APRIL 2012 

TABLE OF CONTENTS 

COMMISSION DECISIONS AND ORDERS 

4-25-2012 ERNEST MATNEY, employed by VA 2008-215 Page 777
 

 KNOX CREEK COAL CORPORATION 

ADMINISTRATIVE LAW JUDGE DECISIONS 

4-02-2012 HOPKINS COUNTY COAL, LLC KENT 2009-820-R Page 789
 

COMAPANY, INC. and ARMSTRONG
 

FABRICATORS INC. 

4-03-2012 SEC. OF LABOR O/B/O TRAVIS KENT 2010-1580-D Page 808
 

CAUDILL V. CAM MINING 

4-03-2012 LEFT FORK MINING CO., INC. KENT 2012-443-R Page 832
 

4-04-2012 BIG RIDGE, INC. LAKE 2011-699-R Page 845
 

4-19-2012 NEWTOWN ENERGY, INC. WEVA 2009-280 Page 857
 

4-20-2012 HIGHLAND MINING COMPANY, LLC KENT 2009-167 Page 873
 

4-20-2012 SEC. OF LABOR O/B/O REUBEN KENT 2012-655-D Page 894
 

SHEMWELL V. ARMSTRONG COAL
 

ADMINISTRATIVE LAW JUDGE ORDERS 

4-04-2012 POCAHONTAS COAL COMPANY, LLC WEVA 2008-1834 Page 903
 

 BIG LAUREL MINING CORPORATION
 

BIG LAUREL MINING CORPORATION
 

4-06-2012 VOSS SAND WORKS, INC. LAKE 2008-422-M Page 906
 

4-12-2012 OAK GROVE RESOURCES, LLC SE 2011-167 Page 915
 

4-13-2012 STEPHEN M. REASOR, employed by VA 2011-678 Page 920
 

4-13-2012 ROBERT J. SILCOX, employed by VA 2011-680 Page 926
 

4-20-2012 JIM WALTER RESOURCES, INC. SE 2010-581-R Page 932
 

i
 
4-23-2012 JIM WALTER RESOURCES, INC. SE 2010-581-R Page 938
 

BIG LAUREL MINING CORPORATION
 

BIG LAUREL MINING CORPORATION
 

4-25-2012 CAM MINING, LLC KENT 2009-955 Page 940
 

4-27-2012 STEPHEN M. REASOR, employed by VA 2011-678 Page 943
 

4-27-2012 ROBERT J. SILCOX, employed by VA 2011-680 Page 947
 

ii 
Review was granted in the following case during the month of April 2012: 

Secretary of Labor, MSHA v. Armstrong Coal Company, Docket No. KENT 23010-1156. (Judge 

Andrews, March 15, 2012) 

Review was denied in the following cases during the month of April 2012: 

Secretary of Labor, MSHA v. Oak Grove Resources, LLC., Docket No. SE 2010-1236. (Judge 

Moran, March 7, 2012) 

Secretary of Labor, MSHA v. Palmer Coking Coal Company, LLP, Docket No. WEST 2008-934-

M, et al. (Judge Barbour, March 12, 2012) 

Secretary of Labor, MSHA v. Northshore Mining Company, Docket No. LAKE 2010-612-M. 

(Judge Harner, March 20, 2012) 

iii 

COMMISSION DECISIONS AND ORDERS
 
34 FMSHRC Page 776
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW
 

SUITE 9500
 

WASHINGTON, DC 20001
 

April 25, 2012 

SECRETARY OF LABOR,

 MINE SAFETY AND HEALTH

 :

 :

 ADMINISTRATION (MSHA) :

 : 

v. : Docket No. VA 2008-215

 : 

ERNEST MATNEY, employed by KNOX 

CREEK COAL CORPORATION

 :

 : 

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

DECISION 

BY THE COMMISSION: 

In this proceeding arising under the Federal Mine Safety and Health Act of 1977, 

30 U.S.C. § 801 et seq. (2006) (“Mine Act” or “Act”), Administrative Law Judge Jerold 

Feldman concluded that Ernest Matney (“Matney”) was not personally liable under section 

110(c) of the Mine Act, 30 U.S.C. § 820(c),1

 for failing to conduct an adequate preshift 

1 Section 110(c) of the Mine Act provides: 

Whenever a corporate operator violates a mandatory health or 

safety standard or knowingly violates or fails or refuses to comply 

with any order issued under [this Act] or any order incorporated in 

a final decision issued under [this Act], except an order 

incorporated in a decision issued under subsection (a) . . . or 

section 105(c) . . . , any director, officer, or agent of such 

corporation who knowingly authorized, ordered, or carried out 

such violation, failure, or refusal shall be subject to the same civil 

penalties, fines, and imprisonment that may be imposed upon a 

person under subsections (a) and (d). 

30 U.S.C. § 820(c). 

34 FMSHRC Page 777
examination in violation of 30 C.F.R. § 75.360(a)(1)2

 and failing to protect personnel from roof 

and/or rib falls in violation of 30 C.F.R. § 75.202(a).3 31 FMSHRC 1422, 1424, 1438 (Dec. 

2009) (ALJ). The Commission granted the Secretary of Labor’s petition for discretionary review 

challenging the judge’s decision. For the reasons that follow, we vacate the judge’s decision, 

reverse his conclusion that Matney is not liable under section 110(c) of the Mine Act, and 

remand for assessment of a penalty. 

I. 

Factual and Procedural Background 

Knox Creek Coal Corporation (“Knox Creek”) operates the Tiller No. 1 Mine, an 

underground coal mine in Tazewell County, Virginia. 31 FMSHRC at 1425. At the time of the 

hearing, the mine operated two production shifts and one maintenance shift in three sections. 

K.C. Post-Hearing Br. at 3; Tr. 260-61. The area at issue in this proceeding is the 005 MMU, 

also referred to as the No. 3 section. 31 FMSHRC at 1425. The area consists of the No. 3 and 

the No. 4 entries, and the crosscut between these entries in the general vicinity of the area 

located inby survey stations 8050 to 8045. Id.; G. Ex. 7 (attached to the judge’s decision and 

attached to this decision as Appendix 1 (“App. 1”)). In this area, Knox Creek utilized the room 

and pillar method of mining. 31 FMSHRC at 1425. The relevant provisions of the roof control 

plan limited the entry widths to 20 feet. Id. Roof bolts were required: four across between the 

ribs, on four-foot centers. Id. Each roof bolt is driven into the roof through a six-inch, 

washer-like bearing plate that compresses a larger 10 to 12 inch “pizza pan” plate that supports 

the draw rock in the surrounding area of the bolt. Id. 

2 30 C.F.R. § 75.360(a)(1) provides in pertinent part: 

[A] certified person designated by the operator must make a 

preshift examination within 3 hours preceding the beginning of any 

8-hour interval during which any person is scheduled to work or 

travel underground. No person other than certified examiners may 

enter or remain in any underground area unless a preshift 

examination has been completed for the established 8-hour 

interval. 

3 30 C.F.R. § 75.202(a) states: 

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. 

34 FMSHRC Page 778
 

Knox Creek originally mined the area in the vicinity of survey stations 8045 and 8050 

approximately three to four months prior to the November 7, 2006, inspection at issue. Id. 

When this area was initially mined, there was a rock fall in the No. 3 entry just outby survey 

station 8045 that required the area to be dangered-off with two rows of cribs. Id.; see App. 1. 

After this area was mined and rock dusted, it remained idle for several months until November 

2006, when battery chargers for scoops were moved into the area in preparation for further 

development inby. Id. 

On Sunday evening, November 5, and/or Monday morning, November 6, 2006, two 

scoop battery chargers were placed in the section, one in the No. 3 entry and the other in the 

crosscut outby the 8050 survey station. Id. at 1426. The scoops operating from these battery 

chargers are approximately 10 feet wide and 25 feet long. Id. The scoop and charging station in 

the No. 3 entry were designated as No. 1, and the scoop and charging station in the crosscut were 

designated as No. 2. Id.; see App. 1. 

After the battery chargers were placed in the No. 3 entry and crosscut, at least four 

preshift and onshift examinations of the section were conducted during the relevant time period. 

31 FMSHRC at 1426. Ernest Matney, the maintenance shift section foreman, conducted an 

onshift and preshift examination beginning at 4:13 a.m. on Monday, November 6. Id. 

Christopher Stiltner, the day shift section foreman, conducted an onshift and preshift 

examination during the November 6 day shift following Matney’s maintenance shift. Id.; Tr. 

277. Charles Riordan, the evening or second production shift section foreman, conducted an 

onshift and preshift examination on the evening of November 6. Id.; Tr. 221. Finally, in the 

early morning hours of November 7, Matney conducted his November 7 combined onshift and 

preshift examination that began at 4:15 a.m., which he completed 36 minutes later at 4:51 a.m. 

Id. at 1426-27. None of the preshift or onshift examinations noted any hazardous roof 

conditions. Id. at 1427. 

During his November 7 preshift examination, Matney checked eight headers. Id. After 

returning to his crew at the continuous miner, Matney traveled down to the power center, then to 

the belt drive (located in a parallel crosscut, two crosscuts over from the crosscut at issue), and 

ultimately to the No. 1 charger in the No. 3 entry, where he initialed the date board at 4:39 a.m. 

Id.; Tr. 464-65. Matney stated that he observed the intersection in the vicinity of survey station 

8045 from the back of the No. 1 scoop that was parked next to the No. 1 charger. 31 FMSHRC 

at 1427. However, he did not walk through the intersection in the vicinity of survey station 

8045, or to the rock fall area. Id. 

The date board at the No. 1 charger was approximately 45 feet away from the survey 

station at 8045. Id. Matney did not note sloughage and compacted material in the intersection of 

the crosscut and No. 3 entry observed by Mine Safety and Health Administration (“MSHA”) 

Inspector Donald Phillips during his inspection several hours later. Id.; see App. 1, Area “C.” 

Day shift foreman Stiltner testified that his crew did not take scoop No. 1 off the charger in the 

No. 3 entry before Phillips inspected the area during the morning of November 7. 31 FMSHRC 

at 1427. Consequently, the judge found that the compacted material on the mine floor 

34 FMSHRC Page 779
 

immediately underneath the corner of the right rib likely existed prior to Matney’s November 7 

preshift examination, as it had likely been caused by contact with the No. 1 scoop. Id. 

After signing the date board in the No. 3 entry, Matney traveled down a crosscut parallel 

to the crosscut where the No. 2 scoop was located. Id. Matney traveled to the belt drive, walked 

the track entry located in the No. 4 entry, and used a mantrip to travel down to the crosscut to the 

vicinity of the No. 2 battery charger. Id.; Tr. 467-68. Matney signed the date board located in 

the crosscut inby survey station 8050 at 4:40 a.m., reflecting that the date board was signed just 

one minute after the date board in the No. 3 entry was signed.4 31 FMSHRC at 1427; see App. 

1, Area “E.” Matney testified that he observed the intersection at survey station 8045 from the 

date board at the No. 2 battery charger. Id. at 1427-28. The No. 2 scoop was not parked next to 

the charger during Matney’s preshift examination. Id. at 1428. Rather, it was located near the 

disabled continuous miner in the intersection at survey station 8630. Id. 

Similar to his inspection of the roof conditions with his cap light from the first date board 

in the No. 3 entry, Matney testified that he relied on his cap light to view the 8045 intersection 

from the second date board located in the crosscut. Id. The only reference to roof conditions in 

Matney’s written November 7 preshift examination report was the remark “top shaggy.” Id.; 

G. Ex. 10-10. Matney testified that he did not observe any of the adverse roof conditions that 

were subsequently observed by Inspector Phillips five hours later at 10:00 a.m. 31 FMSHRC at 

1428. 

On November 7, Inspector Phillips conducted a quarterly inspection of the mine and 

found numerous hazardous roof conditions in the No. 3 section, including: (1) two sheared roof 

bolts, one in the crosscut inby the intersection of the crosscut and the No. 3 entry and the second 

above the No. 2 scoop battery charger in the crosscut inby survey station 8050; (2) roof cracks 

containing rock dust and loose roof material near survey stations 8045 and 8050; (3) three areas 

of rib sloughage, extending the distance from the ribs to the first row of bolts beyond the plan’s 

permissible limit of 48 inches; and (4) dislodged timbers in one of the cribs used to danger off 

the area where a rock fall had occurred in the No. 3 entry outby the intersection of the crosscut. 

Id. at 1428-31. Phillips found that none of the hazardous conditions was recorded in any of the 

four preshift examination reports immediately preceding the inspection. Id. at 1426-28. 

Inspector Phillips issued Citation No. 7317341 for failure to conduct an adequate preshift 

examination in violation of 30 C.F.R. § 75.360(a)(1). 31 FMSHRC at 1423; G. Ex. 3. Inspector 

Phillips also issued an order for failure to protect personnel from roof and/or rib falls in violation

 of 30 C.F.R. § 75.202(a). 31 FMSHRC at 1423; G. Ex. 4. Pursuant to section 104(d)(1) of the 

Mine Act, 30 U.S.C. § 814(d)(1), Phillips designated both violations as “significant and 

4

 The judge found that the accuracy of the times recorded by Matney were suspect, but 

that Matney’s exam, in its entirety, took 36 minutes to complete, from 4:15 until 4:51 a.m. 

31 FMSHRC at 1427 n.7; G. Ex. 10-10. 

34 FMSHRC Page 780
 

 

 

substantial” (“S&S”)5 and attributable to Knox Creek’s “unwarrantable failure.”6 31 FMSHRC 

at 1431. After a special investigation, MSHA found Maintenance-Shift Foreman Ernest Matney 

to be personally liable under section 110(c) of the Act for both violations, and proposed a total 

civil penalty of $2,700 against him. Id. at 1423. 

Knox Creek conceded that both violations occurred and that both were S&S. Id. 

However, it contested the unwarrantable failure designations. Id. at 1424. Matney contested his 

personal liability under section 110(c). 

In his decision, the judge affirmed the unwarrantable failure designations for both 

violations. Id. at 1432-34. The judge found that “[i]t is clear that virtually all of the elements of 

an unwarrantable failure are manifest in this case.” Id. at 1432. Regarding duration, the judge 

concluded that, due to the fact that the severed shaft of the roof bolt was covered with rock dust, 

the sheared roof bolts occurred when the area was initially mined during the summer of 2006, 

and thus had existed for approximately four months. Id. at 1433. As to the sloughed material 

located along the corner of the right rib inby the intersection of the crosscut in the No. 3 entry, 

the judge found that it had existed for more than one shift because the No. 1 scoop remained on 

the battery charger during the shift preceding Matney’s maintenance shift. Id. 

The judge also determined that the roof conditions were “readily apparent” in a “heavily 

traveled area.” Id. In considering the degree of danger posed by the roof conditions, the judge 

relied in particular on the high degree of danger created by one of the sheared roof bolts located 

at the intersection of entry No. 3 with the crosscut, adjacent to an area that was dangered-off by 

two rows of cribs because of a prior rock fall. Id. The judge reasoned that the location of this 

sheared bolt alone justified an unwarrantable failure finding. Id. The judge also found that 

Knox Creek had been put on notice that greater compliance efforts were necessary given that the 

operator was cited only one week before Phillips’ inspection for inadequate preshift 

examinations.7 Id. The judge concluded that “[t]he long standing nature of these readily 

5

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

§ 814(d)(1), which distinguishes as more serious any violation that “could significantly and 

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

6

 The unwarrantable failure terminology is taken from section 104(d)(1) of the Act, 30 

U.S.C. § 814(d)(1), which establishes more severe sanctions for any violation that is caused by 

“an unwarrantable failure of [an] operator to comply with . . . mandatory health or safety 

standards.” 

7 The parties stipulated that a citation had been issued to Knox Creek on October 31, 

2006, for an allegedly inadequate preshift examination at the 002 MMU. Id. at 1426. To 

terminate this citation, all of Knox Creek’s examiners, including Ernest Matney, Christopher 

Stiltner, and Charles Riordan, the three 005 MMU section foremen, were retrained on preshift 

examinations. Id. The retraining occurred shortly after October 31, 2006, less than one week 

(continued...) 

34 FMSHRC Page 781
apparent hazardous roof conditions, that were repeatedly overlooked during the numerous 

onshift and preshift examinations preceding Phillips’ inspection provide an adequate basis for 

concluding that the roof condition and preshift examination violations . . . are attributable to 

Knox Creek’s unwarrantable failure.” Id. at 1434. 

The judge additionally concluded that Matney was not personally liable under section 

110(c). Id. at 1424. The judge again noted that the collective failures of all of the preshift 

examiners to perform adequate exams provided a sufficient basis for an unwarrantable failure 

determination. Id. at 1436. He found that while Matney’s conduct individually evidenced a 

“high degree of negligence,” it did not amount to a “‘knowing’ violation,” and thus Matney was 

not personally liable under section 110(c). Id. at 1437. He also rejected the Secretary’s 

argument that Matney engaged in intentional misconduct by “deliberately fail[ing] to note a 

hazardous roof condition that was known to him, or, that should have been known to him, during 

his preshift examination.” 31 FMSHRC at 1424. The judge declined to draw an inference from 

the evidence that the area of the sheared roof bolt at the No. 3 entry had previously been cribbed, 

but then intentionally dismantled or accidentally knocked down and not replaced in order to 

allow access by the scoops to the chargers placed in that area the day before Phillips’ inspection. 

Id. at 1424, 1436-38. 

The Secretary sought and the Commission granted review of the judge’s finding that 

Matney is not personally liable under section 110(c). The operator did not seek review of the 

judge’s conclusion that there had been an unwarrantable failure to comply with relevant 

standards. 

II. 

Disposition 

The Secretary argues that the judge erred in disposing of the case against Matney based 

on his finding that no intentional misconduct had occurred, thereby failing to give adequate 

consideration to whether Matney’s undisputed, repeated failures to note or remedy numerous 

hazardous roof conditions otherwise established section 110(c) liability. She argues that the 

judge applied the wrong legal standard by requiring the Secretary to prove that Matney willfully 

violated the cited standard. She also maintains that the judge failed to provide an adequate 

explanation for his conclusion that Matney was not liable under section 110(c). She also 

contends that the judge mischaracterized Matney’s testimony regarding the placement of the 

loose cribs, which undermined his finding of no intentional misconduct. The Secretary urges the 

Commission to vacate the judge’s section 110(c) determination and to remand the case to him for 

further consideration. 

7

(...continued)
 

prior to the issuance of the November 7, 2006, citations at issue. Id.
 

34 FMSHRC Page 782
Matney responds that the judge did not rely solely on an “intentional misconduct” test 

nor find it a prerequisite for section 110(c) liability. In particular, Matney argues that while the 

judge noted that Matney’s preshift examination was inadequate and highly negligent, the judge 

concluded that the foreman’s actions did not rise to the level of aggravated conduct. Matney 

also argues that the judge did not err by failing to explicitly account for his two preshift 

examinations because the record does not establish that all of the violative conditions cited by 

the inspector were present at the time of the first examination on November 6. Matney also 

contends that whether or not the judge mischaracterized his testimony regarding the placement 

of the loose cribs, the judge’s conclusion that Matney was not liable under section 110(c) must 

be affirmed. 

Section 110(c) of the Mine Act states: “Whenever a corporate operator violates a 

mandatory health or safety standard . . . , any director, officer, or agent of such corporation who 

knowingly authorized, ordered or carried out such violation, . . . shall be subject to . . . civil 

penalties.” 30 U.S.C. § 820(c). 

The proper legal inquiry for determining liability under section 110(c) is whether the 

corporate agent knew or had reason to know of a violative condition. Kenny Richardson, 3 

FMSHRC 8, 16 (Jan. 1981), aff’d on other grounds, 689 F.2d 632 (6th Cir. 1982), cert. denied, 

461 U.S. 928 (1983); accord Freeman United Coal Mining Co. v. FMSHRC, 108 F.3d 358, 362-

64 (D.C. Cir. 1997). To establish section 110(c) liability, the Secretary must prove that an 

individual knew or had reason to know of the violative condition, not that the individual 

knowingly violated the law. Warren Steen Constr., Inc., 14 FMSHRC 1125, 1131 (July 1992) 

(citing United States v. Int’l Minerals & Chem. Corp., 402 U.S. 558, 563 (1971)). 

A knowing violation thus occurs when an individual “in a position to protect employee 

safety and health fails to act on the basis of information that gives him knowledge or reason to 

know of the existence of a violative condition.” Kenny Richardson, 3 FMSHRC at 16. The 

Commission has explained that “‘[a] person has reason to know when he has such information as 

would lead a person exercising reasonable care to acquire knowledge of the fact in question or to 

infer its existence.’” Id. (citation omitted). In addition, section 110(c) liability is generally 

predicated on aggravated conduct constituting more than ordinary negligence. BethEnergy 

Mines, Inc., 14 FMSHRC 1232, 1245 (Aug. 1992). 

In this case, the judge properly set forth the test for determining whether an individual is 

liable under section 110(c). 31 FMSHRC at 1424, 1435-36. However, in applying that test, the 

judge ignored his own factual findings regarding the obvious nature of the violations involved 

and the overwhelming evidence in the record showing that Matney, as the preshift examiner, 

knew or should have known of the cited roof conditions and knew or should have known that his 

preshifts were inadequate. As a result, the judge’s conclusion that Matney was not liable under 

section 110(c) is unsupportable. 

The judge focused his section 110(c) analysis on the Secretary’s theory that Matney had 

engaged in intentional misconduct because Matney allegedly knew that Knox Creek had 

34 FMSHRC Page 783
installed, and then intentionally removed, a crib that was supporting the sheared bolt in the 

intersection of the crosscut and the No. 3 entry. 31 FMSHRC at 1424, 1436-38.8 The judge’s 

focus on whether or not the Secretary had successfully proved that the crib had been installed 

and removed was far too narrow and led him to overlook the most relevant evidence regarding 

whether a “knowing” violation occurred. 

Although the judge found that a crib had not been installed and removed, as claimed by 

the Secretary,9 that finding is not at all dispositive of whether Matney knew or should have 

known of other violative conditions relating to the roof. The Commission has made clear that 

section 110(c) liability does not hinge on whether an agent engaged in “willful” conduct. Kenny 

Richardson, 3 FMSHRC at 15. Instead, the question is whether Matney knew or should have 

known about the violative roof conditions. Id. at 16. 

The judge’s unwarrantable failure findings with regard to the violative conditions are 

directly relevant to the inquiry of whether Matney knew or should have known of the roof 

conditions. In Freeman United, 108 F.3d at 363, the D.C. Circuit stated that “knowing” in the 

context of section 110(c) includes “deliberate ignorance” and “reckless disregard,” as well as 

“actual knowledge.” The judge erred by failing to reconcile his unwarrantable failure findings 

with his section 110(c) analysis. See Mid-Continent Res., Inc., 16 FMSHRC 1218, 1222 (June 

1994) (holding that a judge must analyze and weigh all probative record evidence, make 

appropriate findings, and explain the reasons for his or her decision). 

For purposes of the section 110(c) analysis, the most significant unwarrantable failure 

finding made by the judge in this regard is his finding that the extensive violative roof conditions 

were “readily apparent” and that these hazardous roof conditions existed during Matney’s 

November 7 preshift examination. 31 FMSHRC at 1432-33. He also found that “the hazardous 

roof conditions went unattended for a considerable period of time, and they were repeatedly 

overlooked during the course of numerous preshift and onshift examinations.” Id. at 1433. The 

judge had previously noted that a few days before the preshift and onshift examinations of 

8 If a crib had been installed, it could have provided evidence that Matney knew that 

additional support of the sheared roof bolt was required, and thus knew of the violative condition 

(that is, the bad roof). 

9

 Ultimately, the judge credited Knox Creek’s witnesses in declining to draw an 

inference that a crib had been built and dismantled in the area. See Metric Constructors, Inc., 6 

FMSHRC 226, 232 (Feb. 1984), aff’d, 766 F.2d 469 (11th Cir. 1985) (stating that when the 

judge’s finding rests upon a credibility determination, the Commission will not substitute its 

judgment for that of the judge absent clear indication of error). Accordingly, there is no basis to 

overturn the judge’s finding that the crib had not been built and then dismantled under the 

sheared roof bolt. See, e.g., Keystone Coal Mining Corp., 17 FMSHRC 1819, 1862 (Nov. 1995) 

(concluding that judge was within his discretion in refusing to draw inference after considering 

record evidence). 

34 FMSHRC Page 784
 

 

November 7, 2006, Matney, along with the day shift and night shift foremen, had inspected the 

area around the intersection at the 8045 survey station in preparation for advancement inby. Id. 

at 1426. The three foremen traveled the area several times to determine the best location for 

placement of the two scoop battery chargers. Id. In this regard, the judge stated: “ . . . the 

hazardous roof conditions, which were repeatedly overlooked by preshift and onshift examiners, 

included: two sheared roof bolts, one of which was located in an intersection near a dangered-off 

area; several areas of rib sloughage that resulted in exceeding the maximum 48 inch distance 

allowed between ribs and roof bolts; and a dislodged crib located near an intersection in an area 

of bad roof.” Id. at 1432. 

Substantial evidence supports the judge’s findings. The judge determined that the 

sheared bolts and the roof cracks at survey station 8045 had existed since the area was initially 

mined four months earlier. Id. at 1433. The judge also found a high degree of danger and 

emphasized that the sheared bolt in the intersection of the No. 3 entry near the dangered-off area 

alone constituted an unwarrantable failure. Id. at 1433-34. 

Matney failed to address these conditions in two separate preshift examinations, despite 

needing to enter the area to access the scoop chargers. In short, the judge’s findings that the 

violative conditions were “readily apparent” and had existed for a considerable period of time 

lead inescapably to the conclusion that Matney, the shift foreman conducting preshift 

examinations, knew or should have known that the violative roof conditions existed. 

Also significant for the section 110(c) analysis in this case is the evidence regarding the 

nature and extent of Matney’s preshift examinations. The judge found that the timing of 

Matney’s November 7 preshift examination noted on the date boards was “suspect.” Id. at 1427 

n.7.10 The judge noted that Matney completed his entire preshift examination of this significant 

area of the mine in only 36 minutes,11 that Matney merely used his cap light to view and inspect 

the area, and that Matney did not walk through the area of survey station 8045 during the 

examination. 31 FMSHRC at 1427 & n.7, 1428. 

10 Matney initialed the date board at the No. 1 charger in the No. 3 entry at 4:39 a.m. 

31 FMSHRC at 1427. According to his testimony, he traveled two crosscuts in the No. 3 entry 

over to where the belt drive was located in a parallel crosscut, then traveled down that crosscut 

to the No. 4 entry, where the track was located, took a mantrip outby back to the crosscut at 

survey station 8050, and went to charger No. 2. Tr. 383-84, 463-64, 467-68; R. Ex. 1. Matney 

inspected that area from the date board behind the No. 2 charger located in the crosscut and 

initialed the date board at 4:40 a.m., one minute after initialing the first date board in the No. 3 

entry. 31 FMSHRC at 1427; Tr. 467-68. 

11 As noted by the judge, Matney’s preshift report stated that he began his examination at 

4:15 a.m. and concluded it at 4:51 a.m. Id. at 1427 n.7; G. Ex. 10-10. 

34 FMSHRC Page 785
 

Matney acknowledged that he observed the 8045 area from 65 feet away in the No. 2 

entry and from behind the scoop at Date Board No. 1 approximately 45 feet away. Tr. 386, 390. 

Inspector Phillips, though, testified that he could not see the conditions of the roof and ribs in the 

intersections from the location of the date boards because it was too far away and too dark. Tr. 

163. He testified that an examiner would have to walk through the area to adequately examine 

it, which Matney failed to do. Tr. 163. 

Finally, Matney had been recently retrained on how to perform an adequate preshift 

examination as abatement of a prior citation issued on October 31, 2006, less than one week 

prior to the issuance of the citations in this case. 31 FMSHRC at 1426. His actions constitute 

aggravated conduct, rather than ordinary negligence, supporting a finding of liability under 

section 110(c). BethEnergy Mines, 14 FMSHRC at 1245. 

In defining the scope of liability under section 110(c), the Commission has stated: 

If a person in a position to protect employee safety and health fails 

to act on the basis of information that gives him knowledge or 

reason to know of the existence of a violative condition, he has 

acted knowingly and in a manner contrary to the remedial nature of 

the statute. 

Kenny Richardson, 3 FMSHRC at 16. In Roy Glenn, 6 FMSHRC 1583, 1587 (July 1984), the 

Commission reaffirmed its holding in Kenny Richardson that “a supervisor’s blind acquiescence 

in unsafe working conditions would not be tolerated.” The Commission warned that onsite 

supervisors “could not close their eyes to violations, and then assert a lack of responsibility for 

those violations because of self-induced ignorance.” Id. 

This “closed eyes” approach highlighted in Roy Glenn is precisely the type of conduct 

involved here. Matney himself had the responsibility to conduct combined onshift and preshift 

examinations of the area of the mine at issue to ascertain whether any hazardous conditions 

existed, to note those conditions, and to take the necessary steps to address the dangerous 

conditions and protect miners. Clearly, Matney was in a position to protect miners’ safety and 

health, but failed to do so. The evidence indicates that Matney conducted an abbreviated exam, 

in which he visually examined the mine’s conditions from a distance and in the dark, using only 

his cap light, which he admitted provided limited visibility. 31 FMSHRC at 1427-28; Tr. 382-

83, 387. Had Matney conducted a more careful and thorough examination, he would have noted 

the obvious and highly dangerous roof conditions. 

The evidence compels the conclusion that a preshift examiner, exercising reasonable 

care, would have identified the hazardous roof conditions and taken action to remedy the 

hazards. See Am. Mine Servs., Inc., 15 FMSHRC 1830, 1834 (Sept. 1993) (where evidence 

supports only one conclusion, remand on that issue unnecessary). Under the standard in Kenny 

Richardson, an agent who knows or has reason to know of a violative condition, and fails to 

address those conditions, is liable under section 110(c). 3 FMSHRC at 16. 

34 FMSHRC Page 786
In sum, because the judge focused almost exclusively on the evidence pertaining to the 

missing crib, he failed to address key pertinent evidence pertaining to Matney’s conduct in 

performing the preshift examinations. By failing to consider this relevant evidence, the judge 

erred. Given the judge’s findings on the extensiveness and obviousness of the violative roof 

conditions, the level of danger involved, the prior notice provided to Matney himself on how to 

perform an adequate preshift examination, and the circumstances of Matney’s limited 

examination of the area of the mine in question, we conclude that the record compels the 

conclusion that Matney should have known of the readily apparent roof violations and that his 

failure to do so and to note and remedy those violations amounted to a knowing violation under 

section 110(c). See Harold Moody, 19 FMSHRC 688, 693 (Apr. 1997) (reversing judge’s 

determination that agent is not liable under section 110(c)). 

III. 

Conclusion 

For the foregoing reasons, we reverse the judge’s determination that Matney is not liable 

under section 110(c) for knowingly authorizing Knox Creek’s violations and remand for the 

assessment of a civil penalty. 

/s/ Mary Lu Jordan 

Mary Lu Jordan, Chairman

 /s/ Michael F. Duffy 

 Michael F. Duffy, Commissioner

 /s/ Michael G. Young 

 Michael G. Young, Commissioner

 /s/ Robert F. Cohen, Jr. 

 Robert F. Cohen, Jr., Commissioner

 /s/ Patrick K. Nakamura 

 Patrick K. Nakamura, Commissioner
 

34 FMSHRC Page 787
 

 

 

Distribution: 

Timothy W. Gresham, Esq. 

Penn, Stuart & Eskridge 

P.O. Box 2288 

Abingdon, VA 24212 

Edward Waldman, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

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 

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 

34 FMSHRC Page 788
ADMINISTRATIVE LAW JUDGE DECISIONS 
 

 

 

 

 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF THE CHIEF ADMINISTRATIVE LAW JUDGE
 

601 NEW JERSEY AVENUE, NW, SUITE 9500
 

WASHINGTON, DC 20001-2021
 

TELEPHONE: 202-434-9953 / FAX: 202-434-9949
 

HOPKINS COUNTY COAL, LLC, 

Contestant, 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent, 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner, 

v. 

HOPKINS COUNTY COAL, LLC, 

Respondent. 

April 2, 2012 

: CONTEST PROCEEDINGS 

: 

: Docket No. KENT 2009-820-R 

: Citation No. 6694904; 03/23/2009 

: 

: Docket No. KENT 2009-821-R 

: Order No. 6694905; 03/23/2009 

:

: Docket No. KENT 2009-822-R

: Citation No. 6694906; 03/23/2009 

: 

: Mine ID 15-18826 

: Elk Creek Mine 

: 

: CIVIL PENALTY PROCEEDING

:

: Docket No. KENT 2009-1441 

: A.C. No. 15-18826-192978 

: 

: 

: 

: 

: 

: Mine: Elk Creek Mine 

DECISION
 

Appearances: Matthew Shepherd, Esq., U.S. Department of Labor, Nashville, Tennessee on 

behalf of the Secretary; 

Marco M. Rajkovich, Jr., Esq., Rajkovich, Williams, Kilpatrick & True, PPLC, 

and Gary McCollum, Esq., Lexington, Kentucky on behalf of Hopkins County 

Coal, LLC. 

Before: Judge Barbour 

These consolidated contest and civil penalty proceedings arise under section 105(d) of 

the Federal Mine Safety and Health Act of 1977 (30 U.S.C. § 815(d)) (AMine Act@ or AAct@). In 

the contest proceedings Hopkins County Coal, LLC (AHCC@) contests the validity of two 

34 FMSHRC Page 789
 

citations and one withdrawal order issued to the company at its Elk Creek Mine in Hopkins 

County, Kentucky on March 23, 2009, by Mine Safety and Health Administration (AMSHA@) 

Special Investigator Kirby Grant Smith. The citations and order were issued because HCC failed 

to produce records requested by the Secretary during her investigation of a discrimination 

complaint made by former HCC miner, Robert Gatlin. In the civil penalty proceeding the 

Secretary seeks civil penalties for the company=s alleged violation of the Mine Act=s record 

production requirements. 

EVENTS LEADING TO THE CONTESTS 

Robert Gatlin, a belt examiner at the mine, filed a discrimination complaint with 

MSHA on January 20, 2009. Gov. Ex. 1. In the complaint, Gatlin, who was fired by HCC on 

January 8, 2009, alleged he was discharged in violation of section 105(c) of the Mine 

Act.1 30 U.S.C. § 815(c). Gatlin also requested temporary reinstatement. Tr. 44. MSHA notified 

the company of the complaint by letter that same day. Secy=s Mot. for Sum. Dec. 2. Special 

Investigator Kirby Smith interviewed Gatlin. Tr. 47- 48. Based on the interview and Gatlin=s 

complaint, Smith believed Gatlin may have engaged in protected activity and may have suffered 

adverse action. Tr. 48. On January 26, the MSHA district manager, Carl E. Boone II, advised 

HCC by letter that MSHA wanted to interview five named miners Aas part of . . . [its] 

investigation of . . . [Gatlin=s] [d]iscrimination [c]omplaint . . . during the fact-finding segment of 

this investigation.@ Gov. Ex. 2. Boone requested HCC contact MSHA special investigators Kirby 

Smith or Rodney Adamson by February 6 Awith a convenient date and time to conduct these 

interviews.@ Id. By letter dated February 6, counsel for HCC refused to arrange the requested 

interviews unless MSHA identified the protected activity alleged in the complainant=s 

discrimination complaint. Gov. Ex. 3. 

1 In his complaint Gatlin summarized the alleged discrimination he suffered by stating: 

I feel that I was unfairly terminated due to being 

directed to do more than my regular job duties 

on a daily basis, which I would do on weekends 

for extra pay. I also feel that the comment about 

the union played a part in my being discharged. 

I would like my job back, any negative comments 

deleted from my personnel file and backpay for 

the time I=ve been off. I feel that my name has 

been black balled in the mining industry around 

here and they will not hire me. 

Gov. Ex. 1 at 1-1. 

34 FMSHRC Page 790
*RYOn February 23, Boone sent HCC=s counsel a letter in which MSHA requested: 

1.	 Robert Gatlin=s personnel file[;] 

2.	 Any documents showing disciplinary action that was taken against Robert Gatlin by 

[HCC;] 

3.	 Documents showing any hazards or potentially hazardous conditions, including but 

not limited to pre-shift, on-shift and conveyor belt examination books at the Elk 

Creek Mine for the period of July 1, 2008 - January 31, 2009[;] 

4.	 Any employee handbook or employee manual that was used by [HCC] from January 

1, 2004 - January 20, 2009[;] 

5.	 The personnel files of all employees at the Elk Creek Mine who were disciplined, 

reprimanded, or terminated during the period of January 1, 2004 - January 20, 2009 

for engaging in the conduct which led to the termination of Robert Gatlin. 

6.	 All documents relied upon by [HCC] in its decision to terminate Robert Gatlin[.] 

Gov. Ex. 4. 

MSHA requested that the documents be provided to Smith by the close of business on March 2, 

2009. Id. 

In a letter to Boone dated March 2, counsel for HCC again asserted the complaint did not 

state a protected activity and renewed his request that MSHA clarify Ahow . . . [the complaint] 

states a claim under the Mine Act.@ Gov. Ex. 5. Counsel noted the record books requested in the 

February 26 letter were available for review at MSHA=s convenience, and counsel stated he 

would respond to the request for the other items once he discussed the request with HCC 

officials. Gov. Ex. 5. 

On March 17, the district manager again wrote to counsel, advising him that MSHA=s 

special investigators would be at the mine on March 23 and that they intended to review and 

copy the specified examination books. Gov. Ex. 6. The district manager asked counsel to 

Aremind [his] client of its obligation to cooperate in [the] investigation and produce the records 

that have been requested.@ Gov. Ex. 6. The letter also requested HCC have Aall documents listed 

in the February 23 . . . letter . . . available for inspection . . . on March 23, 2009.@ Gov. Ex. 6. 

In a March 18 letter to Boone, counsel for HCC again requested Aclarification regarding 

how [Gatlin=s complaint] states a claim under the Mine Act.@ Gov. Ex. 7. Counsel asserted one of 

HCC=s rights under the Act Ais to know what it is the agency is investigating.@ Gov. Ex. 7. 

Counsel for HCC then attached documents or made available all the information requested 

except the personnel files of Gatlin and other employees disciplined, reprimanded or terminated 

Afor engaging in conduct which led to the termination of . . . Gatlin.@ Gov. Ex. 7. The impasse 

over the personnel files led Boone to again write to the company=s counsel. In a letter dated 

March 20, Boone stated that he expected the personnel files to be provided to the special 

investigators on March 23. Id. Counsel for HCC reiterated its objections to release of the 

requested personnel files in a letter dated March 23. Gov. Ex. 9. 

34 FMSHRC Page 791
On March 23, Supervisory Special Investigators Smith and Adamson arrived at the mine 

at 8:00 a.m. Tr. 65-66. The inspectors went to the mine office. Tr. 66. Smith asked William 

Adelman, the mine general manager, for the previously requested examination books. Tr. 66. 

Adamson reviewed the conveyor belt examination book, apparently the only book in which the 

special investigators were interested. Tr. 67. They also asked for the personnel files requested in 

the February 23, 2009 letter, of which Adelman had received a copy. Tr. 67, 118. Smith testified 

that Gatlin=s personnel file was requested in order to determine his work history, including any 

disciplinary action taken against him, to find any information corroborating Gatlin=s allegations 

and to determine his general credibility. Tr. 56, 68. The personnel files of other similarly situated 

employees were requested in order to determine whether there was evidence of disparate 

treatment. Tr. 56. 

Adelman refused to produce the personnel files. Tr. 67. Adelman believed that the 

requests in the February 23, 2009 letter for the personnel files of employees disciplined, 

reprimanded or terminated for engaging in the same conduct as Gatlin and for the documents 

relied upon by HCC in its decision to terminate Gatlin were vague. Tr. 119. However, he did not 

request clarification because he believed those files were Aoff limits to MSHA.@ Tr. 119-120. 

Adelman told Smith that privacy concerns prevented him from turning over the requested files. 

Tr. 67. Since he believed the files to be off limits, Adelman did not ask Inspector Smith to 

narrow the scope of his request nor did Adelman ask to withhold certain private non-relevant 

documents contained within the personnel files.2 Tr. 126. In response to Adelman=s privacy 

concerns Smith explained that MSHA investigators were exempt from Health Insurance 

Portability and Accountability Act (AHIPAA@) regulations. Tr. 67. Adelman still refused to 

provide the records. Id. Smith then issued Citation No. 6694904 (Docket No. KENT 

2009-820-R) alleging HCC violated section 103(a) of the Act, when it: 

failed to produce/provide records requested by MSHA special 

investigators during the performance of investigative duties under 

section 105(d) of the Act.[3

] On February 23, 2009[,] written 

requests for specific documents were given to the operator=s legal 

counsel . . . as directed by the mine operator. Sections 103(a) and 

2 The personnel files included a variety of personal information, including medical information, 

insurance information and employee benefits and unemployment benefits information, some of 

which was unrelated to Gatlin’s discrimination complaint. Tr. 94, 123-124. 

3 Section 105(c)(2) of the Act (30 U.S.C. § 815(c)(2)) requires the Secretary A[u]pon receipt@ of 

a miner=s discrimination complaint to Aforward a copy of the complaint to the [operator] and . . . 

cause such investigation to be made as [the Secretary] deems appropriate.@ Section 105(c)(2) 

further states, AIf upon such investigation, the Secretary determines that . . . [the operator has 

discriminated against the complainant, the Secretary] shall immediately file a complaint with the 

Commission[.]@ Under section 105(c)(3) the Secretary must determine whether discrimination 

occurred within 90 days of the receipt of the miner=s complaint. 30 U.S.C. § 815(c)(3). Smith 

testified that investigators have 60 days to complete an investigation and that they strictly adhere 

to the deadline, with some limited exceptions. Tr. 82. 

34 FMSHRC Page 792
 

[103](h) of the Act [require] the operator to furnish information 

requested by the Secretary that she has determined necessary in 

carrying out the provisions of the Act.[4

] 

Citation No. 6694904, Gov. Ex. 10. 

In issuing the citation, Smith gave HCC 45 minutes, or until 9:00 a.m., to comply. See Citation 

No. 6694904. Smith advised Adelman to contact his counsel during the abatement period. Tr. 67. 

At 8:50 a.m. Adelman informed Smith that he had spoken to counsel and did not intend to 

produce the requested personnel files. Tr. 72. Smith did not extend the abatement period because 

he believed he had set a reasonable time for abatement and an extension was not justified. Tr. 74. 

Smith waited until the abatement period expired, then at 9:00 a.m. he issued Order No. 6694905 

(KENT 2009-821-R) to the company pursuant to section 104(b) of the Act (30 U.S.C. § 814(b)).5 

In issuing the order, Smith stated: 

The operator[=s] agent . . . refused to comply with 

the [sic] Citation No. 6694904 requiring the operator 

to produce/provide records requested by MSHA 

Special Investigators during the performance of 

their official duties in the [sic] investigation activities 

under [section] 105(c) of the Mine Act. 

Order No. 6694905, Gov. Ex. 11. 

After five minutes passed and the requested documents still were not produced, at 9:05 a.m. 

Smith issued another section 104(a) citation to HCC for continuing to work in the face of a 

104(b) withdrawal order.6 Citation No. 6694906 (KENT 2009-822-R) states: 

4 Section 103(a) authorizes the Secretary to “make frequent inspections and investigations . . . 

for the purpose of determining whether there is compliance with . . . mandatory health or safety 

standards or with any citation, order, or decision . . . or other requirements of this Act.” 

30 U.S.C. § 813(a). Section 103(h) in pertinent part requires an operator to “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(h). 

5 Section 104(b) of the Act provides for the issuance of an order when an inspector or other 

authorized representative of the Secretary finds that a violation described in a citation issued 

under section 104(a) of the Act has not been totally abated within the time originally fixed and 

that the time should not be further extended. 30 U.S.C. § 814(b). 

6 Smith testified he was trained at the MSHA Academy to issue a 104(a) citation, a 104(b) 

withdrawal order and then a 104(a) citation for continuing to operate in the face of a withdrawal 

order when an operator fails to comply. Tr. 75. 

34 FMSHRC Page 793
 

The operator[=]s agent continued to deny to [sic]
 

produce/provide the records requested by [the]
 

MSHA Special Investigator after the reasonable
 

time for abatement had expired on . . . 104(a)
 

[C]itation No. 66904904. The Operator[=]s
 

agent continued to refuse to provide the requested
 

records after . . . 104(b) withdrawal [O]rder No.
 

66904905 was issued.
 

This citation is issued for continuing to operate
 

in [the] face of a withdrawal order.
 

Citation No. 6694906, Gov. Ex. 12. 

Smith indicated Citation No. 6694906 should be abated by 10:00 a.m. Gov. Ex. 12. When 

the citation was not abated, HCC became subject to the provisions of section 110(b)(1) of the 

Act, which provides that A[a]ny operator who fails to correct a violation for which a citation has 

been issued under section 104(a) within the period permitted for its correction may be assessed 

a civil penalty of not more than $5,000 for each day during which such failure or violation 

continues.@ 30 U.S.C. § 820(b)(1). On the same day the citations and order were issued, HCC 

filed notices of contest with the Commission.7 Shortly thereafter, HCC filed a motion requesting 

an expedited hearing, which the Secretary opposed. 

PROCEDURAL BACKGROUND 

The contest dockets, Docket Nos. KENT 2009-820-R, KENT 2009-821-R 

and KENT 2009-822-R, were initially assigned to Commission Administrative Law Judge 

Jacqueline Bulluck. On March 24, Judge Bulluck initiated a conference call with the parties. 

Subsequently, the dockets were reassigned from Judge Bulluck to me. In a conference call on 

March 27, 2009, the parties stated that they agreed how to abate the citations and order and that 

abatement occurred on March 26, 2009, ending HCC=s continuing liability under section 

110(b)(1) of the Act for daily penalty assessments (30 U.S.C. § 820(b)(1)) and obviating the 

need for an expedited hearing.8 Accordingly, on April 02, 2009, I issued an order denying HCC=s 

7 Although only one contest was filed, it pertained to all three enforcement actions, and the 

single contest was docketed as three separate cases. 

