "good" business practice or on whether a particular 

adverse action was ''just" or "wise." The proper focus, pursuant to 

Pasula, is on whether a credible justification figured into the 

motivation and, if it did, whether it would have led to the adverse 

action apart from the miner~s protected activities. 

Chacon, 3 FMSHRC ·at 2516-17. 

The Commission subsequently further explained that, while a proffered business 

justification must be facially reasonable, it is not the role of the judge to substitute his or her 

judgement for that of the mine operator. The Commission stated: 

[T]he reference in Chacon to a "limited" and "restrained" 

examination of an operator's business justification defense does 

not mean that such defenses should be examined superficially or be 

approved automatically once offered. Rather, we intended that a 

judge, in carefully analyzing such defenses, should not substitute 

his business judgement or a sense of "industrial justice" for that of 

32 FMSHRC Page 1725 
the operator. As we recently explained, "Our function is not to 

pass on the wisdom or fairness of such asserted business 

justifications, but rather only to determine whether they would· 

have motivated the particular operator as claimed." 

Haro v. Magma Copper Co., 4 FMSHRC 1935, 1938 (Nov. 1982) (citations omitted). 

In determining whether Carmeuse's decision to terminate Metz is tainted, in any part, by 

a discriminatory motive, it must be remembered that direct evidence of.discrimination is rare. 

Rather, the Commission looks to circumstantial evidence of discrimination. Thus, the 

Commission has stated: 

[D]irect evidence of motivation is rarely encountered; more typically, the only 

available evidence is indirect .... 'Intent is subjective and in many cases the 

discrimination can be proven only by the use of circumstantial evidence.' 

Chacon, 3 FMSHRC at 2510 (quoting NLRB v. Melrose Processing Co., 351F.2d693, 698 

8th Cir. 1965). Some of the more common circumstantial indicia of discriminatory intent are 

knowledge of the protected activity, hostility or animus towards it, coincidence in time between 

the adverse action and the protected activity, and disparate treatment of the complainant. Id. 

However, to demonstrate by indirect evidence that Carmeuse was motivated, at least in 

part, by Metz's protected activity requires a rational connection between the evidentiary facts and 

Metz's termination. See Garden Creek Pocahontas, 11 FMSHRC 2148, 2153 (Nov. 1989) citing 

Mid-Continent Resources, Inc., 6 FMSHRC at 1132, 1138. Carmeuse's knowledge of Metz's 

kiln related complaints, that were communicated· shortly before his termination, alone, does not 

provide an inherently reasonable basis for inferring that he was discriminated against. 

Rather, the evidence must reflect that Metz was the victim of disparate treatment because 

of a company animus toward his protected activity. With respect to animus, the evidence does 

not reflect an atmosphere of general intolerance of safety related complaints. On the contrary, 

Metz's own witness testified that he felt comfortable making safety complaints.to anyone in 

management. (Tr. 283-84). The company conceded that, in addition to Metz, numerous other 

employees complained about the kiln contractor. ·It has neither been contended nor shown that 

any of these .employees experienced retaliation. Moreover, there is no evidence of a retaliatory 

motive for Metz's activities as a miners' representative, or, for his previous discrimination 

complaints that are remote in time. Significantly, despite his history of protected activity, Metz 

received only a written warning for his March 2007 insubordination. 

32 FMSHRC Page 1726 
The Commission has previously addressed the issue of disparate treatment in a 

matter where a mine operator relies on the use of profanity as a justification for termination. 

"fu analyzing whether a complainant was disparately treated in the context of termination. for 

using offensive language, the Commission has looked to whether the operator had prjor 

difficulties with the complainant's profanity, whether the operator had a policy prohibiting 

swearing, and how the operator treated other[ s] ... who had cursed." Sec '.Y o/b/o Bernardyn v. 

Reading Anthracite 23 FMSHRC 924, 929-30 (Sept. 2001) citing Cooley v. Ottawa Silica, 6 

FMSHRC at 521, and Hicks v. Cobra Mining, 13 FMSHRC 532-33. 

Here, Carmeuse had previously warned Metz for threatening Kauffinan. fu seeking to 

minimize the significance of his profane and hostile behavior, Metz claims the COI11pany has a 

permissive policy regarding the use of profanity. Jn this regard, Metz presented evidence that . . . 

hourly employees in the maintenance department "routinely swear" during their conversations 

with each other. (Tr. 204). While I am certain that men at the plant did not always use the 

Queen's English to express themselves, such banter cannot be equated with the inappropriate 

language and hostile behavior witnessed by Croll, Kauffinan, Lambert, Saterstad and Popp. 

(Tr. 379-80, 388, 392-93, 395-96, 572). Thus, the company's assertion that its termination of 

Metz was motivated by his profanities and threatening behavior is neither pretextual in nature, nor 

evidence of disparate treatment. 

Metz also contends that the denial of peer review for his termination is an indicia 

of disparate treatment. Carmeuse's assertion that peer review did not apply because Metz's 

termination involved comments that constituted sexual harassment is supported by the peer review 

guidelines. (Metz Ex. 1 O; Resp. Ex. 27 A). 

Moreover, the company's concern about a potential violent situation, as evidenced by the 

company's request for a police presence after Metz's suspension and termination, provides an 

additional busine,ss justification for denial of peer review. fu this regard, although Metz presented 

evidence that two employees were granted peer review: prior to their discharge, the discharges 

apparently did not involve threatening behavior as a police presence at the plant was not requested 

immediately after their terminations. (Tr. 316, 325). SeeDreissen v. Nevada Gold.fields, Inc., 

20 FMSHRC 324, 332 n. 14 (Apr.1998)citing Schulte v. Lizza1ndus., Inc. 6 FMSHRC 8, 16 

(Jan. 1984); Chacon, 3 FMSHRC at 2512 (disparate treatment requires evidence that another 

employee guilty of the same or more serious offenses escaped the disciplinary fate suffered by the 

complainant). Thus, there is no rational basis for concluding that the denial of peer review is an 

indicia of discriminatory motive. 

Finally, a Commission judge is "obligated to determine whether the actions for which the 

miner was disciplined were provoked by the operator's response to the miner's protected activity." 

Floyd Dowlin, III, v. Western Energy Co., 28 FMSHRC 23, 31(Jan.2006) (AU) citing Secy of 

Labor olb/o McGill v. U.S. Steel Mining Co., 23 FMSHRC 981, 992 (Sept. 2001). Consequently, 

at the culmination of the hearing, the parties were requested to address the issue of provocation in 

their briefs. 

32 FMSHRC Page 1727 
The Court of Appeals has noted that "[t]he more.extreme an employer's wrongful 

provocation the greater would be the employee's justified sense. of indignation and the more likely 

its excessive expression." Bernardyn,23 FMSHRC at 936quoting NLRB v. M &B Head.wear 

Co., 349 F.2d 170, 174 (4th Cir. 1965). In its brief, Canneuse concedes that it "may not have· 

handled Mr .. Metz in the best manner possible, from a htiman resources standpoint ... " · 

(Resp. Br. at 36). Croll had never met Metz prior to their March 12 meeting. Given Metz's · 

volatile history, his outburst may have been foreseeable. However, the failure of Carmeuse to 

anticipate Metz's aggressive behavior does not constitute the requisite intentional wrongful 

provocation that would mitigate, or otherwise justify, Metz's behavior on March 12, 2009. 

In the final analysis, Metz is responsible for his conduct . . , 

Moreover, even if Metz was provoked by Carmeuse, such provocation would not give rise 

to a discrimination claim under the Mine Act because it was not in response to safety related 

protected activity. Consequently, Carmeuse's reliance on Metz's misconduct as the sole reason for 

his termination cannot be defeated by a claim of provocation. 

Absent evidence of animus, disparate treatment or wrongful provocation, the evidence 

reflects that Metz's termination was not motivated in any part by his protected activity. 

Thus, Metz' s prima facie case of discrimination has been successfully rebutted by Carmeuse. 

As Carmeuse has rebutted Metz's claim that he was the victim of discrimination, 

further inquiry into whether Carmeuse has demonstrated an affirmative defense is unnecessary. 

Gravely v. Ranger Fuel Corp., 6 FMSHRC 799, 803 (Apr. 1984). However; I note that even if 

Canneuse was motivated, in any part, by Metz' s protected activity, his hostile and· threatening 

conduct during and immediately following the March 12, 2009, m!eting provided Carmeuse with a 

rational and independent basis for his termination regardless of his protected activity. Accordingly, 

Metz's discrimination complaint must be denied. 

ORDER 

In view of the above, IT IS ORDERED that the discrimination complaint filed 

by William Metz IS DENIED. Accordingly, IT IS FURTHER ORDERED that 

Docket No. Penn 2009-541-DM IS DISMISSED. 

Administrative Law Judge 

32 FMSHRC Page 1728 
Distribution: (Regular and Certified Mail) 

Kim L. Lengert, Esq., Law Office ofK.im L. Lengert, P.O. Box 223, Robesonia, PA 19551 

R. Henry Moore, Esq., Jackson Kelly, PLLC, Three Gateway Center, Suite 1340, 

401 Liberty Ave, Pittsburgh, PA 15222 

/jel 

32 FMSHRC Page 1729 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

601 NEW JERSEY AVENUE N. W., SUITE 9500 

WASHINGTON, D.C. 20001 

SECRETARY OF LABOR, 

M1NE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), 

Petitioner, 

v. 

NEWTOWN ENERGY, INC., 

Respondent. 

November 8, 2010 

CIVIL PENALTY PROCEEDING: 

Docket No. WEY A 2009-173 

A.C. No. 46-08993-165542 

Mine: Coalburg Number One Mine 

DECISION 

./ 

Appearances: Jessica R. Hughes, Esq., Office of the Regional Solicitor, Arlington, Virginia, on 

behalf of the Petitioner 

Christopher D. Pence, Esq., Allen Guthrie and Thomas, PLLC, Charleston, West 

Virginia, on behalf of the Respondent 

Before: Judge Barbour 

This case is before me on a Petition for the Assessment of Civil Penalty filed by the Secretary 

of Labor ("Secretary'') on behalf of her Mine Safety and Health Administration ("MSHA") against 

Newtown Energy, Inc. ("Newtown"). The matter arises under sections 105(a) and l IO(a) of the 

Federal Mine Safety and Health.Act of 1977 ("the Mine Act"). 30 U.S.C. §§ 815(a), 820(a). In the 

petition, the 'secretary alleges Newtown violated a mandatory safety standard requiring the roof, rib, 

and face of areas where persons work or travel be supported so as to protect those persons from the 

hazards relating to the falls of the roof, ribs, or face. The standard is set forth in Part 75, Section 

202(a), Title 30, Code of Federal Regulations. 30 C.F.R. Part 75.202(a). The Secretary alleges that 

the company violated the standard on October 301ih, 2007 when the roof of a travel way used to 

examine an unsealed and worked out area was not supported so as to protect persons from roof falls. 

She further alleges that the violation was a significant and substantial contribution to a mine safety 

hazard ("S&S"), that the violation was due to the company's high negligence, and because of the 

violation, one miner was reasonably likely to be fatally injured. She proposes an assessment of 

$12,900 for the alleged violation. 

Following the issuance of the citation, the company contested the validity of the citation and 

the proposed assessment. After the Secretary's penalty petition was filed, Newtown answered, 

denying the Secretary's allegations, and in particular challenging the S&S finding and the negligence 

assertion of the inspector. ' 

32 FMSHRC Page J 730 
The matter was assigned to me, and I issued an Order directing Counsels to confer to 

determine whether they could settle the case. When the parties, foilowing diligent efforts, advised 

me that they were unable to agree to a settlement, I scheduled the case to be heard in Charleston, 

West Virginia. At the hearing, the parties presented testimonial and documentary evidence regarding 

the alleged violation. Also at the hearing, the parties presented stipulations and offered them as a 

joint exhibit. Tr, 14-15. 

STIPULATIONS 

The stipulations are as follows: 

1. This case involves one underground bituminous coal mine known as Coalburg No. l 

Mine, which is owned and operated by Newtown. 

2. The mine is subject to the jurisdiction of the Federal Mine Safety and Health Act of 

1997 (''the Act"). 

3. The Administrative Law Judge has jurisdiction over these proceedings, pursuant to 

Section 105 of the Act. 

4. Newtown is an"operator" as defined in§ 3(d) of the Act, 30 U.S.C. § 803(d), at the 

coal mine at which the citation at issue in this proceeding was issued. 

5. The parties stipulate to the authenticity of the examination reports and inspector's 

notes, but not to the relevance or truth of the matters asserted therein. 

6. Newtown's operations affect interstate commerce. 

7. True copies of each citation at issue in this proceeding were served on Newtown or its 

agent as required by the Mine Act. 

8. The citation contained in Exhibit A attached to the Secretary's petition [is an] authentic 

[copy] of the citation that is at issue in this proceeding with all appropriate modifications or 

abatements, if any. 

9. The individual whose signature appears in Block 22 of the [citation] ... was acting in 

[his] official capacity and as an authorized representative of the Secretary of Labor when the 

[citation was] issued. 

10. The proposed penalty will not affect Newtown's ability to remain in business. 

11, Newtown demonstrated good faith in abating the cited conditions. 

32 FMSHRC Page 1731 
12. The Violator Data Sheet contained in Exhibit A attached to the Secretary's petition 

accurately sets forth: 

[A.] The size of Newtown, in production tons or hours worked per year, 

[B.] The size in production tons or hours worked per year, of the coal or other 

mine at which the citation ... at issue in this proceeding [was] issued, 

[C.] The total number of assessed violations for the twenty-four (24) months 

preceding the month of the referenced citation ... , and 

[D.] The total number of inspection days for the twenty-four (24) months 

proceeding the month of the referenced citation[.] 

Jnt. Exh. 1. 

CITATION NO. 

7276088 

DATE 

10/30/07 

The citation states in part: 

30CFR§ 

75.202(a) 

PROPOSED ASSESSMENT 

$12,900 

· The travelway being-used to examine the first left panel unsealed worked-out 

areas was not supported or otherwise controlled to protect persons from hazards 

related to falls of the roof, or ribs [,] and coal or rock bursts. Numerous locations 

have rock fallen away from permanent roof supports that have made the bolts not 

effective at spads 2726 (34 bolts), 2767 (40bolts), 2585 (4 bolts), and 2948{5 bolts).· 

The operator dangered the areas off to travel. 

Gov't. Exh. 3~ 

In pertinent part, section 75.202(a) requires. "[t)he roof ... of areas where persons work or 

travel shall be supported or otherwise controlled to protect persons from hazards relating to falls of 

the roof." 

Following the conclusion of the testimony, the submission of the evidence, and counsel's 

closing arguments, I delivered an oral bench decision. Pertinent parts of the decision follow. 

Editorial changes have been made for clarity's sake. 

I stated: 

The fundamental issue in this case is whether the company violated section 

75.202(a), and I find that it did. The Commission has made· Clear that to prove a 

32 FMSHRC Page 1732 
violation of a standard, the Secretary must establish the operator acted other than in 

a way a reasonably prudent person would under the circumstances ... I am persuaded 

that here a reasonably prudent operator would not have acted as Newtown did. · I 

accept [the mine inspector's] description of the roof conditions[.] The inspector was 

forthright and he was credible. I have no doubt the conditions existed as he indicated 

on [the] citation and in his testimony. And this includes ... [places] where the roof 

had fallen two to three feet above the roof bolt plates. 

·That the conditions found by the inspector were hazardous . . . is patently 

obvious . . . . The entire entry ... itself was made hazardous by the defective bolts, 

especially where two feet to three feet of the roof was missing .... Further, the 

standard requires that miners work or travel in the affected area, and clearly this was 

the case. All of the witnesses agree that although [active] ... mining had ceased on 

the first level panel, the second area was subject to a weekly examination. Thus, as 

Inspector Nelson found, one person, the weekly examiner, was subjected to the 

hazards inherent in the inadequately supported roof. 

[T]he company recognized how hazardous it was for the examiner by using 

two senior management persons, Mr. Asebes and Mr. Harper, to conduct the 

examinations . . . . The fact that they could avoid traveling under the damaged bolts 

by staying to the right of the entry does not defeat the violation, because the evidence 

establishes that ... roof sloughage ... compromised the safety of the roof in 

the ... crosscuts and across'the entire entry. The evidence [also] establishe[s] that 

both Mr. Asebes and Mr. Harper, [the two senior management persons], walked the 

route traveled by [the mine inspector]. I [therefore find] that [the two senior 

management persons] ... traveled under inadequately supported roof in violation 

of the standard. 

I ... [further] find the violation was significant and substantial. First, there 

was a violation of [the] standard. Second, the violation created a discrete safety 

hazard, the . . . danger that the cited areas of the roof would fall on the weekly 

examiner. Third, the hazard was reasonably likely to come to fruition.· I must view 

the violation not only in terms of when it was cited, but also in terms of ongoing 

mining .... It is clear Newtown was awaiting the agency's approval to seal the first 

left panel. It had no apparent plans to move the evaluation point. [The] plans did not 

materialize until after the violation was cited. Thus, in terms of continuing mining, 

I find that . . . the weekly examinations Would have brought the examiner under a 

seriously compromised roof. Making the situation even more dangerous is the fact 

that all of the witnesses agree and I find that roof conditions were deteriorating as 

time went on, a situation that subjected the examiner to an increasingly greater 

hazard. [T]he inspector rightly noted that the hazard could reasonably be expected 

to result in a fatal injury. Roof falls continue to be leading causes of death in the 

nation's underground coal mines. · 

32 FMSHRC Page 1733 
The violation also was very serious. I evaluate its gravity not in terms of · 

[if the hazard] was reasonably likely, but in terms of what [could have] happened 

if ... [a roof fall] ... occurred. And a roof fall under these circumstances [easily] 

could have seriously injured or killed an examiner. [S]o[,] with regard to the 

violation, its [S&S] nature and its gravity, I affirm the inspector in all respects. 

However, I take issue with [the inspector's] negligence finding. It is clear to 

me that the company was caught in an unfortunate situation that was not entirely of 

its ... making. Newtown was trying to get permission to seal the first left panel in 

the wake of two major disasters [at other mines] involving ... seals. MSHA's 

resulting consideration of regulatory changes to ... the standard involving seals and 

the agency['s] ... [desire] to "get it right," led to delays in approvals to seal areas. 

The company had the misfortune of getting caught in [such a] delay. I credit Mr. 

Hartsog' s testimony that he was genuinely surprised ... how long it was taking to get 

the seals approved. [T]his [together] with the fact that ... it would have. been 

extremely impractical for the company to . . . [rehabilitate the roof, and] . . . 

testimony regarding the laborious nature of such work emphasized why the company 

did.11ot seriously consider [that] option. 

Rather, than try to· change the evaluation point, .the . company waited for 

MSHA's approval to seal the area, and it coupled this with sending only highly 

experienced miners to conduct the weekly examination. It changed its.examination 

procedure because it recognized. the hazard. It used its judgment to address the 

danger. 

As it turned out, the company's choice of a remedy did not meet the standard 

of care required, but given the situation in which [the company] found itself, .. _, [its 

approach] was not ... illogical[.] I conclude that the company's lack of care was 

more moderate than high, and I will modify the citation to reflect this conclusion. In 

[reaching] this conclusion, I ... accept as entirely factual [the company's counsel's] 

observation that absolutely nothing in the record supports finding that the company's 

approach to the situation was financially motivated. Tr. 232-:238. 

CIVIL PENALTY ASSESSMENT 

Having found the alleged violation exists, I must assess a civil penalty taking 

into accorint the civil penalty criteria set forth in section 11 O(i) ofthe Act. 30 U.S.C. 

§ 820(i). I must consider the very serious nature of the violation, the company's 

moderate negligence, its good faith abatement, its size, as stipulated by the parties, 

and the fact that the.penalty [will not] affect its ability to ~ontinue in business. I also 

will be especially.mindful of the small applicable history of prior yiolations, which 

may well reflect [the MSHA inspector's]. observation that management at the mine 

was good and cared about compliance. [Tr. 71.] 

32 FMSHRC Page 1734 
I stated at the hearing: 

Given all of the civil penalty criteria, I assess the civil penalty at $6,000(.] 

· Tr. 239. 

ORDER 

Within 40 days of the date of this decision, the Secretary IS ORDERED to modify Citation 

No. 7276088 by reducing the negligence level from high to moderate. In addition, Newtown IS 

ORDERED to pay civil penalties totaling $6,000 in satisfaction of the violation in question. Upon 

modification of the citation and payment of the penalty, this proceeding IS DISMISSED. 

J)D~if/£ Administrative Law Judge 

Distribution: (Certified Mail) 

Robert S. Wilson, Esq.; Jessica R. Hughes, Esq., U.S. Department of Labor, Office of the 

Solicitor, 1100 Wilson Blvd., 22nd Floor West, Arlington, VA 22209.,.2247 

David J. Hardy, Esq.; Christopher D. Pence, Esq., Allen, Guthrie & Thomas, PLLC, -500 Lee 

Street East, Suite 800, P.O. Box 3394, Charleston, WV 25333 

/sa 

32 FMSHRC Page 1735 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

721 19th STREET~ SUITE 443 

DENVER, CO 80202-2500 

303-844-5267 /FAX 303-844-5268 

November 12, 2010 

SECRETARY OF LABOR, 

MINE SAFETY & HEALTH 

ADMINISTRATION {MSHA), 

Petitioner, 

CIVIL PENALTY PROCEEDING 

Docket No. WEST 2009-536 

A.C. No. 48-01034-175585 

v. 

Caballo Mine 

CABALLO COAL COMP ANY, LLC, 

Respondent. 

Appearances: 

Before: 

DECISION 

Ronald F. Paletta, Conference and Litigation Representative, Mine Safety 

and Health Administration, Price, Utah, for Petitioner; 

Duane Myers, Safety Manager, Caballo Mine, Gillette, Wyoming; for 

Respondent. 

Judge Manning 

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

of Labor ("Secretary"), acting through the Mine Safety and Health Administration {"MSHA") 

against Caballo Coal Company, LLC, pursuant to sections 105 and 110 of the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the "Mine Act"). 

Caballo Coal Company ("Caballo" or "Respondent") operates the Caballo Mine (the 

"mine"), a surface coal mine in Campbell County, Wyoming. This case involves one 104(a) 

citation issued at the mine. An evidentiary hearing was held in Gillette, Wyoming, and the 

parties introduced testimony and documentary evidence. For the reasons set forth below, I find 

that the Secretary established a. technical violation of the safety standard, but that the violation 

was not significant and substantial. 

I. FINDINGS OF FACT AND CONCLUSIONS OF LAW 

On December 24, 2008, MSHA fuspector David Hamilton issued Citation No. 6686966 

to Caballo for an alleged violation of section 77.205{d) of the Secretary's safety standards. The 

citation states that: 

The regularly used travel way at the Main office for the Caballo 

Mine was not sanded, salted or cleared of snow and ice as soon as 

32 FMSHRC Page 1736 
practicable. For 150 feet on the East.side and 150 feet on the 

South side of the Office Building the travel ways were covered 

with accumulations of at least one quarter inch of packed snow 

from foot traffic. Posing slipping and falling hazards. 

(Ex. P-1 ). Inspector Hamilton determined that an injury was reasonably likely to occur and that 

such an injury could reasonably be expected to result in lost workdays or restricted duty. ·Further, 

he determined that the violation was significant and substantial'("S&S'') and that 50 persons 

would be affected. Hamilton subsequently modified the citation to reflect that only one person 

would be affected. In addition, he found that the violation was the result of moderate negligence 

on the part of the operator. 

Section 77.205(d) of the Secretary's regulations requires that "[r]egularly used travelways 

shall be sanded, salted, or cleared of snow and ice as ·soon as practicable." 30 C.F .R. 

§ 77.205(d). The Secretary proposes a penalty of $634.00 for this citation. 

A. Back&round and Summary of Testimony 

David Hamilton has.worked for MSHA for over three years and is currently a surface coal 

mine inspector. (Tr. 8). As a surface mine inspector, Hamilton spends approximately 230 to 240 

days a year inspecting equipment, buildings, impoundments, and explosive storage, and checking 

for, among other things, imminent dangers and other hazards. (Tr. 9-10). Prior to joining 

MSHA, Hamilton worked in the mining industry for over 26 years and, in 1996, received his 

surface mine foreman ;certificate from the State of Wyoming. (Tr. 8-9). 

On December 23, 2008, Inspector Hamilton traveled to the Caballo mine.to begin 

conducting a required biannual inspection. (Tr. I 0-11 ). During the inspection Hamilton was 

accompanied by Randy Milliron, a safety supervisor at the mine. (Tr. 11, 47).· Hamilton testified 

that, at sonie point on the 23rd, he had a conversation with Milliron and Duane Myers, the mine's 

safety manager. Milliron advised the inspector that there had been an accident at the North 

Antelope Rochelle Mine in which a miner had slipped and fallen on ice. 1 (Tr. 11 ). Hamilton 

testified that, during the conversation, Myers stated that he was planning to send an internal 

email to the supervisors at the Caballo mine asking them to clean all of the walkways, 

travelways, and sidewalks so that a similar accident would not occur at the Caballo mine. (Tr. 

11-12). Hamilton stated that, as he left the mine on the 23rc1, the outside temperature was at or 

near zero degrees Fahrenheit-and there was}~ inch of snow on the ground. (Tr. 12-13). While he 

was concerned about the snow accumulations on the sidewalks, Hamilton believed that Myers 

and Milliron had the situation under control. (Tr. 12). · 

1 The Caballo mine and the North Antelope Rochelle Mine are both owned by Peabody 

Energy. 

32 FMSHRC Page 1737 
At 8:30 a.m. on December 24, 2008, lnsp~tor Hamilton returned to the Caballo mine to 

resume the inspection. {Tr. 13). During the course of the inspection, Hamilton took a series of 

14 photographs which, according to him, represented the condition of the exterior walkway as it 

appeared at the time. (Tr. 19-25; Ex. P-2). Upon arrival, he noted that an additional eighth of an 

inch of snow had fallen over night and the parking lot area had been sanded. (Tr. 13, 17). 

Hamilton testified that further examination revealed that.none of the sidewalks had been . 

shoveled or otherwise cleaned; that the snow on the walkways was becoming packed down by 

people walking on it, and that, with one exception, all of the salt canisters located at the entrances 

and exits to the buildings had snow on top of them, which indicated to him that the canisters had 

not been opened since the snow began to fall. (Tr. 13; Ex. P-2). Salt had been thrown on the 

ground near the one exterior door. (Tr. 21; Ex. P-2, Photo 4). Hamilton testified that, while 

attempting to find Myers in one of the buildings, he encountered Walt Mayo, a Caballo 

employee, who told Hamilton that he was "stepping up" while Myers was in a meeting with mine 

management. (Tr. 14). Mayo accompanied Hamilton while he examined the remaining 

travelways and entrances/exits around the perimeter of the buildings; (Tr. 14). In addition to the 

snow on the travelways, Hamilton specifically noted "at least an inch" of ice that had formed on 

the step and the grating at the main entrance to the building. (Tr. 14-15, 23-24; Ex. P2, Photo 

11 ). Hamilton testified that Mayo told him the ice was created by snow melt dripping off of a 

light above the entrance and re-freezing on the step. (Tr. 15). According to Hamilton; Mayo told 

him this had been a problem for quite a while. (Tr. 15). Hamilton observed additional areas 

where scuff marks in the snow on the travelways indicated to him that individuals had slipped 

while walking.on the travelways. (Tr. 21-22; Ex. P-2, Photos 5& 7). Finally, Hamilton noted a 

mixture of ice and. dirt that had formed inside and on top of the metal grating in front of an 

exterior door. (Tr. 22; Ex. P-2; Photo 5). Hamilton explained his concerns to Mayo and, based 

on the conditions observed, issued Citation No. 6686966 under section 104(a) for a violation of 

section 77.205(d). ·(Tr. 15-16). 

Hamilton told Mayo that the travelways needed to be cleared before anyone else walked 

on them. (Tr. 14). Mayo instnicted a number of mechanics, plant technicians, and truck drivers 

to clean the walkways. (Tr. 26). Hamilton terminated the citation after the employees abated the 

violation by shoveling and salting the travelways, at which point he took a set of post abatement 

photos. (Tr. 25-27; Ex. P-3). · 

Hamilton determined that an injury was reasonably likely to occur based on his 

observation that {l) the snow thathad built up on the travelways had been packed down, (2) there 

were marks in the snow that indicated sliding or slipping; and (3) his knowledge that an accident 

involving a slip-and-fall had recently occurred at the North Antelope Rochelle Mine . .(Tr. 17). 

However, Hamilton testified on cross-examination that he was not positive what type of injury 

was sustained, or what the conditions were, at the other mine. (Tr. 28). Hamilton testified that 

an injury could reasonably be expected to result in lost workdays or restricted duty since such 

accidents generally result in sprains, bruises, concussions, and broken bones, which "in [his] 

opinion would at least end up in restricted duty, and most likely lost work days, but ... would 

[not] be pennanently disabling." (Tr. 17). He initially determined that 50 persons would be 

32 FMSHRC Page 1738 
affected by the conditions, 2 but later modified the citation to one person affected since he could 

reasonably only expect one person to slip at a time. (Tr. 16-17). Hamilton testified that he did 

not issue the citation as an imminent danger because he did not see anyone standing in the cited -

areas at the time he issued the citation. (Tr. 30). 

Hamilton determined that the violation was the result of the company's moderate 

negligence based on the fact that at least some· effort had been made. to address the conditions, 

i.e., the parking lot had been sanded and salt had been thrown in front of one door. (Tr. 18). He 

felt that the violation was the result of more than low negligence because there were still 300 feet 

oftravelways around the buildings that had not been touched.- (Tr. 18). 

Walt Mayo, an hourly employee who worked as a plant maintenance tecbriician at the 

mine, testified that, based on his hazard recognition training, he did not believe that the cited 

conditions were a hazard since "there was not enough snow ... (and] [i]t wasn't slick." (Tr. 36-

37, 39). He had not slipped on the snow, nor had he heard of anyone else slipping on it. (Tr. 39). 

Mayo testified that, while Hamilton told him the condition was citable, Hamilton did not issue 

the citation prior to it being abated. (Tr. 38). Mayo stated that the scuffmarks noted by 

Inspector Hamilton were not from slipping but were caused by coveralls dragging behind the 

boots that created the footprints in the snow. (Tr. 40-41; Ex. R-1, Photo 8). Mayo testified that 

the employees had recently been issued new coveralls that were too long and would drag behind 

the miner's boots. (Tr. 40-41). Mayo noted that the texture of the ground under the snow was 

very rough and the ice which had built up near the main entrance was not on the tread, i.e., 

upward facing part of the step, but rather, was on the rise, i.e., outward facing part of the step. 

(Tr. 42; Ex. R-1, Photos 2 and 4). Mayo does not remember telling the inspector that ice on the 

front step had been a problem for "some time." (Tr. 42.). Mayo testified that it was below 

freezing on both the 23rd and 24th, and the snow that was on the ground was very dry and 

powdery. (Tr. 43, 45). 

Duane Myers, the-safety and training manager at the mine, testified that he was at the 

mine on both the 23rd and 24th. (Tr. 47). According to Myers the high temperature on the 23rd 

was four degrees Fahrenheit, while on the 24th the high temperature was twenty six degrees 

Fahrenheit. (Tr. 48). On the morning of the 241

h it was sunny and cold before warming up in the 

afternoon. (Tr. 48). Myers testified that he was in a safety meeting on the 24th and did not get 

out of the meeting until after abatement of the citation had begun. (Tr. 52-53). It was his belief 

that the conditions did not constitute a violation because the snow was very light and it was 

mostly sitting on top of rough asphalt, which increased the traction on the surface. (Tr. 48, 53). 

He opined that it was unlikely for a slip-and-fall to occur and, as a result, the violation should not 

be S&S. (Tr. 54-55). According to Myers, the snow was so light that it was difficult to shovel 

and, even with ice melt on top of it, very little moisture was coming out of the snow. (Tr. 49-50, 

53). Myers testified that the ice alleged to be on the step at the front entrance was to the side of 

2

Hamilton based this finding on a conversation he had Myers and Mayo during which he 

learned that at least 50 people walked the travelways twice per shift. (Tr. 16-17) 

32 FMSHRC Page 1739 
the front door, and not in front of it. (Tr. 51 ). As a result, the likelihood of someone stepping on 

the ice was very remote. (Tr. 51; Ex. R-1, Photo 2). Myers stated that the one area that had. 

been salted was the main entrance for the hourly employees. (Tr. 51-52; Ex. R-1, Photo 6). 

Myers testified that the ice and dirt mixture in the grate near the exterior door that had been noted 

by Hamilton was not dangerous because the dirt provided traction and the frozen mix was below 

the surface of the grate. (Tr. 58; Ex. R-1, Photo 7). Further, the scuff marks in the snow were 

the result.of the miners' coveralls dragging behind their boots. (Tr. 52; Ex. RI, Photo 8). He 

argued that if miners had been slipping, there would not have been clear boot· sole imprints in the 

snow, which there were. Id Additional photos taken by Caballo after the Christmas holiday 

show the rough asphalt that was under the snow at the time of the citation. {Tr. 49, 51; Ex. R-2, 

Photos 2-8). Myers testified that all mine employ~es are trained in how to identify and correct 

hazards. (Tr. 56). 

B. The Violation 

It is important to recognize that the Commission and the courts have uniformly held that 

mine operators are strictly liable for violations of safety and health standards. See, e.g. Asarco v. 

FMSHRC, 868 F.2d 1195 (lOlh Cir .. 1989). "(W]hen a violation of a mandatory safety.standard 

occuts in a mine, the operator is automatically assessed a civil penalty." Id .. at 1197. In addition, 

the Secretary is not required to prove that a violation creates a safety hazard, unless the safety 

standard so provides. 

The [Mine Act] imposes no general requirement that a violation of 

MSHA regulations be found to create a safety hazard in order for a 

valid citation to issue. If conditions existed which violated the 

regulations, citations [are] proper. · 

Allied Products, Inc., 666 F.2d 890, 892-93 (5th Cir. 1982) (footnote omitted). The negligence of 

the operator and the degree of the hazard .created by the violation are taken into consideration in 

assessing a civil penalty under section 11 O(i). 30 U.S.C. § 820(i). Thus, if a violation is found, a 

penalty must be assessed even if the chance of an injury is not very great. 

.. There is little dispute regarding the relevant facts as to whether a violation of the cited 

standard occurred. The cited safety standard requires that "[ r ]egularly used. travelways shall be 

sanded, salted,. or cleared of snow and ice as soon as practicable." 30 C.F.R. § 77.205(d). It is 

not disputed that miners regularly travel the subject walkways, or that the walkways are . 

travelways as contemplated by the cited standard. Indeed, the pre-abatement pictures provided 

by both parties show multiple footprints in the snow which indicate that heavy foot traffic is 

quite common on these walkways. (Ex. P-2; Ex. Rl, pp. 2-9). Further, there can be no debate 

that snow existed on these walkways. I credit fuspector Hamilton's testimony that approximately 

5/8ths of an inch of snow had fallen, i.e., there was Yi inch of snow on the ground on the 23rd and 

an additional I/8th inch of snow fell overnight before Hamilton arrived on the 24th. Respondent 

takes issue with whether there was "enough" snow on the ground to create a hazard. The cited 

32FMSHRCPage1740 
section of the Secretary's regulations does not require a certain amount of snow to be present 

before it needs to be sanded, salted or cleared. Rather, the language requires only that snow and 

ice be sanded, salted, or cleared "as soon as practicable." 

The issue of what constitutes "as soon as practicable" is not entirely clear. "As soon as 

practicable" is not defined in the Secretary's regulations. The Commission has held that in the 

absence of a regulatory definition of a word, the ordinary meaning of that word may be applied. 

See Bluestone Coal Corp., 19 FMSHRC 1025, 1029 (June 1997); Peabody Coal Co., 18 

FMSHRC 686; 690(May1996), affd, 111F.3d963 (D.C. Cir. 1997). The dictionary defines 

"practicable" as "possible to practice or perform: FEASIBLE." Webster's New Collegiate 

Dictionary 895 (1979). Relying on such, a reasonable interpretation of the cited standard would 

require that snow and ice be sanded, salted, or cleared as soon as possible. 

While neither the Commission nor its judges have addressed what "as soon as 

practicable" means in the context of the standard at issue, they have addressed this language in an 

identical standard for.surface metal/non-metal mines.3 In Hanna Mining Co., the Commission• 

upheld an administrative law judge's finding that, while the judge did not know exactly how long 

an accumulation of ice existed, he could infer that it had existed for some time and had not been 

removed "as soon as practicable" based on the particular cause of the condition, i.e., water 

dripping/spraying from a pipe, and the fact that more than three hours had elapsed since the 

beginning of the work shift. 3 FMSHRC 2045, 2049 (Sept. 1981). Commission administrative 

law judges have also addressed this similar standard. In NL. Industries, Inc.; a judge found that 

an accumulation of six inches of snow and ice was not cleared as "as soon· as practicable" when it 

had been present on a walkway for three days. 2 FMSHRC 3040, 3044 (Oct. 1980) (AU). In 

Spencer Quarries Inc., I found that an operator had salted its walkway "as soon as practicable" 

when, on the morning after a day in which the mine was closed, salt was applied to the snowcovered walkway at the start of the shift. 32 FMSHRC 644, 646-647 (June 2010) (ALJ). 

It is clear that snow, albeit very little, was present on the cited travelways on both 

December 23rd and 24th. Salt canisters were readily available along the exterior of the buildings. 

No evidence has been offered to show that any effort was made to sand, salt or clear the snow 

prior to Inspector Hamilton instructing Mayo to do so. I credit Inspector Hamilton and find that 

the snow which had accumulated on top of the salt canisters was evidence that the canisters had 

not been opened and that, with one exception, salt from those canisters had not been used on the 

cited travelways. The multiple footprints seen in the photos provided by both parties indicate 

that a number of people had traversed the walkways in the time since the snow had stopped 

falling. I find it highly unlikely that it was "impossible" or "not feasible" for any of the 

individuals who created such footprints to reach into the provided salt containers, grab some salt, 

and spread it along the travelways. In finding that cited areas had not been sanded, salted or 

cleared "as soon as practicable," I rely in part on the fact that at least one individual found time to 

spread salt on the travelway near one of the exterior doors. Clearly it was practicable to do so, 

3

The current surface metal/non-metal standard is located at 30 C.F .R. § 56.11016. 

32 FMSHRC Page 17 41 
yet it had not been done. Light, dry snow can be easily removed from walking surfaces with a 

broom. For the above reasons, lfind that a technical violation of section 77.205( d) did occur. 

C. Si&nificant and Substantial, Gravity and Ne&liience 

At the outset ofthis analysis I note that snow is an extremely common occurrence in the 

region where this mine is located. The cited standard does not differentiate between trace 

amounts of snow, as were present in this instance, and amounts which could reasonably pose a 

hazard. I credit the testimony of Mr. Mayo that th~ snow was dry and powdery so that it 

contained very little moisture.· For reasons that follow, I find that the violation discussed above 

was not S&S and that the gravity was very low. 

An S&S violation is described in section 104( d)(l) of the Act as a violation "of such 

nature as could significantly and substantially contribute to the cause and effect of a coal or other 

mine safety or health hazard." A violation is properly designated S&S "if, based upon the 

particular facts surrounding that violation, there exists a reasonable likelihood that the hazard 

contributed to will result in an injury or illness of a reasonably serious nature." Cement Div., 

Nat'! Gypsum Co;, 3 FMSHRC 822, 825 (Apr. 1981) .. 

The Commission has explained that: 

In order to establish that a violation of a mandatory safety standard 

is significant and substantial under National Gypsum, the Secretary 

of Labor must prove: (1) the underlying violation of a mandatory 

safety standard; (2) a discrete safety hazard - that is, a measure of 

danger to safety- contributed to by the violation;· (3) a reasonable 

likelihood that the hazard contributed to will result in an iajury; . 

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)·(footnote omitted); see.also, Buck Creek Coal, 

Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Secretary of Labor; 861 · 

F.2d 99, 103-04 (5th Cir. 1988), affg Austin Power, Inc., 9 FMSHRC2015, 2021(Dec.1987) 

(approving Mathies criteria). · 

In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985), the Commission 

provided additional guidance: 

We have explained further thatthe third element of the Mathies 

formula "requires that the Secretary establish a reasonable 

likelihood that the hazard contributed to will result in an event·in 

which there is an injury." U.S. Steel Mining Co., Inc., 6 FMSHRC 

1834, 1836 (August 1984). We have emphasized that, in 

32 FMSHRC Page 1742 
aecordance with the language of section 104(d)(l), it is the 

contribution of a violation to the cause and effect of a hazard that 

must be significant and substantial. US. Steel Mining Co., Inc., 6 

FMSHRC 1866, 1868 (August 1984); US. Steel Mining Co., Inc., 

6 FMSHRC 1573, 1574-75(July1984). 

This evaluation is made in terms of "continued normal mining operations." US. Steel, 6 

FMSHRC at 1574. The question of whether a particular violation is S&S must be based on the 

particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988); 

Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987). 

As discussed above,Tfind that a violation of the cited mandatory safety standard did 

occur. Further, I find that a discrete safety hazard contributed to by the violation did exist, i.e~, 

the danger of injuries caused by a slip-and-fall accident on the accumulated snow and ice. 

However, I find that the Secretary has not met her bl.lrden with regard to the third element of the 

Mathies formula. The evidence indicates that the accumulated snow and ice were not extensive. 

The snow was dry and powdery, which means that it was not particularly slippery at low 

temperatures. Further, the surface of the travelways was level and the rough nature of the ground 

underneath the snow provided substantial traction such that a slip-and-fall, while possible, was 

not reasonably likely to occur'. I do not credit the testimony of Inspector Hamilton that the scuff 

marks he observed in the tracks on the travelways indicated that.someone had slipped in the. . 

snow. The inspector did not demonstrate any expertise in the interpretation of footprints in 

snow. It is more likely that the scuff marks behind the footprints were caused by coveralls that 

were dragging in the snow. The miner or miners who left those tracks could also have simply 

been dragging their feet. 

'·· 

With regard to the ice near the main entrance, I credit the testimony of Mayo and find that 

the ice on the step was at the very edge of the step and mostly on the rise, i.e., non-walking 

surface, of the step. The light above the main entrance was attached to a vertical surface that was 

directly above and along the same plane as the rise of the step. Given the location of the ice on 

the non-walking surface of the step, I find it unlikely that an individual would slip on the ice and, · 

in turn, very unlikely that any slip would result in an injury. Finally, I credit the testimony of 

Myers and find that the ice and dirt mixture that had accrimulated in the grating near the. 'back 

entrance did not present a hazard that could reasonably be expected to result in an injury. Ex. R1, Photo 7. Myers explained that the mixture had accumulated in the grating as miners used the 

grating to scrape the mud off of the bottom of their boots. The dirt in the mixture provided 

traction such that a slip-and-fall was unlikely to occur. For the above reasons, I find that the 

violation was not S&S. In addition, I find that the gravity should be modified to reflect that an 

injury or illness was unlikely. 

I further find that Caballo 's negligence was moderate. The violation did not create a 

hazard to elllployees. Dry, light snow is quite common in Wyoming, Caballo's management and 

32 FMSHRC Page 1743 
its miners genuinely believed that the cited condition did not create a hazard and did not violate 

the safety standard. Nevertheless, Myers advised the inspector on December 23, following 

their discussion of the accident at the North Antelope Rochelle Mine, that the sn.ow would be 

removed. Caballo's failure to remove or apply salt to the snow and ice demonstrated a lack of 

reasonable care. 

: II. APPROPRIATE CIVIL PENALTY 

Section 11 O(i) ~f the Mine Act sets forth the criteria to he considered in determining an 

appropriate civil penalty. The record shows that Caballo had 36 paid violations at this facility 

during the two years preceding December 24, 2008. (Ex. P-4). Three of these violations were 

S&S. Caballo produced 31, 172,396 tons of coal in.2008. Caballo Coal Company, Inc. is a large 

operator. The penalty as~essed in this decision will not affect the operator's ability to continue in 

business. The violation was abated in good faith. My gravity and negligence findings are set .. 

forth above. Based on the penalty criteria,J find that a penalty of$100.00 is appropriate. 

m. ORDER 

For the reasons set forth above, Citation No. 6686966 is MODIFIED to delete the S&S 

determination and to reduce the.gravity to ''unlikely." Caballo Coal Company, Inc., is. 

ORDERED TO PAV the Secretary of Labor the sum of $100.00within 30 days of the date of 

this decision.4 ·· 

Distribution: 

Richard W. Manning 

Administrative Law Judge 

Ronald F. Paletta, Conference and Litigation Represeptative, Mine Safety and Health 

Administration, 45 East 1375 ~outh, Price, UT 84501 (Certified Mail) 

Duane Myers, Caballo Coal Company, 2298 Bishop Road, Caller Box 3401,, Gillette, WY 

82717-3041 (Certified Mail) . 

RWM 

4

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

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

32 FMSHRC Page 1744 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

721 19th STREET, SUITE 443 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

KNIGHT HA WK COAL, LLC 

Respondent 

DENVER, CO 80202-2500 

303-844-5267 /FAX 303-844-5268 

November 17, 2010 

... 

DECISION 

CIVIL PENALTY PROCEEDINGS 

Docket No. LAKE 2009-523 

A.C. No. 11-03143-187455 

Mine: Prairie Eagle 

Docket No. LAKE 2009-501 

A.C. No. 11-03162-184600 

Mine: Royal Falcon Mine 

Docket No. LAKE 2009-438 

A.C. No. 11-03143-181532 

Mine: Prairie Eagle 

Appearances: Matthew.Linton, Office·ofthe Solicitor, U.S. Department of Labor, Denver, 

Colorado for the Petitioner 

Mark Heath, Spilman Thomas & Battle, PLLC, Charleston, 

West Virginia for Respondent. 

Before: Judge Miller 

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 ("MSHA"), against Knight 

Hawk Coal, LLC., pursuant to sections 105 and 110 of the Federal Mine Safety and Health Act 

of 1977, 30 U.S.C. §§ 815 and 820 (the "Mine Act"). The cases involve the three dockets listed 

above, containing a total of nine violations, all of which settled at the time of the hearing. The 

total penalty assessed for the dockets is $31,402.00. The citations were issued by MSHA under 

section 104(a) of the MineAct at the Prairie Eagle mine and at the Royal Eagle Mine. The 

parties presented the settlement proposal at the hearing held on October 26, 2010 in Evansville, 

Indiana. 

Knight Hawk Coal, LLC, ("Knight Hawk") is the owner and operator of the Prairie Eagle 

Mine and the Royal Falcon Mine. The mine agrees that it is subject to the jurisdiction of the 

Mine Safety and Health Administration and the Administrative Law Judge has jurisdiction to 

issue this decision. (Tr. 5). In March and April of 2009 MSHA inspectors conducted a regular 

32 FMSHRC Page 1745 · 
inspection of the Prairie Eagle Mine and the Royal Falcon Mine. As a result of the inspection, 

the citations contested herein were issued. 

Docket No. Lake 2009-438: Prairie Eagle Mine 

The parties reached an agreement and entered the following stipulation on the record. 

The originally proposed assessment amount for the docket is $724.00. 

Citation No. 6679874: the parties agree that no modification is made to the citation but 

the Secretary has agreed to modify the penalty from $362.00 to $308.00. 

Citation No. 6679875: the parties agree that no modification is made to the citation but 

the Secretary has agreed to modify the penalty from $362.00 to $308.00. 

Docket Lake 2009-501: Royal Eagle Mine 

The originally proposed assessment amount for the docket is $1,333.00. 

Citation No. 6680512:the parties agree that no modification is made to the citation but 

the Secretary has agreed to modify the penalty'from $1,026.00 to $872.00. 

Citation No. 6680515: the parties agree that no modification is made to the citation but 

the Secretary has agreed to modify the penalty fro:t;n $207.00 to $176.00. 

Citation No. 6680516: the parties agree that no modification is made to the citation and 

the Respondent agrees to pay an amended penalty of 2,276.00. 1 

Docket No. 'Lake 2009-523: Prairie Eagle Mine 

The originally proposed assessment amount for the docket is $26,767.00 

Citation No. 8417042: the parties agree that no modification is made to the citation but 

the Secretary has agreed to modify the penalty from $9,882.00 to $2,470.00. 

Citation No. 8417043: the Secretary agrees to reduce the violation to non S&S to modify 

it to ''unlikely" and reduce the original penalty of $8,893 to $800.00. 

Citation No. 8417044: the parties agree that no modification is made to the citation but 

the Secretary has agreed to modify the penalty from $3,996.00to $3,000. 

1

Tbis file originally contained citation No. 6680514 and not 6680516. Citation No. 6680514 has 

been paid and, instead, the docket has been amended to include Citation No. 6680516. 

32 FMSHRC Page 1746 
Citation No. 8417045: the Secretary agrees to reduce the violation to non S&S and 

reduce the proposed penalty from $3,996.00 to $500.00. 

PENALTY 

The principles governing the authority of Commission administrative law judges to 

assess civil penalties de novo for violations of the Mine Act are well established. Section 110( i) 

of the Mine Act delegates to the Commission and its judges "authority to assess all ciyil 

penalties provided in [the] Act." 30 U.S.C. § 820(i). The Act delegates the duty of proposing 

penalties to the Secretary. 30 U.S.C. §§ 815(a), 820(a). Thus, when an operator notifies the 

Secretary that it intends to challenge a penalty, the Secretary petitions the Commission to assess 

the penalty. 29 C.F.R. § 2700.28. The Act requires, that "in assessing civil monetary penalties, 

the Commission [f\LJ] shall consider" six statutory penalty criteria: 

[1] the operator's history of previous violations, [2] the 

appropriateness of such penalty to the size of the business of the 

operator charged, [3] whether the operator was negligent, [ 4] the 

effect on the operator's ability to continue in business, [5] the 

gravity of the violation, and [ 6] the demonstrated good faith of the 

person charged in attempting to achieve rapid compliance after 

notification of a violation. 

30 u.s.c. § 820(i) ... 

I accept the stipulation of the parties that the penalties proposed are appropriate to this 

operator's size and ability to continue in business and that the violations were abated in good 

faith. The history of each mine is typical for a mine of its size. The size of the operator is 

small. I accept the Secretary's proposed modification of the penalties based upon the 

information presented regarding the reduced negligence for the citations as discussed above. 

Further, I find that the Secretary has established the gravity as described in the citation or as 

modified and assess the following penalties as agreed by the parties: 

Docket No. Lake 2009-418: 

Citation No. 6679874 

Citation No. 6679875 

Docket Lake 2009-501: 

Citation No. 6680512 

Citation No. 6680515 

Citation No. 6680516 

$308.00 

$308.00. 

$872.00 

$176.00. 

$2,276.00 

32 FMSHRC Page 1747 
Docket No. LAKE 2009-523: 

Citation No. 8417042 

Citation No. 8417043 

Citation No. 8417044 

Citation No 8417045 

Total for allofthe dockets: 

$2,470.00 

$800.00 

$3,000.00 

$500.00 

$10,710.00. 

ORDER 

Based on the criteria in section l lO(i) of the Mine Act, 30 U.S.C. § 820(i), I assess the 

penalties listed above for a total penalty of $10, 710.00 and Knight Hawk Coal, LLC, is hereby 

ORDERED to pay the Secretary of Labor the sum of$10,710.00within 30 days of the date of 

this decision. 

Distribution: 

Matthew Linton, Office of the Solicitor, U.S. Department of Labor, 1999 Broadway 

Suite 800, Denver, CO 80202-5708 · 

Mark Heath, Spilman Thomas & Battle, PLLC, P.0 Box 273, Charleston, 

WV 25321-0273 

32 FMSHRC Page 1748 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

601 New Jersey Avenue, NW, Suite 9500 

SECRETARY OF LABOR, 

MINE SAFETY HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

JEPPESEN GRAVEL, 

Respondent 

Washington, DC 20001-2021 

November 18, 2010 

CIVIL PENALTY PROCEEDINGS 

Docket No. CENT 2008-438-M. 

A.C. No. 13-02285-145467 

Docket No. CENT 2008-565-M 

A.C. No. 13-02285-149527-01 

Docket No. CENT 2008-785-M 

A.C. No. 13-02285-162467 

. Mine: Jeppesen Pits 

DECISION 

Appearances: Jamison Poindexter Milford, Esq., Office of the Solicitor, U.S. Department of Labor, 

Kansas City, Missouri, on behalf of the Petitioner; 

Jay A. Jeppesen, Sibley, Iowa, prose. 

Before: Judge Melick 

These cases are before me upon petitions for civil penalty filed by the Secretary of Labor 

pursuant to Section 105(d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et 

seq., ("Act"), charging Jeppesen Gravel (Jeppesen) with violations of mandatory standards and 

proposing civil penalties for those violations. 1 The general issue before me is whether Jeppesen 

violated the cited standards and, if so, what is tile appropriate civil penalty to be· assessed in 

accordance with Section 110 of the Act. Additional specific issues are addressed as noted. 

Jeppesen Gravel is the sole proprietorship ofJay Jeppesen. His business primarily involves 

excavation, tree removal, demolition and the haulage of fill dirt and gravel. The record shows that 

during 2007, the calendar year at issue, he devoted only six hours to mining. At the initial hearings 

on August 25, 2009, Mr. Jeppes~ stipulated to the violations c;harged in the citations and orders at 

issue herein. He further stipulated·.to the gravity, "significant and substantial", negligence and 

"unwarrantable failure" findings made therein. At hearings, Mr. Jeppesen also stated that he was, 

as a preliminary matter, first challenging the Secretary's jurisdiction under the Act to cite the 

1 A motion for partial settlement of a number of citations was submitted before hearings 

in which an 80% across-the-board reduction in penalties was approved based solely on the 

financial condition of the operator. 

32 FMSHRC Page 1749 
Caterpillar front end loader at issue. Alternatively; assuming that the Secretary has jurisdiction under 

the Act, he was challenging the amount of civil penalties proposed by the Secretary for these 

violations. In particular, he maintained that the proposed penalties for the five violations remaining 

at issue will effectively bankrupt him. 2 

Following the initial hearings and reviewing the evidence of record, it was apparent that 

additional evidence was necessary to determine whether all of the proffered stipulations were 

supported by evidence. In particular , it appeared that the unrepresented Respondent did not fully 

comprehend the complex legal concepts of"significant and substantial" and ''unwarrantable failure." 

Accordingly, subsequent hearings were held to permit additional evidence limited to the issues of 

whether the violations were "significant and substantial" and whether the violation charged in Order 

No. 7840434 was the result ofRespondent's ''unwarrantable failure." 

Jurisdiction 

As noted, Respondent maintains that the Caterpillar model 966C front end loader cited in 

each of the charging documents at issue was not subject to the Secretary's jurisdiction as not within 

the scope of the Act. However, under Section 3(h)(l) of the Act, "coal or other mine" means (A) 

an area of land from which minerals are extracted in non-liquid form and .... (B) private ways and 

roads appurtenant to such area, and (C) ... equipment, [or] machines ... used in, or to be used in, or 

resulting from, the work of extracting such minerals from their natural deposits in non-liquid 

form .... " 

Based on the undisputed allegations in the charging documents at bar as well as the 

corroborated testimony of Inspectors Jeffrey Hornback, James Hines, and William Owen of the 

Department of Labor's Mine Safety and Health Administration ("MSHA"), it is clear that the cited 

966C front end loader was bein:g used at the time of the issuance of these charging documents in a 

private way and/or road appurtenant to the area where a mineral (gravel) was extracted. It was 

loading processed gravel from the gravel stockpile into dump trucks for removal from the mine 

(Exhibit R-7). The front end loader was also "equipment" or a "machine" performing a function 

(loading) that resulted from the work of extracting a mineral. Respondent does not dispute that the 

cited loader was used in this manner and was located in the position depicted on Exhibit R-7 as 

"loader." Within this :framework of evidence and law it is clear that the cited loader was being used 

in an area and in a manner bringing it within the scope of the Act. Accordingly, Respondent's claim 

that the Secretary lacked jurisdiction is denied. 

In reaching this conclusion I have not disregarded Mr. Jeppesen's argument that he can, in 

essence, carve out or segregate his loading activities from his other operations. However the 

Commission specifically rejected such an approach in Mineral Coal Sales, Inc., 7 FMSHRC 615 at 

2 These penaltieswere proposed by the Secretary in accordance·with the mandatory 

minimum penalties prescribed by the 2006 Miner Act for "Section 104( d)" citations and orders. 

See Section l 10(a)(3) of the Act. 

32 FMSHRC Page 1750 
620-21 (May 1985) in which it held that: 

In examining the "nature of the operation" performing work activities listed 

in section 3(i), [of the Act]; the operations taking place at a single site must 

be viewed as a collective whole. Otherwise, facilities could avoid Mine Act 

coverage simply by adopting separate business identities along functional 

. lines, with each perfonn:i:hg only some part of what, in reality, is one 

operation. · This approach is particularly appropriate in the present case in 

view of the pervasive intermingling ·of personnel and functions among 

entities that sporadically operated at the facility, with little or no apparent 

· regard for business or contractual formalities. 

Within this framework oflaw I conclude that Jeppesen cannot carve out from the Secretary's 

jurisdiction under the Act his act ofloading, with his own front end loader, his stockpiled gravel next 

to his processing plant into trucks for transport and sale. It is an integral part of his overall mining 

operation. 

Alleged Violations 

Citation Number6198325, issued September24, 2007, pursuantto Section 104(d)(l) of the 

Act alleges a "significant and substantial" violation of the standard at 30 C.F.R. § 56.14130 (h) and 

charges that the violation was the result of''reckless disregard" negligence.3 The citation charges 

3 Section 104(d) of the Act provides as follows: 

( 1) If, upon any inspection of a coal or other mine, an authorized representative ofthe 

Secretary finds that there has been a violation of any mandatory health or safety standard, 

and ifhe also finds that, while the conditions.created by such violation do not cause 

imminent danger, such violation is of such nature as could significantly and substantially 

contribute to the cause and effect of a coal or other mine safety or health hazard, and if he. 

finds such violation to be caused by an unwarrantable failure of such operator to comply 

with such mandatory health or safety standards, he shall include such finding in any 

citation given to the operator under this Act. If, during the same inspection or any 

subsequent inspection of such mine within 90 days after the issuance of such citation, an 

authorized representative of the Secretary finds another violation of any mandatory h~alth 

or safety standard and finds such violation to be also caused by an unwarrantable failure 

of such operator to so comply, he shall forthwith issue an order requiring the operator to 

cause all persons in the area affected by such violation, except those person referred to in 

subsection ( c) 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. 

(2) If a withdrawal order with respect to any area in a coal or other mine has been issued 

32 FMSHRC Page 1751 
as follows: 

The seat belt was not properly installed on the Cat 966 C front end loader SIN 

7613644. The seat belt order cited; date 08/24/2006 # 6181901 was abated 

for the front end loader being removed from the mine property. When the 

. citation was terminated the mine operator was informed in writing by 

registered mail that the violation .still existed but was being terminated 

because of the equipments removal from that mine site. Further, the operator 

was informed that they were· required to repair the seat belt prior to working 

the machine at the.mine site. The co-owner stated that this is the only loader 

they own and that there is [sic] no moneys available to repair or replace the 

machine. By returning this loader to the mine site and loading trucks from 

the stockpiles, the mine operator has engaged in aggravated conduct 

constituting more .. · than ordinary negligence.. . This violation is an 

unwarrantable failure to comply with a mandatory standard. 

The cited standard, 30 C.F.R. § 56.14130(h), provides as follows: 

Seat belts construction. Seat belts required under this section shall meet the 

requirement of SAE J386, "Operator Restraint System for Off-Road Work 

Machines" (1985, 1993, or 1997), or SAE Jl 194, "Roll-Over Protective 

Structures (ROPS) for Wheeled Agricultural Tractors" (1983, 1989, 1994, or 

1999), as applicable, which are incorporated by reference. 

SAE J386 "Operator Restraint System for off-Road Work Machines" June 1985 provides at 

section 5.2.5 that "there must be no rupture release or other failure of any element in the 

operator's restraint system .... " 

MSHA Inspector J effreyHomback testified that he issued the subject citation on September 

24, 2007 when -he observed that the safety belt on the cited CAT 966C front-end loader was 

improperly instalfed. According to Hornback, the retractor spring was broken outside ofits housing 

and would not permit the seatbelt to pull freely from the retractor. As a result, ihe seatbelt would 

not pull tip to latch. 

The Secretary alleges that the violation was "significant and substantial". A violation is 

properly designated as "significant and substantial" if; based on the particular facts surrounding that 

pursuant to paragraph (I), a withdrawal order shall promptly be issued by an authorized 

representative of the Secretary who finds upon any subsequent inspection the existence in 

such mine.ofviolations similar to those thatresulted in the issuance of the withdrawal 

order under paragraph (l) until such time as an inspection of such mine discloses no 

similar violations. Following an inspection of such mine which discloses no similar 

violations, the provision of paragraph (l) shall again be applieable to that mine. 

32 FMSHRC Page 1752 
yiolation, there exists a reasonable likelihood that the hazard contributed to will result in an injury 

or illness of a reasonably serious nature. Cement Division, National Gypsum Co., 3 FMSHRC 822, 

825 (April 1981). In Mathies Coal Co., 6 FMSHRC 1, 3-4 (January 1984), the Commission 

explained: 

In order to establish that a violation of a mandatory standard is significant and 

substantial under National Gypsum the Secretary must prove: (1) the 

underlying violation of a man~tory 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 injury and ( 4) a reasonable likelihood that the injury in question will be of 

a reasonably serious nature. 