8 According to counsel for HCC=s letter of March 26, 2009, abatement included submission to 

MSHA of the requested personnel files. HCC=s decision to produce the files was based on Aoral 

clarifications as to the scope of the request made by counsel for the Secretary in the March 24 

[conference call].@ Gov. Ex. 13. The documents submitted by HCC included Gatlin=s personnel 

file (released with the caveat HCC be held blameless should the personal information contained 

in the file enter the public domain) and the personnel files (with personal information redacted) 

of four employees. Counsel for HCC also stated it was not until the conference call of March 24 

(continued...) 

34 FMSHRC Page 794
 

motion to expedite. Counsels then filed cross-motions for summary decision. In an April 21, 

2009 order I deferred ruling on the motions until the issuance of proposed civil penalties for the 

alleged violations of the Act. 

On September 30, 2009, the Commission received the Secretary=s civil penalty petitions 

for the citations and order. Docket Nos. KENT 2009-1441 and KENT 2009-1442 were initially 

assigned to Commission Administrative Law Judge Alan Paez. They were reassigned to me to 

facilitate resolution of both the contest and civil penalty dockets. In the civil penalty petition for 

Docket No. KENT 2009-1441 the Secretary proposed a penalty of $112.00 for the violation of 

section 103(a) of the Act charged in Citation No. 6694904. The Secretary also proposed a 

penalty of $436.00 for Citation No. 6694906 which alleged HCC continued to operate in the face 

of a withdrawal order and continued to violate section 103(a) by refusing to produce the 

requested records. Daily penalties totaling $1,500.00 were assessed and were associated with the 

104(b) withdrawal order, Order No. 6694905, in Docket No. KENT 2009-1442. On May 24, 

2011 the Commission received the Secretary=s unopposed motion to amend the civil penalty 

petition for Docket No. KENT 2009-1441. Secy=s Mot. to Amend 2. The Secretary stated the 

$1,500.00 in daily penalties assessed for continuing to operate in the face of a withdrawal order 

should have been assessed for Citation No. 6694906 rather than for Order No. 6694905. Tr. 13, 

Secy=s Mot. to Amend 2. She stated that if the motion to amend was granted the Secretary would 

not seek a penalty for Order No. 6694905. Id. Following the filing of the civil penalty petitions a 

hearing was held in Evansville, Indiana on June 07, 2011. The Secretary=s unopposed motion to 

amend the civil penalty petition was approved on the record. Tr. 14. This disposed of Docket 

No. KENT 2009-1442, which was subsequently dismissed on the record.9 The Secretary=s 

motion for summary decision and HCC=s cross-motion for summary decision were denied due to 

the parties= inability to resolve their differences regarding the validity of the citations and order 

and the importance of the issues involved. 

STIPULATIONS 

The parties entered the following stipulations on the record: 

1.	 At all times relevant to this proceeding, Hopkins County Coal, LLC, was the 

operator of the Elk Creek Mine, Mine ID No. 15-18826. 

2.	 The Elk Creek Mine is a Amine@ as that term is defined in Section 3(h) of the 

Mine Act, 30 U.S.C. § 802(h). 

3.	 At all times relevant to this proceeding, products of Elk Creek Mine entered 

8 (...continued)
 

that counsels for MSHA made HCC aware that MSHA was seeking the Afiles of employees who
 

were disciplined for engaging in conduct which HCC claims lead to the termination of Gatlin.@
 

Id. at 2 (emphasis in original).
 

9 The parties agreed at hearing that since I granted the Secretary=s unopposed motion to amend,
 

dismissal of the docket was appropriate. Tr. 14.
 

34 FMSHRC Page 795
commerce, or the operations or products thereof affected commerce, within 

the meaning and scope of Section 4 of the Mine Act, 30 U.S.C. § 803. 

4.	 Employees at the Elk Creek Mine produced more than 3,000,000 tons of coal 

in 2009. Hopkins County Coal, LLC is a large operator. 

5.	 Copies of the violations at issue in this proceeding were served on Hopkins 

County Coal, LLC by an authorized representative of the Secretary. 

6.	 Hopkins County Coal, LLC timely contested the violations. 

7.	 Hopkins County Coal, LLC is subject to the jurisdiction of the Federal Mine 

Safety and Health Review Commission and the presiding Administrative Law 

Judge has the authority to hear this case and issue a decision regarding this 

case. 

8.	 The proposed penalties will not affect Hopkins County Coal, LLC=s ability to 

remain in business. 

Jt. Ex. 1. 

THE PARTIES’ ARGUMENTS

 HCC argues the contested citations and order must be vacated because MSHA is not 

entitled to the personnel files it requested without a warrant. HCC’s Resp. to Secy’s Mot. for 

Sum. Dec. and Cross-mot. for Sum. Dec. 6 (“HCC’s Resp.”). HCC notes the files are not 

documents required to be maintained by the operator pursuant to the Mine Act. Id. HCC argues 

that while records required to be kept under the Mine Act must be available to MSHA, and while 

an operator has no realistic expectation of privacy in such records, the same is not true if soughtafter files also contain data not required to be maintained under the Mine Act. Id. The company 

insists the government does not have a right to “rummage in any wholesale way or to initiate a 

general search” for records and documents not required to be kept under the Mine Act. Id. at 6 

(quoting Youghiogheny and Ohio Coal Co. v. Morton, 364 F.Supp. 48, 51, n.5 (S.D. Ohio 

1973)). HCC also points to Administrative Law Judge James Broderick’s decision in Sewell 

Coal Co., 1 FMSHRC 864 (July 1979) in which, according to HCC, Judge Broderick recognized 

constitutional difficulties prevented MSHA from validly issuing a citation and order when 

Sewell refused to allow MSHA to inspect personnel files in order to determine Sewell’s 

compliance with Part 50 reporting requirements. HCC’s Resp. 6-7. 

The Secretary contends section 103(a) (30 USC § 813(a)) (authorizing the Secretary to 

make “frequent . . . investigations . . . for the purpose of . . . determining whether there is 

compliance with . . . [the] requirements of this Act”); section 103(h) (30 USC § 813(h)) 

(requiring operators to “provide such information, as the Secretary . . . may reasonably 

require from time to time to enable him to perform his functions under this Act); and 

section 108 (30 U.S.C. § 818) (allowing the Secretary to seek civil relief when an operator does 

not, “permit access to, and copying of, such records as the Secretary . . . determines necessary to 

carry out the provisions of [the] Act”) require HCC to produce the requested personnel files and 

information. Secy’s Mot. for Sum. Dec. 6. She asserts when HCC failed to produce the 

information the Secretary had the discretion to proceed against the company either by issuing the 

subject citations and order, or by seeking relief in federal district court under section 108 of the 

34 FMSHRC Page 796
Act, or by proceeding on both tracks. Secy’s Mot. for Sum. Dec. 6-7. 

HCC counters that release of employees’ personnel files would violate the privacy rights 

of its employees.10 HCC’s Resp. 6. HCC argues the files are protected by the Fourth Amendment 

of the Constitution. HCC contends that turning the files over without releases from its employees 

would violate HIPAA and could expose HCC to litigation. Tr. 23. Counsel for HCC, citing 

Wheeler v. Sorenson, 415 S.W.2d 582 (Ky. Ct. App. 1967), contends that employees in 

Kentucky have sued their employers for releasing their personnel files. Tr. 176. 

The Secretary responds that HCC cannot refuse to provide the information because the 

Secretary lacks a waiver and release from Gatlin and/or the other employees. Secy’s Mot. for 

Sum. Dec. 7. According to the Secretary, HCC bears the burden of showing the Secretary’s 

investigative authority under section 103(a) and section 103(h) of the Act is subject to any 

statutory exception requiring the Secretary to obtain waivers and releases, and HCC has not done 

so. Id. 

HCC also argues that “[t]he request [was] unduly burdensome and . . . tantamount to 

harassment in the overly broad, sweeping request for all files covering a five-year period.” The 

Secretary counters that she has only requested “[Gatlin’s] files and the files of those employees 

and former employees whom [HCC] has ‘disciplined, reprimanded or terminated . . . for 

engaging in the conduct which led to the termination of . . . Gatlin.” Secy’s Mot. for Sum. Dec. 9 

(quoting MSHA Letter of February 23, 2009, Carl E. Boone II, District 10 Manager to Marco M. 

Rajkovich, Jr., Counsel to HCC ). She describes her requests as “clear, narrowly drawn and 

relevant.” Id. In summarizing her position, the Secretary states she must determine whether 

Gatlin was treated differently than other similarly situated employees, and that HCC cannot 

avoid production of lawfully demanded records by making “unsupported and baseless demands 

for waivers and releases designed for the purpose of impeding the Secretary’s investigation.” 

Secy’s Mot. for Sum. Dec. 10. The Secretary argues that HCC’s contests are “without merit and 

there are no constitutional matters at issue.” Secy’s Resp. to Contestant’s Mot. for Sum. Dec. 1.

 The company also takes issue with the wording of the February 23 request for “[t]he 

personnel files of all employees at the Elk Creek Mine who were disciplined, reprimanded, or 

terminated during the period of January 1, 2004 – January 20, 2009 for engaging in the conduct 

which led to the termination of Robert Gatlin.” HCC Resp. 3. According to HCC, MSHA 

actually sought “files evidencing that other employees have been disciplined for similar reasons 

as the reason that HCC claims it disciplined Gatlin.” HCC Resp. 10. HCC contends such 

evidence, if it existed, would support HCC’s affirmative defense. Id. It would not support the 

existence of a valid claim. Id. HCC states MSHA should have requested “personnel files of 

10 HCC states that the sought-after files contain social security numbers, bank names, account 

numbers, and health information of its employees and their dependents, all of it information to 

which MSHA is not entitled without a warrant. HCC’s Resp. 9-10. HCC also notes it ultimately 

released all requested information relating to Gatlin, but only after the Secretary assured HCC 

that Gatlin would not object to his file being produced in its entirety since he filed the 

discrimination complaint which prompted the investigation. Id. at 10. 

34 FMSHRC Page 797
 

individuals who engaged in the same conduct as Gatlin, but were not disciplined.” Id. HCC 

contends that MSHA and Gatlin have no information any employees have been treated 

disparately, and it asserts Gatlin and the Secretary engaged in a “fishing expedition” to see if 

they could uncover a case without any reasonable cause to believe that discrimination actually 

had occurred. Id. at 10-11. HCC claims that any delays in producing the files were due to 

MSHA’s failure to timely respond to several requests made for clarification of MSHA’s requests 

for information. HCC asserts it was not until the March 24 conference call with Judge Bulluck 

that it understood that the documents MSHA was requesting were “presumably . . . [those] 

related to HCC’s reason for termination of Gatlin, as may be applicable to other similarly 

disciplined employees, and apparently not documents related to Gatlin’s reason for why he 

thinks he was terminated.”11 HCC’s Resp. 4 (emphasis in original). 

With this understanding, HCC produced the requested files.12 Finally, HCC argues that it 

did not have fair notice the Secretary interpreted sections 103(a) and 103(h) of the Mine Act to 

give her the authority to request personnel files. HCC Supp. Resp. Sum. Dec. 8-9. 

RESOLUTION OF THE ISSUES 

Whether a Search Warrant Was Required 

As noted, HCC contends that though it has no reasonable expectation of privacy in files 

maintained pursuant to the Act, it has a reasonable expectation of privacy in its other files, 

including personnel files, and the Secretary must obtain a warrant in order to access them. I 

disagree. Warrants are not required for administrative searches made pursuant to the Mine Act. 

Donovan v. Dewey, 452 U.S. 594, 604 (1981). A warrant is not constitutionally required where, 

“Congress has reasonably determined that warrantless searches are necessary to further a 

regulatory scheme and the federal regulatory presence is sufficiently comprehensive and defined 

that the owner . . . cannot help but be aware that his property will be subject to periodic 

inspections undertaken for specific purposes.” Dewey, 452 U.S. at 600. Congress reasonably 

determined warrantless searches were necessary under the Mine Act. Id. at 600. The certainty 

11 I interpret this to mean HCC did not respond concerning the personnel files other than 

Gatlin’s because it thought MSHA wanted the files of those employees who were terminated for 

the same reason Gatlin believed he was fired, that HCC was unable to tell from Gatlin’s 

complaint why Gatlin thought he was let go, and that this was one of the reasons why the 

company made repeated (and unanswered) requests for clarification of Gatlin’s complaint. 

12 The Secretary accuses HCC of dilatory tactics in its failure to produce the requested files, and 

HCC responds that any delays were due to MSHA’s failure to timely answer several requests it 

made for clarification of MSHA’s requests for information. However, as I noted in my April 21, 

2009 order, both parties engaged in behavior that delayed the investigation, and the accusations 

of dilatory behavior will not be a factor in my resolution of the issues. Order Staying 

Proceedings, Order Requesting Secretary’s Counsel to Report and Order Directing Counsels to 

Submit Stipulations if Necessary (April 21, 2009), 11-12. 

34 FMSHRC Page 798
and regularity of the Act’s scheme provides an adequate substitute for a warrant because the 

Mine Act's regulation of the mining industry is “sufficiently pervasive” that the property owner 

“cannot help but be aware” that he will be subject to inspection. Id. at 600, 603-604. In Dewey, 

the Supreme Court reviewed the Secretary’s exercise of her powers under Section 103(a), which 

provides the Secretary with a right of entry for the purposes of inspections and investigations, 

including those made pursuant to Section 105(c), and approved the scheme of warrantless 

searches under the Mine Act. The Mine Act grants the Secretary an absolute right of entry when 

she exercises her investigative powers and a warrant is not required, even if the Secretary is 

seeking files other than those required to be maintained under the Act. See BHP Copper, 21 

FMSHRC 758, 765 (July 1999). I find that the Secretary did not need to first obtain a warrant to 

access the requested personnel files. 

Whether Privacy Concerns Prevented Disclosure of the Files 

Employer Privacy Rights 

Mine operators have a general expectation of privacy in their offices on mining property. 

Youghiogheny & Ohio Coal Co. v. Morton, 364 F. Supp. 45, 51, n.5 (S.D. Ohio 1973). However, 

the expectation of privacy that operators enjoy “differs significantly from the sanctity accorded 

an individual's home” and is adequately protected by the Mine Act’s statutory scheme 

authorizing warrantless inspections. Dewey, 452 U.S. at 598-599. Federal inspectors do not 

“intrude into any zone of privacy which the mine owners reasonably expect to remain inviolate.” 

Youghiogheny, 364 F. Supp. at 51. Further, the government’s interest in promoting mine safety 

arguably greatly outweighs any general interest a mine operator may have in privacy. Id. Any 

special privacy interests an operator may have are protected under the Mine Act’s scheme 

through the injunction provisions of the Act and the opportunity to contest a citation or order 

before the Commission prior to the imposition of sanctions. See BHP Copper, 21 FMSHRC at 

767 (1999). 

The company argues that it has a particular interest in safeguarding its employees’ 

private information because of its legal obligations under HIPAA and Kentucky law. As noted, 

HCC, citing Wheeler v. Sorenson, 415 S.W.2d 582 (May 1967), contends that employers in 

Kentucky have been sued by their employees for releasing employee personnel files. The 

Respondent’s argument is unpersuasive. Consent is not required under HIPAA for disclosures to 

public health authorities. 45 C.F.R. § 164.512(b)(i). MSHA is identified as a public health 

authority in the Department of Health and Human Service’s response to the comments to the 

HIPAA regulations published in the Federal Register. 65 Fed. Reg. 82,462, 82,624 (Dec. 28, 

2000). Further, Wheeler is not applicable because it involved disclosure of employee 

information to other employees, not to a government agency. I conclude that while HCC has a 

general interest in the privacy of its personnel files and other records not required to be kept 

under the Mine Act, the Secretary’s interest in promoting miner safety through the rigorous 

enforcement of the provisions of section 105(c) outweighs that interest. I further find that 

HIPAA does not bar the disclosure of the records nor has HCC presented convincing evidence 

that it would be subject to suit for disclosing personnel files to MSHA. 

34 FMSHRC Page 799
Employee Privacy Rights 

Whether HCC has Standing to Assert Employee Privacy Rights 

HCC states that because disclosure of employee records would violate employee privacy 

rights it would not release records without its employees’ consent. However, I conclude that 

neither HCC’s privacy rights nor the rights of its employees are violated by the disclosure of 

information contained in personnel files to MSHA. 

I find that HCC lacked standing to assert Gatlin’s privacy rights and I find that it is 

doubtful HCC had standing to assert the privacy rights of its other employees. I also find that 

consent was not required from Gatlin or from the other miners whose records the Secretary 

sought. Third party standing is determined based on the relationship of the litigant to the person 

whose rights the litigant seeks to assert and the ability of the third party to assert his own rights. 

Singleton v. Wulff, 428 U.S. 106, 113-114 (1976). First, HCC did not have standing to assert 

Gatlin’s privacy rights. During the discrimination investigation at issue, the relationship between 

HCC and Gatlin, who initiated the investigation by alleging HCC discriminated against him, was 

adversarial. Gatlin was capable of asserting his own privacy rights, but did not. HCC refused to 

grant Gatlin’s representative access to Gatlin’s file without his consent in an investigation that 

Gatlin himself initiated. The company’s actions were overly protective. HCC could not assert an 

employee’s privacy rights in a situation where the employee himself did not assert them. 

Second, it is doubtful that HCC had standing to assert the privacy rights of its other 

employees. “Courts must hesitate before resolving a controversy . . . on the basis of rights of 

third persons not parties to the litigation” because the holder of the right might not want to assert 

it or might enjoy the right regardless of the outcome of the litigation and the third party himself 

is usually the best proponent of his own rights. Singleton, 428 U.S. at 114. The relationship 

between an operator and non-complainant miner employees in the context of a 105(c) 

discrimination case is ambiguous at best and their interests may conflict or align according to the 

facts of the case. HCC has presented no evidence its employees would have wanted their rights 

to be asserted. Granting an operator standing to assert the privacy rights of its employees could 

unreasonably delay the Secretary’s discrimination investigation. Inspector Smith credibly 

testified the 60 day investigation deadline is strictly adhered to by MSHA with limited 

exceptions. Delays caused by the assertion of employee privacy claims by employers could 

reduce the efficacy of 105(c) investigations and result in fewer 105(c)(2) cases. Moreover, the 

delays in the investigation of discrimination complaints would be contrary to Congress’ intent to 

swiftly investigate such complaints. The Mine Act’s Senate Report states that discrimination 

complaints are to receive “high priority” and that in order to “further expedite the handling of 

these cases” the Secretary must immediately petition the Commission for appropriate relief.13 S. 

13 Even if HCC had standing to assert the privacy rights of employees other than Gatlin, the 

disclosure of private information contained in a personnel file to MSHA, an agency charged with 

public health and welfare, would not violate constitutionally protected employee privacy rights. 

See United Steelworkers of Am., AFL-CIO-CLC v. Marshall, 647 F.2d 1189, 1241 (D.C. Cir. 

1980). 

12
 

34 FMSHRC Page 800
Rep. No. 95-181, at 36 (1977), reprinted in Senate Subcomm. on Labor, Comm. on Human Res., 

Legislative History of the Federal Mine Safety and Health Act of 1977, at 624 (1978). 

Whether Employee Consent is Required for Disclosure of the Personnel Files 

I find that consent is not legally required prior to the disclosure of relevant information 

contained in personnel files to MSHA. Neither the Mine Act nor HIPAA require it. Further, 

permitting operators to condition disclosure upon consent where it is not legally required would 

burden the Secretary’s swift and efficient investigation of discrimination claims without 

resulting in any greater privacy protection for the employee. Redaction of files to remove nonrelevant personal information provides employees with comparable protection without imposing 

any of the potential costs. Indeed, this is what is commonly done and what the Respondent in fact 

did prior to producing the requested personnel files.14 

Whether the Secretary’s Investigative Powers Enable Her to Request Personnel Files 

HCC argues that not only did the Secretary violate the constitutionally protected privacy 

rights of HCC and its employees, she also exceeded her investigative powers under the Mine 

Act. In response, the Secretary contends Section 103(a) when read in conjunction with Section 

103(h) grants her the authority to request personnel files pursuant to a discrimination 

investigation. Under section 103(a)(30 U.S.C. § 813(a)) the Secretary has the power to conduct 

investigations for, inter alia, the purpose of determining compliance with the requirements of the 

Mine Act. She argues that under section 103(h) she is entitled to files that are ‘reasonably 

required’ to enable her to perform her functions under the Act. 30 U.S.C. § 813(a). The 

Commission has stated that when the Secretary exercises her investigative powers under Section 

103(a) she is not limited to receiving just that information the operator is required by regulation 

to maintain. BHP Copper, 21 FMSHRC at 766. In order to determine to what additional 

information the Secretary is entitled a Chevron analysis is useful. In BHP Copper the 

Commission outlined how to proceed: 

[The first inquiry in statutory construction is] “whether Congress 

has directly spoken to the precise question at issue.” Chevron, 467 

U.S. 837, 842 (1984). Thunder Basin Coal Co., 18 FMSHRC 582, 

584 (Apr. 1996). If a statute is clear and unambiguous, effect must 

14 Although HCC contends that Section 103(h) of the Mine Act mandates that all records 

collected by the Secretary be open for public inspection, potentially subjecting the private 

information contained therein to public disclosure (Resp. Post-Trial Supp. Sub. 3) and that the 

information might be released pursuant to a Freedom of Information (“FOIA”) request, noting 

that social security numbers given to MSHA investigators during the Sago investigation became 

public (HCC Resp. 10), this argument is speculative and will not be considered. HCC has offered 

no evidence beyond its assertions that the private information is likely to be disclosed. Smith 

credibly testified personnel files are not released to the public or made available for public 

examination. Tr. 98. He stated the information may become subject to disclosure during a 

judicial proceeding. Id. However, should disclosure prove necessary during a judicial 

proceeding, steps, such as redaction, can and usually are taken to protect the information. 

34 FMSHRC Page 801
be given to its language. See Chevron, 467 U.S. at 842-43; accord 

Local Union No. 1261, UMWA v. FMSHRC, 917 F.2d 42, 44 (D.C. 

Cir. 1990). If, however, the statute is ambiguous or silent on a 

point in question, a second inquiry, commonly referred to as a 

“Chevron II” analysis, is required to determine whether an 

agency's interpretation of a statute is a reasonable one. See 

Chevron, 467 U.S. at 843-44; Thunder Basin, 18 FMSHRC at 584 

n.2; Keystone Coal Mining Corp., 16 FMSHRC 6,13 (Jan. 1994). 

Deference is accorded to “an agency's interpretation of the statute 

it is charged with administering when that interpretation is 

reasonable.” Energy West Mining Co. v. FMSHRC, 40 F.3d 457, 

460 (D.C. Cir. 1994) (citing Chevron, 467 U.S. at 844). The 

agency's interpretation of the statute is entitled to affirmance as 

long as that interpretation is one of the permissible interpretations

 the agency could have selected. See Joy Technologies, Inc. v. 

Secretary of Labor, 99 F.3d 991, 995 (10th Cir. 1996), cert. 

denied, 520 U.S. 1209 (1997), citing Chevron, 467 U.S. at 843; 

Thunder Basin Coal Co. v. FMSHRC, 56 F.3d 1275, 1277 (10th 

Cir. 1995). 

BHP Copper, 21 FMSHRC at 764. 

The Mine Act is silent on whether the Secretary’s investigative power gives her access to 

employee personnel files. As a result, under Chevron II analysis, the next inquiry is whether the 

Secretary’s interpretation of sections 103(a) and 103(h) is reasonable. Section 103(a) states in 

pertinent part: 

Authorized representatives of the Secretary . . . shall make 

frequent inspections and investigations in coal or other mines each 

year for the purpose of . . . (4) determining whether there is 

compliance with the mandatory health or safety standards or with 

any citation, order, or decision issued under this title or other 

requirements of this Act. 

30 U.S.C. § 813(a). 

Section 103(h) states in pertinent part: 

In addition to such records as are specifically required by this 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. (emphasis added). 

30 U.S.C. § 813(h). 

34 FMSHRC Page 802
 

Section 103(h) provides the Secretary access to records, “In addition to such records as 

are specifically required by this Act.” It is clear from the text of the section Congress specifically 

intended for the Secretary to have access to more than just those files required to be kept under 

the Mine Act. Also, section 103(h) requires the operator to “provide such information as the 

Secretary . . . may reasonably require from time to time to enable [her] to perform [her] 

functions under this Act.” (emphasis added). One such function is the investigation of 

discrimination claims made by miners to determine whether there has been a violation of the 

Act. 

The requirements for establishing a prima facie case of discrimination under section 

105(c) of the Mine Act are well-established. The complainant must demonstrate “(1) that [he] 

engaged in a protected activity, and (2) that the adverse action was motivated in any part by the 

protected activity.” Sec’y of Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 

2786, 2799-2800 (Oct. 1980), rev’d on other grounds sub nom. Consolidation Coal Co. v. 

Marshall, 663 F.2d 1211 (3rd Cir. 1981). Circumstantial evidence of discriminatory intent 

includes: (1) knowledge of protected activities, (2) hostility or animus towards the protected 

activity, (3) coincidence in time between the protected activity and the adverse actions and 

(4) disparate treatment. Sec’y of Labor on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 

2508, 2510 (Nov. 1981), rev. on other grounds sub nom. Donovan v. Phelps Dodge Corp., 

709 F.2d 86 (D.C. Cir. 1983). Typically, disparate treatment occurs when other employees guilty 

of the same or more serious offenses as the miner alleging discrimination escape his disciplinary 

fate. Chacon, 3 FMSHRC at 2512. The Mine Act should be construed liberally to effectuate the 

purposes of the Act and promote miner safety. Hanna Mining Company, 3 FMSHRC 2045, 2048 

(1981), MSHA v. Westmoreland Coal Company, 606 F. 2d 417, 420 (4th Cir. 1979). 

Where the Secretary’s function is the evaluation of a discrimination claim, information 

that is relevant to assessing the merits of that claim, including evidence of protected activity, 

adverse action or discriminatory intent may be “reasonably required.” Such information 

commonly includes information related to company practices and procedures, information about 

the complainant’s disciplinary and work history, and information about similarly situated 

employees, all of which is often contained in personnel files. I find that the Secretary’s 

interpretation of sections 103(a) and 103(h) is reasonable and entitled to deference under 

Chevron II analysis. Accordingly, I find that the Secretary was entitled to the requested 

personnel files and that HCC violated section 103(a) of the Mine Act when it refused to provide 

the files.15 

15 In the context of a 105(c) discrimination claim, the requirement in 103(h) that the information 

sought be “reasonably required” obligates the Secretary to have a reasonable understanding of 

the complainant’s claim prior to making any requests to the operator for documents, interviews 

or other information. Smith’s credible testimony demonstrates he had such an understanding and 

did not, as HCC claims, embark on a “fishing expedition.” Rather, based on the allegations made 

by Gatlin in his complaint and his subsequent interview, Smith investigated the merits of his 

discrimination claim. 

34 FMSHRC Page 803
Whether the 104(b) Withdrawal Order was Valid 

Relying solely on its reading of the Mine Act, HCC contends that 104(b) orders cannot 

be issued for violations where there is no “area affected.” I disagree. The Commission has not 

recognized this principle and a careful reading of the Mine Act does not support HCC’s 

interpretation of the Act. 

Section 104(a) states in pertinent part: 

“If, upon inspection or investigation, the Secretary or his 

authorized representative believes that an operator of a coal or 

other mine subject to this Act has violated this Act, or any other 

mandatory health or safety standard, rule, order or regulation 

promulgated pursuant to this Act, he shall, with reasonable 

promptness, issue a citation to the operator.” 

30 U.S.C. § 814(a). 

Section 104(b) states: 

“If, upon a follow-up inspection of a coal or other mine, [the] . . . 

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 form 

entering, such area until [the] . . . representative . . . determines 

that such violation has been abated.” (emphasis added). 

30 U.S.C. § 814(b). 

It is clear from the language of section 104(a) that Congress intended to permit the 

issuance of citations under the section for not just violations of health and safety standards but 

also of any provision of the Act, including violations of section 103(a). Prior to the issuance of a 

104(b) order the Secretary must find (1) that the violation cited under section 104(a) was not 

totally abated within the abatement period and (2) that the abatement period should not be 

extended. HCC incorrectly treats the following clause as an additional requirement, “[the 

representative] shall determine the extent of the area affected by the violation and shall promptly 

issue an order requiring the operator of such mine . . . to immediately cause all persons . . . to be 

withdrawn from . . . such area until [the] . . . representative . . . determines that such violation has 

been abated.” This clause is separated from the clauses detailing the requisite findings by a 

34 FMSHRC Page 804
 

comma, and in contrast, describes action to be taken. The precise meaning of the clause is 

unclear. The Secretary has interpreted the clause to mean that if the representative determines 

no area is affected she need not withdraw any miners and can issue a “no persons affected” 

104(b) order. Section 104(b) applies to 104(a) citations issued for violations of the Act other 

than violations of health and safety standards. As a result, it may apply in situations where there 

is no area affected and there are no miners to withdraw. For these reasons I find the Secretary’s 

interpretation of the Mine Act to be reasonable and entitled to deference under Chevron II 

analysis. 

While the Secretary may choose to obtain the requested personnel files via an injunction 

(30 U.S.C. § 818(a)(1)), the Commission has stated that an injunction is not the exclusive 

remedy available to the Secretary when an operator refuses to produce documents requested 

pursuant to an investigation. BHP Copper, 21 FMSHRC at 766. The Secretary may choose to 

instead impose a citation and penalty. Id. I find that by imposing citations, an order and civil 

penalties for HCC’s failure to produce the requested documents the Secretary utilized 

enforcement mechanisms provided her by the Act, and I conclude that her choice to exercise 

these mechanisms was not improper. 

Whether the Secretary’s Request was Unduly Burdensome 

HCC also argues that “[t]he request [was] unduly burdensome and tantamount to 

harassment in the overly broad, sweeping request for all files covering a five-year period.” 

HCC’s Mot. for Exped. of Proceedings 2 (emphasis in original). While such a request could 

potentially be burdensome there is no persuasive evidence in the record that HCC actually found 

the request to be so. Rather, Adelman testified that he did not believe MSHA was entitled to the 

documents and would not have provided them even if the Secretary’s request was modified. 

Although the Respondent claimed in its filings that providing the Secretary with the requested 

documents could implicate the files of over 500 employees, the search for the requested 

documents in fact took approximately five hours, and in addition to Gatlin’s file, four redacted 

files were ultimately produced. Tr.158. 

Whether HCC had Fair Notice of the Secretary’s Interpretation of the Mine Act 

HCC contends it lacked fair notice the Secretary interpreted the Mine Act to give her 

access to personnel files when she exercises her investigative powers. I find HCC’s argument 

unpersuasive. The company was provided with notice of the Secretary’s interpretation when Carl 

E. Boone II, District Manager, sent its counsel, Marco M. Rajkovich, Jr., a letter dated February 

23, 2009 requesting the personnel file of Gatlin and the personnel files of other similarly situated 

employees as part of MSHA’s investigation of Robert Gatlin’s discrimination claim. Notice was 

also provided through subsequent letters from MSHA reiterating its request. See Gov. Ex. 6, 

Gov. Ex. 8. In a letter dated March 20, 2009 Boone state that HCC still refused to “produce 

Mr. Gatlin’s personnel file and the personnel files of any other employees who were terminated 

for the reason that Mr. Gatlin was terminated” and he “note[d] the repeated refusals of the 

34 FMSHRC Page 805
 company to provide documents and information to which MSHA is clearly entitled under the
 

Act.”16 Gov. Ex. 8 (emphasis added). I conclude HCC had adequate notice of the Secretary’s
 

interpretation. 

SUMMARY OF FINDINGS AND ORDER 

I have found that the Secretary was entitled to the personnel files requested by Smith 

during his investigation. In addition, I find that the Secretary rightfully exercised her discretion 

in issuing a 104(b) withdrawal order to HCC when it failed to abate the citation and that the 

initial citation, Citation No. 6694904, the 104(b) withdrawal order, Order No. 6694905, and the 

subsequent citation, Citation No. 6694906, are valid. 

I have further found that the violations of section 103(a) alleged in Citation No. 6694904 

and Citation No. 6694906 occurred. However, I conclude that Adelman honestly but mistakenly 

believed, in the face of the Secretary’s repeated requests, that production of the records was not 

required. Accordingly, I modify Citation No. 6694906 by changing the inspector’s negligence 

finding of “reckless disregard” to “moderate negligence.” The inspector found that there was 

no likelihood the violations would result in an injury or illness, and I agree. The violations were 

not serious. 

The parties stipulated at hearing that HCC is a large operator and the proposed penalties 

will not affect its ability to remain in business. The Secretary did not assess penalty points for a 

lack of good faith or decrease the assessed penalties for good faith abatement. I agree with the 

Secretary’s determination. Due to its mistaken belief that production was not required, HCC did 

not timely abate the cited violation. Accordingly, I neither reduce nor increase the penalties 

based on this criterion. The Secretary proposed a civil penalty of $112.00 for the violation 

alleged in Citation No. 6694904, and I assess that amount. She proposed a civil penalty of 

$436.00 for the violation alleged in Citation No. 6694906. However, the parties agreed the 

proposed penalty should have been $1,500.00 ($500 per day in daily penalties) for operating in 

the face of a withdrawal order, and the Secretary’s penalty petition was amended to reflect that 

fact. See Tr. 13 -14. Given that I have found HCC’s negligence to be moderate rather than 

reckless, I assess a reduced civil penalty of $1,050.00 ($350.00 per day) for HCC’s violation of 

section 103(a) and for its continuing operation in the face of a withdrawal order. 

For the reasons above I find that the contested citations and order were validly issued. 

Accordingly, they are AFFIRMED. 

16 HCC is represented by an experienced attorney, familiar with the Mine Act, who should have 

been aware the Secretary had adopted this interpretation from the letters sent to him by Boone. 

34 FMSHRC Page 806
 

 

It is ORDERED that Citation No. 6694906 be MODIFIED to reduce the degree of 

negligence from “reckless disregard” to “moderate.” 

The Respondent is further ORDERED to pay a civil penalty of $1,162.00 within 30 days 

of this order.17 This decision resolves all issues with respect to the above-captioned contest and 

civil penalty cases. Upon receipt of payment the above-captioned cases are DISMISSED. 

/s/ David F. Barbour 

David F. Barbour 

Administrative Law Judge 

Distribution: (Certified Mail) 

Theresa Ball, Esq.; Thomas A. Grooms, Esq.; Matt S. Shepherd, Esq.; U.S. Department of Labor, 

Office of the Solicitor, 618 Church Street, Suite 230, Nashville, TN 37219-2456 

Gary McCollum, Esq., Hopkins County Coal, LLC, 771 Corporate Drive, Suite 500, 

Lexington, KY 40503 

Marco M. Rajkovich, Jr., Esq., Melanie J. Kilpatrick, Esq., Rajkovich, Williams, Kilpatrick & 

True, PLLC, 2333 Alumni Park Plaza, Suite 310, Lexington, KY 40517 

/ca 

17 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.
 

34 FMSHRC Page 807
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
 

601 NEW JERSEY AVENUE N.W. SUITE 9500
 

WASHINGTON, D.C. 20001
 

Telephone (202) 434-9933

 April 3, 2012 

SECRETARY OF LABOR, obo, : DISCRIMINATION PROCEEDING 

TRAVIS CAUDILL :

 Complainant : 

: Docket No. KENT 2010-1580-D 

: PIKE CD 2010-07

 v. : 

: 

CAM MINING, : Mine No. 28

 Respondent : Mine ID 15-18911 

DECISION 

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

Nashville, Tennessee for the Complainant 

Mark E. Heath, Esq., Spilman Thomas & Battle, PLLC, Charleston, 

West Virginia, for Respondent 

Before: Judge Moran 

Introduction 

In this discrimination proceeding under section 105 (c)(1) of the Mine Act, the Court 

finds, for the reasons which follow, that the Complainant, Travis Caudill, engaged in the 

protected activity of making safety complaints, by informing his superiors that there was 

insufficient time for him to perform his job as a pre-shift examiner. Only after the Respondent 

was cited by MSHA for failing to do the preshift, did Cam Mining take the adverse action of 

discharging the Complainant, singling him out among many who failed to perform duties related 

to those preshifts. The Court further finds that Cam did not establish any affirmative defense to 

show that there were unprotected activities to justify its adverse action. 

34 FMSHRC Page 808
 

Findings of Fact 

The Complainant, Travis Caudill, testified first.1 He began working for Cam Mining 

(“Cam”) in 2002 or 2003, starting as a roof bolter.2 Tr. 17. Near the end of 2009, he became a 

certified foreman. Tr. 28. His work in that position included involvement with the creation of a 

new opening at the mine.3 

After that opening, referred to as the “Marrowbone,” was completed, Caudill was 

assigned as an examiner. It was in that position, as an examiner, that the events in controversy 

arose. Tr. 34. In that role Caudill was to examine the travelways, the head drives, the belts, and 

the refuse chambers. This work occurred on the “about half of the second shift and all of the 

third shift.” Accordingly, he was doing two examinations each day he worked. Thus, he did the 

preshift for the oncoming third shift and then the preshift for the day shift. These exams were to 

be done between 8 to 11 and 3 to 6, respectively. Tr. 35.4 The hoot owl shift started at 11 and 

1

Mr. Caudill is is currently employed at another mine as a maintenance engineer, helping 

electricians. 

2

 Some testimony, from both sides, addressed the assertion that Caudill made safety 

complaints at a time prior to the time in issue in this proceeding. As the Court expressed at the 

hearing, it considers those events to be unconnected to this proceeding. Further, whether the 

prior safety complaints occurred or not, both sides agree that, subsequent to those events, Caudill 

was promoted. Accordingly, those earlier events play no part in this decision. 

3

 While not critical to understanding this case, some background may be helpful for 

context. Subsequent to becoming a certified foreman, Caudill was assigned to do a different 

job, putting him at the number five, where Cam was constructing a pass through. Tr. 29. Frank 

Smith, the mine superintendent, had Caudill involved in this task, under which he was to oversee 

the top and prepare the mine for the track that would be installed. Tr. 30. This was part of the 

mine’s effort to create a new opening at the mine during 2009 or the early part of 2010. Thus, 

Caudill was part of the effort to create the new entry for miners, known as the “Marrowbone” 

site. Tr. 30. The mine then had two portals: the “Hellier side,” also referred to as the 

“Marrowbone” and the “Rob Fork,” on the other side. The Rob Fork was the original portal. Tr. 

31. The result was that the mine then had two slope entrances. Caudill’s job at that time was to 

help get everything ready to “flip-flop the air” so that they could be pulling air on the other side 

of the mountain. Thus, he agreed this project resulted in major ventilation changes at the mine 

with his tasks involving many aspects of this effort, not just ventilation. Tr. 32. During that 

effort Caudill was employed as a foreman, in charge of two to three other miners. Also then, he 

was working the day shift, reporting to Frank Smith and Reggie Bates. Tr. 33. 

4

 The mine had another preshift examiner, “Mac Sweeney,” who did the preshift exam for 

the second shift. Tr. 73. 

34 FMSHRC Page 809
the first shift at 6. Caudill would arrive for work around 7 to 7:30 p.m., reporting to Danny 

Conn, the second shift mine foreman. In the time between his two preshifts, that is, from 11 p.m. 

to 3 a.m., Caudill would repair things, such as belt splices. The preshift itself, however, is done 

alone. Tr. 38. Miners were not to enter the mine for their shift until Caudill had called out that 

his preshift was done. Tr. 39. A certified foreman would take down the information relayed by 

Caudill, recording it in the preshift book. Caudill would later “sign off on it, if everything was 

correct.” Tr. 39. Caudill would call out his preshifts reports before 11 p.m. and 6 a.m. Tr. 40. 

There are two separate preshift books for the examiner, such as Caudill, to later review. Tr. 40. 

One was for the belts and outby and the other was for the section. The actual preshift work that 

needed to be done was performed by the section foremen. Tr. 41. Apparently the section 

foremen do some preshifting areas and Caudill would do others, with Caudill doing up to where 

the belt hits the feeder. In the outby area, Caudill’s responsibility to examine encompassed all 

the belts, airways, branches, lifelines, C0s, power centers, refuge chambers, track and roof. Tr. 

41. 

When Caudill first started doing preshifts, Frank Smith and Reggie Bates told him the 

areas that needed to be examined and he traveled with Perry Norman, his predecessor on that 

job, who showed him what the job entailed. Caudill agreed that the job was the same each day, 

in terms of his examining duties. Tr. 43 However, importantly, what he might encounter on a 

given day however was not predictable. Caudill was unsure exactly when he started doing 

preshifts, but thought it was around February 2010. Tr. 44, 46. His last day at work was March 

17, 2010, when he was discharged. 

With his testimony augmented by the use of G 6, a map of the mine, Caudill identified 

the Rob Fork portal on that map, noting that it appears on the upper left side of it. Along with 

the aid of the map, Caudill’s testified as to the areas he would preshift. His preshift duties took 

him all the way to the power center. Working with MSHA Inspector Nathan Mounts, Caudill 

provided his estimates of the time it would take to cover the areas of his preshift. Tr. 48. 

Caudill stated that he had to check various installations and that there were things to do at each 

heading. For example, at the power center, one has to check the refuge chambers and there were 

things to be checked at the head drives. Tr. 52. Caudill also noted that, for a good part of his 

preshift exam, he would have to be hunched over. If one were to walk the whole area, Caudill 

maintained that it would take all day, but no one simply walked the whole distance. Instead, a 

tracked diesel mantrip was used and Caudill’s access was through that diesel mantrip. Tr. 54. 

Others were on the track at the same time Caudill was on it, using different vehicles. Although 

the mantrip helped, Caudill was not able to use it for the entirety of his preshift exam. Tr. 56. 

For example, one would need to leave the mantrip to inspect the head drives and around the 

power centers and the refuge chambers in order to adequately inspect those areas. Tr. 58. Also, 

going toward the two section, Caudill had to walk the belt because there are two separate entries 

and each area had specific things that needed to be checked. Tr. 57. 

34 FMSHRC Page 810
 

 

Further, in checking the power center, one has to make sure that all the required things 

are present; one also has to walk around and check the ribs as well as the fire extinguisher and 

rock dust. Tr. 60. Some installations were in areas that were difficult to access.5 

Caudill was doing the preshift on the Rob Fork side when he first started doing that job 

and, even then, he was “stretching it” to get it done. Later, he would have to go “portal to 

portal” when the miners started entering the mine on the Marrowbone side. When that switch 

occurred and his position switched to the Hellier (aka, the “Marrowbone”) side, all of Caudill’s 

men were still over on the Rob Fork side. Tr. 65. This meant that Caudill then had to backtrack, 

something he did not have to do when he entered from the Rob Fork side. Tr. 65. In explaining 

how he would have to “backtrack,” (i.e. retrace his route), Caudill stated that he would enter 

from the Marrowbone portal. When starting the second of the two preshifts he would do each 

day he worked, that second preshift, which was the 3 a.m. preshift, would start that from 

wherever he happened to be when that time arrived. Thus it was when he would start his second 

preshift exam that he would need to “backtrack.” By contrast, for his first preshift of a given 

day, that would begin at the Hellier side. Tr. 71. Caudill would do repair work in the interim 

between the two preshifts he would perform each day. It is also noteworthy that when Caudill 

rode on the tracked vehicle, he would sit, but in a semi-reclined position, because the roof was 

too low to allow him sit up fully, the way one would if one were in an automobile. Tr. 74-75. 

Given that, to properly examine the area, Caudill could not travel too fast in the tracked vehicle. 

Tr. 75. He would also have to mark his date, time and initials at each place he would stop. Tr. 

76. The boards to list that information were located along the belt line. Tr. 76.6 

It was Caudill’s testimony, and the Court specifically finds this to be credible, and the 

fact, that simply to run through the preshift, with no ride available, it took more than 3 hours’ 

time. Further, that time would increase if one had to correct or fix anything in the course of the 

preshift. Tr. 62. Caudill stated that he did keep telling those above him that he didn’t have 

sufficient time to do the preshift properly and the Court also finds this to be the fact. These 

statements constituted safety complaints. Among those he informed of this problem were Danny 

Conn, Seth Haynes (the chief electrician) and Reggie Bates. Tr. 63. 

Mr. Caudill stated that there were times when he had help doing his preshift exams. Tr. 

78. Danny Conn and Seth Haynes would help him. Tr. 78. In the course of his testimony, 

5

 As an example cited by Caudill, he stated that just outby six drive, one has to go over 

the belt to get to it. This requires first shutting off the belt, crossing it, then checking the refuge 

chamber, and then returning to the starting point. Tr. 61-62. 

6

 Another factor, among many, that would eat into the time he expended in his preshift, 

would be if he ran into another miner using the same track. This would necessitate that he back 

up his vehicle to get out of that miner’s way. Tr. 80. Walking the belt line, because it could not 

be examined from the tracked vehicle, and making necessary corrections, such as attending to 

draw rock, were also time consuming. Tr. 80. 

34 FMSHRC Page 811
 

Caudill reasserted, several times, that he did inform others that he did not have sufficient time to 

time to do the preshift exam “the way it needs to be done.” Tr. 78. The Court finds this to be the 

fact as well. 

Caudill identified on the map the location of the East Mains, an area of his preshift that 

was discussed by various witnesses.7 Tr. 82. The reduced height in the East Main required that 

one “duck walk,” that is, one could not stand fully erect in that area. Tr. 83. There is no track 

that goes to the East Mains. Instead that area of the mine had a “permissible ride,” which ride is 

similar to small 4 wheeled vehicle, and very much like an electric golf cart. Tr. 91. It was the 

only such vehicle of that type at the number nine power center. Tr. 92. Caudill’s testimony 

established that the performance of the preshift was not simply a matter of looking at things. 

This was because, during the course of the preshift exam, things would be discovered that 

needed attention. For example, Caudill might come upon rock which would need to be pryed 

down. Caudill’s recollection was that there were nine initial boards in that area requiring his 

date, time and initials or “DTIs.” Tr. 84. During the time in the week before the violation was 

issued by MSHA, Caudill did not examine the East Mains at all.8 As previously noted by the 

Court, it was Mr. Caudill’s credible testimony that he kept telling mine officials that they needed 

7

 Respondent’s Counsel challenged some of the information in the map referenced by 

Caudill, but this was apparently attributable to some changes, in that the map used at the 

deposition listed, inaccurately, some belts which did not exist at the time in issue; i.e. at the time 

of Caudill’s discharge. Tr. 160. It is true that Caudill worked with MSHA inspector Fletcher, 

providing the inspector with information to add particulars associated with the map. At any rate, 

Caudill did make remarks during his deposition pertaining to the map which was then being 

used, and which remarks were in error. For example, Caudill agreed that he misstated 

information pertaining to a conveyor belt, when in fact that belt was not present at the time of his 

discharge. The Court viewed these inconsistencies, which the Complainant did not essentially 

disagree with, as tangential to the heart of the matter in this case. Tr. 165. Counsel for 

Respondent also attempted to show that the Complainant was inconsistent in his testimony as to 

the length of time it took to examine the preshift areas. Tr. 164-165. In his deposition, Caudill 

stated that it took about an hour and a half to walk the East Mains. Tr. 166. Respondent asked 

the Court to take notice of the decision made by the administrative law judge that ruled in the 

temporary reinstatement case in that, while Caudill stated it took an hour and a half to examine 

the area, company officials stated it took only 40 minutes. The Court noted that it could take 

notice of the prior judge’s finding, that is, that it was made, but that it is in no way bound by that 

prior determination, in terms of accepting that it was correct. If that were the case, there would 

be no point to a subsequent hearing, as the temporary reinstatement proceeding would have 

resolved all issues. Tr. 167. 

8

 Caudill slightly modified this statement, asserting later that this involved four or five 

days of not examining that area. Tr. 86. The outcome of this case certainly does not turn on 

such details. 

34 FMSHRC Page 812
to fix his ride. He told them there was not enough time to walk the area and still take care of all 

his other responsibilities. Tr. 85-86. 

Caudill also stated, and again the Court finds this as a fact, that he told Danny Conn and 

Seth Hayes about the ride not working in the East Mains on the first day he discovered that it 

was not functioning. Tr. 89. Caudill stated that Mr. Conn told him that he would take care of it, 

and he interpreted that response to mean both that the ride would be repaired and that Conn 

would examine the East Mains.9 Tr. 90. Seth Haynes was present during Caudill’s exchange 

with Mr. Conn. Haynes, as the Chief Electrician, was the person most likely to do such a repair. 

Tr. 91. Caudill stated that he believed, or at least assumed, that someone else was examining 

the East Mains, when he did not have time to do that due to the ride being broken. Tr. 96. 

It was Caudill’s credible contention that one was not to list problems in the preshift book; 

that one would get in trouble if that was done. Thus, he stated that Reggie Bates told him not to 

put information regarding hazards in the books. Tr. 102. Instead, the practice was for one to tell 

others about problems and they would get them fixed. The thinking behind that was that 

recording such matters “looks bad on the books.” Tr. 103. Caudill maintained that the company 

wanted the books “to be clean because the inspectors look at it.” Tr. 105. The Court concludes 

this to be a plausible assertion and finds it to be the fact. As Caudill explained the practice 

further to the Court, he would enter a problem in the books when he could fix it then and there. 

If not, he would, in the example of an electrical problem, tell the electricians. Such a problem as 

that is written down, but in a separate book, not in the preshift book.10 Tr. 104. Instead, his 

practice was not to sign off on the book, if a problem was found and not fixed immediately. 

9

 Caudill stated that he would record his exams for the East Mains in one section in the 

preshift book. This is a separate section book from where he would record the rest of his 

examination. However, he never looked at the book during the time he was not examining it, to 

see if someone else was recording that the area was being examined. Tr. 98. He further stated 

that he never wrote in the book that he was examining the area, when he was not actually doing 

that. Tr. 98. The Court accepts this and notes that the Respondent never presented record 

evidence contradicting that. Caudill only told people that the ride was broken; he never wrote 

that down and he never wrote down that he was unable to do the East Mains. Tr. 100-101. 

10 Caudill believed that while recording a hazard he found was an obligation during his 

preshift, he believed there was no duty to record things he was unable to do during that time. 

Thus, he expressed that not being able to complete his preshift because of insufficient time was 

not a “hazard” and therefore there was no obligation to record such an omission. Tr. 217. Thus 

he maintained that he did not have to record “stuff [he] didn’t do.” Tr. 217. No case law 

supporting the idea that this would be a recordable hazard was presented at the hearing nor in the 

post-hearing briefs. Tr. 218. 

34 FMSHRC Page 813
Caudill also informed that others were required to sign the preshift books, naming Frank 

Smith and Reggie Bates as specific examples of such others. Of course, Caudill agreed that only 

he would observe the conditions firsthand as he was the only one doing the actual preshift 

exam.11 

On March 17th, Caudill did not know that MSHA inspector Nathan Mounts was 

underground. Tr. 120. On that day, Caudill stated that he called out his preshift, then came 

outside, then filled out his books. Tr. 121. Caudill told Reggie Bates that he did not have time 

to get up to the East Mains and that Bates responded that he took care of it. Tr. 122. Frank 

Smith spoke to him later that day and told him that the mine was going to have to suspend him 

for three days and that, following a meeting with others, he faced possible dismissal. Tr. 123. 

Smith told him that the basis was that he had not been making his preshift but had been signing 

off the books that he had been doing his preshifts. Tr. 124. Caudill responded that he had not 

been making his preshifts but that he had not signed anything that he wasn’t supposed to be 

signing. Thus, he denied the aspect of falsely signing the books. Tr. 124. He told Smith that he 

hadn’t been able to do the preshift because there was not enough time to do it. Smith countered 

that he believed there was sufficient time to do the preshift. Tr. 124. Caudill spoke to people on 

the telephone about the issue, but did not recall receiving any letter regarding termination of his 

employment. Tr. 126. 

 Caudill affirmed that the first day he was notified that he may be fired was March 17, 

2010.12 Tr. 137. On that day he had come from his home to the mine and then received the 

telephone call from Mr. Smith. Smith advised him then that he was on a three day suspension 

pending a meeting to see if termination would occur. Tr. 138. Caudill then returned to his 

home. The conversation with Mr. Smith was, in Caudill’s estimation, about ten minutes. Tr. 

139. Smith told him that the basis was that Caudill had signed off on the books, attesting that the 

preshift had been done, when in fact it had not been done. Tr. 140. Caudill, responding with 

11 Shown R’s Exhibit 7, Caudill identified it as a preshift for the 004 section, at Cam 

Mining Number 28 mine for the East Mains, covering March 14-17, 2010. Tr. 109. It was 

signed off by Joe Akers, who is the section boss for the three section, or the one section on the 

third shift. Tr. 110. Akers’ job, as reflected on that exhibit, included examining the East Mains, 

at least on those dates. Tr. 111. Caudill’s practice was to “sign off” on the preshift book by 

adding his initials to it when he would end his day. The same page with Akers’ (initials or 

signature) was countersigned by Reggie Bates and it reflects a time of examination as 9 to 10 

p.m.. Tr. 111-112. Caudill stated that he did not believe that he examined the East Mains from 8 

to 11 p.m. on that date. Tr. 112. The Court noted, and Caudill agreed, that the first page of that 

exhibit listed three locations that were examined, including 1 through 9 East Mains but Caudill 

stated those did not reflect all the areas that he had the responsibility to inspect. Tr. 113-114. 

12 Caudill stated that, following his discharge, he has since obtained other employment. 

At the time of the hearing he was working 50 to 55 hours per week for another mine. Tr. 133 

and see n.1. 

34 FMSHRC Page 814
some emotion, but no cussing, told Smith at that time that he had not done those things claimed 

by the mine. Tr. 140-141. He was told to come back in three days to meet with the supervisors 

over the issue, but that promised meeting never occurred. 

After the three days passed, Caudill called Mr. Smith. He tried to reach others, including 

Jack Holbrook, the CEO of the company. Tr. 144. He did reach Smith but was given no 

answers about his status and was again told he would have to speak with Mr. Holbrook. Caudill 

again told Smith he did not do what he was accused of doing. Tr. 145. At the end of the call, 

Caudill did not know what his employment status was.13 Tr. 145. Caudill next drove to the mine 

the following day, but no one was available to speak with him. He returned again the day after 

that and talked with Frank Smith and Joey Baldwin, but neither of them could tell him anything 

and he left again, with no information about his status. Finally, some five or six days later, he 

was able to reach Jack Holbrook, who told him that they were letting him go for falsifying 

records.14 As Caudill stated, “Jack [Holbrook] told me he had seen my name somewhere in the 

book.” Tr. 148. Caudill testified that he responded that he “didn’t sign off on any book.” Tr. 

148. Caudill maintained that his initials only appeared where they were supposed to appear, that 

is, only where they legitimately belonged. Tr. 149. As noted, Caudill was never given the 

promised meeting. Tr. 148- 149. Further, he did not remember ever receiving a letter of 

termination. Tr. 153. 

In the Court’s inquiry of Mr. Caudill about the “ride,” which refers to the permissible 

ride, which was not operating during the time in issue, Caudill stated that the ride was in its 

location for the very purpose of traveling to the East Mains Panel and that it was there solely for 

that purpose. Tr. 194, 201. The Court finds that to be the fact. Caudill also agreed that, 

although the ride was broken on the 10th, he was able to complete his inspection on that day, 

including inspecting the East Mains. Tr. 194. Caudill maintained that he was barely able to 

complete the exam on that day and that, to get it done, he was “pushing it.” Tr. 195. The 

distinction was that, “[i]f you run into any problems along the way on the rest your exam, you 

wouldn’t have time to complete any of it.” Tr. 196. Caudill explained that, seeing he had 

insufficient time to complete the exam, if he had gone ahead and tried to do it anyway, he 

“wouldn’t have been able to have the ride back in time at the bottom of the port[al] for the men 

to come in.” Tr. 196. 

13 The Court raised a question about the basis for Caudill’s suspension, asking whether it 

was for a failure to examine the East Mains or for falsifying records, or at least what Caudill 

understood the basis to be. Tr. 187-188. Reaffirming that there wasn’t time for him to get to 

that area, Caudill stated that his understanding for the mine’s action against him was the 

allegation of falsifying records. Tr. 189. As just noted, the Respondent never established that 

claim as fact. 

14 It is important to recall that, while the Respondent’s Counsel echoed this claim at the 

hearing, no proof was ever presented to support that allegation. 

34 FMSHRC Page 815
In testimony that the Court views as aiding the Complainant’s case, Caudill agreed that, 

in his earlier testimony at deposition, prior to when he was going up to Rob Fork, he was able to 

do the exam in three hours with the ride. More particularly, Caudill agreed that, with the ride on 

the East Mains, he could “push and get it done.” Tr. 168. As to when they later switched to the 

Marrowbone Creek site, Caudill could still do the 8 to 11 p.m. exam because he didn’t have to 

“double up” (i.e. he did not have to backtrack, or retrace, his steps). Tr. 168. However, it was 

Complainant’s contention that he could not complete the 3 a.m. to 6 a.m. preshift because, for 

that preshift, he would have to start in the middle of the mine, work his way to the portal, and 

then come back. Tr.168. Caudill also maintained that, for the earlier preshift, he was still 

having trouble completing it.15 Tr. 168. Caudill did agree that no one told him that he was no 

longer assigned to inspect his areas of responsibility. Tr. 171. When he received help in 

examining an area, this occurred only when someone happened to be up that way, but he 

couldn’t ask them to do his job. Tr. 172. 

Tending to support that the job took too much time, Counsel for Respondent stated that, 

when Caudill did receive some help in doing his job, they would call him and report that they 

checked a section or perhaps two sections, informing him as to the areas they were able examine 

for him. Tr. 172. Caudill agreed this happened from time to time. Tr. 172. Thus, Respondent’s 

Counsel’s questions demonstrated, beyond Counsel’s attempt to show that Caudill could get 

help, when he needed it, that in fact help was needed. If, as Respondent claims, the preshift 

could truly have been done in a timely manner, such help would not have been needed. 

However, on March 11th, Caudill agreed, no one called him to advise that they had examined an 

area for him.16 Tr. 173. The same was true, that is, no one called Caudill to tell him that they 

had examined some portion of his exam area for the 12th through the 17th. Tr. 173. Caudill did 

state in his deposition that he received help in completing his exams “quite a bit” but at hearing 

he stated it was “from time to time” if a miner was going to be up that way. Tr. 173. Thus, at 

least at the hearing, Caudill stated that he did get help quite a bit, but that help was always 

contingent on another miner being up that way. Tr. 173. Those that did help out at times 

included Danny Conn and Seth Haynes and, at times, Joe Akers.17 Tr. 174. 

15 As far as why he didn’t simply go over to the Rob Fork at the start of his second 

preshift, Caudill stated he could not do that because there were things that had to be done. 

Respondent’s Counsel suggested there was ample time to do those things, during the time 

between 11 and 3. Therefore, Counsel asserted, Caudill could have finished those duties by 2:30 

and made his way over to the Rob Fork side. Tr. 170. Again, Caudill maintained that was a 

possible scenario only if everything was done by that time. Tr. 170. 

16 Regarding the March 11th inspection by Caudill, all he could state with authority was 

that he did not examine the East Mains on that date. Accordingly, he could not state whether 

others, such as Reggie Bates or Danny Conn had done so. Tr. 220. The same situation existed 

for 12th through the 15th. Tr. 220. 

17 Caudill agreed that when he did his exams he could call out and advise that he needed 

(continued...) 

34 FMSHRC Page 816
Caudill also stated that he did talk with Seth Haynes and Danny Conn on the 10th of 

March, advising them that the ride was broke down and he hadn’t been able to make the East 

Mains. Tr. 179. He also told Reggie Bates about the ride being down. This occurred when he 

came outside the mine. This was either on March 10th or the following day. Tr. 180. Caudill 

stated that he talked to Reggie more than one time. One of those occasions was on March 17th 

when he told him he hadn’t been able to get to the East Main panel because the ride was down 

and that he told him that before he came outside of the mine. Tr. 184. Although he believed he 

also told Frank Smith about this in his office, he could not be sure of the date of the 

conversation. Tr. 184. 

Caudill acknowledged that the disciplinary form, which he had apparently not seen until 

just before the hearing, listed his failure to examine the East Mains as grounds for his 

suspension. Tr. 186. Caudill agreed that he admitted to Smith that he had not examined the East 

Mains from the 11th through the 17th but contended that he was told they would take care of it. 

Again, he flatly denied that there was ever any occasion when he signed (i.e. initialed) any 

preshift book indicating that he had examined the East Mains, when in fact, he had not done so. 

Tr. 196-197. Notably, there is no documentary evidence contradicting Caudill on this point. 

Frank Smith, the mine’s superintendent was also called as a witness. Tr. 282. The 

hierarchy is such that James Slone is Smith’s boss and Jack Holbrook is Slone’s. Tr. 283. 

Smith’s office at the time in issue was at the Marrowbone side. Smith acknowledged that he 

traveled with Inspector Mounts on March 17, 2010 and that Caudill took over for Perry Norman 

as the preshift examiner. Tr. 285. Superintendent Smith denied that Caudill ever made any 

complaints to him about being unable to do his job.18 Tr. 286. The Court does not subscribe to 

the superintendent’s version. Smith was aware of Inspector Mounts presence at the mine on the 

17(...continued) 

some extra time, such as ten more minutes, to complete it. Tr. 175. Caudill also agreed that 

there is no requirement that he be provided with a ride to complete his exam. Tr. 176. Though 

not exactly sure, he agreed that, without a ride, completing the examination would take an extra 

10 to 15 minutes time. Tr. 176. Also, in a response which, it would seem, did not tend to help 

Respondent’s claims, Caudill believed that he was able to complete his exam the night before the 

ride broke down. Tr. 176. Although he stated at his deposition that once he saw the ride was 

down, that he didn’t go any further, it was his contention that there simply wasn’t sufficient time 

to do the exam. Tr. 177. Caudill also agreed that he didn’t record in any book that he was not 

able to complete his examination. Tr. 177-178. This last remark has already been discussed in 

this decision. 

18 As noted, Smith maintained the Caudill never had any discussions with him regarding 

problems with the ride during the period of March 11th through March 17th. Tr. 350. Nor, he 

asserted, did Caudill raise any issues regarding sections of the East Mains. Tr. 351. The Court 

finds Caudill’s testimony to be more credible. 

34 FMSHRC Page 817
morning of the 17th. Directed to R 7 at page 2, a document dated March 15, 2010, Smith stated 

the signature there is not his, but rather that of James Smith, the section foreman. Tr. 287. Smith 

agreed that Joe Akers signed the preshift examination report and that Reggie Bates 

countersigned it. Tr. 288. As to gas readings reflected in that exhibit, Smith stated that he never 

requested any discipline against anyone for recording a gas reading on March 15th between 3:30 

and 5:30 a.m. when no reading had actually been taken. Tr. 291. At any rate, when asked if 

anyone else was disciplined, Smith advised that “Travis and [Mac] Sweeney retired.” Tr. 291. 

Accordingly, the Court observes that whether those individuals would have been disciplined is in 

the realm of speculation only. 

More relevant to the issues at hand, Smith agreed that for March 15th, there is no mention 

of the East Mains being examined while conceding that the preshift book was signed by Jeff 

Smith. 19 Tr. 292. Yet, Frank Smith agreed that no disciplinary action was taken against Jeff 

Smith.20 Tr. 293. Frank Smith also agreed that he never tried to determine who else 

countersigned the examination book besides Jeff Smith and that no disciplinary action was taken 

against anyone else either. Tr. 294. And, Superintendent Smith also agreed that while the book 

19 Smith also saw a difference between a preshift examiner not doing his job and a 

supervisor not noting that the job was not complete, because the one reviewing the exam book 

could simply miss the fact that an exam was incomplete. Tr. 364. The Court would agree that 

the preshift examiner is the front line person, but it does not agree that diminished responsibility 

should be awarded to those who are to check, verify, and sign the preshift report. To conclude 

otherwise would endorse the notion that the follow-up is not important. It is and this case 

demonstrates how important that task is. Further, the failure of the person reviewing the book 

was not a one-time event. The failure was repeated over several days. 

20 As to Smith’s interactions with Reggie Bates, Smith stated that MSHA never wrote any 

kind of preshift violation to Bates, but instead a “claim violation maybe and [a] few more 

things.” Tr. 351. Smith was not sure what was issued. Tr. 351. Following that, Smith went to 

the section in issue, observed conditions, compared his observations with Bates’ preshift, and 

then suspended him. Later he was discharged for those events. Tr. 352. Smith also agreed that, 

in March or April of 2010, another miner, Mr. Gray, was “removed” from Mine 28, for not going 

to the deepest point of penetration in his weekly examination. Tr. 352. Upon questioning by the 

government however, Smith admitted that Gray encountered dangerous roof conditions in that 

area and a 105(c) complaint was filed in connection with that matter. That charge was 

apparently withdrawn but the record provides no further explanation about the circumstances, 

nor its ending. Tr. 378-379. MSHA issued an order for the Mine’s failure to perform that task. 

Tr. 353. Trying to establish that Cam discharged employees apart from any MSHA citations 

being issued, Smith identified an employee who was fired following an altercation with a 

foreman and he “thought” employees have been suspended for drug test failures. Tr. 353. 

Suffice it to say that the Court did not conclude that any of this dispelled its conclusion that the 

Respondent’s action against Caudill was in reaction to having received the (d) Order. 

34 FMSHRC Page 818
 

indicated that the East Mains was okay for March 16th, when they went underground no date, 

time, or initials were found for that area on that date. Tr. 294. 

On the date in issue, Frank Smith stated that it was Jeff Smith who called out to Perry 

Norman that the crews could go underground, as the preshift would have been completed. Tr. 

297. Smith stated that it would have been Perry Norman’s duty to know if the East Mains had 

been examined. Smith admitted that he took no action against Norman for allowing miners to go 

underground without assuring that the preshift had actually occurred. Tr. 299. 

Smith maintained that after he received the citation from the inspector he thought he 

spoke with James Slone about it, but couldn’t remember exactly what he (Smith) said to him. 

Tr. 310. He thought the conversation was about what he and the inspector observed in the East 

Mains. Tr. 310. To that, he added that “there was proof that no one had been there to examine 

that area.” Tr. 311. Smith stated that he told Danny Conn to have Caudill call him. Tr. 311. 

Smith also stated that although he spoke with his immediate boss, James Slone, about the 

situation, again he could not recall exactly what was said between them.21 Tr. 311. Describing 

his memory deficit as an inability to recall “exactly what was said” was too generous a 

description on the witness’ part, as Smith offered nothing at all about the substance of that 

conversation. 

Directed to Exhibit G 4, dated March 17, 2010, Smith agreed that it shows his 

handwriting on the second page. He stated he probably completed that form on the 18th of 

March. Tr. 314. When he spoke to Caudill on the evening of the 17th and, with knowledge that 

MSHA had issued the order relating to this matter, Caudill told him that he had not been 

preshifting the area. According to Smith this was the first he knew that Caudill had not been 

preshifting that area. Tr. 314. Smith repeated that he had no prior conversation with Caudill in 

which Caudill informed him that the ride was down and that he was unable to do that area. 

According to Smith, Caudill then told him the ride was down and that he wasn’t going to walk it. 

Tr. 315. Thus, Smith contended that Caudill refused to walk the area, not that it couldn’t be 

done. Smith then advised Caudill of the three day suspension with intent to discharge, adding 

that first there would be a meeting with Jack Holbrook and James Slone before determining if 

Caudill could come back to work. Tr. 315. Also as unlikely, in the Court’s view, as his memory 

failure regarding his discussion with Mr. Slone, Smith could not recall if he had any discussions 

with anybody about suspending Caudill before he made the call advising him of that decision. 

Tr. 315. The meeting between Caudill and upper management never occurred. Smith agreed 

that, as far as he knew, there was to be such a meeting but he claimed he didn’t know if such a 

meeting ever occurred. Tr. 316. 

21 After the Court expressed skepticism about Smith’s contention that he could not recall 

what was said but, Smith admitted that they probably did discuss the situation about Caudill. Tr. 

311- 312. 

34 FMSHRC Page 819
It must be said that Smith was amazingly uninformed about an employee’s right to a 

meeting in such employment decision circumstances. He stated he never followed up or inquired 

about whether Caudill would have or was to have his meeting, nor could he speak as to whether 

such meetings were regularly provided to others in such circumstances. Tr. 317. As alluded to 

earlier, regrettably, the Court did not find Smith to be credible. When asked if he told Caudill 

that a reason for his suspension was falsifying records, his answer was “[n]ot to my knowledge.” 

Tr. 317. Further, when Smith filled out his report the very next morning, he admitted that it did 

not contain the claim in his testimony that Caudill refused to walk the area. Tr. 318. It is, to be 

polite, very unlikely that such a statement, if it actually had been made by Caudill, would have 

been omitted by Smith in that report. Instead, Smith’s report had a very different tone from his 

claim at the hearing because the report stated that the ride was down and that Caudill didn’t 

make the East Mains area for his preshift. Tr. 319. It is notable that, although the report Smith 

filled out has a box for “employee’s remarks,” Smith entered nothing in that space. Tr. 320. 

Further casting doubt upon the reliability of Smith’s testimony, when asked if he ever had any 

conversation with Jack Holbrook about Caudill, Smith asserted that he didn’t think he did. Tr. 

321. 

Regarding the ride Caudill used, Smith admitted its obvious purpose: “They had it out 

there from Mine 32 to help out.” Tr. 342. Later, the ride was moved to the East Mains for use. 

Tr. 343. Smith maintained that he did not know of any problems with the ride until, he thought, 

“the evening when I talked with [Caudill].”22 Tr. 343. At that time Caudill told him the ride was 

“down” (i.e. not working). Smith stated that prior to March 17th, when Inspector Mounts came to 

the mine, he did not know of any problems with the examinations of the East Mains. Tr. 344. 

22 Along this line, Counsel for the Respondent elicited additional testimony designed to 

show that Caudill had sufficient time to do his preshift. Referencing a mine map, Smith’s 

testimony then turned to the areas of the mine that Caudill was responsible and those areas for 

which he was not. Tr. 354-355, G 6. The purpose of this effort was to demonstrate that some 

areas MSHA had considered, in assessing whether Caudill had sufficient time to do his preshift, 

should not have been included in their estimates. This included disputing the speed of travel for 

the mantrip, with Smith expressing that the speed could be twice as fast as the Agency had 

suggested. Tr. 357-358, citing section 352.150 of the Kentucky revised statutes. That section, as 

the record reflects, actually places the maximum speed at 12 m.p.h., but the overriding 

requirement is that a mantrip “be operated at safe speeds consistent with the condition of the 

roads” among other considerations. Tr. 360. Cam also disputed other details of the Agency’s 

time estimate, contending that the emergency shelter, with Smith estimating that, rather than 15 

minutes, it would only take “eight to ten minutes” to examine it. Tr. 362. Not surprisingly, 

Smith expressed that a more reliable method of determining the time to do a preshift exam is by 

actually doing it and timing the results, as opposed to a paper calculation. Tr. 362. The Court 

agrees with that observation, but notes that it is not dispositive of the issue’s resolution. It is 

noteworthy that Smith conceded that he had never accompanied either Mr. Caudill or Perry 

Norman during their examination of the East Mains. Tr. 381. In fact, Smith admitted that he has 

never accompanied anyone in the preshift area involved here for its entire route. Tr. 381. 

34 FMSHRC Page 820
As he recalled, when he then went to the East Mains, the last recorded date of an inspection was 

March 10th. Tr. 344. Smith and the Inspector returned to the surface around 3 (a.m). at which 

point the Inspector had a safety discussion with the men coming in on the evening shift. Tr. 346. 

Smith then received G 1 around 4 or 4:30. 

Testimony was also received from Mr. William May, who is the Human Resource 

Manager at the mine and who has held that position for a very long period of time. Tr. 390. 

With no disrespect to the witness, he offered nothing of value to the determinations involved in 

this case. For that reason, May’s testimony is included only in a footnote.23 

James Slone, the mine’s manager, was the final witness in the proceeding. At the time in 

issue, he was the underground mine manager. Tr. 407. Slone stated that he first became aware 

of the issue regarding Caudill on March 17th during Inspector Mounts’ inspection.24 Tr. 409. 

Slone was not underground with Mounts during the Inspector’s examination and he had never 

heard of any problems in connection with the preshift of the East Mains prior to the 17th. Tr. 

411. All Slone could offer was what others, Inspector Mounts and Frank Smith, told him. He 

then discussed the matter with Smith. Smith spoke with Caudill about Respondent’s suspension 

23 Part of May’s duties include reviewing requests for terminations. In that task, he 

would “make any comments and forward it to the senior manager.” Tr. 391. That typically 

would mean the company’s president, Chris Moravec. Tr. 391. A recommendation for 

termination usually comes from the field and then to May, and from him to the president. Tr. 

391. May stated he was familiar with Caudill’s termination. As he later recalled, on March 22nd 

he received an email from Mr. Holbrook’s secretary, requesting Caudill’s termination. Tr. 392-

394. The email, Exhibit R 7, states “pending investigation of preshift records.” However, as far 

as May knew, no such investigation ever occurred. Tr. 394. Within about a half-hour, May had 

informed that since Caudill was a certified person, he agreed with the request for termination. In 

so opining, May stated that he looked at the disciplinary report and the MSHA order. Tr. 394. 

He made no other inquiry into the matter, such as whether others had responsibilities in 

connection with that preshift exam failure. Tr. 394. In light of the fact that there were 

references in the record to affording an employee a meeting before termination, May was asked 

about that procedure. He advised it was “[b]ased on the circumstances. Sometimes we do, 

sometimes we don’t. It’s not required.” Tr. 397. In terms of whether May believed that any 

foreman associated with the preshift failure should be disciplined, May said he did not know, as 

he did not investigate the matter. Tr. 399. Nor has he ever disciplined a foreman for allowing 

men to enter a mine prior to a preshift having been done. Tr. 399. May could not recall 

objecting to any recent requests for termination. Though he’s been on the job since 2004 with 

Cam, the last such termination request that he balked at, that he could recall, was over a decade 

before, in 2001. Tr. 406. It is fair to conclude that Mr. May simply moved paper along in such 

matters, without any substantive involvement. 

24 Slone also stated that Caudill had never made any safety complaints prior to March 

2010, a fact which the Court considers to be immaterial to this matter. Tr.414. 

34 FMSHRC Page 821
with intent to discharge and Slone spoke with Mac Sweeney, the other examiner. Tr. 412-413. 

The upshot was Sweeney quit rather than face any disciplinary action, as he was ready for 

retirement anyway. Tr. 413. Slone also stated that Phil Gray and Reggie Bates were disciplined 

over examination issues in the spring of 2010. Bates’ issue was failure to do a proper 

examination as was Gray’s issue. Tr. 415. 

Slone also agreed that, based on the fact that there were readings entered in the preshift 

book for dates that the East Mains was not actually examined, that someone had written that 

information into the book, despite there being no DTI’s underground. Thus, he conceded that 

“evidently” someone had falsified the records. Tr. 422-423. Slone expressed that he believed 

Caudill had been the falsifier. Tr. 423. He blamed Caudill because it was his duty, along with 

Mac Sweeney, to do the preshift and have it entered in the books or at least call out the results 

and have someone make such entries. Tr. 423. Slone stuck to his view, blaming Caudill, even 

though Caudill’s initials did not appear in the preshift book for the dates and matters in issue. 

This was based on Slone’s view that it was Caudill’s “duty.” Tr. 424. Contrary to his opinion 

about placing responsibility solely on Caudill, as Slone ultimately conceded, it was Akers and 

Smith’s signatures that appeared in the books. Tr. 424. Yet, despite holding his view, Slone 

admitted that he never went to Hopkins or Smith and asked them as to how that information 

found its way into the preshift book. Tr. 425. Though he agreed that such a false signing is a 

crime, Slone made no inquiry about who committed the apparent crime. Tr.426. Slone never 

took any action against Akers or Hopkins or Jeff Smith about those matters, nor did he have any 

discussions with Frank Smith about what to do regarding those individuals. Tr. 426-427. In 

sum, the Court concludes that Slone’s testimony did not advance the contentions made by the 

Respondent. 

Discussion 

In discrimination actions under the Mine Act, a miner must demonstrate by a 

preponderance of the evidence "(1) that [the miner] engaged in a protected activity, and (2) that 

the adverse action of which the miner complains was motivated in any part by the protected 

activity." Sec'y of Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786, 

2799-2800 (Oct. 1980), rev'd on other grounds sub nom. Consolidation Coal Co. v. Marshall, 

663 F.2d 1211 (3rd Cir. 1981). Under Section 105(c)(1) safety complaints are specifically 

mentioned as activity that warrants protection. 30 U.S.C. §820 (c)(1) (2006). Generally, an 

adverse action is an act or omission by the operator that subjects the affected miner to a 

detriment in his employment relationship or to discipline. Sec'y of Labor on behalf of Jenkins v. 

Hecla-Day Mines Corp., 6 FMSHRC 1842, 1847-1848 (Aug. 1984). Adverse actions include 

discharge, suspension, demotion, coercive interrogation and harassment over the exercise of 

protected rights. Moses v. Whitley Dev. Corp., 4 FMSHRC 1475, 1478 (Aug. 1982), aff'd, 770 

F.2d 168 (6th Cir. 1985). 

34 FMSHRC Page 822
The Parties’ Post-hearing contentions 

A. Caudill’s Tardy filing of his discrimination complaint 

Because it was raised as an issue by the Respondent, the issue of Mr. Caudill’s delay in 

filing his complaint of discrimination needs to be addressed. Caudill’s complaint was due to be 

filed by May 21st, but he did not file his complaint until June 24th. Tr. 131. Thus, Caudill was 33 

days late in filing his discrimination claim. Tr. 189. 

For more than twenty-five years, the Commission has held that the 60 day limit for filing 

a discrimination complaint is not jurisdictional. Hollis v. Consolidation Coal Company, 

6 FMSHRC 21 (January 1984), aff’d 750 F.2d 1093 (D.C. Cir. 1984). The question is whether 

“justifiable circumstances” have been established for the late filing. Descutner v. Newmont USA, 

Ltd., (“2012 WL 894519. In resolving that issue, considerations should include whether the 

miner was proceding as a pro se litigant. Morgan v. Arch of Illinois, 21 FMSHRC 1381, 1386-

87 (Dec. 1999) and Hermann v. IMCO Services, 4 FMSHRC 2135 (1982). 

While Caudill did not proceed pro se, he was effectively acting as such because he did 

not even know that he could make a discrimination complaint, operating as he did under the 

misimpression that a mine which claims a miner falsified records and discharges the miner on 

that basis, provides no grounds for a complaint. Tr. 126, 191-192. It was not until Caudill 

happened to speak to MSHA on a matter unrelated to his discharge that he learned of the 

inaccuracy of his premise.25 Once that error was dispelled, MSHA acted promptly to launch the 

discrimination complaint. Tr. 127. 

It is apparently true that miners, such as Caudill, are advised about their discrimination 

claim rights as part of their annual miner refresher training. However, the Court accepts as 

credible that Caudill was not well schooled in his rights regarding discrimination under the Mine 

Act and this further explains and excuses his missing the filing deadlines. More importantly, he 

was under the impression that those rights did not extend to a situation such as his, when a mine 

operator contends that a miner has falsified records. 

A miner’s inaccurate assumption about grounds for discrimination complaints was also 

referenced in a general sense in Descutner v. Newmont, where Judge Barbour noted that “[t]he 

60-day statutory limitation is not a particularly long filing period in view of the lack of 

25 An MSHA employee, with the nickname “Mousey,” who works with the Agency’s 

special investigations unit, so advised Mr. Caudill that he had recourse regarding his discharge. 

Tr. 215. She informed him that the circumstances he described to her were a basis to file a 

section 105(c) claim. . Mousey was present, as an observer, at the hearing. Tr. 127. Caudill 

never knew of another miner who had filed a 105(c) complaint and it was only after he spoke 

with Mousey and MSHA that he became aware of his right to file a wrongful termination claim. 

Tr. 129. 

34 FMSHRC Page 823
 

sophistication of the average Complainant and the complexity of some of the legal bases for 

bringing a discrimination action.” Id. at *2, quoting Gross v. Leeco, Inc., 7 FMSHRC 219, 229 

(February 1985). 

Having observed Caudill and estimating his level of sophistication as minimal in such 

matters, the Court concludes that this was an understandable misperception. The Complainant 

did not appreciate that if a mine uses such a claim but that, in truth, its adverse action stems from 

displeasure that a MSHA enforcement action resulted against it, a cognizable action exists. 

With no disparagement toward Mr. Caudill, having watched and listened closely to the 

Complainant during his testimony, the Court concluded that he fits the description of the 

unsophisticated miner. 

Another consideration in assessing the appropriateness of a tardy filing is the realization 

that the time limitations exist to assure fairness to the other side, by barring late filed claims 

where evidence has been lost, memories have faded and witnesses have disappeared. None of 

those aspects are involved here. See, Nantz v. Nally & Hamilton Enterprises, 16 FMSHRC 

2208, 2214-15 (Nov. 1994) and Eddie M. Jeanlouis Sr. v. Morton Int’l, 25 FMSHRC 536, 2003 

WL 22208186, Sept. 2003 (ALJ Feldman). 

Accordingly, the Court allows the late filing in this instance. 

B. Determination of Discrimination by Respondent 

1. Though the findings of fact, above, implicitly and expressly address the contentions 

made by the Respondent in its post-hearing brief, a few additional observations and comments 

are in order. Respondent asserts that Mr. Caudill’s discharge “was not motivated, in any way, by 

protected activity; rather it was solely the result of his refusal to do the very job he was being 

paid to do, which placed miners in harm’s way.” R’s Brief at 27. Respondent maintains that the 

Secretary failed to make a prima facie case because Caudill never made a safety complaint to his 

supervisors nor to MSHA. Along this line of argument, Respondent asserts that Caudill never 

complained “that conducting the pre-shifts on foot was a dangerous or unsafe act.” Id. at 28. 

Respondent goes on to note that the “alleged protected activity” was Caudill’s reporting that he 

“did not have time to complete his pre-shift inspection of the area.”26 Id. Apart from the 

Respondent’s witnesses who denied that Caudill ever advised them about the problem, 

26 A twist, Respondent notes that Caudill never recorded in writing that “he had not preshifted his examination areas.” R’s Br. at 28. That would indeed be an oddity to have occurred. 

However, as found by the Court, Caudill did advise, by several means, that the preshift was not 

being completed. He notified his supervisors orally on more than one occasion; he did not enter 

his DTI’s on the boards underground, and he did not record that the preshifts had been done in 

the surface books. In spite of all that, those that review those records uniformly ignored the 

absence of the information. 

34 FMSHRC Page 824
 

Respondent makes the larger argument that, even if it is assumed that Caudill did so report the 

issue, it can not be deemed a safety complaint in any event. R’s Br. at 29. 

The Court does not agree with the Respondent’s perspective. A safety complaint can be 

implicit. One need not expressly label a communication about a problem as a “safety complaint” 

in order for it to be so recognized. Here, Caudill’s repeated expressions to those above him that 

it was no longer possible for him to do the preshift after the ride was broken, was implicitly a 

safety complaint. The whole, indeed the only purpose, of the preshift exam is to make sure the 

mine is safe before miners on the approaching shift enter the mine. If the preshift examiner can’t 

get that vital job done and notifies those above him of that issue, clearly that miner has voiced a 

safety complaint. 

Here, Cam Mining supervisors elected to look the other way, in the face of the safety 

issue raised by Caudill. This continued, despite the evidence right in front of Cam, as evidenced 

by the preshift book’s absence of Caudill’s doing the preshift, for a week. No disciplinary action 

was brought against Caudill until after MSHA learned of the failure and after it had called27 Cam 

on the matter, issuing the Order. Only then did Cam react and its reaction was only against one 

miner, Caudill. Though others above Caudill shared responsibility for this week-long failure, no 

inquiry nor action resulted against those who improperly signed the preshift book. Accordingly, 

consistent with the Court’s Findings of Fact (supra) the idea that Caudill was refusing to perform 

his job is rejected. Rather than wouldn’t, Caudill couldn’t do the entire preshift.28 

Respondent’s Brief also speaks to whether Cam was motivated by Caudill’s protected 

activity when it discharged him. Cam maintains there is no evidence of unlawful activity on its 

part. R’s Br. at 33. Suffice it to say that the Court’s findings of fact demonstrate a different 

conclusion. Clearly, Cam was reacting against Mr. Caudill because of the Inspector’s issuance 

of the 104(d)(1) Order. Cam made no inquiry about and took no action against those who also 

bore responsibility for the lack of preshift exams over a considerable period of time and who 

signed off on the exams despite the fact they should not have done so. Cam’s action came right 

after, not before, the violation was cited by MSHA. So too, because of the Court’s Findings, it 

has been concluded that Cam was aware of the safety problem, but for reasons known only to 

those individuals, decided to skate, rather than address the matter. These conclusions, when 

coupled with the foregoing findings of fact, disposes of Cam’s other arguments at pages 33- 36 

of its post-hearing brief. Finally, Cam makes the argument that, even if its motive was unlawful, 

it still had sufficient grounds to discharge Caudill for his unprotected activities alone. This 

defense rests on acceptance that Mr. Caudill allegedly told Mr. Smith that the ride was broken 

and therefore he wouldn’t walk it. R’s Br. at 38. The Court does not find that Mr. Caudill made 

27 “Called” is used in the sense of a one calling another player’s hand in a card game. 

28 The Court has already agreed with the Respondent’s contention that Caudill’s 2009 

safety complaint issue when he was a roof bolter, is not germane to the issues in this case. 

Therefore, there is no need to discuss the Respondent’s Brief at pages 31-33. 

34 FMSHRC Page 825
 

such a refusal. Instead it finds that he told those above him that he couldn’t, not wouldn’t, 

complete the preshift within the allotted time. 

The Court also reviewed Respondent’s Reply Brief but, in candor, it offers nothing more 

than a reiteration of the arguments made in its initial brief. It also continues to be founded upon 

the assumption of facts which the Court has declined to make. As already noted, the Court has 

found that Mr. Caudill did make a safety complaint, in fact several of them. Thus, as mentioned, 

a miner need not announce “THIS IS A SAFETY COMPLAINT” in order for such a complaint 

to have been lodged. As noted, Mr. Caudill’s job was solely about safety and his multiple 

complaints that there was insufficient time to do that job were clearly safety complaints and 

nothing else. The ride was present, not for mine tours or some other cavalier activity. It was 

there because it was essential to the full and complete performance of the preshift exam.29

 2. This case does not turn on a precise determination of the times it would take for 

the preshift examiner to examine particular areas during the course of his preshift. 

As noted earlier, both sides spent considerable time attempting to establish that, 

according to their particular perspectives, that Caudill did or did not have sufficient time to carry 

out his preshift examination duties in the time allotted. To that end the government, of course, 

had Mr. Caudill testify. That testimony has already been discussed. Also, as noted, the 

government called MSHA Inspector Nathan Mounts on this issue. Mounts was the Inspector 

who issued the March 17, 2010 104 (d)(1) Order for the preshift examination failures. G 1, the 

order, and G 2, his notes associated with that. The violation occurs when miners go underground 

without the preshift exam having been made. Tr. 231. The Respondent did not challenge the 

violation. 

Mounts was there to conduct an E02 spot inspection, which pertains to methane 

evaluations. At that time Mounts noted that the required inspection for the East Mains was not 

recorded. Tr. 224. Mounts, investigating this issue further, found that there had not been an 

inspection recorded in the books for the East Mains prior to the 17th until March 9th. Tr. 225. 

Mounts asked mine superintendent Frank Smith about this issue but Smith could not provide an 

answer. Tr. 225. Yet, Smith’s signature was there in those books, reflecting that he had 

29 Accordingly, as Respondent has repeated its arguments, the Court will briefly repeat its 

conclusions. Mr Caudill did make safety complaints; his statements, which were made, were 

safety complaints; and there was a protected work activity. Unlike Respondent’s 

characterization, Caudill did not make a work refusal. Rather, he informed management of an 

inability to do his assigned job because there was insufficient time to complete it. The remainder 

of Respondent’s Reply, while read, offers nothing new and no further comment is warranted. 

R’s Reply at 9-14. 

34 FMSHRC Page 826
countersigned them.30 Tr. 226. Smith was unable to provide any evidence that the exam of that 

area had in fact occurred. Tr. 228. Page 5 of the Inspector’s notes reflects the others who had 

signed the book, attesting that the East Mains had been inspected, when in fact it had not been. 

Tr. 229. 

Mounts testimony also pertained to his view of the time it would take to complete 

Caudill’s preshift exam. G 6 was used to assist in understanding Caudill’s route and duties. Tr. 

232. Mounts, whose experience included having performed preshift exams, made estimates of 

the time that it would take for Caudill to do his exam. Tr. 233. He concluded that it would take 

“around 3 hours 40 minutes” to do it and he considered that figure to be a “conservative” one. 

Tr. 239. This figure included preshifting the East Mains. Tr. 233-234. Mounts number was 

based on the distances involved, but it was not based on a dry run to see the actual amount of 

time it would take. Tr. 258. However, the inspector’s estimate worked on the assumption that 

no problems were found, as that would take additional time. Thus, Mounts’ conservative 

estimate accounted simply for the examination time under the assumption that Caudill was 

getting off his vehicle and doing the examining, with no accounting of the time involved if some 

problem was actually discovered. Tr. 234. Mounts’ estimate was benefitted by the fact that he 

had personally inspected the number 28 mine, including viewing the East Mains, “several 

times,” so it was not simply an academic exercise. Tr. 235. The Court finds that Mounts’ 

estimate was a conservative one. 

Mounts stated, and the Court agrees with his observation, that to perform the preshift 

adequately, the examiner must run the mantrip at a reasonable speed, i.e. a slow enough speed so 

that one can properly look for any hazards. Tr. 242. Mounts worked with the assumption that 

one could not travel faster than 6 mph to examine the area properly. Tr. 248. That speed 

assumption was based on the inspector’s considerable mining experience, which encompassed 

some 10 to 12 years. Tr. 249. For example, a preshift examiner is to be looking for bad top or 

bad ribs, among other hazards. Tr. 242. To get a sense of the extent of the area that had to be 

preshifted, the Court inquired about the approximate distance involved and the answer was 

approximately nine miles. Tr. 244. 

30 Mounts articulated the purpose of countersigning. It is, of course, to make sure that all 

areas have been examined and to see if there are any hazards that need to be attended. Tr. 273. 

Mounts expressed that those who did countersign had a responsibility for noticing omissions, 

such as that which was involved here. Tr. 273. After all, there was no date nor initials listed for 

the East Mains. Tr. 273. Consistent with that view, Mounts believed that anyone who signed 

and failed to note the problem should likewise be disciplined for their own failures. Tr. 274. 

Thus, it was Mounts’ view that it is just as serious to miss an area during a preshift as to 

countersign on such a deficient preshift. Tr. 277. The Court will not engage in a comparative 

analysis of the relative importance of failures to preshift with failures to properly review the 

preshift books. Both are important tasks. 

34 FMSHRC Page 827
As one example of focusing on precise times in order to establish either that Caudill 

could or could not reasonably have completed his preshift exam, questions were asked as to how 

many minutes it would take to travel to the area of a rescue chamber, which was one of the 

places to be examined during the preshift. For that, Mounts calculated the time involved to be 

15 minutes. Questions were asked if the inspector was aware that there was a crossing under the 

belt, so that no time would be consumed shutting it off first. Tr. 257. This focus truly misses the 

forest for the trees because there was testimony from both sides that the time to do an adequate 

preshift was close to taking the entire time allotted, with one side contending that there was 

sufficient time and the other, that there was not.31 The difference maker however was that the 

ride was not working. That ride was not there for convenience. It served a purpose: namely, to 

aid the preshift exam. The Respondent concedes that on the dates in issue, the ride was not 

functioning. Tr. 201. 

The Court also tried to get a better sense from the Complainant about the time it would 

take to walk the East Mains without the ride being available. Caudill explained that it wasn’t 

that far but that there are nine headings to be inspected. These headings were of different depths. 