See also Austin Power Co. v. Secretary, 861F.2d99, 103-04 (5th Cir. 1988), ajf'g 

9 FMSHRC 2015, 2021(December1987) (approving Mathies criteria). 

The third element of the Mathies formula requires that the Secretary establish a reasonable 

likelihood that the hazard contributed to will result in an event in which there is an injury. U.S. Steel 

Mining Co., 6 FMSHRC 1834, 1836 (August 1984), and also that the likelihood of injury be 

evaluated in terms of continued normal mining operations. U.S. Steel Mining Co., Inc., 6 FMSHRC 

1573, 1574(July1984). See also Halfway, Inc., 8 FMSHRC 8, 12 (January 1986); Southern Ohio 

Coal Co., 13 FMSHRC 912, 916-917 (June 1991). 

fu this· regard, Inspector Hornback opined that, without an operable seatbelt, there was a 

reasonable likelihood that th~ operator would fall out of the cab and be injured. He noted that 

MSHA' s statistics demonstrate that not wearing a seatbelt has resulted inmany fatalities throughout 

the mining industry. More particularly, the inspector testified that if you are operating the loader on 

uneven ground traveling roadways that are not paved and not wearing a seatbelt, you could 

reasonably expect the operator could.be injured during aroll over situation . He noted in this regard 

that the mine surface was not level and there were dips and valleys and a large ditch ·On the property. 

Hornback noted that when the loader operator is ejected, he is not thrown beyond the cab structure 

and thereby gets crushed by the loader. Within this framework of evidence, I conclude that, indeed, 

without an operable seatbelt, the loader operator was reasonably likely to be ejected from the cab of 

the loader and suffer serious if not fatal injuries. The violation was therefore "significant and 

substantial" and of high gravity. 

fu reaching this conclusion, I have not disregarded Mr. Jeppesen' s testimony that on the date 

the citation was issued, September 24, 2007, the cited loader was being used only to load trucks from 

the stockpile. Jeppesen claims that at that time, the loader was not being driven up the feed ramp. 

While theloader was nevertheless available to drive up the feed ramp and since other hazards such 

as the uneven ground existed, it is clear that the violation charged herein was, under a:Jl the 

circumstances, "significant and substantial" and of high gravity. 

The violation was also found to have been the result of Jeppesen's ''unwarrantable failure" 

32 FMSHRC Page 1753 
and high negligence. Unwarrantable failure is "agw.avated conduct, constituting more than ordinary 

negligence, by a mine operator in relation to a violation of the Act." Emery Mining Corp., 9 

FMSHRC · 1997, 2004 (Dec. 1987). Unwarrantable failure is characterized by such conduct as 

"reckless disregard," "intentional misconduct," "indifference," or a "serious lack ofreasonable care." 

Id. at 2003-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 193-94 (Feb. 1991). See also 

Rock of AgesCorp. v. Seeretaryo/Labor; 170F.3d148, 157 (2d Cir. 1999);BuckCreekCoal, Inc. 

v. MSHA, 52 F.3d 133, 136 (71h Cir. 1995) (approving Commission's unwarrantable failure test). 

Moreover, the Commission has examined the conduct of supervisory personnel in detennining 

unwarrantable failure and recognized that a heightened standard of care is required of such 

individuals. See Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2011 (Dec. 1987) (section 

foreman held to demanding standard of care in safety matters); S&H Mining, Inc., 17 FMSHRC 

1918, 1923 (Nov. 1995) (heightened standard of care required of section foreman and mine 

superintendent). 

Considering the prior citations and warnings issued to mine owner himself, the violation 

herein was clearly the result of his unwarrantable failure and high negligence. 

Order Number 6198326, also issued on September 24, 2007, pur5uantto Section 104(d)(l) 

of the Act, alleges a "significant and substantial" violation of the standard at 30 C.F .R. § 56.14130( a) 

and charges that the violation was the result of "reckless disregard" negligence. The order charges 

as follows: 

Roll Over Protection was not pro:vided Cat 966 C front end loader s/n 

76J3644. The ROPS order cited; date 08/24/2006 # 6181902 was abated for 

the front end loader being removed from the mine property. When the 

· citation was terminated the mine operator was informed in writing by · 

registered mail that ·the violation still existed .. but was being terminated· 

because of the equuipments[ sic] removal from that mine site. Futher[ sic], the 

operator was informed that they were required provide Rops structure 

meeting all the requirements of this standard prior to working the machine at 

the mine site. The co-owner stated that this is the only loadertheyown and 

that there is [sic] no moneys available to repair or replace the machine. By · 

returning this loader to the mine site a:nd loading trucks from stockpiles, the 

mine operator has egaged [sic] in aggravated conduct constituting more than 

ordinary negligence. 

This violation is an unwarrentable[ sic] failure to comply with a mandatory standard. 

The cited standard, 30 C.F.R. § l4130{a) provides, iri relevant part, as follows: "(a) 

Equipment included. Roll-overprotective structures (ROPS)and seat belts shall be installed on .... (3) 

wheel loaders and wheel tractors .... 

According to Inspector Hornback, there was no "manufactured roll overprotective structure" 

provided on the cited loader. The inspector acknowledged that there was a steel cab structure on top 

32 FMSHRC Page 1754 
of the cited loader, but that it did not have a "certification" from the manufacturer. Hornbackfurther 

acknowledged that he could not testify regarding the level of protection provided by the existing cab 

and that a structural engineer would be required to make that determination. Thus, while itis dear 

that the cab on the cited loader did not have the proper manufacturer's certification, l find that there. 

was insufficient credible evidence presented by the Secretary to show what level of protection the 

cab did in fact provide. Without such information, it cannot be determined whether the violation was 

indeed "significant and substantial." Accordingly, the violation is affirmed without "significant and 

substantial" findings. For the same reasons I find that the Secretary has not sustained her burden of 

proving a high level of gravity with regard to this violation. Order Number 6198326 must 

accordingly be modified to a citation under section 104(a) of the Act. However, because of the 

existence of prior charges and notice to the operator regarding the same violation on the same loader, 

I find the operator chargeable with high negligence. 

Order Number 6198899 issued pursuant to Section 104(d)(2) of the Act, alleges a 

"significant and substantial" violation of the standard at 30 C.F.R. § 56.14130(h) and charges that 

the violation was the result of"reckless disregard" negligence. The order charges as follows: 

The seat-belt remains inoperable on the Caterpillar 966c front end loader 

serial #76J3644. On 08/24/2006 Citation #6181901 which addressed the 

inoperable seat-belt was terminated when the loader was removed from the 

mine site. On 09/24/2007 Citation #6198325 was issued· when again the 

loader was brought to the mine site and again the seat-belt was inoperable and 

again terminated upon removal of the loader from the mine site. In both of 

these cases, upon termination, the mine operator was informed in writing that 

return of this loader to the· mine site without repair of the cited condition 

could constitute a higher than ordinary negligence. On 11115/2007 the loader 

was again found on mine property with evidence showing it to have recently 

ran [sic] and it again being the only loader on site to be used for truck and 

material loading. By again returning this loader to the mine site without 

repairing the cited condition, the mine operator has engaged in aggravated 

conduct constituting more than ordinary negligence. This violation is an 

unwarrantable failure to comply with the mandatory standard. 

The loader may not be operated on the mine site until the cited condtion [sic] has been 

repaired and the order lifted by an authorized tepresentitve [sic] ofMSHA. 

MSHA Inspector James Hines issued this order on November 15, 2007 when he found that 

the seatbelt remained inoperable on the cited CAT 966-C loader. Hines testified that he tried to pull 

the seatbelt out but could not. The spring remained in a ball on the side of the seat and you could not 

move the seatbelt. (Gov. Ex. I 7). This is the same condition that had previously been reported. Hines 

followed the loader's tracks which showed the movement of the loader from the bank where the raw 

materials (sand and gravel) were removed. (Gov. Ex.18). The tire tracks from the loader were also 

observed between the processed material to the truck loading site. The tracks also indicated that the 

loader operated on a roadway passing an unbermed drainage ditch. The violation is clearly proven 

32 FMSHRC Page 1755 
as charged. 

· The Secretary also alleges that this violation was "significant and substantial." Inspector 

Hines observed that the loader had been working on uneven ground and near drop-offs and that 

should the loader overtravel, it could roll the large machine over. Hines also noted that there were 

no berms on the feed ramps and as the loader proceeds up the ramp to feed materials into the plant, 

the loader has to raise its bucket. As the bucket is lifted, the loader becomes more unstable and 

without a berm on the side of the feed ramps, it would be more likely to rollover, Hines opined that 

based on his experience, there was a reasonable likelihood that the operator would fall or be ~own 

out of the loader and sustain fatal injuries. Within this :framework of evidence, it is clear that the 

Secretary has met her burden of proving that the violation was "significant and substantial" and of 

high gravity. 

The Secretary also argues that the violatio11 was the result of the Respondent's 

"unwarrantable failure" and high negligence. There were two violations for inoperable seatbel~ on 

the subject loader, on August 24, 2006 and September 24, 2007. Jeppesen nevertheless continued 

to resume operation of the loader without an operable seatbelt. The violation herein was therefore 

clearly the result of unwarrantable failure and intentional misconduct. 

Order Number 6198900, issued on November 15, 2007, pursuant to Section 104( d)(2) of the 

Act, alleges a "significant and substantial" violation of the standard at 30 C.F .R. § 56 .14130( a) and 

charges that the violation was the result of "reckless disregard" negligence. The order charges as 

follows: 

Roll over protection has not yet been provided for the C~terpillar 966C front 

end loader Serial# 76J3644. This lack ofROPs was cited on 08/24/2006 and 

was terminated when the loader was removed from the mine site. On 

09/24/2007 Citation #6198326 was issued when again theloader was brought 

to the mine site and again the ROPs system was not provided and again 

terminated upon removal of the loader from.the mine site. In both of these 

cases, upon termination, the mine operator was informed in writing that 

return of this loader to the mine site without repair of the cited condition 

could constitute a higher than ordinary negligence. On 11/15/2007 the loader 

was again found on mine property with evide~ce showing it to have recently 

ran [sic] and it again.being the only loader on site to be used for truck and 

material loading. By again returning this loader to the mine site without 

repairing the cited condition, the mine operator has engaged in aggravated 

conduct constituting more than ordinary negligence. This violation is an 

unwarrantable failure to comply with a mandatory standard~ 

The loader may not be operated on the mine site until the cited condtion[ sic] has been 

repaired and the order lifted by an authoriz~ represent.itve[ sic] ofMSHA. 

During his insp~ction on November 15, 2007, Inspector Hines also observed that the cited 

32 FMSHRC Page 1756 
966 loader did not have what he asserted was a roll over protection system. He concluded that it did 

not have "roll-over protection" because a roll-over protection system is a" fairly massive steel 

structure." The steel cab on the cited loader was, in Hines' opinion, simply to protect the operator 

from the dust, noise, rain and snow. Hines did not however test the existing structure in any way to 

see what level of protection it might have provided in a roll-over situation. It is also noted that 

Inspector Hornback had previously testified that it would be necessary for a structural engineer to 

test the cab to make such a determination. Since it is not disputed that Respondent violated the cited 

standard, I find that there was a violation. However, without testing of the existing structure, it is not 

ascertainable what level of protection it did provide in the event of a rollover. Without such 

evidence, I cannot find that the Secretary has met her burden of proving that the violation was 

"significant and substantial" or of high gravity. Order No. 6198900 must accordingly be modified 

to a citation under section 104(a) of the Act. 

I do find however that the violation was a result of gross intentional misconduct. The 

Secretary has shown that the same equipment on two prior occasions had been operated and cited 

for not having certified rollover protection. 

·Order Number 7840434, also issued pursuant to Section 104( d)(2) of the Act, alleges· a 

"significant and substantial" violation of the standard at 30 C.F.R. § 56.14130(g) and charges that 

the violation was the result of "reckless disregard" negligence. The order charges as follows: . 

The loader operator observed operating the Caterpillar 966C front end loader was not 

wearing a seat belt. The loader was under a 104d2 order at this time for lack of a working 

seat belt and at the time of this issuance the seat belt remains inoperable. The loader is used 

to load trucks as· well as travel unbenned areas including a feed ramp approx. 5 foot in 

height. In addition, when cited, the left cab door was open increasing the level of danger to 

this operator and the likelihood if injury. These conditions expose this miner to the hazard 

of possibly over turning the loader or being thrown from the cab and being over traveled by 

this large machine. 

The mine operator had knowledge of the inoperable seat belt and both citations and orders 

have been written to him requiring the correction of this dangerous condition. Currently the 

loader is under a l 04d2 order and the operator aware the machine should not be ran [sic] 

(Order #6198899) until the seat belt is repaired. The mine operator has engaged in 

aggravated conduct constituting more than ordinary negligence knowing the seat belt remains 

inoperable and the loader continues to be used on site. 

The cited standard, 30 C.F.R. § 56.14130(g), provides, "(g) Wearing seat belts. Seat belts 

shall be worn by the equipment operator except that when operating graders from a standing 

position, the grader operator shall wear safety lines and a harriess in place of a seat belt." 

Inspector Hines issued this order on May 5, 2008 when he observed an individual operating 

the cited loader and not wearing a seatbelt. The loader operator was actually in the process ofloading 

from the stockpile onto a truck. The door to the loader was latched opened and Hines had a clear 

32 FMSHRC Page 1757. 
view of the operator in the cab without a seatbelt. Upon close examination, Hines observed that the 

retractor spring was still in a ball as it had existed at the time of the prior violation and the seatbelt 

remained inoperable. (Gov. Ex.22). As the operator exited the cab, he told Inspector Hines 

"obviously I wasn't wearing it." The violation is clearly proven as charged. Based on the prior 

testimony regarding the hazards in failing to use a seatbelt at this mine site, I find that the violation 

was also "significant and substantial" and of high gravity. It is also clear that the violation was the 

result of Respondent's "unwarrantable failure" and gross negligence. As noted by Inspector Hines, 

the same condition had been cited at least four or five times but the Respondent would merely 

remove the loader from the mine site toterminate the citations. Respondent would then later return 

the loader with the same inoperable seatbelt. 

Civil Penalties 

Under Section 11 O(i) of the Act, the Commission and its judges must consider the following 

factors in assessing a civil penalty: the history of violations, the negligence of the operator in 

committing the violation, the size of the operator, the gravity of the violation, whether the violation 

was abated in good faith and whether the penalties would affect the operators ability to continue in 

business. As noted, Jeppesen Gravel is the sole proprietorship of Mr. Jeppesen. The Commission 

has construed "the ability to continue in business" criterion as applied to sole proprietors as whether 

the proposed penalty would affect the proprietor's ability to meet his financial obligations; Secretary 

v. Unique Electric, 20 FMSHRC 1119, 1122(October1998). It is also noted that Section 110(a)(3) 

of the. Act qualifies and may supercede the provisions of section 11 O(i) by imposing mandatory 

minimum penalties for violations of section 104( d). 

The parties have stipulated as·follows with respect to the civil penalty criteria: 

Jay Jeppesen is the sole proprietor ofJ eppesen Gravel, and his only employee 

is his son, Alan. Mr. Jeppesen min~s gravel, as needed,. from a small gravel 

pit on property that he leases. Sometimes he runs the mined gravelthrough 

his plant to produce gravel for sale. He also produces gravel that is not 

processed in any way for use.as ballast under concrete. 

Respondent's History of Previous Violations: 

Jeppesen has no history of previous violations, as defined by 30 C.F.R. § 

100.3(c), with regard to any of the citations at issue in these consolidated 

dockets. Jeppesen was assessed no history penalty points with regard to 

calculating the penalty assessments in these cases. 

Appropriateness of the Penalties to the Size of the Business of the Operator: 

Jeppesen is a nonmetal mine. 30 C.F.R. § 100.3(b) provides that the size of 

a nonmetal mine is measured by hours worked. According to the evidence 

present by the Secretary, Jeppesen worked 16 hours in 2006, 6 hours in 2007, 

32 FMSHRC Page 1758 
and 23 hours in 2008. Jeppesen was assessed no "size of operator" penalty 

points with regard to calculating the penalty assessments in these cases. 

Demonstrated Good Faith of the Operator in Abating the Violations: 

Jeppesen was given a 10% penalty credit/reduction for good faith abatement, as defined in 

30 C.F.R. section 100.3(f), for the § 104(a) citations in Docket Nos. CENT 2008-438-M, 

CENT 2008-565-M, CENT 2008-566-M, CENT 2008-668-M, and CENT 2008-713-M. 

Jeppesen was given no credit for good faith abatei:nent for the citations in Docket No. CENT 

2008-785-M. 

The record shows that mining activities during the year in question (2007) were limited to 

six hours and it may reasonably be inferred that the cited front end loader was not being operated 

during the entire time. The size of Mr. Jeppesen's mine (calculated by hours worked) is also 

extremely small i.e. only six hours in 2007 and 23 hours in 2008. I further find that the proposed 

penalties would seriously affect Mr. Jeppesen' s ability to meet his financial obligations. He has met 

his burden of proof in this regard through creclible e~dence (Ex. R-1). Indeed, in recognition ofhis 

:financial condition, the Secretary agreed in the motion for partial settlement to reduce her proposed 

penalties for the settled citations by 80%. However, the mandatory minimum penalties set forth in 

section 110(a)(3) of the Act may supercede consideration of this factor. 

ORDER 

Citation No. 6198325 is affirmed as written and, pursuant to section 110 (a)(3) of the Act, 

Jeppesen Gravel is directed to pay the mandatory minimum penalty of $2,000.00 within 40 days of 

the date of this decision. Order No. 6198326 is modified to a citation under section 104( a) of the Act 

without ~significant and substantial" findings and, in recognition of the reduced gravity and the 

serious financial conditions of the operator (in effect, stipulated to by the Secretary in basing her 

80% reduction in penalties in the settlement motion). Jeppesen Gravel is directed to pay a civil 

penalty of $100.00 within 40 days of the date of this decision. 

Order Number 6198899 is affirmed and, pursuant to section 110 (a)(3) of the Act, Jeppesen 

Gravel is directed to pay the mandatory minimum penalty of$4,000.00 within 40 days of the date 

of this decision. Order No. 6198900 is modified to a citation under section 104( a) of the Act without 

"significant and substantial" findings and, in recognition of the reduced gravity and the serious 

financial condition of the operator, Jeppesen Gravel is directed to pay a civil penalty of $100.00 

within 40 days of the date of this decision. Order Number 7840434 is affirmed and, pursuant to 

32 FMSHRC Page 1759 
section 110 ( a)(3) of the Act, Jeppesen Gravel is directed to pay the mandatory minimum penalty o: 

$4,000.00 within 40 days of the date of this decision . 

Distribution: (Certified Mail) 

Jamison Poindexter Milford, Esq., Office of the Solicitor, U.S. Department of Labor, Two 

Pershing Square Building, Suite 1020, 2300 Main Street, Kansas City, MO 64108 

Jay A. Jeppesen, OWner, Jeppesen Gravel, 719 gm Street, Sibley IA 51249 

Ito 

3i FMSHRC Page 1760 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

721 19t11 Street, Suite 443 

Denver, CO 80202-2500 

303-844-3577 /FAX 303-844-5268. 

November 18, 2010 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTS 

ADMINISTRATION, (MSHA), 

Petitioner 

CIVIL PENALTY PROCEEDINGS 

Docket No. SE 2009-293-M 

A.C. No. 22-00035-167206 

v. 

Docket No. SE 2009-639-M 

A.C. No~ 22-00035-186663 

OIL-DRI PRODUCTION COMP ANY, Ripley Mine & Mill. 

Appearances: 

Before: 

DECISION 

Lydia A. Jones, Esq., Office of the Solicitor, U.S. Department of Labor, 

Atlanta, Georgia, for Petitioner; 

Larry R. Evans, Safety & Health Manager, Oil-Dri Corporation of 

America, Ochlocknee, Georgia, for Respondent. 

Judge Manning 

. These cases are before m~ on petitions for assessment of civil penalty filed by the 

Secretary of Labor, acting through the Mine Safety and Health Administration (''MSHA"), 

against Oil-Dri Production Company ("Oil-Dri") pursuant to sections 105 and 110 of the Federal. 

Mine Safety and Health Act of 1977, 30 U.S,C. §§ 815 and 820 (the ''Mine Act"). The parties 

introduced testiinony and documentary evidence at a hearing held in Memphis, Tennessee, and 

presented closing ar~ents. 

Oil-Dri operates a clay mine and mill in Tippah County, Mississippi. This facility 

employed an average of 60 people in 2008. The citations at issue in these cases were all issued at 

the mill, which is often referred to as the "plant" in this decision. These cases involve 17 

citations issued under section 104( a) of the Mine Act. The parties settled nine of the citations 

prior to the hearing, as discussed in more detail below. At the hearing, the representative for OilDri agreed that it was not contesting the gravity or negligence of any of the citations but only the 

fact of violation and whether the violation was of a significant and substantial nature ("S&S''). 

(Tr. 6-7, 176). 

32 FMSHRC Page 1761 
I. DISCUSSION WITH FINDINGS OF FACT 

CONCLUSIONS OF LAW 

A. Citation No. 7751806 

On July 30, 2008, MSHA Inspector Tim Schmidt issued Citation No. 7751806 under 

section 104(a) of the Mine Act alleging a violation of30 C.F.R. § 56.11012 as. follows: 

No railing was provided for the elevated travel way near the 

platform for the tail pulley of the takeaway belt. Miners travel to 

the platform approxiniately once a year to perform maintenance. 

This condition exposes miners to a fall of 4 feet to a concrete 

surface should they slip and fall from the unprotected opening. 

(Ex. G-2). The inspector determined that an injury was unlikely but that if an injury did occur it 

would result in lost workdays or restricted duty. He determined that the violation was not S&S 

and that the company's negligenc~ was moderate. Section 56.11012 provides that "[o]penings 

above, below, or near travelways through which persons or materials may fall shall be protected 

by railings, barriers, or covers." The Secretary proposes a penalty of $100.00 for this citation. 

Inspector Schmidt testified that he issued the citation because there was no railing for an 

elevated travelway near the bottom of the ladder-way leading to a work platform. The ladderway, which was constructed of fixed rails and was part of the structure supporting the work 

platform, was adjacent to a retaining wall with a four foot drop-off. This ladder-way provided 

access to the platform. (Tr. 16; Ex. G-3). He did not believe that an accident was likely because 

he was advised that miners would generally approach the ladder-way from a direction that was 

not near the unprotected edge. (Ti. 17). He issued the citation because a miner approaching the 

ladder-way to go up on the platform could walk next to the unprotected drop-off. (Tr. 19). At , 

the titne Schmidt conducted his inspection, the cited area consisted of uneven ground, which he 

believed presented a tripping hazard. On cross-examinatio~ Inspector Schmidt admitted that he 

was advised that employees do not walk near.the unprotected area. {Tr. 54-55). 

Lance White, an inspector-trainee, accompanied Inspector Schmidt. He testified that 

there was uneven ground, loose, unconsolidated rock, and vegetation along the travelway · · 

adjacent to the retaining wall. (Tr. 75) .. It is his understanding that miners only needed to get to 

the platform to perform maintenance on the tail pulley about once a year, but that they might 

need to access the platform more frequently if mechanical problems occur. (Tr. 76). 

Steve Gibens, packing and processing manager at the mill, testified for Oil-Thi. He stated 

that employees who work in the processing plant never travel in the cited area. (Tr. 122). Grease 

hoses are provided so that components can be greased without climbing up the ladder-way to the 

platform. The only employees who work on the platform are from the maintenance department. 

They must work on the platform to replace the belt. (Tr. 122). Steven Barnes is a journeyman 

32 FMSHRC Page 1762 
mechanic, miners' representative, and treasurer of the local union. (Tr. 159). He said that 

mechanics perform maintenance on the be.It and tail pulley from the work platform. He testified 

that mechanics access the platform from the road rather that from the area where the citation was 

issued. (Tr. 160). 

The Secretary argues that Inspector Schmidt took into consideration the fact that the cited 

travelway was not :frequently used when he determined that an accident or injury was unlikely 

and that the violation was not S&S. (Tr. 176). She states that the area cited by the inspector was 

a travelway even though it was infrequently used. She relies, in part, on Nolichuckey Sand 

Company, Inc., 22 FMSHRC.1057, 1059-61(Sept.2000). In that case, the Commission held that 

a judge's decision upholding MSHA' s treatment of a maintenance platform as a "travelway'' 

under section 56.14109 was consistent with the plain meaning of that term. Oil-Dri argues that 

the area cited by Inspector Schmidt was not a travelway as that term is defined by MSHA. The 

platform was "not approached" from the direction that would put employees near the hazardous 

area. (Tr. 185). 

In section 56.2, the Secretary defines the term "travelway'' as a "passage, walk, or way 

regularly used and designated for persons to go from one place to another." The issue in this case 

is whether the area cited by the inspectorwas "regularly used and designated" for persons to go 

from one place to another. 1 Here Oil-Dri is contending that the alleged travelway was neither 

regularly used nor designated for persons to go from one place to another. 

I find that the area cited by Inspector Schmidt was not a passage, walk, or way regularly 

used by persons to ,go frotn one place to another. I credit the testimony of Gibens and Barnes on 

this issue; They stated that when mechanics need to accf!SS the work platform for maintenance, 

they approach the work platform from the road. Mechanics do not travel by the cited area when 

approaching the work platform in this manner. No other employees go up on the work platform. 

In addition, the area cited was not designated for persons to·get from one area to another.· · 

Consequently, this citation is vacated. 

B. Citation No. 6068216 

On July 30~ 2008, MSHA Inspector Schmidt issued Citation No. 6068216 under section 

104{a) of the Mine Act alleging a violation of30 C.F.R. § 56.14107{a) as follows: 

1 In Nolichuckey Sand Co., the Commission applied a different definition of"travelway'' 

because the Secretary has defined that term differently as applied to "Subpart M- Machinery and 

Equipment." In Subpart M, at section 56.14000, the Secretary defined "travelway" as a "passage, 

walk, or way regularly used or designated for persons to go from one place to another." See also 

22 FMSHRC at l 060. I must assume that the Secretary intended that these two definitions to 

have different meanings; otherwise the definition at section 56.14000 serves no purpose since the 

definition at section 56.2 applies to all safety standards in Part 56. 

32 FMSHRC Page 1763 
Guards were not provided for the trunnion and truss roller on the 

new Ag kiln. An area guard was in place but individual moving. 

parts were not guarded. This condition is a hazard to miners 

should they travel inside the area guard and become entangled in 

the moving machine parts. Miners travel in the area once a month 

to do maintenance. 

(Ex. G-5). The inspector determined that an injury wa8 unlikely but that if an injury did occur it 

would be of a pennanently disabling nature. He determined that the violation was not S&S and 

thatthe company's negligence was moderate. Section 56.14107(a) provides that "[m]oving 

machine parts shall be guarded to protect persons from contacting gears, sprockets, chains, drive, 

head, and takeup pulleys, flywheels, couplings, shafts, fan blades, and similar moving parts that 

can causeinjuty." The Secretary proposes a penalty of $117;00 for this citation. 

Inspector Schmidt testified that the cited area was guarded by what he referred to as an 

"area guard." (Tr. 21 ). This guard acts as a barrier to prevent employees from getting close to 

the kiln, but maintenance personnel had to pass through a gate in the guard to perform their work 

from timetotime ... He testified that, for an area guard to be acceptable, the gate for the guard 

must be locked.to. prevent entry and the.gate must be equipped with an automatic switching 

device that will de-energize the equipment inside the gate. (Tr; 21, 57). He stated that . 

equipment inside the area guard was not individually guarded to prevent miners from becoming 

entangled in the moving parts. Inspector Schmidt also testified that he was told that miners must 

enter the area behind the guard about once a month to perform maintenance. {Tr. 24, 68). The 

inspector stated that the photographs he took during the inspection show the moving machine 

parts that are required to be individually guarded under the safety standard. {Tr. 25- 26; Exs. G7, G-8, and G-9). 

Mr. Gibens testified that the guards'. that were present around the kiln would prevent 

anyone from getting close to any machinery. (Tr. 124). No employee would be required to be in 

the area while the plant was operating. If any maintenance were required, mechanics would lock 

out and tag out the equipment before going inside the guards to the kiln. (Tr. 124, 142, 157, 

161 ). He further testified that other inspectors have inspected this same area of the plant and 

have.not issued citations under MSHA's guarding standard. (Tr. 124-25, 142-43). Mr. Gibens 

does not believe that the cited condition created a hazard to miners and MSHA has never 

designated it as a hazard in the past. (Tr. 125). 

The Commission interprets safety standards to take into consideration "ordinary human 

carelessness." Thompson Bros. Coal Co., 6 FMSHRC 2094, 2097 (Sept. 1984). In that case, the 

Commission held that the guarding standard must be interpreted to consider whether there is a 

"reasonable possibility of contact and. injury, including contact stemming from inadvertent 

stumbling or falling, momentary inattention, or ordinary human carelessness." Id. Human 

behavior can be erratic and unpredictable. For example, someone might attemptto perform 

minor maintenance or cleaning near an unguarded gear without first shutting it down. In such an 

32 FMSHRC Page 1764 
instance, the employee's clothing could become entangled in the moving parts and a serious 

injury could result. Guards are designed to prevent just such an accident. The fact that no 

employee has ever been injured by moving machine parts at the Ripley Mine and Mill is not a 

defense because there is a history of such injuries at mines, quarries, and mills throughout the 

United States. "Even a skilled employee may suffer a lapse of attentiveness, either from fatigue 

or environmental distractions .... " Great Western Electric Co., 5 FMSHRC 840, 842 (May 

1983). 

I find that the Secretary established a violation. The existing guarding was more like a 

fence than a guard for moving parts. Area or perimeter guarding does not comply with the safety 

standard. See, e.g. Walker Stone Company, Inc., 16 FMSHRC 337, 357 (Feb. 1994) (ALJ). 

Miners must enter the area about once a month to perform routine maintenance. ·These miners 

would be exposed to gears, rollers, and other moving parts. Individually guarding the trunnion 

and truss roller protects a miner who, through a lapse of judgment, enters the area without 

shutting down the operations. A penalty of $117 .00 is appropriate. 

C. Citation No. 6068218 

On July 31; 2008, MSHA Inspector Schmidtissued Citation No. 6068218 under section 

104(a) of the Mine Act alleging a violation of30 C.F.R. § 56.11001 as follows: 

Safe access was not provided to the ladders to the cooler tank belt 

and new Ag scrubber platform in the RVM cooler area~ Standing 

water and several inches [of] mud, with footprints and forklift 

tracks, were in a wide area, exposing the miners to slips, trips, and 

falls. 

(Ex. G-10). The inspector determined that an injury was reasonably likely and that if an iajury 

were to occur it would result in lost workdays or restricted duty. He determined that the violation 

was S&S and that the company's negligence was high. Section 56.11001 provides'that "[s]afe 

means of access shall be provided and maintained to all working places." The Secretary 

proposes a penalty of $1,304.00 for this citation. 

Inspector Schmidt testified ·that there was standing water and mud in one of the main 

milling areas of the plant. (Tr. 27; Ex. G-12; G-13). Miners had to walk through this area to 

access machinery and equipment. There were footprints showing that miners had walked 

through the slick, wet area. The footprints primarily went to and from ladder-ways and 

equipment in the area. The inspector testified that the violation created a slip-and-fall hazard to 

miners traveling in the area. (Tr. 28). If a miner were to fall, he would likely suffer strains, 

sprains, contusions, or broken bones. (Tr. 28, 32). Inspector Trainee White's testimony supports 

Inspector Schmidt's testimony. (Tr. 79-82). 

32 FMSHRC Page 1765 
InSpector Schmidt determined that the violation was S&S because the violation existed 

over a large area and there were numerous footprints through the mud. (Tr. 30, 53) .. The area 

was about 10 by 15 yards in size. The mud was two to three inches deep in some areas. (Tr. 30; 

Ex. G-12). He determined that the negligence was high because it was obvious that the mud had 

been there for some time and the operator had been cited numerous times for violations of the 

safety standard. (Tr. 30, 33, 60, 68). 

Mr. Gibens testified that the cited area is the low spot in the plant. When it rains, water 

gathers in that area. (Tr. 127). There is a sump in the area to drain the water. If mud collects in 

the area; it is washed out with a hose. (Tr. 128, 144-46). It had been raining heavily in the days 

preceding this inspection. (Tr. 157). Mr. Barnes testified that the area is cleaned up once or 

twice a week. (Tr. 162). The surface below the mud-and waterwas concrete. (Tr. 163). The 

area is accessed daily. (Tr. 171 ). · 

I find that the Secretary established a violation of the safety standard. Miners traveled 

through the area on a daily basis. The mud and water made the area hazardous with the result 

that safe access was not provided to working places. Oi-Dri argues·that the.condition should 

have been cited under the housekeeping standard at section 56.20003. While it is true that 

Inspector Schmidt could have cited that standard, he chose to cite section 56.11001 and I find 

that the conditions he observed violated section 56.11001. 

I also find that the Secretary established that the violation was S&S. An S&S violation is 

described in section 104( d)( I) of the Act as a violation ~'of such nature as could significantly and 

substantially contribute to the cause and effect of a coal or other mine safety or health hazard." A 

violation is properly designated S&S "if, based upon the particular facts surrounding that 

violation, there exists a reasonable likelihood that the hazard contributed to will result in an 

injury or illness of a reasonably serious nature." Cement Div.,Nat 'l Gypsum Co., 3 FMSHRC 

822, 825 (Apr. 1981). 

The Commission has explained that: 

In order to establish that a violation of a mandatory safety standard 

is significant and substantial under National Gypsum, the Secretary 

of Labor must .prove: ( 1) the ·underlying violation of a mandatory 

safety standard; (2) a discrete safety hazard. - that is, a measure of 

danger to safety- contributed to by the violation; (3) a reasonable 

likelihood that the hazard contributed to will result in an injury; 

and (4) a reasonable likelihood that the injury in question will be of 

a reasonably serious nature. 

Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); see also, Buck Creek Coal, 

Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Secretary of Labor, 861 

32 FMSHRC Page 1766 
F.2d 99, 103-04 (5th Cir. 1988), aff'g Austin Power, Inc., 9 FMSI:IRC 2015, 2021 (Dec. 1987) 

(approving Mathies criteria). 

fu U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985); the Commission 

provided additional guidance: 

We have explained further that the third element of the Mathies 

formula "requires that the Secretary establish a reasonable 

likelihood that the hazard contributed to will result in an event in 

which there is an injury." U.S. Steel Mining Co., Inc., 6 FMSHRC 

1834, 1836 (August 1984). We have emphasized that, in 

accordance with the language of section 104(d)(l), it is the 

contribution of a violation to the cause and effect of a hazard that 

must be significant and substantial. U.S. Steel Mining Co., Inc., 6 

FMSHRC 1866, 1868 (August 1984); U.S. Steel Mining Co., Inc., 

6 FMSHRC 1573, 1574-75 (July 1984). 

This evaluation is made in terms of"continued normal mining operations." U.S. Steel, '6 

FMSHRC at 1574. The question of whether a particular violation is S&S mustbe based on the 

particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988); 

Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007.(Dec. 1987). 

As discussed above, I find that a violation of the cited mandatory safety standard did 

occur. Further, I find that a discrete safety hazard contributed to by the violation existed. I also 

find that the Secretary met her burden with regard to the third element of the Mathies test. There 

existed a reasonable.likelihood that the hazard contributed to by the violation would result.in an 

injury, assuming continued mining operations. I credit the testimony offuspectotSchmidtas to 

the conditions that existed at the time of his inspection. There was standing water and a 

considerable amount of accumulated mud in an area that is frequently traveled. The concrete 

walking surface was very slippery. A miner could easily slip and fall. The injuries sustained 

would range from strains and sprains to broken bones. These types of injuries are of a reasonably 

serious nature and meet the fourth element of the Mathies test. A penalty of$1,304.00 is 

appropriate. 

D. Citation No. 6068226 

On July 31, 2008, MSHA Inspector Schmidt issued Citation No. 6068226 under section 

104(a) of the Mine Act alleging a violation of 30 C.F.R. § 56.14132(b)(2) as follows: 

The backup alarm on the Nissan 50 Optimum forklift was not 

audible above the surrounding noise. The forklift is used 

throughout the entire plant for maintenance work. This condition 

32 FMSHRC Page 1767 
exposes miners operating in or around the forklift to the hazard of 

not knowing of the forklift's intended rearward movement. 

(Ex. G-14). The inspector determined that an injury was unlikely but that if an injury did occur it 

would be of a permanently disabling nature. He determined that the violation was not S&S and 

that the company's negligence was moderate. The safety standard provides that "[a]larms shall 

be audible above the surrounding noise level." The Secretary proposes a penalty of$100.00 for 

this citation. 

Inspector Schmidt testified that the backup alarm on the cited forklift could not be heard 

above the ambient noise level. (Tr. 35). ·He testified that the forklift is required to be operated 

around some of the noisiest equipment in the plant such as blowers and dryers. ·He said that 

when the backup alarm was tested in his presence, he couldnot hear it. (Tr. 36, 61). Someone 

working near the forklift could suffer serious injuries if he could not hear the alarm and the 

forklift struck him. The inspector was advised that, when the forklift was examined by the 

equipment operator at the start of the shift, he could hear the backup alarm. The inspector 

believes that it was tested in an area where the ambient noise level was not as great. Inspector 

Schmidt determined that such an accident was unlikely, because the forklift was equipped with a 

strobe light that flashes. whenever it is operating. fd; 

Inspector Trainee White testified that some of the machinery used in the plant is loud and 

earplugs are required in some of those areas. (Tr. 83). The backup alarm could be heard in quiet 

areas, but not in the noisier areas .. White testified that he could not hear the backup alarm when 

it was tested until he walked quite close to it. (Tr. 83, · 89-90). 

Mr. Gibens testified that he was with InspectorBchmidt when the backup alarm was 

tested and he was able to hear it. (Tr. 129-30). He said that the inspector was standing a little 

further away from the forklift atthe time. (Tr. 146). Mr. Barnes also testified that he could hear 

the alarm when it was tested. (Tr. 163). He said he was standing behind the forklift. Oil-Dri 

abated.the condition by installing a new backup alarm. 

I find that the. Secretary established a violation. I credit the testimony of Schmidt and .. 

White that the backup alarm could not be heard above the ambient noise level when it was tested, 

unless you were standing right next to the forklift. The fact that the forklift was equipped with a 

strobe light does not eliminate the hazard because it flashes whenever the forklift is operating and 

not just when it is put into reverse. The citation and penalty are affirmed. 

E. Citation No. 6068238 

On August 2, 2008, MSHA Inspector Schmidt issued Citation No. 6068238 under section 

104(a) of the Mine Act alleging a violation of30 C.F.R. § 56.11012 as follows: 

32 FMSHRC Page 1768 . 
Three chained areas of the top rail of the railing around the stack 

testing platform were not in place. One chain was broken and 

another taped to the post. Contractors travel to the area once every 

two years to perform testing. This condition exposes miners to the 

hazard of a fall of approximately 50 feet. 

(Ex. G-16). The inspector determined that an injury was unlikely but that if an injury did occur it 

would be fatal. He determined that the violation was not S&S and that the company's negligence 

was low. The Secretary proposes a penalty of $100.00 for this citation. 

Inspector Schmidt testified that there was an elevated platform around the smoke stacks 

for the plant. (TL 38; Ex. G-). The platform had a railing around it, but some sections of the top 

railing were missing. In the areas with the missing railing, chains had been installed. One chain 

was not attached at one end because the clasp was broken and another chain was secured to the 

upright with duct tape. There were three areas that did not have a top railing around the 

platform. (Tr. 38-39; Exs. G-18, G-19, G-20). The platform was about 50 feet above the ground 

level. Oil-Dri representatives told the inspector that the platform is only used by a contractor 

who comes in every two years to test for emissions· from the smoke stacks. (Tr. 39). This 

platform provided the only access to the stacks. There were no barriers to prevent Oil-Dri 

employees from going up on the platform. (Tr. 42). The middle rail was present in all areas. 

The inspector determined that an accident was unlikely. He also determined that Oil-Dri's 

negligence was low because the platform is infrequently used. (Tr. 42, 62). Preshift 

examinations of the platform were not required because it is not a working place. (Tr. 62). The 

citation was abated by securing the chains over the opening. 

Mr. Gibens testified that the contractor had to remove the top rail .in the three cited 

locations in order to perform the stack testing. (Tr. 130). The testing ¢quipment hangs off the 

side in those locations. (Tr. 147). The chains were not replaced when the testing work was 

completed. (Tr. 147). The contractor's employees wear fall protection when they are up on the 

platform. Id. Gibenstestified that he has worked at the plant for 27 years and he has never been 

up on this platform because Oil-Dri employees have no need to· go up there. There is no 

equipment or machinery there. Mr. Barnes also testified that Oil-Dri's maintenance employees 

do not go up on this platform. (Tr. 164). 

Oil-Dri maintains that the cited platform is not a travelway, as that term is used in the 

safety standards. (Tr. 187). I find that a work platform can be considered to be a travelway. 

Nolichuckey Sand, 22 FMSHRC at 1059-61. As stated above, a walkway is defined as a 

"passage, walk, or way regularly used and designated for persons to go from one place to 

another." I find that the cited platform is ••designated" for persons to go from one place to 

another. The contractor employees must walk along the platform to do their testing at the three 

locations on the platform. Whether the platform is "regularly used" is a more difficult question. 

The evidence demonstrates that Oil-Dri employees do not use the platform. Nevertheless, I find 

that the employees of a contractor regularly walk alorig the platform to test for emissions. 

32 FMSHRC Page 1769 
Although these people do not walk on the platform on a :frequent basis, they do so on a regular 

basis. 2 Every two years the contractor performs emissions testing so that the facility can maintain 

its state license. I find that the Secretary establish~ a violation. fu the future, Oil-Dri need only 

make sure that the contractor replaces the chains.before its employees leave the platform. A 

penalty of $100.00 is appropriate. 

F. Citation No. 6068239 

On July 31, 2008, MSHA fuspector Schmidt issued Citation No. 6068239 under section 

104(a) of the Mine Act alleging a violation of 30 C.F.R. § 56.12047 as follows: 

Seven guy wires on three different power poles were not insulated 

according to the National Electrical Code. Guy wires· were 

attached to the poles above the level of energized high voltage 

· conductors. The. guy wires did not have insulators and were not 

. grounded to the' pole. 

(Ex. G-21 ). The inspector determined that an injury was unlikely but that if an injury were to 

occur it would be fatal. He determined that the violation was not S&S and that'the company's 

negligence was moderate .. The safety standard provides that "[g]uy wires of poles supporting 

high-voltage transmission lines shall meet the requirements for grounding or insulator protection 

of the National Electrical Code .... " The Secretary proposes a penalty of $224.00 for this 

citation. 

fuspector Schmidt testified that the cited power poles had guy wires that helped support 

the poles. (Tr. 44). The reason that-guy wires must be insulated or grounded is so that, in the 

event of an accident, the .guy wires do not become energized. The inspector testified that he did 

not observe·a. grounding wire or insulators for the guy wires on the power poles in question. (Tr. 

44-45; Exs. G-23, G-24, & G-25). He said that either of these safety components can ''typically" 

be seen from the ground. (Tr. 44). Given the conditions he observed; he believed that if one of 

guy wires were to break, it could become energized and electrocute someone. A guy wire could 

break if a vehicle struck it. The poles were near the plant parking area and they were within 15 

feet of traveled roadways. (Tr. 46). Miners have been killed at other mines when guy wires have 

broken. The testimony offuspector Trainee White is consistent with Inspector Schmidt's 

testimony. (Tr, 85-87, 90). 

Schmidt testified that he discussed this citation with company representatives at the time 

he issued it. Someone called the power company and was advised by Danny Caples that the guy 

wires on power poles in the area of the mine were not insulated or grounded. (Tr. 47; Ex. G-22). 

The citation was terminated by Inspector Morrison after the guy wires were insulated to abate the 

2 The term "regular" can be defined as "recurring or functioning at fixed or uniform 

intervals." Webster's New Collegi,ate Dictionary 966 (1979). 

32 FMSHRC Page 1770 
condition. Photographs taken by Inspector Morrison show insulators that were added to the guy 

wires. (Tr. 50; Ex. G-26 & G-27). · 

On cross-examination, Inspector Schmidt admitted that a grounding wire, colloquially 

referred to as a "butt ground," ran down the power poles. (Tr. 64; Exs. G-23, G-24 & G-25). 

Schmidt said that he did not see any wires connecting the guy wires to the butt ground wires on 

the power poles. (Tr. 66, 69-70). 

Mr. Gibens admitted that the guy wires were not insulated. (Tr. 131 ). Gibens testified 

that when a service technician from the power company came to the mine to abate the condition, · 

he told mine personnel that the guy wires were already grounded. (Tr. 132, 148). The technician 

came a few days after the inSpection. Gibens testified that Oil-Dri went ahead and had the 

insulators installed because the power company already had a work order to complete this work. · 

For some of the poles, the power company electrician simply made the wires connecting the guy 

wires to the butt ground more visible to someone standing on the ground. (Tr. 133, 150). Barnes 

testified that the wires connecting the guy wires to the butt ground were very difficult to see from 

ground level.· (Tr. 172-73). 

The parties do not dispute the fact that the National Electrical Code requires that guy 

wires be insulated or grounded on poles supporting high-voltage transmissfon lines. Oil-Dri does 

not dispute that the power lines in question were high-voltage transmission lines. Oil-Dri also 

admits that the guy wires were not insulated. The Secretary argues that the guy wires were not 

grounded at the time oflnspecto:r Schmidt's inspection. Oil-Dri put on evidence to show that, 

although the company did not know·it at the time of the inspection, the guy wires were grounded. 

It offered hearsay evidence that when the local power company sent an electrician to abate the 

violation, the electrician told company representatives that the guy wires were already grounded. 

Oil-Dri maintains that it had insulators installed because the power company's electrician was 

already at the site to install insulators. It argues that, in at least one instance, the electrician 

simply moved the existing ground wire to make it more visible from the ground level. 

There are significant conflicts in the testimony on this citation. On one hand, I can 

understand that it would be difficult to see whether a guy wire is properly grounded by simply 

looking up at the pole while standing on the ground. On the other hand, at the time of. the 

inspection, a representative of the power company advised Oil-Dri that the guy wires were not 

grounded or insulated at the plant. The evidence that the power company's electrician said that 

the guy wires Were already grounded when he came to abate the cited condition is hearsay. 

Although this is a close case, I credit the testimony of the two inspectors that the guy wires were 

not grounded to the butt wire. The citation is affirmed and a penalty of $224.00 is appropriate. 

G. Citation No. 6513295 

On April 29, 2009, MSHA Inspector Harold J. Wilkes issued Citation No. 6513295 under 

section l04(a) of the Mine Act alleging a violation of30 C.F.R. §46.12(a)(2) as follows: 

32 FMSHRC Page 1771 
The mine operator failed to provide information to. [an] 

independent contractor of [its] obligations to comply with [MSHA] 

regulations. Each production operator must provide information to 

each independent contractor who employs a person at the mine in 

site-specific mine hazards and the obligation to comply with 

· [MSHA] regulations.·. 

(Ex. G-29). The inspector determined that there was no likelihood of an injury or illness. He 

determined that the violation was not S&S and that the company's negligence w~ moderate. 

Section 46.12(a)(2) provides that "[e]ach production-operator must provide information to each 

independent contractor who employs a person at the mine on site-specific mine hazards and the 

obligation of the contractor to comply wi.th our, regulations, including the requirements of this 

part." The Secretary proposes a penalty of $100.00 for this citation. 

Inspector Wilkes testified that during his inspection of the plant he encountered 

contractors performing construction work at a buil4ing known as the perimeter building. (Tr. 

96). The contractor, Steel-Con, was installing siding on the recently constructed building. This 

building was behind the main plant and was between the shipping and maintenance buildings. 

There were seven Steel-Con employees at the mine that day. The inspector talked to Brent Ross, 

the project supervisor for Steel-Con, and was advised that be was not aware that Steel-Con's 

employees needed to have Part46 new miner training. (Tr: 97, 106). Mr. Ross stated that his 

crew did receive site-specific hazard awareness training from Oil-Dri. Inspector Wilkes testified 

that when he talked to Oil-Dri managers, he was told that, because the contractor's employees . 

would not be exposed to any mine hazards, the company determined that site-specific hazard 

training was all that was necessary. (Tr. 98). 

Inspector Wilkes. determined that Steel-Con's employees would be exposed to a number 

of mine hazards. The contractor employees had to cross an active railroad track to get from the 

parking lot to their work site.3 To get to their parts and tools trailer, the contractor employees 

had to walk across an open area in between some of the buildings at the plant where mobile 

equipment is operated and customer trucks travel. .(Tr. 99; Exs. G-31 & G-32). These 

employees also worked near operating conveyor.belts•carrying Oil-Dri'sproduct. (Tr. 101). He 

testified that, if the employees of Steel-Con had received new miner training, they would have 

been made aware of the hazards present in the plant environment. (Tr. 102- 05; Ex. G-33). 

Steel-Con had been working at the site for about two months. The employees of the contractor 

who had built the perimeter building, had been provided with new miner training and some of 

those employees were still working at the site. {Tr.· I 07). 

Mr. Gibens testified that site-specific safety awareness training is given to all contractor 

employees by Oil-Dri. (Tr. 134). These employees are also given a tour of the facility. Oil-Dri 

3 The contractor employees were instructed to use a parking lot that was away from the 

other work areas at the plant. 

32 FMSHRC Page 1772 
notifies contractors of its obligation to comply with MSHA regulations and safety standards on 

the requisitions it issues. Id. The requisition that was used to contract with Steel-Con states: 

Supplier shall be in compliance with all MSHA.regulations & Oil-· 

Dri policies at all times while on the job site. The Project Manager 

will advise ofrequirements and administer site-specific hazard 

training. 

(Tr. 134-35 ; Ex. R-M). 

The Secretary argues that mine operators are obligated to inform all independent 

contractors of their training obligations under the Mine Act and MSHA regulations. (Tr. 181). 

The Secretary contends that, given the nature of the work being performed by Steel-Con, Oil-Dri 

was obligated to advise SteeJ:-Con that their employees would be required to have new miner 

training before they could start their work.4 She maintains that, as a general matter, because 

construction workers will potentially be exposed to mining hazards, they are required to have 

new miner training. ·She contends that it is clear from the evidence that Steel-Con's employees 

were exposed to mining hazards. She relies, in part, on my decision in Spencer Quarries, Inc., 

32 FMSHRC 644, 648-50 (June 2010) (ALJ). In that decision, the.operator admitted that it did 

not advise a construction contractor that new miner training was required for its employees. Id. 

Oil-Dri argues that· it provided the required site-specific hazard training to the employees 

of Steel-Con. (Tr.188). The company alsoadvised Steel-Con on the requisition fonn thatit had 

to comply with all MSHA regulations. (Ex. R-'M). Prior to the start of work, Oil-Dri determined 

that new miner training was not required for Steel-Con's employees. 

I find that the Secretary established that the employees of Steel-Con were exposed to the 

hazards of the mining operations. The plant is, of course, part of the mine as that term is defined 

in section 3(h)(l) of the Mine Act. 30 U.S.C. § 803(h)(l ). The preponderance of the evidence 

shows that the employees were exposed to numerous hazards that were present at the plant; I 

credit the testimony of Inspector Wilkes in this regard. Although many of the hazards that SteelCon' s employees faced were similar to hazards they would face on other construction projects, 

the mining environment presents challenges that may not be present at other jobs. 

I also find that Steel-Con's employees were required to be provided with new miner 

training. Subsection (b) ·of section 46.12 makes clear that the independent contractor is primarily 

responsible for making sure that its employees have all the necessary MSHA-required training. 

Section 46.5 provides that each "new miner" must receive training in a number of subjects as 

specified in the regulation. The term "miner" is defined to include employees of independent 

4 Inspector Wilkes issued a section 104(g) order of withdrawal to Steel-Con for its failure 

to provide new miner training to its employees. (Tr. 109). 

32 FMSHRC Page 1773 
contractors ''who are engaged .in mining operations" and construction workers who are "exposed 

to hazards of mining operations," 30 C.F.R. § 46,2(g)(l).5 

The issue with respect to this citation is what sort of notice must the production operator 

provide to the independent contractor under.section 46.12(a)(2). The regulation simply states, as 

relevant here, that each production operator.must "provide information to each independent 

contractor" on the "obligation of the contractor to comply with" MSHA's regulations including 

the requirements of part 46. Thus, the regulation merely requires the production operator to 

"provide information" to the independent contractor. 

Oil-Dri contends that it provided all necessary information on the requisition form that 

was used to engage the services of Steel-Con. That form contained what appears to be boilerplate language that states that the contractor shall be "in compliance with all MSHA regulations." 

(Ex. R-M). The language goes onto state that the "project manager will advise of requirements 

and administer site-specific hazard training." 

This appears to be a case of first impression. My decision in Spencer Quarries did not 

address this issue. I find that the language in the requisition form did not provide sufficient 

information to Steel-Con regarding its obligation t~ comply with MSHA's training regulations. 

Simply putting stock language on a form advising all contractors that they must comply with all 

MSHA regulations is insufficient. Most construction contractors are familiar with the safety 

regulations of the Occupational Safety and Health Administration, which are similar to MSHA' s 

safety standards for surface metal and nonmetal operations. It is unlikely, however, that·these 

contra,ctors will know much about the detailed training requirements that MSHA has 

promulgated. Indeed, in Spencer Quarries, the construction contractor had no knowledge of 

MSHA's training requirements when it was constructing a building at the quarry. 32 FMSHRC 

at 650. I hold that the responsibility of a production operator to notify an independent contractor 

performing work at the mine of its obligation to comply with. MSHA's training regulations 

cannot be carried out by simply putting language in a standard form stating that MSHA 

regulations must be followed. It must affirmatively advise the contractor of its duty to have its 

employees trained in accordance with the requirements set forth in MSHA's regulations. 6 

Indeed, the language in Oil-Dri's form states that its pi:oject manager will advise the contractor of 

these requirements. 

In this instance, Oil-Dri unilaterally determined that new miner training was not required 

for Steel-Con's employees. The company's safety manager and the plant manager discussed the 

matter before making this determination and apparently Mr. Ross of Steel-Con was told that 

5 The definition excludes, in subsection (2), such people as vendors, delivery workers, 

and over-the-road truck drivers. 

6 The contractor does not necessarily have to provide the training. It can reach an 

agreement with the production operator to provide new miner training for its employees. 

32 FMSHRC Page 1774 
training beyond hazard awareness training was not required. (Tr .. 106, 152, 188). Based on the 

above, the violation alleged in this citation is affirmed and I find that a penalty of$100;00 is 

appropriate. 

H. Citation No. 6513296 

On April 29,'2009, MSHA Inspector Wilkes issued Citation No. 6513296 under section 

104(a) of the Mine Act alleging a violation of30 C.F.R. § 56.14112(b) as follows: 

The tail roller guard on the north side of the truck load-out belt 

conveyor was damaged exposing the moving machine parts. The · 

guard had been pulled up [in the area] where the grease line came 

up from the fitting on the bearing. This condition exposed persons 

working on three shifts .... ·The area has low overhead clearance 

and is in a narrow place between two belt conveyors. 

(Ex. G.;34). The Inspector determined that an injury was reasonably likely and that if an injury 

were to occur it would be of a permanently disabling nature. He determined that the violation 

was S&S and that the company's negligence was moderate. Section 56.14112(b) provides that 

"[g]uards shall be securely in place while machinery is being operated, except when testing or 

making adjustments which cannot be performed without removal of the guard." The Secretary 

proposes a penalty of $8,209.00 for this citation. 

Inspector Wilkes testified that during hfa inspection he walked by the tail roller of the 

truck load.-out belt. (Tr. 110). ·This belt carries the product from the plant to bins that are used to 

store the product for loading into trucks for shipment to customers. The guard for the tail roller 

was damaged in that the guard had been pulled up, thereby exposing moving parts. Another · · 

section of the gaard had come loose and swung down, thereby exposing more of the moving 

parts. Id. The inspector testified that this condition exposed miners to the hazard of becoming 

entangled in the moving machine parts, which could result in the amputation of a hand or arm. 

He testified that a person has to bend over to walk through the area. Because the tail 

roller is adjacent to another piece of machinery, the area was also narrow. (Tr. 111 ). In addition, 

there were accumulations of product on the ground in the area. (Tr. 11 I; Ex. G-36, G-37). 

Given these environmental conditions, he determined that the violation was serious and S&S. 

The inspector believed that it was reasonably likely that someone would slip, trip, or lose his 

balance in the area and get his hand caught in the moving machine parts. (Tr. 112). Employees 

would be required to go into the area to grease the tail rollers, to clean up the accumulated 

material, and to perform preventive maintenance. He observed footprints in the accumulated 

material. Maintenance Supervisor Billy Jordan, who was with Inspector Wilkes, told the 

inspector that he did not know that the guard was damaged. Id. Inspector Wilkes said that the 

exposed moving parts were less than waist high. (Tr. 113). The condition was abated when the 

operator constructed and installed a new guard. (Tr. 114; Ex. G-37). 

32 FMSHRC Page 1775 
Mr. Gibens testified that the photograph taken by Inspector Wilkes shows the area 

between the truck load-out belt and the hopper car belt. (Tr. i 37). Gibens was not at the plant 

on the day of the inspection, but he examined the area after the citation was issued. He estimated 

that the hole in the guard that the inspector cited was about seven inches long and an inch and 

one half wide. (Tr. 138). He testified that the accumulations were cleaned up using a fire hose 

because the area is too tight to do any shoveling. The person using the hose stands outside the 

cited area when he cleans up accumulations next to this belt. (Tr.139). Mr. Barnes confirmed 

the testimony of Gibens. (Tr. 166). 

I find that the Secretary established a violation of the safety standard. It is not disputed 

that the guard for the tail pulley on the truck load-out belt was not securely in place. The primary 

issue is whether the violation was S&S. Oil-Dri maintains that miners were not exposed to the 

hazard because, when the bearings were greased, a grease line was used. It.also argues that 

machinery was locked out whenever maintenance was performed. Finally, it contends that the 

area was cleaned from a different location using a high-pressure hose. I find that a 

preponderance of the evidence establishes that the violation was S&S. The grease line was 

immediately adjacent to the damaged area of the guard. (Ex. G-36) .. The conditions in that, 

confined area were such that it was.reasonably likely.that a miner would stumble or lose his 

balance while using the grease line. His hand, arm, or clothing could easily become entangled in 

the moving machine parts. I find that the Secretary established all four elements of the, 

Commission's Mathies S&S test. 

The Secretary proposed a penalty of $8,209.00 for this citation. The proposed penalty is 

substantially higher than the proposed penalty for S&S Citation No. 6068218 issued on July 31, 

2008, primarily J:>ecause of the Secretary's manner of calculating penalty points for citations 

issued per inspection day and repeat citations issued per inspection day. Information at MSHA's 

website shows that nine citations were issued to Oil-Dri in December 2008, but that these 

citations have all been contested by Oil-Dri. I find that a penalty of$5,000.00 is appropriate for 

this violation. 

II. SETTLED CITATIONS 

Prior to the hearing, the parties agreed to settle the remaining citations in these cases. In 

SE 2009-293-M, by order dated August 13, 2010, I approved the parties' joint motion to approve 

partial settlement. The parties agreed that one citation should be vacated and I ordered Oil-Dri to 

pay the Secretary a total penalty of $34 LOO for the remaining two citations included in the 

motion. Docket No. SE 2009-639-M was originally assigned to Judge William Moran. On July 

27, 2010, the parties filed a joint motion to approve partial settlement with Judge Moran. This 

motion has not yet been.ruled on. The Secretary agrees to vacate Citation No. 6513287. The 

parties agree that Citation Nos. 6513289, 6513290~ 6513291, 6513293, and 6513297 should be 

affirmed and that Oil-Dri should pay a total penalty of$1,608.00 for the violations. I have 

considered the representations and documentation presented and I conclude that the proposed 

32 FMSHRC Page 1776 
settlement is appropriate under the criteria set forth in Section 11 O(i) of the Act. The joint 

motion to approve partial settlement in SE 2009-639-M is GRANTED. , 

III. APPROPRIATE CIVIL PENAL TIES · 

Section 1 lO(i) of the Mine Act sets forth the criteria to be considered in determining an 

appropriate civil penalty. Oil-Dri had about i4 paid violations at the Ripley Mine and Mill 

during the 15 months preceding August 4, 2008, and about 14 paid violations during the 15 

months preceding April 29, 2009. 7 Oil-Dri is a medium-sized operator. The violations were 

abated in good faith. The penalties assessed in this decision will not have an adverse effect on 

Oil-Dri's ability to continue in business. I have not entered gravity and negligence findings 

because the representative for Oil-Dri agreed not to contest the MSHA inspectors' 

determinations. Consequently, I affirm the gravity and negligence determinations set forth in the 

citations. 

IV. ORDER 

Based on the criteria in section l IO(i) of the Mine Act, 30 U.S.C. § 820(i), I assess the 

following civil penalties: 

Citation No. 

SE 2009-293-M 

7751806 

6068216 

6068218 

6068226 

6068238 

6068239 

SE 2009-639-M 

6513295 

6513296 

Settled Citations 

·30 C.F.R. § 

56.11012 

56.14107(a) 

56.11001 

56. l 4132(b )(2) 

56.11012 

56.12047 

46.12( a)(2) 

56.14112(b) 

Various 

TOTAL PENALTY 

Penalty 

Vacated 

$117.00 

1,304.00 

100.00 

100.00 

224.00 

100.00 

5,000.00 

1,608.00 

$8,553.00 

7 These numbers are based on information at MSHA's website. Citations that were 

contested by Oil-Dri are not included in these figures including the citations that were contested 

in these two cases. 

32 FMSHRC Page 1777 
For the n~asons set forth above, Citation No. 7751806 is VACATED and the other 

citations listed above are AFFIRMED. Oil-Dri Production Company is ORDERED TO PAY 

the Secretary of Labor the sum of$8,553.00 within 40 days of the date of this decision. 8 Upon 

payment of the penalty, these proce~dings are DISMISSED. 

Distribution: 

Richard W. Manning 

Administrative· Law Judg 

Lydia A. Jones, Esq., U.S. Department of Labor, Office of the Solicitor, 61 Forsyth Street, S.W., 

Suite 7Tl0, Atlanta, Georgia 30303 

Larry R. Evans, Safety & Health Manager, Oil-Dri Corporation, P.O. Box 380, Ochlocknee, GA 

31773 

RWM 

8 Paym~nt 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. 

32 FMSHRC Page 1778 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRA TfVE LAW JUOOES 

601 NEW JERSEY AVENUE, N.W., SUITE 9500 

WASHINGTON, DC 20001-2021 

TELEPHONE: 202-434-9964 I FAX: 202-434-9949 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), 

Petitioner 

v. 

DIX RNER STONE, INC., 

Respondent 

November 19,2010 

CNIL PENALTY PROCEEDINGS 

Docket No. KENT 2008-397-M 

A.C. No; 15-16138-132556 -01 

Docket No. KENT 2008-463-M 

A.C. No.: 15-16138-134706-01 

Dix River Surface 

DECISION 

Appearances: Jennifer D. Booth, Esq., (at October 14, 2009, hearing) and Willow Fort, Esq., (at 

March 10, 2010, hearing), Office of the Solicitor, U.S. Department ofLabor, 

Nashville, Tennessee, for the Petitioner, 

Tomil1y ()wens, President, Dix River Stone Inc., Stanford, Kentucky, for the· 

Respondent. 

Before: Judge Weisberger 

Statement of the Case 

These cases are before me based upon Petitions for Assessment of a Civil Penalty filed. by 

the Secretary of Labor, ("Secretary") seeking the imposition of civil penalties for the alleged 

violation by Dix River Stone, Inc., ("Dix River") of various mandatory standards and set forth in 

Title 30, Code of Federal Regulation. Subsequent to notice, these matters were scheduled to be 

heard in Lexington, KY on October 14, 2009. At the hearing, the following citations were 

litigated: Nos. 7765946, 7765949, and 7765950. 1 Due to scheduling conflicts, Citation Nos. 

7765947 and 7765593 were rescheduled based on the parties' agreement, and heard on March 10, 

2010, in Richmond, Kentucky. 

I. Docket No. Kent 2008-463 

A.· Citation No. 7765946 

At the conclusion of the hearing on October 14, 2009, a bench decision was rendered 

which, aside from the correction of non-substantive matters, is set forth below. 

1

Subsequent to the hearing, the Secretary vacated Citation No. 7765950. 

32 FMSHRC Page 1779 
On September 11, 2007, MSHA Inspector Richard Jones inspected Dix River's surface 

quarry ("the quarry"). He observed an employee on an elevated belt guard that was 

approximat~ly ten feet,offthe ground. Jones testified that the employee was not tied off, and was 

not wearing a safety belt. He issued a citation alleging a violation of 30 CFR § 56.15005.2 

1. Violation of Section 15005, supra 

a. Respondent's Position 

The Respondents' defense is based upon a number of contentions. It is argued, that there 

was a greater danger to the use of a belt and tie line in circumstances where the work being 

performed was only ten feet above the ground. Owens explained that if a person is tethered at 

this height and falls, he would lose control of the motion of his body, and could be bumped 

against some dangerous materials causing severe injuries. 

. . In essence, Respondent argues that if the Section 56.15005, supra is appljed to the 

situation presented herein, the result would be a diminution of safety. Commission case law has 

established the principle that it can not entertain this argument. Rather, it must first be presented 

in a modification, and that it can not be raised before the Commission as a defense. Clinchfield 

Coal Co., 11 FMSHRC 2120, 2130 (1989); Otis Elevator Co., 11 FMSHRC 1918, 1923 (1989) 

Next, Respondent argues, in essence, that the cited condition was not dangerous, as it did 

not expose the observed employee to any danger. Owens opined that if the employee would have 

lost his balance, he could have landed on a platform that was four feet below the platform he was 

working on, and protruded approximately four feet beyond it. He said that a, tank was lo~ated 

below the work platform, and partially protruded beyond it. Also* Owens mah1.tained that the 

cited conditions, and manner of operation have existed for ten years, and they have not led to 

any accidents or injuries. 

b. Discussion 

I note that the following particulars of the inspector's testimony have not been 

contradicted or impeached: that the employee was not tied off, and was not wearing a safety belt, 

that he was working on a platform that was approximately ten feet off the ground, and that while 

the employee was sitting on a belt guard at the edge of the platform, he was leaning over, picking 

up fist-sized stones, and throwing them down to the ground. Jones opined that the employee 

could lose his balance and fall to the ground below which was composed of various sized stones. 

2 Section 56.15005, supra, provides as follows, "Safety belts and lines shall be worn 

when persons work where there is a danger of falling." 

32 FMSHRC Page 1780 
Based on Jones' testimony, I find that one of Dix Riv~'s employees wasworking on an 

area ten feet above the ground, but he was not wearing a safety belt or line. Also, that he was 

sitting on a belt guard close to the edge of the platform, leaning over, picking up and throwing 

stones to the ground. Hence, there was a danger of falling. rm not quantifying the danger, but 

certainly there was a danger of falling, especially considering that there weren't any rails. I thus 

find the Respondent violated Section 56.15005 which requires the wearing both a safety belt and 

lines where there is a danger of falling. 

2. Significant and Substantial 

In essence, Commission case law provides that a violation is "significant and substantial" 

if "based upon the particular facts surrounding the violation, there exists a reasonable likelihood 

that the hazard contributed to will result in an injury or illness of a reasonably serious nature." 

Cement Div., National Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). ·In order,to·establish that 

a violation of a mandatory safety standard under the Federal Mine Safety and Health Act of 1977 

("Mine Act") is significant and substantial, the Secretary must prove: 1) the underlying violation 

of the mandatory safety standard; 2) a discreet safety hazard contributed to by the violation; 3) a 

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

likelihood that the injury will be of a reasonably serious nature. Mathies Coal Co;, 6 FMSHRC · 

1, 3-4 (Jan. 1984). 

As set forth above, the evidence clearly establishes the first two criteria .. I find that the 

record establishes the existence of the following facts: (1) the employee observed by Jones was · 

on a platform that was 10 feet above the ground; (2) the employee was observed throwing stones 

off the platform; (3) the employee was picking up and throwing stones; (4) there were not any 

rails on the platform; and ( 5) the employee was not wearing a safety belt or a line. Based on a 

combination of these facts, I conclude that the third and fourth of the above criteria have been 

established. I thus find that the violation was significant and substantial. (See, Mathies, supra) 

3. Penalty 

Pursuant to Section l lO(i) of the Mine Act, in determining the penalty to be assessed 

upon a mine operator, the following six factors must be considered: 1) the operator's history of· 

previous violations; 2) the appropriateness of the penalty to the size of the business of the 

operator; 3) whether the operator was negligent; 4) the effect on the ability of the operator to 

continue in business; 5) the gravity of the violation; and 6) whether good faith was demonstrated 

in attempting to achieve prompt abatement of the violation. 

32 FMSHRC Page 1781 
I find that the gravity of the violation was relatively high for the reasons set forth above, 

(I)(A)(2) infra. I do not find anything in the operator's history of previous violations or the size 

of the operator's business that justifies an increase or decrease of a penalty. Dix River is a small 

operator. The history. of violations neither warrants increasing or decreasing the penalty. The 

evidence appears to indicate that abatement was done iii a reasonably timely fashion. 

The following testimony of Jones·is instructive regarding the level of the operator's 

negligence: 

And I figured that if the operator had provided him with proper fall protection, the 

training how to wear it, a good place to store it, then I felt the operator ... had 

some sort of an attempt to provide this person with the fall protection that they 

. needed . . . and the training to know when to use the equipment ... even though 

the operator is not there standing there telling him to put it on, that he would know 

to put it on himself. (Tr. 30). 

·Based on all the above, I find that Dix Riv~r's negligence is mitigated to some extent.3 

The mine operator has the burden of showing that the penalty will have a detrimental 

effecton its ability to continue in business. Sellersburg Stone Co., 5 FMSHRC 287, 294 (Mar. 

1983); Buffalo Mining Co., 2 IBMA 226 (1973). Respondent's representative ha8 submitted 

evidence showing that Dix River Stone, Inc. was merged with Owens Chevrolet, Inc., a used 

Chevrolet dealership owned by the subject quarry's owner .. He· also submitted various bank 

statements, loan balances, and a judgment by a Kentucky Circuit Court ordering payment by 

Owens Chevrolet of taxes, penalties, interest and fees. These documents indicate that Owens 

Chevrolet; Inc. incurred losses in the previous years. However, Respondent did not offer any 

evidence of the quarry's assets and liabilities and provided on\y an estimation of the assets 

owned by Owens Chevrolet.4 .The documents provided by Respondent fall short of the kind of 

3

The bench decision did not make any determination the remaining penalty criterion set 

forth in Section 11 O(i) of the Act, i.e., the effect of the imposition of a penalty on the ability of 

the operator to remain in operation. The record was kept open to allow Dix River to proffer 

documentary evidence on this issue. Subsequent to the hearing, Dix River filed Exhibits Cl-9, GA, G-1-11, H, I, J, K, L, M, N-1, N-2, 0, P-1, Q, R, S, and T-1. In conference calls on 

September ll, 2010, and April 30, 2010 the Secretary did not object to their admission, and they 

were admitted. · 

4

Section 110 (a)( I) of the Act provides, as pertinent, as follows: 

The operator of a coal or other mine in which a violation occurs of a mandatory 

health or safety standard or who violates any other provisions of this Act, shall 

be assessed a civil penalty by the Secretary which penalty shall not be more 

than $50,000 [currently $70,000] for each such violation. (emphasis added) 

32 FMSHRC Page 1782 
evidence which allows a reduction in a penalty due to the operator's inability to continue in 

business. See, Spurlock Mining Co., Inc., 16 FMSHRC 697, 700(April1994)(the operator 

introduced its tax returns, balance sheets, and tax liens. It was held that the operator "failed to 

introduce specific evidence to show that the penalties would affect their ability to reswne 

operations and continue in business"); Ron Coleman Mining, Inc., 21 FMSHRC 935 (Aug. 

l 999)(ALJ). (mine' s tax returns indicating a loss, was held fo tend to indicate a negative impact 

on its ability to continue in business). See also, Bob BakConstruction,I 9 FMSHRC 1791 (Nov. 

1997)(ALJ). 

Within the above context, I find that Respondent has not provided specific evidence to 

show that the penalties would affect its ability to continue operations and continue in business. 

Considering all the above factors set forth in Section 110 (i) of the Act, especially the low 

level of negligence, I find that a penalty of $1,000 is appropriate. 

B. Citation No. 77659475 

1. Introduction 

On September 11 and 12, 2007, Jones conducted an inspection of the quarry. Jones 

observed a Thomas ProTough 900 brand skid steer loader ("loader" or "skid steer loader'') 

parked on the quarry premises. The loader was not marked as defective and was not parked in an 

area specially designed for defective equipment. During his' inspection, Jones spoke to an 

employee whom he identified as the "plant operator" (Tr. 187.) Jones said the latter indicated 

that he was the "normal" operator of the loader. (Id) Jones "had him" raise the safety bar ("seat 

bar") "all the way" to the ''up" position (Tr. 188). Jones indicated he observed that the operator· 

lifted the seat bar to its "full upright position" which should have "locked" all the controls (Tr. 

188-89). The employee operating the loader was able to use the controls to raise the bucket 

while the seat bar was in the raised position. (Tr. 189-90.) · 

4 cont'd Section l lO(i) of the Act provides that if the penalty amount assessed by 

the Secretary is challenged, the Commission is required to assess a penalty. The Commission is 

mandated to consider, inter alia, the operator's ability to continue in business (Sellersburg Stone, 

supra). Section 3(d) of the Act, defines an "operator' as the owner, or other person who operates 

controls, and supervises" ... a coal or other mine." (emphasis added.) Thus, reading together all 

these sections, it is clear that for· the purpose of assessing a penalty, the consideration of its effect 

is limited to the operation of a mine, rather than the financial condition of the non-related 

businesses of the owners of the mine. Therefore, not much weight was placed on the evidence 

adduced by Dix River related to the operation of Owens Chevrolet. 

5

This matter was heard on March I 0, 20 I 0. The date for the parties to file post briefs was 

extended to August 20, 2010, based on the granting ofnwnerous requests made by the parties. 

The date to file responses was extended to August 30, 2010. The Secretary filed a brief on 

August 2, 2010. To date, Dix River has not filed a brief, or argument. 

32 FMSHRC Page 1783 
Jones subsequently issued citation No.776.5947 alleging a violation of 30 C.F.R. 

§56.14100(c}, which states as follows: 

.. 

When defects make continued operation hazardous to persons, the defective items 

including self-propelled 'mobile equipment shall be taken out of service and 

placed in a designated area posted fc;>r that purpose, or a tag or other effective 

method of marking the defective item shall be used to prohibit further use until 

the defects are corrected. 

2. Violation of30 C.F.R. §56.14WO(c) 

To show a violation of Section 56.14100(c} supra, the Secretary must establish 1) the 

existence of a defect, that 2) makes continued operations hazardous to persons, and 3) the 

machine was not taken out of service. Since both parties agree that the loader was not taken out 

of service, only the first two elements are presently at issue. 

a. The Existence of a Defect 

1. The Parties' Evidence 

Jones testified that a typical .skid steer loader is equipped with a seat bar safety . . . 

device which, when raised to the. upright position, locks themachine'scontrols so that the. 

machine.cannot move. Jones testified that an employee he identified as the plant manager 

told him that he. was the normal operator of the skid steer loader. Jones asked the 

employee to enter the cab of the loader, and start it. Jones observed the employeeJ~ft the 

seat bar safety device to its full upright position. While. the seat bar was raised, Jones 

observed the employee attempting to move theloader with the tram controls in the cab, 

but it did not move. Jones observed that the employee was able .to raise the bucket on the . . 

loader, even though the safety bar was in the full upright position. 

Owens did not impeach Jones' testimony. However, he asserted that the loader 

did not have any defect. Owens testified that the loader was equipped with a button 

which, when pushed in, would deactivate the loader's controls. According to Owens, the 

button was designed to be pushed in by the seat bar when the seat bar was raised. He 

indicated, in essence, that his testimony in these regards is based upon the safety 

instruction booklet that he read. Owens testified that the day the loader was cited, an 80-

year old employee, whom he referred to as Clarence, was the only employee at the quarry 

who was not "up front" with him. (Tr. 272.) Owens opined that Clarence was directed to 

operate the loader. According to Owens, Clarence was not trained to operate it, and due 

to his age and medical condition, was not allowed to get on it. Owens opined that 

Clarence must not have fully raised the safety bar. As such, the button had not been 

pushed in to de-activate the controls. 

32 FMSHRC Page 1784 
Owens testified that a technician inspected the machine shortly after Jones issued· 

the citation and found nothing wrong with the loader's safety device. 

11. Discussion 

The Commission has defined a "defect" as "a fault, a deficiency, or a condition 

impairing the usefulness of an object or a part." Allied Chemical Corp., 6 FMSHRC 

1854, 1857 (Aug. 1984) (citing Webster's Third New International Dictionary 59 (1971); 

U.S. Dept. Of Interior, Bureau of Mines, Dictionary of Mining, Mineral and Related 

Terms 307 (1968)). According to Jones, he observed the bucket move while the seat bar 

safety device was in the full upright position. As such, it can be reasonably inferred from 

the inspector's observation that the safety device was deficient, as it did not prevent 

movement of the bucket while the seat bar was in the upright position. fu other words, 

the usefulness of the loader's safety mechanism was impaired to some degree. 

Owens did not observe the operator of the loader rasing the safety bar. Thus, 

Owens does not have any personal knowledge as to how far the operator raised the safety 

bar. It is significant to note that Respondent did not call this employee to testify. 

I note Owens' testimony that the day after the citation was issued a "technician" 

checked it out and "there was nothing wrong with the machine."(Tr. 273-274.) There is 

not any evidence that Owens had personal knowledge as to specifically what the 

technician did .. It is significant to note the Respondent did not have the technician testify. 

For all the above reasons, I find that Owens' conjectures as to what individuals 

might have done are insufficient to rebut the :direct evidence adduced by the Secretary, 

consisting of Jones' testimony based on his observations. I therefore conclude that the 

Secretary has e~tablished the existence of a defect. 

b. . Continued Operations Hazardous to People 

i. Testimony 

According to Jones, he was told by quarry employees that the loader was used 

almost every day, and had been used that day prior to Jones' arrival at the quarry. Jones 

testified that" ... [he's] seen it commonly done where [operators] would leave the cab 

and leave the machine operating ... [and] the safety bar would be in the upright 

position .... " (Tr. 199.) Jones indicated that the. loader ''could very well be used" when 

there were employees nearby (Tr. 198.) He testified that he has seen it "commonly done 

where [operators] would leave the cab and leave the machine running." (Tr. 199.) Jones . 

concluded that the safety defect on the skid steer loader constituted a hazard to the loader 

operator and other quarry employees. 

32 FMSHRC Page 1785 
According to Owens, the quarryhad not been running on.the day the citation was 

issued. However, Andrew Works, a foreman, test~fied that the loader is used even when 

the quarry is not running. 

11. Discussion 

The descriptive term "hazardous" denotes a measure of danger to safety or health. 

Cement Div., Nat'/ Gypsum Co., 3 FMSHRC at 827. I note Jones' testimony that, in 

essence, given the defective operation of the safety bar as observed by him, an individual . 

could have been struck by the bucket if its controlling leverswere unintentionally moved 

while the bar was in an upright position. Based on this testimony that .was not impeached 

or contradicted, I find that the defect constitutes a measure of danger to the safety of 

quarry workers. Therefore, I find the Secretary h8$ established that the defect makes 

continued operations of the loader hazardous to people~ 

For all the above reasons, I find that Respondent violated Section 56.14100(c), 

supra. 

3. Significant and Substantial 

As set forth above, the condition of the loader violated a mandatory standard i.e., 

Section 56.14000( c ),·supra. Also, the violation contributed, in some degree, to a safety 

hazard. Hence, I find that the first two elements of Mathies supra, have been meet. 

The third element set forth in Mathies, supra, requires that the Secretary establish 

a reasonable likelihood that the hazard will contribute to an injury-producing event. . U.S. 

Steel Mining Co., 6 FMSHRC 1834, 1836 (August 1984). In the case at bar, in order for 

the safety d~fect on the loader to contribute to an injury-producing event, a number of 

events must occur. First, the operator of the skid steer loader would have to raise the seat 

bar safety device.- Next, the operator would have to exit the machine while the machine 

was still running. Finally, the operator must inadvertently hit the controls of the skid 

steer loader, causing the machine to move and strike a quarry wor~er. Jones testified that 

it is common for an employee operating a skid steer loader to raise the seat bar safety 

device and exit without turning the machine off. However, the Secretary did not adduce 

any evidence to establish that the inadvertent contact with the controls by the operator 

was reasonably likely to haveoccurred.6 

Thus, I find that the Secretary has not established that there was a reasonable 

likelihood of an injury-producing event, i.e., a person being hit by the bucket. 

6

There is not any evidence of the inner dimensions or the. cab of the spatial relationship of 

operator's seat, and the controls. Indeed, Inspector Jones stated he did not know where the 

controls on the skid steer loader were located. He also did not remember if he could see the 

operator moving the controls. 

32 FMSHRC Page 1786 
Accordingly, it is concluded that the Secretary has not established that the violation was 

significant and substantial; (See, Mathies, supra). 

4. Penalty 

As discussed above, inadvertent movement of the bucket as a consequence of the · 

violation, was not reasonably likely to have occurred. However, if, as a consequence, the 

bucket had hit a person, s~ous injuries could have resulted. 

I find that the penalty is' appropriate when considered in the context of the size of 

the operator's business. The analysis of the effect of a penalty on the operator's ability to 

remain in operation is the same as set forth above, I (A)(3), infra. I find nothing in the 

operator's history of previous violations to justify either an increase or decrease in 

penalty. 

I find that Respondent, in good faith, attempted to achieve prompt abatement of 

the violation. Since the defect would become apparent only if the controls for the bucket 

were activated while the safety bar was in an upright position, I find that the violative 

condition was not obvious. 

The safety bar was intended to ·prevent movement both of the loader and the bucket 

When Jones tested its functioning, only the bucket could still be moved. I find that the violative 

condition was not extensive. There. is not any evidence as to how long the violative condition 

had existed prior to its being cited by Jones on September 11, 2007. There is not any evidence 

that Respondent had either knowledge or notice of the violative condition. I thus find that the 

level of Respondent's negligence was low. 

Taking iμto consideration all of the above, especially the low level of negligence, and the 

fact that the violative condition was neither extensive nor obvious, lfind that a penalty of $700 is 

appropriate. 

C. Citation No. 7765953 

1. Introduction. 

On September 12, Jones inspected the quarry's pug mill. Jones observed three 

distribution boxes which controlled the electrical circuits to the pug mill. The distribution box 

on the right controlled the right paddle of the pug mill, and the box in the middle controlled the 

left paddle. The box on the left was the main disconnect for the pug mill.7 

7 According to Jones, " ... [if the main disconnect] is shut off, there's not power to either 

of the other two boxes." (Tr. 334.) 

32 FMSHRC Page 1787 
The distribution boxes controlling the paddles had black markings on the exterior of the 

boxes. The distribution box for the main disconnect did not have any markings, but had a 

manufacturer's label on the front of the box. 

Inspector Jones issued citation number 7765953, alleging a violation of30 C.F.R. 

§56.12006, which states as follows: 

Distribution boxes shall be provided with a disconnecting device 

for each branch circuit. Such disconnecting devices shall be 

equipped or designed in such a manner that.it can be.determined by 

visual observation when such a device is open and that the circuit 

is de-energized, the distribution box shall be labeled to show which 

circuit each device controls. 

2. Violation of Section 56.12006, supra 

·a. The Parties' Evidence 

According to Jones, the distribution box in the middle (center) controlling the left paddle, 

"has some sort of writing on it that you could make out part of it but not entirely'' (Tr. 333.) 

Jones testified that the box on the right; controlling the right paddle was not labeled at all, and 

the left box controlling the man disconnect did not have any markings on it regarding the circuit 

it controls. Jones concluded that the boxes were inadequately labeled. In support of his 

conclusion, Jones stated that: 

there is some portion, part, piece oflabeling, but for the person who is under a 

stressful situation or something similar to that; or if a person wants to make 

ab~olutely sure that they lock out the proper circuit, you've got to be able to 

absolutely make positively sure that it is the circuit that you want locked out.,. 

(Tr. 367.) 

Owens testified that the distribution boxes controlling the pug mill's left and right 

paddles were labeled, and the labeling was faded but readable. Owens also testified that the 

distribution box for the main disconnect had a factory label on the front of the box. According to 

Owens, the factory label included the words "main disconnect." (Tr. 375.} Respondent also 

provided a photograph of the distribution boxes taken within a week after the·citation was issued, 

and after the boxes had been re-labeled. 

b. Discussion 

Section 56.12006, supra, requires that each distribution box be labeled in order to show 

which circuit it controls. Thus, in order to establish a violation of Section 56.12006, supra,.the 

Secretary need only show that one distribution box was not adequately labeled. 

32 FMSHRC Page 1788 
Government Exhibit 14A, and Respondent Exhibit F, appear to indicate that the 

distribution 

box located in the middle of the three boxes, was somewhat labeled to show it controlled the left 

paddle. I note Owens' testimony that the distribution box controlling the main disconnect had a 

factory label that said "main disconnect" in fine print. (Tr. 375'.) On the other hand, Jones 

testified that this box did not have any markings on it regarding the circuit it controls. I 

examined Exhibits 14A and F and I find that they do not corroborate Owens' testimony in that 

the words "main disconnect" can not be ascertained. Further, according to Jones' testimony, the 

box on the right did not have any markings regarding the circuit it controls. A photograph of the 

boxes taken on the day he issued his citation, appears to corroborate his testimony regarding the 

lack of labeling. 

I note that Respondent proffered photographs depicting the boxes in issue, and the 

following is written in black on the right distribution box "right side paddle." (Ex. Fl and F2.) 

However, the record fails to establish that these pictures were taken on the date the conditions 

were observed and. cited by Jones. Owens testified that he took them "within probably a week 

[after they were cited on September 11 ]"(Tr. 374), and after the boxes at issue had been labeled. 

In follow-up testimony he said that he "[did not] know if that was before or after, ... but it was 

shortly after *** we did this like the very same day he did the inspection." (Tr. 375.) I find this 

testimony unclear and confusing. I therefore accord more weight to Jones' pictures as depicting 

the condition of the labeling of the boxes when they were cited. In this connection , I note that in 

Exhibit 14A, taken on S~ptember 11 by Jones, the left and right boxes are not depictedwith any 

writing or other labeling to indicate the circuit each controlled. 

Based on all the above, I find that the left and right boxes were not adequately labeled to 

indicate the circuit controlled by each box. Thus, I conclude that the Secretary has established 

that at least one distribution box was inadequately labeled. Accordingly, I find that it has been 

established that .Respondent violated Section 56.12006, supra. 

3. Penalty 

As set forth above, I(A)(3), I conclude that nothing in the operator's history of previous 

violations or size leads me to increase or decrease the penalty. I also found that Dix River has 

not provided specific evidence to establish that the penalties would affect its ability to continue 

in business. If find that Respondent, in good faith, attempted to achieve prompt abatement of 

the violation. Jones testified that the violative conditions could have resulted in electrocution, or 

a fatal injury. This testimony was not refuted by Respondent. Accordingly, I find the gravity of 

the violation to be relatively high. 

I find that the violative conditions, affecting only two distribution boxes, were not 

extensive. Based on Jones' photograph of the outside cover of the box on the right side, I find 

that the lack oflabeling was obvious. 

32 FMSHRC Page 1789 
The operator promptly abated the situation by re-labeling the distribution boxes . 

.Respondents negligence regarding the lack of labeling on the left is mitigated somewhat 

by 

Owens' testirnonythat a factory label on the box indicated "main disconnect in 'fine print'"(Tr 

375.) Tue Secretary did not establish how long these conditions had existed. Therefore, I 

conclude the operator's negligence to have been only moderate. 

Considering all the above criteria set forth in Section 11 O(i) of the Act, I find that a 

penalty of $200 is appropriate. 

II. Docket No. Kent 2008-463 

A.·· Citation No. 7765949 

At the conclusion of the October 14, 2009 hearing a bench decision was issued which, 

except for the correction of non-substantive matters, is set forth belOw as follows: 

On September 12th, 2007, MSHA Inspector Richard Jones inspected Dix River's above 

ground crushing operation. He specifically inspected a rock-breaker platform that was elevated·· 

approximately 20 feet from the ground. There were two parallel rails on three sides of the 

platform. The highest rail was approximately four feet off the ground and the rail below was at 

an equal distance between the top rail and·theplatforin. 

According to the inspector, men needed to access the platform to perform maintenance 

and repair work on various hydraulic lines, motors; and equipment. He indicated that it would be 

extremely hazardous for a person to access the platform from a platform located adjacent that 

was approximately a foot and a half higher because of the presence of rails on three sides and the 

presence of a series of rebar bars closing off the fourth side. Jones testified that a person could 

lose his balance and trip while climbing over the rails and fall 20 feet. He was told that Dix 

River had some type of man-bucket to transport a miner to the platform at issue in order to 

perform maintenance and repairs. However, he was concerned about the hazaid of climbing 

from the man-bucket over the rails to get onto the platform. Also, he noted that the previous day 

he issued a citation because he·had observed an employee working on a piece of equipment that 

was approximately ten feet off the ground, and that employee did not have either a safety belt or 

was not tied off. He was concerned that a person attempting to access the platform at issue from 

a man-bucket would also not he tied down. 

30 CFR § 56.11001 provides as follows, "Safe means of access shall be provided and 

maintained to all working places." (Emphasis added.) 30 CFR § 56.2 provides that a "working 

place" means any place in or about the mine where work is being performed. 

The plain wording of Section 56.11001 supra, requires the provision of a safe means of 

access; it does not require the safest means of access. Also, the plain language of Section 

32 FMSHRC Page 1790 
. . 56.11001 supra, does not state that only safe ambulatory access satisfies its requirements. 

Owens testified that the company had a "bucket-truck"(Tr. 125-26), that allowed a person 

to enter a bucket, and then be transported right up to that platform. He also indicated that he is 

familiar with this operation, that he has been in the bucket, and that it can be placed flush against 

the rail. He also indicated that the height of the rail is less than the height of the bucket. Thus, to 

access the platform safely one would have to climb out of the bucket and then just step down 

onto the platform~ it is not necessary to climb over any rail. I find Jones' testimony credible 

based on my observations of his demeanor, and the fact his testimony in these regards was not 

impeached or contradicted. Therefore, I filld that safe access to the platform was provided. 

For all the above reasons I find that it has not been established that the operator did not 

comply with Section 56.11001, supra. 

B. Citation No. 7765950 

After this matter was heard on October 14, 2009, the Secretary vacated this citation, 

therefore, it is dismissed. 

ORDER 

It is Ordered that Citation Nos. 7765949 and 7765950 be DISMISSED. 

It is further Ordered that, within 30 days of this decision, Respondent shall pay a total 

civil penalty of $1,900 for the violations found herein. 

. berger 

~ 

Admii:iistrative Law Judge 

Distribution: 

Jennifer D. Booth, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street, 

Suite 230, Nashville, TN 37219-2456 

Willow E. Fort, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street, Suite 

230, Nashville, TN 37219-2456 

Tommy Owens, President, Dix River Stone Inc., 376 Somerset Street, Stanford, KY 40484 

/cmj 

32 FMSHRC Page 1791 
. FEDERAL MINE SAFETY AND HEAL TH R\:VIEW COMMISSION 

Office of Administrative Law Judges 

601 New Jersey Avenue, N.W ., Suite 9500 

Washington, D.C. 20001 

(202) 434-9973 

November 19, 2010 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

CI\TILPENALTYPROCEEDING 

Docket No. WEST 2008-979-M 

Petitioner, A.C. No. 04-00119-147478 

v. Mine: AR Wilson Quarry 

GRANITE ROCK COMP ANY, 

Respondent 

DECISION 

Appearances: John Pereza, U.S. Department of Labor, Mine Safety and Health Ad.ministration, 

Vacaville, California, for the Petitioner, 

Kevin Jeffrey, Esq., Watsonville, California, for the Respondent 

Before: Judge Weisberger 

Statement of the Case 

This case is before me based upon a Petition for Assessment of Civil Penalty filed by the 

Secretary of Labor ("Secretary''), alleging violatioris by Granite Rock Company ("Granite 

Rock") of 30 CFR § 56.110271 (Citation No. 6196739), and 30 CFR § 56.14132 (Citation No. 

6196742). Subsequent to notice, the case was scheduled and heard in San Jose, California on 

October 19, 2010.2 After both parties rested, they waived the right to file a written brief, and 

relied on closing arguments. A bench decision was made which, with the exception of 

correction of non-substantive matters is set forth below. 

1

The citation was issued alleging a violation of30 CFR § 56.11012, but was subsequently 

amended to allege a violation of Section ,56.11027, supra. 

2 At the hearing, the parties filed a set of stipulations. 

32 FMSHRC Page 1792 
I. Citation No. 6196739 

Granite Rock Company ("Granite Rock") owns and operates a quarry known as the AR 

Wilson Quarry, an above-ground mining operation. This operation contains an elevated work 

platform where a primary rock crusher ("crusher") is located. The work platform is 

approximately 32 inches above the platform located below it. The size of the work platform is 

approximately twenty-eight by eighteen inches. There was a rail around the perimeter of the 

platform except for an eighteen inch gap on the on the west side of the platform.3 

The crusher, used to break rocks, is operated approximately twice during the evening 

shift. The operator stands in front of two joysticks that are located on the north side of the 

platform, and moves the joysticks to operate the crusher. 

On February 4, 2008, MSHA inspector Jan Niceswanger inspected the work platform. 

Niceswanger indicated that he observed that there was a gap in the railing. According to 

Niceswanger, the platform needed to be protected by a rail, as there was an eighteen inch gap. 

He indicated that due to the lack of handrails, a person could fall off the elevated platform; He 

issued a citation alleging a violation of 30 CFR § 56.11012 which was amended to cite a 

violation of 30 CFR § 56.11027. The oonditfon was abated by the placing of a removable chain 

which eliminated the eighteen inch gap. 

A. The Company's witnesses 

Angel Mejia was the company's lead man operator for a little more than three years~ He 

operated the primary crusher approximately twice a night. He indicated that in operating the 

crusher, he faces the joysticks which are on the north side of the platform, and there is not any 

need for him to look to his left. However, he does glance to the right to check the cone to ensure 

that the crusher is working properly. Mejia indicated that he had not been distracted by any 

rock. Also, that the area is well lit during his night shift. He said that he is not aware of any 

persons slipping on the platform; nor has he slipped on it. He opined that the eighteen inch gap 

did not create any type of a hazard. 

David Clay, a heavy duty mechanic for the last four years, has been involved in some 

operations at the crusher. He indicated that, in his experience, he did not become disoriented by 

dust, did not experience any lighting problems, and has not seen frost on the platform. He 

indicated specifically that when he has operated the joysticks, there wasn't any need to move to 

the left. According to Clay, in operating the joysticks, he kept his feet shoulder length apart, and 

right in front of the controls. He also has never experienced any slipping or tripping, and has not 

been aware of anyone slipping or tripping on the platform. He opined that the absence of an 

eighteen inch gap did not constitute a hazard. 

3

The north and south sides of the platform extended for eighteen inches; the east and west 

sides extended for twenty-eight inches. 

32 FMSHRC Page 1793 
Henry Ramirez, the plant manager for the last six years, indicated that in his position he 

becomes aware of all the safety incidents. According to Ramirez, there have not been any 

tripping; slipping or falling accidents on the platform at issue. He stated that he also is not aware 

of any such accidents in his 20 years experience atthe quarry. He opined that the gap did not 

constitute a hazard. 

B. Discussion 

The secretary has the burden of proof of establishing a violation. Section 56.11027, 

supra, provides, a pertinent, that working platforms shall be ''provided with handrails." 

The secretary's position is that, in essence, there should have been a handrail all around 

the perimeter of the platform. Thus, it is argued .that an eighteen inch gap in the railing 

constituted a violation of Section 56.11027, supra. The company argues just the opposite, i.e., 

that there is not anything in the wording of Section 56~ 11027, supra, that requires that the 

handrails completely go all around the working station. 

I note that the word "handrail" is defined in Webster's Third New International 

Dictionary, (2002 ed.), as pertinent, as follows: "a light structure of wood or metal serving as a . 

guard at the outer extremity of a deck." Random House Unabridged Dictionary (1998 ed.) 

similarly describes a handrail as "a rail serving as a support or guard at the side of a stairway, 

platform, a number of other related places." Thus, the common meaning of a handrail relates to 

its yg: as a guard at the edge of a platform, which is consistent with the clear purpose of Section 

56.11027, i.e., to prevent a fall. 

Thus; specific issue is whether the handrail that had an eighteen inch gap, was adequate 

to serve as a guard to prevent falls. I take cognizance of Respondent's argument that, in essence, 

the Secretary has not met its burden of showing that a reasonable likelihood of a hazard existed. 4 • 

However, there is not anything in the clear language of Section 56.11027, supra; which req.uires 

the Secretary to prove a likelihood of injwy as part of its burden of establishing. a violation. 

Based on the inspector's testimony that I find credible, I conclude that there was a 

pos§ibility of a fall because of the eighteen inch gap in the railing. Taking into account the 

purpose of Section 56.11027, supra, and the common meaning of the word "handrail", I 

conclude t,hat the cited handrail was not adequate. Hence, I find the Respondent violated Section 

56.11027 supra. (See, Palmer Coking Coal Co., 26 FMSHRC 504 (June 2004){ALJ)). 

4

1 note the inspector's testimony, in essence, that it was ''unlikely'' that this condition 

would have resulted in any injuries. 

32 FMSHRC Page 1794 
C. Penalty 

. I find that the violative. condition was abated in good faith. The inspector indicated the 

area was clean, well maintained, and well lit. He Indicated that should there be a fall, it would 

result in loss of work days. All this adds up to very low level of gravity. 

With regard to negligence, there is not any evidence as to the lerigth of time that the 

violative condition existed. There is not any evidence that MSHA had ever communicated to the 

Respondent any need for additional compliance with the standard. There is not any evidence of 

any history of accidents. I find that there is not sufficient evidence to establish that the 

negligence was any more than low. 

There was no any evidence adduced relating to the operator's history of violations and 

its size. Hence neither of those factors play any part in either raising or lowering a penalty. 

The parties stipulated that the imposition of the penalty will not have any effect on the 

operators' ability to continue in business. 

Weighing all these factors, especially the good faith abatement, and low levels of gravity 

and negligence, I conclude that a penalty of $25 is appropriate. 

II. Citation No. 6196742 

At the hearing, the parties, in essence, made a motion to approve a settlement of Citation 

No. 619674 on the ground that the operator has agreed to pay the full amount of the penalty 

assessed by the Secretary ($100). The settlement was approved as follows: 

I have reviewed all the documentary evidence in the trial, and the operator's 

agreement to pay the full amount is a reasonable resolution of this matter 

under the terms of the Act, especially Section 11 O(i) of the Act. I approve it. 

It is ordered that within 30 days of this decision, Respondent shall pay a total civil 

penalty of$125. 

/iJ l - ~eisberger · 

Administrative Law Judge 

32 FMSHRC Page 1795 
Distribution: 

John Pereza, US. Department of Labor, (MSHA), 2060 Peabody Road, Suite 610, Vacaville, CA 

95687 

Kevin Jeffrey, Esq., Gran,ite Rock, 350 Technology Drive, Watsonville, CA 95077 

/cmj 

32 FMSHRC Page 1796 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION . OFFICE OF ADMINISJ'RA TIVE LAW JUDGES 

601 NEW JERSEY AVENUE, NW, SUITE 9500 

WASHINGTON, DC 2000 I 

November 22, 2010 

SECRETARY OF LABOR, CNIL PENALTY PROCEEDING: 

MlNE SAFETY AND HEALTH 

ADMJNISTRATION (MSHA), 

Petitioner, . 

v. 

PERFORMANCE COAL COMP ANY 

Respondent .. 

Docket No. WEV A 2008-1825 

A. C. No. 46-08436-150504 

Upper Big Branch-South 

DECISION 

Appearances: Patrick M. Dalin, Esq.:; Linda M. Henry, Esq., U.S. Department of Labor, 

Philadelphia, PA on behalf of the Secretary 

Before: 

Carol Ann Maunich, Esq., Dinsmore & Shohl, LLP, Morgantown, West Virginia, 

on behalf of Performance Coal Company 

Judge David F. Barbour 

This case is before me upon a Petition for Civil Penalty filed by the Secretary of Labor 

(Secretary) on behalf of her Mine Safety and Health Administration (MSHA) against 

Performance Coal Company (Performance or the company) pursuant to section 105( d) (30 

U.S.C. §815(d)),ofthe Federal Mine Safety and Health Act of 1977 (the "Act"). 30 U.S.C. §801, 

et seq. The Secretary alleges that in four instances Performance violated mandatory safety 

standards for underground coal mines at its Upper Big Branch mine, a bituminous coal mine 

located in Raleigh County, West Virginia. In addition to making allegations regarding the 

gravity and negligence of each of the violations; the Secretary alleges that each was a significant 

and substantial contribution to a mine safety hazard (S&S). The Secretary proposes assessing 

Performance a total of$10,260 for.the violations. Performance denies all of the Secretary's 

allegations. 

Pursuant to an order directing the parties to confer, counsels agreed to settle all issues 

relating to three of the four alleged violations. The Secretary then moved for approval of the 

partial settlement, and on November 23, 2009, I granted the motion. Performance Coal 

Company, Decision Approving Partial Settlement (November 23, 2009). Counsels advised me 

they remained irreconcilably at odds over the Secretary's allegations regarding Citation No. 

7279729, in which the Secretary alleges the company violated mandatory safety standard 30 

32 FMSHRC Page 1797 
C.F.R. §74.400, and that a trial would be necessary. 1 As a result, the case was heard in Beckley, 

West Virginia. 

STIPULATIONS 

At the commencement of the hearing the parties stipulated as follows: 

1. [C]oal mine inspector, Keith Sigmon ... was acting as a 

representative of the Secretary ... when he issued Citation 

[No.] 7279729. 

2. Citation [No.] 7279729 was properly served ... upon 

the agents of [Performance] at the date, time, and place 

stated ... on the citation. 

3. [A] true copy of Citation [No.] 7279729 was served upon 

. ~ . [Performance] or its agents as required by the Mine 

Act. . 

4. [T]he imposition of the proposed civil penalty of $4,329 

will have no effect upon ... [Performance's] ability to· 

remain in business. 

5. [T]he appropriateness of the penalty, if any, to the size 

of ... [Performance's] business should be based on the 

fact that in 2007 [Performance] ... mined 576,672 tons 

of coal from the Upper Big Branch-South [ m ]ine and 

that in 2007 Massey Energy Company, the controller 

· of ... [the inine], mined in excess often million tons 

of coal. 

6. [Performance] was assessed the total of one hundred 

forty nine citations based on two hundred twenty two 

inspection days in the fifteen month period preceding 

1 Section 75.400 states: 

Coal dust, including float coal dust deposited on 

rock-dusted surfaces, loose coal, and other 

combustible materials, shall be cleaned up and 

not be permitted to accumulate in active workings, 

or on diesel-powered and electrical equipment 

therein. 

32 FMSHRC Page 1798 
the issuance ofCitation [No.] 7279729. 

7. [A]n authentic copy of ... [Citation No. 7279729] may 

be admitted into evidence for the purpose of 

establishing its issuance. 

8. [On the date Citation No. 7279729 was issued] the 

· power center at issue in this case ... was in an area 

where miners were normally required to work or 

travel. 

9. [T]he ... power center is electrical equipment as 

described in. ; . [section]75.400. 

THE TESTIMONY 

THE-SECRETARY'S WITNESSES 

MSHA Inspector Keith Sigmon issued Citation No. 7279729. In addition to being an 

inspector, Sigmon also is an agency ventilation specialist. At the.time of the hearing Sigmon had 

been with MSHA for three and one half years. Before that, he worked for Consolidation Coal 

Company, during which he held a wide range of positions, "[ e ]verything from utility work to 

supervision." Tr. 14. Once with MSHA, Sigmon conducted inspections at many different mines. 

Sigmon was trained to recognize combustible materials such as coal dust, float coal- dust and 

float coal dust mixtures. Tr. 15-16. 

Prior to February 11, 2008, Sigmon had inspected the Upper Big Branch-South mine "on 

numerous occasions". Tr. 16. On February 11, he arrived at the mine at 6:00 a.m. Tr. 19. 

Sigmon, accompanied by mine foreman William "Bill" Harless, went underground and he and 

Harless traveled to the one north main conveyor belt. Tr. 18-19. A production shift was in 

progress. Tr. 18. Sigmon inspected the belt. He also inspected the cross cut in which the belt's 

high voltage power center was located. 2 The power center supplied power to the one north main 

conveyor belt's drive and hydraulic take up unit. Tr. 27. The power center was located at the 

point where the one north main conveyor belt discharged onto the one south main conveyor belt.; 

Tr. 20, 27. (The discharge point is also known as the transfer point. Id.). At the transfer point, 

the coal dropped four or five feet from the north to the south belt. Tr. 28. The power center was 

approximately twenty feet from the transfer point. Id. 

Sigmon testified that "float coal dust ... had accumulated in the cross cut where the 

power center was located and [that the] float coal dust [was] on top of the power center as well as 

2 12,470 volts of electricity ran to the power center. Tr. 18. 

32 FMSHRC Page 1799 
inside the power center on the electrical components, the leads, insulators and exposed leads."3 

Tr. 19. There also was coal dust and float coal dust outside the power center on the floor, ribs 

and roof of the cross cut. Tr. 21. The float coal dust ranged from "paper thin" to an eighth of an 

i11.Ch deep. Id., Tr. 84. Around the power center's cat heads the float coal dust was a little deeper 

than one eighth of an inch. Tr. 21. 

Sigmon acknowledged that the float coal dust on the floor and ribs was deposited on top 

of rock dust. Despite this, the float coaldust was black in,color. The float coal dust in and on 

the power center also was black. Tr. 22-23. The color signified to Sigmon that the coal dust had 

not mixed with the rock dust. Id., Tr. 194. 

In Sigmon' s opinion, the float coal dust was dangerous. He testified that, ''the blacker the 

coal dust ... the more combustible it would be." Tr. 22. Sigmon also explained that the power 

center had a "sight glass," that is, a plexiglass window that allowed a person to look into the 

power center and see the busbars of the high voltage circuits.4 Looking through the window he 

could see that the coal dust "covered the electrical components, the insulators, [and] the bare 

wires." Tr. 24. He was certain that much of what he saw was float coal dust. He testified that 

the dust, "[W]as a fine powder." Tr. 24. He stated, "I took my fingers across the power center 

and [the coal dust] went up in suspension. It was dry. It wasn't ... stick[ing] together. It was a 

very dry powder." Id. No fire suppression system was installed over the power center or in the 

crosscut. Tr .. 32. 

Sigmon believed the float coal dust accumulated because a valve that controlled the. 

water sprays at the discharge point of the subject conveyor belt was broken and coal dust was 

not being suppressed.5 Tr. 26. Sigmon stated that even with the sprays working, during the 

transfer of the coal from one belt to another, the vibration of the belts and the impact of the 

falling coal "pulverized" the coal, which became "fine and ... powdery and [began] to be 

3 It was the company's safety director, Michael Vaught, who explained how the coal dust 

could enter the power center. Air to ventilate the center came into the box enclosing the center· 

through louvered vents on the box's lower sides. A "chimney effect" pulled the air through the 

lower vents and out through· similar vents near the top ofthe·box. Coal dust traveled on the air 

into and through the box, and some of the coal dust was deposited on the interior surfaces of the 

power center. According to Vaught, some rock dust also was deposited inside the box in this 

way. Tr. 150-151, 166. 

4 A busbar is defined as a "heavy conductor, often made of copper in the shape of a bar, 

used to collect, carry and distribute powerful electrical currents." 

Hiip://dictionmy. ref erence.comlbrowselbusbar. · 

5 Sigmon and Harless found the broken valve after Sigmon inspected to the power center 

and cross cut. Id. 

32 FMSHRC Page 1800 
suspended in the air and the air current then [took] it to different areas of the mine and [laid] it 

down." Tr. 2 7. With the sprays not working, the amount of coal dust generated at the transfer 

point increased significantly. According to Sigmon, the float coal dust entered the power center 

through the center's ventilation vents. Once inside the power center, it settled on the center's 

interior components. Tr. 27-28, 51-52. 

Sigmon testified that in the case of the subject power center, there was a stopping which. 

should have prevented much dust-laden air from reaching the center. However, there were holes 

in the stopping and even though there were pieces of curtain placed over ·the stopping, the air still 

traveled through the stopping and the coal dust accumulated at, on and in the power center. Tr. 

3 7. None the less, he recognized the curtain somewhat limited the amount of dust that reached 

the center. Tr. 75. 

Sigmon reviewed the pre-shift report for the belt conveyors. Tr. 38; Gov't Exh. 2. The 

shift before his inspection was the February 11 .. owl shift. Tr. 39. He noticed that the pre-shift 

examiner indicated. that both the number one south mains belt and the number one north mains 

belt needed dusting "from head to tail." Id., Gov't Exh. 2 at 3. This indicated to Sigmon that the 

area had "become settled with float coal dust and n:eed[ed to be] rock dusted." Tr. 39-40. This 

was consistent with what he later found. Tr. 41. 

Sigmon thought that the conditions at the·power center reflected conditions on both belts. 

The air flowing from the one north main belt carried the float coal dust around and into the 

power center. Tr. 43. The pre-shift examiner reported by telephone at 6:30 a.m. Gov't Exh. 2 at 

3. Sigmon was at the power center at 11 :20 a .. m., approximatelyS hours later. Tr. 43. Based on 

his experience, Sigmon believed that the accumulations at the power center existed between ''two 

or three shifts ... at least." Tr. 44. Five hours was not enough time to accumulate that amount of 

float coal dust that he saw. Tr. 46. He also stated that at 11 :20 a.m. there was not a great amount 

of float coal dust suspended in the air .. He implied from all ofthis that it took up to three days for 

the float coal dust to accumulate in the amounts he observed. Id. 

As a result of what he saw in and around the power center, Sigmon issued Citation No. 

7279729 to the company.6 Tr. 47; Gov't Exh. 3. The citation charges that the accumulations of 

float coal dust violated section 75.400. Tr. 47. In addition, Sigmon found that the violation of 

section 75.400 was reasonably likely to result in a fire or ignition. Gov't Exh. 3. He explained: 

because ofthe float coal dust being inside the 

power center where there[ were] exposed electrical 

connections. You [had] a transformer that 

produce[ d] heat inside the power .center. You [had] 

relays and contacts that [were] being made. 

6 Sigmon served the citation on Rick Hodge, the mine superintendent. According to 

Sigmon, neither Hodge nor any one else disputed the citation .. Tr. 54. 

32 FMSHRC Page 1801 . 
Also, ... there [would be]arcingthat occurs when 

those [electrical] relays [were] . • .. made ... 

[a]nd ... heat[.]Tr. 48. 

He testified that the circuit breakers arced each time they were set (turned off and turned 

on), that they were set on the maintenance shift in order to allow work to be performed on the 

belts and that they were set each time there was an electrical overload. Tr. 48. He estimated the 

breakers were turned off and on at least three times a shift .. Tr~ 49. When they were set, no · 

defects were required inthe power center for arcing to occur. He believed that the arcing "would 

propagate a fire or ignition of the float coal dust and ... [if] the float coal dust was in suspension 

... that·could cause an explosion.'' Tr. 51. If an explosion occurred, Sigmon believed it 

reasonably likely that the explosion would spread via suspended dust to the north.and south main 

conveyor belts where other coal dust had accumulated. Tr. 52. 

In addition, there were exposed and energized electrical wires in the power center and 

Sigmon could plainly see through the sight glass that coal dust had accumulated on the wires. 

Tr. 49-50. Further, Sigmon believed it was possible that the circuit breakers themselves could 

fail, which would result in "[al lot of charring, burning, [and] melting of ... metal." Id. In sum, 

Sigmon believed a fire or explosion was reasonably likely to occur because of "the electrical 

components being exposed, the heat of the ... transformer, the breaker arcing, and the float coal 

dust being present in the power center and outside." Tr. 5 L 

Sigmon testified that if an ignition and explosion occurred, numerous miners could be 

affected: the fire boss could be in the area conducting an inspection, maintenance shift personnel 

could be in the area servicing the belts, in addition, six miners were observed by Sigmon 

cleaning the south main belt on the day he issued the citation. Tr. 52-53. 

He also found that the company was moderately negligent. He testified the company 

should have known float coal dust had accumulated' at the power center and in the crosscut and · 

should have cleaned the areas. According to Sigmon, Earl Halls, the midnight shift foreman 

described the power center as a "problem area" because float coal dust tended to accumulate 

there. Tr. 56. He also told Sigmon that he•had to frequently clean the area. Tr. 82. 

On cross examination Sigmon agreed that the violation concerned only float coal dust, 

not coal fines and not loose coal. Although he was concerned about the possibility of a fire, 

Sigmon did not know the flash point of float coal dust. Tr. 60. He agreed that for float coal dust 

to catch on fire, a specific concentration of dust had to be present, but he did not know what that 

concentration was.7 Tr. 63-64. Further, he did not know if the power center's transformer could 

"rise to the level of the heat flash point necessary to catch any of [the] float coal dust" on fire. Tr. 

66-67. There was no visual indication of any improper arcing or sparking when he was at the 

7 None the less he stated, "The more confined float coal dust is, the less you have to have 

and the greater [is the] likelihood of [an] explosion." Tr. 72. 

32 FMSHRC Page 1802 
power center, and he observed no defective components atthe power station. Tr. 71. Further, fire 

extinguishers and rock dust were in the area. Tr. 65. 

Larry Cook is an electrical engineer.and an MSHA employee. He supervises a group of 

electrical specialists who conduct electrical inspections and investigate mine accidents. Tr. 110. 

Cook has been an MSHA supervisor for the past ten years. Cook~ stated that he is familiar with 

underground power centers supplying power to belt drives. Tr. 112. Inside such power centers 

are sources capable of igniting accumulated coal dust and float coal dust. Circuit breakers arc 

when they open and close fu fact, each time a circuit break.er trips, an arc occurs. Tr. 113. In 

addition, bare, high voltage connections are common throughout a power center. Tr. 114. 

Cook also stated that if a fire for some reason began inside a power center, the flame 

could travel outside the center through the center's side vents. Tr. 114. He had seen this, and he 

knew of instances where circuit breakers inside a power center had arced and caused a fire. Tr. 

115-116, see also Tr. 130. However, Cook agreed that he had no knowledge as to the particular 

conditions of the power center in question, since he never saw the subject power center. 

THE COMPANY'S WITNESS 

In February, 2008, Michael Vaught was the Safety Director of Performance. Prior to 

becoming the safety director, he had been involved in mining for approximately nine years, seven 

of them in the coal industry. Vaught was not an electrician, but as the safety director, he was 

familiar with the safety hazards associated with power centers and coal dust. 

Tr. 136-138, 190. 

In Vaught' s opinion, the concentration of coal dust inside and outside the cited power 

center was not high enough to pose an explosion hazard. Tr. 139. Vaught explained that 

sometimes when there is dust in the air, it is not all coal dust. Rock dust often mixes with the 

coal dust, and rock dust is not combustible. Id., Tr. 141. The company tried to ensure that all 

areas of the mine were rock dusted at least every five days. Tr. 142. Vaught stated that 

management instructed "electricians and fire bosses and people to keep an eye out for float coal 

dust ... in order to control ... accumulations." Tr. 142-143. 

Vaught was not present when Inspector Sigmon found the cited conditions, but after the 

citation was issued, he looked at the area, including the power center. He forthrightly stated, "I 

did observe float coal dust on the power center, and I did observe float coal dust in the area. It 

was ... paper thin[.]" Tr. 144-145. However, Vaught did not believe there was enough coal dust 

present to create a fire or explosion hazard.8 Tr. 149. 

8 Vaught stated, 

In my experience as a coal miner when I look at dust 

that's as thin as a sheet of paper laying on rock dusted 

32 FMSHRC Page I 803 
In addition, he did not believe the power center constituted an ignition hazard. He 

maintained: 

If everything .... is working properly ... the settings 

are set properly, everything is insulated and hooked 

up the way it should, ·you shouldn't have any major 

arcs or sparks or problems[.] 

·Tr. 161. 

Even if there was a fire or an explosion, Vaught believed that miners who worked out by 

the power center would "get outside pretty quickly." Tr. 177. Moreover, they had self contained 

selfrescue devices. Tr. 177-178. 

Finally, if there was a violation of section 75.400, it was not due to the company's 

moderate negligence, because the fire boss: 

indicated that we did have some float coal dust in and 

around the belt head area, which ... includes the 

power center area. They did report it in the preshift book. 

They did report it to mine management and we were 

making arrangements to have the area cleaned and dusted. 

Tr. 178-179. 

THE ISSUES 

The issues are whether section 7 4.400 was violated and, if so, whether the violation was 

S&S. If a violation is found, also at issue are the gravity of the violation, the negligence of the· 

company and the amount of the civil penalty that must be assessed talcing into account the 

statutory civil penalty criteria. 

THE VIOLATION 

For almost as long as the Commission has existed, it has been accepted that section 

75.400 "is violated when an accumulation ofcombustible materials exists" (Old Ben Coal 

Company, 1FMSHRC1954, 1958 (December 1979)) and that a violative ·~accumulation" exists 

areas or in and around a power center that doesn't 

have any problems, that's operating normally, there's no 

extremely high temperatures, then I'm not ... alarmed 

to take immediate action to correct or terminate 

this condition. I am going to make [a] note ... that the 

area needs clean[ ing], [and] needs rock dust[ing~] 

Tr. · 185-186. 

32 FMSHRC Page 1804 
"where the quantity of combustible materials is such that, in the judgement of the [inspector,] it 

likely could cause a fire or explosion if an ignition source were present." Old Ben Coal 

Company, 2 FMSHRC 2806, 2808(October1980). Since some combustible material is 

inevitable in mining operations, the inspector's judgement as to what constitutes a mass of 

combustible materials which could cause or propagate a fire or explosion is subject to challenge 

before.a Commission administrative law judge (Old Ben, 2 FMSHRC at 2808, n.7), and the 

judge is required to review the inspector's judgement by applying the ·objective test of whether a 

reasonably prudent person, familiar with the mining industry and the protective purposes of the 

standard, would have recognized the hazardous condition that the regulation seeks to prevent. 

UP&L, 12 FMSHRC 965, 968(May1990); aff'd 591F.2d292 (10th Circ. 1991). 

In this case,.! find that the citation reflects the reasonable exercise of Inspector Sigmon's 

judgement. ·He testified as to the existence of the float coal dust both on and inside the power 

center, on the catheads at the power center, and in the crosscut. Tr. 19-21, 51, 84. He testified 

that the float coal dust's depth ranged from "paper thin" to one eighth inch or more. Tr. 21. He 

described the dust as black, which signified to him that it had not mixed with rock dust Tr. 22-

23. At the power center he touched the float coal dust and easily put it into suspension. As a 

result he believably described the float coal dust as dry. Tr. 24. 

Safety Director Vaught, who was not with Sigmon when the inspector observed the 

accumulation, saw the float coal dust later and did not disagree that it was present when Sigmon 

found it. Rather, he thought that the coal dust did not exist in a concentration sufficient to create 

a fire or explosion hazard. Tr. 149. Vaught also thought that a lot of the float coal dust was 

mixed with rock dust He described the dust as charcoal colored, a lighter color than Sigmon 

described. Tr. 171 .. However, Vaught's testimony was tentative. It lacked the specificity and 

certitude that characterized Sigmon's testimony, and I therefore fully credit the inspector's 

description of the existence, quantity, and quality of the float coal dust that he observed. 

Moreover, I fully credit Sigmon's belief that the float coal dust was dangerous and posed· 

a fire and/or explosion·hazard. Black, dry, float coal dust not only can burn, it also can trigger a 

self propagating explosion when an ignition puts it into suspension. Sigmon was trained to 

recognize float coal dust and to prevent such a hazard from occurring, and I fully credit his belief 

that if an arc or spark occurred inside the box, the accumulated dust could catch on fire and/or 

explode. 

The Commission has repeatedly held that violations of section 75.400 can be established 

by an inspector's observations, and here, where I credit inspector Sigmon's description of the 

existence, amount, quantity and quality of the float coal dust and the danger it posed, I find that 

the company violated the standard. See e.g. Harlan Cumberland Coal Co., 20 FMSHRC 1275, 

1290 (December.1998). 

S&S AND GRAVITY 

32 FMSHRC Page 1805 
Inspector. Sigmon found that the violation was S&S. An S&S violation is described in 

section 104(d)(l) of the Act, 30 U.S.C. §814(d)(l), as a violation of"such nature as could 

significantly and substantially contribute to the cause and effect of a coal ... mine safety or 

health hazard." A violation is properly designed as S&S "if, based upon the particular facts 

surrounding that violation, there exists a reasonably ijkelihood that the hazard contributed: to will 

result in an injury or illness ofa reasonably serious nature." Cement Division, National Gypsum 

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

In Mathies Coal Co., 6 FMSHRC 1 (January 1984), the Commission enumerated four 

criteria that must be met for a violation to be S&S. See also Buck Creek Coal, Inc. v. FMSHRC, 

52 F.3d 133, 135 ('7111 Cir. 1995); Austin Power, Inc. v. Secretary, 861 F. 2d 99, 103-104 (5th Cir. 

1988), aff'g Austin Power; Inc., 9 FMSHRC 2015, 2012 (December 1987) (approving Mathies 

criteria). Evaluation of the criteria is made in terms of"continued normal mining operations." 

U.S. Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984). The question of whether a violation 

is S&S must be based on the particular facts surrounding the violation. Texasgulf, Inc. lO 

FMSHRC 498 .(April 1988); Youghiogheny& Ohio Coal Co., 9 FMSHRC 2007 

(December 1987). 

ln order to prove a violation is S&S, the Secretary must establish: (1) a violation of a 

safety standard; (2) a distinct safety hazard contributed to by the violation; (3) a reasonable 

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

that the injury will be of a reasonably serious nature. Mathies, 6 FMSHRC at J-4. 

I have found a violation of the cited safety standard. I further find that the accumulated , 

float coal dust contributed to a distinct safety hazard, i.e., that the accumulation served as the 

source of a fire and/or the source and propagator of an explosion. I have credited the testimony 

of Inspector Sigmon regarding the presence, quantity and quality of the float coal dust. In so 

doing I have rejected Safety Director Vaught' s suggestions that the coal dust may have been 

sufficiently inerted by rock dust to make the accumulation nonhazardous. It should go without 

saying that float coal dust can bum and, worse, can explode and propagate an explosion. Further, 

the inspector, a person who had been trained to recognize combustible materials (Tr. 15-16), 

credibly believed the float coal dust he saw could bum and/or explode. 