On the day he did inspect the East Mains with no ride available, Caudill could only estimate that 

it took 45 minutes to an hour to inspect that area. Tr. 199. If problems are found, the inspection 

time would obviously increase, because the problems need to be corrected. Tr. 200. Caudill 

could not be precise as to the time it took walk the area,32 but this case is not really about exact 

times as the overriding question is whether he had adequate time to inspect his assigned areas. 

While not discounting the need for some evidence on the issue, at least to establish the 

plausibility of their respective viewpoints, the Court observes that the outcome does not depend 

on making findings of exactly how much time it would have Mr. Caudill to do the particular 

tasks attendant to his responsibilities. To approach the case in that manner would effectively 

reduce it to a time and motion study. 33 

31 Mounts did express at his deposition that “on a perfect day” it would take “the full 

three hours” to do the preshift. Tr. 261. However, Mounts advised that his initial time estimate 

failed to consider the time it would take to go over to the two refuge chambers. Tr. 262. On the 

other hand, his initial calculation included a mile long belt that didn’t exist when Caudill was 

doing the preshifts in issue. Tr. 262. Mounts denied that Caudill told him that he could do the 

entire shift on March 10th in a three-hour period. Tr. 264. 

32 Respondent’s Counsel tried to engage in such NASA-like time measurements, but that 

proved nothing because it loses sight of the overriding question. Caudill, understandably, could 

not provide such precise time measurements either. See, for e.g. Tr. 207. 

33 Time and motion studies became all the rage in the early twentieth century. They were 

employed as a business efficiency technique, combining the time study work of Frederick 

Winslow Taylor with the motion study work of Frank and Lillian Gilbreth. As one might 

(continued...) 

34 FMSHRC Page 828
Instead, that determination is resolved by credibility determinations. As the Court 

explained during the hearing: “You know, for the benefit of Counsel, I’ll tell you this. If you 

expect me to figuratively bring out a micrometer and figure out whether Mr. Caudill spent X 

number of minutes or X plus three or minus four, I mean come on. That’s not what this case is 

about. And so you can both spend as much time as you want. It’s your case, but that’s not how I 

am going to decide this case in terms of the validity of discrimination or not. What I have to 

figure out is something broader than that. Okay.” Tr. 372.

 The Court finds that Mr. Caudill did not have sufficient time to do perform his preshift 

examination duties without the ride being available.34 

3. Cam Mining discriminated against Travis Caudill in violation of 

Section 105 (c)(1) of the Mine Act
 

As stated earlier, the safety complaint here was Caudill’s complaining about insufficient 

time to do his preshift exam. These were, as the secretary notes, legitimate complaints for which 

mine management failed to take action to correct. Sec. Br. At 14. 

On this record it is clear that the mine’s action was motivated by receiving the (d) order 

for failing to preshift and that this was the cause of its adverse action against Caudill.35 See also, 

Tr. 323-325, making this evident. As the Secretary has noted, circumstantial indicia of 

discriminatory intent is recognized by the Commission upon showing “knowledge of the 

protected activity [,] hostility or animus towards the protected activity [,] coincidence in time 

between the protected activity and the adverse action [] and [] disparate treatment of the 

complainant.” Sec. Br. at 9-10, citing Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510, 

rev’d on other grounds sub nom. Donovan v. Phelps Dodge Corp., 709 F.2d 86 (D.C. Cir. 1983), 

Hicks v. Cobra Mining, Inc. (April 1991) and Schulte v. Lizza Industries, Inc., 6 FMSHRC 8 

(Jan. 1984). 

33(...continued) 

presume, time study developed in the direction of establishing standard times, while motion 

study evolved into a technique for improving work methods. 

34 It is instructive to note that, upon questioning by the Court, Smith informed that a cart 

is presently available for those who do the preshift exams at the Number 28 mine. Because of 

the mining progressing from the time of the events in dispute, the East Mains itself is no longer 

preshifted. Tr. 384. 

35 The Court inquired as to the time frame regarding Mounts’s arrival at the mine and the 

decision by the mine to suspend Caudill. Mounts informs the mine of its deficiency regarding 

the preshift exam at about 9:01 that morning and Caudill is informed when he arrives at the mine 

to begin his shift that evening, following the inspector’s action. Tr. 256. 

34 FMSHRC Page 829
Order 

Having determined that Caudill was discriminated against unlawfully, and unlawfully 

discharged, in violation of Section 105 (c) of the Mine Act, it follows that he is entitled to the 

relief sought in his complaint. Accordingly, subject to the direction that the parties confer, as 

stated below, it is ORDERED that the Respondent: 

1. Expunge from Caudill’s personnel file all references to the unlawful issuance of the written 

warning of disciplinary action, and to expunge any other such references from any other records 

maintained by the company which relate negatively to Mr. Caudill in connection with this 

matter. 

2. Reimburse Caudill for all reasonable and related economic losses or expenses incurred in the 

institution and litigation of this case. This is to include damages in an amount equal to full 

backpay, all employment benefits, all medical and hospital expenses and any and all other 

damages suffered and incurred by Complainant as a result of his discriminatory discharge. 

Further, that interest be added to backpay and other expenses, from the date of discharge until 

the date of payment, at the adjusted prime rate announced semi-annually by the Internal Revenue 

Service for this underpayment and over-payment of taxes. 

3. Post this decision at all of its mining properties in conspicuous, unobstructed, places where 

notices to employees are customarily posted, for a period of 60 days. 

4. Restore Mr. Caudill to his former position as preshift examiner with back pay and interest or 

to a similar position, at the same rate of pay, same shift assignment, and with the same or 

equivalent duties. 

5. Pay an appropriate civil money penalty to MSHA for its violation of Section 105(c)(1) of the 

Mine Act, in accordance with the provisions of Section 110 of that Act. 

The parties are ORDERED TO CONFER within 21 days of the date of this decision for 

the purpose of arriving at an agreement on the specific actions and monetary amounts that the 

Respondent will undertake to carry out the remedies set out above. If an agreement is reached, it 

shall be submitted with 30 days of the date of this decision. 

34 FMSHRC Page 830
If an agreement cannot be reached, the parties are FURTHER ORDERED to submit their 

respective positions, concerning those issues on which they cannot agree, with supporting 

arguments, case citations and references to the record, within 30 days of the date of this decision. 

For those areas involving monetary damages on which the parties disagree, they shall submit 

specific proposed dollar amounts for each category of relief. If a further hearing is required on 

the remedial aspects of this case, the parties should so state. 

The judge, or his duly appointed successor, retains jurisdiction in this matter until the 

specific remedies to which Mr. Caudill is entitled are resolved and finalized. Accordingly, this 

decision will not become final until an order granting specific relief and awarding monetary 

damages has been entered. 

So ordered. 

/s/ William B. Moran 

William B. Moran 

Administrative Law Judge 

Distribution: 

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

Suite 230, Nashville, TN 37219- 2456 

Mark Heath, Esq., Spilman, Thomas & Battle, 300 Kanawha Blvd. East, P.O. Box 273, 

Charleston, WV 25321 

34 FMSHRC Page 831
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
	

OFFICE OF ADMINISTRATIVE LAW JUDGES
	 7 PARKWAY CENTER
	

875 GREENTREE ROAD, SUITE 290
	

PITTSBURGH, PA 15220
	

TELEPHONE: (412) 920-2682
	

FAX: (412) 928-8689
	

April 3, 2012 

LEFT FORK MINING CO., INC. : CONTEST PROCEEDING 

Contestant, : 

: Docket No. KENT 2012-443-R 

v. : Order No. 9353807; 03/29/2011 

: 

: 

SECRETARY OF LABOR : 

MINE SAFETY AND HEALTH : 

ADMINISTRATION, (MSHA), : Mine: Straight Creek #1 

Respondent. : Mine ID: 15-12564 

DECISION 

Appearances: John M. Williams, Esq., and Todd Myers, Esq., Rajkovich, 

Williams, Kirkpatrick & True, PLLC, 3151 Beaumont Centre 

Circle, Suite 375, Lexington, KY for Contestant 

Mary Sue Taylor, Esq., and Jennifer Booth Thomas, Esq., Office 

of the Solicitor, U.S. Department of Labor, 618 Church Street, 

Suite 230, Nashville, TN for the Secretary 

Before: Judge Andrews 

STATEMENT OF THE CASE 

This contest proceeding is pursuant to the Federal Mine Safety and Health Act of 1977, 

30 U.S.C. § 801 et seq. (2000)(the “Act”). A hearing was held on an expedited basis by 

agreement of the parties in Hazard, Kentucky, on January 30-31, 2012. This matter concerns the 

issuance of Order No. 8353807 under section 104(b) of the Act, 30 U.S.C. § 814(b), served on 

Contestant on March 29, 2011, and the modification of that order on January 11, 2012, that gave 

rise to the instant controversy. The parties submitted their prehearing materials on January 27, 

2012. At the hearing, Contestant’s Motion for Directed Verdict was denied on the record. Due 

to the compelling circumstances surrounding this case and the need for an expedited decision, 

the parties did not submit post-hearing briefs. 

JURISDICTION 

Contestant’s activities in mining coal at its Straight Creek #1 Mine subjects it to the 

jurisdiction of the Act as a “coal or other mine” as defined by section 3(h) of the Act, 30 U.S.C. 

§802(h). Further, Contestant meets the definition of an “operator” as defined by section 3(d) of 

the Act, 30 U.S.C. §802(d). Hence, this proceeding is subject to the jurisdiction of the Federal 

34 FMSHRC Page 832
 

 

 

 

 

Mine Safety and Health Review Commission and its Administrative Law Judge (ALJ) pursuant 

to sections 105 and 113 of the Act, 30 U.S.C. §§805, 813. 

The undersigned has jurisdiction only of the Section 104(b) Order No. 8353807 and the 

single modification of that order. The references to other citations and orders are for the purpose 

of placing the instant case in context with the circumstances that existed at the Straight Creek #1 

Mine, and to maintain clarity in the discussion of this decision. It must be emphasized that the 

decision herein is strictly limited to the 104(b) order and modification, and may not be construed 

as adjudicating in any manner other citations and orders referenced and assigned to other ALJs. 

TIMELINE OF EVENTS AND SUMMARY OF THE TESTIMONY 

History of the Order at Issue 

At 13:05 on March 22, 2011, MSHA Inspector Tom D. Middleton (“Middleton”) issued 

107(a) Order No. 8353800 and 104(a) Citation No. 8353801,1 both based on methane and 

oxygen levels detected in the Straight Creek seam between seals #2 and #3. Ex. D.2 The safety 

standard cited was 30 C.F.R. §75.323(b).3 

Minutes later, at 13:40, Middleton issued 103(k) Order No. 8353802, closing the entire 

mine to all activity, based on the gas inundation discovery.4 Prior approval would be required 

before mine operations could be restored. Exs. C, 2. The 103(k) order was modified four times 

that day to allow necessary persons to enter, to ventilate the area, to re-energize power, for 

required examinations, to monitor the seals in question, and to de-water the Rim seam. The 

103(k) order was modified a fifth time, two days later, to allow power and pumping in the 

Straight Creek seam. 

1 Both the order and citation are currently assigned to another ALJ. 

2 Note that the Secretary’s exhibits are designated by numbers and Contestant’s exhibits are 

designated by letters. 

3 30 C.F.R. § 75.323(b) states that (1) when 1.0 percent or more methane is present a working 

place or an intake air course, electrically powered equipment and other mechanized equipment in 

the affected area, other than intrinsically safe atmospheric monitoring systems, shall deenergized 

and/or shut off, changes shall be made to the ventilation system and no work shall be permitted 

in the affected area until the concentration is less an 1.0 percent; and (2) when 1.5 percent or 

more methane is present in a working place or an intake air course, everyone other than those 

referred to in § 104 of the Act shall be withdrawn and electrically powered equipment shall be 

disconnected from the power source, except for intrinsically safe atmospheric monitoring 

systems. 

4 This order is assigned to another ALJ. 

34 FMSHRC Page 833
 

 

 

Five hours after the discovery of methane, at 18:05 Middleton issued 104(a) Citation No. 

83538045 citing safety standard 30 C.F.R §75 333(h), set forth above, regarding the maintenance 

of the #2 and #3 seals in the Straight Creek Seam. This is the specific event that underlies the 

subsequent 104(b) order and its modification. The condition in the citation reads: 

The #2 and #3 seals in the straight creek seam are not being maintained to 

serve the purpose for which they were built. The #2 seal water trap is 

below the normal travel route to the seal, the water trap would impound 

water behind seal before the trap could de-water the area behind the seal. 

The #3 seal is allowing the atmosphere behind the seal to be expelled into 

the intake air course through cracks in the roof strata. 

Exs. B, 3. The time set for abatement was 21:00 that day. 

Since the 103(k) order had been in effect since 13:40 that day, Left Fork was required to 

submit a plan for approval by MSHA prior to addressing the maintenance needed at the seals. 

Such a plan was submitted the very next day, on March 24, 2011. The plan was to inject a type 

of grout into the roof above the #3 seal to repair the leak. Ex. I. MSHA did not formally 

respond, in writing, to this plan. Despite the submission of this plan, Inspector Middleton issued 

104(b) Order No. 8353807, the order contested here, on March 29, 2011, for failure to submit a 

plan to abate seal maintenance in accordance with 104(a) Citation No. 8353804, stating: 

The operator has not submitted a plan to repair the affected seals. 

Reasonable time has been given to the operator to submit a plan.
	

Exs. 4, B. 

On April 8, 2011, Left Fork submitted a second plan to repair the #3 seal to prevent any 

further methane inundations, to allow for expert evaluation of the seals and depending on the 

findings of the experts, to remove equipment. This plan was denied in writing on April 11, 2011, 

by the District Manager. Ex. J. 

Beginning in May 2011, and continuing into January 2012, Left Fork attempted to obtain 

approval of a plan to seal the entire Straight Creek seam of the mine by water inundation. The 

purpose was to allow work to resume in the Rim seam. 6 The record contains evidence of many 

communications between mine and MSHA personnel, and a number of required revisions to the 

extensive plan, all serving to illustrate that many weeks of work were invested by both parties in 

this plan. Exs. 8-13, 17-20, K-P. There were also various ventilation plans and revisions during 

this period. Ex. 14-16. 

5 Assigned to another ALJ. 

6 The Rim seam is located on top of the Straight Creek seam and there are places where the two 

meet. Tr. 25; Ex. J-1. These seams are also conjoined by the same ventilation system. Tr. 26; 

Ex. J-1. 

34 FMSHRC Page 834
 

 

Also in this period, the 103(k) order was further modified. In May, the modification was 

to remove electrical power and stop all work and travel in the Straight Creek seam. The final 

modification in June referred to the plan being developed for sealing the entire Straight Creek 

seam and allowed for power and pumping in that seam as necessary for construction, but 

contingent upon submission of updated action plans throughout the process. Ex. C, 2. 

On January 11, 2012, the 104(b) order of March 29, 2011, based on the failure of the 

mine to submit a repair plan, was modified by MSHA Inspector Dannie W. Lewis to de-energize 

all power and withdraw all miners with the following justification: 

Numerous hazards are present throughout the entire mine. There 

are 19 unabated 104(b) orders currently at this mine over a broad area. 

Some of these 104(b) orders have existed for up to approximately 18 

months uncorrected by the operator. Additional hazards have been 

identified at this mine in several locations. 

The operator was cited for seals not being maintained as required 

(See 104(d)(2) order # 8353803 and 107(a) order # 8353800 on 3-22-11, 

The operator has previously submitted for approval a seal construction 

plan to construct new seals for which during this time the operator was to 

prepare the seal sites, conduct examinations and pump water. No work is 

being done to prepare for seal installation as verified by evaluation of 

these areas. The only work that has been done for some time has been 

examinations and pumping water. 

Resources are not being allocated or used to address the many 

hazards that exists and that continue to accumulate at this mine. These 

conditions expose those miners conducting examinations and doing work 

to pump water to numerous hazards that have the potential to result in 

injuries that range from lost workday/restricted duty up to include fatal. 

This order is being modified for the affected area to include the entire 

mine. The operator must withdraw all miners from the mine and deenergize all electrical power from the underground portion of the mine. 

This action is being taken for the safety of miners working in the mine. 

The operator is being allowed to run the mine fans to prevent the 

accumulation of explosive methane/ch4. 

Ex. 4, A. 

On January 13, 2012, two days after the mine was shut down by the 104(b) modification, 

the plan to seal the entire Straight Creek seam was approved contingent upon the submission of a 

specific rehabilitation plan. Ex. P. 

The 103(k) order, as modified, remains in effect. 

34 FMSHRC Page 835
 

Testimony 

David Partin (“Partin”) is the safety compliance officer for Left Fork and he does all of 

the mine plans. He reported 30 years of experience in coal mining and certification as an 

inspector and mine foreman. Tr. 325. He testified that he was the author of the March 23, 2011 

and April 8, 2011 Action Plans. Ex. I, J. He stated that on March 22, 2011, there was a crack in 

the strata above the #3 seal. Tr. 330, 331. Then, on March 23, 2011, he submitted a plan to 

MSHA to repair the leak at the #3 seal, but received no written response regarding this plan. Tr. 

333, 334. Partin testified further that the repair as planned would have taken one day. Tr. 334. 

He then submitted another plan on April 8, 2011, but this was denied by a letter that gave as a 

reason a confluence of items which was not explained beyond reference to citations. Tr. 336, 

337. He said at this point Left Fork began to make plans to seal off the entire Straight Creek 

seam of the mine, since this would terminate all of the violations. Tr. 337, 338. He added there 

were no discussions with anyone at MSHA that the #3 and #2 seals would have to be repaired or 

that every violation would have to be abated for approval of the new Straight Creek seam sealing 

plan. Tr. 367, 368. 

Homer Cox (“Cox”) testified that he has 33 years of experience in coal mining and has 

performed most tasks with the exception of running a miner. Tr. 274. He is the Outby Foreman 

and Examiner in the Straight Creek seam of the mine, where he has worked since 2006, and he 

holds certifications as Mine Foreman and Medical Technician Underground. Tr. 273, 274. Cox 

stated he is familiar with the old seals #2 and #3 and that on March 23, 2011 the #3 seal was 

perfect but there was a crack in the strata above it with a small leak. Tr. 279, 280. He further 

stated the mine made recommendations to fix the hole, and recalled that MSHA Inspector Bo 

Mills told him that the mine could not fix the problem, but Mills did not give him a reason for 

this decision. Tr. 280, 281. Cox also testified he was familiar with the 103(k) order issued 

because of leakage, and although there was a roadway to the #2 and #3 seals, they were not 

allowed to either go there or fix the seals. Tr. 279, 282, 305, 313. When testifying about the plan 

to seal off the entire Straight Creek seam, Cox said a lot of work was done in June 2011, to 

prepare two sites for the installations, and that the sites were ready for construction. Tr. 276, 277, 

278, 298. 

Cox reported he was present on January 11, 2012, and accompanied Inspector Lewis and 

Lewis’ Supervisor to the Straight Creek seam. Tr. 282, 283. He was told to stay at the end of the 

Goat Trail while Lewis and his supervisor went to #2 and #3 seals, about 300 feet away. Tr. 283, 

285, 297. He further reported that although the ventilation comes from the seals and past where 

he was positioned, his Solaris detector found no methane. Tr. 286, 287. Cox stated that when the 

two inspectors came back, they reported methane levels of 1.5 and 2.1 at the seals,7 and, when 

outside the mine, they said the power to the mine should be cut. Tr. 287, 298. 

The testimony of Jeff Craig (“Craig”), Superintendent at Left Fork, and Jim Brummet 

(“Brummet”), a Counselor at Left Fork, both corroborated the testimony of Cox regarding the 

new seal site preparation work. Craig testified the sites had been scooped and the ribs cleaned, 

and that a lot of work had been done including removal of old belt structure. Tr. 238-240. Cox 

7 See Analysis of Air Samples. Ex. 5. 

34 FMSHRC Page 836
 

 

 

 

 

 

said this work had been done in the summer of 2011. Tr. 242. Brummet testified that Mark 

Heiser (“Heiser”) told him on January 12, 2012, that the two sites were “cleaned up good.” Tr. 

319. Heiser, a MSHA ventilation specialist, was called as a rebuttal witness regarding the 

conversation with Brummet when they were in the lighthouse on January 12, 2012, but he was 

unable to recall the conversation that had occurred only days before the hearing. Tr. 442, 443. 

The Contestant’s witnesses also included Jefferson Davis (“Davis”), General Manager of 

Left Fork and Michael Gambrel, Chief Engineer of Left Fork. Davis testified even if the (b) 

order was lifted, an action plan acceptable to MSHA would be required to re-establish power and 

de-water pump the mine. Tr. 398-399. He further testified that without pumping the mine will be 

decimated and completely inundated with water,8 with the loss of equipment valued by the 

Contestant in the millions of dollars. Tr. 387-390; Ex. Q. Mr. Gambrel’s testimony mainly 

concerned the ventilation system at the mine. Tr. 408-438. 

Danny Wayne Lewis (“Lewis”) has been a MSHA coal mine inspector for over nine 

years, with prior mining experience of about twenty-three years performing a number of tasks 

and holding several certifications. Tr. 21, 22. He testified that in 2011 he had completed ten day 

spot methane inspections at the Straight Creek #1 mine and in January 2012 was assigned the 

required quarterly E01 inspection at the mine. Tr. 24. He also testified that he was familiar with 

and was present on the day that Inspector Middleton wrote the 103(k) order of March 22, 2011. 

Tr. 84, 85. 

On January 11, 2012, accompanied by his supervisor Paul Hurt (“Hurt”) and Foreman 

Homer Cox, Lewis testified he and Hurt went to the area of the seals in the Straight Creek seam. 

Tr. 40. He reported that forty to fifty feet from seals #2 and #3 their detectors went off, and 

bottle samples taken9 were later reported as showing methane of 1.120 for the #2 seal and 1.64 

for the #3 seal. Tr. 46, 52, 53, 55. He acknowledged writing the 104(b) modification, and that 

his decision to turn off the power was directly related to the methane level at the #3 seal. Tr. 70, 

74, 83. Lewis recalled becoming aware of a lack of air movement in the area related to a 

ventilation control curtain, which affected air to the seals, torn down by a rock. Tr. 54, 55, 106. 

He said the curtain would need to be put up to get air over to the seals; he admitted he did not 

include anything about this curtain or the methane discovery in the 104(b) modification. Tr. 110-

112. Lewis also admitted that the atmosphere in front of the seals was not explosive. Tr. 103, 

104. 

Lewis testified that instead of writing more paper to the company, and even though there 

is a legal requirement to pull power under section 75.323(c), he decided to modify the (b) order 

to get other people involved and get the problem taken care of. Tr. 69-71. He stated that the 

issue of seal construction did not factor into this decision to modify the 104(b) order to require 

the de-energizing of the mine and the withdrawal of all the men. Tr. 72, 87. Lewis further stated 

that if the methane reading he had taken on January 11, 2012, had been less than one percent, he 

probably would not have issued the 104(b) modification. Tr. 72, 73. 

8 See Ex. R, the depth of the water levels within the mine. 

9 Ex. 5. 

34 FMSHRC Page 837
 

 

 

The Secretary’s witnesses also included Charles “Jasey” Maggard, a MSHA Staff 

Assistant, who testified generally about power in the mine and the need to de-energize in the 

presence of methane, Tr. 113-161, and James Travis Proffitt (“Profitt”), a MSHA ventilation 

specialist whose testimony included the plan to seal the entire Straight Creek seam by water 

inundation. Proffitt’s testimony also served to reveal the extensive amount of time and resources 

expended by Left Fork and MSHA in the development of the plan over a period of about six 

months. Tr. 163-216. Proffitt also opined that if Lewis thought the air was stagnant in the area of 

the #2 and #3 seals, and the ventilation control line curtain was down, then the air would not be 

properly sweeping across and ventilating those seals. Tr. 200, 201. 

LAW AND REGULATIONS 

Section 104(a) of the Act sets forth the conditions under which a citation may be issued 

to a mine operator. Section 104(a) provides: 

If, upon inspection or investigation, the Secretary or his authorized representative 

believes that an operator of a coal or other mine subject to this chapter has 

violated this chapter, or any mandatory health or safety standard, rule, order, or 

regulation promulgated pursuant to this chapter, he shall, with reasonable 

promptness, issue a citation to the operator. Each citation shall be in writing and 

shall describe with particularity the nature of the violation, including a reference 

to the provision of the chapter, standard, rule, regulation, or order alleged to have 

been violated. In addition, the citation shall fix a reasonable time for the 

abatement of the violation. The requirement for the issuance of a citation with 

reasonable promptness shall not be a jurisdictional prerequisite to the enforcement 

of any provision of this chapter. 

30 U.S.C. § 814(a). 

Section 104(b) of the Act describes the responsibilities of the Secretary when the problem 

or condition identified as the subject of a 104(a) citation has not been abated at the time of a 

follow-up inspection. Section 104(b) states: 

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) of this section 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) of this section, to be 

withdrawn from, and to be prohibited from entering, such area until an authorized 

representative of the Secretary determines that such violation has been abated. 

30 U.S.C. § 814(b). 

34 FMSHRC Page 838
 

Section 103(k) of the Act establishes the authority of the Secretary to take appropriate 

action in the event of any accident in a mine. Section 103(k) reads: 

In the event of any accident occurring in a coal or other mine, an authorized 

representative of the Secretary, when present, may issue such orders as he deems 

appropriate to insure the safety of any person in the coal or other mine, and the operator 

of such mine shall obtain the approval of such representative, in consultation with 

appropriate State representatives, when feasible, of any plan to recover any person in 

such mine or to recover the coal or other mine or return affected areas of such mine to 

normal. 

30 U.S.C § 813(k). 

Regulation 30 C.F.R. §75.333 contains safety standards for ventilation controls, and 

subsection (h) addresses maintenance of the controls. Section 75.333(h) reads: 

All ventilation controls, including seals, shall be maintained to serve the purpose for 

which they were built. 

30 C.F.R. §75.333(h). 

CONTENTIONS OF THE PARTIES 

Contestant argues that, since de-energizing the entire underground portion of the mine is 

not related to abatement of the underlying violation, i.e. failing to maintain the seal, and in fact 

makes abatement not possible, it cannot be so ordered under 104(b). Contestant further argues 

that under the 103(k) order, miners were not allowed to go to the seals. Contestant contends that 

the seals at issue in the 104(b) order could not have caused an accident that would affect the 

entire mine, and, therefore, expanding the scope of the 104(b) order to the entire mine was 

inappropriate. Contestant claims that the Secretary did not have the authority under Section 

104(b) of the Act to require the operator to shut down the entire mine and to de-energize all 

underground electrical power. Contestant finally argues that, even if the Secretary has authority 

under 104(b) to order Left Fork to de-energize the mine, the order is arbitrary and capricious and 

does not contribute to the safety of the mine. As a result of the order, Contestant claims that the 

safety of the mine has decreased and it will become a total loss. 

The Secretary contends that the 104(b) order itself is not at issue, but only the January 11, 

2012 modification of that order. The Secretary argues that her actions in modifying the 104(b) 

order to extend to the entire mine and remove the electrical power underground were reasonable. 

Based on conditions observed near the No. 3 seal on January 11, 2012, the Secretary supports 

this argument by explaining that the degree of risk presented by keeping the power on with 

unknown quantities of potentially explosive methane levels was high enough to justify the 

requirement to remove the underground electrical power. Further, the Secretary claims that her 

actions were reasonable because several factors were considered in making the decision to 

modify the 104(b) order to extend to the entire mine and to require de-energization. According 

34 FMSHRC Page 839
 

 

 

 

 

 

 

 

to the Secretary, these factors include: prior inundation of methane, the potential for methane 

liberation in the seam, the potential harm presented by an explosion in the area, the risk of injury 

presented should an explosion occur and the continued deterioration of the mine. In addition, 

she argues that it was appropriate to require withdrawal of personnel and de-energization of the 

entire mine because the Rim seam and the Straight Creek seam are locked in the same ventilation 

system. 

ANAYLYSIS AND CONCLUSIONS 

Approaching the #2 and #3 seals in the Straight Creek seam on January 11, 2012, 

Inspector Lewis noticed the air was stagnant. A ventilation line curtain had been felled by a rock 

and air was not sweeping through the area as it otherwise would. As Lewis and Supervisor Hurt 

progressed to about forty feet from the seals, their detectors signaled the presence of methane. 

Bottle samples then taken later confirmed methane concentration levels of 1.12 and 1.64, and 

oxygen levels of 20.37 and 20.04. Ex 5. 

The atmosphere encountered was not explosive,10 but the levels did meet the criteria for 

application of the safety standard for excessive methane. As the Secretary candidly admitted in 

her opening statement at the hearing, a citation could have been issued under Section 75.323. Tr. 

10,11. This would have served to shut off the power and withdraw miners. In the alternative, I 

observe that the 103(k) order, which was based on the March 2011 methane inundation and used 

twice before to remove power and stop work, could have been modified again to achieve the 

same result. 

Instead, Lewis and Hurt chose the instant 104(b) order that had been issued in error and 

never corrected or vacated, and decided to issue a modification with a justification that is not 

sustainable. The attempt by the testimony of Lewis to explain this unfortunate choice as not 

wanting to write more paperwork to the company fails to convince because, with the rediscovery 

of methane, some paper would surely be written. Simply put, the Inspector and his Supervisor 

chose the wrong method to close down the Straight Creek #1 Mine. 

The 104(b) Order of March 29, 2011 

Under the Mine Act, the Secretary has the burden of proving the fact or occurrence of the 

cited violations by a preponderance of the evidence. Garden Creek Poccahontas Co., 11 

FMSHRC 2148, 2152 (Nov. 1989). The Secretary may satisfy her preponderance of the evidence 

burden by demonstrating “that it was more likely than not” that the cited violation occurred. 

Enlow Fork Mining Company, 19 FMSHRC 5, 13 (January 1997). The Secretary may satisfy her 

burden of proof by relying on reasonable inferences drawn from indirect evidence, but such 

inferences must be inherently reasonable and there must be a rational connection between the 

evidentiary facts and the ultimate fact to be inferred. Garden Creek, 11 FMSHRC at 2153 citing 

Mid-Continent Resources, Inc., 6 FMSHRC at 1132, 1138. According to Mid-Continent 

10 The atmosphere is considered to be explosive when the methane concentration is between 5 

and 15 percent inclusively and the oxygen concentration is greater than 12.1 percent. See 

CONSOL of Kentucky, Inc., 30 FMSHRC 1, 3 (Jan. 2008)(ALJ) 

34 FMSHRC Page 840
 

 

 

 

Resources, when the validity of a 104(b) order is challenged by an operator, the Secretary bears 

the burden of proving that the violation described in the underlying citation was not abated 

within the given time period. Mid-Continent Resources, Inc. 11 FMSHRC 505, 509 (April 1989). 

Contrary to the argument of the Secretary that only the January 11, 2012 modification is at 

issue, I find that prior to consideration of whether the modification to the 104(b) order was 

proper, it is important to determine the validity of the issuance of the initial 104(b) order. 

Though the condition subject to the 104(a) citation, the lack of maintenance of the seals, had 

not been abated on March 29, 2011, the 103(k) order in place prevented the operator from 

abating the condition without an approved plan. Also, mine personnel believed that the March 

23, 2011 Action Plan had been denied, based apparently on the reported conversation between 

Cox and Mills. I find this belief to be credible, and therefore abatement by repair of the seals 

was not possible on March 29, 2011 due to both the 103(k) order and the unofficial denial of the 

March 23, 2011 Action Plan. Despite the fact that seal repair was not permitted up to and 

including March 29, 2011, the instant 104(b) order was issued. Compounding this mistake, both 

reasons given for the order were erroneous; a plan had been submitted to MSHA, and the time 

for abatement could not be considered reasonable because repairs had not been allowed by 

MSHA. It is the 103(k) requirement of an Action Plan that is the subject of the 104(b) order, and 

therefore, to meet her burden, the Secretary must provide evidence that no plan had been 

submitted to abate the underlying seal condition. 

Since the mine was operating under a 103(k) order at the time the 104(b) order was issued, if 

the mine operator wanted to abate the underlying conditions in the 104(a) citation, the repair of 

seals, it would first have to submit a plan, and upon approval of that plan, seek a modification to 

the 103(k) order to permit workers to carry out the plan and abate the conditions. At the time of 

the 104(b) issuance on March 29, 2011, the 103(k) order permitted only energizing power center 

#1 and pumping water in the Straight Creek seam. Exs. 2, C. Contestant was also permitted to 

monitor the atmosphere outside several seals Exs. 2, C. Absent an approved plan and 

modification of the 103(k) order, miners were not permitted to go to the seals and perform work. 

The 104(b) order was issued for failure to submit a plan, as pertinent to this decision, for 

repair at the #3 seal. Ex. B. However, Left Fork had submitted a plan for repairing the #3 seal on 

March 23, 2011, six days before the 104(b) order was issued. That plan proposed repairing the 

seal by injecting a polyurethane-type grout into the mine roof. Ex. I. According to the testimony 

of Cox, found credible when compared to the facts and circumstances in this case, that plan was 

not approved,11 but no reason for the denial was given. Tr. 280, 281, 313. According to the 

testimony of Partin, also found credible for the same reason, there was no written denial of the 

March 23, 2011 plan. Tr. 333, 334. The first recognizable denial of a plan to fix the seal did not 

come until April 11, 2011, nearly two weeks after the 104(b) order was issued, and this was in 

response to the Action Plan of April 8, 2011. Ex. J 

11 This testimony concerns a conversation only between Cox and Mills, and neither the Secretary 

nor Respondent provided any written evidence indicating a formal denial of the Action Plan of 

March 23, 2011. 

34 FMSHRC Page 841
 

 

 

 

 

 

 

 

The Secretary did not offer sufficient evidence that no plan had been submitted, and did not 

even include the March 23, 2011 plan in her exhibits. 

Due to the fact that Left Fork had submitted to MSHA a plan to fix the #3 seal, the premise 

on which the 104(b) order was based must be found to be in error. But was there a premise on 

which the 104(b) order could have been correctly written? If the order had been issued because 

the mine had not abated the condition, such order would have been in error since the 103(k) 

order prevented repairs being made without an approved Action Plan. If the order had been 

issued because an Action Plan had been denied, that would obviously be incorrect because the 

mine could not abate the condition until an Action Plan was approved. However, if the 104(b) 

order had been based on an approved Action Plan to repair the seals that Left Fork had not 

implemented, (assuming any appropriate modification of the 103(k)), the result could be 

different. But that is not the case here. I find that 104(b) Order No. 8353807 of March 29, 2011, 

based on a failure to submit a repair plan, was not validly issued. 

The 104(b) Order Modification of January 11, 2012 

It is well settled that, absent legal prejudice, MSHA may modify a section 104 citation. 

Wyoming Fuel Company, 14 FMSHRC 1282, 1289-1290 (Aug. 1992). But the question 

presented here is whether modification of a vacated order survives to be scrutinized for its 

validity. The result of vacating an order is to cancel it or render it null and void.12 It is as if the 

order no longer exists. Unless the reviewing authority issuing the decision to vacate specifically 

limits the decision to only a particular portion of the order, the entire order is set aside. It 

follows, then, that an amendment or modification that had been made to a vacated section 104 

order would be cancelled as well. 

But even if I had found the initial 104(b) order to be valid, the obviously confused and 

even incorrect and irrelevant justifications written for the issuance of the modification would call 

into question its validity. 

The first paragraph of the written justification does not in any way relate to either the 

104(a) seal maintenance citation or the subsequent 104(b) order for failure to submit a repair 

plan. Rather, it states a general reference to prior unabated orders at the mine and unspecified 

hazards. 

The second paragraph of the modification of the 104(b) order is not only confusing but 

also unrelated to the 104(b) order as well as the underlying 104(a) citation. With the first 

sentence, it appears that Lewis confused the instant 104(b) order with Order No. 8353800, which 

is actually the 107(a) imminent danger order due to methane inundation. He then further cites 

Order No. 8353803, which is a weekly examination violation that appears (from data on the 

MSHA website) to have nothing to do with the instant case. The second paragraph actually 

addresses the plan to seal the entire Straight Creek seam, not the seal maintenance that was at 

12 I note that the Merriam Webster Dictionary defines vacate as “to make legally void.” 

“Vacate.” Merriam Webster Dictionary. http://www.merriam-webster.com/dictionary/vacate 

(2012). 

34 FMSHRC Page 842
 

 

 

 

 

 

 

issue when the 104(a) citation was written. Lewis’s attempts at hearing to discount his confusion 

and reframe the argument that the modification to the 104(b) order was appropriate were 

incredible to say the least. Lewis testified that he modified the 104(b) order because of the high 

methane readings and poor ventilation; however, other than the possibility that methane was 

leaking from above the seal but not being swept out of the mine due to the absence of the 

ventilation curtain, this testimony does not confirm a direct relationship between his findings 

forty to fifty feet from the seal and the state of strata above the seal which was not observed at 

that time. Lewis wrote nothing in the justification about the discovery of methane that day, and 

also failed to record what he knew about the ventilation line curtain being torn down. If methane 

was the reason for the order as was asserted, there were other, sustainable choices available to 

accomplish closure of the mine. 

The first two sentences of the third paragraph are also irrelevant, referencing again the 

prior unabated violations and stating an opinion regarding hazards, but with no reference made to 

the repair of the old seals. The remainder of the third paragraph lists the actions to be taken to 

shut down the entire mine, with the exception of the ventilation fans. Even if I could find that 

the original 104(b) order was valid, albeit containing erroneous statements, the written reasons 

for modifying that order are unrelated to the repair of the old seals in the Straight Creek seam 

and incorrect. 

Nothing in Section 104(b) of the Act authorizes the de-energizing of an entire mine, only 

the withdrawal of certain personnel. See 30 U.S.C. § 814(b). If the Secretary wanted to deenergize the mine, she would have had to do so under different authority, either a citation for the 

methane discovered or another modification of the 103(k) order, as discussed above. Further, a 

104(b) order is not the appropriate vehicle for shutting down a mine for its history of violations, 

but rather must relate back to the lack of abatement of the specific violation cited in the original 

104(a) citation. Although I have determined the modification of January 11, 2012, does not 

survive the decision to vacate the 104(b) Order of March 29, 2011, I also find in the alternative 

that the modification was issued in error and invalid. 

Practical Impact of Decision 

It might appear that upon finding the 104(b) order and modification invalid, the Straight 

Creek #1 Mine could restore power and begin pumping, assuming the mine is not already lost to 

flooding. But the mine cannot just turn on the power. As acknowledged by General Manager 

Jefferson Davis, if the 104(b) order were lifted, an action plan acceptable to MSHA would be 

required to re-establish power and de-water pump the mine. Tr. 398, 399. Even the finally 

approved plan to seal off the entire Straight Creek seam, so many months and so much 

manpower in the making, cannot be implemented without a rehabilitation plan approved by 

MSHA. 

If the instant (104b) order and modification had been found to be valid, the result would 

not be much different. The mine would still be required to submit an acceptable rehabilitation 

plan, most likely addressing the multiple steps outlined by Mr. Davis in his testimony. Tr. 398-

401. 

34 FMSHRC Page 843
 

 

Therefore, regardless of whether the 104(b) order and modification were found valid or 

invalid, in the absence of an acceptable rehabilitation plan the only discernable result of the 

expenditure of many resources by all parties, including this proceeding, is the progressive 

flooding of the mine and loss of equipment. These comments, of course, are not a part of the 

decision, but are offered to explain why at the conclusion of the hearing on January 31, 2012, I 

suggested to the parties that the best resolution would be for the principals to meet and work out 

a plan to prevent destruction of the mine. If such an agreement could be reached, the parties 

were invited to contact my office. As of the date of this decision, there has been no contact. 

ORDER 

It is hereby ORDERED that 104(b) order No. 8353807, as modified, is VACATED. 

Having found that the order is invalid, this case is DISMISSED. 

/s/ Kenneth R. Andrews 

Kenneth R. Andrews 

Administrative Law Judge 

Distribution: 

John M. Williams, Esq., and Todd Meyers, Esq., Rajkovich, Williams, Kilpatrick & True, PLLC, 

3151 Beaumont Centre Circle, Suite 375, Lexington, KY 40513 

Mary Sue Taylor, Esq., and Jennifer Booth Thomas, Esq., Office of the Solicitor, U.S. 

Department of Labor, 618 Church Street, Suite 230, Nashville, TN 37219-2456 

34 FMSHRC Page 844
 

 

 

 

 

 

 

 

 

 

 

 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
	

OFFICE OF ADMINISTRATIVE LAW JUDGES
	 7 PARKWAY CENTER
	

875 GREENTREE ROAD, SUITE 290
	

PITTSBURGH, PA 15220
	

TELEPHONE: (412) 920-2682
	

FAX: (412) 928-8689
	

April 4, 2012 

BIG RIDGE, INC., : CONTEST PROCEEDINGS 

Contestant, : 

: Docket No. LAKE 2011-699-R 

v. : Order No. 8424291; 05/16/2011 

: 

: Docket No. LAKE 2011-700-R 

SECRETARY OF LABOR : Citation No. 8428712; 05/19/2011 

MINE SAFETY AND HEALTH : 

ADMINISTRATION, (MSHA), : Mine ID: 11-03054 

Respondent. : Mine: Willow Lake Portal 

DECISION 

Representatives: Suzanne F. Dunne, Esq., and Kevin Wilemon, Esq., Office of the Solicitor, U.S. 

Department of Labor, 230 South Dearborn Street, Room 844, Chicago, IL for the Respondent 

R. Henry Moore, Esq., and Arthur Wolfson, Esq., Jackson Kelly, PLLC, Three Gateway Tower, 

Suite 1340, 401 Liberty Avenue, Pittsburgh, PA for the Contestant 

Before: Judge Lewis 

STATEMENT OF THE CASE 

The above-captioned matter is before me pursuant to the Federal Mine Safety and Health 

Act of 1977 (the AAct@), 30 U.S.C. ' 801 et seq. Pursuant to the agreement of the parties, an inperson hearing was waived. The within decision is based upon the record, including the 

pleadings, stipulations of fact and arguments advanced by counsel in their written memoranda. 

PROCEDURAL HISTORY 

This case has a rather thorny procedural history: 

On May 16, 2011, an incident occurred at Big Ridges=s (ABig Ridge@ or AContestant@) 

Willow Lake Portal mine which led to a 103(j) order, Order No. 8424291, being issued by Mine 

Safety and Health Administration (AMSHA@) inspector Anthony Fazzalare. After MSHA 

investigators arrived on the scene, the 103(j) order was modified to a 103(k) order. Said Order 

was again modified on May 17, 2011. Due to Contestant=s failure to follow the approved plan of 

34 FMSHRC Page 845
 

 

 

action, Citation No. 8428712 was issued on May 19, 2011 pursuant to ' 104(a) of the Act. 30 

U.S.C. ' 814(a). 

On May 31, 2011, Contestant filed its Notice of Contest, averring that Citation No. 

8248712 was invalid in that Ano accident@ occurred, Ano violation of the cited provision of the act 

existed,@ and that the inspector=s evaluation was not valid or appropriate. 

On July 8, 2011, the undersigned held a telephone conference during which the parties 

essentially indicated that there were few, if any, genuine issues of material fact in dispute. Rather, 

the critical question was legal in nature, i.e. whether the incident in controversy, as a matter of 

law, warranted the issuance of the 103(j) and subsequent 103(k) orders. 

On October 31, 2011, Contestant filed its Motion to Dismiss Order No. 8424291 and 

Citation No. 8428712. In its Motion, Contestant again averred that Order No. 8424291 was 

invalidly issued pursuant to 103(j) and 103(k) of the Act and that, consequently, Citation No. 

8428712 should be vacated as being issued based upon an invalid order. In support of its motion, 

Contestant also filed a memorandum of law with stipulations of fact.1 On November 21, 2011, 

the Secretary filed her Response to Contestant=s Motion to Dismiss Order No. 8424291 and 

Citation No. 8428712. Then, on November 29, 2011, the undersigned issued an Order Denying 

the Contestant=s Motion.2 

On December 9, 2011, the Contestant filed a Motion for Reconsideration. Inter alia, 

Contestant advanced that the undersigned had mischaracterized its principal argument for 

invalidating Order No. 8424291 in his November 29, 2011 denial of its dismissal request. 

Contestant advanced that its principal argument was that the Secretary=s authority to issue 103(j) 

orders was Adependent upon and appropriate only when >rescue and recovery work was 

necessary.=@

On January 19, 2012, the undersigned held another prehearing conference. He advised the 

parties that he intended to deny Contestant=s Motion for Reconsideration, and further requested 

that the parties inform him within two weeks how they wished to proceed, including whether 

they wished to have an in-person hearing as to any of the remaining issues in the case, including 

the underlying 104(a) Citation No. 8428712. On January 20, 2012, the undersigned issued the 

written Order Denying Contestant=s Motion for Reconsideration, and again requested that the 

parties provide a status update within two weeks. 

1 See Exhibit A attached to Contestant=s Motion to Dismiss. 

2 This Order was incorrectly titled Order Denying Respondent=s Motion to Dismiss, rather than 

Order Denying Contestant=s Motion to Dismiss. 

34 FMSHRC Page 846
 

 

 

 

 

 

On January 22, 2012, the Contestant filed a APrecautionary Petition for Discretionary 

Review@ with the Commission.3 On February 27, 2012, the Commission denied the Petition, 

finding the January 20, 2012 Order Denying Reconsideration was not a final decision ending the 

undersigned=s jurisdiction over the matter. The Commission noted that the undersigned had 

neither explicitly affirmed Order No. 8424291 as reasonable nor dismissed Big Ridge=s notice of 

contest. 

The parties subsequently submitted to me a joint stipulation of fact with respect to 

Citation No. 8428712 providing that Ato the degree that Order No. 8424291 is valid, the parties 

stipulate that a violation of the Order occurred as alleged in Citation No. 8428712 and that the 

proper negligence designation for such violation is high negligence.@

4 The Contestant 

maintained its position that Order No. 8424291 was invalid and preserved its argument for 

appeal.5 

On March 9, 2012, I held a final telephone conference with the parties during which they 

both agreed to waive their right to an in-person hearing and requested that the undersigned 

dispose of the within matter on the record, based upon the stipulations of fact and written 

pleadings and arguments that had previously been submitted. 

STIPULATIONS OF FACT 

1.		 Big Ridge is an Aoperator@ as defined in ' 3(d) of the Federal Mine Safety and Health Act 

of 1977, as amended (hereinafter Athe Mine Act@), 30 U.S.C. ' 803(d), at the coal mine at 

which the Citation and Order at issue in this proceeding were issued. 

2.		 Operations of Big Ridge, at the Willow Lake Portal Mine (AWillow Lake@) at which the 

Citation and Order were issued in this proceeding are subject to the jurisdiction of the 

Mine Act. 

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

Review Commission and its designated Administrative Law Judges pursuant to Sections 

105 and 113 of the Mine Act. 

4.		 The individual whose signature appears in Block 22 of the Citation and Order at issue in 

this proceeding was acting in his official capacity and as an authorized representative of 

the Secretary of Labor when the Citation and Order were issued. 

5.		 True copies of the Citation and Order at issue in this proceeding were served on Big 

Ridge as required by the Mine Act. 

3 On January 28, 2012, the Secretary filed her Motion in Opposition to such.
	 4 See Joint Stipulations of fact with respect to Citation No. 8487712 filed on February 29, 2012.
	

5 See also Exhibit A attached to Contestant=s Motion to Dismiss. 

34 FMSHRC Page 847
6.		 Order No. 8424291 and Citation No. 8428712 were issued to Big Ridge in response to an 

event that occurred on May 16, 2011. 

7.		 The event occurred during the third shift at Willow Lake on Unit 2. 

8.		 Third Shift was a production shift, commencing on May 15, 2011, at 11:00 pm 

and concluding at 7:00 am on May 16, 2011. 

9.		 A production crew was working on Unit 2, which included Unit Mechanic, Tim Borders. 

10. Unit 2 was a super-section, which permitted two production crews to work 

simultaneously. 

11. Nathan Genesio was Mine Manager. Shift Leader Brian Duty was supervising a crew on 

the left side of Unit 2. The right side crew was led by Section Forman Jason Shelton. 

12. Mr. Duty=s crew consisted of Ram Car Operators Jon Farmer, Thomas Mahan and Robert 

Roach; Roof Bolter Operators Darrell Kirk and Caleb Webb; and Miner Operator Reuban 

Markham. Scoop Operator Matt Fletcher assisted both the left and right side crews. 

13. After arriving on the Unit at approximately 11:55 pm, Brian Duty and Jason Shelton 

performed their onshift examination of the working areas. The assessed the unit for 

hazards, finding none, and confirmed that the requisite quantity of air was present and 

free of concentrations of methane. 

14. After completing his hazard check and checking the air at the working faces, Mr. Duty 

ordered Joy Continuous Mining Machine No. 245 (Acontinuous miner@) moved to the 9L 

crosscut to begin production. 

15. The first cut taken completed or Ablew through@ the crosscut separating the 9 and 10 

entries that had been partially mined on a prior shift. 

16. The continuous miner became stuck in 9L during the second cut, which was the first full 

cut of the shift. 

17. Mr. Markham attempted to back the continuous miner out but it would not move. 

18. The continuous miner became stuck at about 2:45 am; Messrs. Duty, Shelton and Genesio 

were notified on the radio of the problem. 

19. The tail of the continuous miner was located underneath roof that had been bolted in 

compliance with the provisions of the roof control plan. The body of the vehicle or its 

main chassis was beyond the last row of bolts under unsupported roof that had not yet 

been bolted. 

20. The roof in the subject area was composed of gray shale. 

34 FMSHRC Page 848
21. No hazards were identified with the roof and no evidence of prior roof falls was evident 

on the ground. 

22. After being apprised of the problem, Mr. Genesio traveled to the area and walked around 

the pillar in an attempt to look back through the hole created by the blown out crosscut. 

He was unable to identify the problem from that vantage point. 

23. Mr. Borders observed the affected continuous miner but was not certain what had caused 

it to become immobilized. 

24. Due to a rut or sloping of the ground, the left cat-track of the continuous miner was not in 

contact with the ground. 

25. Mr. Duty sent for timbers or crib-ties, which were delivered to the area by the Ram Car 

Operator Robert Roach for use in extricating the miner. 

26. Messrs. Duty, Farmer, Borders, Markham and Roach were all present at the time the cribs 

were delivered. 

27. Several crib ties were tossed from beyond the miner=s tail and under supported roof 

towards the miner=s left side cat track. 

28. Mr. Borders was positioned to the right and behind the rear of the continuous miner=s tail 

under supported roof when he tossed a crib tie towards the cat-track. 

29. At approximately 3:15 am, just after tossing the crib tie, the roof popped and cracked. A 

portion of the unsupported roof dislodged and fell. The rock that dislodged from the roof 

was approximately 7 feet long, 2 feet wide, and 1 to 8 inches thick. The break terminated 

at the last row of bolts.The roof was undisturbed between the last row of bolts and the 

second row of bolts. 

30. Mr. Borders was kneeling at the right side of the end of the continuous miner=s tail, facing 

in by when he was struck by a piece of the rock. The rock that fell from the roof first 

struck the continuous miner=s tail, causing the rock to break apart. 

31. A portion of the broken rock struck Mr. Borders after it hit the tail. The parties disagree 

as to whether Mr. Borders was standing under supported or unsupported roof when he 

was struck by the falling material. 

32. Mr. Markham and Mr. Roach removed the rock from Mr. Borders and Mr. Duty helped 

Mr. Borders to his feet. 

33. Mr. Borders= left arm was bleeding. It was wrapped in Mr. Roach=s bandana at the scene 

and pressure was applied. 

34 FMSHRC Page 849
34. Mr. Border=s walked under his own power to the mine manager=s EMU, a four wheeled 

electric vehicle that was driven by Mr. Genesio. 

35. On the ride from Unit 2 to the surface, Mr. Genesio stopped at the dinner hole and 

obtained additional bandages that were used to treat Mr. Border=s arm injury. 

36. Mr. Genesio did not observe significant blood loss while driving Mr. Borders out of the 

mine. 

37. Mr. Broders never lost consciousness and was able to converse normally with Mr. 

Genesio during the ride out of the mine. 

38. They reached the surface at approximately 3:14 am. 

39. An ambulance was present when Mr. Borders reached the surface. 

40. Mr. Borders retrieved his cell phone after reaching the surface. It was in his basket in the 

bath house, which he raised and lowered two times without assistance. The basket when 

full weighs nearly 20 pounds and requires a miner to pull a chain to raise the basket into 

position. 

41. Mr. Borders received the following injuries: a broken left wrist, a laceration to his upper 

left arm that required 25 stitches and multiple abrasions to his body, including his head. 

He was treated and released at the Harrisburg Medical Center, but was never admitted. 

42. On May 16, 2011, at 05:10 am, MSHA issued a verbal 103(j) Order. 

43. The 103(j) Order was modified at 06:28 am to a 103(k) Order upon MSHA=s arrive (sic) 

at Willow Lake, and memorialized at Order No. 8424291. 

44. Mr. Borders returned to work on third shift Tuesday night, May 17, 2011 at 11:00 pm on 

restricted duty. 

45. On the morning of May 18, 2011 Mr. Borders was interviewed by MSHA and Illinois 

state mining officials during an inquiry into this matter. 

46. 104(a) Citation 8428712 was issued on May 19, 2011. 

STIPULATIONS OF FACT WITH RESPECT TO CITATION NO. 8428712 

1. Citation No. 8428712 alleges that Big Ridge violated Order No. 8424291, an Order 

issued under Sections 103(j) and 103(k) of the Act. 

34 FMSHRC Page 850
 

 

 

2. Big Ridge has argued in past filings that Order No. 8424291 is invalid. 

3. After considering Big Ridge=s Motion to Dismiss, the Secretary=s Response, and Bid 

Ridge=s Motion for Reconsideration, the Administrative Law Judge found Order No. 

8424291 to be valid. 

4. Big Ridge maintains its position that Order No. 8424291 is invalid and preserves that 

argument for appeal. However, to the degree that Order No. 8424291 is valid, the parties 

stipulate that a violation of that Order occurred as alleged in Citation No. 8428712 and 

that the proper negligence designation for such violation is high negligence. 

ISSUES 

The issues before me are: 1) does the Secretary have the authority to issue 103(j) and 

103(k) orders in incidents involving no need for rescue and recovery; 2) did the Secretary 

reasonably exercise her authority in the case sub judice in its issuance of 103(j) Order No. 

8424291 and subsequent 103(k) order modifications; 3) should Contestant=s notice of contest be 

dismissed and Citation No. 8428712 be affirmed as stipulated. 

FINDINGS OF FACT AND CONCLUSTIONS OF LAW 

A. Does the Secretary have the authority to issue 103(j) and 103(k) orders in incidents where 

rescue and recovery are not necessary?6 

Contrary to the Contestant=s assertions otherwise, I find that the triggering event for the 

issuance of a 103(j) order is the occurrence of an Aaccident@ as that term is defined in Section 

3(k) of the Act.7 

The formula for statutory interpretation in Commission cases is well-known: the ALJ 

must first examine the plain meaning of the statutory terms; if any ambiguity exists, deference is 

to be afforded to the Secretary=s reasonable interpretations of such. See Chevron U.S.A., Inc., v. 

Natural Res. Def. Council, Inc., 467 U.S. 837, 842 (1984); Thunder Basin Coal Co., 18 

FMSHRC 582, 584 (Apr. 1996); Sec=y of Labor v. Excel Mining, LLC, 334 F.3d 1, 6 (D.C. Cir. 

2003); Energy West Mining Co. v. FMSHRC, 40 F.3d 457, 460 (D.C. Cir. 1994)(citing Chevron, 

467 U.S at 483); Jim Water Resources, Inc., 2012 WL 362189 (Jan. 2012)(ALJ). 

Inter alia, the Contestant argues that the Secretary=s power to issue 103(j) and 103(k) 

orders is limited to situations involving rescue or recovery. While conceding that Arescue and 

recovery@ are not defined in the Act at 30 U.S.C. ' 803, Contestant argues that the events 

6 I have already, in brief, addressed this issue in prior denials of Contestant=s motions for 

dismissal and reconsideration. I hereby incorporate the rationales therein without a full recitation 

thereof in the within discussion. 

7 AAccident includes a mine explosion, mine ignition, mine fire or mine inundation, or injury to, 

or death, of any person.@ 30 U.S.C. ' 813(k). 

34 FMSHRC Page 851
 

 

 

 

stipulated to sub judice would not meet the definition of Arescue and recovery@ in the United 

States Bureau of Mines= Dictionary of Mining Terms (1968). (See also Exhibit A attached to 

Contestant=s Motion to Dismiss Order No. 8424291 and Citation No. 8428712 at 5-8) 

As shall be discussed infra, I find that the roof fall and associated miner=s injury that took 

place on May 16, 2011, constituted an Aaccident@ which statutorily authorized the Secretary to 

issue a 103(j) order. However, I must also observe that the stipulated facts arguably fall within 

the definition of Arescue@ in the Dictionary of Mining Terms at 913 stating, Ato move men or dead 

bodies from a mine after a mine disaster. Sometimes called recover.@

Here, after the roof collapse, fallen rock had to be removed from Tom Borders, the 

injured miner, by Mr. Markham and Mr. Roach. Borders had to be helped to his feet. See Stip 

No. 32 above.8 Mine manager Genesio drove (moved) Borders to the surface in a four-wheeled 

electric vehicle. After receiving treatment at the scene and on the way to the surface, Border was 

driven (moved) by ambulance to Harrisburg Medical Center for further treatment. Stip. Nos. 32, 

33, 41, 44. 

Regardless, however, of whether the within roof fall and miner=s injury meet Contestant=s 

suggested standard for rescue and recovery, I find that the clear statutory language of ' 103(j), 

given the stipulated facts of this case, authorized the Secretary to issue a 103(j) order. 

Sections 103(j) and 103(k) of the Act provide as follows: 

In the event of any accident occurring in any coal or other mine, the operator shall 

notify the Secretary thereof and shall take appropriate measures to prevent the 

destruction of any evidence which would assist in investigating the cause or 

causes thereof. For the purposes of the preceding sentence, the notification 

required shall be provided by the operator within 15 minutes of the time at which 

the operator realizes that the death of an individual at the mine, or an injury or 

entrapment of an individual at the mine which has a reasonable potential to cause 

death, has occurred. In the event of any accident occurring in a coal or other mine, 

where rescue and recovery work is necessary, the Secretary or an authorized 

representative of the Secretary shall take whatever action he deems appropriate to 

protect the life of any person, and he may, if he deems it appropriate, supervise 

and direct the rescue and recovery activities in such mine. 

30 U.S.C. ' 813(j)(emphasis added). 

In the event of any accident occurring in a coal or other mine, an authorized 

representative of the Secretary, when present, may issue such orders as he deems 

appropriate to insure the safety of any person in the coal or other mine, and the 

operator of such mine shall obtain the approval of such representative, in 

consultation with appropriate State representatives, when feasible, of any plan to 

8 AStip. No.@ indicates the stipulations of fact entered by the parties. 

34 FMSHRC Page 852
 

 

 

 

recover any person in such a mine or to recover the coal or other mine or to return 

affected area of such mine to normal. 

30 U.S.C. ' 813(k). 

Order No. 8424219 states as follows: 

A non-fatal accident on Unit #2 on 5/16/2011 at approximately 0315 

hours. This Order is being issued under Section 103(j) of the Federal Mine Safety 

and Health Act of 1977 to prevent the destruction of any evidence which would 

assist in investigating the cause or causes of the accident. It prohibits all activity in 

the area of the Unit #2 where the accident occurred until MSHA has determined 

that it is safe to resume normal operations in this area. This order was initially 

issued verbally to Tom Benner, Director of Midwest Operations at 0510 hours and 

has now been reduced to writing. 

See Exhibit A attached to Contestant=s Notice of Contest. 

Contestant essentially argues that the term Aaccident in ' 103(j) should be construed as an 

event involving Athe death of an individual at the mine, or an injury or entrapment of an 

individual at the mine which has a reasonable potential to cause death [Y]@ See Contestant=s 

Motion to Dismiss 11-12 (quoting 30 U.S.C. ' 813(k)). However, as the Secretary correctly 

observes, this contention has no basis in any Commission precedent and flies in the face of the 

plain language of the Act=s definition section. See Secretary=s Response to Contestant=s Motion to 

Dismiss at 9. 

The term Aaccident@ as set forth at ' 3(k) of the Act includes a mine explosion, mine 

ignition, mine fire, or mine inundation, or injury to, or death of any person. 30 U.S.C. ' 803(k). 

The plain language of ' 103(d) of the Act specifies that an unplanned roof fall is an accident for 

purposes of Section 103. Emerald Coal Resources, LP, 30 FMSHRC 122, 124 (2008)(ALJ). The 

roof fall did not occur in an abandoned panel or inaccessible area so as to preclude 103(d) 

applicability. It is uncontroverted that there was an unplanned roof fall at Willow Lake on May 

16, 2011 which collapsed on a continuous miner machine and struck a miner. Stip. Nos. 29-32. 

It is further uncontroverted that a miner suffered an injury at Contestant=s mine on May 

16, 2011 due to said roof collapse. The miner was required to undergo emergency treatment at 

the scene and later hospital treatment for a fractured wrist, laceration to the upper arm requiring 

twenty-five stitches and multiple abrasions to the body and head. Stip. Nos. 33, 35, 41. Such an 

unplanned fall and injury clearly constituted an Aaccident@ that required the mine operator to 

notify Athe Secretary thereof@ so that appropriate measures could be taken Ato prevent the 

destruction of any evidence which would assist in investigating the cause or causes thereof.@ 30 

U.S.C. 103(j). 

Contestant=s proposed restrictions on the Secretary=s authority to issue ' 103(j) orders so 

as to prevent the destruction of property and allow proper investigation of accident causation 

would patently defeat the general protective purpose of the Act. See 30 U.S.C. ' 802. Such a 

34 FMSHRC Page 853
 

 

 

 

 

misguided statutory construction would lead to an unconscionable vitiation of the Secretary=s 

authority. Extremely untoward incidents could take place, i.e. roof collapses, explosions, floods, 

machinery malfunctions, etc, but the Secretary would be unable to investigate and perhaps 

prevent the recurrence of such, simply because no rescue or recovery was needed during the 

event. 

I find that, contrary to Contestant=s assertions otherwise, the language in ' 103(j) Athe 

death of an individual at the mine, or an injury or entrapment of an individual at the mine which 

as reasonable potential to cause death@ was plainly meant to describe the type of accident which 

would require notification to the Secretary within fifteen minutes. Said description was never 

intended to limit the Secretary=s authority to investigate other types of accidents or to take any 

appropriate steps to insure safety. (See inter alia, S. Rep. No. 109-365 at 9 (2006) for Congress=s 

expressed intention in this regard. AThe Committee intends the 15 minute requirement to apply 

only to accidents [Y] that involve the death of an individual at the mine, and those that involve an 

injury or entrapment of an individual at the mine which has a reasonable potential to cause 

death.@ Id. 

In a recent decision, Jim Walter Resources, Inc. (AJWR@), Administrative Law Judge 

Moran addressed the issue of the Secretary=s authority to issue orders under ' 103(j). Id., 2012 

WL 362189 (Jan. 2012)(ALJ). In JWR, there had been an ignition in a mine are where there had 

been some burning and welding. There were no deaths, injuries or entrapment. After the mine 

operator reported the incident, various oral and written orders under sections 103(J) and 103(k) 

were issued. 

Inter alia, the mine operator, as here, contended that the 103(j) and 103(k) orders were 

unlawful in that such could Aonly be issued when rescue and recovery work is necessary. Id. ALJ 

Moran rejected operator=s interpretation of ' 103(j), finding that Congress had explicitly repeated 

the phrase Ain the event of any accident@ so to create two distinct classes of accidents: Athose 

where there was an accident and those where the accident also necessitates rescue and recovery 

work.@ Id. 

In JWR, ALJ Moran further noted Contestant=s misunderstanding in failing to recognize 

that MSHA, not the mine operator, is charged with enforcement of the Mine Act. Id. To strictly 

limit the issuance of ' 103(j) orders to only situations in which there is rescue and recovery 

would be to deny that the Secretary is the principal authority to conduct investigations. Id. 

Section 103(k) of the Act defines an accident as including Aa mine explosion, mine ignition, mine 

fire, or mine inundation, or injury to, or death of, any person[.]@ 30 U.S.C. ' 802(k)(emphasis 

added). Any accident, not rescue and recovery efforts, as Contestant would argue, is what triggers 

these statutory provisions. 30 U.S.C. ' 813(j); Jim Walter Resources, 2012 WL 362189. Once an 

accident has occurred at a mine, MSHA then has broad authority under Sections 103(j) and 

103(k) to impose whatever reasonable measures it deems to be appropriate and necessary. Id.; 

Pattison Sand Company, 2011 WL 6880702 (Jan. 2011)(ALJ). 

In fact, this particular case illustrates exactly why operators are not giving statutory 

authority to choose their own course of action. Although the Secretary issued Order No. 8424291 

due to the roof fall, Respondent not only failed to preserve evidence at the accident site, it 

34 FMSHRC Page 854
 

 

 

 

 

continued to mine in the exact area of the roof fall for a an additional two feet in entry number 10 

and removed approximately five feet of the number 10 entry for a distance of approximately 

eighteen feet squaring the face. See Citation No. 8428712. Not only did it completely disregard 

the 103(j) order, it disregarded the safety of the miners who continued to mine after its issuance. 

B. Did the Secretary reasonably exercise her authority in issuing Order No. 8424291 in this 

case? 

Based upon the foregoing analysis, the ALJ also finds that the Secretary reasonably 

exercised her authority under the Act in issuing Order No. 8424291 in this particular instance. 

Due to a roof fall, a miner was injured, received treatment at the mine and had to be taken offsite 

for further medical treatment. At the time that the 103(j) order was issued, the MSHA 

representative had no other tool in which to insure the preservation of the scene.9 Upon arriving, 

this was modified to a 103(k) order to ensure that no other miners were injured to due the 

unsupported and dangerous roof conditions. As such, the undersigned finds that issuance of the 

Order is reasonable. 

Moreover, there is some case law to suggest that the standard by which the Secretary=s 

actions should be reviewed is Aarbitrary and capricious.@ In Pattison Sand Company, LLC, ALJ 

McCarthy explained that Athis standard appropriately respects the Secretary=s judgment while 

allowing review for abuse of discretion, errors of law, and review of the record under the 

substantial evidence test.@ Id. at 2011 WL 6880702. Under this standard, the agency must 

examine the relevant data and articulate an explanation for its action, including a rational 

connection between the facts found and the choices subsequently made. Id. (citing Motor 

Vehicles Mfrs. Ass=n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). 

In the instant case, MSHA was contacted about a roof fall that resulted in the injury of a 

miner. Due to this, Inspector Fazzalare issued a 103(j) order to insure the preservation of the 

accident scene. Upon his arrival at the mine, the 103(j) order was then modified to a 103(k) order 

in order to insure the safety of the miners at the mine until such time that a complete 

investigation of the cause(s) of the roof fall could be investigated. I find that there is clearly a 

rational connection between the facts found and the choices subsequently made by the inspector 

and, as such, the Secretary=s actions were not arbitrary and capricious. 

9 It is noted that the parties were unable to reach an agreement as to whether Mr. Borders was 

standing under supported or unsupported roof when struck by the falling material. Stip. No. 31. 

Arguably, this uncertainty would be another factor justifying preservation of the accident scene 

pending MSHA inspection and investigation. 

34 FMSHRC Page 855
 

 

C. Should Contestant=s notice of contest be dismissed and Citation No. 8428712 be affirmed 

as stipulated? 

Considering the specific stipulated-to circumstances of the accident discussed here and 

given the foregoing findings which support that the Secretary properly and reasonably exercised 

her authority in seeking to maintain the integrity of the accident scene, Contestant=s contest of the 

Secretary=s 103(j) and 103(k) orders should be dismissed. Citation No. 8428712 is affirmed 

pursuant to the stipulations of the parties. 

ORDER 

Given that the undersigned has found that the Secretary has authority of issue 103(j) and 

103(k) orders in cases involving accidents and that the 103(j) order was reasonably issued in this 

case, it is hereby ORDERED that Contestant=s Notice of Contest is DISMISSED, Order No. 

8424291 is AFFIRMED and, therefore, Citation No. 8248712 is AFFIRMED, as stipulated. 

/s/ John Kent Lewis 

John Kent Lewis 

Administrative Law Judge 

Distribution: 

Suzanne F. Dunne, Esq., and Kevin Wilemon, Esq., Office of the Solicitor, U.S. Department of 

Labor, 230 South Dearborn Street, Room 844, Chicago, IL 60604 

R. Henry Moore, Esq., and Arthur Wolfson, Esq., Jackson Kelly, PLLC, Three Gateway Center, 

Suite 1340, 401 Liberty Avenue, Pittsburgh, PA 15222 

34 FMSHRC Page 856
 

 

 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

Office of Administrative Law Judges
 

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

Washington, D.C. 20001
 

April 19, 2012 

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH :

ADMINISTRATION (MSHA), : Docket No. WEVA 2009-280 

Petitioner, : A.C. No. 46-08759-166002 

:

v. :

 :

NEWTOWN ENERGY, INC., :

 Respondent. : Mine: Eagle Mine 

DECISION 

Appearances: Paul J. Koob, Esq., and Matthew Epstein, Esq., of the U.S. Department of 

Labor, Office of the Solicitor, Philadelphia, Pennsylvania, on behalf of the 

Secretary of Labor; 

Christopher D. Pence, Esq., and Wayne H. Xu, Esq., of Guthrie & 

Thomas, PLLC, Charleston, WV, on behalf of Respondent, Newtown 

Energy, Inc. 

Before: Judge L. Zane Gill 

Procedural History and Order Amending Pleadings 

This case involves a Petition for Assessment of Civil Penalty filed by the Secretary of 

Labor pursuant to section 105(d) of the Federal Mine Safety and Health Act of 1977 (“Act”), 30 

U.S.C. § 815(d). As filed, the Petition alleged that Newtown Energy, Inc. (“Newtown”), was 

liable for two 104(d)(1) violations of the Secretary’s Mandatory Safety Standards for 

Underground Coal Mines, 30 C.F.R. § 75.1722(a) and 75.1725(c), respectively, and sought a 

total civil penalty of $34,602.00.1

 A hearing was held on June 21, 2011, in Charleston, West 

Virginia, at which the parties presented evidence and argument regarding the remaining two 

violations. The parties filed briefs after receipt of the hearing transcript. In its post-hearing 

brief, Newtown argued, among other things, that the Secretary had improperly compounded 

charges by citing a single event as a violation under the two distinct standards listed above, 

giving rise to the two 104(d)(1) orders at issue. 

1

 The Secretary’s original Petition for Assessment of Civil Penalty charged Newtown 

with ten violations of the Act and proposed a total penalty of $131,821.00. The parties settled 

eight of those charges prior to the hearing. Only Order Nos. 6623273 and 6623274 remained to 

be decided in this case. 

34 FMSHRC Page 857
On January 25, 2012, the Court issued an Order to Show Cause requiring the parties to 

respond to the duplication of charges issue and suggested that the alleged violation could, and 

possibly should have been cited as a single event under 30 C.F.R. § 75.1722(c), which appeared 

to comprehend all aspects of the violating event and could resolve the argument over duplicative 

charges. In response to the Order to Show Cause, the Secretary agreed that the pleadings could 

be amended to conform to the evidence presented at trial, specifically that Order No. 6623274, 

which alleged a violation of 30 C.F.R. § 75.1725(c), could be vacated, leaving only Order No. 

6623273, which could be amended to allege a violation of 30 C.F.R. § 75.1722(c). Newtown 

stated in passing that both orders should be vacated inasmuch as the Secretary should be held 

accountable for her erroneous choice to charge the event as she did. However, Newtown did not 

provide any authority or argument in support of its point. Newtown conceded that its alleged 

actions constituted a technical violation of 30 C.F.R. § 75.1722(c) and focused its arguments on 

whether the violation was significant and substantial (“S&S”) or resulted from its unwarrantable 

failure to comply with the mandatory safety standard. 

Accordingly, pursuant to FRCP 15(b)(2), 29 CFR § 2700.1(b), and Faith Coal Co., 19 

FMSHRC 1357, 1361–62 (Aug. 1997), the pleadings are ORDERED amended to conform with 

the facts presented at trial as follows: Order No. 6623274, which alleged a violation of 30 C.F.R. 

§ 75.1725(c), is vacated, leaving only Order No. 6623273, which is amended to allege a single 

violation of 30 C.F.R. § 75.1722(c). This renders moot the issue of duplicative orders. 

Decision Summary 

For the reasons set forth below, I conclude that Newtown violated 30 C.F.R. § 75.1722(c) 

as set forth by Order No. 6623273, as amended. I find that Newtown’s negligence was “high” 

and that a fatal accident involving one miner was highly likely to occur. I further conclude that 

the violation was S&S and constituted an unwarrantable failure to comply with the cited 

mandatory standard. Thus, I impose a civil penalty in the amount of $17,301.00. 

Stipulations 

1.	 The Administrative Law Judge and the Federal Mine Safety and Health Review 

Commission have jurisdiction to hear and decide this civil penalty proceeding pursuant to 

sections 104 and 113 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 

815. 

2.	 Newtown is an operator of Eagle Mine, Mine ID No. 46-08759. 

3.	 Operations at the Eagle Mine are subject to the jurisdiction of the Act 30 U.S.C. § 801 et 

seq., as amended. 

4.	 MSHA inspectors acted as authorized representatives of the Secretary of Labor when 

they issued the orders to Newtown Energy, Inc., referenced herein. 

34 FMSHRC Page 858
5.	 True copies of the orders issued to Newtown in these proceedings were served on
 

Newtown’s agents.
 

6.	 The imposition of civil penalties will have no effect on Newtown’s ability to continue in 

business. 

7.	 The citations and orders issued to Newtown contained in Government Exhibits S-3, S44, and S-6 are authentic copies of the orders at issue in these proceedings. 

Allegations 

Order No. 6623273 (Ex. S-3), as amended, alleges that Newtown violated the mandatory 

standard found at 30 C.F.R. § 75.1722(c),2

 relating to “gears; sprockets; chains; drive, head, tail, 

and takeup pulleys; flywheels; couplings, shafts; sawblades; fan inlets; and similar exposed 

moving machine parts which may be contacted by persons, and which may cause injury to 

persons.” 30 C.F.R. § 75.1722(a). Specifically, it alleges that Newtown’s agents and miners 

created a hazard in violation of the standard by removing a guard panel on the tail pulley 

assembly while the belt line was running. The standard requires that guarding structures, such as 

the panel in question, be “securely in place” any time the related machinery is being operated. 

The order alleges “high” negligence and characterizes the gravity as S&S and “highly likely” to 

result in a fatality for one person. It also alleges that the violation occurred as the result of an 

unwarrantable failure on the part of Newtown to comply with the standard. 

Fact Summary 

MSHA Inspector, Gary Bragg (“Bragg”) wrote the orders at issue in this case as part of a 

quarterly E01 inspection of the Eagle mine on August 4, 2008.3

 Bragg was accompanied by Sam 

Gore (“Gore”), a section boss and compliance coordinator at the Eagle mine. (Tr. 34:2–16, 

205:2–20) 

Bragg came upon foreman Michael Taylor (“Taylor”) working with other men in the area 

of the slope conveyor belt tail pulley take-up unit. Taylor was an experienced and seasoned 

mine foreman with nearly thirty years of foreman experience. (Tr. 175:15–21) Taylor and a 

“red hat” (trainee) miner were in the process of replacing a deteriorated 4-by-8 foot section of 

guard panel attached to the take-up unit. (Tr. 44:6–16, 181:19–182:12) The conveyor belt was 

2 30 C.F.R. § 75.1722(c): “Except when testing the machinery, guards shall be securely in 

place while machinery is being operated.” 

3

 The inspection was a bit out of the ordinary inasmuch as Newtown was in a “potential” 

pattern-of-violation (“POV”) status at the time. (Tr. 29:9–30:22, 120:10–122:11) During the 

90-day period that Newtown was in “potential” POV status, it reduced the number of S&S 

enforcement actions, and the POV notice was terminated. (Tr. 122:12–16.) 

34 FMSHRC Page 859
running at a speed of 300–400 feet per minute at the time. (Tr. 55:1–11) Bragg concluded that 

this situation was unreasonably dangerous. He verbally declared an imminent danger, which 

required that the conveyor belt be immediately shut down. (Tr. 35:18–36:12, 44:17–22, 

197:10–16) The replacement guard panel was then safely installed, and Bragg lifted the 

imminent danger order in less than fifteen minutes, allowing the conveyor belt to resume 

operation. (Exhibit S-3) Bragg issued Orders 6623273 and 6623274 in due course. (Tr. 

46:13–18) The amended Order No. 6623273 relates to these facts. 

Findings of Fact and Analysis 

There is no dispute that: (1) the guard panel was—for at least a short time—not firmly 

attached in place4

 (Tr. 185:9–187:9, 266:22–267:3); (2) repairs on the guard panel were 

attempted while the belt line was in operation (Tr. 198:7–200:1); and (3) this constituted a 

violation of 30 C.F.R. § 75.1722(c).5 What remains disputed is: (1) whether Bragg’s assessment 

of negligence, gravity, S&S, and unwarrantable failure is supported by the record; and (2) what 

penalty, if any, is appropriate. 

Bragg based his decision on the following factors: 

1.	 The likelihood of an injury-producing incident was increased because of the 

environment where the work was being done. The tail pulley assembly was located in a 

damp, cramped, and steep area. The conveyor belt and the tail pulley elements remained 

in operation only a short distance away from where the men were working on the guard 

panel. (Tr: 37:9–39:15) 

2.	 The tail pulley assembly, in addition to being close at hand, is massive, and comprises 

several parts that are large, heavy, and moving fast enough to instantly maim or kill a 

miner. (Tr. 51:4–14, 138:4–139:1, 180:10–13) 

3.	 Taylor was doing the work with an inexperienced “red hat” assistant who presumably 

would not have the depth of mining experience necessary to exercise appropriate 

independent caution. (Tr. 180:19–181:18) In contrast, Taylor was an experienced 

supervisor, and at least from Bragg’s perspective, should have known better than to 

attempt the guard panel repair under these conditions. (Tr. 60:14–62:18) 

4

 There is also no dispute that before Bragg arrived, Taylor and his helpers had replaced 

other guard panels on the take-up unit on the same shift and under similar circumstances. (Tr. 

180:19–181:18, 235:8–18) 

5

 “While Newtown believes that the Secretary should be held accountable for the section 

of law she cited and ultimately tried [ . . .], it agrees that 30 C.F.R. § 75.1722(c) is applicable and 

agrees that there was a technical violation of this section.” (Newtown’s Resp. to Order to Show 

Cause 2) 

34 FMSHRC Page 860
Newtown argues that the order is unsupported for the following reasons:6 

1.	 The men were never exposed to an unguarded conveyor belt. At all times, they were 

either standing to the side of the opening where the guard panel fit and/or were adequately 

shielded from the belt by the guard panel itself, although it was not attached in place. (Tr. 

182:12–185:7, 213:15–214:17, 257:5–258:4.) If there was a moment when the guard 

panel was not in place, it was so brief as to be de minimus. (Tr. 198:7–199:1, 

266:22–267:3) 

2.	 In the alternative, the portion of the belt exposed when the guard panel was removed was 

no different than any other unguarded portion of the belt. (Tr. 124:18–125:11) There is 

no prohibition against working in close, unprotected proximity to the belt, except at 

specifically designated locations, such as the tail pulley assembly.7 (Tr. 210:10–212:7) 

Although the men were working on a guard panel which might be considered part of the 

tail pulley assembly, the tail pulley was not exposed when the guard panel was removed. 

(Tr. 237:19–240:5, 255:11–256:17; Ex. S-3) The belt behind the panel was no different 

than any other unguarded portion of the belt. (Tr. 209:22–210:7)8 

6

 Prior to the Court’s Order to Show Cause regarding the issue of duplicative orders, 

Newtown argued that the portion of the tail piece assembly exposed when the guard panel was 

removed was not covered by either 30 C.F.R. § 75.1722(a) or § 75.1725(c) because it: (1) was 

not a piece of machinery that could be powered off, thus obviating any liability under 

§75.1725(c); and (2) guarded a section of the belt line that was no different than any other 

portion of the belt line that would not require any guarding mechanism, and thus was not 

covered by §75.1722(a) . In addition, Newtown argued that, even though it had installed 

guarding panels in the area observed by Inspector Taylor, it was not required to do so by 

regulation. Therefore, Newtown should not be held accountable for violating a regulation that it 

would not otherwise be subject to but for its voluntary and unrequired prior decision to install 

superfluous guard panels. However, with Newtown’s concession that it violated 30 C.F.R. § 

75.1722(c), its creative but convoluted arguments are moot as to the issue of liability. What 

remains is whether these factors have any bearing on my determination of the degree of 

negligence, the severity of the violation, whether the violation is properly characterized as S&S 

or an unwarrantable failure, or what civil penalty amount should be assessed. 

7

 Taylor conceded on cross examination that guarding is required at the location where he 

and his men were working because it is part of the tail pulley assembly. (Tr. 266:8–21) 

8

 Taylor conceded on cross examination that regulations do not allow a person to walk by 

a section of a belt line that is supposed to be guarded, but is not. Doing so is properly considered 

a hazard. (Tr. 262:14–264:1) 

34 FMSHRC Page 861
Order No. 6623273 

Negligence 

Section 110(i) of the Mine Act requires that in assessing penalties the Commission must 

consider, among other criteria, “whether the operator was negligent.” 30 U.S.C. § 820(i). Each 

mandatory standard carries an accompanying duty of care to avoid violations of the standard. An 

operator’s failure to satisfy the appropriate duty can lead to a finding of negligence. In this type 

of case, we look to such considerations as the foreseeability of the miner’s conduct, the risks 

involved, and the operator’s supervising, training, and disciplining of its employees to prevent 

violations of the standard in issue. Southern Ohio Coal Co., 4 FMSHRC at 1463–64. See also 

Nacco Mining Co., 3 FMSHRC at 848, 850–51 (Apr. 1981) (construing the analogous penalty 

provision in 1969 Coal Act where a foreman committed a violation), cited in A. H. Smith Stone 

Company, 5 FMSHRC 13, (Jan. 1983). 

Negligence “is conduct, either by commission or omission, which falls below a standard 

of care established under the Mine Act to protect miners against the risks of harm.” 30 C.F.R. 

§ 100.3(d). “A mine operator is required [...] to take steps necessary to correct or prevent 

hazardous conditions or practices.” Id. “MSHA considers mitigating circumstances which may 

include, but are not limited to, actions taken by the operator to prevent or correct hazardous 

conditions or practices.” Id. Reckless negligence is present when “[t]he operator displayed 

conduct which exhibits the absence of the slightest degree of care.” Id. High negligence is when 

“[t]he operator knew or should have known of the violative condition or practice, and there are no 

mitigating circumstances.” Id. Moderate negligence is when “[t]he operator knew of should have 

known of the violative condition or practice, but there are mitigating circumstances.” Id. Low 

negligence is when “[t]he operator knew or should have known of the violative condition or 

practice, but there are considerable mitigating circumstances.” Id. No negligence is when “[t]he 

operator exercised diligence and could not have known of the violative condition or practice.” Id. 

Order No. 6623273 (Ex. S-3) alleges “high” negligence. Table X of 30 C.F.R. § 100.3 

links an allegation of high negligence with the absence of mitigating circumstances. From the 

evidence summarized above, I conclude that Newtown’s actions taken through its agent, Foreman 

Taylor, exhibit a high degree of negligence, as alleged. More important than the absence of 

mitigating circumstance in this situation is the fact that there is no ambiguity whatsoever that 

doing maintenance on a guard panel such as this requires that the belt line be powered off. This is 

a matter of self-preservation and common sense. Furthermore, it is made completely clear by 

being the subject of two of the standards relevant to this decision, 30 C.F.R. § 75.1725(c) and 30 

C.F.R. § 75.1722(c)—if something more than common sense is required. 

34 FMSHRC Page 862
With this as backdrop, it becomes clear that a foreman should know better than to risk life 

and limb by cutting corners like Taylor did here. That, in itself could be seen as a sufficiently 

aggravating circumstance to support findings of high negligence and S&S, but Taylor’s actions 

are clearly an aggravating circumstance when we consider that he did what he did in the presence 

and with the assistance of a trainee miner. I find and conclude that Taylor’s actions constituted 

high negligence even without considering the involvement of the red hat miner, which will be 

dealt with separately in the context of S&S analysis below. 

Gravity 

The gravity penalty criterion under section 110(i) of the Mine Act, 30 U.S.C. § 820(i), is 

most often viewed in terms of the seriousness of the violation. Sellersburg Stone Co., 5 

FMSHRC 287, 294–95 (March 1983), aff’d, 736 F.2d 1147 (7th Cir. 1984); Youghiogheny & 

Ohio Coal Co., 9 FMSHRC 673, 681 (Apr. 1987). The seriousness of a violation can be 

examined by looking at the importance of the standard which was violated and the operator’s 

conduct with respect to that standard in the context of the Mine Act’s purpose of limiting 

violations and protecting the safety and health of miners. See Harlan Cumberland Coal Co., 12 

FMSHRC 134, 140 (Jan. 1990) (ALJ). The Commission has recognized that the determination of 

the likelihood of injury should be made assuming continued normal mining operations without 

abatement of the violation. Consolidation Coal Co., 8 FMSHRC 890, 899 (June 1986). 

However, the gravity of a violation and its S&S nature are not the same. 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 if it occurs.” Consolidation Coal Co., 18 FMSHRC 1541, 1550 (Sept. 1996). 

The gravity analysis can include the likelihood of an injury, but should focus more on the 

potential severity of an injury, and the number of miners potentially injured. The analysis should 

not equate gravity, which is an element that must be assessed in every citation or order, with 

“significant and substantial,” which is only relevant in the context of enhanced enforcement under 

Section 104(d). See Quinland Coals Inc., 9 FMSHRC 1614, 1622 n.1 (Sept. 1987). 

Order No. 6623273 (Ex. S-3) alleges a high likelihood of a fatal injury to at least one 

miner as a result of this violation. I concur. The evidence establishes firmly that this two-person 

operation of replacing a 4-by-8 foot guard panel was done while the belt line was in operation 

only inches away from Taylor and the trainee miner. This is compounded by the fact that the 

immediate work environment was, at best, a complicating factor. The area was cramped, damp, 

and slightly angled, increasing the likelihood that the inherently awkward operation of staging the 

replacement panel, setting the old panel partially out of the way, and then maneuvering the new 

panel around, past, and behind the old panel would go dangerously awry. This will be discussed 

again below in relation to the S&S evaluation. 

As stated above, the gravity analysis should deal more directly with the potential severity 

of the injury made more likely by the violating actions. Although Newtown argued that the 

section of the belt mechanism guarded by the panel in question here was mechanically 

34 FMSHRC Page 863
 

indistinguishable from any other portion of the belt line that would not require special guarding, I 

am not convinced. The simple fact that Newtown chose to guard this portion of the belt assembly 

is potent evidence that it recognized the potential hazard and the need to guard against it when it 

installed the guarding in the first place. Newtown acted in recognition of its own perception of 

increased hazard when it installed the guarding where it did. Newtown, Inspector Bragg, and I 

are all in agreement that guarding at this location was a proper response to the increased hazard 

created by its association with and proximity to the massive tail pulley components. The facts 

summarized above show that a potentially maiming or fatal injury was likely. I am convinced and 

conclude that Inspector Bragg’s findings of a high likelihood of fatal injury to at least one miner 

are justified. 

Significant and Substantial and Unwarrantable Failure 

It is clear in the Mine Act that because negligence and gravity, which are clearly 

delineated in 30 C.F.R. § 100.3 and related tables, apply to all citations and orders, the enhanced 

enforcement provisions set out in Section 104(d) contemplate something distinct and “more,” 

when talking about S&S and unwarrantable failure. The Secretary must prove negligence and 

gravity for all citations and orders. In order to invoke the enhanced enforcement provisions in 

Section 104(d), she must also prove that the circumstances of the violation satisfy both the S&S 

and unwarrantable failure standards. If the Secretary fails to prove both, there can be no 

enhanced enforcement. Thus, the Secretary has to prove four distinct elements9 when the 

enhancement scheme in Section 104(d) is alleged: (1) negligence; (2) gravity; (3) “significant and 

substantial;” and (4) “unwarrantable failure.” 

Significant and Substantial 

In Mathies Coal Co., 6 FMSHRC 1 (Jan. 1984), the Federal Mine Safety and Health 

Review Commission (“Commission”) explained: 

In order to establish that a violation of a mandatory safety standard is significant 

and substantial under National Gypsum, the Secretary of Labor must prove: (1) the 

underlying violation of a mandatory safety standard; (2) a discrete safety hazard – that is, 

a measure of danger to safety – contributed to by the violation; (3) a reasonable likelihood 

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

the injury in question will be of a reasonably serious nature. 

Id. at 3–4. 

9

 The Secretary must also prove the existence of the underlying violation of a health or 

safety standard. Newtown concedes the violation, as mentioned above. 

34 FMSHRC Page 864
In U.S. Steel Mining Co., 7 FMSHRC 1125 (Aug. 1985), the Commission held: 

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.” [ . . .] We have emphasized that, in accordance with the language of 

section 104(d)(1), it is the contribution of a violation to the cause and effect of a hazard that must 

be significant and substantial.” 

Id. at 1129 (emphasis in original) (citations omitted). 

The question of whether a particular violation is significant and substantial must be based 

on the particular facts surrounding the violation. See Texasgulf, Inc., 10 FMSHRC 498 (Apr. 

1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987). S&S enhanced 

enforcement is applicable only to violations of mandatory health and safety standards. Cyprus 

Emerald Res. Corp. v. FMSHRC, 195 F.3d 42 (D.C. Cir. 1999) 

The underlying violation of a safety standard is conceded by Newtown. It is a discrete 

safety hazard to perform maintenance work on any guarding element identified by 30 C.F.R. § 

75.1722(a) without first shutting down the mechanism to which the guarding is attached. The 

likelihood that an injury caused by the violation would be of a reasonably serious nature is 

discussed above. Here I focus on the likelihood that the hazard arising from performing 

maintenance work on a guard panel while the associated belt line is still operating will result in an 

injury. I will discuss Newtown’s argument that any exposure to the running belt line was de 

minimus because the men stood to the side of the opening made by removing the guard panel and 

were thus shielded from contact with the belt line by other guard elements and were only exposed 

to the unguarded belt line for an inconsequential instant, if at all. 

I credit Inspector Bragg’s testimony that the situation he encountered was so hazardous in 

his view that he issued an immediate verbal “imminent danger” shut-down order. This is not a 

trivial act. I have no reason to discount Inspector Bragg’s actions as reflected in the 

documentation of what he did on the scene or as presented in the testimony at trial. It appears 

that the inspector ordered the belt line shut down immediately due to the confluence of two 

factors: (1) the degree of certainty that an incident would occur and (2) the potential of 

devastating injury. The former is consistent with the third Mathies S&S element and is central to 

this portion of the analysis; the later corresponds roughly to the gravity assessment common to all 

citations and the fourth Mathies S&S factor in more egregious cases, which were discussed 

above. 