The question then is whether there was a "confluence of factors" that made an injury 

producing fire and/or explosion reasonably likely, and I conclude that there was. Utah Power & 

Light Col, 12 FMSHRC 965, 970-97l(May 1990);. Texasgulf, 10 FMSHRC at 500-503; Enlow 

Fork Mining Co., 19 FMSHRC 5, 9(January1997). I have accepted Sigmon's testimony that the 

quantity and quality of the float coal dust was such that it could catch fire or explode and/or 

propagate an explosion. Further, Sigmon credibly described ignition sources that were present 

and that could have caused just such a fire and/or explosion. In fact, in this instance it is enough 

that ignitable float coal dust was present inside the confines of the power center where, as 

Sigmon explained, there were "exposed electrical connections" and where "arcing occur[ ed] 

when ... [electrical] relays [were] ... made" and when breakers were reset approximately three 

32 FMSHRC Page 1806 
tim~s each shift. Tr. 48, 49; see also Tr. 113-114 (testimony ofMSHA superv~sory engineer, 

Larry Cook). With 12,470 volts. of electricity being delivered to the power center (Tr. 102-103), 

Vaught' s opinion that even if everything in the power center was working properly, there would 

be no "major" arcs or.sparks was inapposite to the issue. Tr. 161. I accept Cook's knowledgeable 

statement that each time a circuit breaker tripped, an arc resulted. {Tr. 113), and I conclude that 

as nonnalmining continued the presence of a triggering arc or spark, whether "lllajor" or not, 

inside the power center and immediately adjacent to the combustible accumulation,s of float coal 

dust made it reasonably likely that a fire and/or explosion would occur. · · 

Moreover, it is clear from the record that miners worked outby the power center and that 

occasionally miners traveled into the crosscut where the power center was located. Stip. 8. 

Miners at the power center and those outby were subject to burn injuries, smoke inhalation 

and/or concussive type injuries, any of which were reasonably likely to be serious, even fatal. 

The S&S nature of a violation and the gravity of a violation are not synonymous. The 

Commission has pointed out that the "focus of the seriousness of the violation is not necessarily 

on the reasonable likelihood of serious injury, which is the focus of the S&S inquiry, but rather 

on the effect of the hazard ifit occurs." Consolidation Coal Co., 18 FMSRHC 1541, 1550 

(September 1996). Here, the "effect of the hazard" ifit occurred would have been gave indeed, 

up to and including a fatality or fatalities. This was a serious violation. 

NEGLIGENCE 

Negligence is the failure to meet the standard of care required by the circumstances, and I 

agree with Inspector Sigmon that the company was moderately negligent. Within the context of 

this case, the most reasonable interpretation of Sigmon' s testimony that the company placed 

curtains across the holes in the stopping near the power center is that the company knew there 

was a problem with coal dust traveling to the power center and that it was trying to alleviate the 

problem. Tr. 75. The company's knowledge that float coal dust was a problem at the power 

center and crosscut was confirmed by Earl Halls who he told Sigmon about the problem and 

about the frequent need to clean the area. Tr. 56, 82. Moreover, as Sigmon also testified, the 

preshift reports indicated that for the three shifts prior to his inspection the one north main belt 

needed to be extensively rock dusted. This indicated to Sigmon that coal dust had accumulated 

on and around the belt. Tr. 44-46, As Sigmon also noted, the mine's ventilation system carried 

float coal dust from the belt into the crosscut where the power center was located. Thus, 

Sigmon's belief that the float coal dust he saw in the crosscut and in and on the power center 

took up to three days to accumulate was perfectly consistent with the preshift reports for the one 

main north belt and with his visual observations during the inspection. Tr. 54. 

I do not doubt Vaught' s testimony that the company was trying to have all areas of the 

mine rock dusted at least every five days. Tr. 147. Nor do I doubt that some rock dust had been 

applied to the crosscut where the power center was located. However, I do not find the fact that 

32 FMSHRC Page 1807 
the preshift examiner for the shift on which the condition was observed found that the crosscut 

was "okay'' to be indicative of a lack of negligence ori the company's part. See Tr. 171. Rather, 

given the amount of float coal dust found by Sigmon, I conclude the preshift examiner 

misreported the condition of the crosscut and the power center. Knowing that the cited area wa.s 

a ''problem/' the company should have taken more aggressive steps to make sure that it wa5 kept 

clean. It did not do so. As a result, float coal dust accumulated in violation of the standard. 

Because the company did not exhibit the care required by the circumstances, I affirm Inspector 

Sigmon's negligence finding. 

CIVIL PENALTY ASSESSMENT 

I have foilnd that the violation was serious and was the result of the company's moderate 

negligence. The parties have stipulated that the proposed penalty of $4,329 will not effect the 

company's ability to continue in business. Stip. 4. Further, they have stipulated that mine and its 

controlling entity are large in size, as is the mine's history of prior violations. Stips. 5 and 6. I 

find further that the company exhibited good faith in abating the violation. Given these criteria, I 

condude the Secretary's proposal is appropriate, and I assess a civil penalty of $4,329. · 

ORDER 

Within 40 days of the date of this decision, Performance Coal Co. IS ORDERED to pay 

a civil penalty fo $4,329 for the violation of section 75.400 set forth in Citation No. 7279729. 

Upon payment of the penalty, this proceeding IS DISMISSED. 

_])"'4(/ £ u_. L -- David~~~ . . . 

Administrative I;aw JuClge 

Distribution: (Certified Mail) 

Patrick M. Dalin, Esq.; Linda M. Henry, Esq.; U.S. Department of Labor, 170 S. Independence 

Mall West, Suite 630E, The Curtis Center, Philadelphia, PA 19160 

Carol Marunich, Esq., Dinsmore & Shohl, LLP, 215 Don Knotts Boulevard, Suite 310, 

Morgantown, WV 26501 

Isa 

32 FMSHRC Page 1808 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

601 New Jersey Avenue, N.W., Suite 9500 

Washington, DC 20001 

202-434-9981/tele 202-434-9949/fax 

FREEDOM ENERGY MINING CO., 

Petitioner 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, MSHA, 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), 

Petitioner 

v .. 

FREEDOM ENERGY MINING CO., 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), 

Petitioner 

v. 

MYRON DESKINS, employed by 

FREEDOM ENERGY MINING CO., 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION,. (MSHA), 

Petitioner . 

v. 

JERRY VARNEY, employed by 

FREEDOM ENERGY MINlNG CO., 

Respondent 

December 2, 2010 

CONTEST PROCEEDING 

Docket No. KENT 2007-433-R 

Order No. 6643527;07 /31/2007 

#1 Mine 

Mine ID 15-07082 · 

. CIVIL PENALTY PROCEEDING 

Docket No. KENT 2008-776 

A.C. No. 15-07082-142973 -01 

#1 Mine 

. CIVIL PENALTY PROCEEDING 

Docket No; KENT 2008-1503 

A.C. No. 15-07082-157603A (10633A) 

#1 Mine 

CNIL PENALTY PROCEEDING 

Docket No. KENT 2008'."1506 

A.C. No. 15-07082-157602A (10634A) 

#1 Mine 

32 FMSHRC Page 1809 
DECISION 

Appearances: Joseph B. Luckett, Esq., Office of the Solicitor, U.S. Department of Labor, 

Nashville, Tennessee, on behalf of the Secretary of Labor; 

Carol Ann Marunich, Esq., Dinsmore & Shohl, LLP, Morgantown, West Virginia, 

for Respondents 

Before: Judge Zielinski 

These cases are before me on a Notice of Contest and Petitions for Assessment of Civil 

Penalties filed pursuant to sections 105 and 110 of the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 815, 820. The petition in Docket No. KENT 2008-776 alleges that Freedom 

Energy Mining Company is liable for 20 violations of the Secretary's Mandatory Safety 

Standards for Underground Coal Mines 1 and proposes the imposition of civil penalties in the 

amount of$52,116.00. The Secretary also filed petitions, pursuant to section 1 lO(c) of the Act, 

alleging that two employees·ofFreedom Energy are liable in their individual capacities for one 

violation, and seeks imposition of a civil penalty in the amount of $1,000.00 against each of the 

individual respondents. A motion seeking approval of partial settlement of 12 violations as to 

Freedom Energy was filed prior to the hearing. At the hearing, which was held in Pikeville, 

Kentucky, an oral motion was made seeking approval of settlement of an additional four 

violations. The proposed settlements will be approved. Remaining at issue as to Freedom 

Energy are four alleged violations, for which the Secretary has proposed civil penalties in the 

total amount of$29,809.00. The violations alleged as to the individual Respondents also remain 

at issue. The parties filed briefs following receipt of the hearing transcript.2 For the reasons set 

forth below, I find that Freedom Energy committed three of the violations, and impose civil 

penalties in the amount of $3,850.00. I also find that the Secretary failed to prove the allegations 

against the individual Respondents, Deskins and Varney, by a preponderance of the evidence. 

That citatioI,J. is vacated as to all parties and the petitions against the individual Respondents are 

dismissed. 

Findings of Fact - C~nclusions of Law 

Freedom Energy operates the subject underground coal mine, the #1 Mine, located in 

Pike County, Kentucky. Inspectors from the Secretary's Mine Safety and Health Administration 

("MSHA"), inspected the mine several times from July 2007 through January 2008. The 

citations and orders at issue in these cases were issued in the course of those inspections. 

Freedom Energy and the individual Respondents timely contested the alleged violations and 

assessed civil penalties. 

I 30 C.F.R. Part 75. 

2 The transcript of the first day of the hearing is referred to as "Tr." The transcript of the 

second day of the hearing is referred to as "Trll." 

32 FMSHRC Page 1810 
Citation No. 6643527 

Citation No. 6643527 was issued by MSHA inspector Darrell Hurley on July 31, 2007, 

and alleges a violation of 30 C.F.R. § 75.202(b), which provides that ''No person shall work or 

travel under unsupported roof .... " The violation was described in the "Condition and Practice" 

section of the Citation as follows: 

Observed the rail-mounted Fletcher Roof Bolter SIN 75170 being used to install 

primary support in a fall area. Six rows of four-foot resin rods had been installed 

and the Fletcher Roof Bolter was not equipped with an ATRS nor were any safety 

jacks being used or present at the work site. The distance the roof bolts had been 

installed measured 17'6". Two foremen were engaged in aggravated conduct 

constituting more than ordinary negligence because one was observed operating 

the roof bolter and one was standing beside the machine observing this action. A 

clean-up plan was posted at the three sides of the fall area and item 2 and item 10 

directly stated that under no circumstances will any one be allowed to travel out 

past roof support and the bolter will be equipped with an A TRS or safety roof 

jacks. This violation is an unwarrantable failure to comply with a mandatory 

standard. 

Ex. G-2. 

Hurley determined that it was reasonably likely that the violation would result in a 

permanently disabling injury, that the violation was significant and substantial ("S&S"), that one 

person was affected, and that the operator's negligence was high. The citation was issued 

pursuant to section I 04(d)(l) of the Act. A specially assessed civil penalty in the amount of 

$18,700.00 was proposed for this violation. 

The Violation 

Freedom was considering a change to its roof control plan in its No. l working section, 

and had requested that MSHA evaluate the proposal.3 Hurley, an MSHA roof control specialist, 

traveled to the mine in response to Freedom's request. He was accompanied by Arnold Fletcher, 

an MSHA trainee. Worley Taylor, a roof control specialist for the Kentucky Office of Mine 

Safety and Licensing, was also present to evaluate the roof control plan proposal, and traveled 

with Hurley and Fletcher. On the previous day, July 30, there had been a small roof fall on the 

track entry. The fall resulted from a shift in rock strata that had sheered off roof bolts ranging 

from several inches to two or three feet above the mine roof. It was below the anchorage zone of 

3 Operators are required to develop and follow a roof control plan approved by the 

MSHA district manager. 30 C.F.R. § 75.220(a). 

32 FMSHRC Page 1811 
the six-foot-long roof bolts and was not required to be reported as an accident.4 

The inspectors arrived at the mine and went to the office where they met with Eric 

Coleman, the mine superintendent at the time, who told them about the fall. They advised 

Coleman that they wanted to see the area of the fall, and Coleman replied that they would .be 

traveling right by it because it was on the track entry that was the route to the section. Coleman 

called underground to Rodney Chapman, a mine foreman, and instructed him to bring a transport 

vehicle to the elevator. The inspection party, including Coleman, went underground about 

9:00 a.m., and traveled to the working section on tracked vehicles. When theyreached the area 

of the fall, they had to stop. and proceed on foot. Escapeways and lifelines had been re-routed 

around the fall, the area had been dangered off, and copies of Freedom's clean-up plan had been 

posted at all approaches to the area. That plan specified that, when re-bolting a fall, a bolter with 

an ATRS be used, or that roof jacks be employed if the A TRS was not available or would not 

reach the roof.5 Ex. G-3. 

At the fall, the inspectors observed a track~mounted Fletcher roof bolter attached to a 

locomotive. The drill head was located at the end of a boom mounted on the inby end of the 

bolter. The controls were located on the.rightside of the boom, as viewed from the trackmounted base. There was a four-foot-square canopy above the controls, made of approximately 

one-half inch thick steel plate. As the inspectors walked forward, past the locomotive, they 

observed Myron Deskins, a mine foreman, at the bolter's controls in the process ofinstalling a 

roof bolt. Jeny Varney, another foreman, was standing to the right of the bolter, observing 

Deskins. The·bolter.did not have an ATRS and there were no jacks in the area. 

Deskins was approximately half-way through the process of installing the bolt. The 

inspection party watched him finish.for about two minutes, by which time Hurley ~'figured out 

what was happening." Tr. 41. Six rows of bolts had been fostalled in the fall area, and about two 

more rows of bolts needed to be installed to support the roof up to the inby edge of the fall. 6 

Hurley and the other inspectors believed that Desltjns and Varney had installed all of the bolts in 

the fall area without using jacks. Tr. 51-54, 120-21; Ex. G-2, R-14, R-15. As Hurley explained, 

"if you see a guy bolting and you walk up and they've been there all morning, you just make that 

assumption." Tr. 51. They believed that Deskins was continuing to bolt in the fall and, as such, 

4 An unplanned roof fall that is not "at or above the anchorage zone" is not ~ "accident" 

required to be reported under the Secretary's regulations. 30 C.F .R. § § 50.2(h)(8), 50.10. 

5 An A TRS is an automated temporary roof support system, ~ssemia11y, hydraulic jacks 

that apply pressure against the mine roof while bolts, permanent roof support, are being installed. 

6 There is conflicting evidence on the number of bolts that had been installed in the fall. 

Hurley testified that it was 27-29, and his notes reflect that it was 27. Tr. 32; Ex R-14. Fletcher 

testified that it was 20-24, and his notes reflect 24. Tr. 112; Ex. R-15. Taylor testified that it was 

23. Tr. 85. . 

32 FMSHRC Page 1812 
that he was under unsupported roof.7 Tr. 24, 88. When Deskins was finished with the bolt, 

Hurley called Deskins and V amey over and asked where the jacks were. No one responded, 

except Varney, who said he did not believe that jacks were needed. Hurley stated that Deskins 

and V amey should "know better" than to do what they were doing. Tr. 263. Coleman told the 

men to stay quiet until he could figure out what was going on. Tr. 56, 167. He believed that 

Hurley was accusing them of bolting the fall without jacks, and was concerned, based upon prior 

experience, that any statements made might be taken out of context and used against the · 

company. Tr. 167-69. Varney and Deskins followed Coleman's lead, and did not discuss the 

situation with the inspectors. Tr. 55, 115. Deskins explained that he was "bombarded" with 

accusatory questions, didn't see that he had done anything wrong, and felt that the situation 

"already went sour in my eyes." Tr. 263. He did not speak, in part, because he was upset with 

the whole situation." Tr. 264. 

Once outside Coleman was informed that a citation was being issued pursuant to section 

I 04( d)(l) of the Act for bolting the fall without jacks, which would have been a violation of 

Freedom's roof control plan. Tr. 170. The citation, as issued, specified a violation of a different 

standard, traveling under unsupported roof. Fletcher's notes indicate that Freedomwas informed 

that a section 104( d)(l) citation would be issued for not followirig the roof control plan and 

allowing miners to work under unsupported roof. Ex. R-15. 

The parties' respective versions of the facts are in irreconcilable conflict. Respondents 

contend that V amey and Deskins had not installed any of the bolts in the fall,· that Deskins was 

not bolting in the· fall when the inspectors arrived, and that he was not under unsupported roof. 

Deskins noticed a small area where material had separated from the plate on a bolt near the right 

rib that was adjacent to, but not in, the fall. He decided to spot a bolt in it while he and V amey 

waited for the inspectors, and was in the process of installing that bolt when the inspectors 

arrived on the scene. 

Coleman testified that, on July 30, the day of the fall, he secured jacks and the Fletcher 

roof bolter from another facility, and assigned John Ball, a second shift foreman, to begin the 

process of cleaning up and securing the roof in the area. Tr. 158-59. Ball testified that he and 

another miner installed cable bolts in the track entry leading up to the fall, and installed resingrouted roof bolts inthe area of the fall. Tr. 135-36. When working under the now-unsupported 

roof, they set jacks to provide temporary roof support, and used the track-mounted roof bolter to 

install a row ofbolts. Tr. 136. They backed the locomotive and bolter out of the area to a spur 

off the main track, brought in a scoop to clean the newly re-bolted area, brought the bolter back 

in, re-set the jacks, and repeated the process. Tr. 135-36. They worked 16 hours and installed 

about 27 bolts in the fall area, over the next two shifts. A small area on the left inby comer of the 

fall remained to be bolted. Tr. 137-38. That area of the track entry \Vas very confined and was 

7 Taylor's testimony was couched in terms of his assumption that the foremen had 

installed the other bolts and, because Deskins was bolting in the fall, "he would have to be inby 

the last row of permanent roof support." Tr. 92. 

32 FMSHRC Page 1813 
crowded with water lines. In order to facilitate cleaning, they removed everything they didn't 

need from the area, including the jacks. Tr. 139-40. The jacks were placed on a mantrip, which 

was backed out to allow the locomotive and bolter to be removed. Coleman thought that the 

third shift miners took the mantrip, with the jacks on it, to the elevator on their way out of the 

mine, because the jacks were found near the elevator. Tr. 182. 

When V amey reported for work on the morning of July 31, Coleman told him of the fall, 

that Ball was working on it, and asked him to see if anything needed to be done. Tr. 199. 

V amey and Chapman went underground about 7 :00 a.m., and proceeded to the area of the fall. 

Ball was preparing to clean a newly bolted area so that the remainder of the fall could be bolted. 

Tr. 109. Varney brought the scoop in, cleaned the area, which took about an hour, and then 

backed the scoop out and brought the locomotive and roof bolter fon'Vard. Tr. 199, 208-10. 

Deskins knew of the fall and went to the area to see if Varney needed any help. Tr. 249. He 

arrived-about the same time that Coleman called Chapman to get a ride for the inspection party. 

Tr. 210. 

Deskins testified that he noticed a small defect next to an existing bolt near the right rib 

that was not in the area that fell. He decided to put a bolt in it to make it safer while he and 

V amey waited for the inspectors. Tr. 211,-255-56. V amey did not object. Deskins went to the 

controls under the canopy on the right side of the roof bolter's boom and began to install the bolt. 

There was permanently supported roof to his rear, on both sides and in front of him. Tr. 211-13, 

258. He drilled the hole, but had trouble getting the. drill steels out. Tr. 258. About that time the 

inspectors arrived. Tr. 258. Deskins put the resin grout into the hole, and installed the bolt. 

Tr. 259. Hurley called Deskins and V amey over after Deskins finished, and the other previously-· 

described events. occurred. 

It is unfortunate, although perhaps understandable, that Coleman instructed Varney and 

Deskins to keep quiet when Hurley began to question them. Had there been an open discussion 

at that point, major_ conflicts in the evidence might have been eliminated. The precise location of 

the bolt that Deskins installed could have been fixed and the exact boundaries of the fall could 

have been diagramed. Ifthere was disagreement, more probative evidence, e.g., pictures and 

drawings, could have been developed on those critical issues. 8 As it is, when Hurley made a 

sketch of the area, he approximated the area of the fall, arid he made no attempt to indicate the 

locations of the bolts that had been installed in the fall or the bolt that Deskins installed. Tr. 60; 

8 Freedom apparently conducted some sort of investigation after the citation was issued. 

Tr. 187-89. However, no pictures diagrams or other materials were presented at the hearing. 

V amey testified that, in 2007, he didn't think they would need much evidence to refute the 

violation, and that if it happened today, he would g~ther.infonnation to support a defense. 

Tr. 243-44. He also stated that if he had to do it over again he would have explained what had 

happened to the inspectors - but that "hindsight was 20/20." Tr. 228. 

32 FMSHRC Page-1814 
Ex. G-4, R-14.9 His later-prepared diagram shows Deskins, who was, at the controls of the bolter, 

on the wrong (left) side ,of the boom, which would have placed him closer to the unsupported 

inby area ofthefall. 10 Ex. G-4. 

It is understandable that Hurley was not particularly concerned about the location of the 

bolt that Deskins installed. He, and the other inspectors, thought that Varney and Deskins had 

installed all of the bolts that had thus far been installed in the fall, and were simply installing one 

more. Since they were "obviously'' bolting the fall without an ATRS or jacks, they were in clear 

violation.of Freedom's roof control plan, and·Deskins would have had to have been under 

unsupported roof to install the next row of bolts, both to get to and while under the canopy. 

Tr. 70. The assumption that Varney and Deskins were in the process of bolting the fall, 

undoubtedly resulted in a lack of focus on the location of the bolt, and the possibility that it was 

adjacent to, not in, the fall. 

Despite the conflicts noted above, there are a few issues upon which the parties' evidence 

is not diametrically opposed. The diagram made by Hurley and the drawing submitted by 

Respondents show the bolter in virtually the same position in the entry, with the boom extended 

toward the right rib. Ex. G-4, R-16. Respondents' exhibit also depicts the location of the bolt 

that Deskins was installing when the inspectors arrived. It is consistent with the location and 

orientation of the bolter, as shown in both depictions, and I find that it accurately shows the 

location of the bolt along the right rib of the entry. 

Witnesses agreed that a substantial portion of the fall had been bolted, and that only a 

small area on the inby end remained to be supported. 11 There is also general agreement that the 

fall was somewhat irregularly shaped, and the area remaining to be bolted extended further inby 

on the left side of the entry than on the right. 12 Again, there are similarities in Hurley's sketch 

9 It appears that Hurley initially made a rough sketch of the scene in his notes. Ex. R-14. 

Later that day, he prepared a more detailed di~gram. Tr. 30; Ex. G-4. 

10 Hurley's diagram shows Deskins on the left side of the boom. Ex. G-4. Witnesses 

established that the control~ are on the right. Tr. 91, 122, 163, 214-15, 254. 

11 Approximately 11 feet of the 30-foot fall remained to be bolted. (Hurley) Tr. 32, 38. 

Seven to 11 feet of fall was unbolted. (Fletcher) Tr. 113. Unbolted area was 11 feet on left side, 

6-7 feet on right. (Taylor) Tr. 85, 101-04. Unbolted area was 6-8 feet, and two rows ofbolts 

were needed. (Coleman) Tr. 179. Small portion on left needed to be bolted, three to four bolts. 

(Varney) Tr. 179,201--04, 230-32; Ex. R-16. Fall was 98% bolted. (Deskins) Tr. 253. Inby 

comer on the left side of the entry was the only thing left to bolt, three to four bolts to finish. 

(Ball) Tr. 137-38,.142-43. 

12 Fall was oblong, like a football, and the area remaining to be bolted was about 11 feet 

on the left and 6-7 feet on the right. (Taylor) Tr~ I 01-04. Fall was shaped like a "u" from the left 

side, area to be bolted was on left side of the bolter. (Coleman) Tr. 155, 163. Area to be 

32 FMSHRC Page 1815 
and Respondents' depiction of the area on those issues. 13 On Respondents' drawing, the area of 

the fall was outlined in blue pen by Varney, Tr. 200.,.04; Ex. R-16. It generally corresponds with 

the shape of the fall described in the testimony. The area that had been bolted, highlighted in · 

pink, also generally corresponds with the testimony, and shows a small, unbolted area on the left 

inby portion of the fall. Neither Hurley's original sketch, nor his diagram, purport to show the 

bolted and unbolted areas of the fall. However, at the hearing he drew a line on his. diagram to 

indicate the area ofunsupported roofinby, and marked ''X"s and.dots to indicate where bolts had 

been installed; 14 Tr. 66-68;·Ex. G~. The line that he drew to identify.the unsupported area in the 

entry shows the supported area extending inby past the depicted location of the bolter drill head. 

He later testified thatthe line should have been further outby closer to the bolter, where he 

depicted the bolts. Tr. 72-73. However, the line, as drawn, corresponds with the testimony that 

the fall had largely been bolted. If it were moved back outby to where he depicted th~ bolts, 

there would have been substantially more of the fall, at least half, that had yet to be bolted. 

I find that the roof in the entry had been supported to a point inby where the bolter drill 

head was located, and that there was supported roof inby and outby where Deskins· was located 

on the right side of the bolter's boom, as Deskins and Varney testified. 15 The irregular shape of 

supported was small and pie-shaped, fall was wider outby and tapered in inby. (Varney) Tr. 230-

32. Fall remaining to be bolted was to the left of the bolter. (Deskins) Tr. 261. 

13 Hurley's original sketch, reflected in his notes, shows the fall as angled from right to 

left and extending further inby on the left side. Ex. R-14. His diagram shows.the fall essentially 

across thewidth of the entry on the inbyside. Ex. G-4; This relatively small inconsistency is 

quite significant, since Respondents claim that the area on the right rib toward the inby area of 

the fall, where Deskins installed the bolt, was not in the fall and was supported roof. 

14 The eyents in question occurred some three years prior to the hearing and recollections 

of events were not fresh in witnesses minds. When Hurley drew the line of unsupported roof on 

the exhibit, it is highly unlikely that he was doing so from recollection. Rather, he was most 

likely indicating an area consistent with his testimony that all but about 11 feet of the fall had 

been bolted. Likewise, when he placed ''x"s and.dots indicating the bolts, he was most likely 

showing where bolts would have been if Deskins was in the process of continuing to install 

another row of bolts in the fall area, which is what he assumed to be the case. But the last row of 

bolts in the fall could not have been that far outby, and been consistent with the testimony on the 

amount of the fall remaining to be.bolted. 

15 Hurley also believed that there was unsupported roof behind Deskins, possibly in the 

crosscut intersecting the track entry on the right. There was considerable dispute about whether 

the fall extended into the crosscut, and whether the roof in the crosscut was permanently 

supported. I see no need to resolve those conflicts, because, even if there was some unsupported 

roof in the crosscut, neither Deskins nor V arneywould have been under it. They were· in much 

the same relative position with respect to the crosscut, and there is no contention that Varney was 

under unsupported roof. Tr. 69. 

32 FMSHRC Page 1816 
the fall, and the fact that it extended further on the left side of the. entry than the right, also . 

supports Respondents' contention that the right rib, where Deskins installed the bolt, was not in 

the area of the fall. Ex. R-16. I so find. 

Responderits also argue that they would not have committed an overt violation, or 

exposed Deskins to a hazardous condition, in the presence of federal and State mine inspectors. 16 

Varney and Deskins were very experienced foreman at Freedom, had cleaned up previous falls, 

and were well aware of the requirements of the clean-up plan.·· Tr. 198, 248. They knew that 

Freedom had requested an evaluation of proposed changes to the roof control plan for the No. I 

section, and expected that inspectors would be coming into the mine that day. Tr. 207, 251, 257. 

More significantly, Chapman was with them when Coleman summoned him to bring a transport 

for the inspectors. Tr. 210. Consequently, they knew that inspectors were actually in the mine 

and would soon be coming up the track entry to the area of the fall, where they would have to 

disembark from the transport vehicle and proceed on foot. Tr. 211, 245, 257. Varney testified 

that he could hear the approach of the diesel.:.powered mantrip that the inspectors were on, and 

could see them walking up to the bolter. ·Tr. 245. Taylor was confident that Varney and Deskins 

knew he was in the mine. Tr. 96-97. 

Resolving the parties' competing versions of the facts has been difficult. The inspectors 

all had considerable mining experience, and were not likely to mistakenly conclude that Deskins 

was bolting in the fall. However, the similarities in the parties' evidence regarding the location 

of the bolter and the bolt, the shape of the fall and area of unsupported roof, are more consistent 

with Respondents' contentions, and lead me to conclude .that it is more likely that Deskins was 

under supported roof. I am also persuaded that Deskins and Varney would not have committed 

an obvious serious violation knowmg they were in, or would soon be in, the presence of mine 

inspectors. 

Considering all of the above, I find that the Secretary has failed to carry her burden of 

proof that the violation was committed, as alleged. Accordingly, the citation will be vacated. 

16 Deskins testified that he knew the inspectors were on the way because Chapman had 

gone to get them. He had no reason to hurry, because he didn't feel he was doing anything 

wrong. Tr. 257-58. Coleman testified that Varney and Deskins had 40 years of experience 

between them and deal with inspectors every day. They knew he was bringing two roof control 

inspectors to the section and would have to drive straight to them. If they would do something 

like they were accused of, they would have been fired years ago. Tr. 171-72. As previously 

noted, Varney testified that he heard and saw the inspectors approach and they were "absolutely 

not" putting a bolt in the fall. He would not have participated in an open violation of the roof 

control plan and would not have let his friend and co-worker engage in hazardous conduct. 

Tr. 224. 

32 FMSHRC Page 1817 
Individual· Liability 

The Act provides that a director, officer, or agent of a corporate operator may be subject 

to civil penalties in his individual capacity for knowingly authorizing, ordering or carrying out a 

violation oftheAct. 30 U.S.C. § 820(c). The legal standards governing individual liability have 

often been stated by the Commission. See, e.g., Maple Creek Mining, Inc. 27 FMSHRC 555, 

566-67(Aug. 2005). Having found that the Secretary failed to carry her burden of proof of 

establishing the violation of the cited provision, the cases against Varney and Deskins must also 

fail. 

Order No. 6645336 

Order No. 6645336 was issued by MSHA inspector Roger Workman on October 11, 

2007, and alleges a violation of 30 C.F.R. § 75.36Q(b), which requires that certified persons 

conduct preshift examinations ofvarious areas; including working sections, and specifies that 

''the examination shall include tests of the roof, face and rib conditions on these sections and in 

these areas." The violation was described in the "Condition and Practice" section of the Order as 

follows: 

An adequate preshift was not .conducted for the 001-0 MMU section, dated 10-11-

07, from 5:35 a;m. to.6:20 a.m. The,preshift examiner failed to recognize the #4 

right crosscut was not permanently supported and no warning devices were in 

place to warn miners of the unsupported mine roof. There. was a line curtain hung 

on the last row of permanent supports going by.the unsupported crosscut. The 

operator is required to· have a safety talk with foremen before this order is 

terminated. Two other violations were issued in conjunction with this order. 

Citation# 6645334. Citation 6645335. 

Ex. G-6. 

Workman detennined that it was reasonably likely that the violation would result in an 

injury requiring lost work days or restricted duty, that the violation was S&S, that one person was 

affected, and that the operator's negligence was high. The order was issued pursuant to section 

104(d)(l) of the Act, and alleged that the violation was the result of the operator's unwarrantable 

failure to comply with the mandatory standard. A specially assessed civil penalty in the amount 

of$9,800.00 was proposed for this violation. 

32 FMSHRC Page 1818 
The Violation 

Workman was at the mine to conduct a regular quarterly inspection. 17 He was 

accompanied by Lester Preece, an inspector trainee, and Varney, who represented Freedom. 

They traveled the No. 4 entry of the 001 MMU, and observed notations made by Jonathan Hunt, 

the foreman on the midnight shift, who had conducted the preshift examination for the oncoming 

day shift between 5:30 a.m. and 6:28 a.m. that morning. Preshift examiners mark the date and 

time of their examination and initial the entries at various locations during their examinations, 

including on the roof and ribs, and at the faces. The entry was clean, had been rock dusted, and a 

line curtain had been hung on the last row of roof bolts on the right side of the entry to within 

eight feet of the face. From all appearances, there were no hazards in the area, and none had 

been reported by Hunt in the preshift record book. Tr. 293. 

Workman lifted the curtain to check the condition of the right rib and found the #4 right 

crosscut had been cut to a depth of about 20 feet, but had been left unbolted. There were no 

warning devices alerting persons to the condition, which posed a serious hazard. The opening of 

the crosscut began about 16 feet from the face~ eight feet from the end of the curtain, and 

extended outby for approximately 20 feet. The condition is depicted iri a diagram prepared by 

Preece. Tr. 329; Ex. G-7. Under Freedom's roof control plan, no one is permitted to proceed 

inby a newly mined crosscut until at least three rows of roof bolts have been installed. 

Unsupported mine roof may fall, and if it falls, it would typically take out the first row of bolts it 

encounters. Tr. 297, 332. Consequently a fall of the roof in the crosscut would most likely have 

extended out into the entry, a few feet past the row of bolts that the line curtain had been hung 

on. Clearly, this posed a threat of serious injury to any person working or traveling in that part of 

the entry. And just as clearly, Hunt had failed to sufficiently examine the right rib of the entry, as 

required by the standard. · · 

Respondent concedes that it was improper to hang the curtain without first having bolted 

the crosscut, but contends that improperly hanging the line curtain does not definitively establish 

a violation of section 75.360(b ). Respondent argues that the preshift examiner "could have been 

following MSHA's regulations and conducting a thorough preshift examination and still have 

missed this condition." Resp. Br. at 17. Respondent's argument is based, in part, on a 

consideration that has nothing to do with the violation. It points to the fact that an examiner 

should not stand behind the line curtain to measure the volume of air flow, because his body 

would interfere with the flow. Tr. 345. However, a proper examination of the rib would have 

been entirely independent of an air flow measurement. Freedom also argues; relying on Varney' s 

testimony, that an examiner could have examined the rib by looking behind the end of the 

curtain, and failed to see the crosscut. Tr. 347. However, since Varney never looked behind the 

curtain, the accuracy of that statement is highly questionable. Tr. 358-59. Varney also conceded 

that a preshift examiner should check behind the curtain for hazards, and would have to look 

17 The Act requires that underground coal mines be inspected four times annually .. 

30 U.S.C. § 813(a). 

32 FMSHRC Page 1819 
behind the curtain to check for loose ribs. Tr. 346, 357. Any examination of the right rib that 

failed to disclose the presence of the crosscut would have been per se inadequate. I find that· 

Freedom violated the standard by failing to conduct a proper preshift examination. 

Significant and Substantial 

An S&S violation is described in section 104(d)(l) of the Act as a violation "of such 

nature as could significantly and substantially contribute to the cause and effect of a coal or other 

mine safety or health hazard." A violation is properly designated S&S "if, based upon the 

particular facts surrounding that violation, there exists a reasonable likelihood that the hazard 

contributed to will result in an injury or illness of a reasonably serious nature." Cement Div., 

Nat 'I Gypsum Co., 3 FMSHRC 822, 825 {Apr. 1981 ). 

The Commission has explained that: 

In order to establish that a violation of a mandatory safety standard is 

significant and substantial.under National Gypsum, the Secretary of Labor must .· 

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

safety hazard--that is, a measure of danger to safety--contributed to by the 

violation; (3) a reasonable likelihood that the hazard contributed to will result in. 

an injury; and ( 4) a reasonable likelihood that the injury in question will be of a 

reasonably serious nature. 

Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan.1984) (footnote omitted); see also, Buck Creek Coal, 

Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Secretary of Labor, 861 

F.2d 99, 103-04 (5th Cir. 1988), affg Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987) 

(approving Mathies criteria). 

In U.S. SteelMiningCo., Inc., 7FMSHRC1125, 1129 (Aug. 1985), the Commission 

provided additional guidance: 

We have explained further that the third element of the Mathies formula "requires 

that the Secretary establish a reasonable likelihood that the hazard contributed to 

will result in an event in which there is an injury." U.S. Steel Mining Co., Inc., 

6 FMSHRC 1834, 1836 (August 1984). We have emphasized that, in accordance 

with the language of section 104( d)(l ), it is the ,contribution of a violation to the 

cause and effect of a hazard that must be significant and substantial. U.S. Steel 

Mining Co., Inc., 6 FMSHRC 1866, 1868(August 1984); U.S. Steel Mining Co.,. 

Inc., 6 FMSHRC 1573, 1574-75(July1984). 

This evaluation is made in tenns of"continued nonnal mining operations." U.S. Steel, 

6 FMSHRC at 157 4. The question of whether a particular violation is significant and substantial 

must be based on the particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 

498 (Apr. 1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987). 

32 FMSHRC Page 1820 
The fact of the violation has been established. A measure of danger to safety was 

contributed to by the failure to conduct an adequate preshift examination, a hazardous condition 

was not discovered and corrected or dangered off. There is little question that any injury 

resulting from a roof fall would have been reasonably serious and could easily have been fatal. 

As is often the case, the primary issue in the S&S analysis is whether the violation was 

reasonably likely to result in an injury causing event. 

The injury causing event in this instance would be a roof fall in the unbolted crosscut that 

would extend past the first row of bolts and strike a person in the entry.· That would require a·· 

confluence of two events, a roof fall in the crosscut and a person being present in the area of the 

entry affected by the fall. The roof in the mine was composed of sandstone and shale, which 

tends to separate at the seams of the layers, creating loose draw rock. Tr. 296. Workman 

explained that one cannottell ifa roof is about to fall by looking at it. Tr. 31 L Draw rock was 

not uncommon on the section, but the roof in and around the crosscut appeared to be in good 

condition, and there was no apparent draw rock. Tr. 296, 311, 334. Judging from the appearance 

of the roof, a fall was not imminent. 

While the eritry was not a main travelway, persons had been in the entry, and were 

expected to be in the entry prior to the abatement of the hazardous condition. The hazardous 

condition most likely was created during the evening shift the day before. While it had existed 

for some 10 hours, it had existed only for about four hours after the preshift examination at issue, 

and may have existed for the rest of the shift .. Tr. 299. ·The entry had been cleaned and dusted, 

and the line curtain had been hung. Tr. 307. Hunt had conducted the preshift examination, and a 

miner operator may have traveled to the face to conduct safety checks. However, the cleaning 

and dusting, as well as the hanging of the curtain, would have occurred prior to the conduct of 

the preshift examination. Consequently, any exposure to those persons should not be considered 

in evaluating the likelihood of an injury occurring because of the inadequate preshift 

examination. Travel in the entry after the inadequate preshift examination would have been very 

limited. A miner operator conducting safety checks was the only possibility noted, except for the 

unlikely prospect of a person simply deciding to walk up the entry. A day shift foreman may also 

have conducted an.on-shift examination, but would likelyhave discovered the condition and 

avoided it. 

A roof fall in the crosscut could extend to the second row of bolts, about eight feet into 

the entry, and four feet past the line curtain. Tr. 297. It was generally recognized that miners 

would most likely travel near the center of the entry, i.e., approximately 10 feet from either rib. 

Tr. 337, 342. To be struck by a fall in the crosscut, a person would have had to be within four 

feet of the line curtain, i.e., on the extreme right side of the 16 foot -wide opening between the left 

rib and the curtain. 

While I agree with Workman, that people that make a habit of traveling under 

unsupported roof will eventually suffer a fatal injury, I am not convinced that the violation, an 

inadequate preshift examination, was reasonably likely to result in an injury causing event. 

32 FMSHRC Page 1821 
Tr. 306. The presence of persons in the entry was and would have been quite limited, and it is 

likely that any persons who did travel the entry would have remained far enough away from the 

right rib and line curtain, such .that they would not have been injured even in the unlikely event 

that they happened to be adjacent to the crosscut when its rooffell. 

Given all of these factors, I find that, while it is possible that a serious injury could have 

occurred as a result of the violation, the Secretary failed to carry her burden of establishing that it 

was reasonably likely that a serious injury would occur in the normal course of continued normal 

mining operations. I find that the violation was unlikely to result in a permanently disabling 

injury and that it was not S&S. 

Unwarrantable Failure - Negligence· 

In Lopke Quarries, Inc;, 23 FMSHRC 705, 711 (July 2001), the Commission reiterated 

the law applicable to determining whether a violation is the result of an unwarrantable failure: 

The unwarrantable failure terminology is taken from section 104( d) of the 

Act, 30 U.S.C. § 814(d), and refers to more serious conduct by an operator in 

connection with a violation. In Emery Mining Corp., 9 FMSHRC 1997 (Dec. 

. 1987), the Commission determined that unwarrantable failure is aggravated 

conduct constituting more than ordinary negligence. Id. at 2001, Unwarrantable . · · 

failure is characterized by such conduct as ,.reckless disregard, 11 ,.intentional 

misconduct," "indifference," or a "serious lack ofreasonable care." Id. at 

2003-04; Rochester & Pittsburgh Coal Co.,13 FMSHRC 189, 194 (Feb. 1991) 

("R&P"); see also Buck Creek [Coal, Inc. v. FMSHRC, 52 F.3d 133, 136 (7th Cir. 

1995)] (approving Commission's unwarrantable failure test). 

Whether conduct is "aggravated" in the context of an unwarrantable 

failure ail.alysis is determined by looking at all the facts and circumstances of each 

case to see if any aggravating factors exist,· such as the length of time that the 

violation has existed, the. extent of the violative condition, whether the operator 

has been placed on notice that greater efforts are necessary for compliance, the 

operator's efforts in abating the violative condition, whether the violation is 

obvious or poses a high degree of danger, and the operator's knowledge of the 

. existence of the violation. See Consolidation Coal Co., 22 FMSHRC 340, 353 

(Mar. 2000) ... ; Cyprns Emerald Res. Corp., 20 FMSHRC 790, 813 (Aug. 

1998), rev'd on other grounds, 195 F.3d 42 (D.C. Cir. 1999); Midwest Material 

Co.; 19 FMSHRC 30, 34 (Jan. 1997); .Mullins & Sons Coal Co., 16 FMSHRC 

192, 195 (Feb. 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261(Aug.1992); 

BethEnergy Mines, Inc., 14 FMSHRC 1232, 1243-44 (Aug. 1992); Quin/and 

Coals, Inc., 10 FMSHRC 705, 709 (June 1988). All of the relevant facts and 

circumstances of each case must be examined to determine if an actor's conduct is 

aggravated, or whether mitigating circumstarices exist. Consol, 22 FMSHRC at 

353. Because supervisors are held to a high standard of care, another important 

32 FMSHRC Page 1822 
factor supporting an unwarrantable failure determination is the involvement of a 

supervisor in the violation. REB Enters., Inc., 20 FMSHRC 203, 225 (Mar. 

1998). 

The Order was issued pursuant to section 104(d)(l) of the Act. 18 The predicate section 

104(d)(l) citation was Citation No. 6633527. That citation was invalidated above, which 

dictates that, in order to be properly issued pursuant to section 104( d), the Order would have to 

be considered a citation, and the violation would have to be both S&S and the result of an 

unwarrantable failure. 30 U.S.C. § 814(d)(l). Having found that the violation was not S&S, it is 

technically unnecessary to decide whether it resulted from an unwarrantable failure. However, it 

is necessary to address the issue of negligence, which is alleged to have been high. Because tlie 

S&S findings herein may, or may not, become final, the issue of unwarrantable failure will be 

addressed for the sake of judicial economy. 

The Secretary contends that the violation: was an unwarrantable failure because the 

preshift examiner, an agent of the operator, failed to examine the right rib of the entry, a clear -· 

violation of the standard. She notes that the condition was extremely dangerous, and that the 

unbolted crosscut would have been an obvious hazard to anyone who looked at it. 

The unbolted crosscut presented the potential for a roof fall that would extend into the 

entry, possibly four feet past the line curtain. The hazardous nature of that condition was 

exacerbated by the hanging of line curtain that hid the condition, so that persons traveling in the 

entry could not see it. The hanging of the line curtain and the failure to danger off the area were 

egregious actions, and Workman issued two S&S citations related to the creation of the hazard. 

Ex. G-8, G-9. Those citations were issued pursuant to section 104(a) oftheAct, because 

Workman had no evidence linking the obviously high negligence of the responsible hourly 

employees to mine management. Tr. 323. 

18 Section 104(b) of the Act provides: 

If, upon any follow-:up inspection of a coal or other mine, an authorized 

representative of the Secretary finds ( 1) .that a violation described in a citation 

issued pursuant to subsection (a) has not been totally abated within the period of 

time as originally fixed therein or as subsequently extended, and (2) that the 

period of time for the abatement should not be :further extended, he shall 

determine the extent of the area affected by the violation and shall promptly issue 

an order requiring the operator of such mine or his agent to immediately cause all 

persons, except those persons referred to in.subsection (c), to be withdrawn from,_ 

and to be prohibited from entering, such area until an authorized representative of 

the Secretary determines that such violation has been abated. 

30 U.S.C. § 814(b). 

32 FMSHRC Page 1823 
The instantviolation stands on a slightly different footing. The violation at issue did not 

involve the creation of the hazard, but, rather the failure to discover it, about eight hours after it 

had been created. Workman noted that the condition had existed for at least 10 hours when he 

issued the order. However, the violation at issue had occurred approximately four hours earlier. 

The condition could not be observed by anyone in the ~try. but it would have been obvious to 

anyone who looked behind the line curtain in the area of the crosscut. Was the violation, the 

inadequate preshift examination, obvious or extensive? These concepts are not easily applied io · 

this "failure to look" violation. 

Freedom contends that there are several mitigating factors that preclude a finding of high 

negligence or reckless disregard. The curtain had been hung to the face, giving every appearance 

that the crosscut had not been cut. There is no dispute that this was a highly unusual situation 

that had not been encountered at the mine. Workman agreed that the preshift examiner was "put 

in a bad position" by those who created the hazard. Tr. 315-16. Varney postulated that, under 

the circumstances, with the entry cleaned and dusted and the roof and left rib appearing in good 

condition, that he might not have looked behind the curtain to check the right rib, because it too 

would be fine "90% .of the time." Tr. 359-60, 362. 

Whether Hunt's actions rose to the level of unwarrantable failure is a close question. On 

the one hand, he was an agent of the operator, and he clearly did not effectively examine the right 

rib of the entry, as required by the standard. As a result, a condition hazardous to persons 

traveling in the entry was not discovered and wo.uld have continued to exist for approximately 

one more shift. On the other ham:t, the hazard affected a relatively small area of the entry. Very 

few miners would have had reason to travel in the entry,. and probably would not have traveled in 

the affected area. He apparently assumed, given that the roof and left rib were in good condition, 

that the right rib also posed no hazard. 

As the Secretary points out in her brief, the Act's preshift examination requirements are 

"of :fundamental importance in assuring a safe working environment underground." Buck Creek 

Coal Co., 17 FMSHRC 8, 15 (Jan. 1995). An effective examination by a certified person 

provides assurance that no hazardous conditions will be encountered by miners assigned to work 

or travel in the area. Freedom• s agent's failure to effectively examine the right rib was clearly a 

violation of the standard that allowed a hazardous condition that could have resulted in a fatal 

accident to continue. I find that the violation was the result of Freedom's high negligence, and 

its unwarrantable failure to comply with the standard. 

Citation No. 6655438 

Citation No. 6655438 was issued by MSHA inspector Craig Plumley on January 7, 2008, 

and alleges a violation of30 C.F.R. § 75.512, which requires that "electric equipment shall be ... 

properly maintained by a qualified person to assure safe operating conditions." The violation 

was described in the "Condition and Practice" section of the Citation as follows: 

32 FMSHRC Page 1824 
In the underground shop area at the bottom of the elevator shaft, the operator has 

failed to maintain electrical equipment in safe operating condition. Two electrical 

heating elements were operating and were red-hot with no protective guarding to 

prevent persons from being exposed and coming into contact with this open heat ·· 

source. The two heating elements are located 24 inches above the ground, 12 

inches from a 2-man bench seat, 24 inches from personnel lockers and within 48 

inches of the walkwaywhere personnel enter and exit the mantrip. Persons 

coming into contact with this exposed heat source would receive severe burn 

tnJunes. 

Ex. G-12. 

Plumley determined that it was reasonably likely that the violation would result in a 

permanently disabling injury, that the violation was S&S, that one person was affected, and that 

the operator's negligence was moderate. A civil penalty in the amount of$1,304.00 was 

proposed for this violation. 

The Violation 

Plumley was a ventilation specialist who had returned to the mine to terminate a citation 

that had been issued related to seals. He was accompanied by Keith Preece, who was in training 

to become a certified MSHA inspector. As they entered the shop area where the mine elevator 

terminated, Plumley noticed a "burning" smell and traced it to two electrical heating elements 

that were located behind a small bench. The heating elements were inside stainless steel 

cylinders that were 10 inches in diameter and 12 inches tall. They were about 12 inches apart, 

and had several electrical heating elements, similar to burners on an electric stove top, arranged 

two to three inches below each other starting about three inches from the tops of the open 

cylinders. The eylinders had been used to clean filters of diesel locomotives, but were no longer 

used for that purpose because the engines of the locomotives had been changed, and the filter$ 

were no longer required. The heating elements were controlled by timers, which cycled on and 

off over a period of about 45 minutes. They were energized during cold periods to provide heat 

for persons in that part of the shop area. 

There are no significant factual disputes as to the cited condition. The heating elements 

were extremely hot, and the steel cylinders were also very hot. There was no guard or other 

barrier to prevent access to the heating elements, or the cylinders themselves, which were located 

in an area traveled by miners entering and exiting the mine. The violation was abated by the 

installation of expanded metal guards preventing contact with the cylinders. 

Respondent argues that the devices were not defective and that they presented no hazard 

because in order to suffer a burn injury a person would have to intentionally stick his hand down 

through the curing filter to the heating element. The arguments are unavailing. The key 

consideration in the standard is that electric equipment be maintained in a safe condition. The 

fact that the cylinders were not defective, in an operational sense, does not alter the fact that they 

32 FMSHRC Page 1825 
were extremely hot when in operation, and could cause injury to anyone coming into contact with 

them. It would not have been necessary to contact the heating elements to suffer a burn injury. 

The hot steel ,cylinders themselves could also have caused an injury. There is some suggestion 

that the devices were still in use to clean filters at the time of the alleged violation. I find that 

they were no longer used for that purpose. In any ~vent, it is clear that they were not being used 

to clean filters at the time of the violation. Smith explained that the filters were also 10 inches in 

diameter and fit on top of the cylinders. There clearly were no filters on the devices at the time. 

They were being used to provide heat in the shop area, not to clean filters. With no filter on top, 

the heating elements were readily accessible to inadvertent contact. 

I find that the cylinders and heating elements presented a hazard. Persons coming into 

contact with either object could suffer burns. Because the electrical equipment was not 

maintained in safe operating condition, the standard was violated. 

S&S 

Plumley believed that the hazard was reasonably likely to result in a pennanent injury, 

either from personal contact with the hot surfaces, or a fire resulting from clothing or objects 

coming into contact with the heating elements. Crews worked on two sections in the mine, three 

shifts. per day, six days per week. Consequently, two groups of 18-20 men, one exiting and one 

entering the mine, traveled through the shop area three times per day. If a mantrip was not 

immediately available, the group entering might spend 5 to -10 minutes in the area. In cold 

weather, men waiting in the area would gather near the cylinders for warmth. The area was 

clean, generally dry, and there were no slipping or tripping hazards noted. Plumley thought that• 

there were personnellockers in the area, but,. they were actually metal tool boxes that resembled 

lockers and were not routinely accessed by the miners in transit. Tr II. 14, 45. 

Respondent counters that miners also have access to mantrips through an adjacent entry, 

and do not necessarily travel through the shop area when entering and exiting the mine~ There 

are also numerous fire extinguishers in the shop area. The cylinders have been in operation for 

many years and have caused no injuries. Miners and other personnel, including mine inspectors, 

have warmed themselves by the heaters, which have never been cited as being in violation of a 

standard. Respondent also argues that the chance of inadvertent contact was minimized by the 

presence of the timing devices·on a shelf located above the devices. Trll. 112. 

Considering the number and frequency of miners that came into relatively close proximity 

to the unprotected cylinders, I find that it was reasonably likely that a miner would have suffered 

a bum injury as a result ofthe violation~ However, I find it unlikely that any such injury would 

have been reasonably serious. Rather, a miner, typically wearing protective clothing, would 

suffer no more than a minor bum injury, resulting in no lost work days.19 Consequently, the 

19 Plumley also.determined that injuries might result from a fire originating from the 

heating elements contacting clothing or personal items worn by miners sitting on the bench, or by 

32 FMSHRC Page 1826 
violation was not S&S. I agree with Plumley's assessment of the degree of operator negligence 

as moderate, for the reasons stated in his testimony. Trll. at 16-17. 

Citation No. 6656994 

Citation No. 6656994 was issued by MSHA inspector Kip Bell, on January 10, 2008, and 

alleges a violation of 30 C.F.R. § 75.202(a), which requites that the "roof, face and ribs of areas 

where persons work or travel shall be supported·or otherwise controlled to protect persons from 

hazards related to falls of the roof, face or ribs and coal or rock bursts." The violation was 

described in the "Condition and Practice" section of the Citation as follows: 

The roof where persons work or travel, is not being supported to prevent falls of 

the mine roof, located at the elevator bottom at the man trip storage area (track 

spur). There are two cribs on the left rib that have not been constructed firmly 

against the mine roof. The area between the top of the cribs and the mine roof 

measures approximately Linch to 10 inches. Loose and broken draw rock is 

present in the affected area. 

Ex. G-16. 

Bell determined that it was reasonably likely that the violation would result in a 

permanently disabling injury, that the violation was S&S, that one person was affected~ and that 

the operator's negligence was moderate. A civil penalty in the amount of$1,304.00was 

proposed for this violation. 

The Violation 

Bell was conducting a regular quarterly inspection of the Freedom mine. He was 

accompanied by Phillip Carter, an MSHA inspector in training. The area in question was located 

at the bottom of the mine elevator, where crews entering the mine boarded man trips to travel to 

the working sections, and crews exiting the mine exited man trips to get on the elevator. Man 

trips, used to transport miners to and from the working sections, traveled on tracks that ran in an 

entry adjacent to the elevator access. Another entry intersected the main track entry in the area of 

the elevator. A short section of track, or spur, ran up that entry and was used to store man trips 

that were inactive or in need of repair. Trll. 73, 78. A switch controlled tracked vehicles' access 

to the spur. Generally, entering miners boarded the vehicles parked on the main track that had 

been used by the exiting miners to travel to the elevator. Trll. 78, 84. Occasionally, a man trip 

was not immediately available on the main track, and one that was stored on the spur was used. 

items being tossed into the cylinders on the mistaken belief that they were trash cans. His 

description of how such a fire might result in an injury was vague. He opined only that smoke 

could be generated and thatthere was flammable material used in the shop. Trll. at 30. I fmd it 

highly unlikely that the· violation would have resulted in a fire-caused injury. 

32 FMSHRC Page 1827 
There had been a rib roll on the left side of the entry in which the spur was located, and 

12 sets of cribs had been erected along the rib to provide roof support and protection from rib 

rolls.20 Nine jacks had also been installed on the right side of the entry, to provide supplemental 

roof support. The spur entry was approximately 20 feet wide, rib-to-rib. The cribs and jacks 

effectively shortened the width to 15-16 feet. Trll. 73. The mine roof in the area of the cribs was 

broken, and loose draw rock was present. Tr II. 56, 79. The two cribs that were nearest to the 

main track had been dislodged, possibly by a piece of mobile equipment, such that they were no 

longer in contact with·the mine roof. Varney traveled with Bell and confirmed.the conditions 

observed by Bell and Carter. Trll. 75, 79. When the inspection party traveled to the working 

sections, the shop personnel "tightened up" the cribs, and the citation was terrn.4iated by Bell . 

when he returned to exit the mine. 

Rib rolls change the location of the rib/roof intersection, lengthening the distance from 

existing roof bolts to the rib, and· necessitating the installation of supplemental roof support. 

Trll. 83. Properly installed cribs supplied that support, and provided protection from further 

deterioration of the rib and the adjacent mine roof. The two cribs that were not installed firmly 

against the roof did not provide the required support and created the possibility of further 

deterioration of the roof and rib. Tr II. 55-56. They also presented an additional hazard, because 

they could be toppled by a rib roll and strike a nearby miner. Trll. 56-57. 

Respondent argues that the standard was not violated because there was adequate roof 

support in the area, and the "loosened cribs were still present and provided adequate protection." 

Resp. Br. at 26. I reject the argument. The critical area was located in the immediate vicinity of 

the left rib of the spur entry, where the rib roll had occurred, and the cribs had been erected. The 

presence of permanent roof support in the entry, and the jacks on the opposite side, did not 

provide support in that area. Trll. 88. Nor did the ·loosened cribs provide support for the roof in 

that area, which had loose and broken draw rock. 

I find that the standard was violated, as alleged in the citation. 

S&S 

An injury caused by falling draw .rock; or crib timbers toppling into or onto a miner, 

would have been reasonably serious. Trll. 58. The critical question in the S&S analysis is 

whether an injury causing event was reasonably likely to have resulted from the violation. There 

was loose draw rock. in the area that could have fallen at any time. However, the evidence 

establishes that it was confined to the immediate area of the cribs, where the rib roll had 

occurred. The cribs themselves, including the two that were not firmly against the roof, provided 

a reasonably effective barrier to travel under the loose draw rock. Bell did not require that any 

draw rock be taken down before departing the area, and did not require that the area be dangered 

20 Cribs are constructed of 6-by-6-by-30-inch pieces of hardwood, stacked in alternating 

pairs. Wooden wedges are driven between the mine roof and the last layer of structural timber.· 

32 FMSHRC Page 1828 
off before departing to inspect the working sections. Trll. 64, 79 .. It is unlikely that a miner 

would have been injured by falling draw rock. Arib roll might have toppled the loose cribs, and 

they might have fallen on or into a miner in the immediate area. However, the probability of 

such a rib roll occurring is unknown. That section of the mine had been developed many years 

before, and. the rib roll had occurred years before. Trll. 71. Miners were only occasionally in the 

area. Man trips on the spur were not routinely accessed. Trll. 78. If an additional vehicle was 

needed, an operator would conduct a pre"."operational inspection of the vehicle, and then move it 

onto the main track.. Trll. 53. If it was to be used to transport a crew to a working section, the 

miners would generally enter the spur entry to board the covered man trip. However, there is no 

evidence that that was a frequent occurrence. 

In light of the uncertainty of a potentially injury-causing event and limited presence of 

miners in the subject area, I find that the Secretary has failed to prove by a preponderance of the 

evidence that the violation was S&S. 

Negligence. 

Bell determined that Respondent's negligence was moderate because examiners checked 

the area three times per day, and there were numerous. foremen passing by the conditiondaily. 

While the condition should have been observed by foremen passing through the area, there is.no 

evidence as to how long the condition had existed. The cribs could have been dislodged· by a 

piece of mobile equipment shortly before the inspectors arrived. Varney had noted a similar 

condition and corrected it about a month earlier. Trll. 61, 86. I find that Respondent's 

negligence was low. 

The Appropriate Civil Penalties 

The Freedom Energy Mining Company's #1 mine is a very large mine which produced 

over 1,000,000 tons of coalin 2007. Its controlling entity is also extremely large. The 

assessment data refleets that it averaged slightly over 0.5 violations per inspection day during the 

relevant period, a moderate incidence of violations. Freedom does not contend that payment of 

the proposed penalties will affect its ability to continue in business. The violations were 

promptly abated. 

Order No. 6645336 is modified to a citation issued pursuant to section 104(a) of the Act, 

and the violation is affirmed. However, the gravity of the violation was found to be less serious 

than alleged, including that it was not S&S. Respondent's negligence was found to be high. A 

specially assessed civil penalty of $9;800.00 was proposed by the Secretary. The reduction in 

gravity justifies a significant reduction in the propos~d penalty. I impose a penalty in the amount 

of$3,000.00 upon consideration of the above and the factors enumerated in section l IO(i) of the 

Act. 

Citation No. 6655438 is affinned. However, the gravity of the violation was found to be 

less serious than alleged, including that it was not S&S. A civil penalty in the amount of 

32 FMSHRC Page 1829 
$1,304.00 was proposed by the Secretary. The lowering of the level of gravity justifies a 

reduction in the proposed penalty. i impose a penalty in the amount of$500.00 upon 

consideration of the above and the factors enumerated in section 1 lO(i) of the Act. 

Citation No. 6656994 is affirmed. However, the gravity of the violation was found to be 

less serious than alleged, including that it was not S&S. In addition, the operator's negligence 

was found to be low. A civil penalty in the amount of$1,304.00 was proposed by the Secretary. 

The lowering of the levels of negligence and gravity justify a significant reduction in the 

proposed penalty. I impose a penalty in the amountof$350.00 upon consideration of the above 

and the factors enumerated in section 11 O(i) of the Act. 

The Settlement 

On May 19, 2010, the Secretary filed a Joint Motion to Approve Partial Settlement, whicli 

presented a proposed disposition of 12 of the citations at issue. At the commencement of the 

hearing, the parties jointly moved for approval of a proposed settlement of four additional 

citations. As to the settlement of the 16 citations which are the subjects of the motions, the 

Secretary has agreed to modify six citations and it is proposed that the total penalty for the settled 

violations be reduced from $21,058.00 to $14, 102.00. I have considered the representations and 

evidence submitted· and conclude that the proffered settlements ate appropriate under the criteria 

set forth in section 11 O(i) of the Act. 

ORDER 

WHEREFORE, the motions for approval of settlement are GRANTED, and it is 

ORDERED that the citations are hereby amended as proposed in the·motions and that 

Respondent pay a penalty of$14,102.00 for the settled violations. 

Citation No. 6643527 is VACATED, and the petitions in Docket Nos. KENT 2008-1503 

and KENT 2008-1506 are DISMISSED. Order No. 6645336 is MODIFIED to a citatiOn issued 

pursuant'to section 104(a) of the Act and, as so modified, is AFFIRMED. Citation Nos. · 

6655438 and 6656994 are AFFIRMED, as modified, and Respondent is ORDERED to pay 

civil penalties in the amount of $3,850.00, for the litigated violations. 