Although the Commission has determined that there is no ipso facto, one-for-one 

correspondence between an uncontested imminent danger order and a related finding of S&S, 

Wyoming Fuel Co.,16 FMSHRC 1618, 1626 (Aug. 1994), it is clear that an inspector’s decision at 

the scene of a violation to issue an immediate order to cease operations can be relevant to the 

ultimate issue of S&S. The issue of imminent danger is not before me for adjudication, but 

Commission case law helps clarify the parameters of the S&S determination and is useful in 

assessing the qualitative and quantitative elements of the hazard encountered in this violation. In 

34 FMSHRC Page 865
Western Slope Carbon, Inc., 5 FMSHRC 795 (Dec. 1980) (ALJ), Administrative Law Judge 

Carlson discussed the utility of assessing evidence of imminent danger in the context of an S&S 

allegation. He pointed out that in order to conclude that an imminent danger existed, the trier of 

fact must first find that the situation at hand can be reasonably expected to cause death or serious 

physical harm before the violating condition can be abated. Id. at 798–99 (quoting 30 U.S.C. § 

802(j); Old Ben Coal Corp. v. IBMOA, 523 F.2d 25, 32 (7th Cir. 1975)). Obviously, as was 

pointed out by the Judge, concepts of “‘imminent danger’ and ‘significant and substantial’ [. . . ] 

share a common element: the degree of possibility that a hazard will result in a death or serious 

injury.” Western Slope Carbon, 5 FMSHRC at at 801. However, the two concepts are not 

identical. Clearly, imminent danger requires an additional finding of a potential of immediate 

serious harm if abatement is not done promptly. Nonetheless, the overlap between the two 

concepts supports my conclusion that this violation was S&S. Not only is there evidence of the 

basic elements of gravity, negligence, and likelihood needed to prove the underlying violation of 

the standard, but there is additional evidence to be taken from the Inspector’s imminent danger 

order to support the enhanced allegation that the violation was significant and substantial. 

A violation is more likely to be deemed de minimus if its gravity and/or likelihood is 

comparatively less. The inverse is also obviously true. The greater the gravity and/or likelihood 

of a potential incident, the greater the weight in favor of an S&S finding. Considering the 

interplay of factors and the weight of the evidence of those factors, I conclude that this violation 

was significant and substantial. I find it of considerable probative weight that Inspector Bragg 

reacted to the scene he encountered by issuing an immediate stop-work order. I find his reaction 

reasonable in light of the facts recited above. Conversely, I reject Newtown’s argument that the 

admitted violation was de minimus. In doing so, I have fully considered Newtown’s proffered 

evidence that Foreman Taylor and his red hat assistant(s) were largely shielded for most of the 

time they worked on replacing the guard panel. However, considering the grave consequences, 

the high probability of injury as a result of even a slight error, and the high probability of severe 

injury, I am convinced that this violation was far more than de minimus – it was S&S. 

Inasmuch as S&S is an enhanced enforcement action and requires evidence of culpability 

above and beyond that required to prove mere negligence, it is important to consider the fact that 

Taylor required a “red hat” trainee miner to assist him as he violated the standard and exposed 

both of them to this serious hazard. Taylor exercised poor judgement which was compounded in 

its effect by the fact that he was acting as a foreman. His poor judgment and risk-taking placed 

his inexperienced assistant in the untenable position of being exposed to the worst kind of risk 

and example – the kind you can’t protest or ignore without appearing to be insubordinate. This is 

the type of above-and-beyond evidence that makes an S&S finding imperative. 

Unwarrantable Failure 

The term “unwarrantable failure” comes from section 104(d) of the Act and, taken 

together with “significant and substantial,” creates a standard for enhanced enforcement 

procedures, including withdrawal orders and potential enhanced liability. 

34 FMSHRC Page 866
In Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987), the Commission determined that 

the essence of unwarrantable failure is aggravated conduct constituting more than ordinary 

negligence. Id. at 2001. Unwarrantable failure has been paraphrased as “reckless disregard,” 

“intentional misconduct,” “indifference,” or a “serious lack of reasonable care.” Id. at 2003–04; 

Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991). See also Buck Creek Coal 

Inc. v. FMSHRC, 52 F.3d 133, 136 (7th Cir. 1995) (approving Commission’s unwarrantable 

failure test). In Gatliff Coal Co., 14 FMSHRC 1982 (Dec. 1993), the Commission drew a clear 

contrast between negligence and unwarrantable failure, noting that the difference is not merely 

semantic. Consistent with the discussion of enhanced enforcement above, the Commission stated 

that an unwarrantable failure may trigger the “increasingly severe enforcement sanctions of 

section 104(d) [whereas] [n]egligence [. . .] is one of the criteria that the Secretary and the 

Commission must consider in proposing and assessing [. . .] [all] civil penalt[ies].” Id. at 1988 

(quoting E. Assoc’d Coal Corp., 13 FMSHRC 178, 186 (Feb. 1991)). Further, “‘[h]ighly 

negligent’ conduct involves more than ordinary negligence and would appear, on its face, to 

suggest an unwarrantable failure. Thus, if an operator has acted in a highly negligent manner 

with respect to a violation, that suggests an aggravated lack of care that is more than ordinary 

negligence.” Gatliff Coal, 14 FMSHRC at 1989 (quoting E. Assoc’d Coal, 13 FMSHRC at186). 

The Commission has examined various factors to assist 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 operator 

has been placed on notice that greater efforts are necessary for compliance, and the operator's 

efforts in abating the violative condition. Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 

1994); Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992); Quinland Coals, Inc., 10 

FMSHRC 705, 709 (June 1988); Kitt Energy Corp., 6 FMSHRC 1596, 1603 (July 1984); Beth 

Energy Mines, Inc., 14 FMSHRC 1232, 1243–44 (Aug. 1992); Warren Steen Constr., Inc., 14 

FMSHRC 1125, 1129 (July 1992). The Commission has also considered an operator’s 

knowledge of the existence of the dangerous condition. E.g., Cyprus Plateau Mining Corp., 16 

FMSHRC 1604, 1608 (Aug.1994) (affirming unwarrantable failure determination where operator 

aware of brake malfunction failed to remedy problem); Warren Steen, 14 FMSHRC at 1126–27 

(knowledge of hazard and failure to take adequate precautionary measures support unwarrantable 

determination). See also Consolidation Coal Co., 23 FMSHRC 588, 593 (June 2001). What is 

apparent from the foregoing list of factors is that they are fact-specific examples of conduct and 

circumstances tending to show unwarrantable failure as something more than ordinary negligence 

and that they are suggestions only and are not intended to be an exhaustive or exclusive catalog. 

The essential aspect of the unwarrantable failure analysis is, and always has been, whether there 

is aggravated conduct constituting more than ordinary negligence. Any analysis of unwarrantable 

failure must identify the evidence or factors that prove aggravated conduct and discuss them 

thoroughly. IO Coal Company, Inc., 31 FMSHRC 1346, 1350–51 (Dec 2009). 

A Judge must identify and discuss the factors considered in his unwarrantable failure 

analysis and should further discuss how and why the traditional list of factors discussed above 

either do or do not bear on the analysis. See Consolidation Coal Co., 22 FMSHRC 340, 353 

(Mar. 2000) (“Consol”). The Commission has made clear that it is necessary for a Judge to 

34 FMSHRC Page 867
consider all relevant factors, rather than relying on one to the exclusion of others. Windsor Coal 

Co., 21 FMSHRC 997, 1001 (Sept. 1999); San Juan Coal Co., 29 FMSHRC 125, 129–36 (Mar. 

2007) (remanding unwarrantable determination for further analysis and findings when judge 

failed to analyze all factors). While an Administrative Law Judge may determine, in his 

discretion, that some factors are not relevant, or may determine that some factors are much less 

important than other factors under the circumstances, all of the factors must be taken into 

consideration and at least noted. 

Was this aggravated conduct constituting more than ordinary negligence? The traditional 

factors used to determine unwarrantable failure do not lend themselves well to the facts of this 

case. For instance, most of them include a temporal element. The extent of a violative condition 

can be seen as an expression of how long a condition has existed as well as how widespread it is. 

The former formulation duplicates or supplements the inquiry into how long a violative condition 

has existed, which is often formulated as a separate factor. Whether an operator has been actually 

or constructively placed on notice that a violating condition or practice exists or that it should be 

more diligent in its compliance is also largely an expression of how long the violation has existed. 

Finally, the operator’s effort to abate a violating condition is most meaningful in light of how 

long the condition has existed. Unfortunately, these time-based factors are of little analytical 

assistance in a situation such as this where the order arises from an act carried out in the direct 

presence of the MSHA inspector. 

Another complication arises from the overlap between the high-degree-of-danger element 

of the traditional unwarrantable failure test and the negligence and gravity elements of the basic, 

underlying violation. They can both be proved by facts showing the relative seriousness and 

likelihood of an injury causing event. The distinguishing element is the weight given in the 

analysis. 

If I were to consider only, or primarily, the traditional elements of the unwarrantable 

failure test set out in IO Coal Company, for instance, I might be steered toward the conclusion 

that because this was an isolated, ad hoc event, noteworthy primarily because of the potential 

severity of consequences from a highly likely event, factors that have been given decisive weight 

in my analysis of negligence, gravity, and S&S, it should not be considered an unwarrantable 

failure to comply with the relevant safety standard. This would result in a distorted treatment of 

this important element of the violation, and points out the need to focus more on the elemental 

definition of “unwarrantable failure” than on the traditional factors discussed above. 

However, the Commission has provided guidance for a case which does not lend itself to a 

traditional factor-dependent analysis. Midwest Material Co., 19 FMSHRC 30 (Jan. 1997), 

involved a foreman’s actions in an isolated ad hoc event involving a high degree of danger which 

resulted in the death of a miner. The miner’s death occurred because a foreman was derelict in 

his supervision of the installation of an extension to a crane boom. Because the miner performed 

this operation incorrectly due, at least in part, to the foreman’s negligence, a section of the boom 

collapsed on the miner, killing him. In rejecting the Judge’s conclusion that the violation did not 

stem from the operator’s unwarrantable failure to comply with the cited safety standard, the 

34 FMSHRC Page 868
Commission stated: “[t]he [J]udge’s reliance on the relatively brief duration of the violative 

conduct was misplaced, in view of the high degree of danger posed by the hazardous condition 

and its obvious nature. Given the extreme hazard created by [the foreman’s] negligent conduct, 

that misconduct is readily distinguishable from other types of violations [. . . ] where the degree of 

danger and the operator’s responsibility for learning of and addressing the hazard may increase 

gradually over time.” Id. at 36. Here, the Commission’s analysis demonstrates that what is 

important in making an unwarrantable failure determination is ultimately whether there is 

evidence of aggravated conduct constituting more than ordinary negligence, irrespective of how 

closely the traditional factor-based test tracks the facts of the case. In fact, a single factor, even 

one that is not typically encountered, may lead to the conclusion that a violation resulted from the 

operator’s unwarrantable failure. 

The following factors convince me that the actions in question here constitute aggravated 

conduct by intention, indifference, or recklessness: (1) Foreman Taylor’s purposeful decision to 

ignore the very specific mandate in 30 C.F.R. § 75.1722(c);10 (2) his dereliction of duty as a 

foreman to model safe practices and to teach by example the importance and prudence of 

complying with safety standards;11 and (3) the obvious and grave hazard created by attempting 

guard panel repairs while the belt line is in operation. The first is an example of behavior that 

illustrates Taylor’s personal willingness to sacrifice safety to expediency. The second shows his 

indifference or recklessness towards his responsibility to look out for the safety of his crew. The 

third speaks to his notably poor judgement. All of these factors are consistent with the 

Commissions decision in Midwest Material Company, supra, and the following cases. 

Capitol Cement Corp., 21 FMSHRC 883 (Aug. 1999), is also particularly instructive. 

There, a shift supervisor’s failure to de-energize the rail of a crane and to wear a safety belt were 

deemed aggravated conduct. The Commission observed that both violations were obvious and 

dangerous. Further, the supervisor knew the consequence of his failure to de-energize and that 

not wearing a safety belt was dangerous. The Commission noted that “a high standard of care 

was required of [the] shift supervisor.” Id. at 892. It then added, “‘Managers and supervisors in 

high positions must set an example for all supervisory and nonsupervisory miners working under 

their direction. Such responsibility not only affirms management's commitment to safety but also, 

because of the authority of the manager, discourages other personnel from exercising less than 

reasonable care.’” 21 FMSHRC 892–93 (quoting Wilmot Mining, 9 FMSHRC at 688). The 

10 Supra notes 7–8. 

11 A key aspect of that case was the fact that the violation occurred “in the presence of a 

foreman, who under Commission precedent, is held [to] a high standard of care.” Id. at 35. The 

Commission noted that a section foreman is “held to a ‘demanding standard of care in safety 

matters,’” and that there is a “heightened standard of care required of the section foreman and 

mine superintendent.” Id. (citing Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007, 2011 (Dec. 

1987); Wilmont Mining Co., 9 FMSHRC 684, 688 (Apr. 1987); S & H Mining, Inc., 17 

FMSHRC 1918, 1923 (Nov. 1995)). 

34 FMSHRC Page 869
Commission also noted that the supervisor “had been entrusted with augmented safety 

responsibility and was obligated to act as a role model for [his] subordinate, who was watching 

him.” Id. at 893.12 

In this case, Foreman Taylor made a conscious and considered decision to undertake 

repairs on a guard panel attached to the tail pulley take-up unit while the associated belt line was 

in operation. There was no urgency that could be argued as mitigation. This was routine 

maintenance that could have been done at another time when the belt line was powered off or 

when fully qualified, non-red hat miners could have done the work.13 Given the obvious danger 

associated with his actions, Taylor was or should have been aware of the potential danger 

involved and the enhanced likelihood of injury-causing accident attributable to the immediate 

environment where the work was done, including the cramped work space, the dangerous 

proximity of the moving belt line, the degree of grade in the area, and the size and momentum of 

the take-up pulley mechanism and its constituent parts. Finally, this was done with the aid of a 

trainee miner who would not have the experience or perspective to challenge the dangerous 

situation without risking censure. This should not have been done so deliberately by anyone, let 

alone a seasoned foreman. 

Another factor not directly addressed by case law authority but nonetheless consistent 

with the purposes of section 104(d) is how easy it would be for Taylor to comply and avoid the 

violation altogether. Another way of looking at this is to consider what alternative options were 

available, but not used. If other options were arguably no more likely to promote safety or were 

not legally or practically feasible, it might be possible to find mitigating circumstances that would 

weigh against a finding of unwarrantable failure. But, in this case, safe options were obvious, and 

nothing in the facts presented at the hearing or in the pleadings indicates why safe options were 

not chosen. The events here were not the result of an inadvertent oversight or mitigating 

exigency. This was the result of planning, preparation, and deliberate and considered execution. 

Inspector Bragg’s verbal imminent danger stop-work order is of note here. In response, the belt 

was shut down, the repairs were completed safely, and the belt was started back up in 

approximately fifteen minutes. Nothing in the record suggests, nor did Newtown argue, that not 

shutting down the belt line was in any way significantly necessary, justified, or that it would be 

difficult to do. There is nothing in the record that shows that it would be anything but routine to 

either shut the belt line down long enough to do this work, or, in the alternative, put the work off 

until a time when the belt line was down for other reasons. Moreover, the fact that Taylor and his 

trainee assistant endeavored to sequence and stage the work so that they would be partially 

12 This discussion of a foreman’s heightened duty of care vis-a-vis a subordinate miner is 

borrowed liberally from Judge Moran’s excellent summary in Stillhouse Mining, 33 FMSHRC 

864, 865–866 (April 2011). 

13 This is not to suggest that performing maintenance on this type of equipment outside 

the parameters allowed by 30 C.F.R. § 75.1722(a) when the belt line is in operation is 

appropriate at any time. 

34 FMSHRC Page 870
shielded from the moving belt line by the detached guard panels is evidence of a clear recognition 

of the presence of an immediate hazard—one that would have ceased to exist altogether if they 

had only shut off the belt line long enough to safely do the work, and incidentally, fully comply 

with the safety standard. 

I recognize that the same acts could been seen as evidence of mitigation, but mitigation is 

much more convincing in the presence of exigency than as an excuse for a deliberate act. I see 

this much more as part of the process of violating the standard than as a reason to ameliorate the 

consequence of such a deliberate course of action. 

Having considered traditional unwarrantable failure factors and determined that they are 

of little utility in determining whether these facts make out “reckless disregard,” “intentional 

misconduct,” “indifference,” or a “serious lack of reasonable care,” and having considered the 

factors of deliberate conduct, heightened supervisor duty-of-care, easy availability of safe 

alternatives, and lack of appropriately mitigating circumstances, I conclude that this violation is 

an example of an unwarrantable failure to comply with a safety standard. 

Penalty 

Applying the penalty regulations found at 30 C.F.R. § 100.3 and related tables and 

considering the Secretary’s justification, I conclude that the $17,301.00 civil penalty proposed by 

the Secretary is appropriate for this violation. 

Order 

It is ORDERED that the pleadings in this case be amended to conform with the facts 

presented at trial as follows: Order No. 6623274, which alleged a violation of 30 C.F.R. § 

75.1725(c), is vacated, leaving only Order No. 6623273, which is amended to allege a single 

violation of 30 C.F.R. § 75.1722(c). 

It is further ORDERED that Newtown pay a penalty of $17,301.00 within 30 days of this 

order. Upon receipt of payment, this case will be DISMISSED. 

/s/ L. Zane Gill 

L. Zane Gill

 Administrative Law Judge 

34 FMSHRC Page 871
Distribution: 

Paul J. Koob, Esq., and Matthew Epstein, Esq., U.S. Department of Labor, Office of the Solicitor, 

The Curtis Center, 170 S. Independence Mall West, Philadelphia, PA 19106-3306 

Christopher D. Pence, Esq., and Wayne H. Xu, Esq., Guthrie & Thomas, PLLC, 500 Lee Street, 

East, Suite 800, Charleston, WV 25301 

34 FMSHRC Page 872
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 NEW JERSEY AVENUE N. W., SUITE 9500 

WASHINGTON, D.C. 20001 

April 20, 2011 

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH : 

ADMINISTRATION (MSHA) : Docket No. KENT 2009-167 

Petitioner, : A.C. No. 15-02709-165287 

: 

v. : 

: 

HIGHLAND MINING COMPANY, LLC, : Mine: Highland 9 Mine 

Respondent. : 

DECISION 

Appearances: Angele M. Gregory, Esq., Office of the Solicitor, U.S. Department of Labor, 

Nashville, TN, on behalf of the Petitioner; 

Jeffrey K. Phillips, Esq., Steptoe & Johnson, PLLC, Lexington, KY; on behalf of 

the Respondent. 

Before: Judge Rae 

This case comes before me upon a petition 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.§75.801 et seq., the "Act," charging Highland Mining Company, LLC, (Highland) with nine 

violations of the mandatory standards and proposing civil penalties of $22,710. The general issue 

before me is whether Highland violated the cited standards and, if so, what the appropriate civil 

penalty is to be assessed in accordance with section 110 (i) of the Act. 

A hearing was held in Evansville Indiana on Tuesday, November 1, 2011 at which time 

the parties presented evidence. Due to the unavailability of one witness on behalf of the 

Secretary, a second hearing was held on December 6, 2011 by telephone conference call by the 

agreement of the parties, at which time the proceedings were concluded. 1

 Subsequent to the 

hearing the parties submitted post-trial memorandum which have also considered in making this 

decision. 

1

 The transcript from the first year hearing of November 1, 2011 will be designated as “Tr. (page 

number).” The transcript from the telephonic hearing shall be designated as “Tr. II. (page 

number).” 

34 FMSHRC Page 873
I. STATEMENT OF THE CASE 

At the hearing, the Secretary advised the court that citations number 8489183, 8492065, 

and 8492067 were settled. The Secretary also advised that citations number 8489186, 84819139, 

8489198, 8489200, and 6697594 will be vacated. The Secretary was instructed to provide a 

written motion with regard to those citations. 

The parties entered into the following stipulations:

 That Highland is subject to the Federal Mine Safety and Health Act of 1977, as amended; 

1.	 That at all relevant times, Highland in the mine, Highland 9 Mine, (Mine ID 15-02709), 

mined and produced coal, which entered commerce, or had operations or products which 

affected commerce, within the meaning of the Act; 

2.	 That Highland is subject to the jurisdiction of the Federal Mine Safety and Healthy 

Review Commission, and the administrative law judge has the authority to hear this case 

and issue a decision; 

3.	 That Highland was an “operator,” as defined by the Act, at the Highland 9 Mine, when 

the citations and orders at issue in this proceeding were issued; 

4.	 That Highland 9 Mine produced 3,946,351 tons of coal and had 886,372 hours worked in 

2007; 

5.	 That Highland is a large operator; 

6.	 That imposition of a reasonable penalty will not affect the ability of Highland to remain 

in business; and, 

7.	 That each of the citations and orders at issue in these proceedings was properly served by 

a duly authorized representative of the Secretary of Labor, Mine Safety and Health 

Administration, upon an agent of Highland. 

II. FINDINGS OF FACT AND CONCLUSIONS OF LAW 

Significant and Substantial (S&S) 

An S&S violation is a violation “of such nature as could significantly and substantially 

contribute to the cause and effect of a . . . mine safety or health hazard.” 30 U.S.C. § 814(d). A 

violation is properly designated S&S, “if, based upon the particular facts surrounding the 

violation, there exists a reasonable likelihood that the hazard contributed to will result in an 

injury or illness of a reasonably serious nature.” Cement Div., Nat’l Gypsum Co., 3 FMSHRC 

822, 825 (Apr. 1981). As is well recognized, in order to establish the S&S nature of a violation, 

the Secretary must prove: (1) the underlying violation; (2) a discrete safety hazard – that is, a 

measure of danger to safety – contributed to by the violation; (3) a reasonable likelihood that the 

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

be of a reasonably serious nature. Mathies Coal Co., 6 FMSHRC 3-4 (Jan. 1984); accord Buck 

34 FMSHRC Page 874
 

 

Creek Coal Co., Inc. 52 F. 3rd 133, 135 (7th Cir. 1995); Austin Power Co., Inc. v, Sec’y of 

Labor, 861 F. 2d 99,103 (5th Cir. 1988) (approving Mathies criteria).

 It is the third element of the S&S criteria that is the source of most controversies 

regarding S&S findings. The element is established only if the Secretary proves “a reasonable 

likelihood the hazard contributed to will result in an event in which there is an injury.” U.S. Steel 

Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985). An S&S determination must be based on 

the particular facts surrounding the violation and must be made in the context of continued 

normal mining operations. Texasgulf, Inc., 10 FMSHRC 1125 (Aug. 1985); U.S. Steel, 7 

FMSHRC at 1130. 

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 if it occurs.” Consolidation Coal Co., 18 FMSHRC 1541, 1550 (Sept. 

1996). 

1. Citation No. 8489430 in violation of 30 C.F.R. §75.1502 

This citation was issued on August 21, 2008 by Jimmy “Dev” Owens. The condition or 

practice cited reads: 

The operator failed to follow their approved Mine Emergency Evacuation and 

Firefighting Plan. The lifeline located on the Main North at crosscut 19 to 21 was not easily 

detachable. 

Ex. S-1. 

The violation was assessed as reasonably likely to cause an injury resulting in lost 

workdays or restricted duty, significant and substantial, affecting three persons and the result of 

moderate negligence. The proposed penalty is $1304. 

The mandatory standard relating to escapeways requires that a continuous, durable 

directional lifeline or equivalent device shall be located in such a manner for miners to use 

effectively to escape. 30 C.F.R. 75.380 (7)(iv).2 

Dev Owens is an Mine Safety and Health Administration (“MSHA”) inspector who had 

not yet graduated from the Mine Academy at the time he issued this citation. He was 

accompanied by his supervisor during this inspection in August 2009. Prior to becoming an 

MSHA inspector, he spent six years as a miner performing general labor, roof bolting, scoop 

2

 The Secretary moved to amend the citation which cited a violation of 30 C.F.R. §1502, the 

operator’s Emergency Response Plan, to this mandatory standard. The Respondent conceded that 

the amendment did not alter their ability to defend against the allegations although raised very 

near to the trial date. I granted the motion to amend. 

34 FMSHRC Page 875
operating and curtain hanging duties. He earned his BA degree in Occupational Safety and 

Health. Tr. 36-38. 

He cited Highland because the lifeline was suspended from the roof of the mine attached 

with twist-tie like wires and could not be pulled down for use. In his opinion, because the lifeline 

could not be detached from the roof, it was not easily accessible as required. In the event of a 

fire, miners would become disoriented and unable to access the line. Tr. 47-48. He estimated 

the height of the roof to be six to seven feet high but did not measure it. Tr. 43. The lifeline was 

continuous; it did have directional cones, appropriate reflectors and was durable in construction. 

Highland conducted drills on its use as required. Tr. 80-81. Owens admitted that the standard 

does not contain the requirement that the line be “detachable” as he cited and he could not recall 

if other mines used detachable line or not. Tr. 84-85. Owens stated that there were miners at 

Highland who would not be able to reach the lifeline due to height. He could not specifically 

state what height someone would have to be to be unable to reach a six foot line nor could he say 

he saw any miners at the mine who were of such short stature as to be unable to reach it. Tr. 80-

81. Owens did confirm that there was no tripping hazard or obstacles on the mine floor where 

this 120’ to 140’ length of lifeline was situated. Tr. 81. He also did not have an opinion as to 

whether it would be more dangerous for the lifeline to be removed from the roof during an 

escape but did agree that such a scenario would result in the lifeline lying on the floor after the 

first miners used it making it more difficult for any miners following behind to find it. Tr. 82-83. 

Highland presented evidence through Tommy Watkins who testified that the lifeline was 

suspended from the water lines that ran along the mine roof. It was suspended by chain links and 

was between five feet and five and one half feet above the mine floor. Tr. 151-52. Watkins 

worked as an engineer for 22 years in the mining industry. He then became the safety manager at 

Big Run and then at Highland for over two years during the time of this inspection. Tr. 149-50. 

He testified that Highland ran secondary escapeway drills once every six weeks by state mandate 

and again twice per year under MSHA law. Every miner was instructed how to find the lifelines 

in their current position. Tr. 153-55. He was not aware of any miners who were unable to reach 

the lifeline. In his opinion, the standard does not require the lifeline to be detachable as cited. 

Tr. 155. 

The Commission discussed the legislative history of the requirement for lifelines in its 

Cumberland decision; Cumberland Coal Resources,LP, 33 FMSHRC __, slip. Op., at 15 (Oct. 5, 

2011). The issue of that case was specifically whether the ALJ improperly found a violation to 

be non-S&S because there was insufficient evidence presented that an emergency situation was 

reasonably likely to occur as required by Mathies. The lifeline was suspended from the mine 

roof at a height of 7’8” which the ALJ found could not be easily reached and would necessitate 

being detached from the J hooks making escape more time consuming and treacherous. The 

Commission found that the ALJ erred because the standard requires a finding of whether there 

was a reasonable likelihood of escape in the event of an emergency, not that an emergency is 

reasonably likely to occur. Cumberland at 2. In reaching its conclusions, the Commission 

discussed the history of The Emergency Temporary Standard of March 9, 2006 issued by MSHA 

which underscored the dangers of mine accidents and the necessity for lifelines. It noted that 

lifelines need to be in a proper position and at appropriate heights.(Emphasis added.) 

34 FMSHRC Page 876
Emergency Mine Evacuation, 71 Fed. Reg. 12252, 12253 (2006). The Miner Act encompassed 

the requirements of the temporary emergency standard and set forth the requirement that the 

lifeline be easily accessible which depends upon the circumstances of the mine conditions. See 

The Mine Improvement and New Emergency Response Act of 2006, Pub.L. No.109-236, 120 

Stat. 493 (2006). 

I find that Highland is correct in their position that the mandatory standard does not 

require the lifeline be detachable. In fact, if the lifeline were detached, it would create a far more 

dangerous situation for any miners following any distance behind the first group to escape. The 

line would be on the mine floor creating a tripping hazard and necessitating the miners to feel 

long the floor to locate it. Such lines are, by necessity, stationary so that the miners, through 

training drills, know exactly where to find it in the event of diminished visibility or confused 

mental state. The relevant question is whether it was at an appropriate height and could be used 

effectively to escape in the event of an emergency. I accept the testimony of Watkins that the 

lifeline was positioned at a height of five feet to five feet six inches from the mine floor. The 

inspector did not measure the height and could not recall the details of the condition while 

Watkins was the safety manager at the time and was knowledgeable concerning its placement 

and conducted the evacuation drills. The Secretary presented no evidence that a miner would be 

unable to reach a lifeline positioned at a maximum height of five feet six inches above the mine 

floor. I find it unlikely that one would be unable to do so. There being no evidence of any other 

obstacles or hazards present to make the placement of the lifeline inappropriate under the present 

mine conditions, I find that the Secretary has not met her burden of proving this violation. The 

citation is VACATED. 

2. Citation No. 8489432 in violation of 30 C.F.R. §75.220(a)(1) 

This citation was issued on August 21, 2008 by Dev Owens. The condition or practice 

section states: 

The approved rood control plan was not being complied with on the #065-0 

MMU in the 6th Sub-panel North off the 4th Panel North off the Main East. The #8 entry 

was bolted 9.5 ft. from the face. The approved roof control plan states that all faces will 

be bolted within 5 ft. of the face. 

Ex. S-4. 

The mandatory standard requires: 

Each mine operator shall develop and follow a roof control plan, approved by the District 

Manager, that is suitable to the prevailing geological conditions, and the mining system 

to be used at the mine. Additional measures shall be taken to protect persons if unusual 

hazards are encountered. 

30 C.F.R. §75.220(a)(1). 

34 FMSHRC Page 877
Owens referred to a diagram on page 13 of the Roof Control Plan in effect at the time of 

this inspection. Tr. 55, Ex. S-5. His reading of the diagram led him to conclude that bolts were 

required to be installed within five feet of the working face. Tr. 63. In the area cited, the last row 

of bolts was approximately nine to nine and one half feet from the face. There was an orange flag 

on this last row of bolts as a warning that beyond that point was unsupported top. Tr. 60-61. 

The area had been recently mined and was an active area of the mine. The condition had existed 

for about eight hours. Tr. 61. 

On cross-examination, Owens was asked whether the diagram he referred to actually 

indicated that the roof control plan called for bolting every five feet from rib to rib and four feet 

in advance row to row. He acknowledged that the bolts were on five foot centers rib to rib and 

four feet as they advanced. Tr. 93-94. Additionally, he confirmed that resin bolts were being 

used which allowed the mine to install roof bolts “as soon as possible not to exceed 72 hours.” 

The area had been mined within eight hours of the issuance of the citation. Tr. 94-95, Ex. S-5 pg 

4. The only section of the plan that clearly indicated that bolts must be installed within five feet 

of the face is on page 8 of the plan applicable to “deadend places.” Tr. 96. 

James Hackney testified on behalf of Highland to clarify the requirements of the roof 

control plan of 2008. Hackney had been the roof control specialist for MSHA at the time this 

plan was approved. His name appears on the cover letter of the plan approval as the point of 

contact for questions and again on the revised plan letter as the person who was actively 

involved with Highland in developing the plan in early 2008. Ex. S-5. As the roof control 

specialist, Hackney reviewed the Highland plan every six months and investigated all roof falls 

within his jurisdiction. Tr. 130-31. He testified that the plan in question did not require bolting 

within five feet of the face. The diagram relied upon by Owens was a skid showing the spacing 

of the pins; not a diagram of how close to the face the bolts were to be installed. Tr. 135-36. 

They are required to be five feet from left to right as opposed to inby and outby. Tr. 135. New 

cuts have to be bolted within 72 hours. Tr. 133-34. The only area in which bolts were to be 

installed within five feet of the face was in “deadend,” or abandoned, places as indicated on page 

8 of the plan. Tr. 131-32. Hackney was aware of other inspectors who intended to cite Highland 

for this same condition and had told them that it was not a violation of the plan or the law. Tr. 

136. In his opinion, although Highland did flag the last row of bolts to protect against a hazard, it 

was poor mining practice to leave the face unbolted for a prolonged period of time. Tr. 142-44. 

Based upon Hackney’s direct involvement with the development of Highland’s roof 

control plan as the district roof control specialist and his exhibited detailed knowledge of the 

bolting requirements in effect at the time, I credit his testimony and find it controlling on this 

issue. The citation is therefore VACATED. 

34 FMSHRC Page 878
3. Citation No. 8489434 in violation of 30 C.F.R. §75.370(a)(1). 

This citation was also issued by Inspector Owens on August 21, 2008. The narrative 

states: 

The approved ventilation, methane, dust control plan was not being complied with on the 

#064-0 MMU in the 6th Sub-panel North off the 4th Panel North off the Main East. 

When the air was measured with a calibrated anemometer behind the return roof bolter in 

the #1 entry 1350 CFM was present behind the line curtain. The approved plan requires 

 a minimum of 3000 CFM. 

Ex. S-6. 

The inspector marked the alleged violation as reasonably likely to result in an injury 

causing lost workdays or restricted duty affecting two persons. It is marked as S&S and the 

result of moderate negligence. The proposed penalty is $2106. 

The mandatory standard provides in relevant part that the operator shall develop and 

follow a ventilation plan approved by the district manager. The plan shall be designed to control 

methane and respirable dust and shall be suitable to the conditions and mining system at the 

mine. 

Highland contests this violation based upon the method used by Owens to take the air 

reading and the S&S designation. 

Owens testified according to Highland’s ventilation dust control plan, a line brattice shall 

be maintained with 3000 cfm of air delivered to the back of the roof bolting machine in any 

working place where the roof bolter is operating. Tr. 65, Ex. S-7 pg. 8. Owens took an 

anemometer reading inside the end of the line curtain while the roof bolter was operating. Tr. 64. 

He obtained a reading of 1350 cfm in violation of the plan. Highland questioned whether 

positioning himself between the rib and the curtain would have caused Owens to get an improper 

reduced velocity reading. Tr. 107. Inspector Caudill, an MSHA ventilation specialist, testified 

that the air reading should be taken with the entire body outside the curtain to get a more 

accurate reading. Tr. II. 21. However, he stated that if a reading were taken with someone 

standing inside the curtain as Owens was, the reading would be higher not lower as suggested by 

the Respondent. Tr. II. 36. Caudill has been an MSHA inspector for 15 years and has 27 years 

of mining experience prior that. Based upon his experience and training as a ventilation 

specialist, I accept his opinion and find the mandatory standard was violated. 

S&S 

Owens explained the lower air velocity poses a safety hazard of dust, fumes and gases 

building to a level that could reasonably result in an ignition. Tr. 65. The methane reading was 

at .25 % behind the curtain which is well below the ignition point; however, methane levels can 

change quickly in any mine including Highland which liberates 200,000 to 500,000 cubic feet of 

34 FMSHRC Page 879
methane every twenty-four hours. Tr. 66-67, 124. Installing roof bolts can cause sparks serving 

as a source of ignition for methane gas. Tr. 72. Should an ignition occur, the two miners 

operating the bolting machine would likely be injured by burns and smoke inhalation. Tr. 72. 

Highland challenges the S&S designation based upon the fact that the Secretary has not 

proven the likelihood of an injury or illness under the third criterion of Mathies. They assert 

that because persons were in the working area for a short period of time, that the bolting 

machines had dust pumps on them monitoring the dust levels, that all gas levels were within 

acceptable limits at the time of the violation and that the bolter operators had run dust levels that 

day and measured 3400 cfm when they started bolting, there was no likelihood of injury. Tr. 102, 

105, 107, 155-56. They cite the Commission’s Peabody decision in support of their position. 

Secretary of Labor v. Peabody Coal Co., 17 FMSHRC 26 (Jan. 1995). In Peabody, the 

ventilation plan required 5000 cfm of air over the continuous miner before it was started and 

during cutting operations. The miner was in operation when the inspector arrived and he 

requested that it be shut down before he took his air readings. The continuous miner was 

equipped with a scrubber that was capable of generating the requisite amount of air flow while in 

operation. The Respondent argued that the Secretary did not establish a reasonable likelihood of 

an injury or illness when the miner was not in operation. The inspector testified that a person 

“could” be exposed to dust and that illness “can” result from exposure and that a methane 

explosion “can” result and an ignition source “could” still be present. The ALJ found that the 

evidence did not establish that the amount of airflow present before the miner was running, with 

no mining occurring, would be reasonably likely to result an injury or illness. Id at 4. The 

Commission agreed with the ALJ that the Secretary presented no evidence to prove that the air 

quantity prior to starting the miner was inadequate because the inspector did not measure it. The 

Secretary also conceded that the scrubber on the miner was capable of generating an adequate 

quantity of air when the miner was in operation. The Commission did emphasize that the S&S 

determination must be based upon the facts and circumstances surrounding each violation as 

evidenced by the record citing Texagulf, Inc., 10 FMSHRC 498, 501-03 (April, 1988). Peabody 

is readily distinguishable from this set of facts. Here, the violation pertains to the amount of air 

being delivered to a roof bolting machine that does not have the capacity to generate air flow 

when in operation. The quantity of air present when Owens measured it would not increase 

when production continued. The evidence established that Highland liberates a significant 

amount of methane each day, that the level can build rapidly and that roof bolting provides an 

ignition source. The fact that dust and gas levels were being monitored by other equipment does 

not reduce the hazard created by having inadequate air flow over the miner. 

The gravity of this violation is serious and I find the inspector properly designated this 

violation as S&S. The Secretary has proven by a preponderance of the evidence that it was 

reasonably likely that the reduced air flow and presence of dust and methane created a 

reasonable likelihood of ignition, that the condition was reasonably likely to result in an injury 

causing event, and that the injuries would be reasonably serious from smoke inhalation and 

burns. The Mathies criteria have been satisfied. 

34 FMSHRC Page 880
Negligence 

Inspector Owens testified that the mine had only this one single split air with eight or 

nine entries. This condition should have been detected by the face boss who is on the section at 

all times. He is responsible for the working area making runs throughout the section and taking 

periodic air readings. He should have discovered this condition of inadequate air over the bolter 

and should have had the line curtain adjusted. Tr. 73. 

I have considered the evidence presented by the Respondent that the air level was within 

normal limits when taken at the time the bolting work commenced and that the condition had 

existed for a relatively short period of time in mitigation of negligence. I therefore find the 

negligence is properly assessed as moderate rather than high. 

4. Citation No. 8489182 in violation of 30 C.F.R. §75.1914(a). 

This citation was issued by MSHA inspector Archie Coburn on August 11, 2008. The 

condition or practice cited was that “[t]he No. 37 diesel 2 man personnel carrier was not being 

maintained in safe condition. The right tie rod end was worn out.” Ex. S-8. 

The standard requires that all diesel-powered equipment be maintained in approved and 

safe condition or be taken out of service. 30 C.F.R. §75.1941(a). Coburn marked the citation as 

reasonably likely to result in an injury causing lost workdays or restricted duty affecting two 

persons and resulting from moderate negligence. The Secretary proposes a penalty of $1111. 

Highland contends that Coburn did not properly test the tie rod end to establish that it 

was not in safe condition and therefore, the citation must be vacated. Alternatively, they assert 

that there was no negligence or likelihood of injury. 

Coburn testified that he spent six years in the Army as a motor sergeant responsible for 

running the motor pool at Ft. Bragg and Ft. Knox. Tr. 158. Subsequently, he worked at Peabody 

mine running shuttle cars, roof bolting machines and then working as a mechanic at Highland. 

He also worked at Green River Mining as a mechanic. Tr. 159. He then went on to obtain his 

MSHA certification as a coal mine inspector in 1989 and has since been assigned as an accident 

investigator in addition to his regular inspector’s duties. Tr. 160. He has inspected Highland for 

accidents as well as regular inspections and is very familiar with the mine. He started inspecting 

Highland when they opened operations in 2001 and has been there once or twice a year ever 

since. Tr. 160-61. 

On the day in question, he tested a two-man personnel carrier,a piece of diesel outby 

equipment. Tr. 165. He found that the tie rod, which is the control arm that translates movement 

of the steering wheel to the wheels allowing them to move back and forth, was worn out. The 

rubber boot on the end of the rod was missing, the grease was missing allowing metal to grind on 

metal, and the end was moving in all directions rather than only up and down. There was an 

accumulation of road dust indicating the condition had been present for some time. Tr. 162-64. 

This personnel carrier typically traveled on the main supply road carrying miners in and out of 

the unit running at approximately 10 to 15 miles per hour. Tr. 165. Traveling long an uneven 

34 FMSHRC Page 881
surface with ruts and holes can stress the tie rod causing it to come apart which would result in a 

loss of steering. Tr. 167. This condition led him to issue a citation for improperly maintained 

diesel equipment. 

Coburn testified that it took him approximately 30 to 45 seconds to test the man-trip. He 

was able to determine the condition of the tie rod without putting the vehicle on a lift simply by 

observing how long it took for the steering link to start moving the tires when the steering wheel 

was turned with the motor running and the car in park. Tr. 218. While someone else moved the 

steering wheel, he observed the movement of the linkage. He could see the tie rod end moving 

up, down, sideways and back and forth and that the boot was missing and there was no grease on 

the tie rod. Tr. 219. He did not use a gauge or any other device to measure the amount of play in 

the rod. Tr. 221. 

Highland asserts in its contest of this citation that a tie rod must be tested by putting the 

vehicle on a lift while in neutral and shaking the tire. In support of this testing method, they 

suggested that a particular website indicated that this was the appropriate way to conduct the 

test. Tr. 224. Coburn responded by pointing out that anyone can put up a website making any 

sort of unverified claims on how to do something. He, however, has been working as a mechanic 

his entire career and has tested tie rods in this manner thousands of time. Tr. 170, 224-26. 

Highland offered no witnesses or recognized authoritative source at trial to support their theory 

beyond this mentioned website. 

In its Post-Trial Memorandum, Highland cited the decision of Lafarge North America, 33 

FMSHRC 1621,(July 2011) in which ALJ Augustine found absent a consistent and objective 

standard by which to measure the vehicle ball joints, the Respondent was denied fair notice and 

due process in the issuance of a violation. The citation was issued under 30 C.F.R. §56.14100(c) 

which requires proof the existence of a defect, that continued operation would be hazardous to 

persons and that the defective item was not removed from service. The inspector and the expert 

witness called by the Petitioner were at odds with respect to what the proper measure of play in 

the joints was which the judge determined presented a moving target rather than a basis upon 

which the operator would be able to measure compliance with the standard. I find that situation 

distinguishable from the instant one. In this case, the missing rubber boot that holds the grease, 

prevents the tie rod from moving in all directions and prevents it from coming apart was 

detectable with the naked eye. Coburn did not need to take micro-measurements of play in a ball 

joint to discover this defect in the steering system on this personnel carrier. It took him less than 

one minute to discover the situation by simply peering through the bumper of the car down to the 

wheels while someone moved the steering wheel. Tr. 215-16. It was an obvious condition that 

needed no specialized equipment to verify. As Coburn testified, the pre-operational checks are 

required on this piece of equipment daily with a more thorough exam being performed on a 

weekly basis by the mechanics. Tr. 169-70. The condition should have been discovered during 

one of these exams just as easily as he had discovered it. The slack in the steering would be an 

obvious indication that the tie rods needed further attention. Looking underneath the vehicle 

would have enabled someone to see the condition of the tie rod as well. Tr. 170. 

34 FMSHRC Page 882
The Secretary has met her burden of proving this violation of the mandatory standard by 

a preponderance of the evidence. 

S&S 

Coburn marked this violation as S&S because, in his opinion, the tie rod was reasonably 

likely to come apart while traveling on the rutted and uneven supply road which would result in 

a loss of steering. It would be reasonably likely that this vehicle, traveling at 10 to 15 mph 

without steering control, would collide with another piece of equipment, a rib or a miner on foot, 

resulting in reasonably serious injuries of bruises and broken bones. Tr. 168, 173. This is a 

serious violation and I defer to the inspector’s many years of experience as a mechanic and find 

his testimony credible. 

Negligence 

The evidence of record establishes that the rubber boot on the end of the tie rod was 

missing from this vehicle. The amount of accumulated road dirt and the lack of grease indicated 

to Coburn that the condition had existed for approximately 48 hours. This condition should have 

been discovered during the daily pre-operational checks. Tr. 169-70. The level of negligence is 

appropriately assessed as moderate. 

5. Citation number 8489197 in violation of 30 C. F. R. §75. 1100 – 3 

This citation was issued by inspector Archie Coburn on August 18, 2008. The narrative 

portion of the citation reads: 

The fire suppression system installed on the company number 14 scoop used on the 

number two (062 – 0) MMU was not being maintained in operating condition. The 

actuator bottle on the left side of the scoop was not installed. When examined the 

actuator bottle was under a chain in the storage compartment of the scoop. 

Ex. S-11. 

Coburn assessed this alleged safety violation as reasonably likely to result in an injury 

causing lost workdays or restricted duty, significant and substantial, affecting one person and the 

result of moderate negligence. The Secretary has proposed a penalty of $1203. 

The mandatory standard provides all firefighting equipment shall be maintained in a 

usable and operative condition. 

Coburn testified that the actuator bottle to the fire extinguisher on the No. 14 scoop was 

broken off the bracket and was in the bottom the storage compartment behind the operator’s seat 

covered with log chains and other material. Tr. 174. The actuator bottle should have been 

mounted in the compartment and high up enough to be reached quickly by the scoop operator or 

a passenger. Tr. 175. The bottle was located 18 to 20 inches away from where it was supposed to 

be and could not be easily and readily accessed in the event of a fire. Tr. 231. 

34 FMSHRC Page 883
Highland contests this violation because they alleged that the actuator bottle itself had not 

been discharging and was in working order, according to Inspector Coburn. TR. 229. They state 

in their Post-trial Memorandum that the Secretary has failed to prove that the bottle was 

unusable and inoperative. They rely on the cases of Secretary v. Energy West Mining Company, 

14 FMSHRC 1595, 1598 – 1600 (Sept. 1992)(ALJ), and Secretary v. LJ’s Coal Corporation, 13 

FMSHRC 1277, 11283 (AUG. 1991) (ALJ) in support of their position. Their reliance on these 

cases, however, is misplaced. In Energy West, the ALJ found that the cited hoses were extra 

lengths not required by the regulation. Therefore the fact that the hose did not have a nozzle was 

not a violation of the standard. However, the ALJ stated that this was not to intimate that in the 

case of a required hose that nozzles are not required. In the second case, the ALJ found that the 

inspector had not properly tested the deluge spray system by adding heat or opening the valve at 

the end of the line and could not therefore determine that the plug in the line caused the hose to 

be unusable. LJ’s Coal Corp. at 1283. Here, the question is whether the location of the actuator 

bottle being on the bottom of the compartment buried underneath log chains and other materials 

rendered the system unusable. The fact that the actuator bottle itself was not discharged and was 

in working order is not dispositive of the definition of the term “useable.” Judge Feldman said it 

well in his opinion in Consolidation Coal Company when he said a fire hose that could not reach 

the face from the water supply line violated the standard because a hose that cannot reach the 

face is equivalent to having no hose at all. Consolidation Coal Company, 15 FMSHRC 505 

(March 1993). Common sense would dictate that a fire extinguisher that cannot be easily reached 

and employed in the event of a fire because of its location is not “useable” and is a violation of 

this mandatory standard. 

S & S 

Inspector Coburn testified that the electrical components in the scoop including the 

batteries or the cables running through the center of the scoop pose a risk of fire. Tr. S77. The 

discrete safety hazard involved in this violation is in the event of a fire, the scoop operator would 

not be able to quickly extinguish it. Coburn explained that the scoop operator is responsible for 

several jobs that he conducts outside of the piece of equipment including rock dusting and 

hanging line curtains. Tr. 237. If a fire broke out while the operator was working on the left side 

of the scoop, he would initially go to the closest fire suppression source which would be the leftsided actuator to put out the fire. During the time in which it would take to uncover the actuator 

bottle from underneath the log chains and materials in the compartment or run to the other side 

of the scoop to retrieve the other actuator, the fire would continue to grow. It is reasonably likely 

the miner would suffer injuries such as burns and smoke inhalation as a result of not being able 

to readily use the left-sided manual actuator. 

Highland raises two arguments in support of the position that this violation is not 

significant and substantial. First, they argue that the law does not support the presumption of an 

emergency situation and secondly, they rely on the fact that the mine was outfitted with an 

automatic fire suppression system and that a second manual actuator was on the scoop itself. Tr. 

235-36. 

34 FMSHRC Page 884
The Secretary responds to these arguments by citing the Cumberland case. In 

Cumberland, the Commission recognized that evacuation standards are intended to apply only in 

the event of an emergency. The Secretary analogizes that case with the instant one by stating the 

existence and reliability of firefighting measures serve no purpose except in the event of an 

emergency necessitating the extinguishing of the fire. Secretary's Proposed Findings of Fact, 

Brief and Argument. "The Commission has never required the establishment of a reasonable 

likelihood of a fire, explosion, or other emergency event when considering whether violations of 

evacuation standards are significant and substantial." Cumberland at 10. The Mathies analysis 

involves consideration of an emergency. I find the same rationale applicable to the firefighting 

regulations. A fire suppression system violation would rarely be significant and substantial if it 

cannot be assumed that the standard applies in the event of a fire. The danger posed by inability 

to suppress fires in underground mines is as grave a danger as the inability to escape in the event 

of a fire or similar emergency. To hold otherwise would frustrate the intent of The Mine Act. 

With regard to Highland's reliance on redundant fire suppression systems, the 

Commission stated in Cumberland "finding that redundant, mandatory safety protections 

provided defense to a finding of S&S would lead to the anomalous result that every protection 

would have to be nonfunctional before a S & S finding could be made. Such an approach directly 

contravenes the safety goals of the act." Cumberland at 10. Likewise the Commission rejected 

Respondent’s contention that redundant fire suppression systems reduced the likelihood of 

serious injury in Amax Coal Co., 18 FMS HRC 1355, 1359 n.8 (Aug. 1996). Coburn pointed out, 

additionally, that the batteries are not covered by the fire suppression system. Tr. 238. 

I find that the Secretary has proven by a preponderance of the evidence that, in the event 

of fire, there was a reasonable likelihood of the inability to suppress a fire in a timely manner 

and the reasonable likely of reasonably serious injuries of burns and smoke inhalation. The 

Mathies criteria have been satisfied. 

Negligence 

This violation was assessed as a result of moderate negligence. The scoop was supposed 

to have been checked each time it was used and during the weekly permissibility inspection. Tr. 

180. Coburn estimated from the amount of materials piled on top of the actuator and the presence 

of rock dust on top of that that this condition had existed since before the last preoperational 

check. Tr. 181. 

I find the gravity of this violation is serious and find that the assessment of negligence as 

moderate as appropriate. 

6. Citation number 8489199, violation of 30 C. F. R. §75. 503. 

Inspector Coburn wrote this violation on August 18, 2008. The condition or practice 

portion of the violation reads as follows: 

34 FMSHRC Page 885
The company No.4 continuous miner being used on the number two (062-0) MMU was 

not being maintained in permissible condition. An opening was present in the cable 

junction box cover in excess of .005 of an inch plane flange joint. This mine is on a 15 

day spot for methane liberation. 

Ex. S – 13. 

Coburn assessed this violation as reasonably likely to result in an injury causing lost 

workdays or restricted duty, S & S, affecting three persons and the result of moderate 

negligence. The Secretary has proposed a penalty of $2901. 

The mandatory standard provides: 

The operator of each mine shall maintain in permissible condition all electrical face 

equipment required by §75.500, 7.501, 75.504 to be permissible which is taken into 

or used inby the last crosscut of any such mine. 

During his inspection, Coburn found this junction box had an impermissible gap 

measuring greater than .004 inches in violation of this mandatory standard. Highland does not 

contest this violation but challenges the designation as S&S. 

S&S 

This junction box is on the back end of the operator’s side of the continuous miner. It is 

approximately 15 to 20 feet from the operator. Tr. 184. Coburn testified that because this mine 

is on a 15 day methane liberation spot inspection, it is reasonably likely that there would be a 

high concentration of methane present inby the box. Id. While the methane monitor is 

programmed to shut the machine off at a concentration of 2% methane, Coburn has known the 

methane monitors to be out of proper calibration at Highland meaning they would not function 

properly. Coburn has been present when the monitor has alerted at a concentration of greater 

than 1% in this mine. Tr. 185. Coburn also stated that when the monitor shuts off the machine 

electricity is not shut off; the motor is stopped but the equipment is still energized. Tr. 242. 

Additionally, Coburn testified that methane can ignite at less than 2% concentration when coal 

dust is also present. Tr. 187. The gap that he found in the junction box would allow a flame to 

escape and enter the mine atmosphere causing a methane explosion. Tr. 182-83. In Coburn's 

opinion this was reasonably likely to occur. An explosion of this nature would be reasonably 

likely to result in reasonably serious injuries including burns and possibly fatalities to three 

people - the minor operator his helper and the car operator. Tr. 187-88. He therefore designated 

the violation as S & S. 

Upon questioning by the respondent, Coburn stated that the gap in the junction box was 

approximately 3 to 4 inches long. Tr. 241. He also stated that methane generally combusts at a 

concentration of 5 to 15%. Coburn admitted that he has never monitored methane above the 5% 

34 FMSHRC Page 886
concentration level at Highland mine. Tr. 244. Randy Duncan, safety manager at Highland 

mine, testified that Highland does not liberate methane at the face. The mine was put on a 15 day 

spot inspection when there was a problem with seals in the location of the old works that 

liberated methane. Tr. 263. He also stated that the monitor will shut the miner down and the 

operators have also been trained to pull the cable out when methane reaches 2% concentration. 

Tr. 265. For these reasons, the respondent asserts that this violation is not S & S. 

I find these facts do not overcome a finding that this violation is S&S based upon the 

testimony from Coburn that he has been in Highland when the continuous miner monitor 

indicated that the methane level had exceeded 1%, he is aware of the monitors not being 

properly calibrated at times, and the fact that methane can increase in concentration at a very 

rapid rate and can ignite at less than 2% concentration. This violation was properly designated 

S & S. 

Negligence 

Coburn testified that examinations for permissibility are required on a weekly basis. This 

examination would include running a gauge around the box which would detect this violation. 

Additionally, any time an electrician is in the box, he is required to check for openings when 

putting the box back into service. Tr. 189. Coburn could not say how long this condition had 

existed because he could not determine when the last time was that someone had been inside the 

junction box. Tr. 190. 

While I find this violation to be serious, I find the fact that Coburn could not state how 

long this violation had existed; it is possible that this condition arose sometime after the previous 

weekly permissibility inspection. I therefore find the negligence is properly assessed as low. 

7. Citation number 8489201 in violation of 30 C. F. R. §75.370 (a)( 1) 

The inspector wrote this citation as a violation of the respondent’s ventilation plan. The 

citation reads: 

The approved ventilation, methane and dust control plan in affect at this time was not 

being complied with on the No. 2 (062-0) MMU. The company No. 39 diesel service 

vehicle was observed been (sic) operated with out (sic) the required 3,500 CFM been 

(sic) present over the service vehicle. When in operation the service vehicle was sitting in 

the crosscut next to the intake brattice line and did not have enough air movement to the 

blades on anemometer (sic). 

Ex. S – 14. 

The ventilation plan does not address this issue at all. The Secretary sought to amend this 

citation from a violation of the operator’s ventilation plan under 30 C.F.R. §75. 370(a)(1) to a 

violation of §75. 325(f) which provides that the minimum ventilating air quantity for a piece of 

34 FMSHRC Page 887
diesel-powered equipment shall be at least the amount specified on the approval plate for that 

piece of equipment. I denied the Secretary’s motion at hearing and deny it again now for the 

following reasons. 

The Secretary filed her petition for civil penalties on December 1, 2008. I issued my 

Prehearing Order on August 16, 2010 which directed the parties to engage in settlement 

negotiations over the next 75 days. On October 7, 2010, at the request of the Secretary, I issued 

an extension of 60 days during which the parties were again directed to communicate with one 

another in the effort to settle the docket. When settlement was not forthcoming, I issued a 

Notice of Hearing on May 31, 2011, following a telephone conference call with the parties. The 

hearing was set to commence on November 1, 2011. My Prehearing Order directed the parties to 

comply with all rules of pretrial discovery and to submit a prehearing report identifying all 

exhibits and a list of witnesses to the court and opposing counsel 20 days prior to the 

commencement of trial. Any objections to proposed exhibits were to be made five days prior to 

trial. On October 26, 2011, a second Notice of Hearing was sent to the parties to identify the 

location of the hearing. The same language regarding discovery was included in this notice. 

On Friday, October 28, 2011 at 1:08PM, the Secretary filed her Motion to Amend the 

citation – almost two years after filing her petition for penalties, over one year after my order to 

engage in settlement negotiations and five months after my Notice of Hearing which directed 

submission of prehearing reports 20 days before the start of trial which would require that all 

discovery and identification of witnesses would be completed at that time. The Secretary stated 

in a conference call that I held with the parties on October 28, 2011 at 2:30 PM, that she had sent 

an email to counsel for the Respondent on October 26th,

, six days prior to trial, alerting 

Respondent of the forthcoming motion to amend. Counsel for the Respondent informed me 

during that Friday afternoon call that he had not yet had the opportunity to read the Secretary’s 

motion which had just been sent one hour earlier and he was not prepared to respond to it. I 

provided counsel the opportunity to argue the motion at the commencement of the hearing. 

The Secretary argued that the standard proposed in her motion was merely a change from 

a more general standard to a more specific one and the Respondent had been on notice all along 

that the violation rested upon the fact that inadequate air was present while operating a piece of 

diesel equipment. Because the quantity of airflow did not change, the operator will suffer no 

prejudice as a result of the proposed amendment. Secretary’s Memorandum of Law in Support 

of Motion to Amend. 

Highland, on the other hand, points out that the standard proposed in the motion, filed on 

Friday, is a different and distinct allegation which would completely change the basis of their 

defense. Their defense had been that the ventilation plan did not require the cited airflow 

quantity. Under the proposed amendment, it would be necessary to change their defense strategy 

when the time for discovery was over and with insufficient time to investigate the facts under the 

newly proposed standard. 

34 FMSHRC Page 888
I agree with the Respondent that the proposed amendment was submitted too late to 

afford Highland any meaningful notice and opportunity to defend against it. The Secretary had 

engaged in extensive negotiations of the citations involved in this docket. In fact, they resolved 

eight citations prior to hearing. They should have been aware of the need to amend this citation 

at a far earlier date. Moreover, the Secretary did not file her motion until Friday afternoon; some 

two weeks after the discovery period had ended, with a weekend and a Monday travel day 

intervening before the start of trial on Tuesday morning. This left the Respondent with little or 

no time to contact a representative of the manufacturer or identify any additional witnesses 

needed to defend against the new allegation. While I granted the Secretary’s motion with respect 

to the lifeline violation, it admittedly did not alter the Respondent’s trial strategy. I find this 

proposed standard does sufficiently impact upon their theory of defense as to have denied them 

fair notice and due process. 

The cited condition or practice is not a violation of the ventilation plan. Therefore, the 

citation must be VACATED. 

8. Citation No. 848920 in violation of 30 C.F.R. §75.220(a)(1) 

This citation written by Inspector Coburn on August 21, 2008 cites the following 

condition: 

The approved roof control plan in affect (sic) at this time was not being complied with on 

the No. 3 (063-0) MMU. The No. 6 entry was driven 21’ to 21’6” wide for a distance of 

25 feet and no additional roof supports were installed. 

Ex. S-15. 

The violation was assessed as reasonably likely to result in an injury causing lost 

workdays or restricted duty to one person, S&S, and the result of moderate negligence. The 

proposed penalty is $1203. 

The standard provides that each mine shall develop and follow a roof control plan 

approved by the District Manager, that is suitable to the geologic conditions and the mining 

system employed by the mine. 

Highland concedes the violation but contests the S&S designation because the wide entry 

did not run the entire length of the entry and the roof conditions were satisfactory. 

S&S 

Coburn felt this violation was S&S because there was a reasonable likelihood of a roof 

fall as a result of this violation. The wide cut reduced the size of the pillar which reduced the 

34 FMSHRC Page 889
 

strength of the roof exposing miners to draw rock, slips and fallout between the roof bolts. Tr. 

202. In his opinion, it was reasonably likely to occur because there were a number of slips and 

faults in this unit. In the event of a roof fall, it would be reasonably likely that one miner would 

be affected being the miner operator, FCT operator or miner helper who work in this area and 

travel close to the rib. The likely injuries would be bruises or broken bones. Tr. 204-05. Coburn 

was aware of accidents at Highland resulting from draw rock falls that resulted such injuries. 

Tr. 204. 

Highland established that the entry was 70 to 110 feet in length while the area in 

violation extended for 25 feet. Tr. 247. The pins from rib to rib were required to be four feet 

apart. There was no unacceptable spacing between the pins in this entry. Tr. 249-50. MSHA 

allows a one foot variance in the width of an entry, therefore, it would have been lawful for the 

entry to have been cut to 21’ for a distance of five or ten feet. Tr. 254. 

I accept the opinion of Inspector Coburn in finding this violation was S&S. Although the 

roof bolts were spaced appropriately according to the roof control plan, the pillar was reduced in 

size due to the wide cut in a unit that had slips and faults which made the possibility of a roof fall 

likely had normal mining operations continued. The fact that draw rock falls had occurred in 

this mine supports Coburn’s opinion and overrides the fact that the wide cut did not extend the 

entire length of the entry. 

Negligence 

The level of negligence was assessed as moderate based upon the fact that this violation 

had existed for approximately 16 hours, which Coburn established based upon the location the 

face. Tr. 204. The foreman and the roof bolter are charged with checking the roof at all times, 

both of whom should have recognized the condition and ordered additional supports be installed. 

Tr. 203. I find this assessment of negligence to be supported by the evidence. 

9. Citation No. 8492066 in violation of 30 C.F.R. §75.400 

This citation was issued by Felix Caudill on August 12, 2008. The alleged violation is: 

The #24 Wallace 14 man bus, serial #625 has accumulations of oil and transmission fluid 

in (sic) the floor of the transmission compartment, engine compartment, and on the side 

of the engine. The exhaust is laying in these accumulations. 

Ex. S-17. 

The standard provides, in relevant part, that combustible materials shall be cleaned up 

and not be allowed to accumulate on diesel-powered equipment in active workings. 

34 FMSHRC Page 890
Caudill assessed this violation as reasonably likely to cause an injury resulting in lost 

workdays or restricted duty affecting nine persons, S&S and the result of moderate negligence. 

The proposed penalty is $9634. 

Caudill has been an MSHA inspector for 15 years. Previously, he worked for Peabody 

for 27 years rising through the ranks from a general laborer to an equipment operator and fire 

and face boss. On the day of the inspection, he was responding to an anonymous hotline 

complaint of a smoking bus that was being used exposing miners to smoke inhalation. Tr. II. 5. 

He went underground to check the fourteen-man bus and found accumulations of fluids in the 

transmission and engine compartments as well as around the exhaust which he said was lying in 

the fluid. Tr. II. 6. As a result, he issued this citation. 

Highland does not contest the violation but challenges the S&S designation. 

S&S 

Caudill designated the violation as S&S because he believed that the exhaust was 

reasonably likely to generate sufficient heat to ignite the fluids, causing injuries from smoke 

inhalation, burns and asphyxiation. Tr. II. 6. He testified that although he marked the violation 

as a safety hazard, he could have marked it as S&S for health reasons as well for CO inhalation. 

He measured CO at 4 parts per million, well below the violative amount, and detected none 

when the bus was started up. Tr. II. 8, 32. 

Caudill testified that he had no independent recollection of this inspection; he relied 

solely on the notes he took at the time of the inspection. Tr. II .7, 21. The hotline complaint 

mentioned that a bus was smoking but he could not recall, or find in his notes, if the source of 

the smoke was reported. He could not say if it was from the accumulations or not. Tr. II 7. He 

also could not be sure if the bus he cited on the 12th of August was the same bus that was the 

subject of the hotline complaint as he was told by a company representative that that bus had 

been removed from service the day before for a blown head gasket. Tr. II. 24-25. He assumed 

it was the same bus in calculating the amount of time the condition existed, however. Tr. II. 13. 

While he cited the accumulations as both oil and transmission fluid, he admitted that his notes 

indicate it was oil. He testified that he did not determine what the fluid was exactly. Tr. II. 26, 

30. Whatever the fluid was, he did not take any measurements of it, stating the amount was 

immaterial. Tr. II. 26, 38. He had no idea at what temperature the fluid would ignite. Tr. II. 30. 

Caudill also could not recall if the exhaust was wrapped in fire resistant material, or whether 

there was a Murphy automatic cut-off switch on the bus or at what temperature it would be 

activated. Tr. II. 29, 30, 54. He did not measure the temperature of the bus after it had been 

driven to the repair shack because he had nothing with which to measure it. Tr. II. 31. 

Tommy Watkins, safety manager at Highland, testified that he recalled the issuance of 

this citation. Tr. II. 48. He testified that the bus was equipped with a Murphy switch which 

would shut down the equipment and was set around 200 to 225 degrees which is below the 

34 FMSHRC Page 891
ignition point of the Conoco oil used at Highland. Tr. II. 54. It is also equipped with a fire 

suppression system. Tr. II. 58. He also recalled the accumulations being paper thin. The bus 

traveled by several CO monitors on its way to the repair shack that did not alert, nor did 

Watkins’ personal spotter which was set to alarm at low levels of CO, methane and oxygen. Tr. 

II. 55. He also confirmed that there was a fire resistant sleeve surrounding the exhaust and all 

hydraulic lines which would prevent a fire in the event of a fluid leak on those components. Tr. 

II. 56. 

The Secretary’s evidence lacks essential facts upon which to find a likelihood of ignition 

of the fluid. She could not establish the quantity of the accumulation, the composition of the 

fluid, the flash point of the material, the temperature of the bus after being operated, whether the 

exhaust was wrapped in fire resistant covering or whether the bus was equipped with an 

automatic cutoff switch and at what temperature it would be activated. The testimony of 

Watkins was persuasive on these points and I find that the violation is not significant and 

substantial as a safety hazard. With respect to the allegation that this violation was also a health 

hazard, I find that the evidence is lacking to establish actual exposure to violative amounts of 

harmful gases to establish a reasonable risk of injury. Furthermore, the Secretary did not 

establish by credible medical evidence that inhalation of 4 ppm of methane (which could have 

been from ambient air rather than from this bus) would pose a serious health risk. This violation 

is not significant and substantial as a health hazard. 

Negligence 

I find the gravity of this violation is low and the negligence is reduced accordingly for the 

same reasons as set forth above. 

III. PENALITES 

Under Section 110(i) of the Act, the Commission and its judges must consider the 

following factors in assessing a civil penalty: the history of the 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 

operator’s ability to continue in business. The parties have stipulated that the mine is a large 

mine and that the proposed penalties would not affect the operator’s ability to continue in 

34 FMSHRC Page 892
business. There is no dispute that the conditions were abated in good faith or that the mine has a 

significant history of violations. The findings with regard to the gravity and negligence involved 

in each citation are set forth above. I find that the following penalties are appropriate: 

Citation No. 8489430 $1304.00 

Citation No. 8489432 Vacated 

Citation No. 8489434 $2106.00 

Citation No. 8489182 $1111.00 

Citation No. 8489197 $1203.00 

Citation No. 8489199 $1200.00 

Citation No. 8489201 Vacated 

Citation No. 8489204 $1203.00 

Citation No. 8492066 $250.00 

IV. ORDER 

Citation numbers 8489432 and 8489201 are VACATED; citation numbers 8489430, 

8489434, 8489182, 8489197 and 8489204 are affirmed as written with the penalties proposed by 

the Secretary; citation number 8489159 has been modified to low with a penalty of $1200.00; 

and, citation no. 8492066 is modified to non-significant and substantial with low negligence with 

an assessed penalty of $250.00. It is hereby ORDERED that Respondent pay penalties on the 

citations adjudicated herein in the amount of $8,377.00 within 30 days of this order.3 

/s/ Priscilla M. Rae 

Priscilla M. Rae 

Administrative Law Judge 

Distribution: (Certified Mail) 

Angele M. Gregory, Esq., Office of the Solicitor, U.S. Department of Labor, 211 7th Ave. North, 

Ste. 420, Nashville, TN 37219 

Jeffrey K. Phillips, Esq., Steptoe & Johnson, PLLC, P.O. Box 910810, Lexington, KY 40591 

3

 Payment is to be made to the Mine Safety and Health Administration, U.S. Department of 

Labor, Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390. 

34 FMSHRC Page 893
 

 

 

 

 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

Washington, DC 20001

 April 20, 2012 

SECRETARY OF LABOR, MSHA : TEMPORARY REINSTATEMENT

 on behalf of REUBEN SHEMWELL, : PROCEEDING 

Complainant :

 : Docket No. KENT 2012-655-D

 : MADI CD 2012-08 

v. :

 : 

ARMSTRONG COAL COMPANY, INC., : Parkway Mine Surface Facilities

 : 

and :

 : 

ARMSTRONG FABRICATORS INC., : 

Respondents : Mine ID: 15-19356 

ORDER GRANTING SECRETARY’S 

MOTION FOR SUMMARY DECISION
 

AND
 

ORDER GRANTING AMENDED APPLICATION
 

FOR TEMPORARY REINSTATEMENT
 

Before: Judge Feldman 

This temporary reinstatement proceeding arises under section 105(c)(2) of the Federal 

Mine Safety and Health Act of 1977, 30 U.S.C. § 815(c)(2) (“Act” or “Mine Act”). Under 

section 105(c)(2) of the Mine Act, “if the Secretary finds that [a discrimination] complaint 

was not frivolously brought, the Commission, on an expedited basis upon application of the 

Secretary, shall order the reinstatement of the miner pending final order on the complaint.” 

30 U.S.C. § 815(c)(2). The Commission has repeatedly recognized that the “scope of a 

temporary reinstatement hearing is narrow, being limited to a determination by the judge as 

to whether a miner’s discrimination complaint is frivolously brought.” See Sec’y of Labor on 

behalf of Price v. Jim Walter Res., Inc., 9 FMSHRC 1305, 1306 (Aug. 1987), aff’d, 920 F.2d 

738 (11th Cir. 1990). 

I. Background 

Before me is the Secretary’s March 21, 2012, motion for summary decision seeking 

the temporary reinstatement of Reuben Shemwell by Armstrong Coal Company, Inc. 

(“Armstrong Coal Company”). Shemwell was employed as a welder at Armstrong Coal 

Company’s Parkway Mine Surface Facilities located in Muhlenberg County, Kentucky. 

Shemwell’s employment was terminated on September 14, 2011. The Secretary alleges that 

34 FMSHRC Page 894
 

Shemwell’s dismissal was motivated by his repeated complaints concerning the need for 

respirator protection from fumes that were generated during the welding process. Respirators 

were ultimately provided to personnel in April 2011. 

Armstrong Coal Company opposed the Secretary’s motion on March 27, 2012. In its 

opposition, Armstrong Coal Company argued, inter alia, that although Shemwell was working as 

a welder at the Parkway Mine Surface Facilities at the time of the September 14, 2011, 

discharge, he was employed by a business entity known as Armstrong Fabricators, Inc. 

(“Armstrong Fabricators”). Nevertheless, Armstrong Coal Company asserted Shemwell was 

discharged on September 14, 2011, for excessive personal cell phone use during working hours. 

Significantly, Armstrong Coal Company does not specifically deny that Shemwell 

communicated protected safety and health related complaints concerning the lack of respirator 

protection. 

Armstrong Coal Company’s March 27, 2012, opposition primarily is based on its 

assertion that it is not a proper party to this proceeding because, although Shemwell was 

working as a welder at its surface facilities at the time of the September 14, 2011, discharge, 

Shemwell was employed by Armstrong Fabricators. Armstrong Coal Company characterizes 

Armstrong Fabricators as a “a sister company.” Resp. Initial Opp. at 7. 

Given these representations, during a March 28, 2012, telephone conference, the 

Secretary was given the opportunity to file an amended application for temporary reinstatement 

adding Armstrong Fabricators as a party to this proceeding. Armstrong Coal Company and 

Armstrong Fabricators are represented by the same counsel.1 During the telephone conference, 

counsel for these entities represented that they would not object, on procedural grounds to the 

Secretary’s filing of an amended reinstatement application. Accordingly the Secretary’s request 

for leave to file an amended application for temporary reinstatement HAS BEEN GRANTED. 

1

 While a formal notice of appearance has not been filed on behalf of Armstrong 

Fabricators, during the March 28, 2012, telephone conference counsel for Armstrong Coal 

Company represented that they also represented Armstrong Fabricators. Commonality of 

counsel is also deemed to have been admitted in pleadings in this proceeding wherein it was 

represented that counsel for “Fabricators would not oppose [the Secretary’s] motion . . . to so 

amend her Application [to add Fabricators as a party].” Resp. Supp. Opp. to Sec’y’s Amended 

App. at 2 n. 1. Thus, it is clear that counsel in this proceeding have been acting on behalf of both 

Armstrong Coal Company and Armstrong Fabricators. 

34 FMSHRC Page 895
II. Proper Parties in this Matter 

On April 2, 2012, the Secretary filed her motion to amend her temporary reinstatement 

application by seeking to add Armstrong Fabricators as a party. At the outset, I note that it 

is not disputed that Armstrong Fabricators is a proper party to this proceeding. In this regard, 

Oscar Ramsey, Armstrong Fabricators’ shop manager, admits Reuben Shemwell was employed 

by Armstrong Fabricators until his September 14, 2011, termination. Resp. Initial Opp., Ex. 3. 

The Secretary argues that Armstrong Coal Company should be estopped from denying that it 

employed Shemwell, or, that Armstrong Coal Company and Armstrong Fabricators are “joint 

employers” named as proper parties in this proceeding. Sec’y mem. in support of amend. app., at 

2-5. In support of the Secretary’s amended application, the Secretary notes that Shemwell’s 

September 14, 2011, termination letter, which was written on Armstrong Coal Company 

stationery, states: 

Reuben [W. Shemwell], 

This letter is to inform you that your employment with Armstrong Coal Company 

has been terminated effective 9/14/11. 

Respectfully, 

[/s] 

Gary Phillips 

Director of Human Resources [for Armstrong Coal Company]2 

Sec’y Mot. for Summ. Dec., Ex. A; Sec’y Amended App., Ex. A (emphasis added). 

The Secretary’s amended application also relies on several additional written statements 

by Phillips stating that Shemwell was an employee of Armstrong Coal Company. In a letter 

to Jonathan S. King dated September 19, 2011, and, in responses to the Commonwealth of 

Kentucky’s Unemployment Insurance Office, dated October 4, 2011, Phillips represented that 

Shemwell was employed by Armstrong Coal Company. See Sec’y Amended App., Exs. B and C. 

Armstrong Coal Company filed a supplemental response on April 12, 2012, again 

opposing its inclusion as a party. Armstrong Coal Company’s opposition is primarily based on 

Shemwell’s pay stubs and 2011 W-2 tax forms that reflect his employer was Armstrong 

Fabricators, Inc., at the address of 407 Brown Road, Madisonville, Kentucky 42431. It is 

noteworthy that the address of Armstrong Fabricators is the same as the address for Armstrong 

Coal Company as reflected in its official correspondence letterhead. Sec’y Amended App., Ex. 

2

 Although Phillips may have provided advice to Armstrong Fabricators, he “is officially 

employed by Armstrong Coal as its Human Resources Director.” Resp. Initial Opp. at 7. 

34 FMSHRC Page 896
A. Moreover, Armstrong Coal Company’s attempt to extricate itself at this early 

preliminary stage despite its status as an admitted “sister corporation” of Armstrong Fabricators 

is unavailing. The Commission has addressed the issue of when a parent corporation and its 

subsidiary corporations constitute a “unitary operator” subjecting the affiliated corporations to 

liability under the Mine Act. Berwind, 21 FMSHRC 1284, 1316-17 (Dec. 1999). In Berwind, 

the Commission stated: 

Accordingly, we will consider the following factors in determining whether 

entities will be treated as a unitary operator for purposes of the Mine Act: (1) 

interrelation of operations, (2) common management, (3) centralized control over 

mine health and safety, and (4) common ownership. To demonstrate unitary 

operator status, not every factor need be present, and no particular factor is 

controlling. Instead, we will weigh the totality of the circumstances to determine 

whether one corporate entity exercised such pervasive control over the other that 

the two entities should be treated as one. 

21 FMSHRC at 1317. 

During the March 28, 2012, telephone conference, Respondents’ counsel represented that 

Armstrong Energy, Inc., is the parent company of “sister companies” Armstrong Coal Company 

and Armstrong Fabricators. Thus, the appearance of interrelated ownership is sufficient in light 

of the Secretary’s minimal burden of proof at this early stage of the proceeding to satisfy the 

fourth element of Berwind. The fact that “sister corporation” Armstrong Fabricators was 

providing services at Armstrong Coal Company’s surface facilities, and that these affiliated 

corporations share the same business address, provide further evidence of common ownership, 

as well as an interrelation of operations satisfying the first Berwind criterion. Additionally, the 

notification of Shemwell’s discharge by the Director of Human Resources for Armstrong Coal 

Company demonstrates common mine management. Phillips’ role also reflects centralized 

control over personnel matters that could impact mine safety and health demonstrating the 

second and third indicia for a “unitary operator” enunciated in Berwind. 

Furthermore, with respect to “unitary operator” status, it is significant that Armstrong 

Fabricators has failed to comply with the reporting requirements of 30 C.F.R. Part 41 of the 

Secretary’s regulations because it has not registered as a mine operator. Sec’y mem. in support 

of amend. app., at 1 n. 1. Thus, the only entity of the subject affiliated corporations that 

acquiesced to Mine Act jurisdiction was Armstrong Coal Company by virtue of its Mine ID No. 

of 15-19356. Under the “alter ego” theory of corporation law, a business entity cannot seek to 

escape liability arising out of the operation of one business entity that was conducted for the 

benefit of the affiliated enterprise. Berwind, 21 FMSHRC at 1314-15. Simply put, Armstrong 

Coal Company may not now escape exposure to liability for mining related operations at its 

Parkway Mine Surface Facilities by seeking to shift liability to an affiliated corporation when 

Armstrong Coal Company was the only relevant authorized mine operator at the time of 

Shemwell’s discharge. 

34 FMSHRC Page 897
In addition, it should be noted parenthetically that corporations may be liable, as 

successors, for relief under section 105(c)(2) of the Mine Act even if the management and 

ownership of the corporation is different and distinct from that of the mine operator that 

discriminated. Clifford Meek v. Essroc Corp., 15 FMSHRC 606, 609 (Apr. 1993). In 

discrimination cases involving successorship, the Commission looks to such factors as notice of 

the alleged discriminatory action, the ability of the successor to provide relief, whether the 

substitute employer uses the same mine site with a similar workforce, and, whether the successor 

company has the same management (human resource) personnel. Id. at 610 (citations omitted). 

All of these indicia are present in this case. It is undisputed that Armstrong Coal 

Company had notice of the alleged underlying facts that support the application for temporary 

reinstatement by virtue of the termination letter and the information provided to the Kentucky 

State Unemployment Insurance Office. It obviously has the ability to provide reinstatement of 

Shemwell to his former position as a welder/laborer given its continuing mining operations. 

With regard to the remaining issue of successorship, there is a commonality of employment 

location and management, as reflected by the active participation of Armstrong Coal Company’s 

Human Resources Director in the decision to terminate Shemwell. 

The decision to hold Armstrong Coal Company and Armstrong Fabricators subject to 

joint and several liability for relief under the antidiscrimination provisions of section 105(c)(2) 

of the Mine Act is essential at this stage of the proceeding. The Secretary asserts that Armstrong 

Fabricators is not registered to do business in the State of Kentucky. Sec’y mem. in support of 

amend. app., at 1 n. 1. Regardless of whether Armstrong Fabricators is authorized to operate in 

Kentucky, Mine Safety and Health Administration records reflect that Armstrong Fabricators has 

failed to comply with the reporting requirements in 30 C.F.R. § 41.10 of the Secretary’s 

regulations because it has not registered as an operator performing services at a mine. Id. Also, 

it is significant that counsel represented during the March 28, 2012, telephone conference that 

Armstrong Fabricators is not actively engaged in business, and, that it may not have the ability to 

reinstate Shemwell. 

It is instructive that the legislative history of the Mine Act reflects Congress’ concern that 

effective relief must be afforded to victims of discrimination. The Commission has noted this 

congressional concern: 

It is the Committee’s intention that the Secretary propose, and that 

the Commission require, all relief that is necessary to make the 

complaining party whole and to remove the deleterious effects of 

the discriminatory conduct including, but not limited to[,] 

reinstatement with full seniority rights, back-pay with interest, and 

recompense for any special damages sustained as a result of the 

discrimination. The specified relief is only illustrative. 

34 FMSHRC Page 898
 

Consolidation Coal, 20 FMSHRC 1293, 1307 (Dec. 1998) citing S. Rep. No. 95-181, at 

37 (1977), reprinted in Senate Subcommittee on Labor, Committee on Human Resources, 95th 

Cong., Legislative History of the Federal Mine Safety and Health Act of 1977, at 625 (1978). 

Thus, the Commission possesses broad remedial power in fashioning relief in 

discrimination cases that is appropriate for varied and diverse circumstances. See Consolidation 

Coal, 20 FMSHRC at 1306-07. This is especially true in this situation where only one of several 

relevant business entities may be capable of providing such relief. 

It is not the judge’s duty to resolve real party-in-interest issues on the merits at this 

preliminary stage of a temporary reinstatement proceeding. Sec’y o/b/o Albu v. Chicopee Coal, 

21 FMSHRC 717, 719 (July 1999). Given the Commission’s broad remedial authority, it is clear 

that the Secretary’s assertion that Armstrong Coal Company is a proper party to this proceeding 

as an affiliated corporate entity is not frivolous. Armstrong Coal Company has the ability to 

temporarily reinstate Shemwell. Armstrong Coal Company may contest its party status at a 

hearing on the merits if the Secretary elects to bring a discrimination case on behalf of 

Shemwell. Consequently, the Secretary’s motion to amend its application for temporary 

reinstatement to include both Armstrong Coal Company and Armstrong Fabricators as parties to 

this proceeding IS GRANTED. 

III. Timeliness 

Section 105(c)(2) of the Mine Act provides that a miner alleging to be the victim of 

discriminatory discharge “. . . may, within 60 days after such violation occurs, file a complaint 

with the Secretary alleging such discrimination.” 30 U.S.C. § 815(c)(2). Armstrong Coal 

Company asserts that Shemwell’s complaint must be dismissed as untimely because it was filed 

on January 23, 2012, a period of 131 days after his September 2011 termination, which I 

construe as a motion to dismiss. Resp. Initial Opp. at 8. 

Dismissal is a harsh remedy. Moreover, Commission case law is clear that the 60-day 

period for filing a discrimination complaint under section 105(c)(2) is not jurisdictional. 

Hollis v. Consolidation Coal Co., 6 FMSHRC 21, 24 (Jan. 1984), aff’d mem, 750 F.2d 

1093 (D.C. Cir. 1984). An analysis of the facts “on a case-by-case basis, taking into account the 

unique circumstances of each situation” is required in order to determine whether a miner’s late 

filing should be excused. Id. For example, “a miner’s genuine ignorance of applicable time 

limits may excuse a late filed discrimination complaint.” Gary D. Morgan v. Arch of Illinois, 21 

FMSHRC 1381, 1386 (Dec. 1999) citing Schulte v. Lizza Indus., Inc., 6 FMSHRC 8, 13 (Jan. 

1984). 

Absent a showing of prejudice, a reasonable delay in filing a discrimination complaint 

should not disqualify a miner from exercising his statutory right to seek relief from adverse 

action that he believes was motivated by his protected activity. An approximate four month 

filing delay does not significantly undermine the recollection of witnesses, or otherwise interfere 

with the Respondents’ ability to defend themselves. Consequently, a reasonable filing delay, 

34 FMSHRC Page 899
absent prejudice, does not confer rights or defenses on an opposing party. Accordingly, the 

Respondent’s request to dismiss this matter because the underlying discrimination complaint was 

not filed in a timely manner IS DENIED. 

IV. Not Frivolously Brought Standard 

While the Secretary is not required to present a prima facie case in a temporary 

reinstatement proceeding, it is helpful to review the ultimate proof to support a discrimination 

claim to determine whether the nonfrivolous test in this matter has been met. In order to 

demonstrate a prima facie case of discrimination under section 105(c) of the Act, the Secretary 

must establish that Shemwell: (1) engaged in protected activity and (2) that the adverse action 

complained of, in this case Shemwell’s termination, was motivated in any part by that activity. 

Sec’y of Labor on behalf of Pasula v. Consolidation Coal Co., 2 FMSHRC 2786 (Oct. 1980), 

rev’d on other grounds, 663 F.2d 1211 (3rd Cir. 1981); Sec’y of Labor on behalf of Robinette v. 

United Castle Coal Co., 3 FMSHRC 803 (Apr. 1981). 

Direct evidence of a discriminatory motive is rarely encountered. Sec’y of Labor 

on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508, 2510 (Nov. 1981), rev’d on other 

grounds, 709 F.2d 86 (D.C. Cir. 1983). Rather the Commission has identified several 

circumstantial indicia of discriminatory intent, namely: (i) hostility or animus toward the 

protected activity; (ii) knowledge of the protected activity; and (iii) coincidence in time between 

the protected activity and adverse action. Id. 

The Respondents, in essence, assert that Shemwell’s termination was motivated solely by 

his unauthorized cell phone use, and, that his discharge was not motivated, in any part, by 

protected activity. The Secretary contends that Shemwell’s termination was motivated by his 

repeated requests for respirator protection. As previously noted, given the narrow scope of a 

temporary reinstatement proceeding, it is premature to resolve issues regarding the underlying 

motivation for Shemwell’s termination at this preliminary stage of the proceeding. Chicopee 

Coal, supra, at 21 FMSHRC 719. 

It is sufficient that Armstrong Coal Company has directly, and indirectly, acknowledged 

Shemwell’s protected activity. As a threshold matter, during the March 13, 2012, conference call, 

counsel for Armstrong Coal Company acknowledged Shemwell’s complaints concerning 

respirators. Moreover, in its opposition to the Secretary’s motion for summary decision, 

Armstrong Coal Company states “[it] assumes arguendo for the purposes of the Secretary’s 

present Motion [for Summary Decision] that Shemwell has engaged in protected activity.” Resp. 

Initial Opp. at 11. However Armstrong Coal Company reserved the right to later dispute any 

allegation that Shemwell in fact engaged in protected activity. Id. at n. 5. 

Turning to the Chacon indicia for discriminatory intent, a temporary reinstatement 

proceeding also is not the appropriate vehicle for resolving credibility conflicts. Chicopee Coal, 

supra, at 21 FMSHRC 719. Thus as Armstrong Coal Company apparently recognizes, it is 

appropriate to assume for the purposes of this proceeding that Shemwell engaged in protected 

34 FMSHRC Page 900
 

activity culminating in the provision of respirators in April 2011, particularly in the absence of 

an explicit denial that protected activity occurred. With respect to coincidence in time, the 

approximate five month period between the asserted April 2011 response to Shemwell’s 

complaints and the September 2011 termination is of sufficiently short duration to satisfy the 

Secretary’s not frivolously brought evidentiary burden. 

Even if Shemwell engaged in protected activity, Armstrong Coal contends that mine 

management personnel who participated in the decision to terminate Shemwell were unaware of 

such activity. The Commission has long held that “[a]n operator may not escape responsibility 

by pleading ignorance due to the division of company personnel functions.” Jayson Turner v. 

Nat’l Cement Co. of California, 33 FMSHRC 1059, 1067 (May 2011) citing Metric 

Constructors, Inc., 6 FMSHRC 226, 230 n. 4 (Feb. 1984). In any event, such a defense cannot be 

relied upon to defeat reinstatement during this preliminary proceeding. 

Finally, the ultimate issue of whether there was hostility or animus towards Shemwell for 

his purported protected activity must await a full evidentiary hearing on the merits of the 

discrimination complaint. At this time the Secretary continues to investigate. 

ORDER 

Disposition by summary decision is appropriate provided (1) the entire record establishes 

that there is no genuine issue as to any material fact; and (2) the moving party is entitled to 

summary decision as a matter of law. 29 C.F.R. § 2700.67(b). See Missouri Gravel Co., 3 

FMSHRC 2470, 2471 (Nov. 1981); Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). To 

prevail in this preliminary matter, the Secretary must only demonstrate that the application for 

temporary reinstatement is not frivolous. As discussed above, the record, consisting of the 

appearance of interrelated corporate ownership; protected activity uncontested for the purposes 

of this proceeding; and coincidence in time between the reported protected activity and 

Shemwell’s termination establishes that the application for temporary reinstatement has not been 

frivolously brought. Accordingly, IT IS ORDERED that the Secretary’s amended motion for 

summary decision with respect to her application for temporary reinstatement IS GRANTED. 

34 FMSHRC Page 901
 

 

Consequently, IT IS FURTHER ORDERED that Armstrong Coal Company, Inc., 

and/or Armstrong Fabricators, Inc., immediately reinstate Reuben Shemwell, no later than 

Wednesday, April 25, 2012, to the position he immediately held prior to his September 14, 

2011, termination, or, to a similar position as a laborer at the same rate of pay and benefits, and 

with the same or equivalent duties assigned to him. 

/s/ Jerold Feldman 

Jerold Feldman 

Administrative Law Judge 

Distribution: (Electronic and Certified Mail) 

Matt S. Shepherd, Esq., U.S. Department of Labor, Office of the Solicitor, 

618 Church Street, Suite 230, Nashville, TN 37219-2440 

Adam Spease, Esq. and Adam Scutchfield, Esq., Miller Wells, PLLC, 710 West Main Street, 

4th Floor, Louisville, KY 40202 - Counsel for Armstrong Coal Company and Armstrong 

Fabricators Inc. 

Dan Zuluski, Esq., Armstrong Coal Company, Inc., 407 Brown Road, Madisonville, KY 42431 

/jel 

34 FMSHRC Page 902
ADMINISTRATIVE LAW JUDGE ORDERS
 

 

 

 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

Washington, D.C. 20001 

April 4, 2012 

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA), : Docket No. WEVA 2008-1834 

Petitioner : A.C. No. 46-08266-161160 

v. :

 : 

POCAHONTAS COAL COMPANY, LLC, : Mine: Josephine No. 3 

Respondent : 

ORDER DENYING 

RESPONDENT’S MOTION TO COMPEL 

This proceeding has been brought pursuant to the Federal Mine Safety and Health Act of 

1977, 30 U.S.C. § 801 et seq., (“the Act”). The proceeding concerns Citation Nos. 7260671 and 

7260672 that allege violations of 30 C.F.R. § 75.403 for Pocahontas Coal Company, LLC’s 

(“Pocahontas’”) alleged failure to maintain the required percentage of rock dust in the 007 and 

003 mechanized mining units (“MMU’s”). Citation Nos. 7260671 and 7260672 were specially 

assessed by the Secretary at $14,700.00 each, for a total proposed penalty of $29,400.00. 

Pocahontas has filed a motion to compel the production of the Secretary’s special assessment 

review forms concerning Citation Nos. 7260671 and 7260672 that serve as the basis for the 

proposed $29,400.00 total civil penalty.1 

Pocahontas asserts that the special assessment forms are relevant and discoverable. 

Resp. Mot. at 3. Pocahontas states that it does not possess the information contained in the 

forms, and that such information is “necessary to effectively defend this case and to carry on 

a dialogue regarding potential settlement.” Id. Pocahontas relies on Commission Rule 56(b), 

29 C.F.R. § 2700.56(b), and Rule 26(b)(1) of the Federal Rules of Civil Procedure that provide 

that all relevant material not privileged is subject to discovery. Id. Pocahontas additionally 

addresses why the deliberative process privilege should not apply. Id. at 4. 

1

 The Secretary’s criteria for proposing civil penalties is contained in Part 100 of the 

Secretary’s regulations. 30 C.F.R. Part 100. Section 100.5(a) of the regulations provides “MSHA 

may elect to waive the regular assessment under section 100.3 if it determines that conditions 

warrant a special assessment.” The calculation methods for determining special assessments are not 

contained in Part 100, and as discussed herein, are not relevant in this proceeding. 

34 FMSHRC Page 903
The Secretary also relies on Commission Rule 56(b), and Rule 26(b)(1) of the 

Fed. R. Civ. P., but emphasizes that only relevant material not privileged is subject to discovery. 

Sec’y Resp. at 2. (Emphasis added). The Secretary, however, asserts special assessment review 

forms are not relevant. Id. In this regard, the Secretary notes that under section 110(i) of the Act 

“[t]he Commission shall have authority to assess all civil penalties provided in this Act.” Id. at 3 

citing 30 U.S.C. § 820(i). The Secretary also references Douglas R Rushford Trucking, 22 

FMSHRC 598, 600 (May 2000), for the proposition that the Commission and its Administrative 

Law Judges make penalty determinations de novo. Sec’y Resp. at 3. Notwithstanding the 

relevance issue, the Secretary also addresses why the deliberative process privilege should apply. 