32 FMSHRC Page.1830 
Distribution (Certified Mail): 

Joseph B. Luckett, Esq., Donna E. Sonner, Esq., Office of the Solicitor, U.S. Department of 

Labor, 618 Church Street, Suite 230, Nashville, TN 37219-2456 

Carol Ann Marunich, Esq., Dinsmore & Shohl, LLP, 215 Don Knotts Blvd., Suite 310, 

Morgantown, WV 26501 

32 FMSHRC Page 1831 
FEDERAL MINE SAFETY ANO HEALTH REVIEW COMMISSION 

72119th STREET, SUITE 443 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

LAFARGE MIDWEST, INC., 

Respondent 

DENVER, CO 80202-2500 

303-844-5267/FAX 303-844-5268 

December 8, 2010 

. CNIL PENALTY PROCEEDING 

Docket No. CENT 2009-344-M 

A.C. No. 14-00073-178858 

Lafarge Midwest Inc. 

DECISION 

Appearances: Matthew Finnigan, Office of the Solicitor, U.S. Department of Labor, 

Denver, Colorado, for Petitioner; 

Christopher Peterson, Jackson Kelly, PLLC, Denver, Colorado, for 

Respondent. 

Before: Judge Miller 

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 Lafarge Midwest, 

Inc., ("Lafarge") pursuant to sections 105 and 110 of the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. §§ 815 and 820 (the "Mine Act" or "Act"). The case involves one citation 

issued by MSHA under section 104( d) of the Mine Act at the Lafarge Midwest cement plant 

operated by Lafarge Midwest, Inc. The parties presented testimony and documentary evidence 

at the hearing held in Wichita, Kansas on June 15, 2010. At the conclusion of the hearing, the 

parties presented oral arguments, and a decision was rendered from the bench. This decision 

incorporates the decision issued from the bench, and adds to that decision. There is some minor 

editing of transcript pages 206 through 225, which is incorporated into this decision and set out 

below. For the reasons stated on the record, and as further explained below, Citation No. 

6448009, is affirmed as issued and Lafarge Midwest Inc. is ordered to pay a penalty of 

$10,000.00. 

The parties entered into the following stipulations that were accepted by the Court: 

I. The Administrative Law Judge has subject matter and personal jurisdiction over the 

dispute in this case. 

2. Lafarge Midwest, Inc. ("Lafarge") is engaged in mining operations in the United States, 

and its mining operations affect interstate commerce. 

32 FMSHRC Page 1832 
3. Lafarge is subject to the jurisdiction of the Federal Mine Safety and Health Act of 1977, 

30 u.s.c. §§ 801-965. ' 

4. Lafarge operates the Lafarge Midwest, Inc. cement plant in Wilson County, Kansas, 

Mine ID No. 14.:.00073 (the "Mine'l 

5. Melvin Lapin (4'Lapin") is an authorized representative of the United States Secretary of 

Labor, assigned to the Topeka, Kansas field office of the Mine Safety and Health 

Administration's Metal/Non-Metal· division. 

6. Lapin inspected the Mine on February 4, 2009, and issued Citation No. 6448009 to 

Lafarge, alleging a· violation of30 C.F.R. § 56.14103(b) under Section 104(d)(l) of the 

Mine Safety and Health Act of 1977, 30 U.S.C. § 814(d)(l). 

7. The Secretary of Labor proposed a penalty of $8,209.00 for Citation No. 6448009. 

8. Lafarge purchased the John Deere "Gator" at issue in this case on July 21, 2008. 

9. The Gator was provided for use by the Mine's Quality Control Laboratory. 

10. The Mme's Quality Control Laboratory used the Gator every two hours of all three shifts, 

·seven days each week. 

11. Lafarge cleaned the Gator's windshield on the following dates and with the following 

substances: 

i. August 4, 2008: glass cleaner; 

II. August 7, 2008: different glass cleaner; 

111. August 12, 2008: vinegar and water; and 

1v. September, 2008: Ro-Mix Back-Set solution, which is a molecular 

cement dissolver. 

12. Greg Hicks was the Mine's Quality Control Laboratory Supervisor between September 1, 

2008 and February 4, 2009. 

13. Lafarge demonstrated good faith in abating the violation. 

14. The exhibits to be offered by the parties are stipulated to be authentic but no stipulation is 

made as to their relevance or as to the truth of the matters asserted therein. 

(Tr. 6-7). 

I. FINDINGS OF FACT AND CONCLUSIONS OF LAW 

Lafarge Midwest, Inc., operates the cement plant at issue (the "mine"), which is located 

in Wilson County, Kansas. (Tr. 23). The mine is subject to regi.llar inspections by the 

Secretary's Mine Safety and Health Administration ("MSHA") pursuant to section 103(a) of the 

Act. 30 U.S.C. § 813(a). The parties stipulated that Lafarge is an operator as defined by the Act, 

and is subject to the jurisdiction of the Federal Mine Safety and Health Review Commission. 

a. Citation No. 6448009 

On February 4, 2009, Inspector Melvin Lapin issued Citation No. 6448009 to Lafarge for 

a violation of Section 56.14103(b) of the Secretary's regulations. The citation alleges that: 

[ t ]he Plexiglas windshield for the Quality Control Lab's John Deere 

Gator, located in the parking ·area on the ea8t end of the Quality 

32FMSHRC Page 1833 
control Lab, was damaged from scratches in the glass from cleaning 

the abrasive dust off that was generated from the cement milling 

process; A person would clean the glass with a dry cloth, or 

sometimes, glass cleaner was used. When the gator was driven 

toward the sunlight during the day,· or toward bright lights at ipght, 

the glare created from the reflection of the light in the scratches made 

it very difficult for the driver to see. When a person was driving this 

vehicle under these conditions, they could easily run over another 

person walking in the area, impact an obstruction, or travel into the 

path of another vehicle. This vehicle was used every two hours of all 

three shifts, 7 days a week to obtain samples for quality control 

purposes~ 

The inspector found that a fatal injury was reasonably likely to occur,thatthe violation 

was significant and substantial, that one person would be affected, and that the violation was the 

re~;ult of high negligence on the part of the operator. 

1. The Violation 

At hearing, I read the following findings into the record: 

With regard to citation number 6448000 issued on f?ebruary 

4th, 2009 by Inspector Melvin Lapin, I make the following findings: 

Inspector Lapin issued a citation for a violation . of Section 

56.14103(b) of the Secretary's regulations and essentially charged 

that the Plexiglas windshield in the quality control lab's John Deere 

gator was damaged from scratches to the glass to the point that it 

created a hazard to anyone driving the equipment. 

Lapin testified that he has been a mine inspector for more 

than four years and he has worked in the mining industry for nearly 

30 years prior to working with MSHA. He is an inspector in the 

Topeka, Kansas office . 

. Inspector Lapin on February 4th was C()ntinuing an inspection 

that he had begun atthe mine on January 20th, 2008. He wentto the 

-- on that day, he inspected equipment first in the maintenance shop. 

208 

Exhibit 13 is a map or a layout of the facility that was used to 

indicate the various areas in.the mme. 

Inspector Lapin, inspected the equipment in the maintenance 

shop, the trucks and other equipment, and including in that inspection 

two gators that the maintenance shop used. A gator is a four-wheel 

32 FMsaRc Page 1834 
vehicle, a small -- similar to a small pickup, bigger than a golf cart. 

It has a bench seat, and in· this case the gators that Mr. Lapin 

observed on that date had Plexiglas windshields. 

One of the employees, while Mr. Lapin was -- while Inspector 

Lapin was in the lunchroom, one of the employees asked him to look 

at the windshield because that employee felt that it was not safe. 

Lapin saw both - saw that both of the gators in the maintenance shop 

had Plexiglas windshields that were.scratched. 

He rode in the first gator. They attempted to wipe off the 

windshield prior to getting in, he used a dry cloth. He took a drive 

with the shop mechanic, drove 

209 

northeast and then turned into the sun, and the ·glare from the sun 

shown on all the scratches and encompassed the entire win,dshield 

making it difficult to see~ The glare covered all but the comers, and 

the glare blinded him as well as the driver. 

He instructed the driver to turn around as soon as he saw the 

glare. He returned to the maintenance shop and then looked at the 

second gator and again took a ride in that gator. This time the 

operator of the gator used a windshield cleaner to try to clean the 

glass prior to the ride. The same thing occurred when the gator, with 

Lapin in it, was turned toward the sun. The glare was so bad that 

Lapin testified he couldn't see, instructed the driver to tum around 

and return to the shop. 

At that point, Lapin determined that the mine had violated the 

standard, that there was a hazard, they could not see out of the 

windshield· in the sun or in the light and that would result·· in an · 

accident. He issued citations for both gators at the maintenance shop. 

210 

Later he spoke with someone -- or at some point during that 

day, he spoke with some -- another employee about the gator thatwas 

being used by the quality control lab, so he went to . that lab to 

examine that gator. While -- during that, the course of his inspection, 

he spoke with both Don Ballard and with Greg Hicks concerning the 

gator at the quality control shop. 

When Mr. Lapin observed the gator, he saw that the gator's 

windshield had the same -- the scratches and the same - what word 

32 FMSHRC Page 1835 
-the same problems that he had seen in the earlier -- in the two gators 

that he had observed earlier in the maintenance. shop, they had the 

same type of scratches and the same .kind of damage. There was a 

light in the garage but no natural light but he could easily see the 

scratches and he could easily tell that the gator was in the same 

condition as the other two he had driven. 

The photos on Exhibit 5 show the scratches on the Plexiglas, 

and they resemble what he saw in the gator parked in 

211 

the garage. The photos also showed the glare that he experienced 

except the photos don't show it accurately. He testified that the glare 

was a lot more than the photos depict. 

He did not get into the driver's side of the gator but he could 

see the pattern and·scratches on. the windshield and·he, after just. 

driven in two other gators, he did not think it was safe -- first he 

didn't believe that he needed to look at it again, but he also thought 

it was unsafe for others to get in and drive the gator, it might expose 

someone to a hazard and he didn't want to do thatunderstandably. So 

he already knew that the scratches were the same and that the 

sunlight · and the light at night would create a hazard . given the 

condition of the windshield as he observedit. 

I understand that there are some cases that talk about an 

inspector getting into the cab and actually looking at the windshield, 

but there are also cases that say if a miner has been operating the 

212 

equipment and has looked through the windshield, their testimony, 

if credible certainly, is just as valid as that of an inspector. 

I think Mr. Lapin was correct in what he did, not having 

someone drive it in an unsafe condition, and given his experience and 

what he observed on that day, I see no problem with him coming to 

the conclusion that windshield was as -- as unsafe, if not more, than 

the other gators he had looked at during that day. 

This particular gator at the quality control lab is used every 

two hours, every shift for seven days. It's driven primarily by the 

persons -- the persons who work in the quality control lab who 

collect samples every two hours. Particularly the testimony of Mr. 

32 FMSHRC Page 1836 · 
Ballard, who was one of the persons who collected samples every 

two hours at the mine, supports the testimony of Inspector Lapin. 

Ballard testified that he had retired from Lafarge in February 

2009 after working there for many years. He worked primarily 

213 

on the day shift. The mine operated three shifts each day. He drove 

the gator every two hours for any time period, but he testified 

approximately 15 minutes as he rode around the plant area collecting 

samples. 

He complained constantly to his supervisor regarding the 

condition ·of the windshield on the gator until he gave up in 

frustration. His supervisor was ,Mr. Hicks, who also testified. Mr. 

Ballard operated the gator, he used it for samples and at other times 

depending on what he's required to pick up. 

Ballard described how· he traveled most of the areas of the 

mine, normally in a complete circle every two hours, it took him 

about 15 minutes. It depended on how much he had to pick up. 

There were coal piles in the area that could be 20 feet high and as 

long as 100 feet. Other vehicles operated around the stockpiles, 

loaders, maintenance vehicles, supervisors, other four-wheelers, and 

he had to be careful as he said he had to watch it going 

214 

around the comer. 

There's also foot traffic, many people worked. The area R 

where he primarily traveled was a busy place for vehicles, there were 

loaders, maintenance vehicles, pickups, open-bed pickups, loaders, 

forklifts, and trailers :parked in the area to unload. Area R is a very 

busy location given that it is adjacent to the -- given that it's adjacent 

to the storage area, and there's also a repair area at that -- in that 

location. 

Ballard drove the gator as much as anyone, and shortly after 

he -- the mine acquired-the new gator the glass started to scratch up, 

it fogged over. He washed the windows as much as he could. The 

abrasive cement, dust and dirt caused scratches on the windshield. 

The Plexiglas didn't hold up according to Ballard. The damage got 

worse over time and it became - became more scratched. 

32 FMSHRC Page 1837 
He used different window cleaners; usually just dusting it off 

made it a little bit better. The scrat~hes obscured 

215 

his view, mostly with direct light. Driving into the sunlight made it 

difficult for him to see, hard to look out the window. The same 

experience is true at night when the large lights were on. 

·Mr. Ballard indicated that there was a lot of traffic, as I 

mentioned before, foot traffic and equipment that he had to watch out 

for. He often encountered other workers on foot. He could see that 

he did-- he said he could see them but it wasn't clear, he could just 

make them out. Driving at night, the glare ofthe.nights in the dark 

made it -- made· it difficult, and in Ballard's words it certainly didn't 

help any. Lights from other vehicles and lights were on at the plant. 

The parties agree that the mine had cleaned the windshield on 

a number of days and times with different things. According to 

Ballard, none of those things alleviated the problem with the 

scratches and the difficulty with seeing out the windshield. 

I credit Lapin's testimony first that the windshield was 

damaged and next that 

216 

the windshield obscured the visibility necessary for safe operation, 

and also that the condition of the windshield created a hazard to the 

equipment operator. Lapin indicated that it was his opinion that 

visibility was obscured by the scratches to the extent that the operator 

of the vehicle could not operate it safely. He said that the glare of the 

sun on the scratches would impede the safe operation of the gator. 

Due to impeded vision, a crushing injury would result if the operator 

did not see a person in the area and ran over him or if he ran into or 

was run into by another vehicle. 

Lapin's observation of the windshield are supported by 

Ballard in every regard. I find that a violation did occur as alleged by 

the Secretary, supported by Mr. Lapin and Mr; Ballard. I understand 

that Mr. Hicks testified that he didn't see the scratches, but I credit the 

testimony of the other witnesses in that regard~ 

32 FMSHRC Page 1838 
(Tr. 207-216). 1 

Section 56.14103(b) requires that "[i]f damaged windows obscure visibility necessary 

for safe operation, or create a hazard to the equipment operator, the windows shall be replaced or 

removed .. " 30 C.F.R. § 56.14103(b). I find that, based upon the testimony of Lapin and Ballard, 

there is a violation. 

A number of Commission judges have decided the issues raised bythis standard. In 

Walker Stone Company, Inc. 17 FMSHRC 1389 (Aug. 1995) (ALJ), an ALJ vacated a similar 

citation because the inspector did not look through the windshield to determine whether visibility 

was impaired, and the operator of the vehicle testified credibly that he drove the truck and his 

view was not obstructed by the cracks. In the case at hand, the inspector, did not 'sit in the 

driver's seat of this particular gafor but he did look through the windshield and Ballard, who 

drove the gator daily, testified that the condition of the windshield obscured his vision. · In D & 

H Gravel, 31 FMSHRC 272 (Feb. 2009) (ALJ), the Secretary alleged that a cracked windshield 

presented a hazard in the form of a risk that an individual would cut their hand while cleaning 

the windshield. There, the ALJ found that the risk was so insignificant that the citation for 

violation of section 56.l4103(b) was vacated. Id. at 277. Here, the risk is much more 

substantial, i.e., that an equipment operator would not be able to see when the sun or the glare 

from the lights hit the windshield. The hazard described by Ballard was more than enough to 

substantiate a violation of the standard. 

In an enforcement proceeding under the Act, the Secretary has the burden of proving all 

elements of an alleged violation by a preponderance of the evidence. In re: Contests of 

Respirable Dust Sample Alteration Citations, 17 FMSHRC 1819, 1838 (Nov. 1995), ajfd,.Sec'y 

of Labor v. Keystone Coal Mining Corp., 151F.3d1096 (D.C. Cir. 1998); ASARCO Mining Co., 

15 FMSHRC 1303, 1307(July1993); Garden Creek Pocahontas Co., 11FMSHRC2148, 2152 

(Nov. 1989). The Secretary has met her burden of proving that, on the day of inspection, the 

gator had a damaged windshield that obscured visibility to the point that it could not be operated 

safely and, consequently, created a hazard to the driver and others working in the area in which 

he drove. I find that the Secretary has established a violation. 

2. Significant and Substantial Violation 

A significant and.substantial ("S&S"}violation is described in section 104{d)(l) of the 

Act as a violation "of such nature as could significantly and substantially contribute to the cause 

and effect of a coal or other mine safety or health hazard." 30 U.S.C. § 814{ d)(l ). A violation is 

properly designated S&S "if, based upon the particular facts surrounding that violation, there 

exists a reasonable likelihood that the hazard contributed to will result in an injury or illness of a 

reasonably serious nature." CementDiv., Nat'! Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). 

The Commission has explained that: 

1

The numbers located at breaks in the transcript quotations refer to the page numbers of the transcript. 

32 FMSHRC Page 1839 
[i]n order to establish that a violation of a mandatory safety standard 

is significant and substantial under National Gypsum, the Secretary 

· of Labor must prove: (1) the underlying violation of a mandatory 

safety standard; (2) a discrete safety hazard--that is, a measure of 

danger to safety--contributed to by the violation; (3) a reasonable 

likelihood that the hazard contributed to will result in an injury; and 

(4) a reasonable likelihood that the injury in question will be of a 

reasonably serious nature. 

Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); see also, Buck Creek Coal, 

Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Secretary, 861F.2d99, 

103-04 (5th Cir. 1988), aff'g Austin Power, Inc.~ 9 FMSHRC 2015, 2021 (Dec. 1987) (approving 

Mathies criteria). 

As noted above, I find that there is a violation of.the mandatory safety standard as alleged 

by the Secretary. Second, I find that a discrete safety hazard existed as a .result of the violation, 

i.e., the danger associated with the driver of the gator not being able to seewhen operating the 

vehicle in sun or in the glare of the lights at night. Third, I find that the hazard created by 

driving with an obstructed view will result in an injury to the driver or to a person who crosses 

the path of the gator. Fourth, I find that it is reasonably likely that any injury resulting from the 

aforementioned hazards would be serious or even fatal. 

The difficulty with finding a violation S&S normally comes with the third element of the 

Mathies formula. In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985), the 

Commission provided additional guidance: 

We have explained further that the third element of the Mathies 

formula "requires that the Secretary establish a reasonable likelihood 

that the hazard contributed to will result in an event in which there is 

an injury." U.S. Steel Mining Co., Inc., 6 FMSHRC 1834, 1836 

(August 1984). We have emphasi~ed that, in accordance with the 

language of section 104(d)(l), it is the contribution of a violation to 

the cause and effect of a hazard that must be significant and 

substantial. U.S. Steel Mining Co., Inc., 6 FMSHRC 1866, 1868 

(August 1984); [f.S. Steel Mining Co., Inc., 6 FMSHRC 1573, 1574-

75 (July 1984). · · 

This. evaluation is made in consideration of the length of time that the violative condition 

existed prior to the citation arid the time it would have existed if normal mining operations had 

continued. Elk Run Coal Co., 27 FMSHRC 899, 905 (Dec. 2005); U.S. Steel Mining Co., Inc., 

6 FMSHRC at 1574. The question of whether a particular violation is S&S must be based on the 

particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988); 

Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987). 

32 FMSHRC Page 1840 
Lapin designated this violation as a 

217 

significant and substantial violation. Tve already addressed a number 

of the issues that -- with regard to significant and substantial when we 

talk about -- when I talked about the violation in this case. 

Lapin testified that he regarded this violation as S and S because the 

condition of the windshield was of such a nature that it created a 

hazard to the driver. When the sun was shining or in the light, the 

glare in the windshield would cause the driver to be unable to see. 

There were pedestrians in the area and I think all witnesses testified 

regarding the :number of pedestrians in the area and the number of 

other vehicles in the area and there were quite a few. They could not 

be seen and would be hit by the gator if the gator were driving into 

the sun or into the light. 

Ballard· explained a number of -- the number and types of 

vehicles in the area along with the pedestrians and the large coal piles 

that he had to maneuver around. It's clear that Ballard drove the 

gator more near pedestrians and many other types 

218 

qfvehicles including loaders and maintenance. vehicles. 

I credit Ballard's testimony that the windshield was in such a 

condition that it created a hazard for the driver, that he couldn't see 

a pedestrian or another vehicle at certain times when he was driving 

and thatthat condition created the.hazard, .. the discrete safety hazard, 

a measure of danger to not only the pedestrians but to the driver of 

the vehicle himself. 

The mine operator asserts that Ballard continued to drive the 

gator, that there were no accidents, that the brakes worked, that other 

safety measures were in place, and that Ballard testified that he could 

see a pedestrian and other equipment, that the gator moved slowly, 

and that the area was not really congested. 

Again, I credit the testimony of Ballard and I credit the 

testimony of Lapin and I find that the violation was significant and · 

substantial as Inspector Lapin so designated. 

32 FMSHRC Page 1841 
(Tr. 216-218). 

In a similar situation, an AU found that a sand and gravel operator committed an S&S 

violation of §56.14103(b) based on a cracked window on a front-end loader. The ALJ credited 

the inspector's detailed testimony about the window's condition and found tlie violation to be 

S&S because the cracked window obscured the operator's vision, thereby creating a risk of him 

running into other equipment, running off the road, or running over another employee. South 

West Sand & Gravel Inc., 23 FMSHRC 540 (May 2001) (ALJ). 

I find that the preponderance of the evidence establishes that it was reasonably likely that 

the hazard presented would contribute to an injury. Even if the brakes on the gator worked and 

the gator did not travel at a high speed, it is lijcely that the driver would hit a person crossing his 

path or run the gator into the coal pile or other obstruction because his view.was obstructed. The 

defenses raised by Lafarge do.not tajce away from the seriousness of the violation and the 

reasonable likelihood that an injury will occur. Th.ere is no question that the gator was operated 

in a high traffic area with both ~uipment and pedestrians .. Ballard agreed that sometimes he 

could see, but, if the sun or a light was shining on the windshield, it was extremely difficult to 

see what was ahead. In the course of continued mining operations, an accident was sure to 

occur. Further, as mentioned previously, it is reasonably likely that these hazards would result in 

injuries of a reasonably serious nature. 

3. Unwarrantable Failure 

The term ''unwarrantable failure" is defined as aggravated conduct constituting more than 

ordinary negligence. Emery Mining Corp., 9 FMSHRC 1997, 2004 (Dec. 1987). Unwarrantable 

failure is characterized by such conduct as "reckless disregard," "mtentional misconduct," 

"indifference," or the "serious lack ofreasonable care." Id. at 2003-04; Rochester & Pittsburgh 

Coal Co., 13 FMSHRC at 193-94 (Feb.1991). Aggravating factors include the length of time 

that the violation has existed, the extent of the violative condition, whether the operator has been 

placed on notice that greater efforts were necessary for compliance, the operator's efforts in 

abating the violative condition, whether the violatfon wa8 obvious or posed a high degree of 

danger and the operator's knowledge of the existence of the violation~ See Consolidation Coal 

Co., 22 FMSHRC 340, 353 (Mar. 2000); Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 

1994); Windsor Coal Co., 21FMSHRC997, 1000 (Sept. 1999); Consolidation Coal Co., 23 

FMSHRC 588, 593 (June 2001). All of the relevant facts and circumstances of each case must 

be examined to determine if an actor's conduct is aggravated, or whether mitigating 

circumstances exist. Consol, 22 FMSHRC at 353. 

Lapin described the condition as obvious and as having existed for an extended period of 

time. He designated the negligence level as "high" and found the violation to be an 

unwarrantable failure to comply with the mandatory standard. Lapin learned from employees at 

Lafarge that there was a problem with the gator and, after.speaking with Ballard, realized that it 

had existed for some time. Ballard had constantly made complaints that went unheeded. Lapin 

credibly testified to each and every factor used to determine unwarrantability. The violation 

32 FMSHRC Page 1842 
existed for at least the six months, during which it was brought to the attention of Ballard's 

immediate supervisor as well as that individual's supervisor. · 

219 

As to the unwarrantable failure, there's a lot of testimony in 

this case about what the operator knew regarding this violation. rn 

start with Mr. Ballard because Mr. Ballard certainly made the most 

complaints about this gator. · · 

Exhibit 10, the area checklist, he·filled out those checklists 

and put them in the notebook and then Mr. Hicks would look at it and 

maybe write -- and write down what he had done to take care of the 

situation. 

On August 4th, Ballard wrote on the lab vehicle the. gator 

needs a new front window, it's scratched up. Hicks wrote that he 

tried to clean it with glass cleaner. And Mr. Ballard reported the 

condition every day until August 18th .. " He designated the condition· 

as U for unacceptable most of the time, on more than one occasion. 

Then again on September 1st until September 5th, he reported 

every day that the lab vehicle · was unacceptable and listed the 

windshield. As far as I can see at this point, the mine cleaned the 

windshield 

220 

and I'm not clear why cleaning the windshield would alleviate the · 

scratches except that Mr. Hicks testified that he didri't see the 

scratches so he was working on the assumption that the windshield 

needed to be cleaned. The windshield was not removed until 

February 4th after the inspector issued a citation. 

On September 8th, both shifts again mentioned the windshield 

needed to be replaced. It wasn't Mr. Ballard who was -- it was not 

only Mr. Ballard who was complaining about the windshield, but I 

noticed on the checklist, on both checklists, Exhibit 6 and 10, that 

there were other lab technicians who also reported a problem with the 

windshield. On September 10th, for example, both lab techs reported 

it, not just Ballard. Ballard testified that he got frustrated and finally 

stopped reporting it because nothing was being done. 

On Augiist -- I find it important that on August 12th, 2010, 

Ballard wrote on Exhibit 6, the mobile equipment checklist, if 

32 FMSHRC Page 1843 
221 

someone has an accident because of the windshield, it won't be our 

fault. Another person on August 19th said that the windshield is 

uncleanable. The checklist went to Hicks and then maybe to Hicks' 

-- sometimes to Hicks' supervisor Parker who were supposed to do 

something about it.. 

The condition of the windshield was noted for many.days. 

August 12th, again it says that it needs attention as soon as possible, 

thatthere could be an accident .. On August(sic) 14th, Mr. Ballard 

filled out another fo~ an RIR form, for a safety auditor who came 

to this Lafarge plant from the headquarters office, he wrote up the 

windshield again, and he was told that someone would take care of 

it. It sounds like the person from the Lafarge headquarters office 

agreed.· that something should. be done about it. It was Mr. 

Thompson, he looked at it, said he ·would take care of it, he said that 

it definitely needed attention, but, again, nothing was done. Ballard 

said he saw -- he saw no issue -- I'm sorry, strike that. 

222 

Ballard testified that he continued to complain until he thought he 

couldn't do it anymore. 

Mr. Hicks testified that he saw no issue with the gator, that 

he would not have let Mr. Ballard operate it if he felt it was unsafe· 

and that at one point he told Mr. Ballard that he could walk or take 

the windshield out. And when -- in fact, when the citation was 

abated, Ballard and Hicks together removed the windshield. · 

Hicks testified that he kept cleaning the windshield to make 

Ballard happy, doing what he could do in other words. Hicks said 

that no one else complained, but a review of the checklists show that 

that's not exactly the case, there were several other people who did 

complain. One -- again, I will refer to .Exhibit 6 and Exhibit 10. 

Hicks testified he tried different products to clean the 

windshield in an effort to make Ballard happy. He noted several 

times that he did not see the scratches or see any problem with the 

223 

window but tried anyway to clean the windshield. I find ·that Hicks 

did not do enough, he didn't take the problem seriously, and I credit 

32 FMSHRC Page I 844 
(Tr. 219-224). 

Ballard when he said he was told sarcastically that he could walk or 

take the windshield out; that it was management's responsibility to 

remove. the windshield if indeed that was determined what the 

solution should be, but that the management knew for months, many, 

many months that there was a complaint about the windshield and not 

enough was done. 

The complaints kept coming and cleaning it obviously was 

not doing any good. There was never direction from management to 

remove the windshield until the citation was issued. Lapin described 

the condition as extensive because it was the entire windshield, that 

it was obvious, he saw it as soon as he approached the gator, and it 

had ..,- as I discussed above, I think the most telling thing is it had 

existed for a period of time. 

Lapin designated the negligence level as . 

224 

high and found the violation to be unwarrantable. I agree with Lapin 

that the citation is, indeed, unwarrantable with high negligence on the 

part of management. I uphold Mr. Lapin's citation in every regard. 

A number of.the Commission's ALJs have found a violation of this type to be not only 

S&S, but an unwarrantable failure. For example, a cracked windshield on a front-end loader 

constituted an S&S and ''unwarrantable" violation of §56.14103(b) because the violation was 

obvious and nothing had been done to correct it. Bob Bak Constr., 19 FMSHRC 582 (Mar. 

1997) (ALJ). 

I find that the Secretary has demonstrated, by a preponderance of the evidence, that the 

violation was unwarrantable. 

II. PENALTY 

The principles governing the authority of Commission administrative law judges to 

assess civil penalties de novo for violations of the Mine Act are well established. Section 11 O(i) 

of the Mine Act delegates to the Commission and its judges "authority to assess all civil 

penalties provided in [the] Act." 30 U.S.C. § 820(i). The Act delegates the duty of proposing 

penalties to the Secretary. 30 U.S.C. §§ 815(a) and 820(a). Thus, when an operator notifies the 

Secretary that it intends to challenge a penalty, the Secretary petitions the Commission to assess 

the penalty. 29 C.F.R.§ 2700.28. The Act requires that, "in assessing civil monetary penalties, 

the Commission [AU] shall consider" six statutory penalty criteria: 

32 FMSHRC Page 1845 
[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 i'fegligent, [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). 

I accept the stipulation of the parties that the penalties proposed are appropriate to this 

operator's size (large operator) and ability to continue in business. The violation was abated in 

good faith, and no evidence has been presented to the contrary. The history does not 

demonstrate an unusual violation history. I find that the Secretary has established that the 

negligence was high and that Lafarge did not take seriously the safety complaints of its 

employees. Further, I find that the gravity determined in the order is accurate. 

(Tr. 224-225) 

Next is the penalty. There are six penalty criteria addressed 

by the commission. The -,- I accept the stipulation of the parties that 

the penalties proposed are appropriate to this operator's size, which 

is large, and their ability to continue in business, the violation was 

abated in good faith, and the history of violations show no other 

violations for this particular standard. The violation history is normal 

for an operator of this size, but I do note that Mr. Lapin issued two 

citations earlier in the day for the same violation. I find that the 

Secretary has established that the negligence amounted to high 

negligence for the violation and that the graVity was as designated by 

the inspector. 

And I, given the six-penalty criteria, 

225 

based on the testimony I heard today, crediting the testimony of 

Lapin and Ballard, I assess the $10,000 penalty for the violation. 

Once the order is reduced to writing, the company will be ordered to 

pay -- the company is ordered to pay $10,000 within 30 days of the 

date of that written order. 

32 FMSHRC Page 1846 
III.ORDER 

Based on the criteria in section l lO(i) of the Mine Act, 30 U.S.C. § 820(i), I assess a 

penalty of $10,000.00 for this violation. Lafarge Midwest Inc. is ORDERED TO PAY the 

Secretary of Labor the sum of $10,000.00 Within 30 days of the date of this decision. 

Distribution: 

I 

Q(\\(.Y\\·\'\-, \\{\~· 

Margar¥"~er T •• Aft~ · Admini tive Law Judge 

Matthew Finnigan, Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, 

Suite 1600, Denver, CO 80202 

Christopher Peterson, Jackson Kelly PLLC, 1099 18th Street, Suite 2150, Denver, CO 80202 

32 FMSHRC Page 1847 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

72119th STREET, SUITE 443 · 

DENVER, CO 80202-2500 

303-844-5267/FAX 303-844-5268 

December 10, 2010 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 2009-675-M 

Petitioner · A.C. No. 33-01994-192845 

v. 

CARGILL DEICING TECHNOLOGY, 

Respondent Mine: Cleveland 

Appearances: 

Before: Judge Miller 

DECISION 

Patrick DePace, Office of the Solicitor, U.S. Department of Labor, 

Cleveland, Ohio, for Petitioner; 

Mark Savit, Donna Vetrano Pryor, P~ttori Boggs LLP; Denver, Colorado 

for Respondent. 

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 ("MSHA"), against Cargill 

Deicing Technology ("Cargill"), pursuant to sections 105 and 110 of the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the ''Mine Act"). The case involves six 

violations issued by MSHA under section 104(a) of the Mine Act at the Cargill deicing salt mine 

(the "Cleveland Mine" or the ''Mine") located in Cleveland, Ohio. The parties presented 

testimony and documentary evidence at the hearing held on October 14, 2010 in Cleveland, 

Ohio. 

At the hearing, the parties agreed that four of the citations have been settled. The 

settlement terms were read into the record and the settlement is approved as set forth below. 

Two citations are left for decision, one involving ground control and one involving an electrical 

violation. 

I. FINDINGS OF FACT AND CONCLUSIONS OF LAW 

Cargill is the owner and operator of the Cleveland salt mine in Cleveland, Ohio. At the 

outset of the hearing, the parties agreed that the Mine is a mine as defined by the Act, that the 

32 FMSHRC Page 1848 
Mine is subject to the jurisdiction of the Mine Safety and Health Administration, and that the 

Commission has jurisdiction to hear this matter. Jt. Ex. l; (Tr. 7). 

Both contested citations were issued by Inspector Jan Niceswanger of the Hebron, Ohio 

MSHA office. Niceswanger has been a mine inspeetor for six years. Prior to'becoming an 

inspector, he worked nearly 30 years in the mining industry, most of which was spent working in 

coal mines. He has experience in underground and surface mines. Niceswanger has extensive 

training in many areas, is a certified electrician, and was hired by MSHA as an electrical 

inspector. (Tr. 19). 

a. Citation No. 6403641 

On June 2, 2009, Niceswanger issued Citation No. 6403641 to the Cleveland Mine, 

alleging a violation of 30 C.F.R. § 56.3200, which requires, as pertinent to this analysis, that 

"[g]round conditions that create a hazard to persons shall be taken down or supported before 

other work or travel is pennitted in the affected area." The citati6n (as amended) described the 

violation as follows: 

Hazardous ground conditions were present on the south rib next to 

the A/B Transfer power center, including a prominent overhanging 

bulge. A crack exceeding one in~h wide ran vertically from the 

mine floor to as high as 12 feet. The bulge was about three feet 

wide and 10 to 14 inches thick. A miner would suffer major 

traumatic injuries from the falling ground. In addition, the 

energized 4160 volt cable was coiled beneath the loose slab and 

the power center was located only four to five feet away. 

Maintenance personnel, laborers, and the belt crew work and travel 

the area three shifts per day. , 

Niceswanger determined that it was reasonably likely that the vfolation would result in an 

injury or fatality, that the violation was significant and substantial, that one employee was 

affected, and that the negligence was moderate. A civil penalty in the amount of$1,944.00 has 

been proposed for this violation. 

i. The Violation 

Inspector Niceswanger testified that, while conducting his inspection of the Mine, he 

noticed a bulge in the rib adjacent to the power center. Niceswanger testified that the power 

center, which had an energized high voltage cable attached, provided power to the conveyor belt 

and other parts of the mine. He described the bulge in the rib as being "separated from the 

original structure of the wall or rib," ''uncontrolled," "overhanging," and as having "large 

cracks." (Tr. 22). Niceswanger took a photograph of the condition as he observed it. Gov. Ex. 

3; (Tr. 22-24). The same photograph depicts the proximity of the rib bulge to the power center. 

Id. Based upon his observations, Niceswanger determined that the condition was hazardous. 

32 FMSHRC Page 1849 
Niceswanger explained that the bulge in the rib was considered·a hazard due, in part, to 

its proximity to the power center and high voltage, energized cable laying next to it. If the rib 

were to fall on the cable or the power center, it is likely that it would ignite a fire. In addition, all 

three shifts working in the.mine passed by or worked in the area of the power center and .the 

overhanging rib. Niceswanger believed that the condition of the rib indicated that it was likely 

to fall. He refused to allow anyone to tap or scale the broken rib because he believed it was too 

dangerous, partieularly given its proximity to the power center. He agreed that it would be safer 

to test the rib and begin scaling if the power center were moved. It was his observation that the 

rib was broken, loose and separated from the wall and that footprints he observed in the area 

indicated that miners had worked nearby. Niceswanger did not explain what it might take for the 

bulge to come down, and did not explain how large a piece of the wall would need to fall in 

order to damage the power cable or power center, thereby increasing the risk of a fire. I can only 

conclude from his testimony that he believed the condition to be a hazard because he expected 

the entire rib to fall onto the cable and power center. 

John Grueber, currently the mine superintendent at the Mine accompanied Niceswanger 

during the inspection. Grueber disagreed with the inspector's assessment that the rib was not 

safe and offered to get a scaling bar to demonstrate that the rib was not loose. In Grueber' s 

experience, simply viewing the area does not provide the information needed to determine if 

there is a hazard. Grueber observed the footprints in the area and also observed the 1 inch wide 

crack on one side of the rib. He believed that because the crack was only on one side, and not on 

any of the other three sides, it was safe, i.e., that it was tied in on the top and back. (Tr. 100-

102). 

After receiving the citation, Grueber, due to the fact that the height of the area would not 

accommodate the mechanical scaler, instructed the night crew to move the power center and use 

a front end loader and a scaling bar to take doWn the rib. Grueber observed the area after the 

work was completed. He saw that, while portions of the rib had been taken down, the entirety of 

the rib had not been taken down. (Tr. 102-104). Grueber later learned that, in attempting to take 

down the rib, the miners rammed the rib with a loader. Grueber agreed that while ramming the 

rib with a loader could damage the machine, it is the proper equipment to use when the 

mechanical scaler is not.available. 

Mark Khairallah, an hourly employee at the Mine, was asked by his foreman to take 

down the rib bulge area cited by Niceswanger. He was instructed to move the transformer and 

then begin the scaling. After the transformer was moved, he initially tried to use a ten foot bar to 

bring down the rib, but after a short time he determined that it was not effective. As a result, a 

loader was retrieved and another individual operating the loader began chipping away at the rib . 

bulge with the bucket. Khairallah stood approximately 20-30 feet away from the rib while the . 

loader operator broke off small chunks of the rib. According to Khairallah, the rib was not 

coming down as expected. When the initial approach of using the loader did not work, he and 

the other employee began using the loader to ram the wall at different angles until the material 

came down in chunks. In all, the assignment took 2 to 3 hours including the ten minutes to move 

32 FMSHRC Page 1850 
the transformer, the short time with the scaling bar, half an hour with the loader, and another half 

hour for clean up. (Tr. 119-125). 

Mike Espenschied, a second hourly employee, testified about his experience working 

with Mr. Khairallah to remove the slab. He agreed that, first, the power center was moved, then 

they used a scaling bar for about fifteen minutes and, finally, moved onto the loader. He drove 

the loader while Khairallah directed him. He adjusted the bucket height and bumped into the rib 

with the bucket. He described the· area as being ''too tight" to get the loader· at .a ·good angle to 

the rib. He described the· slab as coming down in chunks. (Tr. 129-131). In his view, using the 

scaling machine is easier because it has a pick and is designed for scaling .. 

Neither Mr. Khairallah nor Mr. Espenschied testified· about how long it would take if the 

mechanical scaler was used or what the normal amount of time it had previously taken them to 

take down loose slabs at this mine. However,. they did indicate their belief that it took an extra 

amount of time and effort to remove this particular slab. 

Leo Van Sambeek, an expert in rock mechanics, testified on behalf of Cargill: Van 

Sambeek disagrees with Niceswanger that visual observation of a crack is sufficient evidence 

upon which to make a hazard determination. (Tr. 146-147). Dr. Van Sambeek reviewed the 

citation and the photographs, visited the mine after the condition was corrected, and listened to· 

the inspectors testimony. Van Sambeek indicates that in order to make ahazard determination· 

he would first "sound" the rib. If sounding the rib could not tell him the condition, ·then he 

would use a hammer and bolt to determine its condition. If that did not yield a result, he would 

next utilize a scaling bar to test the rib to determined if there is· any movement. After reviewing 

the rib area where the bulge had been removed, Van Sambeek disagrees that a hai:ard existed 

and, instead, believes that it was safe to sound the area. 

While Van Sambeek believed that the condition of the rib was such that it was safe to 

perform a sounding, he did not discuss the issue of the proximity of the loose rib to the power 

center in his analysis. He did testify that he had a concern when he first viewed the photograph 

of the rib prior to it being removed, i.e., Gov. Ex.· 3, in that he saw a bulge that he could not 

explain. He explained that the photo could lead to the conclusion that there were loose slabs of 

rock on the rib. (Tr. 158). However, when he went underground, he determined that what looked 

like a bulge, was actually a mismatch of the two faces where they intersect. (Tr. 150). He 

testified that, because the loader hit the rib a number of times and was unsuccessful in bringing it 

down, he was convinced that the slab was not loose. 

I cannot credit the testimony of Van Sambeek with regard to the before and after 

photographs and his use ofsuch to form an opinion that what was taken down was not the area 

sited. The inspector observed the condition at the time of issuance, while Van Sambeek saw the 

area only after it had been abated. (Tr. 156). However, a portion of Van Sf:mbeek's testimony is 

useful and supports the Respondent's position that the rib was not hazardous. Van Sambeek 

testified that he could not agree with the inspector and that he ''would not characterize [the cited 

area] as a ground control hazard." (Tr. 160). 

32 FMSHRC Page 1851 
The primary issue is whether the ground CQndition, as observed by Niceswanger, was a 

hazard. A hazard, has been defined as a danger or risk. I have no doubt that Niceswanger had a 

reasonable belief; after viewing the condition of the rib, that it was a danger or risk to miners 

who may travel in the area, and particularly a danger or risk of rock falling on the transformer or 

cables. However, given that the area had to be rammed with a loader, which resulted in only 

small chunks of the rib being removed, it does not appear that the area created a hazard to· 

persons. Additionally, Van Sambeek testified that the nature of the ribs in a salt mine are 

different than those in a coal mine. Further, when such ribs only have a crack along the side, it is 

not considered a hazard. 

The Respondent has relied on a Commission Judge's decision in Springfield 

Underground, J 7 FMSHRC 611 (Apr. 1995) (AU), to support its position that visually observing 

the cited area is.not enough to support a violation. While I disagree with Cargill's reliance on 

that case, I do find that, in this particular case, the testimony reveals that a more. thorough 

investigation of the condition was necessary to determine if the rib was a hazard. The witnesses 

indicated that it was difficult to bring down the rib. Further, there is a lack of evidence of what 

types of activities might cause it to .come down. The Commission has discussed, in. relation to 

another standard.involving loose material, that a visual observation along with a sound test was 

sufficient to indicate that a roof was loose. Amax Chemica/Co!llpany, 8 FMSRHC 1146, 1149 

(Aug. 1986). However, the Commission in Amax refused to agree th;;it there is per se rule 

regarding the means necessary to demonstrate that ground is loose. Id. There is not enough 

evidence here to substantiate that ongoing activity in the mine would cause the rib tQ fall or that 

such a fall would involve a slab large enough to damage the cable or the power center. The 

Secretary has not met her burden of demonstrating that the rib created a hazard to persons. For 

the foregoing reasons, the citation is vacated. · 

b. Citation No. 6403648 

On June 9, 2009, Niceswanger issued Citation No. 6403648 to the Cleveland mine, 

alleging a violation of30 C.F.R. § 57.12040, which requires that "[o]perating controls shall be 

installed so that they can be operated without danger of contact with energized conductors." The 

citation described the violation as follows: 

The main battery switches were installed inside the electrical 

panels on #86 and #12 locomotives with bare energized 

conductors. The equipment operators would reach inside the panel 

to operate the switches. · 72 volts DC was present on the blades of 

the switch about two inches below the knob of the knife-blade type 

switch. Two other.controls for the remote system were also 

located next to bare conductors on the #12 unit. Miners would 

operate these .controls routinely on start up and shut down each 

weekend and periodically during the week, three shifts per day. 

The condition created a shock/burn.hazard. The close proximity of 

32 FMSHRC Page 1852 
the liVe parts to the controls and the repetitive nature of the 

practice made an accident reasonably likely to occur. 

Niceswanger determined that it was reasonably likely that the violation would result in an 

injury that would lead to lost workdays or restricted duty, that the violation was. significant and 

substantial, that one employee \.vas affected, and that the negligence was moderate. A civil 

penalty in the amount of$334.00 has been proposed for this violation. 

1. The Violation 

fuspector Niceswanger testified that he conducted an inspection of the electric panels on 

two of the Mine' s locomotives after he learned that the controls used to operate the locomotive 

were located in an area that would expose the operators to energized conductors. Niceswanger 

stated that the location of a double-hold knife switch for the main battery, which is used to put the 

locomotive into start.:.up mode, would require an operator to place their fingers "right next to 

energized conductors." (Tr. 37). During the inspection, Niceswanger asked one of the Mine's 

electricians to take a voltage reading at the knife switch depicted in Gov. Ex. 8. (Tr. 215-216). 

The electrician determined that voltage at the switch was 72. Id. According to Niceswanger, the 

photograph entered as Gov. Ex. 7 accurately depicts the location of the handle'ofthe switch and 

its proximity to the energized conductors. (Tr. 36). 

The locomotives used at· the Mine are like any train locomotive. They are used to move 

railroad cars around the rail yard. Two locomotives, the #12 and #86, had the exposed energized 

conductors near or next to the main battery switch that is used by the locomotive operators. In 

addition, locomotive #12 had exposed parts near the remote control switch. As Niceswanger 

explained,''when the switch is operated, a miner's hand was immediately adjacent to the 

eneregized parts." (Tr. 3.9). Gov. Ex. 9 depicts the door that is opened to operate the control, 

while Gov. Ex. 10 depicts the remote control operating controls that were installed by the Mine 

on at least one of the locomotives. The remote controls were in close proximity to fuses and wire 

terminations, whichwere energized bare conductors, that created shock and burn hazards for the 

miners exposed to them. (Tr. 41-43). The energized conductors seen on the right hand side of 

Gov. Ex. 10 were situated such that a workers hands would be ten to twelve inches from exposed 

energized parts when turning on the switch. 

Michael Wendell, a contractor for Cargill, testified that he has serviced the locomotives at 

the Cleveland Mine for 31 years. Wendell understands that miners only need to access the 

controller for the battery after the machine is shut down. Shutting down the battery prevents it 

from wearing down. The area is well lit, and he has never contacted an energized part while 

working. Wendell described the electrical locker on the #12 locomotive and confirmed that the 

photograph entered as Cargill Ex. D accurately depicted the locker. The locker contains the 

switches and exposed conductors that were by Niceswanger. · The area marked with a number "3" 

in the photo is the battery disconnect switch and, according to Wendell, is not operated when the 

locomotive engine is running. The purpose of the switch is to isolate the batteries so they can be 

turned off. If the locomotive is not operating, the conductors should have 62-64 volts. The area 

32 FMSHRC Page 1853 
marked with a nll.mber "2" in the photo is the disconnect for the remote control. An operator will 

only touch this area if the remote control must be disconnected and, in his view, it is only 

disconnected for the purpose of performing maintenance. The area marked with a number "l" in 

the photo is the transfer valve to switch from manual to remote control. Wendell has operated the 

switches many times and has contacted the energized componentswhen doing maintenance work, 

yet he has not been burned or shocked and, rather, has only felt a tingle. (Tr. 184). 

Taimour Ahmed, the maintenance supervisor, testified on behalf of the Mine that the 

switches described in the citation are not operating controls. Ahmed testified that an operating 

control is a function of a button, or some other object that has power to it, which allow an 

operator to tell a machine what to do, e.g., tum signals, brakes, gears. (Tr. 204). Ahmed testified 

that he measured the amperage in, the control .box as 30 milliamp, which was far below the level 

of amperage that would be necessary to cause a bum to a miner. (Tr. 205). It is his view that it is 

not reasonably likely that a miner would inadvertently touch aJ.J.Y component in the electrical box. 

He explained that it would be difficult to contact a ."bare conductor" due to the distance between 

components in the box and the fact that not all of the components would be energized at the time 

a miner reaches into the box to flip the battery switch. (Tr. 207-208). 

fu essence; it is Cargill' s position that the battery switches inside the electrical panels are 

not an "operating control" and, hence, it was improperly cited. Cargill . relies on the fact that the 

panel of switches and the battery switch itself are not used to operate the locomotive, and, rather, 

are only used to tum off the battery. Thus, Cargill argues that the battery switch is not the 

operating control Sor the locomotive. Cargill does not cite any relevant legal authority that 

supports its conclusion that a breaker used to de-energize a piece of equipment is not an 

"operating control." It appears to be Cargill's position that the battery switches located in the 

electrical panel should not be considered an operating control since they are accessed only to deenergize the battery to prevent it. from being drained by lights or other components that may be 

left on. 

During normal operation of the locomotives, the battery switches at issue·are thrown at 

least once a shift on the weekends to cut off power to the battery so as to assure that the battery 

does not run down. It follows that, upon start up of the locomotive, the battery switch would, out 

of necessity, be thrown in order to allow electricity to resume flowing to the various components 

so that the locomotive could be operated. fudeed, the locomotive could not operate if the battery 

switch were not reset. Because throwing the switc~ into the off position stops the operation of the 

battery and everything it controls, it certainly controls its operation and, accordingly, is within the 

purview of the term "operating controls." TX! Port Costa Plant, 22 FMSHRC 1305, 1312 (Nov. 

2000) (ALJ) (citing Random House Webster's Unabridged Dictionary 1357(2nd Ed.,1999)). 

The only way the battery could be· de-energized· and reset required a miner to open the 

door to the electrical panel, reach in, and throw the switch. A similar result was reached in Nelson 

Quarries Inc., 30 FMSHRC 254 (Apr. 2008) (ALJ). In Nelson Quarries, circuit breakers in a 

cabinet were found to be operating controls that were in close proximity to exposed wires and 

terminals. The AU found that the proximity created a risk of shock for anyone who opened the 

32 FMSHRC J>age 1854 
cabinet. Here, according to Niceswanger, the locomotive operator would be placing his hand into 

the control box often and each time he did, he would be exposed to an area of energized 

conductors which he could inadvertently contact. ·Therefore, I find that the Secretary has shown 

that the operating controls were not installed to prevent the danger of contact and has established 

that Cargill violated Section 57A2040 as alleged. 

11. Significant and Substantial 

A significant and substantial ("S&S'') violation is described in section l 04( d)(l) of the 

Act as a violation "of such nature as could significantly and substantially contribute to the cause 

and effect of a coal or other mine safety or health hazard. "A violation is properly designated 

S&S "if, based upon the particular facts surrounding.that violation, there exists a reasonable 

likelihood that the hazard contributed to will result in an injury or illness of a reasonably serious 

nature." Cement Div., Nat'l Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). 

The Commission has explained that: 

In order to establish that a violation of a mandatory s_afety standard 

is significant and substantial.under National Gypsum, the Secretary 

of Labor must prove: (1) the underlying violation of a mandatory 

safety standard; (2) a discrete safety hazard--that is, a measure of 

danger to safety--contributed to by the violation; (3) a reasonable 

likelihood that the hazard contributed to will result in an injury; 

and ( 4) a reasonable likelihood that the injury in question will be 

of a reasonably serious nature. 

Mathies Coal Co., 6FMSHRC l, 3-4 (Jan. 1984) (footnote omitted); see also, Buck Creek Coal, 

Inc. v. MSHA, 52'F.3d 133, 135(7th Cir. 1999); Austin Power, Inc. v. Secretary, 861F.2d99, 

103-04 (5th Cir. 1988), ajj'g Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987) (approving 

Mathies criteria). 

As noted above, I find that there is a violation of the mandatory safety standard as alieged 

by the Secretary. I find, further, that the violation contributed to the hazard of an electrical shock. 

Third, the hazard contributed to will result in an injury. Finally, given the exposure to electricity, 

even at low levels, the injury would certainly be serious. 

The question of whether a particular violation is significant and substantial must be based 

on the particular facts surrounding the violation. Texasgu,/f, Inc., 10 FMSHRC 498 (Apr. 1988); 

Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987). I find that the facts of this 

violation clearly lead to a finding that it was a significant and substantial violation. 

32 FMSHRC Page 1855 
Niceswaiiger explained in detail his reasoning for designating this violation as S&S. ··First, 

he described the hazard as one of a shock or bum. He measured 74 volts in the electrical panel. 

Niceswanger testified that, if a miner came in contact with the bare wires or conductors that 

possessed 7 4 volts, there would be a shock hazard. In addition;. the locomotive operators would 

need to reach in the area each time they shut down and started up the motor. Moreover, 

Niceswanger testified that he learned that the locomotive operators did not use gloves when 

reaching into the electrical panel. (Tr. 44-45). As a result, the proximity of the various exposed 

electrical parts to the switches, and the frequency at which the locomotive operators would need 

to access the area made it reasonably likely that a miner would come in contact with the bare 

wires or conductors. 

According t.o Niceswanger, the amount of voltage does not cha,nge if the locomotives are . 

running or idle. The voltage is enough to cause a. burn or shock to the operator who inadvertently 

comes in contact with the exposed energized parts. Niceswanger did not measure the amperage, 

but opines.that even.less than 1 amp μas an effect on a person who· contacts the exposed parts. In 

addition, should a short or fault occur, there is a greater potential for a bum when operating the 

switch. 

Ahmed and Wendall both testified that the shock from contacting a bare wire or conductor 

inside this box would be minimal. They also allege that the components ip. the box are too close 

together to allow contactwith the bare conductors. However, I credit the testimony of 

Niceswanger, a certified electrician, who finds this to· be a serious hazard. The Secretary has 

established that the violation was S&S. 

c. Settled Citations 

At the hearing, the parties entered into stipulations resolving the remaining four violations 

as follows: 

Citation No. 6403643: 

Citation No. 6403644: 

Citation No. 6403645: 

Citation No. 6403646: 

Total penalty of settled citations: 

. No changes, penalty is $100.00 

Vacate 

Vacate 

Reduce penalty from $150.00 to $100.00 

$200.00 

I accept the stipulations and the modifications made by the Secretary. Pursuant to the 

agreement reached by the parties, I assess a $200.00 penalty for the violations that have been 

settled. 

32FMSHRCPage1856 
II. PENALTY 

The principles governing the authority of Commission administrative law judges to 

assess civil penalties de novo for violations of the Mine Act are well established. Section 110(1) 

of the Mine Act delegates to the Commission and its judges "authority to assess all civil 

penalties providedin [the] Act.'' 30 U.S.C. § 820(1). The Act delegates the duty of proposing 

penalties to the Secretary._ 30 u:s.c. §§ 815(a), 820(a). Thus, when an operator notifies the 

Secretary that it intends to challenge a penalty, the Secretary petitions the Commission to assess 

the penalty. 29 C.F.R. § 2700.28. The Act requires, that "in assessing civil monetary penalties, 

the Commission [ ALJ] shall consider" six statutory penalty criteria: 

[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). 

In keeping with this statutory requirement, the Commission has held that "findings of 

fact on the statutory penalty criteria must be made" by its judges. Sellersburg Stone Co., 5 

FMSHRC 287, 292 (Mar. 1983), ajf'd, 736 F.2d 1147 (7th Cir. 1984). Once findings on the 

statutory criteria have been made, a judge's penalty assessment for a particular violation is an 

exercise of discretion, which is bounded by proper consideration of the statutory criteria and the 

deterrent purposes of the Act. Id. at 294; Cantera Green, 22 FMSHRC 616, 620 (May 2000). 

As to Citation.No. 6403648, I accept the stipulations of the parties that the penalty 

proposed will not affect the Respondent's ability to continue in business and that the violations 

were abated in good faith. The history shows a number of electrical violations in the twenty-four 

months preceding this violation. I agree that the violation demonstrates moderate negligence. 

Further, I find that the Secretary has established the gravity as described in the citation and 

discussed above. I assess a penalty of $500.00 for this citation. 

III. ORDER 

Based on the criteria in section l lO(i)ofthe Mine Act, 30 U.S.C. § 820(i), I VACATE 

Citation No. 6403641, and AFFIRM Citation No. 6403648 and assess a penalty of$500.00. 

Prior to hearing, the parties reached a settlement as to the four remaining violations in this 

docket resulting in a $200.00 penalty. The motion to approve settlement is GRANTED. Cargill 

32 FMSHRC Page 1857 
Deicing Technology is hereby ORDERED TO PAY the Secretary of Labor the swn of $700.00 

within 30 days of the date of this decision. 

Distribution: (U.S. Certified Mail} 

Patrick DePace, Esq., Office of the Solicitor, U.S. Dept. of Labor, 881 Federal Office Building, 

1240 East Ninth Street, Cleveland, OH 44199. · 

Mark Savit, Esq., Donna Pryor, Esq., Patton Boggs LLP, Suite 4900, 1801 California Street, 

Denver, CO 80202 

., 

32 FMSHRC Page 1858 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY A VENUE N. W., SUITE 9500 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, {MSHA), 

Petitioner 

v. 

HIGHLAND MINING CO., LLC, 

Respondent 

WASHINGTON, D.C. 20001 

December 16, 2010 

CIVIL PENALTY PROCEEDINGS 

Docket No. KENT 2008-1083 

A:C.No. 15-02709-150056-01 

Docket No. KENT 2008-1084 

A.C. No. 15-02709-150056-02 

Highland No. 9 Mine 

DECISION 

Appearances: Jennifer Booth, Esq., Office of the Solicitor, U.S. Department of Labor, Nashville, 

Tennessee, on behalf of the Petitioner; 

Michael Cimino, Esq., and Brad Oakley, Esq., Jackson Kelly, Charleston, West 

Virginia, on behalf of behalf of the Respondent. 

Before: Judge Melick · 

These cases are before me upon the petitions for civil penalties filed by the Secretary of 

Labor pursuant to section 105{d) of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 

801 et seq., {the "A.ct;') charging Highland Mining Co., LLC {"Highland") with 39 violations of 

mandatory standards and seeking civil penalties for those violations~ The general issue before 

me is whether Highland violated the cited standards as charged and, if so, what is the appropriate 

civil penalty to be assessed for those violations. Additional specific issues are addressed as noted. 

At hearings, the parties proffered that a partial settlement had been reached regarding 36 

of the charging documents at issue herein. A formal motion for settlement of those charging 

documents was submitted post hearing proposing civil penalties of$78,340.00 for the violations · 

charged therein. I have reviewed the documentation and representation$ submitted and find that 

the proposed settlement is acceptable under the criteria set forth in section 11 O(i) of the Act. 

Accordingly, an order directing payment of those penalties will be incorporated in this decision. 

As a preliminary matter at hearings, and by subsequent post hearing motion, the Secretary 

modified Order Number 6695564, issued on November 27, 2007, from an order issued pursuant to 

32 FMSHRC Page 1859 
section 104(d)(2) of the Act to a citation issued pursuant to sectionl04(a) of the Act. 1 The 

Secretary also modified Order Number 6695579 from an order issued under sectfon 104( d){2) of 

the Act to one issued under section 104( d)( 1) of the Act. 

Citation Number 6695769 

This citation alleges a ·~significant and substantial" violation of the standard at 30 C.F.R 

§75.1725(a) and charges as follows: 

The beltline on 064 MMU was not being maintained in safe operating 

condition. A belt roller top chair had broken loose from the belt frame and 

was lodged between the top and bottom belts. Smoke from the top chair 

rubbing the belts was in the air and the top chair was hot .to touch. The 

company stopped the belt and removed the top chair from between the top 

and bottom belts. 

The cited standard provides that "mobile and stationary machinery and equipment shall 

1 Sectionl04(d) provides as follows: 

(1) If, upon any inspection of a coal or other mine, an authorized representative of the Secretary 

finds that there has been a violation of any mandatory health or safety standard, and if he also finds 

that, while the conditions created by such violation do not cause imminent dariger, such violation 

is of such nature as could significantly and substantially contribute to the cause and effect of a coal 

or other mine safety or health hazard, and ifhe finds such violation to be cause<;t by an unwarrantable 

failure of such operator to comply with such mandatory health or safety standards; he shall include 

such finding in any citation given to the operator under this Act. If, during the samejnspection or 

any subsequent inspection of such mine within 90 days after the issuance of such citation, an 

authorized representative of the Secretary finds another violation of any mandatory health or safety 

standafd and finds such violation to be also caused by an unwarrantable failure of such operator to 

so comply, he shall forthwith issue an order requiring the operator to cause all persons in the area 

affected by ~uch violation, except those person referred to in subsection ( c) to be withdrawn from,. 

and to be prohibited from entering, such area until an authorized representative of the Secretary 

detefmines that such violation has been abated. 

(2) If a withdrawal order with respect to any area in a coal or other mine has been issued pursuant 

to paragraph (1 ), a withdrawal order shall promptly be issued by an authorized representative of the 

secretary who finds upon any subsequent inspection the existence in such mine ofviolatio~s similar 

to those that resulted in the issuance of the withdrawal order under paragraph (1) l.llltil such time as 

an inspection of such mine discloses no similar violations. Following an inspection of such mine 

which discloses no similar violations, the provisions of paragraph (1) shall again be applicable to 

mme. 

32 FMSHRC Page 1860 
be maintained in· safe operating condition .. Machinery or equipment in unsafe condition shall be 

removed from service immediately." 

Jeffrey Winders, an inspector for the Department of Labor's Mine Safety and Health 

Administration ("MSHA''),.was inspecting the Highland No. 9 mine on April 12, 2008 when he 

smelled smoke from what he recognized as burning rubber. He tracked the smoke to the belt 

where a belt roller top chair had broken loose from the belt frame and was lodged between the 

top and bottom belt. He observed smoke emanating from the top' chair which was rubbing 

against the belt. He also noted that the top chair was hot to the touch. To remedy the problem, 

the company representative stopped the belt and removed the top chair from between the top and 

bottom belts.·· Within this framework of undisputed evidence, it is clear that the violation is 

proven as charged. 

The Secretary also maintains that the violation was "significant and substantial." A 

violation is properly designated as "significant and substantial" if, based on the particular facts 

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

result in an injury or illness of a reasonably serious nature. Cement Division, National Gypsum 

Co., 3 FMSHRC 822, 825 (April 1981). fu Mathies Coal Co., 6FMSHRC 1, 3-4 (January 

1984), the Commission explained: 

fu order to establish that a violation of a mandatory standard is significant and 

substantial under National Gypsum, .the Secretary must prove: (1) the underlying 

violation of a mandatory safety standard, (2) a discrete safety hazard - that is, a 

measure of danger to safety- contributed to by the violation, (3) a reasonable 

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

likelihood that the injury in question will be of a reasonably serious nature. See 

also Austin Power Co. v Sec'y of Labor, 861 F.2d 99, 103-04 (5th Cir. 1988), 

aff'g 9 FMSHRC 2015, 2021(Dec.1987) (approving Mathies criteria). 

The third element of the Mathies formula requires that the Secretary establish a 

reasonable likelihood that the hazard contributed to will result in an event in which there is an 

injury, US. Steel Mining Co., 6 FMSHRC 1834, 1836 (August 1984), and also that the 

likelihood of injury be evaluated in terms of continued normal mining operations. U.S. Steel 

Mining Co., Inc., 6 FMSHRC 1573, 1574(July1984). See also Halfway, Inc., 8 FMSHRC 8, 12 

(January 1986); Southern Ohio CoalCo., l3 FMSHRC 912, 916-917(June1991). 

In this regard, Inspector Winders opined that, under continued normal mining operations, 

the cited condition would worsen and result in a fire. According to Winders' credible testimony, 

there was coal inside the belt framing. It may reasonably be inferred that, under continued 

mining operations, it is reasonably likely that hot pieces of belt would ignite such coal. Should a 

fire occur, it is reasonably likely that bums or smoke inhalation would result causing injuries to 

persons working on the return side, i.e. two roof bolters, a miner operator and a miner operator 

helper. Within this framework of credible evidence, I conclude that indeed the violation was 

32 FMSHRC Page 1861 
"significant and substantial." In reaching this conclusion, I have not disregarded the inspector's· 

acknowledgment that he found no methane in the area nor coal accumulations in contact with the 

rollers. He further acknowledged that he did not see any belt shavings on the ground and did not 

detect any carbon monoxide. However, not only did he observe smoke emanating from the belt 

in contact with the top chair, but I find his conclusion credible that, under normal continued 

mining operations, that condition would likely result in additional smoke and fire. 

Based on fuspector Winders' acknowledgment, however, that the condition could have 

existed only moments before his discovery and that he did not believe that the condition was 

recognized by anyone, I conclude that the Secretary has failed to sustain her burden of proving 

the existence of negligence. This factor is taken into consideration in reducing the Secretary's . 

proposed penalty for this violation. 

Citation Number 6695564 

This citation, originally issued as a "section 104(d)(2)" order, was.modified, as previously 

noted, to a citation issued pursuant to section 104(d)(l) of the Act and alleges a"significant and 

substantial" violation of the standard at 30 C.F.R §75.203(b). The citation charges as follows: 

The No. 1 and No. 2 entries on the No. 4 (064-0) MMU. were driven together in 

the last open crosscut at spad 11 +07. The entries were driven together due to not 

having a proper sight line installed, to project the direction of mining in the 

crosscut between the No. 2 and No. I entries one crosscut outby the last open 

crosscut,and one properly installed to turn the right crosscut to pick up the No. 1 

entry. The No. 1 entry cut into the No. 2 entry on the second cut leaving an 8 inch 

pillar on the inby side. 

The dted standard provides that "[a] sight line or other method of directional control 

shall be used to maintain the projected direction of mining in entries, rooms, crosscuts and pillar 

splits." 

MSHA fuspector Archie Coburn, Jr. testified that he wa5 at the subject mine on 

November 27, 2007 when he observed that the No. 1 and No. 2 entries on the No. 4 unit were 

driven together in the last open crosscut at spad 11+07. Coburn was not present when the entries 

were cut, but nevertheless concluded that the entries were driven together due to not having a · 

proper sight line installed to project the direction of mining. 

Coburn also claimed that the continuous miner operator at the scene told him thatthere 

had been no sight line but rather the rib line was used in cutting the crosscut. Coburn also 

alleged that Jeffery Wilkens, the section foreman, admitted that he made a mistake and had not 

installed sight lines. Coburn also testified that it was "obvious" to him that the angle ofthe 

crosscut was wrong. 

Section Foreman Wilkens testified affirmatively that he did not tell mine fuspector 

32 FMSHRC Page 1862 
Coburn that he did not use sight lines. Wilkens testified that he used fluorescent orange paint to 

make a sight line but admitted that his calculations in locating the sight line were incorrect 

thereby leading to the misdirection of the crosscut. 

Allen Rigney, the miner operator who cut the cited crosscut, is a member of the United 

Mine Workers of America. He testified that he in fact used a sight line to make the subject cut 

and that the sightline was made with reddish-orange fluorescent paint on the roof Rigney 

testified that Wilkens was·his foreman and that Wilkens had never asked him to cut without sight 

lines. Rigney also observed that sight lines can become obliterated by the swing duster. Indeed, 

Inspector Coburn himself also acknowledged that sight lines can be obliterated by water sprays, 

rock dusting or by cutting with a continuous miner. Rigney also testified that he did not notice 

that the angle of the cut was misdirected and that ifhe had he would have stopped mining and 

notified his boss. Rigney testified that the sight line drawn by Wilkens was eight to ten feet long 

and three inches to four inches wide. 

Randy Johnson, Highland's safety supervisor, accompanied Inspector Coburn on his 

April 27, 2007 inspection. Johnson testified that he indeed saw the sight line in fluorescent 

orange paint in the subject area. Since Coburn, while underground, never told Johnson that he 

was going to write an order for the absence of a sight line, Johnson did not consider it necessary 

to show Coburn the sight line that was present. 

In resolving the conflicting testimony,· I note that the inspector had not previously 

disclosed the pmported admissions in his deposition, nor did he,report these purported 

admissions of Wilkens and Rigney in his notes. Considering the cross corroboration of the .· 

credible testimony of Wilkens, Rigney and Johnson, I can only conclude thatthe inspector's· 

recollection of events that had occurred nearly three years before trial must have been mistaken. 

Under the circumstances, I find that, indeed, sight lines had properly been painted on the mine 

roof as required ·by the cited standard. Citation Number 6695564 must accordingly be vacate& 

Order Number 6695579 

This order, as modified to a "section 104(d)(l)" order, alleges a "significant and 

substantial" violation of the standard at 30 C.F,R §75.370(a)(l) and charges as follows: 

The approved ventilation, methane and dust control plan in affect [sic] at this time 

was not being complied with on the 4-C belt and supply road. The following 

conditions were present 1. The required 3,000 CFM was not present in the 

supply road at crosscut 15 where the company No. 38 Diesel 2 man personnel 

carrier was operating. The Supply Getman requiring 6, 000 CFM was also 

operating in the supply road at crosscut 8 out by this area. When measured, with a 

chemical smoke tube zero air movement was measured. 2. The air was not 

moving in the proper direction on the belt line from crosscut 15 to 234. The air 

was moving out by along the belt line. This belt line uses a heat point fire 

detection system. The preshift report show that the air was moving out by from 

32 FMSHRC Page 1863 
the backup curtains outby through the unit air locks. This condition was reported 

to the mines ventilation supervisor. The preshift was signed by the Section 

Foreman and Mine Foreman prior to the start of the shift. When check the air was 

still moving outby from the backup curtains through the air locks. The No. 4 

section was in full production when the conditions were present. 

The cited standard provides in relevant part that "the operator shall develop and follow a 

ventilation plan approved by the district manager:" 

It is noted that the order·at issue actually charges two violations i.e. (1) insufficient air in 

the supply road and (2) air moving in the wrong direction on the beltline. Highland admits to the 

violations but maintains that they were neither "significant and substantial" nor the result of its 

unwarrantable failt1re. 

Inspector Coburn testified that around 7:00 a.m. on December 5, 2007, he read the preshift examination book and saw the statement, "unitpre.,.shifted from outby low framing to faces 

air traveling outby from backup through airlocks outby, reported to Troy Cowan." ( Ex. G-12). 

Coburn did not travel to the unit to inspect the reported condition butrather gave the operator an 

opportunity to correct it. When Coburn later arriv~d at the unit around 9:00 a.m;, he found that 

the ribbons in the neutral were not moving. Coburn observed that the air was moving from the 

face outby through the unit airlocks and moving backwards down the belt line and supply road. 

Coburn testified that the air moving down the belt line and supply road was not being dumped 

into the return regulator at the unit airlock (Ex. G-9). Coburn further testified that the air should 

have been moving inby towards the low framing and that the incorrect air movement was a 

violation of the operator's ventilation plan. (Ex. G-10). 

Coburn initially attempted to use an anemometer to determine the air movement, but 

since, there was insufficient air movement he had to use a smoke tube. Coburn thereby 

determined that the air was moving away from the unit outby. Inspector Coburn also observed 

that a two-man personnel carrier was situated just outby the unit airlocks and had a minimal 

amount of air movement around it. He further testified that the two-man carrier required 3000 

cubic feet per minute ( c.f.m.) of air designated on the equipment's .air measurement tag ... Coburn 

also observed a Getman supply diesel in the supply road and noted that there was insufficient air 

for the Getman to operate in the supply road. The Getman diesel requires 7000 c.f.m. (Ex. G-9). 

Inspector Coburn opined thatinsufficient air movement over the two-man personnel carrier and 

the Getman supply diesel exposed the miners on the unit to carbon monoxide fumes produced by 

this equipment. 

After observing the condition, Inspector Coburn spoke with Ventilation Supervisor, Troy 

Cowan, about the air moving outby, in violation of the ventilation plan. Cowan stated that he had 

hung a curtain, shut the belt off and restarted it, and assumed that if they were working on the 

problem then they could continue to run. Additionally, Coburn spoke with Section Foreman 

Eddie Barber and asked him why the unit was still tunning with the air going backwards. Barber 

responded that because the beltwas running when he arrived he assumed the condition.had been 

32 FMSHRC Page 1864 
corrected. Barber admitted, however, that he did not check to ensure that the condition had been 

corrected. 

The Secretary maintains that the admitted violation was "significant and substantial." In 

this regard, fuspector Coburn indicated that the cited condition wa8 reasonably likely to 

contribute to a discrete safety hazard, i.e. a belt fire and diesel fumes. He opined that if a fire 

were to occur on the belt line the personnel on the unit would not know or have any warning that 

there was a fire outby 

because the air was moving away rather than toward them. He further opined that this condition 

would affect all ten·persons on the un:it. I find that Cobum's expert testimony is credible and 

provides ample proof that the cited violation was indeed "significant and substantial" and of high 

gravity. fu reaching this conclusion, I have not disregarded Respondent's argument that there 

was no evidence in this case of any accumulations, heat source or ignition source for a belt fire. 

However, this argument fails to recognize continued mining operations as required in any 

"significant and substantial" analysis. It also fails to 'recognize the hazard of carbon monoxide 

from diesel emissions. · 

The Secretary maintains that the violation was also the result of Highland's 

'\mwarrantable failure." This Commission has defined unwarrantable failure as "aggravated 

conduct, constituting more thari. ordinary negligence, by a mine operator in relation to a violation 

of the Act" and has indicated thatan unwarrantable failure implies indifference, wilful intent, a 

knowing violator, or a serions lack of reasonable care. Emery Mining Corporation 9 FMSHRC 

1997, 2004 (Dec. 1987). The Commission has considered· a number of factors to be relevant 

when determining whether a violation is the result of unwarrantable failure, stating as follows: 

We examine various factors in determining whether a violation is 

unwarrantable, including the extent of a violative condition, the length of 

time that it has existed, whether the violation is obvious or poses a high 

degree of danger, whether the operafor has been placed on notice that 

greater efforts are necessary for compliance, and the operator's compliance 

efforts made prior tothe issuance of the citation or order.(Citations 

omitted). Repeated similar violations may be relevant to an unwarrantable 

failure determination to the extent that they serve to put an operator on 

notice that greater efforts are necessary for compliance with a standard. 

Amax Coal Co., 19 FMSHRC 846, 851(May1997). 

Further, this Commission has found that because a supervisor is held to a high standard of 

care, evidence of a supervisor's involvement in the violation is an important factor supporting an 

unwarrantable finding. See Lafarge Constr. Materials, 20 FMSHRC 1140, l 145-1 l48 (Oct. 

19~~ . 

fu this regard, Coburn testified that the violative condition was a result of the operator's 

high negligence and unwarrantable failure because Mine Foreman Danny Thorpe, Ventilation 

32 FMSHRC Page 1865 
Supervisor Troy Cowan and Section Foreman Eddie Barber had all signed off on the fire boss 

report that listed the violative condition. According to Coburn, those agents of the operator, 

therefore knew of that condition and failed to correct it before running coal. Coburn further 

noted that he gave the operator at least two hours to correct the violative condition and the 

operator nevertheless still failed. to correct it. I find that three agents of the operator (the !hree 

supervisors) demonstrated a serious lack of reasonable care and indifference to the safety of the 

miners on the unit when they allowed 

production to continue without correcting the violative condition. fudeed, the ventilation 

supervisor 

and sect~on foreman were on the unit and aware of the violative condition yet failed to verify that 

it had been corrected before producing coal. Under all the circumstances, I find that the . 

Secretary has clearly met her burden of pr()ving that the violation herein was• Uie result of 

Highland's unwarrantable failure and high negligence. 

fu reaching this conclusion, I have not disregarded the Respondent's argwnent that the 

language in the preshift report did not place its agents on notice of the precise violative 

conditions cited herein. I find however, that whether or not the same precise violative 

conditions were set forth in the preshift report, the report provided sufficient notice of the cited 

ventilation problems to Respondent's agents so tha.t they were thereby placed on notice. 

Moreover, aside from the notice provided by the prespift report, it is cleat: that Respondent's 

ventilation supervisor and section foreman had actual knowledge of the violative condition but 

failedto verify that it had been corrected before running coal. Their failure to correct those 

problems was therefore the result of high negligence ~d unwarrantable failure. 

Civil Penalties 

Under Section 11 O(i) of the Act, the Commission and its judges must consider the 

following fa,ctors in assessing a civil penalty: the history of violations, the negligence of the 

operator in committing the violation, the size of the operator, the gravity of the violation, whether 

the violation was abated in good faith ~d whether the penalties would affect the operator's 

ability to continue in business. It is also noted that Section l 10(a)(3) of the Act qualifies and 

may supercede the provisions of section 11 O(i) by imposing mandatory minimum penalties for 

"section I 04( d)" violations. 

The operator is large in size and has a significant history of violations (from within 

twenty-four months of the violations at issue) .. There is no evidence that the penalties imposed 

herein would affect the operator's ability to stay in business. There is no dispute that the 

violations were abated in good faith. The gravity and negligence of the violations have previously 

been evaluated. 

ORDER 

Citation No. 6695564 is hereby vacated'. Citation No. 6695769 is affirmed with a civil 

penalty of $1,500.00. Citation No._ 6695579 is affirmed with a civil penalty of $38,500.00. 

32 FMSHRC Page 1866 
Highland Mining Co., LLC, is directed to pay the above civil penalties within 40 days of the date 

of this decision. Further, pursuant to the motion for partial settlement filed herein, Highland 

Mining Co., LLC, is directed to pay additiona:i civil penalties of$78, 340.00 within 40 days of 

the date of this decision. · k ~ ' .. 

~li~~ -~ 

Distribution: (Certified Mail) 

Administrative Law Judge · . 

202-434-9977 

Jennifer D. Booth, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street, 

Suite 230, Nashville, TN 37219-2456 · 

Michael T. Cimino, Esq., and Brad Oakley, Esq., Jackson Kelly, PLC, 1600 Laidley Tower, P.O. 

Box 553, Charleston, WV 25322 

Ito 

32 FMSHRC Page 1867 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

601 New Jersey Avenue, NW, Suite 9500 

Washington, DC 20001-2021 

Telephone No.: 202-434-9950 

TelecopierNo.: 202-434-9954 

December 16, 2010 

SECRETARY OF LABOR, MSHA, on DISCRIMINATION PROCEEDING 

behalf of OKEY SARTIN, 

Complainant 

v. 

Docket No. WEVA 2010-1004-D 

HOPE CD 2010-04 

KIAH CREEK TRANSPORT, LLC, 

Respondent 

Mine ID 46-07809 

Kiah Creek Preparation Plant 

Appearances: 

Before: 

DECISION 

Karen Bare.field, Esq'., Office.of the Sohcitor, US. Department of Labor, 

Arlington, Virginia, for Complainant. . . . 

Mark E. Heath, Esq., Spilman, Thomas, Battle, PLLC, Charleston, West 

Virginia, for Respondent. 

Judge Zielinski 

This case is before me on a complaint of discrimination filed by the Secretary of Labor, 

on behalf of Okey Sartin, pursuant to section 105( c )(2) of the Federal Mine Safety and Health 

Act of 1977, 30 U.S.C. § 815(c)(2).1 The Secretary alleges that Kiah Creek Transport, LLC, 

unlawfully discriminated against Sartin by terminating him in retaliation for his complaints about 

safety. A hearing was held in Charleston, West Virginia, and the parties filed briefs following 

receipt of the transcript. For the reasons set forth ~elow, I find that the Secretary has failed to 

prove that Sartin was discriminated against in violation of the Act. 

Findings of Fact 

Argus Energy WV, LLC, operates a large surface and sub-surface coal mine in Wayne 

County, West Virginia. Kiah Creek Transport is a trucking company that contracted with Argus 

Energy to transport coal from stockpiles to a tipple at the mine, known as the Kiah Creek 

1 Pursuant to section 105(c)(2) of the Act, a miner may submit a complaint of 

discrimination to the Secretary of Labor, who must conduct an investigation and file a complaint 

with the Commission if she determines that the Act has been violated. If the Secretary finds that 

the complaint ''was not :frivolously brought," she may also seek an order temporarily reinstating 

the miner. 30 U.S.C. § 815(c)(2). The Secretary filed a Temporary Reinstatement Proceeding on 

behalf of Sartin. Sec '.Y of Labor on behalf of Sartin v. Kiah Creek Transport, LLC., Docket No. 

WEV A 2010-771-D. Pursuant to agreement of the parties, an order was entered on April 5, 

2010, economically reinstating Sartin effective March 31, 2010. 

32 FMSHRC Page 1868 
Preparation Plant. Large tractor-trailer trucks, typically carrying 60 tons, are used to transp0rt the 

coal. Kiah Creek operated approximately 20 trucks, loaders and other equipment, and its 

operations were based in a shop building on the mine site, where maintenance and repairs were 

done. Truck drivers worked on two shifts, six days a week. Generally, eight truck drivers would 

work on the second shift, from 5:00 p.m. to 5:00 a.m., Monday through Friday, and every other 

Saturday. Ricky Vance was the second shift supervisor. Kevin Fields was the superintendent of 

Kiah Creek's trucking operations, which included the off-road mine site work and an operation 

transporting coal to river docks in Kenova; Wisconsin. Shane Farley was the truck boss at Kiah 

Creek, and worked under Vance. 

In March of 2009, Sartin was unemployed because of chronic medical problems. Tr. 19; 

He hadpreviouslyworked in underground coal mines. While he had not operated large trucks in 

some time, he was familiar with them because his father worked with heavy equipment and · 

trucks. Ex. P-4. One of Sartin's friends happened to work with Vance's wife, and mentioned 

Sartin's situation to her. Vance's wife talked to him, recommending that Kiah Creek consider 

Sartin. Vance suggested to Fields that they hire Sartin and give him a chance to "get back on his 

feet." Tr. 158. Sartin submitted an application to Kiah Creek, was interviewed by Fields, and 

was hired as a second shift haul truck driver on March 13, 2009. Tr. 20, 210; Ex. R-1. · 

The employment agreement signed by Sartin provided that, after a probationary period, 

his employment could be terminated as part of a progressive disciplinary process, or without 

prior disciplinary action if his actions, in the Company's judgment, warranted immediate 

termination. Examples of actions that could result in termination without prior disciplinary 

action included: absence without approved leave, disorderly conduct, and excessive absenteeism 

or tardiness. Ex. R-1. 

-Vance and Farley were very supportive of Sartin, who was living out of his vehicle. 

Vance occasionally gave him rides to and from work, brought him food, and gave him money to 

buy gasoline. Tr. 22, 70, 159; Ex. P-5. Later, when Sartin experienced health problems, Vance 

transported him home from the hospital. Tr. 159; Ex. P-5. Farley also occasionally provided 

transportation for Sartin to and from work, and gave him gasoline and food. Tr. 197. Sartin 

agreed that the company bent over backwards to help him out in the spring of 2009. Tr. 71. 

After Sartin started receiving paychecks, he acquired a small trailer. Although he may have had a 

disagreement with one co-worker, Sartin's relationships with co-workers and supervisors were 

unremarkable. Tr. 72. Sartin and Vance agreed that they got along well. Tr. 71, 80, 159. Farley 

also got along well with Sartin, and wentfishing with him a couple of times. Tr. 83, 197. 

For the first several months of his employment, Sartin performed very well. Tr. 160, 198. 

Around June or July, he was victimized in an internet scam. He was tricked into sending money · 

to a woman who would supposedly come to the United States and live with or many him; He 

lost about $2,600.00 before he realized that he was being taken. Sartin testified that the incident 

did not affect his work performance. Tr. 24; However, his supervisors noticed that his attitude 

began to change. Tr. 160-61, 21 l-12. Vance reported that Sartin started missing work and didn't 

32 FMSHRC Page 1869 
seem to care about anything. Ex. P-5. · 

Beginning in July2009, Sartin experienced serious health problems, mainly related to 

high blood pressure. He was taken from mine property in an ambulance a few times, and 

suffered a minor stroke while on mine property. Argus Energy's human resources and payroll 

administrator, Rebecca Hall, compiled a list ofSartin's absences from July l; 2009, through 

February 6, 2010, along with a statement of reasons, or excuses, claimed for such absences.2 

Ex .. p.,.1, . The list is inaccurate in several respects.3 The period beginning on Monday, December 

14, 2009, through Tuesday, January 12, 2010, is the more critical time. Sartin was absent 14 of 

the 22 work days. He was hospitalized on four of those days, although it is unclear whether 

Respondent was aware of that.4 He submitted an excuse for five days, admitted thathe had no 

excuse for absences on January 5 and 8, and claimed that Fields· had told him to take Friday the 

9th off and that he was suspended beginning on Monday the 11th. Tr. 34-35. 

Fields testified that he was running out of patience with Sartin's poor attendance. He.and 

Vance had talked to Sartin about the problem. Tr. 228. Following Sartin's absence on January 8, 

Fields told.Sartin that heneeded to have a doctor's excuse before he couldcome back to work..· 

Tr. 226, 230. When Sartin advised that he could not produce an excuse, Fields told him that he . 

was going to be suspended for four days. Tr. 230. 

2 The concept of an "excused" absence is somewhat misleading. Aside from vacation 

days, for which they were paid in a lump sum in July, miners, like Sartin, were not paid for days 

they did not work, regardless of the reason. Miners who worked all assigned days in a month 

received a $150 attendance bonus. Any day missed, except for a vacation day, voided the bonus. · 

Tr. 147. Excuses, apparently were relevant only as in indication of an employee's reliability, and 

to provide an opportunity to manage work schedules and seek possible replacements. If a driver 

simply failed to show up, Fields explained that his truck sat, production was disrupted, and the 

driver's performance was adversely affected. Tr. 216. 

3 Sartin's time sheet for December 4 through 20, shows that he did not work on six of 

the 10 week days, whereas,· the list shows that he was absent on only four days. Ex. P-1, P-13 at 

11. The time sheet for December 21 through January3, bears a notation "Had [Dr?] excuse for 

all days off," whereas Argus's list does not note an excuse for five absences in that time period. 

Ex. P-1, P-13 at 12. Argus's list shows that Sartin was absent on January 6 and 7. Sartin 

testified that he worked on January 6 and 7, and histime sheet appears to confirm his claim. Tr. 

34, 52; :μx. P-13 at 13. · 

4 The Secretary introduced medical records establishing that Sartin was hospitalized 

from December 15 thrQugh 18. Ex. P-12. The hospitalization apparently was not reflected in 

Argus's payrol1 records, and is not reflected on Argus's list of absences. 

32FMSHRCPage1870 
On January 13, Sartin was called in, was counseled by Vance and Fields about excessive 

absenteeism, and was suspended for four days.5 A form signed by all parties memorializes that 

Sartin was counseled about "missing too much work no excuses," and notes that "any other 

infraction(s) of company rules or policies could lead to [his] suspension and or ... termination." 

Ex. R-3. Sartin was told to come back on January 18, a Monday, at which time he would have to 

sign a "last chance agreement.•'6 Ex. R.,.3. On January 18, Sartin reported for work, and signed 

an agreement, reflecting that he had received one written and three verbal warnings regarding his 

"work performance or attendance," and was requesting a "Last Chance" to improve. Ex. R-4. 

Following his suspension, and when working under the last chance agreement, Sartin was 

essentially on probation, and could be terminated for any violation of work rules or regulations. 

Tr. 168; Ex. R-3, R-4. Sartin understood that, having signed the agreement, he could be 

terminated for any breach of company rules, or further absences. Tr. 37, 68, 72. 

From January 18 through February 4 there were no significant problems with Sartin's ' 

attendance or work performance. 7 On February 5, he reported for work and was told by the day 

shift driver and others that his assigned truck, truck #6, had been leaning when dumping. He 

checked potential·causes when he did his pre-operational checks, but did not find anything 

wrong. Vance had overheard the first shift driver's report about the truck leaning. Tr. 170.' 

There was also mention that the leaning might be attributable to uneven loading as a result of 

frozen coal. Tr. 170. Vance also checked the truck's tires,. springs, frame.and dump chutes: 

things that might cause leaning. He found no problems. Tr. 171. Vance told Sartin to "lightload" the truck. He also told Farley, who was operating the loader at the stockpile, to light-load 

the truck until they figured out what was wrong with it. Tr. 173. The truck was loaded with 40-

45 tons of coal, as opposed to a normal load of 60 tons or more. It leaned some when dumping, 

but was within acceptable limits for the first five loads. Tr. 200. Sartin did not feel that the truck 

was unsafe to operate.8 Tr. 76. Farley, felt that the fifth load leaned a little more, so he loaded 

5 The suspension ran from January 13 through January 16. January 16 was a 

Saturday. It is not clear whether Sartin was scheduled to work that Saturday, because he had 

been scheduled to work the previous Saturday, January 9. The list of absences prepared by Argus 

does not show him absent or on suspension on January 16. Ex. R-2. 

6 Fields explained that a last chance agreement is used when they have worked with 

an employee to try and save his job, but are ready to terminate him. The agreement affords the 

employee one last opportunity keep his job. Tr. 217. 

7 Vance testified that Sartin's attendance was good. He was tardy a couple of times, 

but he called in and was on the property. Tr. 169. · 

8 Sartin testified that he told Vance, over the radio, that the truck was leaning after 

the fifth load, and that Vance told him to haul coal. Tr. 76. Vance testified that he did not hear 

from Sartin before he brought thetruck back to the shop; Tr. 174. As noted above, Sartin did 

not feel that the truck was unsafe to operate at that time. 

32 FMSHRC Page 1871 
the sixth load more toward the back of the trailer to make it easier to dump. Tr. 201. However, 

the trailer leaned badly when dumping the sixth load, and Tony, the loader operator at the tipple, 

told Sartin to take the truck back to the shop because it was too dangerous to keep operating. 

Tr.43. 

Sartin drove the truck to the shop about l :30 a.m. or 2:00 a.m., on February 6, 2010, and 

stopped outside because all three shop bays were full. He approached Vance, who was on an 

elevated platform greasing jack pins on a loader. Farley, who had been operating the loader at 

the stockpile, had brought it in for greasing when the belt shut down. He was standing on the 

ground, handing things to Vance. Sartin walked up next to Farley, and a critical conversation 

ensued. 

Sartin testified that he told Vance that the truck just about 'fOlled over and that Tony (the 

loader operator at the tipple) said to bring it to the shop and not to bring it back until they found 

out what was wrong with it.- Tr. 43. Vance replied thatthere was nothing wrong with the truck 

and instructed, Sartin to haul coal. Tr. 44. Sartin responded that the truck just about turned over, 

and Vance asked whether Sartin told Tony that Vance had looked at it. Sartin replied that he 

had, and that Tony said not to bring it back down .there. After three to four minutes, Vance told 

Sartin.to park the truck and that he could "go on unemployment." Tr: 44. Sartin felt that Vance 

was "threatening" his job and replied "do it," meaning fire me. Tr. 44. Vance replied, "you get 

smart with me and I'll fire you now." Tr. 44. Sartin said ''you f-king fire me then," and Vance 

fired him. Tr. 44. 

Vance testified that Sartin told him that the loader man at the tipple told him that the 

truck was leaning too bad and to bring itto the shop; · v ance told him to park it, and looked at 

Farley and Sartin, "winked," and said "the way things [are] going we all [are] going to be on 

unemployment.•"> Tr. 178. Sartin started cussing and said "I don't f-king care, you can go ahead 

and f-king fire me." Tr. 178. Farley said that Vance was just joking, and Sartin said "f-king fire 

me." Tr. 178. Vance then fired Sartin. 

The only mat_erial differences in the parties' respective versions of these events is whether 

Vance's comment about unemployment compensation was made in a joking manner, or whether 

it was a genuine threat to fire Sartin, and whether Farley made a comment to the effect "he's 

joking."10 There is general agreement on other aspects of the interchange, including that Sartin 

was loud and cursed at Vance. Sartin admitted that he was loud; and that he cursed at Vance in 

an angry voice. Tr. 44, 82. Vance and Farley also testified that Sartin spoke in a loud, angry 

voice and cursed. Tr. 178-79, 189, 203-04. 

9 There were typically eight trucks operating on the second shift. That evening, there 

were seven, and loss of Sartin' s truck would have taken that number down to six. 

10 Vance and Farley testified that Farley interjected with the "he's just joking'' 

comment. Tr. 178, 203. Sartin denied that Farley made such a statement. Tr. 44. 

32 FMSHRC Page 1872 
Vance made a note of what happened, and he and Farley signed it. Exh. R-6. Vance 

filled out an "Employee Termination Form," reporting that Sartin had been terminated "for 

having no respect for his job and going off on me." Exh. R-5. Vance called Fields about 

5:00 a.m., and told him he had to let Sartin go. He explained what happened, and told Fields that 

the termination form was· on his desk. . Fields signed the form whep. he came in. Sartin called 

Fields that day, told him that he had gotten into it with Vance, and inquired whether he had lost 

his job. Fields replied that he had been fired. Sartin said that he had been fired over a safety 

issue, and Fields told him "no ... you were fired for cussing your boss out." Tr. 222. Sartin 

offered to drop everything, if he could have his job back. Fields replied that he was going to· 

honor Vance's decision, to which Sartin responded: "you've got a fight on your hands." Tr. 222. 

Sartin' s testimony describing this conversation was essentially the same. Tr. 47. 

On February.8, 2010, Sartin appeared at the MSHA field office in Mt. Hope, West 

Virginia, and filed a discrimination complaint. The complaint was assigned to MSHA·special 

investigator James Humphrey, who visited Sartin at his residence, and-obtained a statement from 

him. Exh. P-4. Humphrey also visited Kiah.Creek's shop, interviewed Vance and Fields, and 

obtained statements from them. Ex. P-5, P-6. Humphrey did not interview Farley, because until 

his deposition was taken, he was not aware that Farley was standing right next to Sartin and 

Vance, and witnessed the critical conversation. Tr. 130. Humphrey testified that he specifically 

inquired of Sartin whether there were witnesses to the conversation, and that Sartin did not tell 

him that Farley was present. Tr. 132. 

Humphrey did not examine the trailer on his first visit to the site. Kiah Creek was going 

to send the trailer to the manufacturer to correct whatever deficiencies were causing it to lean. It 

voluntarily kept the trailer on site until Humphrey could examine it. About two weeks later, 

Humphrey examined the trailer, including the upper end of the lift/dump mechanism, which was 

accessed by removing a cover plate high on the trailer's front side; He found that a pin attached 

to the end of the hydraulic lift piston was badly worn and bent, as was the eye bracket, and that 

several bolts were missing from brackets mounted on the trailer into which the ends of the pin fit. 

Tr. 114-16. Those conditions, which are depicted in pictures taken by Humphrey, were the 

apparent cause of the leaning problem. Ex. P-8, P~9. ·Humphrey knew that a number of things 

can cause leaning, and was disappointed that Kiah Creek had not gone furtherin its efforts to 

find the cause. Tr. 118. However, Fields noted that all of those defective parts were replaced, 

and that after $16,700.00 was spent on repairs, the trailer still had a tendency to lean. Tr. 224-25. 

After Humphrey's initial investigation, the Secretary concluded that Sartin' s complaint 

was nqt frivolous, and filed the aforementioned temporary reinstatement proceeding. At the 

conclusion of the investigation, the Secretary filed the instant Complaint of Discrimination, 

seeking permanent relief on behalf of Sartin and the imposition of a civil penalty in the amount 

of $10,000.00 against Kiah Creek for its alleged violation of the Act. 

32 FMSHRC Page 1873. 
The Discrimination Claim 

A complainant alleging discri:mination underthe Act typically establishes aprimafacie 

case by presenting evidence sufficient to support a conclusion that he engaged in protected 

activity and suffered adverse action motivated in any part by that activity. See Driessen v. 

Nevada Goldfields, Inc., 20 FMSHRC 324, 328 (Apr. 1998); Sec'y of Labor on behalf of Pasula 

v. Consolidation Coal Co., 2 FMSHRC 2786, 2799 (Oct. 1980), rev'd on other grounds sub nom. 

Consolidation Coal C-o. v. Marshall, 663 F.2d 1211 (3d Cir. 1981); Sec'y of Labor on behalf of 

Robinette v. United Castle Coal Co., 3 FMSHRC .803, 817-18 (Apr. 1981). The operator may 

rebut the prima facie case by showing either that no .protected activity occurred or that the 

adverse action was in no way motivated by protected activity. See Robinette, 3 FMSHR.C at 818, 

n. 20. If the operator cannot rebut the primafacie case in this manner it, nevertheless, may 

defend affirmatively by proving that it was also motivated by the miner's unprotected activity 

and would have taken the adverse action for the unprotected activity alone. Id. at 817-18; 

Pasula, 2 FMSHRC at 2799-800; see also Eastern Assoc. Coal Corp. v. FMSHRC, 813 F2d 639, 

642-43 (4th Cir. 1987)(applying Pasula-Robinettetest). 

While the operator must bear the burden of persuasion on its affirmative defense, the 

ultimate burden of persuasion remains with the complainant. ,Pasula, 2 FMSHRC at 2800; 

Schulte v. Lizza, 6 FMSHRC 8, 16(Jan. 1984). 

Prima Facie Case 

Section 105(c )( 1) of the Act prohibits discrimination against any miner who complains to 

an operator or its agent about "an alleged danger or safety or health violation.'' 30 u~s.c. 

§ 815(c)(l). Sartin's report of the problem with the #6truck related to safety and was an activity 

protected under the Act. He suffered adverse action when he was terminated. 

The principle issue as to Sartin' s prima facie case is whether the adverse action was 

motivated in any part by his protected activity. Even though there is no direct evidence of 

unlawful motivation, the Commission has recognized that such evidence seldom exists and that 

discrimination often must be proven through circumstantial evidence. Sec '.Y of Labor on behalf 

of Garcia v. Colorado Lava, Inc., 24 FMSHRC 350~ 354 (April 2002), citing Sec'y of Labor on 

behalf of Chacon v. PhelpsDodge Corp., 3 FMSHRC 2508, 2510 (Nov. 1981), rev'd on other: 

grounds, 709 F.2d 86 (D.C.Cir. 1983). Circumstantial evidence of unlawful motivation may 

include an operator's knowledge of the protected activity, hostility toward the protected activity, 

coincidence in time between the protected activity and the adverse action, and disparate treatment 

of the complainant. Id. 

Here the adverse action immediately followed the protected activity, a coincidence in 

time sufficient to raise an inference that it was the result of Sartin's protected activity, at least in 

part. Vance had examined the truck and found nothing wrong with it. He was concerned that 

another truck being taken out of service would further reduce his fleet of available trucks on that 

32 FMSHRC Page 1874 
shift, which would adversely affect production. It would be permissible to infer that his decision · 

to terminate Sartin was motivated, in part, by the report of a safety problem. 

While drawing such an inference would be permissible, it is not compelled, and I decline 

to do so. As explained in the discussionofRespondent's affirmative defense, I find that Vance's 

decision to terminate Sartin was motivated solely by Sartin' s angry reaction to an innocuous 

comment about unemployment compensation. While Sartin's actions with respect to the truck 

related to a safety issue, he was not the initiator of the complaint. The initial reports that the 

trailer was leaning when dumping a load came, not from Sartin, but from the first shift driver, 

and were overheard by Vance. Vance examined the truck and instructed Sartin and Farley to 

light-load it. Sartin agreed that that was the proper approach to the problem. Tr. 74. 

When the trailer leaned badly while dumping the sixth load, the loader man at the tipple 

told Sartin to bring the truck to the shop because it was too dangerous to operate. Sartin took the 

truck to the shop· and reported the loader operator's instruction/suggestion to Vance. ·Again, 

Sartin was not the initiator of the safety related message. He had taken the truck to the shop at 

the instance of the tipple operator, and he did not refuse to drive the truck. While he was the 

bearer of news that would have an adverse effect on production, there was little reason for Vance 

to have focused a negative reaction on Sartin, especially to the extent of terminating his··· 

employment. The truck was carrying limited loads; and there were only about three hours left in 

the shift. Several persons had reported the leaning problem, and Vance knew that it had to be' 

dealt with. 

I find that Vance's statement about unemployment was a joking commentary on the 

problems that he was experiencing with haul trucks that evening. 11 That is how Farley 

understood·it, and he tried to calm Sartin when he reacted angrily and started cursing. Sartin may 

have miss.,.perceived the comment as a ''threat" to his job - but not, apparently, that he was being 

fired. ·As the Secretary notes, in her brief, Sartin was discharged "almost immediately after" 

Vance's reference to unemployment. Sec'y. Br. at 6. The discharge occurred seconds later 

because when Vance told Sartin that further abusive conduct would result in termination, Sartin, 

in a loud, angry cursing voice, specifically invited Vance to fire him, and Vance then fired him. 

The Secretary attempts to limit Sartin's culpability by reference to Sartin's testimony that · 

the use of"salty'' language was normal conversation for miners at Kiah Creek. Tr. 23. Vance 

agreed that profanity was often used in the general discourse on the job. Tr. 188. However, that 

is an entirely different matter than personally directed comments made in anger. Farley stated 

11 Telling an employee to sign up for unemployment would be an unusual way to fire 

him. Persons terminated for cause typically are not eligible for unemployment benefits, at least 

initially. Kiah Creek "fought" the unemployment claim that Sartin made following his 

termination. Tr. 49. While it might be presumed that a fired employee would seek 

unemployment benefits,·it strikes me as highly unlikely that Vance would have couched any 

decision to terminate Sartin in terms of his seeking unemployment benefits. 

32 FMSHRC Page 1875 
that cursing,· if made in a non-joking way, should be punished, and could result in termination if 

one was on a last chance agreement. Tr. 205. In his mind, there was no question that Sartin was 

angry. 

I find thatVance's decision to terminate Sartin's employment was motivated entirely by 

Sartin's angry, cursing behavior, and not, in any part, by Sartin's protected activity. 

Consequently, the Secretary failed to establish a primafacie case of discrimination against 

Sartin. 

In reaching this conclusion I have found facts that are adverse to the interests of the 

Secretary and Sartin. Those determinations have been based upon my favorable evaluation of the 

credibility of Vance, Fields and Farley, and a less favorable evaluation of Sartin's credibility. 

Two of the considerations that weighed on Sartin's credibility were his testimony about a drug 

test incident, and his failure to advise Humphrey that Farley was present and participated .in the 

exchange that lead to his termination. The drug test issue was unremarkable, except for Sartin' s 

inconsistent testimony about it. Sartin testified that he talked to Fields shortly after taking a 

random drug test in July, and reported that he was going to fail it because he had taken a pain pill 

given to him by another employee that ''was not prescribed to [him]." Tr. 48. Sartin later 

testified that he had a prescription for the drug when he took it. Tr. 58~59. The drug test came · 

up negative, and Sartin was never required to show a prescription to Fields. Sartin never 

explained why he was concerned about the test, if he had a prescription for the drug .. 12 

R~spondent's Affirmative Defense 

' ~ : - ,· 

While I have rejected the Secretary's argument on causation, that decision is not yet final; 

Assuming, for purposes of argument, that Sartin's termination was in some part the result of his 

protected activity, Respondent's affirmative defense will be considered .. Kiah Creek contends 

that Sartin's termination was based upon his unprotected conduct; and that it would have taken 

the same action whether or not Sartin had engaged in protected activity. 

In Secy. of Labor on behalf of Bernardyn v. Reading Anthracite Co. 22 FMSHRC 298, 

302 (Mar. 2000) (Bemardyn I), the Commission reiterated the general principles for evaluating 

an operator's affirmative defense: 

[T]he operator must prove that it would have disciplined the miner anyway for the 

unprotected activity alone. Ordinarily, an operator can attempt to demonstrate this · 

12 . Sartin also testified that drivers were required to report all prescription medications 

to th~ company. Tr. 58. But, when questioned about why the prescription he claimed to have 

had had not been reported, he stated that only prescriptions that bore a red label warning against 

operation of heavy equipment needed to be reported. Tr. 85. Respondent's actual policy on 

reporting of prescription drugs is unknown. If Sartin' s initial statement were correct, it might 

explain why he was concerned about the test, even ifhe had a prescription. 

32 FMSHRC Page 1876 
by showing, for example, past discipline consistent with that meted out to the 

alleged discriminatee, the miner's unsatisfactory past work record, prior warnings 

to the miner, or personnel .rules or practices forbidding the conduct in question. 

Our function is not to pass on the wisdom or fairness of such asserted business 

justifications, but rather only to determine whether they are credible and, if so, 

whether they would have motivated the particular operator as claimed. 

quoting from Bradley v. Belva Coal Co., 4 FMSHRC 982, 993 (June 1982). As specifically as 

applied in cases involving the use of profanity, the Commission cited Secy. of Labor on behalf 

of Cooley v. Ottawa Silica Co., 6 FMSHRC 516, 521 (Mar. 1984), and noted factors to be 

considered include whether the operator·had prior difficulties with the complainant's profanity, 

whether the operator had a policy prohibiting swearing, and the operator's treatment of other 

miners who had cursed or used threats. 

There is no question that Sartin's relationship with Kiah Creek had become quite strained 

in the months leading up to his termination. While Argus's listing of absences fails to note 

excuses for some days that should have been so recorded, it is apparent that Sartin missed a lot of 

work days from mid-December up to the date of his suspension. His absences on January 5, 8, 9, 

11 and 12 were not excused. lfind, as Fields testified, that he was not aware of any excuses for 

those days, and that he did not suspend Sartin prior to January 13. Tr. 218. Kiah Creek 

documented steps in its disciplinary process. The form memorializing the suspension and the 

fact that Sartin would have to sign a last chance agreement upon his return to work on January 

18, documented the disciplinary action that was taken. It is possible that Sartinmisunderstood 

Fields's statements about the suspension. Nevertheless, as of January 13, Sartin had been absent 

for several days and had tendered no excuse for his absences. 

There is no evidence that Sartin had used profanity in the past, except possibly in general .· 

casual conversation. Tr. 187. But, Sartin had clearly established an unsatisfactory work record · 

due to absences and tardiness. The tension that Sartin' s absences caused with Vance and Fields 

was not attributable to protected activity, nor was the fact that Sartin was subject to termination 

for any breach of Kiah Creek's rules. 

While Respondent did not have a written policy defining insubordination, its work 

agreement specifically prohibited disorderly conduct, and cited it as an example of CQIJ,duct that 

could lead to immediate termination. Tr. 188; Ex. R-1. From the limited evidence ofrecord, it 

appears that Sartin's termination was consistent with its written policy andprevious disciplinary 

actions. Vance testified, in response to a leading question, that an employee could not talk to a 

supervisor like Sartin had and retain his job. Tr. 223. Farley testified that an employee engaging 

in conduct like Sartin's should be punished and could.be terminated ifhe was on a last chance 

agreement. Tr. 205. 

Evidence of disparate treatment can be highly probative of unlawful motive,just ·as 

evidence of consistent treatment can indicate the lack thereof. Sec y of Labor on behalf of 

32 FMSHRC Page 1877 
Bernardyn v. Reading Anthracite Co., 23 FMSHRC .924, 929 (Sept. 2001) (Bernardyn II). Here, 

the Secretary introduced.no evidence that there were other sllnilarly situated miners that were 

treated more favorably in the disciplinary process. Respondent presented limited evidence on 

that issue. Fields testified that an employee at the Kenova job had also been terminated for 

cursing his supervisor. Tr. 225 .. 

Sartin understood his precarious employment situation. That understanding did not 

influence him to control his behavior. He was openly hostile and insubordinate to his supervisor 

in the presence of at least one other employee. His conduct was grounds for termination under 

his original employment agreement, and almost certainly would have occurred even if he had not 

been working under a last chance agreement. In his status as of February 6, 2010, his tennination 

was virtually inevitable. 

Upon consideration of all of these factors, I find that Kiah Creek's termination of Sartin 

was ,the result of his unprotected activity and that it would have taken that disciplinary action as a 

result of Sartin' s unprotected activity alone. 

The Secretary argues that Sartin' s outburst was provoked by Vance's reaction to his 

report of the safety problem such that his .conduct cannot be used as a justification for adverse 

action. In Bernardyn I, the Commission held that even where all elements of an affirmative 

defense have been established, the defense maynevertheless fail because the offensive conduct 

was provoked by an operator's response to protected activity. 22 FMSHRC at 305-06. · A.s noted 

above, Vance did not provoke Sartin. He made an offhand comment about everyone going on 

unemployment.. While Vance's statement was occasioned bySartin's message about a safety 

problem with the truck, it was not provocative and Sartin's reaction was completely beyond any 

leeway for impulsive behavior to which an employee might be entitled. Sartin was openly 

abusive and insubordinate in his language and demeanor, and persisted in his conduct despite 

Farley's attempt to calm him. Respondent is not precluded from relying on Sartin's conduct as a 

justification for his termination. 13 · 

13 The Secretary does not argue that Sartin's reaction was prompted by a 

misunderstanding of Vance's comment. Had she done so, I would find that as a matter of fact it 

was not, especialiy in light of Farley's intervention. However, I need not reach that issue, 

because the argument is unavailing. In a related context, an employee's refusal to perform work 

he mistakenly perceives to be unsafe can be protected if he held a good faith, reasonable belief 

that it was hazardous. Dykhojfv. U.S. Borax, Inc., 22 FMSHRC 1194, 1198-99 (Oct. 2000). 

Any argument that S~in' s reaction to Vance was protected because he perceived Vance's 

comment to be a p:r:ovocative reaction to his safety message would fail because any such 

perception would have been unreasonable. 

32 FMSHRC Page 1878 
ORDER 

For the reasons stated above, I find that Kiah Creek's decision to terminate Sartin was not 

motivated in any part by Sartin's protected activity. Rather, it was based solely upon his abusive 

and insubordinate conduct toward his supervisor. It was a justifiable continuation of the 

disciplinary process, and would have beenjustifiable as an initial disciplinary action. In the 

alternative, I find that Kiah Creek would have taken the disciplinary action as a result ofSartin's 

unprotected activities alone. Accordingly, the Discrimination Complaint is hereby DISMISSED. 

Distribution (Certified Mail): 

Karen Barefield, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Blvd., 

22nd Floor West, Arlington, VA 22209-2247 

Mark R Heath, Esq., Spilman, Thomas, Battle, PLLC, 300 Kanawha Blvd., P.O. Box 273, 

Charleston, WV 25321-0273 

R. Jill Webb, Esq., Kiah Creek Transport, LLC, 107 Dennis Drive, Lexington, KY 40503 

Okey Sartin, P.Q. Box 44, Dingess, WV 25671 

32 FMSHRC Page 1879 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

601 New Jersey Avenue, N.W., Suite 9500 

Washington, D.C. 20001-2021 

Telephone: (202) 434-9917 

Fax: (202) 434-9949 

December 23, 2010 

CLINTWOOD ELKHORN MINING 

COMPANY, INC., 

CONTEST PROCEEDINGS 

· Contestant, 

v. 

Docket No. KENT 2011-53-R 

Order No. 8247767;10/15/2010 

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

Docket No. KENT 2011-54-R 

Citation No. 8247767;10/15/2010 

Docket No. KENT 2011-40-R 

Respondent. OrderNo. 8247761;10/15/2010 

DECISION 

Docket No. KENT 2011-41-R 

Citation No. 6660595;10/15/2010 

Mine: Clintwood Elkhorn Mining Co. 

Mine ID 15-16734 

Appearances: Matt S. Shepherd, Esq., and Jennifer Booth, Esq., Office of the Solicitor, U.S. 

Before: 

Department of Labor, Nashville, TN, on behalf of the Secretary of Labor; 

Melanie J. Kilpatrick and Marco M. Rajkovich ofRajkovich, Williams, Kilpatrick 

& True, PLLC of Lexington, KY, on behalf of Clintwood Elkhorn Mining Co., 

fuc. 

Judge Gill 

Procedural Histoiy 

This case was tried on October 19, 2010, in Pikeville, KY. The trial was expedited in 

response to the Respondent's request under 29 C.F.R. § 2700.52. The following cases were 

consolidated for expedited resolution: KENT 2011-0053-R, KENT 2011-0054-R, KENT 

2011-0040-R, and KENT 2011-0041-R. The Respondents, MSHA and the Secretary of Labor, 

were represented by Matt S. Shepherd and Jennifer Booth of the U.S. Department of Labor, 

Office of the Solicitor, Nashville, TN. The Contestant, Clintwood Elkhorn Mining Co., fuc was 

represented by Melanie J. Kilpatrick and Marco M. Rajkovich ofRajkovich, Williams, Kilpatrick 

& True, PLLC of Lexington, KY. Testimonial and exhibit evidence was taken from James 

Holbrook, Robert H. Bellamy, and Shane Bishop. 

During a pre-trial telephone conference on October 18, 2010, the parties agreed that, 

although the motion to expedite the case came from the Contestant, it would be best for clarity of 

the record and ease of presentation of the evidence if the Respondent presented its evidence first. 

32 FMSHRC Page 1880 
(Tr. 6:1-7)1 At the conclusion of the Respondent's direct case, the Contestant moved for 

dismissal of the citations. Contestant's motion to dismiss was granted, obviating the need for it 

to present any evidence. 

Rule 52(c)Motion 

At the close of the Secretary's case, the Contestant moved for dismissal of the citations 

and orders in this case, arguing that as a matter of law and fact the Secretary had failed to 

produce evidence to support the issuance of the citations and orders. I granted the Contestant's 

motion and spoke my ruling onto the record as a bench decision. 

The Commission's Rules of Procedure, the Administrative Procedure Act, and the Mine 

Act are silent regarding the standards that apply to motions to dismiss at the close of an opposing 

party's case-in-chief. It is appropriate under these circumstances to consult the Federal Rules of 

Civil Procedure for guidance. Sec'y of Labor v. Basic Refractories, 13 FMSHRC 2554, 2558 

(1981). The Federal Rules of Civil Procedure allow, at the judge's discretion, the dismissal.of a · 

matter when a party fails to prove by the preponderance of the evidence a key element of their 

case. Fed. R. Civ. P. 52(c) (''Rule52(c)") provides: 

If a party has been fully heard on an issue during a nonjury trial and the court finds 

against the party on that issue, the court may enter judgement against the party on a 

claim or defense .that, under the controlling law, can be maintained or defeated only 

with a favorable finding on that issue. The court may, however, decline to render any 

judgment until the close of the evidence. A judgment on partial :findings must be . 

supported by findings of fact and conclusions of law as required by Rule 52( a). 

Fed. R. Civ. P. 52(c) 

During & nonjury trial, Rule 52( c) authorizes the court to enter judgment at any time that 

it can appropriately make a dispositive finding of fact on the evidence. In Clifford Meek v . . 

Essroc Corporation, the Commission found that a ruling on a motion for involuntary dismissal 

under Rule 52( c) was at the judge's discretion and found "no error by the judge and affirm[ ed] 

his procedural determinations." Clifford Meek v. Essroc Corporation, 15 FMSHRC 606, 614 

(April 1993). In Sec'y of Labor v. Martin County Coal Corporation and GEO I Environmental, 

the Commission found that a judgment on a partial finding was .appropriate because the judge 

had heard the Secretary's entire case. Secy of Labor v. Martin County Coal Corporation and 

GEO I Environmental, 28 FMSHRC 247 (May 2006). In addition, the Commission found in 

Marijn County Coal that the judge does not need to address every point of evidence. Id .. The 

1 Transcript references consist of a starting page and line number, a dash, and a closing page and 

line number. If the closing page is the same as the opening page, the closing page number is omitted, as 

in this example: (Tr. 6: 1-7). If the closing page number is different, the reference looks like this 

example: (Tr. 6:1-8:14), which designates the passage starting at page 6, line 1 through page 8, line 14. 

32FMSHRC Page 1881 
judge must only include findings and conclusions on "material issues of fact [and] law." Id. 

citing Fed. R. Civ. P. 52(c) . 

As discussed below, the Secretary failed to put on evidence to prove the key factual 

elements for her case, i.e., that the truck involved in this roll-over incident was overloaded or that 

overloading played a significant role. MSHA' s investigators chose to make overloading the 

focus of their enforcement action in such a way and with such unbending resolve as to make their 

actions arbitrary and capricious. For these reasons, the motion to dismiss granted at the close of 

the Secretary's case must stand.2 

SummaiyofFacts and Issues 

This case results from a coal truck run-away incident that happened on October 6, 2010, 

at the Clintwood Elkhorn prep plant dump site in Pike County, KY. The players are Clintwood ·, 

Elkhorn, the:contestant and operator of the prep plant, Tattoo Trucking, the employer of the · 

driver of the truck, Hubble Mining Co., the company contracted to mine the coal hauled by the 

truck, and MSHA employees James Holbrook, the :first.:.Iine inspector, and Robert H. ''Hank" 

Bellamy, the investigation supervisor. 

Tattoo Trucking employee, Shane Bishop, was driving a Mack 800, three axle; ten wheel 

coal haul truck between the Hubble, No. 2 deep mine and the Clintwood Elkhorn prep plant on 

October 6, 201 O; when the brakes failed. Bishop tried, but was unable to stop the run-away 

truck. !trolled approximately 100- 150 feet down the steep haul road section it was on, jumped 

up the benn at the bottom of the haul road, shearing off a utility pole neat the berm in the 

process, and rolled onto its passenger side, where it came to rest with its front axle and wheels 

hanging over a high wall drop-off. Bishop was not injured. 

Clintwood Elkhorn notified James Holbrook ofMSHA's local office of the incident. 

Holbrook issued a verbal 103(j) order over the phone to secure the site for investigation and 

evidence purposes and to ensure the safety of anyone working at the site. Holbrook then went to 

the site and'started his investigation into what happened. He modified the verbal 103 (j) order to 

a 103(k) order when he arrived on the scene. · 

Starting that day, Clintwood Elkhorn and MSHA officials began the process of 

negotiating an "action plan" to address what MSHA concluded had caused the incident and to 

prevent a recurrence. Over the span of the next several days,· Clintwood Elkhorn presented at 

least two proposed action plans that entailed the po.sting of signs cautioning drivers of the steep 

2

1t is obvious that the driver here lost control of his truck. 30 C.F.R. § 77.1607(b) establishes a 

standard that makes it a violation if the operator of moveable equipment loses control of the equipment. 

Mine operators are strictly liable for violations such as this. The way in whiCh MSHA prepared this case 

for immediate adjudication under the Commission's expedited hearing rule resulted in the vacation of all 

citations and orders relating to this incident, as is explained below. The facts and law may support 

further action under Sec. I 05 if properly framed. 

32 FMSHRC Page 1882 
grade, providing gravel to build a run-away ramp on that section of the haul road, and the 

implementation of a "no shift" policy, meaning that drivers would be prohibited from shifting 

gears once they had started coming down the section of the haul road where the incident 

happened. 

Clintwood Elkhorn and MSHA officials agreed on these items. They were unable to 

agree on an additional item that MSHA wanted in the action plan. MSHA wanted Clintwood 

Elkhorn to obtain the gross vehicle weight rating (GVWR) for every truck that hauled coal to the 

prep plant and to either put the GVWR on the weigh ticket for each· load or otherwise make it 

available to the drivers at the prep plant scale house.3 Clintwood Elkhorn balked at this · 

requirement. MSHA insisted on having the GVWR data. An impasse ensued, which led MSHA 

to issue additional orders under the Mine Act, including a 104(b) citation which shut down the 

prep plant. Clintwood Elkhorn immediately asked for an expedited hearing to resolve the 

impasse. 

· Summary of Decision 

The central ·points of contention between the parties were: (1) whether MSHA had 

authority to require Clintwood Elkhorn to gather and use GVWR data to address overloading of 

coal haul trucks; and (2) whether the Secretary proved by a preponderance of the evidence that 

overloading had occurred. For the reasons stated below, I find and conclude that MSHA did not 

have authority to regulate truck load limits in this manner and that attempting to do so in the 

manner re:fleeted here was arbitrary and capricious. I further find that the Secretary failed to 

present evidence to prove that the alleged overloading underlying all citations and orders 

occurred. As a result, all orders and citations issued in this case are vacated as written. 

Findings of Fact 

1. On October 6, 2010, Shane Bishop, an employee of Tattoo Trucking, was driving a Mack · 

800 coal haul truck from the Hubble No. 2 deep mine to the Clintwood Elkhorn prep 

plant in Pike County, KY, when the brakes failed causing the truck to run away and roll 

over. 

2. Bishop had hauled several loads of coal from the Hubble mine to the prep plant earlier 

that day using the same truck. 

3. Just before Bishop lost control of the truck, he was coming down the haul road leading to 

the prep plant and had to stop to allow other equipment using the same road to clear the 

area. He applied his brakes and left the engine running as he waited at the side of the 

haul road. 

3

This case is the first instance known to Holbrook or Bellamy where MSHA attempted to 

regulate load limits by requiring reference to and use of GVWR data. (Tr. 166: 14-167: 12) 

32 FMSHRC Page 1883 
4. When the other equipment cleared, Bishop continued down the haul road toward the prep 

plant dumping area. He tried to apply his brakes again, but they failed. 

5. The truck engine was running, and the truck was in gear. As the truck accelerated, the 

engine revved until it stopped completely. 

6. As long as the-engine was running, the engine compression held the truck back 

somewhat, but as soon as the engine stopped, there was 11othing Bishop could do or use to 

hold the truck speed under control. He tried to restart the engine at least once. He could 

not get the engine to restart. 

7. Bishop testified that the .transmission came out of gear at about the time the engine . 

stopped. He tried to re-engage the transmission to no avail. 

8. Bishop tried, but was unable to stop the run-away truck. It rolled approximately 100 -

150 feet down the steep haul road section it was on, jumped up the berm at the bottom of 

the haul road, shearing off a utility pole near the berm in the process, and rolled onto its 

passenger side, where it came to rest with its front axle and wheels hanging over a high 

wall drop-off. 

9. Bishop was not injured. He was taken to a hospital emergency_room as a precautionary 

measure where he was checked for injuries by a doctor f;llld r,eleased without any 

treatment. 

10. Bishop was able, wanted, and asked to return to work the same day. 

11. The-roll-over incident was caused by brake failure. 

12. Clintwood Elkhorn is the operator of1he prep plant where the roll-over occurred. 

13. The prep plant comprises, among other features not relevant to this decision, a truck scale 

station, several coal truck dump locations, and appurtenant haul truck and end loader 

maneuvering areas. 

14. Tattoo Trucking, Inc. is Bishop's employer. It is contracted with Hubble Mining 

Company, LLC., to haul coal from the Hubble No. 2 <le~ mine to the Clintwood 

Elkhorn prep plant. 

15. Hubble Mining Company is contracted with Clintwood Elkhorn to mine the coal from the 

Hubble No. 2 deep mine. 

16. James Holbrook is an employee ofMSHA. He was the first-line inspector in this case. 

32 FMSHRC Page 1884 
17. Robert H. "Hank" Bellamy is an employee of MSHA. He was the investigation 

supervisor in this case. 

18. Homer Sullivan, Mine Superintendent at Clintwood Elkhorn, informed James Holbrook 

about the truck runaway incident shortly after it happened on October 6, 2010; Sullivan 

told Holbrook that a truck had run away, run through a berm, and tipped onto its side at 

the Clintwood Elkhorn prep plant. Holbrook issued a verbal 103(j) order over the phone, 

which was later reduced to writing. (Exhibit 1) 

19. Holbrook went immediately to the prep plant site where he spoke with Sullivan. At that 

time, Holbrook explained to Sullivan thathe was converting the 103(j) citationto a 

103(k) citation and why he was doing so. 

20. Holbrook characterized this incident as a "non-injury" incident in the 103(k) citation. 

(Exhibit 1) 

21. Holbrook investigated the scene and took photos of what he found. (Exhibits 2, 3, 4, 5, 

and6) 

22. Keith McCoy, is the director of the Clintwood Elkhorn safety department. 

23. Between October 6, 2010, and October 15,2010, Holbrook and Bellamy of the Mine 

Saftey and Health Administration (MSHA), who work out of MSHA's District 6 office in 

·· Pikesville, KY, conferred with each other and with Sullivan and McCoy of Clintwood 

Elkhorn to create an "action plan" to address what MSHA concluded had caused the 

incident and to prevent a recurrence. 

24. Between October 6 and October 15, 2010, Clintwood Elkhorn presented at least two 

proposed action plans (Exhibits 13 and 14) which proposed, in pertinent part, the posting 

of signs cautioning drivers of the steep grade, providing gravel, to build a run-away ramp 

on the relevant section of the haul road, and the implementation of a ''no shift" policy, 

meaning that drivers would be prohibited from shifting gears once they had started 

coming down the section of the haul road where the incident happened. Clintwood 

Elkhorn and MSHA officials -Holbrook and/or Bellamy- agreed on these items.4 

25. MSHA and Clintwood Elkhorn were unable to agree on an additional item that MSHA 

wanted in the action plan. MSHA concluded that the truck in question had been 

overloaded and focused on overloading as they dealt with Clintwood Elkhorn on the 

action plan to resolve the citations and orders issued in response to the roll-over incident. 

4 When the acronym MSHA is used, it refers to either Holbrook or Bellamy, or both. 

32 FMSHRC Page 1885 
26. MSHA wanted Clintwood Elkhorn to obtain the gross vehicle weight rating (GVWR) for 

every truck that hauled coal to the prep plant and to either put the GVWR ·on the weigh 

ticket for each load or otherwise make it available to the drivers at the prep plant scale 

house. 

27; Clintwood Elkhorn balked at the GVWR requirement. MSHA insisted on having the 

GVWR data. An impasse ensued, which led MSHA to issue additional orders illlder the 

Mine Act, including a 104( d), a 104(a), and a 104(b) citation, which shut the prep plant 

down. 

28. On October 14, 2010, at 11:00 AM, Bellamy issued a 104(d)(l) citation, No. 6660595, 

which was served on McCoy for Clintwood Elkhorn. (Exhibit 12) It alleges a safety 

violation and references 30 CFR § 77.1607(b). It sets a termination date and time of 

October 15, 2010 at 8:AM. 

29. On October 15, 2010, at 9:18 AM, Holbrook issued a 104(a) citation, No. 8247768, 

which was served on McCoy for Clintwood Elkhorn. (Exhibit 9) It alleged that 

Clintwood Elkhorn· had failed to provide weigh ticket records, requested-by MSHA and 

pertinent to this investigation. It stated that failure to provide the weigh tickets would 

result in a daily fine of $7,500.00. 

30. On October 15, 2010, at 9:15 AM, Holbrook issued a 104(b) order, No. 8247767, which 

was served on McCoy for Clintwood Elkhorn; (Exhibit 8) It alleged that Clintwood 

Elkhorn had ample time to prevent overloaded coal trucks from coming into the prep 

· plant and that overloaded trucks were continuing to come '.into the facility. It ordered that 

all coal haulage to the prep plant cease innnediately, 

31. As MSHA and Clintwood Elkhorn dispute~ the inclusion of the GVWR data in the action 

plan, Clintwood challenged whether MSHA could site to.: any regulatory authority creating 

a right on the part ofMSHA to regulate the load weight of trucks used to haul coaL 

MSHA did not cite any such authority. 

32. At trial, the court asked MSHA to provide a citation to any such regulatory authority. 

MSHAwas unable to do so. 

33. Clintwood Elkhorn proposed that the issue of alleged overloading be dealt with in the 

action plan (Exhibit 13) by making reference to Kentucky state statutes that regulate truck 

loads on public roads, although the haul road where this incident occurred is not a 

Kentucky state public road. MSHA would not agree to this proposal. 

34. Anticipating that MSHA would not relent on its requirement that the action plan include 

reference to GVWR data as a means to regulate the load weights, Clintwood Elkhorn 

verbally communicated to Bellamy, in reference to its action plan of October 13, 2010, 

32 FMSHRC Page 1886 
(Exhibit 14), that MSHA issue a "technical.violation" that it could use as a basis to 

request an expedited hearing. (Exhibit 10) · 

35. Holbrook concluded that overloading was a contributing factor in this incident. 

36. Holbrook interviewed Bishop and learned that the brakes had failed; 

3 7. Bellamy's notes (Exhibit 10) are silent about brake failure being a factor in this incident. 

38. Bellamy did not mention brake failure during his testimony at trial. 

39. Both Bellamy and Holbrook concluded that MSHA did not have specific authority to 

regulate coal haul truck load limits. 

40. Clintwood Elkhorn did not have the GVWR data MSHA required and would have to go 

to a third party to obtain it. 

41. GVWR is too generic and nebulous to serve as a poirit of reference because the GVWR is 

based on model specifications rather than the individual configuration of individual and 

unique trucks. 

42. GVWR data cannot be relied upon or even calculated when after-market alterations, as 

insignificant as changing tires, are made to trucks. 

Discussion and Conclusions of Law 

The issue of whether overloading of trucks occurred and contributed to this roll-over 

incident is central to this case. Holbrook and Bellamy insisted that Clintwood Elkhorn obtain 

and use GVWR data as a means to regulate perceived truck overloading.5 Clintwood Elkhorn 

resisted being required to obtain and use GVWR data and asked the MSHA representatives to 

5 The impasse over whether MSHA could require Clintwood Elkhorn to gather and use GVWR 

data in order to regulate load limits arose from consultations aimed at reaching consensus about what 

would be necessary to lift, the 104(b) closure order. This ·consultation process is referred to by the 

parties and in this decision as an ''action plan." Elsewhere in the Mine Act, in a section dealing more 

specifically witl1 large scale mine safety plans such as ventilation plans, there are regulations defining the 

actual formal aCtion plan process. See 30 C.F.R. 75.372. It appears that MSHA borrowed from and 

adapted the formal action plan process in addressing this roll-over incident. Much of the regulatory and 

decisional language relating to action plans is inapposite here, however the key principle governing 

MSHA' s ability to force an operator to accept elements of an action plan as to which there is no 

consensus informs this decision. Both in the formal action plan setting and in this informal instance, 

MSHA 's actions must not be found to be arbitrary or capricious, in bad faith; or an abuse of its 

regulatory discretion. See Sec '.Y of Labor v. Twenty Mile Coal Comp., 30 FMSHRC 736, (Aug. 2008) 

and Sec '.Y of Labor v. C. W Mining Comp., 18 FMSHRC 1740 (Oct. 1996). 

32 FMSHRC Page 1887 
provide authority showing that MSHA is given regulatory authority to regulate truck loading in 

any way. Although several citations and orders were used to get this case in a posture to be 

resolved with an expedited hearing, the focus of this case remains on the overarching issue of 

whether MSHA had authority to require Clintwood Elkhorn to obtain and use GVWR data as a 

condition precedent to allowing operations at the prep plant to resume and whether it was proper 

to shut down the prep plant to force Clintwood Elkhorn to agree to obtain and use the GVWR 

data. I conclude that MSHA acted arbitrarily and exceeded its authority and that it was improper 

for it to condition reopening the prep plant on the GVWR issue. 

The Secretary failed to prove that Truck-292 was overloaded. 

All citations and orders used by MSHA in this case require proof of overloading in order 

to be sustained. In order for the Secretary to prevail, she must satisfy her burden to prove by a 

preponderance of the evidence that Truck 292 was in fact overloaded and that overloading was 

either the cause of or a contributing factorin the roll-over incident. 

The Secretary failed to prove that the truck in this case was overloaded. The evidence 

admitted at trail shows that Truck 292 hauled eight loads earlier in thedayranging from 

approximately 39 tons to approximately 47.5 tons. (Exhibit 7) However, since Truck 292 spilled 

its load when it rolled over, there was apparently no way to assess the weight of the load in 

question. (Tr. 80:3-12) The Secretary did not prove that Truck 292 was overloaded when it 

rolled over; The court is unwilling and unable to infer from these meager facts that overloading 

occurred. 

The Secretary failed to prove that overloading was either the cause of or a contributing factor in 

the roll-over. 

MSHA's actions regarding the impasse over the GVWR data were predicated on its 

conclusion that Truck 292 was overloaded and that overloading was at least a contributing factor 

in the roll-over. MSHA failed to prove that Truck 292 was, in fact, overloaded. Furthermore, in 

light of the strong evidence that brake failure caused the roll-over, it is surprising that Bellamy 

was silent about brake failure, both during his testimony and in his transaction notes. (Exhibit 10) 

Bellamy's silence is doubly puzzling considering that his office mate and investigating colleague, 

Holbrook, was aware of the brake issue from his interview with Bishop. Bishop told Holbrook 

what happened with the brakes and engine and that Bishop himself concluded that brake failure 

caused the incident. (Tr. 65: 11-66:3)6 I credit Bishop's testimony because ofhis involvement in 

the incident and the lack of any reason to question his motive. In the face of these facts, it 

appears that the two MSHA investigators did not cpmmunicate very well as to what caused the 

roll-over. Furthermore, a look at the action plans (Exhibits 13 and 14) shows that the brake 

---- . --···--·--·-----

6

Holbrook speculated at trial that overloading could be a factor in brake failure, but his 

speculation is far too tenuous to support a conclusion that overloading existed and played a causal role in 

this incident. (Tr. 65:20-66:3) 

32 FMSHRC Page· 1888 
failure issuewas never mentioned. Overloading was clearly the focus of the action plans to the 

exclusion of much more compelling evidence of the alternate cause. The citations and orders 

used by MSHA to carry out its purpose are all predicated on a conclusion that overloading was 

the cause of the incident, despite strong and convincing evidence that brake failure caused it.. 

Applying these findings .to the sequence of citations and orders in this case results in the 

conclusion that the 104(a), 104(b) and 104(d) citations must fail as written. They are all 

premised on the conclusion that Truck 292 was overloaded. 

The 104(d)(l) Citation 

MSHA issued a 104(d)(l) citation. (Exhibit 12) A 104(d)(l) citation is used to charge an 

operator with ''unwarrantable failure" to remedy an alleged violation of any mandatory health or 

safety standard. The 104(d)(l) citation requires the following: (1) a finding of a violation of any 

health or safety standard; (2) which does not cause an imminent danger; and (3) a finding that the 

violation is of such a nature as to significantly and substantially (S&S) contribute to the cause 

and effect of a mine safety or health hazard; and ( 4) that the 104( d)( 1) violation is caused by an 

unwarrantable failure to comply with the underlying health and safety standard. 29 U.S.C. § '814. 

In this case, the 104(d)(l) citation was used as if it were in the context of an "inspection" 

rather than an "investigation." The distinction is important. The legislative history of Sec. 

103( a) and Sec. 103(h) is instructive. It explains that an "investigation" is an inquiry into causes, 

whereas an "inspection" is defined as "a close or strict examination or survey to determine 

compliance." Sen.Rep. No. 95-461, 95th Cong., 1st Sess. 48 (1977), reprinted in Senate 

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

History of the Federal Mine Safety and Health Act of 1977 at 615. (Leg. Hist., 1977 Act). There 

is no question that this case involves an "investigation" rather than an "inspection." The 

legislative history uses Sec. 104( d)(2) as an example to illustrate the intended used of a Sec. I 04 

citation, but the same rationale applies to a Sec. 104( d)(l) citation as well. Id. ''Section 

104(d)(l), however, is confined to violations found 'upon any inspection."' Mining Company v. · 

Sec'y of Labor, 9 FMSHRC 1541, 1564 (Sept. 1987); quoting Leg. Hist., 1977 Act. This 

provision read together with Sec. I 04( d)(2) provides for immediate withdrawal authority without 

regard to abatement efforts for violations deemed to result from the operator's unwarrantable 

failure to comply. Id. This is a significant extension of regulatory authority and by using the term 

'inspection' alone, Congress reserved and confined this authority to current existing violations 

which, because of their gravity or the operator's underlying failure to correct them require 

prophylactic mine closure. Id. Congress did not intend this authority to be used as a post hoc 

sanction for violations no longer extant or previously abated but later "found" during 

after-the-fact "investigations" as to their causes." Id. 

32 FMSHRC Page 1889 
The same distinction must be recognized in the context of this 104(d)(l) citation. First, 

the language of 104(d)(l) clearly restricts its application only to an "inspection."7 29 U.S.C. § 

814. Second, since this is an investigation or an ''inquiry into causes" rather than "a close .or 

strict examination or survey to determine compliance," the extended regulatory authority 

reserved to inspections does not pertain, and the use of the 104(d)(l) citation in this setting is 

inappropriate. Id. This is not a situation involving current existing violations which, because of 

their gravity or the operator's underlying failure to correct them, require a prophylactic closure. 

This is an investigation into the cause of a roll-over incident. The use of the J 04( d)(l) citation 

here is a good example of an inappropriate "post hoc sanction for violations no longer extant or 

previously abated but later 'found' during after-the-fact 'investigations' as to their causes," so 

prominently cited in the legislative history above. Id. Bellamy issued the 104( d)(l) order because 

he could not come to terms with McCoy of Clintwood Elkhorn on including GVWR data in the 

action plan, not because Clintwood Elkhorn had failed to abate a "current existing violation." Id. 

Irrespective of whether the 104( d)( 1) citation was the proper procedure to bring the 

disagreement in this case to a head, the underlying alleged violation is overloading oftrucks.8· ·It 

is clear that in the broader context of the 104( d)(l) citation it is the overloading issue that is 

alleged to cause and effect a mine safety hazard. The roll-over itself was a resulting incident 

which, absent reference to the overloading issue, has no prospect of being a future or continuing 

condition warranting a 104( d)( 1) citation. The only way to make sense of a 104( d)( 1) citation 

under these facts is to conclude that the alleged overloading is the condition which contributes to 

the cause and effect of a-mine safety or health hazard, i.e., the hazard effected by the alleged 

overloading is the potential for a roll-over incident such as this one. It is equally clear that the 

reason MSHA issued the 104( d)(l) citation - as weU as the 104( a) aild 104(b) citations - is 

because Clintwood Elkhorn challenged MSHA's authority to regulate load limits by requiring 

reference to the GVWR data. 

The,l04(d)(l) citation must be vacated.for three reasons: (1) the Secretary failed to prove 

that overloading existed, as a matter of fact; (2) the 104(d)( 1) citation is predicated on the 

unproved allegation that overloading existed; and (3) the 104( d)(l) citation is an inappropriate 

post hoc sanction for violations no longer extant. 

The 103Ci}and (k) Orders 

There was no "accident" for purposes of th~ 103(j) and J03(k) orders. ·In the Mine Act, it 

is clear that in order for either Section 103(j} or I 03(k) to apply, an "accident" must have 

7 

"( d)( 1) If, upon any inspection of a coal or other mine [ ... ], [Emphasis added.] 

8

MSHA refers to the loss of control described in 30 C.F.R. § 77.1607(b) in the 104(d)(l) citation 

(Exhibit 12), however it is clear that the gravamen of the investigation and subsequent actions is the 

alleged overloading of trucks. 

32 FMSHRC Page 1890 
occurred.9 29 U.S.C. § 813. The term "accident" has a specific technical definition under the 

Mine Act and its related regulations. Under 30 C.F.R. § 50.2 (h)(2) "accident" means an injury 

to an individual at a mine which has a reasonable potential to cause death. 30 C.F.R. § 50.2 

(h)(2). The term "injury'' has a specific technical definition under the Act as well. Under 30 

C.F.R. § 50.2 (e) the definition of"injury'' is satisfied only if medical treatment is administered, 

death or loss of consciousness occurs, or the miner is unable to perform all job duties after the 

event. 30 C.F.R. § 50.2 (e). Mr. Bishop was not injured. He received no medical treatment, and 

he remained able to perform all of his job duties on the day of the incident and beyond. (Tr. 

192:10-'23; 193:23-194:11; 94:12-25; 195:1-10; and 195:21-196:6) The plain meaning of these 

regulatory sections, applied to these facts, leads to the conclusion that there was no injury, thus 

no accident, thus no basis for either the 103(j) or 103(k) citations. The 103(j) and 103(k) 

citations must be vacated. 

The 104(a) Citation 

The 104(a) citation (Exhibit 9) was issued on October 15, 2010, after MSHA and 

Clintwood Elkhorn had discussed the action plans relating to the October 6, 2010, roll-over 

incident and reached an impasse on whether Clintwood Elkhorn would have to use GVWRdata 

to limit load weight. Clintwood had, according to the testimony and evidence in Bellamy's notes 

(Exhibit 10), requested that MSHA proceed to issue whatever citations and orders it needed to 

bring the impasse to hearing under the Commission's expedited hearing authority, 29 C.F;R. § 

2700.52. On its face, the 104(a) citation refers to Clintwood Elkhorn's failure to provide weigh 

ticket data requested by MSHA. Significantly, it is not based on any specific alleged health or 

safety violation, but cites only to Sec.103(a) as its authority. Sec. 103(a) establishes MSHA's 

general investigation and inspection- authority, but does not in itself form a basis for citations or 

orders in this context. 10 As in the case of the related I 04( d)( 1) citation, the gravamen of the 

investigation and subsequent actions is the alleged overloading of trucks. Also, as with the 

104(b )( 1) citation, the Secretary has failed to prove the underlying overloading existed. 

9

The language of both Sec. 1030) and 103(k) is identical regarding this point: "Jn the event of 

any accident occurring in any coal or other mine,[ ... ]." [Emphasis added.] 

'°Assuming arguehdo that MSHA should have cited to Sec. 103(h) instead of Sec·. 103(a) in order 

to trigger an obligation to turn over documents, the arbitrary nature ofMSHA's enforcement actions 

nullifies the obligation. Sec. 103(a) gives the Secretary a general right of entry for investigation 

purposes. Sec. 103(h), however, can require that an operator turn over documents requested during an . 

investigation: "Jn addition to such records as are specifically required by the Mine Act, every operator of 

a coal or other mine shall establish and maintain such records, make such reports, and provide such 

information, as the Secretary[ ... ] may reasonably require from time to time to enable [her] to perform 

[her] functions under this act." 30 U.S.C. § 813 (emphasis added) As explained elsewhere in this 

decision, MSHA's enforcement actions were arbitrary and capricious, including conditioning the 

reopening of the prep plant on Clintwood Elkhom's turning over the requested GVWR data. The 

document requeststemrning from this arbitrary enforcement action is inherently unreasonable. It deals 

with the same GVWR data which are the sine qua non for the enforcement action, and it derives from the 

same errors. 

32 FMSHRC Page 1891 
Accordingly, the 104(a) citation, as written, fails to cite to an alleged violation that is supported 

by the evidence. 

The 104(b) Order 

The 104(b) order (Exhibit 8) was issued on October 15, 2010, as well. It too, was 

prepared and served with the understanding that MSHA would issue whatever citations and 

orders it needed to bring the impasseto hearing as quickly as possible. The language of Sec. 

104(b) makes it clear that its authority arises only in reference to a situation that has generated a 

prior 104(a) citation. 11 It follows then that if the underlying 104(a) citation is faulty for failtire of 

proof, the derivative 104(b) order must fail as well. On its face, the 104(b) order speaks of 

Clintwood Elkhorn' s failure to abate the alleged overloading issue, and nothing else. The 104(b) 

order must be vacated because the Secretary failed to prove that overloading occurred. The 

104(b) order was issued on the basis that the overloading on which the 104(a) citation was based 

had not been abated. Since there was no proof of overloading to support the 104( a) citation, the 

104(b) order fails because there is no valid underlying citation issue that had not been abated. 

MSHA had no specific authority to regulate truck load weight limits; 

The central issue in this case is whether MSHA appropriately ordered operations at the 

Clintwood Elkhorn prep plant to stop because Clintwood Elkhorn refused to obtain and use 

GVWR data to address the issue of truck overloading. I have already found that the. Secretary did 

not prove that overloading existed or that it played a roll in this incident. It is also clear that 

MSHA chose to focus on the overloading issue even though brake failure was the obvious cause 

of the incident. Whether Clintwood Elkhorn's refusal to comply was reasonable and justified 

depends in large part on whether MSHA has the authority to regulate load limits in the first 

place. During the period between October 6, and October 15, 2010, as the parties conferred and 

negotiated the terms of the action plan, Clintwood Elkhorn pressed MSHA to show where the · 

authority to regulate load limits originated. (Tr. 166:6-13) MSHA was not able to cite to any 

clear authority. (Tr. 85:21-86.:12; 48:22-49:12; 166:6-13) At the trial on October 19, 2010, 

Holbrook and Bellamy testified ~at they were aware of no MSHA authority to regulate load 

limits. (Tr. 86: 13-18; 158:5-23; 176:23-168: 15) The evidence is clear that MSHA not only did 

not cite to any authority to regulate load limits, but that it acted with knowledge that it did not 

have authority to do so .. 

MSHA abused its discretion and acted arbitrarily when itconditioned thereopening of the prey 

plant on the use of GVWR data to regulate truck load weight limits. 

--··--···· ·-··~· -- ... -----

11 Sec. l 04. ''(b) u: upon any follow-up inspection of a coal or other mine, and authorized 

representative of the Secretary finds (I) that a violation described in a citation issued pursuant to 

subsection (a) has not been totally abated within the period of time as originally fixed therein or as . 

subsequently extended, and (2) that the period of time for the abatement should not be further extended, 

[ ... }." 30 U.S.C. § 814 (emphasis added). 

32 FMSHRC Page 1892 
The cascade of events that led to the expedited hearing in this case started with the rollover incident and the issuance of a 103(j) and {k) order. I have elsewhere ruled that due to the 

peculiar and fortuitous fact that the driver of the Mack 800 truck was not injured at all, the I 03 

orders should not have been used as a means to attempt to regulate truck load limits. Here I 

address the manner in which the 103 orders were used in light of the law governing regulatory 

abuse of discretion and arbitrary and capricious actions. 12 

Section 103{k) of the act is to be given broad discretion. "Section 103{k) provides that it 

is MSHA, not the operator, who is ln charge of the investigation." Rockhouse Energy Mining 

Co., 26 FMSHRC 599, 602 {July 2004) (ALJ). The Act gives MSHA plenary power to make 

post-accident orders for the purpose of protection and safety of all persons. Miller Mining 

Company, Inc. v. FMSHRC, 713 F.2d 487, 490 {9th Cir. 1983). MSHA has broad authority to 

issue 103(k) orders to effectuate this purpose. Buck Mountain Coal Co., 15 FMSHRC 539 (Mar. 

1993) {ALJ); West Ridge Resources, Inc.; 31 FMSHRC 287 {Feb. 2009) (ALJ). This broad grant 

of authority is recognized in the legislative history: 

[ t ]he unpredictability of accidents in mines and uncertainty as to the circumstances 

surrounding them requires that the Secretary or his authorized representative be 

permitted to exercise broad discretion in order to protect the life or to insure the 

safety of any person. The grant of authority under section [103(k)] to take 

appropriate actions and ... to issue orders is intended to provide the Secretary with 

flexibility in responding to accident situations, including the issuance of 

withdrawal orders. 

S. Rep. No. 95-181, at 29 (1977), reprinted in Senate Subcomm. on Labor; Comm. on Human 

Res., Legislative History of the Federal Mine Safety and Health Act of 1977, at 617 (1978). 

Given the broad discretion afforded the Secretary, her issuance of a 103(k) order, or 

subsequent modification, is reviewable for an abuse of discretion. The Secretary must show that 

''the MSHA investigation team leader did not act in·an arbitrary and capricious manner in 

deciding to issue the 103(k) order and subject modification." Secy of Labor v. Peabody Coal 

Co., 18 FMSHRC 686, 690 (Mayl996), qffd 1. 111F.3d963 {D.C. Cir. 1997). The 

Commission in Twentymile Coal applied the following guidance in determining if the actions of 

a district manager were arbitrary and capricious: 

The scope of review under the "arbitrary and capricious" standard is narrow and a 

court is not to substitute its judgment for that of the agency. Nevertheless, the 

agency must examine the relevant data and articulate a satisfactory explanation for 

----·---· ·-· -·-··------

12The analysis of abuse of discretion and arbitrary and capricious action is not restricted only to 

citations and orders under Sec. 103. This analysis is broad enough to pertain to the other citations and 

orders issued by MSHA in this case. 

32 FMSHRC Page 1893 
its action including a "rational connection between the facts found and the choice 

made." In reviewing the explanation; we must "consider whether the decision was 

based ona consideration of the relevant factors and whether there has been a clear 

error of judgment." Normally, an agency rule would be arbitrary and capricious if 

the agency has relied on factors which Congress has not·intended it to consider, 

entirely failed to consider an important aspect of the problem, offered an 

explanation for its decision that runs cowiter to the evidence before the agency, or 

is so implausible that it could not be ascribed to a difference in view or the product 

of agency expe{tise. 

Twentymile Coal, 30 FMSHRC at 754-155,.quoting Motor Vehicle Mfr's Ass'n v. State Farm 

Mut. Auto. Ins. Co., 463U.S. 29, 43 (198~). 

Bellamy and Holbrook's conclusion that overloading was either the cause of or a 

contributing factor in the roll-over incident in this case is factually wisupportable. That in itself · 

is not a sufficient basis to conclude that their enforcement actions were arbitrary and capricious. . 

However, the way in which MSHA dealt with the evidence of brake failure in order to promote 

the theory of overloading and its acknowledgment that it lacked authority to regulate load limits 

do support a conclusion that their actions were arbitrary and capricious. 

First, the only evidence available to the MSHA investigators about potential overloading 

is the weight data for Truck 292 and others at the pr~ plant on the day of the incident, October 6, 

20 I 0, (Exhibit 7) and Holbrook's visual observation of another truck being weighed on October 

15, 2010. {Tr. 86:19-89:1)13 These data are meaningless without some relevant point of 

reference from which one can determine whether overloading is happening. It is clear that 

MSHA wanted to use the GVWR data to establish this point of reference, but no evidence was . 

presented showing that GVWR data do or even can serve this purpose. The evidence at trial 

indicated that the GVWR is too generic and nebulous to serve as a point of reference because the 

GVWR is based on model specifications rather than the actual configuration of individual and 

unique trucks. (Tr. 71 :2-72:20) Also, MSHA could not show how GVWR data can be relied on 

or even calculated when after-market alterations as insignificant as changing tires are made to 

trucks. (Tr. 79:3-15) Without more evidence it is impossible to determille what relevance 

GVWR data have to the issue of wisafe overloading. Without a point of relevant reference, it is 

impossible to determine if Truck 292 . .., .or any other truck - was overloaded, and it is impossible 

to make a meaningful judgment about whether overloading caused or played any role at all in this 

incident. It is difficult to reconcile MSHA's devot~on to the importance of using GVWR data as 

a means of assessing overloading in light of this. Without evidence that would ·make the use of 

130n cross examination, Holbrook testified that he only observed one truck being weighed on 

October 15, 2010, the day he enforced the 104(b) abatement order. He detennined that the basis for the 

104(a) citation, i.e., overloading, was still happening and that a 104(b) order for failure to abate was 

appropriate. (Tr. 89:2-91 :20) 

32 FMSHRC Page 1894 
GVWR data meaningful as a point ofreference, MSHA's choice to rely solely on the GVWR as 

it did is not rationally connected to the facts available to them. 

Second, MSHA either ignored the clear and reliable evidence of brake failure or deemed 

it so unlikely as to not warrant mention in either the action plans (Exhibits 13 and 14), any of the 

citations and orders, or in Bellamy's transaction notes. (Exhibit 10}14 This is clearly relevant 

information which requires the articulation of a satisfactory reason why it was omitted. MSHA 

failed entirely to consider:tllls evidence in any way that is apparent on the record. There is no 

explanation why MSHA did not consider this evidence or factor it into its enforcement actions. 

Omission of the brake failure evidence impacts the assessment of the requirement that there be a 

rational connection between the facts found and the choices made. MSHA' s decisions were not 

based on a consideration of the obvious relevant factor of brake system failure. This constitutes 

an unexplained and arbitrary failure to consider an important aspect of the problem. 

Finally, MSHA conditioned the abatement of its orders on a single issue - the gathering 

and use of GVWR data to regulate load limits - knowing that there was no specific regulatory 

authority to regulate load limits at all. (Tr. 166:6-13)15 In conjunction with the other factors 

discussed above, this fact tends to show that MSHA had a preconceived plan to use GVWR data 

as a means to regulate load limits and wanted to use this case to test its theory. 16 It is arbitrary to 

ignore facts that do not support an enforcement theory. It is arbitrary to push forward with an 

enforcement theory without establishing facts to support it. It is arbitrary to insist on compliance 

with an enforcement plan that is not supported by regulatory authority or facts: 

The evidence leads to the conclusion that MSHA did not establish a "rational connection 

between the facts found and the choice made." MSHA's decisions and actions were not "based · 

on a consideration of the relevant factors" in light of the evidence m~ntioned above. MSHA's · 

actions and decisions were the result of a clear error of judgment. I conclude that MSHA' s 

actions were arbitrary and capricious and an abuse of discretion. All citations and orders 

conditioned on use of GVWR data are invalid and must be vacated •.. 

14MSHA' s failure to factor brake failure into their enforcement actions causes concern in light of 

the fact that Holbrook knew the details of the brake failure evidence from his interview with Bishop and 

then conducted a brake test on Truck 292 after it was put back on its wheels. He also testified that, 

irrespective of the load a truck is hauling, if the brakes fail in the manner described by Bishop, the truck 

will lose control. (Tr. 65:11-68:25) 

15Clintwood Elkhorn attempted to comply with the GVWR request in a manner that could bring 

some clarity to the issue, i.e., by proposing to abide by the GVWR regulations created by Kentucky state 

statues. (Exhibit 13) MSHA would not agree to this. 

1

6There were two accidents on the same day where the drivers lost control of their trucks. MSHA 

required the other company, Frasure Creek Mining, to put the GVWR data on the weigh tickets, and 

Frasure Creek agreed. This lifted the 103(k) order for that case. These cases were the first time that 

Bellamy required the GVWR data as part of an action plan. (Tr. 166:14-167:12) 

32 FMSHRC _Page 1895 
All citations and orders covered by the discussion herein are vacated and set aside. 

L. Zane Gill 

· Administrative Law Judge 

Distribution: 

Jennifer D. Booth, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street, 

Suite 230, Nashville, TN 37219-2456 

Matt Shepherd, Esq., OfficeoftheSolicitor,U.S. DepartmentofLabor, 618 Church Street, Suite 

230, Nashville, TN 37219-2456 

Melanie J. Kilpatrick, Esq., Rajkovich, Williams, Kilpatrick & True"PLLC, 3151 Beaumont 

Centre Circle, Suite 375, Lexington , KY 40513 

led 

32 FMSHRC Page 1896 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF THE CHIEF ADMINISTRATIVE LAW JUDGE 

601 NEW JERSEY AVENUE, N.W., SUITE 9500 

WASHINGTON, DC 20001-2021 

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

December 27, 2010 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), 

CIVIL PENALTY PROCEEDING 

Docket No. KENT 2008-1592-M 

Petitioner A.C. No. 15-04469-159947 

v. 

MINE: Kosmos Cement Co. 

CEMEX, INC., 

Respondent 

DECISION 

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

Nashville, TN, on behalf of the Secretary of Labor; 

Before: 

Gayl~ R. Harrison, Safety Mananger, Cemex, Inc., 15301 Dixie Highway, 

Louisville, KY 40272, on behalf of Cemex, Inc. 

Judge Rae 

This case comes before me on a Petition for Assessment of Civil Penalties filed ~ 

accordance with Section 105 (c) of the Federal Mine Safety and Health Act of 1977, the "Act," 

30 U.S.C. §§ 801, et seq. In contest is one §104(d)(l) citationissued in violation of 30C.F.R. 

§56.18002( a) of the Act by an Mine Safety and Health Administration ("MSHA) inspector. The 

case was heard,.as proposed by the parties, via telephone on November 4, 2010. 

At hearing, the parties proffered that a partial settlement had been reached regarding four 

additional citations numbered 7750727, 7750728, 7754413 and 7754428. A formal motion for 

settlement of those charging documents was submitted post hearing proposing civil penalties of 

$17 ,400 for the violations charged therein. I have reviewed the documentation and 

representations submitted and find that the proposed settlement is acceptable under the criteria 

set forth insection l lO(i) of the Act. Accordingly, an orderdirecting payment of those penalties 

has been signed and will also be incorporated in this decision. 

Findings ofFacts..;·Conclusions of Law 

Cemex is a metal/nonmetal cement plant operating full time with four crews, or 155 

miners in total. It is characterized as a relatively large mine with annual hours worked between 

300,000 and 500,000. TR 17 and Gov. Ex 1. On March 17, 2008, Citation 7750542 was issued 

to Cemex, Inc. ("Cemex") for failure by the operator to conduct adequate on-shift examin.ations 

32 FMSHRC Page 1897 
evidenced by a number of violations issued during an inspection conducted the week of March 3, 

2008. This citation was issued several days after the inspection by MSHA certified inspector 

Handshoe who was present during the inspection. He did not testify to having written any of the 

citations issued during the inspection itself. 

The Citation 

Citation No. 7750542 reads as follows: 

Gov. Ex. 1. 

Persons designated by the operator to examine each working place for conditions 

affecting safety or health were not observing and reporting obvious hazards. 

Hazards found during the inspection which were also cited during the past 2 years 

included: 56.1101, cited 22 times; 56.12018, cited 10 times; 56.20003, cited 15 

times. The mine operator has engaged in aggravated conduct constituting more 

than ordinary negligence by not ensuring an adequate examination was conducted 

for obvious and apparent hazards. This violation is an unwarrantable failure to 

comply with a mandatory standard. 

The gravity of the violation was assessed as reasonably likely to resultin a fatal injury 

and as significant and substantial. 1 It was also written as a Section 104( d) (1) violation, an 

unwarrantable failure to comply with a mandatory standard.2 The operator's negligence level 

was assessed as high and the proposed fine is $10,437. Gov. Ex. 2. 

The Citation was later amended on March 28, 2008 by removing the words "Persons 

designated by the operator to examine each working place for conditions affecting safety or 

health were not observing and reporting obvious hazards." The sentence was replaced with the 

words, "Persons conducting the workplace examinations were not reporting obvious hazards and 

the operator failed to initiate prompt corrective action." 

The Standard 

30 C.F.R. §56.2008(a) provides: 

1 A violation is properly designated significant and substantial, "if, based upon the particular 

facts· surrounding that violation, there exists a reasonable likelihood that the hazard contributed 

to will result in an injury or illness of a reasonably serious nature." Cement Div., Nat'! Gypsum 

Co., 3 FMSHRC 822, 825 (April 1981 ). The question of whether a violation is S&S must be 

based on the particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (April 

1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC.2007(December 1987). 

2 An unwarrantable faihrre is aggravated conduct beyond ordinary negligence characterized by 

such conduct as "reckless disregard," ''intentional misconduct," "indifference," or a "serious lack · 

ofreasonable care." See Emery Mining Corp., 9FMSHRC1997 (Dec~ 1987) at 2003-04; 

Rochester & Pittsburgh Coal Co .. , 13 FMSHRC 189, 194 (Feb.1991); and Buck Creek Coal Inc. 

v. MSHA, 52 F. 3d 133, 136 (7th Cir. 1995)(approving Commission's unwarrantable failure test). 

32 FMSHRC Page 1898 
(a) A competent person designated by the operator shall examine each working place at 

least once each shift for conditions which may adversely affect safety or health. The 

operator shall promptly initiate appropriate action to correct such conditions. 

(b) A record. that such examinations were conducted shall be kept by the operator for a 

period of one Year, and shall be made available for review by the Secretary or his 

authorized representative. ·· 

( c) In addition, .conditions that may present an imminent danger which are noted by the 

person conducting the examination shall be brought to the immediate attention ofthe 

operator who shall withdraw all persons from the area affected (except persons referred to 

in section 104( c) of the Federal Mine Safety and Health Act of 1977) until the danger is 

abated. 

The Evidence 

Inspector Handshoe, a certified MSHA metal/nonmental inspector, testified that during 

the week of March 3, 2008, he was one of several inspectors Who conducted a week-long · 

inspection of Cemex' s Kosmos Cement Plartt. Because he was recovering from knee surgery, he 

remained on the ground near the office and did not make the physical inspection of the areas 

requiring climbing or traveling. TR 17. The inspectors held a pre-inspection conference with 

mine representatives during which they revie~ed the on-shift examination reports. These onshift examination reports are for the purpose of identifying and reporting hazards so that they can 

be timely corrected.The reports are kept for a period of one year. Handshoe testified that the 

reports were being made by competent people, as far as he could recall. TR 18-22. 

Following the completion of the inspection, the inspectors involved met to discuss their 

findings and determined that issuing the instant citation was appropriate based upon the nature of 

the violations issued during the inspection, 3 It was also determined that the citation was 

appropriate based upon the purported past history of 22 citations for safe access, 10 citations for 

electrical violations and 15 citations for housekeeping issues over some period oftiine.4 TR 28 

Handshoe testified that "some violations" were i$sued for hazards not reported on the onshift examination reports. He explained the nature of the violations as some being for 

"spillage", ''safe access," "electrical" and "housekeeping issues" that were obvious, in his 

opinion. TR 22. He described the location of the spillage violations in more detail as follows: 

"At work platforms, on walkways, elevated walkways, tunnels, just different locations .. 

And without my,.- the citations, I couldn't give you exact locations. But spills can occur 

3 The Secretary did not introduce any of the citations issued during the March 3-7, 2008 

inspection into evidence or the inspectors' notes. 

4 The Secretary did not introduce a mine history report for the time period prior to March 2008. 

32 FMSHRC Page 1899 
TR23. 

at any place, any time, and that needs to be addressed and found during \VOrkplace · 

examination. (Sic.). That way, it can be reported and corrected." 

When questioned concerning his belief that the spillage at "some locations" was obvious 

and not corrected during the shift in which they occurred, he said it was based upon ''the amount 

of spillage at some of the locations .. .it was obvious that some of the spillage had taken place 

over a period oftime ... maybe a couple of days, two or three days." In support ofhis belief that 

the condition existed for more than one shift, he stated that there were footprints in some of the 

areas where spillage was found. He was unsure of whether the areas in question were traveled 

regularly but concluded that generally at "any given time, any place in the plant could be 

accessed at any time" for some purpose. This was sufficient in his mind to determi:h.e what 

exposure to miners this condition posed. TR 23-24. Other violations Handshoe described as the 

"main issue" were related to safe access and housekeeping located in ''tunnels" or .on "elevated 

walkways" of which there are many in a mine of this size. TR 29. In "some places" there was a 

danger ofrocks falling off the raised platforms. TR 32. The exposure to such hazards was 

quantified as being that "anybody could walk anywhere at any given time ... so anybody could 

walk anywhere during any time that day or shift, the weekend shift." TR 31. 

The type of injury Handshoe anticipated from the spillage; safe access and housekeeping 

violations found during the inspection would be a.sprained ankle orbroken wrist.. He felt it was 

reasonably likely to occur because "it was more reasonably likely than not for them to cause an 

injury than not to cause an injury." TR 34. He said he marked the gravity on the "bulk" of the 

citations issued, as well on this instant citation, as "fatal'' based upon the fact that "usually, when 

I mark 'fatal' on something like this, the majority of the citations that were issued that could have 

been found with a workplace examination are more likely than not to cause a fatal injury than 

not." When asked, "would that be related to some of the electrical violations that you found?'.' 

he answered, "correct." TR 34. He assessed the negligence level of the operator for the instant 

citation as "high" because the hazards cited during the inspection were obvious and should have 

been recorded and reported in a timely manner. TR 35. The basis for his belief that management 

had notice of the inadequate inspections was 'just the numerous obvious hazards that were 

detected or observed during this inspection." TR 37. Handshoe stated the inspectors "didn't turn 

over no rocks" (sic) to find the violations for which they issued citations. TR 26-27~ 

On cross-examination, Handshoe could not recall whether there were three or· four 

inspectors present and he had not reviewed his notes and did not have other inspectors' notes to 

refresh his recollection. When asked to indicate where in the standard the adequacy of an 

inspection is mentioned, he responded that the citation was modified to state that persons 

conducting the examinations were not reporting obvious hazards and not initiating prompt 

corrective action. TR 46. Finally, he acknowledged that the standard does not determine the 

adequacy of the examination. TR 47. When asked if Cemex was repofting hazards in their onshift examination reports, the following exchange took place: · 

Q; But they had been reporting hazards, though, right? 

32 FMSHRC Page 1900 
TR48-49. 

A. You know .. and I'm sure I made copies, and I don't have those copies in front 

of me, Gayle, so I can't really .... 

Q. But if you did not find any hazards listed ... hazards listed, or if you did not find 

,any record that even the inspection had been ... had been completed, you would 

have reacted, though, to that, would you not? 

A. I probably would have. 

Q. And what would have been your reaction? 

A. But I don't have anything in front of me, so I can't ... 

Q. Well, what would have been your reaction had you found out? 

A. Had I found out what now? 

Q. Had you found that they had not been completed, nothing listed; in other 

words, it was a blank sheet of paper. 

A. Well, then, if it was a blank sheet of paper, then I would have written a 

citation for not completing workplace examination. (Sic) . 

Q. And understandably so. But you didn't find that, because we had done that, 

right? 

A. Okay. Evidently, yes. 

Jesse McCoy, a processor for Cemex who is responsible for making safety rounds in the 

mine, testified that he records all safety hazards that he finds when doing his on-shift 

examinations. TR 63. 

Discussion 

The Secretary's evidence in this case fails to meet the requisite burden of proof to support 

this citation .. There is a fatal paucity of evidence present upon which to find that any hazards 

existed at the time the on-shift examinations were conducted. The mere fact that conditions 

existed at the time of the inspection is insufficient 'evidence from which to infer the conditions 

existed at the time of the· on'.'"shift examination or that the operator kriew or showd have known of 

their existence. · · 

Inspector Handshoe was neither the issuing inspector nor did he have the issuing 

inspector's notes or citations when testifying.· His hearsay testimony lacked specificity as to what 

standards were violated, where the violations occurred. His only description was in various 

''tunnels," or "elevated walkways' of which there were many at this mine. He indicated there 

were "some" violations of a "housekeeping" nature and "some" electrical and safe access issues. 

32 FMSHRC Page 1901 
He referred very vaguely to spillage. that existed at the time of the inspection that he believed 

existed for at least one shift because of its depth and the fact that there were footprints in it. 

However, there were no specific facts provided with regard to who cited it, where it was located, 

whether measurements were taken of the spillage, what type of material it wa8, what sort of work 

had been done in that area and when in order to determine when the material might have spilled, 

when management knew or should have known about it, what discrete safety hazard it posed or 

how many miners were exposed to it or when corrective action was initiated. There was no 

evidence of whether it was in an active part of the mine or how many, or how often, any miners 

had been in that area. The same lack of evi<;lence exists for the remainder of the alleged 

conditions underlying the issuance of this citation. While it might be inferred that the spillage on 

an elevated walkway was the basis for housekeeping as well as safe access violations, there was 

no evidence presented on what electrical violations were found which Handshoe testified were 

the basis for a fatal injury. Furthermore, the on-shift exaniination reports were not submitted 

pertaining to the areas in question to prove that these conditions were unreported as alleged. 

Because none of the underlying violations issued during the March 3, 2008 inspection 

were adjudicated at the hearing, and are still unsettled, there is no basis to conclude that there 

were standards violated or whether the operator knew or should have known of any violations 

prior to the inspection. 5 

The alleged past history of violations provides no greater support for the Secretary's 

theory that the discovery of obvious violations in March in any way served to put the operator on 

notice that they were conducting inadequate on-shift inspections in support of this section 

56.18002(a) citation. The Secretary did not introduce the mine history of violations prior to 

March 2008. Inspector Handshoe testified that the mine had received a number of citations for 

housekeeping, safe access and electrical violations in the past. These categories are so broad and 

can relate to so many different situations that the numbers alone have no useful evidentiary value. 

For instance, there is no evidence that any past violations were for the same sort of spillages, or 

for repeatedly failing to maintain toe boards on elevated walkways. There is no evidence that 

any prior violations were for failure to recognize or report obvious hazards or for failure to 

initiate corrective action on any prior violation. B~cause the testimony was sparse as to the exact 

nature and location of the violations found during the March inspection, and no information 

regarding the specifics of the past violations was provided, it cannot be determined that they were 

of a similar nature or occurred under similar circumstances. Furthermore, the. prior violations 

presumably were abated in a tiinely manner and therefore the operator would have just cause to 

believe their remedial steps eliminated those prior conditions. There was no evidence that any 

failure to report a hazard. was discussed with the e>perator in the past to put them on notice their 

on-shift examinations needed greater attention. The qualifications of the examining employee 

were not questioned and Handshoe admitted that Cemex was conducting the inspections. 

Therefore, no greater notice for failure to report obvious hazards can be imposed upon Cemex 

based upon a past history of individual violations in this case. 

5 The violations settled by the parties addressed herein were issued at an inspection conducted 

four months later. · 

32 FMSHRC Page 1902 
It is unclear from the record whether the Secretary sought to support the assessment of an 

unwarrantable failure with the past history of violations. However, for the same reasons as 

discussed above, that assessment is unsupported by the record. In order to find an unwamμited 

failure there must be sufficient evidence of aggravated conduct beyond mere negligence such as 

reckless disregard or intentional misconduct. Emery Mining Cor.p., supra. The relevant factors in 

determining whether a violation is unwarrantable are the extent of the violative condition, the 

length of time that it existed, the operator's efforts at abating the condition, whether the operator 

has been placed on notice·that greater efforts are needed for compliance, the operator's 

knowledge of the existence of the violation, whether the violation is obvious and whether the 

violation poses a high degree of danger. Consolidation Coal Co., 23 FMSHR.C 588, 593 (June 

2001); San Juan Coal Co., 29 FMSHRC 125 (March 2007). Assuming that Cemex was failing 

to report obvious hazards on their examinations, and assuming the "adequacy" of the 

examination is contemplated by the standard, there is no evidence as to the length of time this 

failure existed, what actions the operator took to correct the condition, whether the operator has 

ever been cited for a failure to report hazards before, or whether the issue has ever been discussed 

with the operator in the past to put them on notice of a need to take greater care in performing the 

examinations. Thus, I find that even ifthe inadequacy ~fthe examinations violated§ 56.18002(a) 

in this case, the assessment of an unwarrantable failure is not substantiated. 

I find, however, case law and the Secretary's Program Policy Manual further undermine 

the Secretary's position that the inadequacy of the examination alone justifies the§ 56.18002(a) 

citation. As Judge Manning stated in a case essentially identical to this one, "that fact that five 

citations were issued citing visible safety problems is too slender a reed on which to hang a 

violation of section 56.18002(a)." Dumbarton Quarry Association v. SOL, SOL v. Dumbarton, · 

21FMSHRCI132 (Oct. 1999). Judge Manning further referred to the Secretary's Program 

Policy Manual concerning §56. 18002 which states "although the presence of hazards covered by 

other standards may indicate a failure to comply with this standard, MSHA does not intend to 

cite § 56.18002 ,automatically when the Agency finds as imminent danger or a violation of 

another standard." Program Policy Manual, Volume N, Subpart Q, 

<(http://www.msha.gov/reg/complain/ppm/pmvol4e.htm#77). 

fu another similar case involving the issuance of alleged obvious safety violations as the 

basis for a § 56.18002 citation, Judge Hodgdon found that the standard is violated only if 

examinations are not being conducted or corrective action is not being taken as neither the 

regulation nor the Program Manuai mentions "adequacy" in the language. SOL v. Lopke 

Quarries, Inc., 22 FMSHRC 899 (July 2000). Acknowledging '\vhile there may be cases where 

the violations are so obvious and so egregious that a finding that §56.18002(a) was violated is 

appropriate" citations for unsafe access, electrical issues and fire extinguisher problems did not 

present such egregious violations. Judge Weisbeger interpreted the language of the standard in 

the same way as Judge Hodgdon in SOL v. TX! Port Costa Plant, 22 FMSHRC 1301 (Nov. 2000) 

in a case involving a 6" deep accumulation of material with no evidence presented regarding who 

traveled in the area or how frequently so as to make the safe access violation an appropriate basis 

for issuing at§ 56.18002(a) citation. 

32 FMSHR.C Page 1903 
I agree with my colleagues.' ·There may be situations .in which a hazard or danger is so 

patently obvious and so egregious that the failure to report it is tantamount to a failure to conduc1 

an on-shift examination. Finding such a situation could justifiably trigger a § 56.18002( a) 

violation for inadequate examinations as contemplated by the Program Policy Manual. In this 

ca8e, however, there is no evidence from which to infer the violations, which are ·so vaguely 

described by the inspector, are of such an egregio~s nature. 

Order 

Based upon the foregoing, Citation No 7750542 is hereby vacated. Pursuant to the motior 

for partial settlement filed herein, Cemex, Inc. is directed to pay additional civil penalties of 

$17,400 within 40 days ofthe date of this decision on Citation Nos. 7750727, 7750728, 7754413 

and 7754428.6 · 

Distribution: 

Priscilla M. Rae 

Administrative Law Judge 

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

230, Nashville, TN 37219. 

Gayle R. Harrison, Safety Mariager, Cemex, Inc., 15301 Dixie Highway, Louisville, KY 40272. 

6 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. 

32 FMSHRC Page 1904 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

601 NEW JERSEY AVENUE N.W., SUITE 9500 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), · 

Petitioner 

v. 

WASHINGTON, D.C. 20001 

. . (202) 434-9950 

December 29, 2010 

CIVIL PENALTY· PROCEEDING 

Docket No. LAKE 2009-36 

A.C. No. 12-02010-162898 

BLACK BEAUTY COAL COMP ANY, 

Respondent 

Mine: AirQuality#l Mine 

DECISION 

Appearances: Barbara M. Villalobos, Esq., Office of the Solicitor, U.S. Department of Labor, 

Chicago, Illinois, for the Petitioner 

Arthur Wolfson, Esq., Jackson Kelly PLLC, Pittsburgh, Pennsylvania, for the 

Respondent 

Before: Judge Weisberger 

Statement of the Case 

This case is before me1 based upon a petition for assessment of civil penalty filed by the 

Secretary of Labor ("Secretary") alleging violations by Black Beauty Coal Company ("Black 

Beauty''), ofvaiious mandatory standards set forth in Title 30 of the Code of Federal 

Regulations. The parties reached a settlenientregarding five citations at issue, and a hearing was 

held in Si. Louis, Missouri, on two orders issued under Section 104(d) of the Federal Mine 

Safety and Health Act of 1977 ('"the Act"). 2 

Subsequent to the hearing, Respondent filed proposed filings of fact and a brief. The 

Secretary filed a brief. Respondent filed a reply brief. To date, the Secretary has not filed either 

objections or a reply brief. . 

1 This case was originally assigned to Judge Paez and was reassigned to me. 

2 The parties stipulated that the citations underlying these orders are ''paid and final 

violation[s]." (Joint Stipulations,"Pars. 9-12). 

32 FMSHRC Page 1905 
I. Citation numbers 6672417. 6672495. 6678086. 6678088. and 6681014 

The Secretary filed a motion, and an amended motion, to approve settlement of these 

citations. The original assessment for these citations was $79,886.00 and the parties reached a 

settlement in the amount of $14, 153 .00. I have considered the representations and 

documentation submitted. Most significant are the Secretary's representations that ''upon 

review" the levels of negligence, and gravity were reduced respectively in two citations,· and one 

citation was changed to ''non S&S". Also significant is the Secretary's representation that ''upon 

information learned in preparation of this case for hearing, and a further review by the Agency, 

the Agency hereby vacates [two] citations (sic)." 

I conclude that the proffered settlement is appropriate under the criteria set.forth in 

Section 11 O(i) of the Act. Therefore, the motion for approval of settlement is GRANTED. 

II. Order No. 6671205 (violation of 30 CFR §77 .1103(d)3

) 

· A. The Secretazy' s testimony 

On October 15, 2007, JohnnyL. Moore, anMSHA inspector, inspected Black Beauty's 

containment area. The containment area was made out of concrete slab$, approximately nine 

inches high, and covered an area of approximately fifteen by twenty-five feet. Moore indicated 

that the purpose of the area was to catch spills from three cylindrical storage tanks. Two tanks, 

five feet long and three and one-half feet in diameter, had a capacity of 400 gallons and 

contained waste oil. A third tank, five feet in diameter and ten feet long, contained diesel fuel. It 

had a capacity of one thousand gallons. All the tanks were in a horizontal position. 

Moore indicated that he observed cellophane, plastic items, gloves, and other trash 

hanging over the edge of the containment area. He indicated that the containment area was a 

"slurry of mixed oil and fuel" (Tr. 23), and that he could see dried oil caked on the tanks. He · 

also observed trash through some grating that was on top of the containment area. In addition, 

after the liquid in the containment had been pumped out to abate the violation, Moore observed 

jugs, cardboard, paper, cracked leather, cans of soda, plastic soda bottles, lids to five gallon 

plastic buckets, and pieces of six by six wooden crib ties that were eight to eleven inches long. 

According to Moore, these items "had become saturated and fully sunk." '(Tr. 29). Moore 

indicated that a hazard was created because combustible material was near flammable storage 

tanks. He found the violative condition not to be significant and substantial because the gravity 

was ''unlikely'' in that there were not any ignition sources present. He indicated that if an 

accident should occur there would be resultant burns, smoke or inhalation injuries to one person 

3 Section 77 .1103( d) provides as follows: "~eas surrounding flammable liquid storage 

tanks and electrical substations and transformers shall. be kept free from grass (dry), weeds, 

underbrush, and other combustible materials such as trash, rubbish, leaves and paper for at least 

25 feet in all directions." 

32 FMSHRC Page 1906 · 
who would probably be able to get away from the area. Moore issued an order under Section 

104 (d) of the Act alleging a violation of 30 CFR §77.1103(d). 

According to Moore, the violation was the result of the operator's unwarrantable failure 

because the trash was very obvious, and extensive. He indicated that the cited area was in a 

"high traffic area" as persons traveled by it to go to and .from a training center, an underground 

portal, and a storage warehouse. Also, he indicated that Jim Streepy, Respondent's plant 

manager, observed the condition with him along with another MSHA employee, Quintin 

Hastings, and they both said that it was a "shame and uncalled for ... [it] to be in this 

condition." (Tr. 32). 

The inspector opined that, based on the way the condition looked, it had been in 

existence for "at least a couple of weeks to three weeks." (Tr: 35-36). Moore testified that he 

was told that it took thirty-four man-hours to abate the violative condition. Moore indicated that 

the items he cited were extensive. 

Moore testified that, after he cited the operator, he met with Guy Campbell, the 

underground mine manager, and asked him who was responsible for the cited area. According to 

Moore, Campbell told him that the containment was Alan Pancake's responsibility, but he was 

on vacation. Moore said that Streepy said he (Streepy) was not responsible for the containment 

area; Streepy was not sure who was. According to Moore, after talking to Streepy and Campbell 

for approximately two hours, the latter told him that ,"[he would], take responsibility for it ... we 

are going to tum it over to the surface, but Alan hasn't made it back o:ffvacation to do that yet 

(sic)." (Tr. 34-35). 

B. Respondent's testimony 

John A. Burke, a yardman who loaded and unloaded trucks at the site in issue in October 

2007, testified that he works around the containment area, and therefore he saw it daily. He 

indicated that it was common· for the containment area to contain liquid from rain and/or· 

spillage. According to Burke; the company gets rid of the liquid by pumping it out. 1n addition, 

it hired Kentucky Petroleum to remove the liquid from the containment area: "as needed'', (Tr. 

71 ). Burke indicated that after liquid is pumped out of the area ''we would have to shovel the 

extraneous material into barrels." (Tr. 73). He indicated that he would do it immediately after 

the pumping "ifl was told to do it." (Tr. 74). According to Burke, Kentucky Petroleum had 

removed oil and water from the area on October 11, 2007. 

Jim Streepy, was the plant manager at Respondent's Wheatland site4 in October 2007. 

He was with the inspector on October 15. He indicated that there was liquid in the containment 

area which was mostly water butthere was "some oil on top ofit." (Tr; 90). 

Alan Pancake was· the plant supervisor of the preparation plant at issue. He testified that 

he was on vacation on October 15, but came to the mine after he was called by Hastings who 

4 This site is approximately seven miles from the cited area. 

32 FMSHRC Page 1907 
infonned him that an inspector was at the site. Pancake indicated that his. area of responsibilities 

did not include the containment area. 

C. Discussion 

1. ·Violation of section 77.1103(d). supra 

Section 77 .1103( d), supra, requires, in pertinent part, as follows: "areas 

surrounding flammable liquid storage tanks and electric substations and transformers shall be 

kept free from grass (dry), weeds, underbrush, and other combustible materials such as trash, 

rubbish, leaves and paper for at least 25ft in all directions." 30 CFR §77.l 103(d). 

It is Respondent's position that it did not violate section 77 .1103( d), supra, arguing that: 

( 1) the containment was part of the storage tank itself and not covered under section 77.1103( d) 

supra, and (2) that the cited material was not combustible. 

a. The containment as subject to section 77.l 103(d). supra 

Respondent maintains that the cited containment area is part of the storage area itself and 

thus is not subject to section 77 .1103( d), supra. Respondent argues as follows: 

The containment.itself acts as a type of storage facility for waste oil and kerosene. 

It is designed to catch waste ;oil spillage and retain the liquid until it can be 

pumped and properly disposed of. It is not the area surrounding the flanimable 

liquid storage tanks, but is part of the storage tank facility itself. The containment 

is therefore a flammable storage unit and not subject to the above standard. 

(Respondent's Post Hearing Br. 3) (citations omitted). 

I have considered this argument, but find that it is not persuasive, as it is contrary to the 

plain meaning of section 77.1103( d ), supra. The mandatory requirements of this section apply 

to "areas surrounding flammable liquid storage tanks".5 Thus, storage tanks themselves are not 

within the scope of section 77 .1103( d), supra, but the surrounding areas are. Since the cited 

containment is adjacent to three storage tanks, (Exs. R-1 (a)(c)(e)(f), and (g)), it clearly faJls 

within the purview of section 77 .1103( d), supra. 

b. The cited materials as being combustible 

The Respondent further argues that it has not been established by the Secretary that the 

material cited was combustible, and hence there was not any violation,, In support of its 

argument, Respondent cites Marty Corp., 7 FMSHRC 50 (January 1985) (ALl). In Marty, 

supra, the judge found that because the cited bales of straw were thoroughly soaked, they may 

5 A "storage tank" is a "circular steel tank." Dictionary o(Mining Minerals and Related 

Terms ("DMMRT''). 

32 FMSHRC Page 1908 
not have been combustible andtherefore there was not any violation of section 77.1103(d), 

supra. I note, initially, that Marty, supra was decided by' a fellow commission judge and hence I 

am not bound by it. Also, the case at bar is factually distinguished from Marty, supra; in Marty, 

the bales of hay were soaked in water, not oil, and therefore the bales may not have been 

combustible. In contrast, in the case at bar, I note that Respondent did not either impeach or 

contradict the testimony of Moore, that the plastic and leather items that he cited were in a 

"slurry of mixed oil and fuel" (Tr. 23}6 (emphasis added). 

Further, it is significant to note thatMoore testified that the lids that he cited were 

combustible as "[t]he plastic will bum." (Tr. 39). Respondent did not impeach or contradict this 

testimony. 

Moreover, "trash" is one of the specifically enumerated "combustible materials" set forth 

in section 77.I 103(d), supra. fu this context, I note the existence of plastic lids, cans, and leather 

items observed in the containment area, as well as the following items observed after it had been 

pumped out: pieces of a wooden crib ties, cardboard, rubber, and Saran wrap. These items were 

clearly ''trash," as that term is commonly understood, i.e., junk, rubbish. See Webster's Third 

New International Dictionary (1993 Edition). 

For all the above reasons, I conclude that it has been established that Respondent violated 

section 77.l 103(d,) supra. 

2. Unwarrantable Failure. 

The unwarrantable failure terminology is taken from section 104(d).ofthe Act, 30 U.S.C. 

§ 814( d), and refers to more serious conduct by an operator in connection with a violation. In 

Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987), the Commission determined that 

unwarrantable failure is aggravated conduct constituting more than ordinary negligence. Id. 

Unwarrantable failure is characterized by such conduct as "reckless' disregard," "intentional 

misconduct," "indifference," or a "serious lack ofreasonable care." Id. at 2003-04; Rochester & 

Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991 ); see also Buck Creek Coal, Inc. v: 

MSHA, 52 F.3d 133, 136 (7th Cir. 1995)(approving Commission's unwarrantable failtire test}. 

The Commission has recognized that whether conduct is "aggravated" in the context of 

unwarrantable failure is determined by considering the facts and circumstances of each case to 

determine if any aggravating or mitigating circumstances exist. Aggravating factors include the 

length of time that the violation has existed, the extent of the violative condition, whether the 

operator has been place on notice that greater efforts were necessary for compliance, the 

operator's efforts in abating the violative condition, whether the violation was obvious or posed 

a high degree of danger, and the operator's knowledge of the existence of the violation. See 10. 

Coal 31 FMSHRC 1346 (Dec. 2009) Consolidation Coal Co., 22 FMSHRC 340, 252 (Mar. 

2000) ("Consol"}; Cyprus Emerald Res. Corp., 20 FMSHRC 790, 813 (Aug. 1998), rev'd on 

6

Indeed even Respondent's witness, Streepy, who indicated that the area "was mostly 

water," testified further as follows: "There was some oil on top ofit." (Tr. 90). 

32 FMSHRC Page 1909 
other grounds, 195 F .3d 42 (D.C. Cir. 1999); Midwest Material Co., 19 FMSHRC 30, 34 (Jan. 

1997); Mullins & Sons Coal Co., 16.FMSHRC192, 195 (Feb. 1994); PeabodyCoal Co., 14 

FMSHRC 1258, 1261(Aug.1992); BethEnergy Mines, Inc., 14 FMSHRC 1232, 1243-44 (Aug. 

1992); Quin/and Coals, Inc., 10 FMSHRC 705, 709(June1988). 

a. Aggravating factors 

The Secretary argues, in essence, that no one was assigned the responsibility of ensuring 

the containment area was kept clean. The Secretary concludes that this fact should be 

c.onsidered an aggravating factor for the purpose of determining unwarrantable failure. I note 

that the Secretary's argument finds support in the testimony of Moore that neither Streepy, 

Pancake, nor Campbell was responsible for the containment area. This testimony was not 

impeached or contradicted, nor did Respondent adduce any evidence to establish who was 

responsible for the cited area. As such, the lack of responsibility for the containment was an . 

aggravating factor. 

b. Extent 

According to Moore, the containment area was approximately fifteen feet by twenty feet. 

He said that when he looked through the cracks in the grating that was on it, he saw trash 

"wherever you looked hard enough." (Tr. 25). After the area was pumped, he observed more 

trash. These observations were not impeached or contradicted. 

He further testified that it took thirty-four man-hours to abate the violative condition. 

This testimony was not impeached or rebutted. 

Based on all the above, I conclude the violation was extensive. 

c. The length of time that the violative condition existed 

I note the Secretary's argument that the cited conditions had existed for a significant 

period of time "as evidenced. by the trash discovered at the bottom of the containment area, 

saturated with oil." (Secretary's Post Trial Br. at 12). In this connection Moore testified that 

after the cited area had been pumped, he observed various items that "had become saturated and 

fully sunk (sic)." (Tr. 29). The inspector opined that "based on the way it looked" (Tr. 36), the 

conditions had existed for two to three weeks. The inspector did not set forth in detail the basis 

for his opinion. There was not any evidence adduced as to the length of time for the cited 

materials to have become "saturated." Also, there was not any evidence adduced, aside from his 

opinion, regarding the length of time for these items to have "fully sunk" in a "slurry'' of oil and 

water. (Tr.23). · 

32 FMSHRC Page 1910 
I therefore find that it has not been established that the violation had existed for a 

significant period of time. 7 

d. Whether the operator was on notice that greater efforts 

were necessary for compliance 

There is not any evidence that MSHA had any discussions with the operator, prior to the 

issuance of the citation at issue concerning a problem with combustible materials in the 

containment area, or in other areas covered by section 77 .1103( d), supra, i.e., those surrounding 

flammable liquid storage tanks, electric substations, and.transformers. Nor is there any evidence 

that the operator had actual knowledge of the violative conditions. Therefore, I conclude that it 

has not been established that the operator was on notice that greater efforts were necessary for 

compliance. 

e. Whether the violation posed a high degree of danger 

The inspector indicated that a hazard was created because of the presence of combustible 

material near flammable storage tanks. The inspector therefore indicated that the violation of 

§77.1103( d) created some degree of danger. However, as set forth in IO Coal Co., supra, "the 

Commission has relied on.the high degree of danger posed by a violation to support an 

unwarrantable finding." See BethEnergy Mines, Inc., 14 FMSHRC at 1243-1244 (emphasis 

added). In this context, I note that it is.significant that the inspector found the violative 

conditions not to be significant and substantial due to the absence of an ignition source. I thus 

find that there was not a high degree of danger. 

f. The operator's efforts in abating the violative condition 

The Commission, discussing this factor in IO Coal, supra, indicated that "[t]he focus on 

the operator's abatement efforts is on those efforts made prior to the citation or order. Id. 

(emphasis added). 1n· this connection, the inspector indicated that when he arrived on the site he 

did not observe any workers cleaning up the combustible materials before he orally advised 

Black Beauty that he was going to issue a citation. · On the other hand, Burke indicated that 

usually, if he observes bad conditions in the containment area, he will tell management to call 

Kentucky Petroleum, who is regularly called by the company to remove oil and water. Indeed, 

Kentucky Petroleum removed "oily water'' from the area four days prior to its being cited. (Ex. 

R-2). It would appear that the company made some efforts to abate the violative conditions prior 

to the issuance of the order. 

g. Obviousness of the cited conditions 

7 Indeed, based on Moore's observation of trash being blown from a nearby dumpster 

towards the cited area, it might be inferred that some of the trash in the containment area might ·. 

have been of recent origin. 

32 FMSHRC Page 1911 
According to the inspector; when he approached the area, he observed cellophane· 

hanging over the edge, lids sticking out of the sludge, as well as gloves and other trash. He saw 

trash through the cracks in the grating on the containment area. This testimony was not 

impeached or contradicted. Therefore, I find that these materials were obvious. However, 

according to Moore, some of the materials he cited consisted also of trash revealed after the area 

was pumped. I find that this trash was not obvious. 

h. Conclusion 

Weighing all the above, and placing significant weight on the lack of notice of the 

necessity for greater compliance, the lack of proof of the length of time the conditions had 

existed, the lack of a high degree of danger posed by the violative condition, and the lackof 

obviousness of some of the materials, I find that the existence of the cited conditions were not as 

a result of the operators' aggravated conduct, and thus did not constitute an unwarrantable 

failure. See, Emery, supra. 

3. Penalty 

In determining the amount of the penalty to be assessed, I must consider the folloWing 

factors: the operator's history of previous violations, the size of the. operator's business, any 

negligence on the part of the, operator, the effect on the operator's ability to continue in business, 

the gravity of the violation, and the demonstrated good faith of the operatorin abating the 

violative condition. Section 11 O(i} of the Act. 

I find that the operator acted in good faith in abating the violative condition. Neither 

party adduced· any evicience that justifies. either an increase or decrease in penalty based on the 

operator's size or history of violations. The parties stipulated that the proposed penalty will not 

affectBlack Beauty's ability to continue in business. For the reasons set forth above (Il)(C)(2), 

infra, I find that the operator's negligence was moderate, but that it did not reachthe level of 

aggravated conduct. I find the evidence establishes the presence of combustible material, i.e., 

plastic and leather items near flammable storage tanks. Should these items have ignited, it is· 

possible a fire could have resulted which could have led to injuries. I find that the level of 

gravity to have been moderate. 

Based on all the above, I find that a penalty of$500 is appropriate for the violation of 

section 77.1103(d), supra. 

ill. Order No. 6672696 (violation of 30 CFR §75.400.8 ) 

8 Section 75.400 provides as follows: "coal dust, including float coal dust deposited on 

rock-dusted surfaces, loose coal, and other combustible materials, shall be cleaned up and not 

permitted to accumulate in active workings, or on diesel-powered and electric equipment 

therein." 

32 FMSHRC Page 1912 
A. The Secretary's testimony 

On May l, 2008, Sylvester Di Lorenzo, an MSHA inspector, inspected the No. 2 

underground unit, along with Tom Burnett, mine manager for Black Beauty. According to Di 

Lorenzo, he observed combustible material on four different parts of the No. 18 roof bolter. He 

indicated that oil and oil soaked coal to an estimated depth of one-half to three inches, covered 

the entire area of the following locations: the surface of the right boom, (approximately two feet 

by fourteen inches); the hydraulic pump motor compartment, (approximately three feet by three 

feet); the floor of the operator's compartment, (approximately three feet by three feet); and the 

center section area, (two feet by three feet). Di Lorenzo indicated that the material could ignite 

if an ignition source was present. He found that the gravity was unlikely; if an accident would 

occur it would result, at a minimum, in lost workdays due to smoke inhalation, carbon monoxide 

inhalation or bums, and would affect a minimum of one person. Based on all the above, 

Di Lorenzo issued an order under Section 104(d)(2) of the Act alleging a violation of30 CFR § 

75.400. 

Di Lorenzo opined that the violative conditions resulted from the operator's 

unwarrantable failure. (Tr. 127-128). He indicated that the "extensive" accumulations 

were" ... obvious to the most casual observer ... you could just walk by it and see them." Di 

Lorenzo opined that the accumulations had existed for at least four to six shifts. He concluded 

that the section foreman should have been aware ofthe violative conditions. Di Lorenzo noted 

that when he first arrived on the section, he did not observe any work being perfonned to remove 

the accumulations. 

Further, Di Lorenzo indicated that he had put the operator on notice of the need for 

further efforts regarding accumulations. He testified that on March 31, 2008, he had met with 

the general mine manager, Burt Hall, and told him that the mine ''was put on notice for 75.400 

accumulations of combustible materials on equipment, belt lines, and inby the loading points." 

(Tr. 131 ). According to Di Lorenzo, he also told Hall that it had received 319 of such citations 

in the last two years, and 46 citations in the quarter ending March 31, 2008. Di Lorenzo stated 

that he. told Hall that improvement would have to be seen, or the level of negligence would be 

increased on the citations. ' 

According to Di Lorenzo, on April 1, 2008, he met with Ron Madlem, the safety director 

and told him that what he had told Hall the previous day. On April 8, 2008, Di Lorenzo told 

Rick Carey, the mine manager, the same thing that he had told the other managers previously. 

On April 15, 2008, he spoke with Madlem again and Dave Wininger and told them of the 

severity of the section 7 5 .400 conditions, and that negligence will be " ratcheted up" if there is 

not any improvement. (Tr. 137). 

On April .16, 2008, Di Lorenzo met with Bill Schaefer, a mine manager, and told him that 

they had to start improving and that ''we weren't seeing any signs of improvement. .. on the 

accumulation issues inby the loading points and on equipment." (Tr. 138). 

According to Di Lorenzo, on April 22, 2008, he spoke with Terry Courtney, Mine 

32 FMSHRC Page 1913 
Manager, and told him that MSHA has not seen improvement and that the operator has to start to 

take action regarding cleanup "on all three areas." (Tr. 139). ·On April 25, 2008, Di Lorenzo 

spoke with Gary Campbell, a superintendent, regarding the problems with section 75.400, and 

told him that MSHA was not seeing improvement regarding equipment, belt lines, "and inby the 

loading point." (Tr. 140). 

B. The Respondent's·testimony 

Randall Lee Hammond was the section foreman of the. section at issue when it was cited, 

but he was not at work that day. Instead, an hourly employee had filled in for him as foreman. 

Hammond indicated that he (Hammond) was responsible for each of the three shifts. He 

indicated that each shift (A, B, and C) was responsible for cleaning different equipment once a 

week. The C shift (midnight shift) was responsible for cleaning the bolters. He indicated that 

the floor of the bolter cab was "supposed" to be monitored on a daily basis and was washed "as 

needed." (Tr. 171 ). 

The Section Foreman's Report for the C shift, dated April 24, 2008, indicates as follows: 

''washed. 18rb." According to Hammond, the notation "18 rb" refers to the bolter at issue. 

Acc{.)rding to Hammond, Black Beauty reviewed its data base of citations and orders. it 

had received for the period of January 1, 2008 through April 30, 2008. He indicated that in 

January equipment was cited eight times, and in February nine times. However, in March and 

April, Black Beauty received only two and three citations/orders, respectively, for section 75.400 

violations on equipment. 

C. Discussion 

1. Violation of section 75.400, supra 

Section 75.400, supra, provides in pertinent part, as follows: "coal dust, including float· 

coal dust ... and other combustible materials, shall be cleaned up and not permitted to· accumulate 

in active workings, or on diesel-powered and electric equipment therein.'' 

It is Respondent's position, in essence, that operators are provided a reasonable time to 

clean up spillage which is a result of normal mining, and not considered an accumulation.9 

9 The clear language of Section 75.400, supra, does not allow for any reasonable time to 

clean up "spillage." In Utah Power and Light, 951F.2d292 (10th Cir. 1991) the court rejected 

such an argument as follows: "While everyone knows that loose coal is generated by mining in 

a coal mine, the regulation plainly prohibits permitting it to accumulate; hence it must be deaned 

up with reasonable promptness, with all convenient speed." (Id at 295, Fn 11 ); see also Old Ben 

Coal Co., 1 FMSHRC 1954, 1958 (Dec. 1979) (recognizing that some spillage may be· 

inevitable, but holding that whether it is an accumulation is a question at least in part of size and 

amount. It was held that the vast spillage cited by the inspector, which was not disputed by the 

32 FMSHRC Page 1914 
Respondent asserts the bolter at issue had been washed· on the midnight shift on April 24, a week 

before it was cited. According to Hammond, the C shift "was responsible" for washing it once a 

week. (Tr. 170). Hence, it is argued that "in the normal course of business, it would have been 

washed close to the time when the order was issued." (Respondent's Post-Hearing Br:·at 14) 

I do not find much merit in Respondent's position. Respondent did not adduce the 

testimony of any person with personal knowledge of the washing on April 24. Thus, in the 

absence of such evidence there is not any basis in the record to conclude that the washing was 

done effectively, i.e., that it removed all combustible materials that had accumulated. Further, it 

is mere conjecture to conclude that the bolter ''would" have been washed on April 1 based only 

upon testimony that the "C" shift was responsible for washing at that time. There is clearly a 

lack ofreasonable probability that it actually would have been done on time and effectively. I 

thus find Respondent's evidence to be insufficient weight to rebut the detailed testimony of 

Di Lorenzo, which was not impeached or contradicted, regarding his observations of 

accumulations of oil and oil soaked coal on four areas of the roof bolter. 

Further, since Respondent did not adduce any evidence, based on personal knowledge, 

that all the cited materials had been cleaned prior to the inspection, I find that Di Lorenzo's 

opinion that the cited materials had existed for four to six shifts has not been effectively 

rebutted. 

Based on all the above, especially Lorenzo's uncontradicted testimony regarding the 

extent of the cited materials, I find that a preponderance of the evidence establishes the existence 

of accumulations of combustible oil and oil soaked coal. Accordingly, I find that it has been 

established that Respondent violated section 75.400, supra. 

2. Unwarrantable Failure. 

As discussed above; (II)(C)(2}, infra, for the purposes of determining unwarrantable 

failure, aggravating factors include the length of time that the violation has existed, the extent of 

the violative condition, whether the operator has been place on notice that greater efforts· were 

necessary for compliance, the operator's efforts in abating the violative condition, whether the 

violation was obvious or posed a high degree of danger, and the operator's knowledge of the 

existence of the violation. See, e.g., JO. Coal, 31FMSHRC1346. 

a. Extent of the violative· condition and the length of time it had 

existed 

··I. Extensive 

Di Lorenzo opined that the accumulations were extensive. In this connection, he testified 

that they were between one-half to three inches deep, and covered the entire area of the 

following locations on the bolter: the right front boom, (two feet by fourteen inches); the 

operator's witness, constituted an accumulation.) 

32 FMSHRC Page 1915 
hydraulic motor compartment, (three feet by three feet); the floor of the operator's compartment, 

(three feet by three feet); and the center section (two feet by three feet). This testimony was not 

impeached. 10 Nor. did Black Beauty adduce any evidence to contradict Di Lorenzo's testimony 

regarding the dimensions of the areas covered by the accumulations, and the range of their depth. 

I therefore find that the accumulations were extensive. 

u. Length of th~ time 

According to the testimony of Di Lorenzo, based on his experience, the.accumulations 

had lasted four to six shifts. This testimony was not impeached on cross-examination. 

I take cognition of Respondent's argument that the cited c.ortdition was not extensive or 

of long duration. Respondent relies on Hammond's testimony that the "C" shift ''is responsible" 

for washing the entire bolter, (Tr. 170), and that the floor of the cab is.monitored on a daily basis 

and washed "as needed." (Tr. 171 ). Further, Respondent did not adduce any testimony by any 

persons having personal knowledge that the subject bolter was actually cleaned or washed the 

previous four to six shifts prior to Di Lorenzo's inspection, and that such cleaning had removed 

all accumulations. 

Within this framework and for the reasons set forth above in (III)( c )(1 ), infra, I find, 

based on Di Lorenzo's testimony that the cited accumulations had existed for approximately four 

to six shifts. 

b. Whether the operator was placed on notice that 

greater efforts were necessary for compliance 

It appears to be the argument of Respondent that a finding of unwarrantable failure 

should not be based on a history of violations of Section 75.400 without breaking it down to 

violations .similar to those at issue, i.e., equipment inby the loading point. 11 The Commission 

has considered and rejected such an .argument. See Enlow Fork Mining Co., 19 FMSHRC 1, 5 

(Jan. 1997); Peabody Coal Co., 14 FMSHRC 1258 (Aug. 1992) (Commission did not confirm 

the operator's contention that commission precedent reveals that only past citations of the same 

standard in the same area may be considered in determining whether a violation is 

unwarrantable); IO Coal, 31 FMSHRC at 1354 (citing, San Juan Coal Co., 29 FMSHRC 125, 

10 On cross-examination, Di Lorenzo admitted that he did not know how much of the 

material was three inches deep. 

11 Respondent relies on data from its own mine data bank which indicates only eight 

citations for accumulations on equipment in January 2008, nine in February 2008, only two in 

March 2008, and three in April 2008. Respondent argues that it has shown "significant 

improvement in rectifying issues with accumulations on equipment" (Respondent's Post-Hearing 

Br. at 19) I note that Respondent did not introduce any evidence of specific improvements· it 

made to reduce accumulations on equipment. Hence not much weight was accorded this 

argument. 

32FMSHRC Page 1916 
131-132); Co~solidation Coal, 23 FMSHRC 588 (June 2001). 

. . 

Further, it is most significant to note that on seven occasions in the approximate 30~y 

period prior to the issuance of the order at issue on May 1, 2008, the inspector met with various 

mine officials and expressed concern about ( 1) "[section] 7 5 .400 accumulations on the belt lines, 

equipment, and inby the loading points" (Tr. 134) (emphasis added), and (2) the fact that MSHA 

had not seen improvement. The Commission has recognized that such discussions serve to put 

an operator on heightened scrutiny that it must increase its efforts to comply with section 75.400, 

supra. (San Juan, 29 FMSHRC at 131; Consolidation Coal, 23 FMSHRC at 6). 

For all of these reasons, I find that Respondent had been put on notice that greater efforts 

were necessary for compliance. 

c. Whether the violation posed a high degree of danger 

Di Lorenzo testified, in essence, that in the presence of ignition sources the 

accumulations could bum, producing the hazard of smoke inhalation, or bums affecting ·only one 

person, and causing, at a minimum, loss of work days. He conceded that there were not any 

ignition sources present. For all these reasons I find that although a hazard was created, there 

was not "high" degree of danger posed by the violation. 

d. The operator's effort in abating the violative 

condition 

According to Di Lorenzo, in spite of numerous conversations with management, there 

was not increased compliance with section 75.400. Black Beauty adduced evidence that its 

records indicate that in the four months immediately preceding Di Lorenzo's inspection, it 

received only eight citations in January 2008, and nine in February in 2008 for 75.400 violations 

on equipment, out only two in March and three in April. Thus it is argued that Black Beauty 

made significant efforts in abating the violative condition prior to its being cited by Di Lorenzo. 

However, Respondent did not adduce evidence of any specific efforts it had taken prior to the 

May 1 inspection to reduce or eliminate accumulations, i.e., to abate the violative conditions. 

See IO. Coal, 31FMSHRC1346;EnlowFork, 14FMSHRC l;New Warwick Mining Co., 18 

FMSHRC 1568, 1574 (Sept. 1996). 

Foran these reasons, I find that there is not sufficient evidence adduced by Black Beauty 

to establish any additional specific actions it took to improve its compliance with section 75.400, 

supra. Thus, I find the Respondent has not established that it made any significant efforts to 

abate the violative condition. 

e. The operator's knowledge of the existence of the violation and 

whether the violation was obvious 

According to Di Lorenzo, the cited accumulations were obvious and would have been 

readily apparent to anyone walking by. In this connection I note that the bolter is used on an 

32 FMSHRC Page 1917 
active working section. Respondent did not impeach this testimony. Nor did it adduce 

testimony or other evidence to contradict Di Lorenzo's testimony that the accumulations were 

obvious. Further, Respondent did not present the testimony of any persons regarding lack of 

knowledge of their existence nor did it establish that it reasonably could not have known of the 

existence of the accumulations. · 

Based on all the above, along with the extent of the cited accumulations, I find that Black 

Beauty should have reasonably known of their existence. 

f. Conclusion 

Talcing into account all of the above, and placing significant weight on the operator's 

prior notice of the need for greater efforts for compliance, I find that it has been established that 

the violation wa.S as a result of its aggravated conduct and hence, constituted an unwarrantable 

failure. 

3. Penalty 

. . 

For the reasons set forth above, I find that the operator's negligence reached the level of 

aggravated conduct. I find that the gravity was moderate. After the conditions were cited, they 

were abated by the operator in good faith. The remaining factors set forth in Section 11 O(i) of 

L!e Act were discussed above, (II)(C)(3), infra. 

Within the above context, and based on Section l 10(a)(3)(B) of the Act, I find that a 

penalty of $4,000 is required, as the violation was the result of the operator's ''unwarrantable 

failure." 

ORDER 

It is ordered that, within 30 days of this decision, Respondent shall pay a total civil 

penalty of $18,653.00. 

~b~. Administrative Law Judge 

Distribution (Via Certified Mail Returned Receipt Requested): 

Barbara M. Villalobos, Esq., Office of the Solicitor, U.S. Department of Labor, Chicago, Illinois 

60601 ' ' 

Arthur Wolfson, Esq., Jackson Kelly PLLC, 3 Gateway Center, Suite 1340, 401 Liberty Avenue, 

Pittsburgh, PA 15222-1000 · 

/cmj 

32 FMSHRC Page 1918 
ADMINISTRATIVE LAW JUDGE ORDERS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

601 New Jersey Avenue, N.W. Suite 9500 

Washington, D.C. 20001-2021 · 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

MARFORK COAL CO., INC., 

Respondent 

Telephone: (202) 577 6809 

Facsimile: (202) 434-9949 

November 24, 2010 

CIVIL PENALTY PROCEEDING 

Docket No. WEVA2009-1421 

A.C. No. 000184518 

Mine: Brushy Eagle 

ORDER DENYING MOTION FOR SETTLEMENT 

The Secretary, through its Conference and Litigation Representative, ("CLR"), has filed a 

motion for approval of settlement in this matter . The motion relates that the single citation in 

issue, Citation Number 9968576, involves a violation of30 C.F.R. § 70.101, pertaining to 

respirable dust. It notes that the average concentration of respirable dust, based on five ·Valid 

samples collected by the operator, exceeded the maximum limit for such dust by nearly three · 

times that level. 1 It also reports thatthe.citation was determined to be significant and substantial, 

highly likely to result in lost workdays or restricted duty, of moderate negligence and affecting 

ten persons. Motion at 2. 

The motion then continues with a recitation of the Respondent's contentions, in which it 

argues that: only four persons would actually have been exposed; that its negligence should be 

viewed as "low" and that it took reasonable steps to "prevent or limit exposure to excess dust or 

gases." The motion relates absolutely no basis for the support of the claim that the number 

exposed would be four, nor does it identify the "reasonable steps" Respondenttook to prevent or 

limit exposure. 

The motion then advises that the Respondent would argue that it was in compliance with 

the approved ventilation and dust control plan. This is an interesting contention, given that the · 

Respondent is admitting that it was exceeding the respirable dust limit by nearly three times the 

upper limit of allowable exposure. The motion then contends that it is Respondent's position 

that "dust conditions are transitory in nature and not entirely preventable."· That argument is 

intriguing as well, as it implies that the upper limit is not "entirely preventable," though one 

would think that the upper limit establishes a contrary presumption. 

1

The motion states that the applicable limit is 0.6 mg/m3 and that the results recorded the. 

level as 1. 723 mg/m3 • 

32 FMSHRC Page 1919 
Continuing with its scattershot defense to the admitted violation, the Respondent, the 

Motion relates, would also contend that the "condition could have arisen due to geological 

conditions or because the continuous miner operator moved out of proper operating position 

unbeknownst to mine management, among other unpredictable reasons." Id. As with the other 

claims, there is nothing to support these assertion~ either. 

The Motion then relates that the Respondent would also argue that case law supports a 

finding of low negligence here. To establish that, the Motion cites Costain Coal, Inc., 19 

FMSHRC 1653, 1997 WL 640692, (October 1997) ("Costain"), a decision issued by an 

administrative law judge after conducting a hearing. The Secretary relates that the "Costain 

Court explained: "[r]espirable dust concentrations vary from shift to shift and are affected by the 

level of coal production as well as varying factors such as temperature and humidity. Unlike 

most mine hazards caused by violated conditions, excessive respirable dust concentrations 

ordinarily cannot be observed." Motion at 2-3. 

As pertinent here, the Motion then asserts that "[ d]ue to the vagaries of litigation and in 

the interest of settlement, the parties have agreed that the Secretary will modify the nwnber of 

personsaffected·from ten to four." Motion at 3. 

The Court cannot approve this motion. The motion is merely a recitation of the defenses 

the Respondent may claim. at a hearing. As noted, there are problems with these claims and the 

Secretary seemingly accepts them at face value. The motion sheds no light as to the Secretary's 

stance to these. various claims, it merely recites them and then announces that the ''the vagaries ()f 

litigation and [] the interest of settlement," justify the "half-off sale" presented. A motion must 

do more than present a one-sided expression of contentions that may be raised at a hearing; it 

must advise and react to those assertions. 2 

Additional comment is warranted. First, it must be stated what is otherwise well-known: 

another administrative law judge's opinion has no precedential effect and accordingly other 

administrative law judges are not obligated to afford such an opinion any deference except 

insofar as the rationale contained within it may be persuasive. 

In Costain, the case cited with apparent acceptance by the Secretary, three respirable dust 

samples exceeded the there applicable 2.0 mg/m3 upperJimitby 2.2, 3.4and4.4 and it was 

undisputed that those exceedances were properly characterized as significant and substantial. 

Instead, the mine operator disputed the nwnber of persons affected and the degree of negligence 

involved. The administrative law judge in Costain noted that ill Consolidation Coal, 8 

2

For example, it would seem that the Secretary would have an obligation to consult with 

the inspector who issued the citation and obtain input as to the claim that four persons, not ten 

were affected. Any change in the nwnber of persons affected should advise how such a new 

number impacts the penalty computation under the penalty policy. 

32 FMSHRC Page 1920 
FMSHRC 890, 895 (June 1986), the Commission observed that some departure from normal 

enforcement considerations was justified because exposure to respirable dust has fundamental 

differences with a "typical" safety hazard. However, this reference was not intended to ease 

enforcement at all. Rather, the Commission was speaking to the insidious nature ofrespirable 

dust exposure and that it was Congress' intent that the full "panoply of the Act's enforcement 

mechanisms" were to be used to effectuate the goal of preventing that disease, a conclusion with 

which the D.C. Circuit agreed. See, 824 F. 2d 1071 (D.C. Cir. 1987) , affirming the 

Commission's interpretation. 

Further, the administrative law judge in Costain noted that "[i]n the final analysis, who, if 

not the [mine] operator, is responsible for ensuring that miners are not exposed to excessive 

respirable dust?" That judge then added: "Mine operators must ensure that the maximum levels 

of permissible respirable dust concentrations are not exceeded [and consequently] [a]n operator's 

failure to do so, regardless of fault, warrants the imposition of meaningful civil penalties." 

Costain at 5 (emphasis added). 3 Thus, this Court has a different take on the import of Costain in 

respirable dust cases. Further distinguishing that case from the present matter, the cited standard 

here is 30 C.F.R. § 70.101, which is the respirable dust standard where quartz is present. As 

MSHA has pointed out, "[ q]uartz particles are 20 times more toxic to the lungs than coal dust 

alone." MSHA Health Hazard Information Sheet 4 7. The same Information Sheet advises that a 

"miner exposed to high levels of quartz can develop silicosis in as little as three years." 

The Court is not stating that a reduction in a proposed penalty can never be approved. 

Rather, the point is that the motion must be more than a mere echo of the mine operator's 

contentions. Apart from the serious environment in which miners work on a daily basis, the risk 

of Black Lung disease has long been recognized by Congress as a matter of prime importance. 

Settlements must reflect the seriousness of this subject as well and penalty reductions must be 

fully supportable. 

3

0ther particular facts in Costain should be noted as well. One citation involved a 

relatively new mechanized mining unit with no history of previous violations; another had no 

history of previous violations for the unit in issue and a third had a history of similar violations 

but then five compliant bimonthly samples intervened before the latest violation. That judge 

took that information to justify his conclusion that the operator's history was not a factor 

warranting a "significant impact'' on the civil penalty liability. Again, it must be noted such a 

conclusion is of no precedential impact for other administrative law judge's consideration. 

32 FMSHRC Page 1921 
Accordingly, the Secretary's Motion is DENIED. The motion should be re-submitted 

with appropriate supportive information, if it exists, .or in the agency's discretion transferred to 

an attorney in the Solicitor's Office for further review. 

Distribution: 

William B. Moran 

Administrative Law Judge 

Linda fuovatic, Cotiference & Litigation Representative 

Mine Safety and Health Administration · 

100 Bluestone Road 

Mt Hope, WV 25880-1000 

Sarah Korwan, Esquire 

Dinsmore & Shohl, LLP 

P.O. Box 11887 

Charleston, WV 25339-1887 

32.FMSHRC Page 1922 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

CHARLES SCOTT HOW ARD, 

Complainant 

v. 

721 19th STREET, SUITE 443 

DENVER, CO 80202-2500 

303-844-5266/FAX 303-844-5268 

December 8, 20 I 0 

DISCRIMINATION PROCEEDING 

Docket No. KENT 2008-736-D 

BARB CD 2007-11 

CUMBERLAND RIVER COAL COMP ANY, 

Respondent 

Mine ID: 15-18705 

Mine: Band Mill No. 2 

ORDER APPROVING SETTLEMENT 

This matter is before me on Complainant's request for attorneys fees following a favorable 

decision issued on August 13, 2010 in accordance with the provisions of section 105(c) of the 

Federal Mine Safety and Health Act of 1977, 30 U.S.C. 801 et seq. (Mine Act) and 29 C.F.R. 

2700.50 et seq. The parties have filed a joint motion to approve settlement. 

I accept the representations and the agreements of the parties as set forth in the motion to 

approve settlement. I have considered the representations and documentation submitted, find 

that the proposed settlement is appropriate under the Act. The motion to approve settlement is 

GRANTED, and Cumberland River Coal Company is hereby ORDERED to pay, within 40 days 

of the date of this decision, on behalf of Respondent, Charles Scott Howard, one check in the 

amount of$124,l 74.00 made payable to Tony Oppegard and one check in the amount of 

$31,221.00 made payable to Appalachian Citizens Law Center at the addresses listed in the 

motion. All other terms of the settlement agreement are hereby incorporated into this order. 

32 FMSHRC Page 1923 
Distribution: (U.S. First Class Mail) 

Wes Addington, Esq., Appalachian Citizens Law Center, 317 Main St., Whitesburg, KY 41858 

Timothy M. Biddle, Esq. and Willa B. Perlmutter, Esq., Crowell & Moring, LLP, 1001 

Pennsylvania Ave., NW, Washington, D.C. 20004-2595 

Tony Oppegard, Esq., P.O. Box 22446, Lexington, KY 40522 

32 FMSHRC Page 1924 
2010- YEAR END INDEX 

COMMISSION DECISIONS AND ORDERS 

06-23-2010 

06-23-2010 

04.;26-2010 .· 

01-13-2010 

08-26-2010 

01-12-2010 

12-14-2010 

10-22-2010 

12-16-2010 

12-16-2010 

09-01-2010 

08-26-2010 

06-23-2010 

09-'14-2010 

12-16-2010 

12-15-2010 

01-27-2010 

08-31-2010 

08-30-2010 

04-27-2010 

07-29-2010 

09-28-2010 

09-09-2010 

08-24-2010 

07-27-2010 

08-31-2010 

06-23-2010 

06-30-2010 

02-22-2010 

08-30-2010 

06-10-2010 

08-30-2010 

09-14-2010 

04-26-2010 

01-25-2010 

06-03-2010 

06-23-2010 

09-14-2010 

11-26-2010 

04-27-2010 

7 /11 Materials, Inc. 

Aggregates USA LLC. 

A.l.M., LLC. 

Allgeier Martin & Associates, Inc. 

Ainerikohl Mining, Inc. 

Apex Energy, Inc. 

Appalachian Stone Company 

Aracoma Coal Company, Inc. 

Aracoma Coal Company - order 

Aracoma Coal Company - Amended decision 

· ·Arizona Materials 

Ardaman & Associates, Inc. 

Asarco, LLC. 

Austin Powder Company 

B & S Trucking Company, Inc. 

B & W Resources, Inc. 

Banner Blue Coal Company 

Barrick Goldstrike Mines, Inc. 

Barrick Turquoise Ridge, Inc. 

Barton Mines Company, LLC. 

Basic Materials Corporation 

Bill Smith Sand and Gravel 

Black Energy, Inc. 

Blue Haven Energy, Inc. 

BMC Aggregates, LC 

Bonita Steel Builders, Inc. 

Bo\Vie Resources, LLC. 

Brody Mining, LLC. 

Brooks Run Mining Company, LLC. 

Brooks Run Mining Company, LLC. 

C & P Sand & Gravel, Inc. 

Carbo Ceramics, Inc. 

Casella Construction Inc. 

Cedar Creek Coal, LLC. 

Cedar Lake Sand & Gravel Co. 

Cemex, Inc. 

City Stone, LLC. 

Climax Molybdenum Company 

Coal Country Mining, Inc. 

Coal Haulers, Inc. 

2010 Index 1 

WEST 2010-393-M 

SE. 2010-258-M 

WEV A 2009-1892 

CENT 2010-50-M 

PENN 2010-108 

KENT 2009-1507 

SE 2010-852-M 

WEVA 2010-267 

· WEV A 2006-654 

WEV A 2006-654 

WEST 2010-671 .. M 

SE 2010-178-M 

WEST 2009-1124-M 

CENT 2010-316-M 

KENT 2011-161 

KENT 2010-1080 

VA 2009-438 

WEST 2010-637-M 

WEST 2010-696-M 

YORK 2010-159M 

CENT 2010-392-M 

LAKE 2010-501-M 

KENT 2010-1197 

WEVA 2010-904 

CENT 2010-390-M 

WEST 2010-542-M 

WEST 2009-1203 

WEV A 2009-1445 

WEV A 2009-1880 

WEVA 2010-1152 

CENT 2010-435-M 

SE 2010-151-M 

YORK 2010~118-M 

VA 2009-378 

LAKE 2009-265-M 

SE 2010-426-M 

LAKE 2010-301-M 

WEST 2010-1072-M 

WEVA 2010-918 · 

WEV A 2009-1673 

Pg. 515 

Pg. 504 

· Pg. 261 

·pg, 23 

·Pg. 840 

·pg. 5 

Pg. 1604 

Pg. 1249 

Pg. 1634 

Pg. 1639 

Pg. 1091 

Pg. 837 

Pg. 508 

Pg. 1128 

Pg. 1631 

Pg. 1627 

Pg. 68 

Pg. 881 

Pg. 853 

Pg. 293 

Pg; 794 

Pg. 1162 

Pg.1106 

Pg. · 834 

Pg. 784 

Pg. 878 

Pg. 512 

Pg. 537 

Pg. 116 

Pg. 860 

Pg. 470 

Pg. 849 

Pg. 1134 

Pg. 257 

Pg. 49 

· Pg. 458 

Pg; 497 

Pg. 1137 

Pg. 1566 

Pg. 268 
02-02-2010 

04-26-2010 

08-03-2010 

07-14-2010 

11-16-2010 

05-06-2010 

11-24-2010 

12-14-2010 

04-27-2010 

12-14-2010 

06-30-2010 

07-14-2010 

12-14-2010 

07-29-2010 

09~15-2010 

12-14-2010 

01-25-2010 

07-22-2010 

09-28-2010 

12-15-2010 

10-13-2010 

06'."30-2010 

12-10-2010 

12-14-2010 

06-30-2010 

08.Jl-2010 

09-14-2010 

01-28-2010 

01-25-2010 .· 

12-02-2010 

09-09-2010 

06-30-2010 

07-22-2010 

11;..22-2010 

04-27-2010 

06-10-2010 

10-2202010 

09-07-2010 

01-20-2010 

03-05-2010 

12-17-2010 

12-17-2010 

05-05-2010 

08-24-2010 

01-12-2010 

Coal River Mining, LLC. 

Craig's Operated Equipment 

Crawford Lime and Material, fuc. 

C. S. & S. Coal Corporation 

Culp & Son, LP 

Cumberland Coal Resources, LP 

Custom Crushing fudustries, Inc. 

D & H Quarry, Inc. 

Dix River Stone· 

Dittrich Mechanical & Fabrication, Inc. 

DJ Drilling and Blasting, fuc. 

Dodge Hill Mining Company, LLC. 

Dodge Hill Mining Company, LLC. 

Dolezal Sand & Gravel 

Double Bonus Coal Company 

DMC Mining Services 

·· Drum Sand & Gravel, fuc. 

Dunlap Stone, fuc. 

Dynamic Energy, Inc. 

East Tennessee Zinc Company 

Eastern Associated Coal Corp. 

Elcon Construction, Inc. 

Elk Run Coal Company 

Elk Run Coal Company 

·· Enterprise Mining Company, LLC. 

E.S. Stone and Structure, fuc. 

Essroc Cement·Corporation 

F & G Resources, LLC. 

Frasure Creek Mining, LLC. 

Freedom Energy Mining Company 

Frost Crushed Stone Company 

General Chemical (Soda Ash) Partners 

Genesis, fuc. 

Giant Cement Holding Company 

Glacier Stone Supply, LLC. 

Hanson Aggregates Arizona, Inc. 

Harvey Trucking, Inc. 

Hawaiian Cement Maui/Concrete & Agg. Div. 

Higgins Stone Company, Inc. 

Highland Mining Company 

Highland Mining Company 

Highland Mining Company 

Imerys Clay, fuc. 

James Hamilton Construction 

J. S.Redpath Corporation 

2010 Index. 2 

WEVA 2006-125-R 

WEST 2009-1273-M 

CENT 2010-177-M 

VA 2010-51 

.CENT2011-16-M 

PENN 2008-51-R 

WEST 2011-98-M 

SE 2010'."1223-M 

KENT 2009-1299-M 

LAKE 2010-407-M 

SE 2009-807-M 

KENT 2010-197 

KENT2010-197 

CENT 2010-138-M 

WEV A 2009-1759 

WEST 2010-1888-M 

CENT 2009-833-M 

SE 2009-750-M 

WEV A 2007-448-R 

SE 2001-177-M 

WEVA 2007-335· 

WEST 2009-1204-M 

WEV A 2009-1738 

WEVA 2009-511· 

KENT 2009-1409 

WEST 2010-149-M 

LAKE 2010-598-M 

KENT 2009-1076 

WEVA2010-90 

KENT 2010-174 

CENT 2010-105-M 

WEST 2009-1201-M 

WEST 2009-1098-M 

· SE 2009-65-M 

WEST 2010-630-M 

WEST 2010-573-M 

WEV A2010-225 

WEST 2010-496-M 

CENT 2009-179-M 

WEV A 2009-688 

WEV A 2009-688 

WEV A 2009•689 

SE 2009-717-M 

CENT 2010-150-M 

WEST 2010-93-M 

Pg. 8 

Pg. 26 

Pg. 80 

Pg. 75 

Pg. 154 

Pg. 44 

Pg. 156 

Pg. 160 

Pg. 30 

Pg. 159 

Pg. 52 

Pg. 75 

Pg. 159. 

Pg.· 79 

Pg. 115. 

Pg. 161. 

Pg. 3' 

Pg. 77· 

Pg. 116: 

Pg. 162'. 

Pg. 118~ 

Pg. 53• 

Pg. 158' 

Pg. l61l 

Pg. 52: 

.Pg. 87, 

Pg. 112~ 

Pg. 7( 

Pg. 5~ 

Pg. 157~ 

Pg. 110~ 

Pg. 531 

Pg. 77( 

Pg. 155~ 

Pg. 29C 

Pg .. 483 

Pg. 1245 

Pg. 1102 

Pg. 33 

Pg. 251 

Pg. 1659 

Pg. 1664 

Pg. 435 

Pg. 826 

Pg. 15 
08~13-2010 

06:..23-2010 

10-06-2010 

01-27-2010 

09-14-2010 

06-23-2010 

04-27-2010 

06-30-2010 

11-24-2010 

12-03-2010 

10.:.21-2010 

07-02-2010 

06-10-2010 

08-30-2010 

01-12-2010 

10-21-2010 

12-29-2010 

09-15-2010 

08-31-2010 

07-22-2010 

10-06-2010 

04-27-2010 

07-27-2010 

09-28-2010 

06-10-2010 

02-18-2010 

09-01-2010 

12-14-2010 

10-28-2010 

08-30-2010 

07-22-2010 

09-03-2010 

04-27-2010 

10-28-2010 

09-14-2010 

08-30-2010 

04-27-2010 

08-26-2010 

05-11-2010 

12-01-2010 

07-27-2010 

11-16-2010 

01-19-2010 

01-27-2010 

J. S. Redpath Corporation 

John S. Olynick, Inc. 

Joshua Coal Company 

Keokee Mining, LLC. 

Keystone Cement Company 

Knife River Midwest LLC. 

KWV Operations, LLC. 

L & S Construction Corporation 

Lamb Rock 

Lany D. Baumgardner Coal Co. 

· L.G. Everist, Inc. 

Lawrence Pendley, Sec. Labor, MSHA on behalf 

of v. Highland Mining Company 

Lehigh Cement Company 

Lone Star Aggregates Acquisition, LLC. 

Long Branch Energy 

Long Branch Energy 

Long Branch Energy 

M & M Clays, Inc. 

Mach Mining, LLC. 

Mainline Rock and Ballast, Inc. 

Marfork Coal Company 

Martin Marietta Materials, Inc. 

Martin Marietta Materials, Inc. 

· Maybell Enterprises, Inc. 

Miles Sand & Gravel Company 

Mingo Logan Coal Company 

Mosaic Fertilizer, LLC. 

Mosaic Potash Carlsbad Inc. 

Musser Engineering, Inc. &PBS Coals, Inc. 

Naselle Rock & Asphalt Company 

National Lime and Stone Company 

Nelson Quarries, Inc. 

Newtown Energy, Inc. 

Oak Grove Resources, LLC. 

Oak Grove· Resources, LLC. 

Ohio County Coal Company 

The Olen Corporation 

Onsite Krushing Company 

Orchard Coal Company, et al. 

Pacific Power & Light Company 

Pan American Electric, Inc. 

Parker-Northwest Paving Co. 

Paulson Rock Products 

Performance Coal Company 

2010 Index3 

WEST 2010-516-M 

.· LAKE 2010-242-M 

CENT 2009-602 

VA 2009"'.269 

PENN 2010-172-M 

CENT 2010-291-M 

WEVA 2009-1038 

LAKE 2010-332-M 

WEST 2011-97-M 

PENN 201 O-J.55 

CENT 2010"'.673-M 

KENT 2007-265-D 

PENN 2010-256-M 

CENT 2010.:.346-M 

WEVA 2009-1982 

WEV A 2010-992 

WEV A 2010-992 

SE 2010-744-M 

LAKE 2010-714 

CENT 2009"'.757-M 

WEVA 2010-196 

SE 2010-394-M 

. VA 2010-338-M 

WEST 2010-989-M 

WEST 2010-465-M 

WEVA 2009-1107 

SE 2010-712-M 

CENT 2010-1226-M 

PENN 2004-152 

WEST 2010-1389-M 

LAKE 12010-158-M 

CENT 2009-663-M 

WEVA 2010-590 

SE · 2009-812 

SE 2010~788 

KENT 2010-1122 

LAKE 2010-322-M 

WEST 2010-698-M 

PENN 2010-339-E 

WEST 2010-1625:..M 

CENT 2010-151-M 

WEST 2010-1074-M 

LAKE 2010-72-M 

WEV A 2009-370 

Pg. 807 

Pg. 493 

Pg. 1181 

Pg. 64 

Pg. 1140 

Pg. 490 

Pg. 285 

Pg. 525 

Pg. 1560 

Pg. 1581 

Pg. 1224 

Pg. 745 

Pg. 473 

.Pg. 866 

Pg. 19 

Pg. 1220 

Pg. 1690 

Pg. 1144 

Pg. 870 

Pg. 761 

Pg. 1185 

Pg. 278 

Pg. 781 

Pg. 1165 

Pg. 480 

Pg. 109 

Pg. 1095 

Pg. 1592 

Pg. 1257 

Pg. 857 

Pg. 767 

Pg. 1098 

Pg. 287 

Pg. 1253 

Pg. 1147 

Pg. 846 

Pg. 281 

Pg. 843 

Pg~ 454 

Pg. 1570 

Pg. 778 · 

Pg. 1550 

.Pg. 30 

Pg. 72 
06-04-2010 Performance Coal Company WEVA 2010-195 Pg .. 466 

08-17-2010 Performance Coal Company WEV A 2010-1190-R Pg. 811 

10-20-2010 Performance Coal Company WEV A 2007-460 Pg. 1212 

09-09-2010 Petra Materials CENT 2008-735-M Pg. 1113 

06-23-2010 Phillips Companies LAKE 2010-478-M Pg. 501 

01-12-2010 Pinky's Aggregates, Inc. CENT 2009-848-M Pg. 1 

07-29-2010 Pinky's Aggregates, Inc. CENT 2009-848-M Pg. 790 

11-10-2010 Pinky's Aggregates, Inc. CENT 2009-848-M Pg. 1543 

Q6..;16-2010 Pritchard Mining Company, Inc. WEV A 2009-1708 Pg. 486 

12-14-2010 Quality Sand & Gravel ·WEST 2010-1646-M Pg. 1611 

07-29-2010 · Quikrete Companies, Inc. CENT 2010-448-M Pg. 801 

01-26-2010 R & K Coal Company; Inc~ PENN 2008-290 .. Pg. 61 

06-30-2010 Ray County Stone Producers, LLC. CENT 2010-88-M Pg. 518 

09-14-2010 Richard C. Budine YORK2010-225-M Pg. 1122 

02-18-2010 Rockhouse Creek Development, LLC. WEVA 2009-516 Pg. 101 

06-03-2010 Rockh:ouse Creek Development LLC. WEVA2010-648 Pg. 462 

12-01-2010 Rockspring Development WEV A 2010-865 Pg. 1573 

06-10-2010 Rocky Point Rock, lnc. SE 2010-396-M Pg. 476 

08-24-2010 Rogers Group, fuc. KENT 2010-274 Pg. 830 

01-12-2010 Rogers Group, Inc. KENT 2009-1552 Pg. 8 

08..;30-2010 ··Rome Construction, Inc. YORK 2010-71-M Pg. 863 

12-03-2010 Sandpoint Sand & Gravel, Inc. WEST 2010-766-M Pg. 1584 

01-12-2010 Seymour Stone PENN 2010-51-M Pg. 12 

09-15-2010 Sheiwin Alumina, LP CENT 2009-760-M .·Pg. 1150 

09-14-2010 Sierra Rock Products WEST 2010-1052-M Pg. 1131 

01-25-2010 Specialty Rock Products, Inc. KENT 2009-1289-M Pg. 41 

09-30-2010 Sumitomo Metal Mining Pogo, LLC. WEST 2010-940-M Pg. 1178 

05-06-2010 Swinson Materials, Inc. LAKE 201().;.355~M Pg. 438 

04-27-2010 , Table Rock Asphalt Construction, Inc. CENT 2010-444-M Pg. 297 

04-01-2010 Tarmac America, LLC. SE 2010-538-M Pg. 254 

07-:-27-2010 Town Of Bethel YORK 2010-226-M Pg. 787 

10-20-2010 Trivette Trucking KENT 2010-1062 Pg. 1209 

07-19-2010 United Rock Products Corp. WEST 2010-308-M Pg. 757 

09-24-2010 United Salt Corporation CENT 2010-635-M Pg. 1159 

07-22-2010 Vulcan Construction Materials, LP SE 2010-173-M Pg. 764 

09-10-2010 Vulcan Construction Materials, LP SE 2010-819-M Pg. 11 lS 

11-24-2010 Washington Rock Quarries, Inc. WEST 2010-1706-M Pg. 1551 

04-27-2010 Wendling Quarries, Inc. CENT 2009'" 743-M Pg. 271 

02-18-2010 West Virginia Mine Power, Inc. WEV A 2009-527 Pg. 10~ 

02-18-2010 White Buck Coal Company WEV A 2009-1314 Pg. 112 

04-27-2010 White County Coal, LLC. LAKE 2009-588 Pg. 27~ 

01-25-2010 Williams & Sons Slate & Tile, lnc. PENN 2006-75'-M Pg. 5'i 

01-25-2010 WKJ Contrator' s Inc. KENT 2010-73 ' Pg. 4~ 

10-21-2010 Wolf Run Mining Company WEV A 2009-804 Pg. 122~ 

12-22-2010 Wolf Run Mining Company WEV A 2006-853 Pg. 166S 

2010IndexA 
01-13-2010 XMV, Inc. WEV A 2008-1783 Pg. 27 

ADMINISTRATIVE LAW JUDGE DECISIONS 

05-04~2010 Abundance Coal, Inc. EAJ 2010-01 Pg. 541 

09-28-2010 American Coal Company LAKE 2010-408-R Pg. 1387 

03-23-2010 Amex Construction, Inc. WEST 2009-693-M Pg. 347 

05-14-2010 Arch of Wyoming, LLC. WEST 2008-1585 Pg. 568 

08-10-2010 Baker Rock Crushing Company WEST 2008-936-M Pg. 968 

08-26-2010 Big Ridge, Inc. LAKE 2009-377 Pg. 1020 

03-25-2010 Black Beauty Coal Company LAKE 2009-477 . Pg. 356 

06-18-2010 Black Beauty Coal Company LAKE 2009-223 Pg. 673 

12-29-2010 Black Beauty Coal Company LAKE 2009-36 Pg. 1905 

01-20-2010 Black Castle Mining Co. WEVA 2006-891-R Pg. 132 

05-14-2010 Blue Diamond Coal Company KENT 2008-14 Pg. 581 

10-18-2010 Blue Mountain Production Company SE 2009-68-M · Pg. 1464 

11-12~2010 Caballo Coal Company, LLC. WEST 2009-536 Pg. 1736 

12-10-2010 Cargill Deicing Technology LAKE 2009-675-M Pg. 1848 

12-27-2010 Cemex, Inc. KENT 2008-1592-M Pg. 1897 

08-13-2010 Charles Scott Howard v. 

Cumberland River Coal Company KENT 2008-736-D Pg. 983 

05-18-2010 Christopher Abeyta, Sec. Labor o/b/o 

v. San Juan Coal Company & its successors CENT 2010-584-D Pg. 594 

03-09-2010 Claysville Quany SE 2009-71-M Pg.· 321 

12-23-2010 Clintwood Elkhorn Mining Company KENT 2011-53-R Pg.1880 

06-18-2010 Coal River Mining, LLC. (On remand) WEV A 2006-125-R Pg. 685 

05-13-2010 Consol Pennsylvania Coal Company PENN 2007-151 Pg. 545 

07-23-2010 Consolidation Coal Company WEVA 2009-371 Pg. 930 

08-16-2010 Consolidation Coal Company VA 2010-489-E Pg. 995 

11-19-2010 Dix River Stone, Inc. KENT 2009-397-M Pg. 1779 

07-02-2010 Douglas Pilon, Sec. Labor, o/b/o LAKE 2010-766-D Pg. 885 

v. ISP Minerals, Inc. 

07-19-2010 Eugene Badonie v. Peabody Western Coal Co. WEST 2009-1342-D Pg. 917 

07-21-2010 Eureka Rock, LLC. WEST 2009-137-M Pg. 922 

12-02-2010 Freedom Energy Mining Company KENT 2007-433-R Pg. 1809 

07-22-2010 General Drilling, Div. Of GE KENT 2007-508 Pg. 927 

09-14-2010 German Alvarez v. Loudoun Quarries, et al. VA 2010-266-DM Pg. 1346 

02-18-2010 Gilbert Development Corporation WEST 2008-201-M Pg. 185 

11-19-2010 Granite Rock Company WEST 2008-979-M Pg. 1792 

12-16-2010 Highland Mining Company KENT 2008-1083 Pg. 1859 

06-17-2010 Independence Coal Company, Inc. WEVA 2009-1067 Pg. 654 

11-18-2010 Jeppesen Gravel CENT 2009-438-M Pg. 1749 

02-22-2010 Jose Chaparro. Sec. Labor o/b/o v. 

Comunidad Agricola Bianchi, Inc. SE 2010-295-DM Pg. 206 

2010 Index 5 
03-10-2010 Kevin Baird,'Sec. Labor o/b/o 

v. PCS Phosphate Company, Inc. SE 2010-74-DM Pg. 32. 

09-14-2010 Khani Company, Inc. CENT 2009-444-M Pg. 133' 

07-07-2010 Knife River Corporation, Northwest WEST 2010-1319-RM Pg .91: 

11-17-2010 Knight Hawk Coal, LLC. LAKE 2009-523 Pg. 174. 

09·09-2010 Knox Creek Coal Corporation VA 2008-400 Pg.130 

12-08-2010 LaFarge Midwest, Inc. CENT 2009-344-M Pg. 183: 

03-02-2010 Lakeview Rock Products, me. WEST 2009-858-M Pg. 30. 

08-12-2010 Lawrence Pendley, Sec. Labor o/b/o 

v. Highland Mining Company KENT 2007-265-D Pg. 98 

09 .. 03-2010 Lehigh Cement Company, Inc. SE 2009-991-M Pg. 130. 

08-04-2010 Little Buck Coal Company PENN 2009-12 Pg. 961 

Ol.;28-2010 Mach Mining, LLC. LAKE 2010-1-R Pg. 14! 

02-24-2010 Mach Mining, LLC. LAKE 2009-323-R Pg. 21: 

03-10-2010 Mach Mining; LLC. LAKE 2008-184 Pg. 32: 

06-30-2010 Manalapan Mining Co., Inc. KENT 2008-737 Pg. 691 

09-27-2010 Mach Mining, LLC. LAKE 2009-324-R Pg. 137: 

09-28-2010 Michael R. Lee v. Genesis, Inc. WEST 2009-1063-DM Pg. 139'. 

09-29-2010 Mountainside Coal Company SE 2008-356 Pg. 140~ 

10-07-2010 Nelson Quarries, Inc. CENT 2009-663-M Pg. 142: 

04-14-2010 Newmont USA Limited WEST 2007-743-RM Pg. 39: 

11 .. 08-2010 Newtown Energy, Inc. WEV A 2009-173 Pg. 1731 

02-12-2010 Oak Grove Resources, LLC. SE 2010-350-R Pg. 16~ 

02-25"."2010 Ohio County Coal Company, LLC. KENT 2007-273 Pg. 221 

il-18-2010 Oil-Dri Production Company SE 2009-293-M Pg. 176: 

12-16-2010 Okey Sartin, Sec. Labor o/b/o 

v. Kiah Creek Transport, LLC. WEVA 2010-1004-D Pg. 1861 

04.;01-2010 Orchard Coal Company, et al. PENN 2010-339-E Pg. 37: 

09-29-2010 Parkstone CENT 2007-273-M Pg. 140< 

02-25-2010 PC Sand & Gravel YORK2008-104-M Pg. 23! 

07-06-2010 Peabody Midwest Mining, LLC. LAKE 2010-769-E Pg. 89~ 

09-17-2010 Performance Coal Company WEVA 2010-1190-R Pg. 135~ 

11-22-2010 Performance Coal Company WEV A 2008-1825 Pg. 179~ 

05-21-2010 Prairie State Generating Co. LAKE 2009-711-R Pg. 60~ 

04-21-2010 Reading Anthracite Company PENN 2007-171 Pg. 39~ 

06-01-2010 Rickey Joe Strattis, Sec. Labor o/b/o 

v. ICG Beckley, LLC. WEVA2010-991-D Pg. 61.! 

06-03-2010 Rickey foe Strattis, Sec. Labor o/b/o 

v. ICG Beckley, LLC. (Amended). WEVA 2010-991-D Pg. 61S 

06-11-2010 Rickey Lee Campbell, Sec. Labor o/b/o 

v. Marfork Coal Company, Inc. · WEVA 2010-1030-D Pg. 621 

03-05-2010 R S & W Coal Company, Inc. PENN 2010-259-R Pg. 311 

09-28-2010 R S & W Coal Company PENN 2010-523-R Pg. 1403 

01-05-2010 SCP Investments, LLC. (on remand) SE 2009-148-M Pg. llS 

09·-21-2010 Sequoia Energy, LLC. KENT 2009-1059 Pg. 1361 

2010 Index 6 
06-29-2010 

06-17-2010 

06-23-2010 

10-06-2010 

08-31-2010 

10-25-2010 

07;.26-2010 

06-17-2010 

10-18-2010 

01-26-2010 

11-03-2010 

11-08-2010 

09-13-2010 

Shelton Brothers Enterprises (amended DAS) 

Spencer Quarries; Inc. 

Spencer Quarries, Inc. (Correcting Order) 

Sumitomo Metal Mining Pogo, LLC. 

Thomas Bewak v. Alaska Mechanical Inc. 

Three Way Portable Crushing, Inc. 

Timothy S .. Sheffer v. Advent Mining, LLC. 

Twentymile Coal Company 

Twentymile Coal Company 

United Taconite, LLC. 

U.S. Silica Company 

William Metz v. Carmeuse Lime, Inc. 

Wolf Run Mining Company 

ADMINISTRATIVE LAW JUDGE ORDERS 

03-10-2010 Abundance Coal, Inc. 

06-30-2010 Alaska Mechanical Inc. 

03-17-2010 Alex Energy, Inc. 

04-06-2010 Bill Simola emp. by United Taconite LLC. 

05-07-2010 Bill Simola emp. by United Taconite LLC. 

01-22-2010 Billy Brannon v. Panther Mining, LLC. 

06-07-2010 Black Beauty Coal Company 

09-17-2010 Blue Diamond Coal Company 

06-13-2010 Brody Mining, LLC. 

09-13-2010 Carmeuse Lime & Stone 

12-08-2010 Charles Scott Howard v. 

·Cumberland River Coal Company 

01-29-2010 Claysville Quarry 

07-12-2010 Consol Pennsylvania Coal Co. 

06-28-2010 DJB Welding Corporation 

09-01-2010 Freedom Energy Mining Company 

10-27-2010 Harry Lee Beckman, Sec. Labor o/b/o 

v. Mettiki Coal (WV), LLC. 

04-14-2010 Jim Walter Resources, Inc. 

06-15-2010 Jose A. Chaparro, Sec. Labor o/b/o . 

v. Comunidad Agricola Bianchi, Inc. 

10-15-2010 Jose A. Chaparro, Sec. Labor o/b/o 

v. Comunidad Agricola Bianchi, Inc. 

07-02-2010 Justin Nagel v. Newmont USA Limited 

10-27-2010 Justin Nagel v. Newmont USA Limited 

02-12-2010 Knox Creek Coal Corporation 

07-13-2010 Knox Creek Coal Corporation 

06/15/2010 Maple Coal Company 

2010 Index 7 

KENT 2008-1407 

CENT 2009-334-M 

CENT 2009-334-M 

WEST 2010-429-RM 

WEST 2008-161-DM 

WEST 2008-1138-M 

KENT 2010-15-D 

WEST 2008-787-R 

WEST 2008-788-R 

LAKE 2008-93-RM 

SE 2009-712-M 

PENN 2009-541-DM 

WEV A 2007-600 

EAJ 2010-01 

WEST 2008-1582-M 

WEV A 2007-742 

LAKE 2010-128-M 

LAKE 2010-128-M 

KENT 2009-302-D 

LAKE 2008-327 

KENT 2008-592 

WEV A 2009-1445 

KENT 2009-949-M 

KENT 2008-736-D 

SE 2008-71-M 

PENN 2009-803 

YORK 2009-89-M 

KENT 2010-1352-R 

WEVA 2009-1526-D 

SE 2008-124-R 

SE 2010-295-DM 

SE 2010-434-DM 

WEST 2010-18-DM 

WEST 2010-464-DM 

VA 2009-81-R 

VA 2008-400 

WEVA 2009-1440 

Pg. 688 

Pg. 644 

Pg. 652 

Pg. 1420 

Pg. 1044 

Pg. 1486 

Pg. 951 

Pg. 628 

Pg. 1431 

Pg. 146 

Pg. 1699 

Pg. 1710 

Pg. 1317 

Pg. 415 

Pg. 738 

Pg. 419 

Pg. 421 

Pg. 707 

Pg. 239 

Pg. 714 

Pg. 1511 

Pg. 718 

Pg. 1509 

Pg. 1923 

Pg. 242 

Pg. 1071 

Pg. 728 

Pg. 1495 

Pg. 1515 

Pg. 428 

Pg. 721 

Pg. 1517 

Pg. 1061 

Pg. 1520 

Pg. 245 

Pg. 1074 

Pg. 726 
11-24-2010 

08-19~2010 

()4..15-2010 

05·26-2010 

06-02-2010 

07~19-2010 

04·09-2010 

Marfork Coal Company 

Oak Giove Resources, LLC. 

Orchard Coal Company, et al. 

Orica USA, Inc. 

· Performance Coal Company 

Pinnacle Mining Company, LLC 

Spartan Mining Company 

2010 Irtdex 8 

G:O' U.S. GOVERNMENT PRINTING OFFICE: 2011-386-038/83806 

WEVA 2009-1421 

SE 2009-261-R 

PENN 2010-339-E 

YORK 2007-74-RM 

WEV A 2007-460 

WEV A2009-1123 

WEV A 2007-517-R 

Pg.1919 

Pg. 1081 

Pg. 431 

Pg. 709 

Pg. 742 

Pg. 1079 

Pg. ·425