Id. 

As noted by the Secretary, it is well settled that the Commission and its judges have the 

authority to determine and assess the appropriate civil penalty in contested civil penalty matters. 

The Commission has outlined the parameters of its responsibility for assessing civil penalties: 

The principles governing the Commission’s authority 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 “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 

and 2700.44. The Act requires that, “[i]n 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 of the operator’s ability to continue in business, [5] the 

gravity of the violations, and [6] the demonstrated good faith of the 

person charged in attempting to achieve rapid compliance after 

notification of a violation. 

Rushford Trucking 22 FMSHRC at 600 citing 30 U.S.C. § 820(i). 

The Secretary bears the burden of proving each element of a cited violation. The 

Commission has held that findings of fact on the statutory penalty criteria must be made by its 

judges based on the evidence presented during a hearing proceeding. Sellersburg Stone Co., 

5 FMSHRC 287, 292 (Mar. 1983). 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 for the statutory criteria and the deterrent purposes of the Act. 

Id. at 294, Cantera Green, 22 FMSHRC 616, 620 (May 2000). The Commission has noted that 

34 FMSHRC Page 904
the de novo assessment of civil penalties does not require “that equal weight must be assigned to 

each of the penalty assessment criteria.” Thunder Basin Coal Co., 19 FMSHRC 1495, 1503 

(Sept. 1997). 

As noted, discovery may be obtained if the information or documentation sought is 

relevant in that it is admissible evidence, or, the information appears likely to lead to the 

discovery of admissible evidence. Commission Rule 56(b). As the Secretary’s special 

assessment criteria, as vague as it may be, is not relevant given the de novo authority of the 

Commission to assess civil penalties, the special assessment review forms sought by Pocahontas 

are not discoverable. Consequently, Pocahontas’ motion to compel IS DENIED. Given the 

non-relevant nature of the information sought to be compelled, I need not address whether the 

special assessment forms are protected by the deliberative process or otherwise privileged. 

I note however that information concerning the personal observations of the issuing 

MSHA inspector, i.e., the inspector’s actual knowledge, which may have served as the basis for 

the special assessment, is discoverable. Such information can be obtained through depositions. 

This captioned proceeding remains scheduled for hearing on the merits at 9:00 a.m., on 

Tuesday, May 15, 2012, in the vicinity of Beckley, West Virginia. The hearing location will be 

specified in a subsequent order. 

/s/ Jerold Feldman 

Jerold Feldman 

Administrative Law Judge 

Distribution: 

Amanda K. Slater, Esq., U.S. Department of Labor, Office of the Solicitor, 

1999 Broadway, Suite 800, Denver, CO 80202-5708 

Maxwell K. Multer, Esq., Dinsmore & Shohl LLP, 215 Don Knotts Blvd., 

Morgantown, WV 26501 

/jel 

34 FMSHRC Page 905
 

 

 

 

 

 

Federal Mine Safety and Health Review Commission
 

Office of Administrative Law Judges
 721 19th St., Suite 443
	

Denver, CO 80202-2500
	

Office: (303) 844-5266/Fax: (303) 844-5268
	

April 6, 2012 

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH : 

ADMINISTRATION (MSHA) : Docket No. LAKE 2008-422-M 

Petitioner, : A.C. No.: 11-03114-136 

: 

v. : 

: 

VOSS SAND WORKS, INC., : 

Respondent. : Mine: Portable Plant #1 

Appearances: Beau Ellis, Office of the Solicitor, U.S. Department of Labor, Denver, Colorado 

for Petitioner; 

Daniel P. Foltniewicz, Voss Sand Works, Inc., Wheaton, Illinois for Respondent. 

Before: Judge Miller 

ORDER GRANTING THE SECRETARY’S MOTION FOR SUMMARY DECISION 

ORDER TO PAY 

This case is before me upon a petition for assessment of 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. (the “Act”). The case involves three 104(a) citations issued to 

Voss Sand Works (“Voss”) on April 25, 2007. Voss has agreed to accept Citation Nos. 6186227 

and 6186228 as written and pay the associated penalties. Citation No. 6186226 remains at issue 

and is the subject of this order. 

On May 9, 2011, the Secretary of Labor (the “Secretary”) filed a Motion for Summary 

Decision (“Motion”) pursuant to Commission Procedural Rule 67, 29 C.F.R. § 2700.67. On May 

25, 2011, Voss filed a Response to Secretary’s Motion for Summary Decision (“Response”). 

Subsequently, the Secretary filed a Reply to Voss’s Response (“Reply”), which was then 

followed by Voss’s Surreply (“Surreply”). 

I. BACKGROUND 

On April 25, 2007, Inspector Jay Bell with the Department of Labor’s Mine Safety and 

Health Administration (“MSHA”) issued Citation No. 6186226 under section 104(a) of the Act 

alleging a violation of Section 56.11001, which requires that “[s]afe means of access shall be 

provided and maintained to all working places.” 30 C.F.R. § 56.11001. The citation alleges: 

34 FMSHRC Page 906
 

 

 

 

On the plants secondary work boat used to work on the pipeline 

and dredge, as well as the back up for the transportation to and 

from the dredge. Was not provided with any railings to include 

mid-rail, to keep a person from falling into the water should the 

boat shift for any reason while being worked on. The operator did 

have a lifejacket on when he went to operate the unit. If a man fell 

from the boat it could result in lost work days or restricted duty. 

Depending on how the man fell. Boat was in operation when the 

violation was cited. Boat is usually operated by one person. 

Inspector Bell determined that an injury or illness was unlikely to occur, but that any injury 

would result in lost workdays or restricted duty, that the violation was not significant and 

substantial (“S&S”), that one person would be affected, and that the violation was a result of 

moderate negligence on the part of the operator. The Secretary has proposed a penalty of 

$100.00 for this violation. 

On March 9, 2011, the Secretary filed a Motion to Amend Citation No. 6186226 and the 

Petition for Assessment of Penalty to Allege, in the Alternative, a Violation of 30 C.F.R. § 

56.11027 (“Motion to Amend). The Motion to Amend was granted by the Court on April 21, 

2011. Section 56.11027 provides, in pertinent part, that “working platforms shall be . . . 

provided with handrails[.]” 30 C.F.R. § 56.11027. 

II. STIPULATIONS 

The parties jointly stipulated to a number of key facts. The stipulations are as follows:1 

1.		 Voss Sand Works is the operator of the mine in this case, Mine ID 1103114. 

2.		 Voss Sand Works is a mine as that term is defined in the Mine Act. 

3.		 Voss Sand Works’ operation or the products of the mine enter commerce within the 

scope of the Mine Act. 

4.		 The Administrative Law Judge has subject matter and personal jurisdiction over the 

dispute in this case. 

5.		 On April 25, 2007, the Mine Safety and Health Administration (“MSHA”) inspected the 

Voss Sand Works, Portable #1 mine. 

6.		 MSHA Inspector Jay Bell was acting in his official capacity as an authorized 

representative of the Secretary when he inspected said mine. 

7.		 MSHA issued Citation No. 6186226 to Voss Sand Works on April 25, 2007, alleging a 

violation of 30 C.F.R. § 56.11001. 

8.		 The Secretary requested that she also be allowed to plead in the alternative a violation of 

30 C.F.R. § 56.11027. 

1 I note that Stipulation Nos. 10 and 11, while not included in the Secretary’s Motion, were 

included in Voss’ Response. The Secretary does not dispute those stipulations. I find that Voss 

has stipulated to such. 

34 FMSHRC Page 907
 

 

9.		 The equipment involved in this citation is a secondary work boat that can be seen in 

Exhibits G and H. 

10. At the time of inspection on April 25, 2007, this boat was used by Respondent to work on 

the pipeline and the dredge, as well as used as a source of transportation to and from 

working on the dredge pipeline. 

11. Citation No. 6186226 was terminated at 1:00 p.m. on April 26, 2007, after Voss Sand 

Works added a safety railing around the entire boat, and the violation was thereby abated. 

12. MSHA also issued Citation No. 6186227 to Voss Sand Works on April 25, 2007, alleging 

a violation of 30 C.F.R. § 56.4201(a)(2). 

13. Respondent no longer contests Citation No. 6186227 and agrees it has been proven for 

the purposes of this case. 

14. MSHA also issued Citation No. 6186228 to Voss Sand Works on April 25, 2007, alleging 

a violation of 30 C.F.R. § 56.20003(a). 

15. Respondent no longer contests Citation No. 6186228 and agrees it has been proven for 

the purposes of this case. 

16. The Respondent exercised good faith in timely abating all of the conditions cited as 

violations. 

17. MSHA’s penalty assessment is based upon the following and calculated pursuant to 30 

C.F.R. § 100.3: 

a.		 Mine Hours: 8,455 

b.		 Controller Hours: 15,045 

c.		 Number of Violations: 3 written individually 

d.		 Number of Inspection Days: 2 

e.		 Number of Repeat Violations: 0 

f.		 Number of Persons Affected: 1 

g.		 Mine Size Points: 1 

h.		 Controller Size Points: 0 

i.		 VPID Points: 0 

j.		 RPID Points: 0 

k.		 Negligence Points: 20 

l.		 Likelihood Points: 10 

m. Severity of Injury Points: 5 

n.		 Number of Persons Affected Points: 1 

o.		 Good Faith Points: 0 

p.		 Total Points: 37 

18. 30 C.F.R. § 100.3 provides that 37 assessed points result in the penalty of $112.00 for 

each of the three violations, totaling $336.00. With the 10% good faith reduction, the 

total penalty amount proposed by the Secretary for all three violations totals $300.00. 

19. Payment of the proposed penalty will not affect Voss Sand Works’ ability to continue in 

business. 

34 FMSHRC Page 908
 

 

 

III. BRIEF SUMMARY OF THE PARTIES’ ARGUMENTS
 

A. Secretary of Labor’s Motion for Summary Decision
	

The Secretary asserts that she is entitled to summary decision. She contends that the 

boat, also referred to as the “secondary work boat,” is both a “working platform [and working 

place] . . . used to work on the pipeline and the dredge, as well as for transportation [over the 

lake] to and from work on the dredge and pipe line.” Sec’y Mot. 5, 9. At the time the subject 

citation was issued, the boat did not have handrails of any kind. Id. at 5. 

The Secretary argues that, by failing to provide handrails of any kind on the boat, Voss 

violated Section 56.11001, which requires that “[s]afe means of access be maintained to all 

working places.” Id. at 6-7. The boat was designed and built “to carry miners from the dock to 

the dredge and pipe line” and “safe access would include a railing around the sides of the 

boat/platform.” Id. at 7. As support for her position, the Secretary cites Evansville Materials, 

Inc. in which a Commission judge determined that safe access was not provided because handholds were not available for miners to use when getting off of a ferry boat and onto a dredge 

deck. 12 FMSHRC 6, 14 (1990) (ALJ); Sec’y Mot. 7-8. Further, in Redland Genstar, Inc., a 

Commission judge found that an operator failed to provide safe access when a boat, which was 

used by the operator to transport employees to the dredge, was too heavy and sank. 19 

FMSHRC 442 (1997) (ALJ); Sec’y Mot. 8. 

Alternatively, the Secretary argues that Voss does not satisfy Section 56.11027, which 

requires that “working platforms shall be . . . provided with handrails.” Sec’y Mot. 6-7. She 

argues that the boat is a “working platform” and points to Judge Barbour’s decision in Rohloff 

Sand & Gravel Co. where he held that platforms near water should have handrails in situations 

were a miner could slip and fall into the water. 20 FMSHRC 868, 872 (1998) (ALJ); Sec’y Mot. 

8-9. 

The Secretary notes that both the originally cited standard and the alternatively cited 

standard are grouped in her regulations under the larger heading of “travelways,” which are 

defined as “a passage, walk or way regularly used and designated for person to go from one 

place to another.” 30 C.F.R. § 56.2; Sec’y Mot. 7. 

Finally, the Secretary argues that, based on the inspector’s findings regarding the criteria 

set forth in Section 110(i) of the Mine Act and Section 100 of the Secretary’s regulations, the 

proposed penalty of $100.00 is appropriate. Sec’y Mot. 9. 

B. Voss’ Response 

Voss argues that there are factual issues that must be resolved and that the Secretary is 

not entitled to summary decision. Voss Resp. 1. Specifically, Voss contends that the Secretary’s 

use of multiple standards raises factual questions. Id. at 1-2. Voss objects to the use of several 

different standards and argues that there is no standard that requires mid-rails or hand-holds to be 

34 FMSHRC Page 909
 

 

 

 

 

installed on boats. Id. at 7. Voss asks that the citation be vacated and the proposed penalty be 

dismissed. Id. 

Voss argues that a MSHA investigator previously asked Josh Voss, owner of Voss, about 

any problems with the secondary work boat and Voss responded that lifejackets were worn when 

working on the water. Id. at 5. Subsequently, when Inspector Bell wrote Citation No. 6186226 

he did not mention anything about a platform, so the secondary boat cannot be considered a 

platform. Id. at 5-6. Moreover, during a previous inspection, Kevin LeGrand, a MSHA field 

office supervisor observed the boat but did not issue a citation. Id. at 6. Case law points to the 

fact that MSHA inspectors have conceded that handholds and mid-rails are not required on a 

dredge. Fleniken’s Sand & Gravel, 10 FMSHRC 1509 (1988) (ALJ); Voss Resp. 6. In Fleniken, 

the ALJ found that, “if MSHA believes that such safety devices (mid-rails/hand holds) are 

necessary to prevent persons from falling off a dredge operating over water, it should promulgate 

standards covering this hazard.” Id. at 1517; Voss Resp. 6. Additionally, Voss points to the fact 

that, in Fleniken, the inspector’s interpretation of Section 56.15020 was that lifejackets were to 

be worn at all times when an employee is working on a dredge deck. Voss Resp. 6. 

Voss also points to APAC-Mississippi, Inc., 26 FMSHRC 811 (2004) (ALJ), where a 

walkway on a floating dredge had not been fixed with railings to prevent a person from walking, 

tripping or slipping into the water when traversing the walkway. There, the judge found that the 

Secretary’s evidence fell short of establishing that the cited area was a travelway. Id. at 812; 

Voss Resp. 7. 

Voss no longer contests Citation Nos. 6186227 and 6186228 and concedes that the 

penalties for those citations are appropriate. Voss Resp. 7. Voss requests Citation No 6186226 

be vacated and that “the Administrative Law Judge den[y] the proposed penalty.” Id. 

C. Secretary of Labor’s Reply 

Although Voss alleges that there are factual issues that still need to be resolved, Voss 

offers no information regarding the relevant facts that remain at issue. Sec’y Rep. 1. Voss 

contends that the Secretary’s use of different standards raises factual issues, however, that is not 

the case. Id. The Court has already granted the Secretary’s Motion to Amend Citation No. 

6186226 and Plead in the Alternative. Id. at 2. The Secretary can move to amend her petition at 

any time during the investigation. Id. at 3. An amendment is a procedural issue and “not a 

factual issue to be resolved.” Id. 

Voss’ argument that an inspector saw the secondary workboat during a prior inspection 

and did not cite it does not mean that a hazard did not exist at the time of the subject inspection. 

See Sunny Ridge Mining Co., 19 FMSHRC 254, 267-7 (1997) (ALJ) (citations omitted); Sec’y 

Rep. 3. Moreover, the other cases cited by Voss in support of its arguments are distinguishable 

from the matter at hand. Sec’y Rep. 3-4. 

34 FMSHRC Page 910
 

 

 

D. Voss’ Surreply. 

Voss again claims there are factual issues to be resolved. Voss Surr. 1. When the 

Secretary filed her Motion to Amend Citation No. 6186226, it was the third standard the 

Secretary used to address the alleged violation. Id. at 2. When Voss offered to settle the case, 

the Secretary responded by changing the standard. Id. Voss contends that the Secretary is using 

“procedural options” to find a violation for the condition. Id. Voss is at a disadvantage when 

another standard is used to fit the conduct. Id. Citation No. 6186226 should be vacated and the 

proposed penalty should be dismissed. Id. 

IV. DISCUSSION 

Commission’s Procedural Rule 67 sets forth the grounds for granting summary decision 

as follows: 

A motion for summary decision shall be granted only if the entire 

record, including the pleadings, depositions, answer to 

interrogatories, admissions, and affidavits, shows: 

(1) That there is no genuine issue as to any material fact; and 

(2) That the moving party is entitled to summary decision as a 

matter of law. 

29 C.F.R. § 2700.67. I find that there are no genuine issues as to any material fact and the 

Secretary is entitled to summary decision as a matter of law. While Voss does not stylize its 

Response or Surreply as a cross-motion for summary decision, I treat them as such given that the 

parties have submitted joint stipulations and that Voss argues that the citation should be vacated 

based on the evidence before me. Finally, I note that the parties have relied primarily on the 

decisions of other administrative law judges. While I am not bound by the decisions of other 

Commission judges, in appropriate circumstances I may be guided by those decisions. 

For organizational purposes, I first address Voss’ argument that the Secretary’s use of 

multiple legal standards raises genuine issues regarding material facts of this case. Voss 

maintains that there is a factual issue embedded in the alternative pleadings that needs to be 

resolved. Voss Rep. 2; Voss Surr. 2. I disagree with Voss, and agree with the Secretary, who 

stated in her Reply that, while Voss “believes ‘there are factual issues to be resolved,’ it offers no 

argument of the factual issues.” Sec’y Rep. 2 (citing Sec’y Resp. 1). The use of alternative 

standards in the context of this proceeding is a question of law that has already been answered. 

The Secretary properly filed a Motion to Amend Citation No. 6186226 and allege, in the 

alternative, a violation of 30 C.F.R. § 56.11027. On April 21, 2011, in granting the Secretary’s 

motion, Judge Biro held: 

The gravamen of the charge described in the text of Citation 

Number 618226 is the lack of any railings on Respondent’s work 

boat. The standard that the Secretary now seeks to allege 

34 FMSHRC Page 911
 

 

 

 

 

 

 

 

 

Respondent violated (30 C.F.R. 56.11027) more precisely specifies 

a legal requirement for handrails than the general “safe access” 

rules originally cited (30 C.F.R. § 56.11001). 

Order Granting Sec’y Mot. to Plead in the Alternative 4 (Apr. 21, 2011).2 I see no reason to 

disturb Judge Biro’s ruling and agree that the Secretary properly amended her petition and that 

the Respondent’s argument is without merit. Accordingly, I will first analyze the record in the 

context of the originally cited standard, Section 56.11001, and then in the context of the 

alternatively cited standard, Section 56.11027. 

Section 56.11001 requires that “[s]afe means of access shall be provided and maintained 

to all working places.” 30 C.F.R. § 56.11001. The Secretary’s regulations define “working 

place” to be “any place in or about a mine where work is being performed.” 30 C.F.R. § 56.2. It 

is undisputed that the secondary boat “was used by Respondent to work on the pipeline and the 

dredge, as well as being used as a source of transportation to and from working on the dredge 

pipe[]line.” Stip. 10. I find that both the boat and the dredge are working places. The 

stipulation makes clear that, at times, miners stood on the boat while working on the pipeline and 

dredge. Moreover, the statement that the boat was used to transport miners “to and from working 

on the dredge[,]” makes clear that work was also done while standing on the dredge itself. Id. 

(emphasis added). The standard requires that safe access be provided and maintained to all 

working places. While the facts do not reveal if there was safe access to the boat, it is clear that 

safe access to dredge, via the boat, was not provided. The boat provided the means of access to 

the dredge. While Section 56.11001 does not explicitly require handrails, “a reasonably prudent 

person familiar with the mining industry and the protective purposes of the standard” would 

certainly not expect the subject boat, which had no restraints to prevent a miner from falling off 

of the boat, to be considered a “safe means of access” to the dredge. See Ideal Cement Co., 12 

FMSHRC 2409, 2416 (Nov. 1990). The boat had no restraints to prevent a miner from falling 

off of the boat and, therefore, did not provide the safe access required by the Secretary’s 

regulation. While lifejackets do provide a measure of safety to prevent against drowning, they 

do not prevent a miner from falling off the boat and sustaining other types of injuries, e.g., 

striking their head on the side of the boat, dredge, pipeline, etc. I find that the undisputed 

material facts evidence a violation of 30 C.F.R. § 56.11001. 

Given that I have already found a violation of Section 56.11001, I need not address the 

Secretary’s alternative pleading. However, had the undisputed material facts not shown a 

violation of Section 56.11001, I nevertheless would have found a violation of Section 56.11027. 

Section 56.11027 requires, in pertinent part, that “working platforms shall be . . . provided with 

handrails[.].” 30 C.F.R. § 56.11027. The Secretary’s regulations do not define the term 

“working platform.” “In the absence of a statutory or regulatory definition of a term, the 

Commission applies the ordinary meaning of that term.” Twentymile Coal Co., 30 FMSHRC 

736, 750 (Aug. 2008). The dictionary defines “platform” as “a horizontal flat surface usu. higher 

than the adjoining area.” Webster’s New Collegiate Dictionary 873 (1979). Given that a 

“working place” is “any place in or about a mine where work is being performed,” 30 C.F.R. § 

2 On January 26, 2012, LAKE 2008-422-M was reassigned from Judge Biro to the undersigned 

judge. 

34 FMSHRC Page 912
 

 

 

 

 

56.2, logically, a “working platform” is any elevated, horizontal, flat surface in or about a mine 

where work is being performed. (emphasis added); 30 C.F.R. § 56.2; see also Empire Iron 

Mining, 19 FMSHRC 1912, 1920 (Dec. 1997) (ALJ). Again, it is undisputed that the boat “was 

used by Respondent to work on the pipeline and the dredge, as well as being used as a source of 

transportation to and from working on the dredge pipe[]line.” Stip. 10. The stipulation makes 

clear that miners stood on the boat while working on the pipeline and dredge. Moreover, it is 

undisputed that handrails were not provided on the boat. The only question that remains is 

whether the boat is a “platform.” I find that the boat is a platform. The photographs of the boat 

reveal that the deck was an elevated, horizontal, flat surface. Sec’y Mot. Exs. G and H. The 

boat’s deck was higher than the waterline. Moreover, while it is not clear how deep the water in 

the area was, obviously the boat’s deck was higher than the lake bed beneath the surface of the 

water. The boat had no restraints to prevent a miner from falling off of the boat and into the 

water. Given that the boat was a working platform, and that there were no handrails provided, 

the undisputed material facts evidence a violation of 30 C.F.R. § 56.11027. 

Voss argues that the secondary boat had not been cited during previous inspections and 

that, consequently, the citation should be vacated. However, this argument does not address the 

existence or nonexistence of this particular violation. Hazardous conditions can develop quickly, 

and an investigator may inadvertently overlook violative conditions. In short, even if the 

violation was not cited during previous MSHA inspections, it does not mean the hazard did not 

exist at the time the subject citation was issued. 

Voss cites two other Commission ALJ decisions for the proposition that a handrail was 

not needed on the boat, i.e., Fleniken’s Sand & Gravel and APAC Mississipi. However, as 

correctly pointed out by the Secretary, neither of these cases addresses the standards at issue. 

Consistent with the above analysis, I find that the Secretary has established a violation of 

Section 56.11001. 

V. CITATION NOS. 6186227 AND 6186228 

Voss has agreed to accept Citation Nos. 6186227 and 6186228 as written and pay the 

associated penalties. Accordingly, I assess the $100.00 penalties originally proposed by the 

Secretary for Citation Nos. 6186227 and 6186228. 

34 FMSHRC Page 913
 

 

 

 

 

 

 

VI. APPROPRIATE CIVIL PENALTY
 

Section 110(i) of the Act lists six criteria to be considered in determining appropriate 

civil penalties.3 Notably, Voss does not dispute the Secretary’s assessment of the penalty 

criteria. Rather, Voss only argues that the citation should be vacated and no penalty should be 

assessed. Voss Resp. 7. I have already found a violation of the originally cited standard. I 

accept the Secretary’s assessment of the penalty criteria and Voss’ stipulation that the proposed 

penalty will not affect its ability to continue in business. Stip. Nos. 17 and 19. I find that the 

Secretary’s proposed penalty of $100.00 is appropriate for Citation No. 6186226. 

VII. ORDER 

The Secretary’s motion for summary decision is GRANTED. Citation Nos. 6186226, 

6186227, and 6186228 are AFFIRMED in all respects. Voss is ORDERED TO PAY the 

secretary of Labor the sum of $300.00 within 30 days of the date of this decision. 

/s/ Margaret Miller 

Margaret Miller 

Administrative Law Judge 

Distribution: 

Beau Ellis, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 800, 

Denver, CO 80202-5708. 

Daniel P. Foltniewicz, Voss Sand Works, Inc., P.O. Box 5312, Wheaton, IL 60189. 

3 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). 

34 FMSHRC Page 914
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
 601 New Jersey Avenue, N.W., Suite 9500

Washington, D.C. 20001-2021

Telephone: (202) 434-9958

Fax: (202) 434-9949
 

April 12, 2012 

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH : 

ADMINISTRATION (MSHA), : Docket No. SE 2011-167 

Petitioner : A.C. No. 01-00851-237098 

v. :

 : 

OAK GROVE RESOURCES, LLC, : Mine: Oak Grove Mine 

Respondent : 

ORDER DENYING RESPONDENT’S MOTION FOR SUMMARY DECISION 

Before: Judge Zielinski 

This case is before me upon a Petition for Assessment of Penalty under section 105(d) of 

the Federal Mine Safety and Health Act of 1977. A Decision Approving Partial Settlement was 

entered on March 5, 2012, disposing of seven of the nine citations/orders at issue. Respondent 

has moved for summary decision as to the remaining citations, which allege violations of a 

safeguard issued to the Oak Grove Mine. The Secretary has opposed the motion. For the 

reasons stated below, Respondent’s motion is denied. 

Section 314(b) of the Act provides that “[o]ther safeguards adequate, in the judgment of 

an authorized representative of the Secretary, to minimize hazards with respect to transportation 

of men and materials shall be provided. 30 U.S.C. 874(b); see also 30 C.F.R. 75.1403 

(repeating verbatim section 314(b)). The Secretary has implemented section 314(b) by 

authorizing MSHA inspectors to issue safeguard notices on a mine-by-mine basis. To require a 

safeguard an inspector must identify a condition at the mine that presents a transportation hazard 

that is not addressed by an existing safety standard. He then issues a written safeguard notice to 

an operator specifying the safeguard the operator must provide and the operator is given a certain 

amount of time to comply. If the safeguard is not timely provided, or is not maintained 

thereafter, an inspector issues a citation to the operator pursuant to section 104 of the Act. 

The two violations remaining at issue, Citation Nos. 7696485 and 8518472, allege 

violations of Safeguard No. 2811430, which was issued to the Oak Grove Mine on November 

20, 1986, and states: 

The No. 20 personnel carrier was observed operating while not 

equipped with a well-maintained sanding device. This is a Notice 

to Provide Safeguards that all track-mounted personnel carriers 

shall be provided with a well-maintained fully operational sanding 

device. 

34 FMSHRC Page 915
Mot. Ex. 1. 

Citation No. 7696485 was issued at 5:00 p.m., on September 22, 2010, pursuant to 

section 104(a) of the Act. It alleges a violation of 30 C.F.R. § 75.1403-6(b)(3), and charges 

Respondent with failing to comply with Safeguard No. 2811430. The violation was described in 

the “Condition and Practice” section of the citation as follows: 

Three of the four sanders on the Co# 52 Brookville mantrip (s/n 9072) were not 

maintained and fully operational. This mantrip is capable of transporting 12 

miners. 

Mot. Ex. 2. 

Citation No. 8518472 was issued at 5:45 p.m., on September 22, 2010, pursuant to 

section 104(a) of the Act. It also alleges a violation of 30 C.F.R. § 75.1403-6(b)(3), and charges 

Respondent with failing to comply with Safeguard No. 2811430. The violation was described in 

the “Condition and Practice” section of the citation as follows: 

Each self-propelled personnel carrier should be equipped with properly installed 

and well-maintained sanding devices, except that personnel carriers (jitneys) 

which transport not more than 5 men, need not be equipped with such sanding 

device. Upon inspection of the c/n 57 (s/n 08403) Brookville diesel mantrip, the 

sanding devices (2) located on the south side of the manbus track location, did not 

function properly when tested. This mantrip is utilized to transport up to nine 

miners throughout the mine. 

Mot. Ex. 3. 

Oak Grove argues that the citations remaining at issue must be vacated because the 

subject safeguard fails to specifically identify the hazard it is intended to address and is, 

therefore, invalid. Oak Grove’s challenge is to the facial validity of the safeguard. There are no 

material facts in dispute as to the content of the safeguard or the allegations of the citations. 

Consequently, this facet of Oak Grove’s defense to the citations is appropriate for resolution by 

summary decision. 

The Validity of the Safeguard 

In Cyprus Cumberland Res. Corp., 19 FMSHRC 1781, 1784-85 (Nov. 1997), the 

Commission reiterated the law applicable to a determination of the validity of a safeguard. 

Under section 314(b) of the Mine Act, the Secretary may issue “[o]ther 

safeguards adequate, in the judgment of an authorized representative of the 

Secretary, to minimize hazards with respect to transportation of men and 

materials.” 30 U.S.C. § 874(b). In order to issue such a safeguard, an inspector, 

must determine that there exists an actual transportation hazard not covered by a 

34 FMSHRC Page 916
mandatory standard and that a safeguard is necessary to correct the hazardous 

condition. Southern Ohio Coal Co., 14 FMSHRC 1, 8 (January 1992). (SOCCO 

II). He must also specify the corrective measures an operator must take. The 

Commission reviews the Secretary’s issuance of a safeguard under an abuse of 

discretion standard. 

The inspector’s decision to issue a safeguard must be based upon “his evaluation of the 

specific conditions at a particular mine and on his determination that such conditions create a 

transportation hazard in need of correction.” SOCCO II, 14 FMSHRC at 11-12. A safeguard 

“must identify with specificity the nature of the hazard at which it is directed and the conduct 

required of the operator to remedy such hazard.” Southern Ohio Coal Co., 7 FMSHRC 509, 512 

(Apr. 1985) (SOCCO I). It is the Secretary’s burden to prove the validity of a safeguard. 

SOCCO II, 14 FMSHRC at 14-15. While the language of a safeguard, which may be issued 

without consulting with representatives of the operator, must be narrowly construed, the 

Secretary’s authority to issue a safeguard is interpreted broadly. Cyprus Cumberland, 

19 FMSHRC at 1785; SOCCO I, 7 FMSHRC at 12. 

Oak Grove argues that the safeguard “does not identify any hazard with specificity” and, 

therefore, fails to satisfy the SOCCO I requirement. Mot. at 2. It further asserts that the 

specificity requirement “demands that the hazard and the underlying condition be enumerated 

independent of one another.” Mot. at 3. Oak Grove closes its argument by asserting that the 

safeguard is invalid because it does not “address a hazard associated with this condition 

[personnel carrier not equipped with a well maintained fully operational sanding device] or 

indicate that the cited condition would lead to an event that would create danger to miners.” 

Mot. at 4. 

The Secretary contends that the SOCCO I requirements are satisfied because the 

safeguard specifies the nature of the hazard at which it is directed; i.e., a personnel carrier 

operating without a well maintained sanding device. Opp. at 2. As to Respondent’s assertion 

that the safeguard fails to indicate that the condition or hazard would lead to an event that would 

create danger to miners, she argues that there is no such requirement. 

In that Oak Grove’s argument is directed to the validity of the safeguard, it is a challenge 

to the exercise of the Secretary’s broad discretion in issuing safeguards. Here, as the Secretary 

asserts, the subject safeguard identifies the nature of the hazard to which it is directed, i.e., a 

personnel carrier without a well maintained sanding device. Track-mounted personnel carriers 

transporting six or more men that are not equipped with a properly functioning sanding device to 

increase the friction between the carrier’s wheels and the track may not have sufficient braking 

power to avoid derailments, collisions, or a host of similar events that could result in serious 

injuries to miners. Neither that obvious fact, nor the various potential scenarios in which 

operation of such a carrier might put miners in danger, need be spelled out in the safeguard itself. 

The statement of the nature of the hazard set forth in safeguard no. 2811430 is sufficient to 

defeat Oak Grove’s attack on its facial validity under the abuse of discretion test. 

34 FMSHRC Page 917
 

 

Oak Grove’s arguments are based on an overly technical reading of SOCCO I, which, if 

applied as Oak Grove and other operators raising similar arguments would have it, would no 

doubt invalidate a substantial percentage of safeguards that have been issued in the 40-plus years 

that the standard has been enforced.1 As noted above, the Secretary’s authority to issue a 

safeguard is interpreted broadly. Only in interpreting the requirements of a safeguard is the strict 

construction standard applicable. 

As the Commission has repeatedly emphasized, the fact that safeguards are issued by 

individual inspectors without consulting with representatives of the operator dictates that 

additional protections from arbitrary enforcement must be afforded to mine operators. See Wolf 

Run Mining Co. v. FMSHRC, 659 F.3d 1197, 1202 (D.C.Cir. 2011) citing SOCCO I and SOCCO 

II. The Secretary must establish the validity of the safeguard by proving that it is based upon 

conditions at the mine that present a transportation hazard to which the safeguard is directed. If 

found valid, safeguards are interpreted based upon “a narrow construction of the terms of the 

safeguard and its intended reach.” (SOCCO I), 7 FMSHRC at 512. The rejection of Oak Grove’s 

“statement of hazard” argument deprives it of none of the protections to which operators are 

entitled. 

Oak Grove relies only on its technical hazard argument in challenging the validity of the 

safeguard. It does not claim that the alleged failure to independently specify the nature of the 

hazard renders the requirements of the safeguard ambiguous. Nor could it, because the 

safeguard’s requirement, which the mine has operated under for more than 25 years, is quite 

clear - all track-mounted personnel carriers [that transport six or more men] shall be provided 

with a well-maintained fully operational sanding device.2 

1 1 Similar arguments have been raised and rejected in other cases. See American Coal Co., 

33 FMSHRC 2511, 2515-16 (Oct. 2011) (ALJ Zielinski); Docket No. LAKE 2001-171, et. al., 

Order Denying the American Coal Company’s Motion for Summary Decision, December 17, 

2010 (ALJ Manning); Docket No. LAKE 2007-139, et al., Order Denying Respondent’s Motion 

for Summary Decision, September 20, 2010 (ALJ Miller). But see Oak Grove Resources LLC, 

33 FMSHRC 846 (Mar. 2011) (ALJ Moran) petition for review granted. 

2 22 Section 75.1403-6(b)(3) itemizes guidelines, or “criteria,” for safeguards covering selfpropelled personnel carriers, and provides that track-mounted personnel carriers that transport 

five or fewer men need not be equipped with a sanding device. Although that restriction is not 

spelled out in safeguard no. 2811430, it apparently has been considered in interpreting the 

safeguard. The two citations at issue involve personnel carriers that transport six or more men. 

34 FMSHRC Page 918
ORDER 

I find that safeguard no. 2811430 adequately specifies the nature of the hazard it is 

intended to address, and that issuance of the safeguard was appropriate under the Secretary’s 

broad discretion. Accordingly, Respondent’s Motion for Summary Decision is DENIED. 

/s/ Michael E. Zielinski 

Michael E. Zielinski 

Senior Administrative Law Judge 

Distribution: 

Jennifer Booth Thomas, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church 

Street, Suite 230, Nashville, TN 37219-2456 

R. Henry Moore, Esq., Jackson Kelly, PLLC, Three Gateway Center, Suite 1340, 

401 Liberty Avenue, Pittsburgh, PA 15222 

34 FMSHRC Page 919
 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
 601 NEW JERSEY AVENUE N. W., SUITE 9500
 

WASHINGTON, D.C. 20001
 

(202) 434-9933

 April 13, 2012 

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING

 MINE SAFETY AND HEALTH :

 ADMINISTRATION, (MSHA), : Docket No. VA 2011-678 

Petitioner : A.C. No. 44-07087-262629 A

 : 

v. :

 : 

STEPHEN M. REASOR, employed by : Mine No 2

 BIG LAUREL MINING CORPORATION : 

Respondent : 

ORDER ON MOTION TO DISMISS 

Respondent, Stephen M. Reasor, through Counsel, seeks an Order dismissing the 

Secretary’s Petition on the grounds that the Secretary “failed to act in a timely manner to 

prosecute her claim.” Motion at 1. The events leading up to this matter began with an accident 

at the mine on August 20, 2009. Respondent relates that Orders were then issued to the mine on 

or about January 14, 2010 and terminated the same day. Thereafter, on or about August 8, 2011, 

the Secretary notified Mr. Reasor that she intended to propose a penalty against him under 

section 110(c) of the Mine Act. 

Citing section 105(a) of the Mine Act, Respondent notes that it provides that when the 

Secretary has issued a citation or order, within a reasonable time after the termination of the 

related inspection or investigation, the Secretary is to notify the respondent of the proposed 

penalty for such violation.1

 Respondent contends that, as a matter of law, because the proposed 

penalty was issued nearly two years after the accident which precipitated these events, prejudice 

inherently resulted. Respondent cites, “the facts that memories grow dim with the passage of 

time, the potential of unavailable witnesses and lost evidence demonstrates actual prejudice to 

Mr. Reasor, the accused, who becomes less able to present a viable defense thus shifting the 

advantage unfairly to the government.” Motion at 2. 

Analogizing a section 110(c) matter to a criminal proceeding, Respondent asserts that fair 

play and due process concepts “must be even more carefully protected. Id., citing two 

1

 The parties agree that, per section 105(a), the “reasonable time” requirement is triggered 

only after MSHA completes its investigation. There is also no dispute that the MSHA 

investigation was concluded on January 14, 2010. 

34 FMSHRC Page 920
administrative law judge decisions.2

 (emphasis in motion). 

The Secretary filed a “Reply” 3

 to the Respondent’s Motion, arguing, on several grounds, 

that the assessments here were issued within a “reasonable time.”4 The Secretary first notes that, 

following MSHA’s investigation of the fatal accident at the mine, its section 110(c) investigation 

continued. The Secretary observes that the Commission itself has acknowledged that the 

Agency’s increased enforcement efforts, coupled with a concomitant increase in matters being 

contested by mine operators, has led to longer times for the Agency to process matters of all 

sorts. 

The Secretary also contends that, even if one uses the different, longer, time frame 

measure suggested by the Respondent, its efforts were still completed within a reasonable time. 

This contention is based on the “deliberate and careful investigation” MSHA must carry out, a 

responsibility it considers to be more significant where an individual is the subject of the 

investigation. Reply at 2-3. 

Turning to Chevron USA, Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 

(1984), (“Chevron”), the Secretary also states that its interpretation of the “reasonable time” 

provision is due deference and it notes that in Sec’y of Labor v. Twentymile Coal Co., 411 F.3d 

256, 261 (D.C. Cir. 2005), that court concluded that the Secretary’s interpretation of “reasonable 

2

 No Commission decisions were cited. Decisions by administrative law judges have no 

precedential effect. Their value is to the extent that reasoning in such decisions is persuasive. 

Respondent cited Sec. v. Cox, 19 FMSHRC 1094 (June 1997) and Sec. v. Morgan, 20 FMSHRC 

38 (Jan. 1998). The Court examined the cited cases and notes that Morgan acknowledges that 

each case must be decided on its own facts, while in Cox documents were missing, a key witness 

had died and other witnesses had left the company. Here, the Court is ruling on the motion 

based on the facts as they now stand. Further, there are no “Cox” type facts presented at this 

point. 

3

 While the Secretary described its reaction as a “Reply” to the motion, the Commission’s 

Rules describe it as a “statement in opposition.” 29 C.F.R. 2700.10(d). The term “reply” seems 

to be most appropriately applied, not to the reaction to a motion, but to the document filed by the 

moving party in reaction to a response. Accordingly, it is a “response” that is filed to a motion 

and a “reply” may follow, usually upon leave of court, to the response. See, for e.g., Sicherman 

v. Nationwide Life Ins. Co., Slip Copy, 2012 WL 1122074, E.D.Pa.,2012, April 04, 2012, U.S. v. 

Basham, Slip Copy, 2012 WL 1130657, D.S.C.,2012, April 04, 2012, noting that Basham filed a 

response to the government’s motion, that the government then filed a reply, and that Basham 

then filed a surreply. 

4

 There is no disagreement about the relevant dates; the contentions here pertain to 

whether, given the agreed upon time frames, the assessments were issued within a “reasonable 

time.” 

34 FMSHRC Page 921
 

 

time” was afforded deference where a 17 month span had elapsed.5 

Moving to a different basis of defense to the motion, the Secretary contends that, even if 

one were to assume that the time frame was not reasonable, dismissal would not be the 

appropriate remedy. Reply at 5, citing Brock v. Pierce County, 476 U.S. 253, 265 (1986), 

a case which dealt with a Comprehensive Employment and Training Act matter. There, the 

Supreme Court viewed a 120 day time period as intending “to spur the Secretary to action, not 

limit the scope of his authority.” Reply at 6. Thus, finding no case contradicting that tenet, the 

Secretary asserts that, absent an express statement from Congress that precludes government 

action after a time period expires, the government should not be precluded from acting on that 

basis alone. Supporting this view, the Secretary observes that Congress did not include any 

consequence for failing to complete an investigation within a reasonable time. Id. at 7. In fact, 

the contrary conclusion was indicated in the Mine Act’s legislative history.6 

The Secretary’s Reply goes on to present additional reasons why the Respondent’s 

Motion should be denied.7 It notes that a contrary conclusion would effectively amount to a 

windfall to the Respondent. Id. at 10. The Court agrees that, within the four corners of 

Respondent’s Motion, granting it would amount to a windfall. 

Last, the Secretary maintains that, even if it were assumed that a penalty could be 

avoided on the basis that MSHA did not act within a reasonable time, prejudice must exist from 

the delay. While citing a host of cases in support of that principle under other Acts, the Secretary 

notes that, in an apt analogy, the Commission itself has endorsed that approach. In Sec’y of 

Labor v. Old Dominion Power Co., 6 FMSHRC 1886 (1984), rev’d on other grounds, 772 F.2d 

92 (4th Cir. 1985), it addressed the mine operator’s “reasonable promptness” argument, observing 

that the mine had not shown any prejudice from the delay and further noting its full awareness 

5

 The Secretary notes that, then Chairman Duffy, in a concurring opinion, stated in Sec’y 

v. Marfork Coal, 29 FMSHRC 626, 637-638 n. 10 (2007), that it was for the Secretary to 

determine a reasonable time for purposes of section 105(a). Reply at 5. 

6

 The Secretary cites in this regard S. Rep. No. 95-181, 95th Cong., 1st Sess. 34, reprinted 

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

Legislative History of the Federal Mine Safety and Health Act of 1977, at 622 (1978). Reply at 

8. 

7

 Briefly summarized, these assert that the Act contemplates a civil penalty is to be 

imposed for every violation, and that there is no exclusion from this principle simply because the 

penalty is being assessed against an individual. Reply at 8-10. Viewing the criteria for the 

assessment of a civil penalty as the sole criteria to be weighed, the Secretary submits that the 

Commission cannot graft on to those criteria, the idea that the civil penalty can be eliminated in 

order to coerce the Secretary into acting more promptly in the future. Reply at 10. The Court 

agrees with this point but notes again that the Respondent is not barred from asserting defenses 

at a hearing demonstrating that government inaction has harmed his defenses in a tangible way. 

34 FMSHRC Page 922
 

since the miner’s fatal accident.8 

FURTHER DISCUSSION. 

As the Secretary has noted, using two years as the time frame to assess whether MSHA 

issued its proposed civil penalty, per section 105(a) of the Mine Act, within a reasonable time is 

an incorrect measure because the starting point is after the termination of the pertinent inspection 

or investigation. Here, that means after January 14, 2010. Accordingly, the “two year” time 

frame becomes 1 year 7 months and 1 week. More significant, in terms of the jeopardy one faces 

under a section 110(c) proceeding, than either of these measures, is that Mr. Reasor was notified 

only 9 months after the orders were issued that he was being considered for a penalty under that 

8

 Consistent with its obligations as an officer of the court, the Secretary acknowledges 

case law adverse to its position. The Court lauds the Secretary’s high ethics approach. She 

notes that in Sec’y of Labor v. Steele Branch Mining, 18 FMSHRC 6, 14 (1996)(Steele Branch), 

which case adopted a two-step analysis articulated in Sec’y of Labor v. Rhone-Poulenc of 

Wyoming Co., 15 FMSHRC 2089, 2092-93 (1993) (Rhone-Poulenc) , aff’d on other grounds, 57 

F.3d 982 (10th Cir. 1995), the Commission expressed that the issue of prejudice should be 

examined only after adequate cause for the delay has been established. The Court has examined 

these cases but does not come away with the same perspective as the Secretary about their 

import. To begin, in Steele Branch the problem was an unavailable MSHA witness. The 

Commission stated that its examination looks at “the reason of the delay and whether the delay 

prejudiced the operator.” Not only did the operator fail to show any prejudice, but the 

Commission took “official notice . . . of the Secretary’s unusually high caseload in 1992, and the 

resultant delay it caused in the penalty proposal process.” If that could be said then, the principle 

applies a fortiori now, with Congress having allotted significant additional funds to MSHA’s 

budget, and the Commission’s, to deal with such matters. In Rhone-Poulenc, the Tenth Circuit, 

in upholding the Commission found that adequate cause was shown for the Secretary’s late 

filing of a proposed civil penalty. It too noted the Commission’s recognition of high workload 

coupled with insufficient staff as grounds establishing adequate cause. Although it is true that 

the Commission spoke of a necessity to show adequate cause for a delay and indicated that if that 

is not shown, a dismissal could be shown, regardless of whether the mine operator demonstrated 

prejudice, it is noteworthy that the Tenth Circuit, noting the Secretary’s position that prejudice 

must be shown, decided it was unnecessary to reach that question. 57 F.3d at *984. It is also 

worth pointing out that the Commission did not state in any absolute fashion that prejudice is not 

part of the conversation, as it observed that “even if the Secretary provides an adequate reason 

for the delay, dismissal my be warranted if the operator demonstrates that it was prejudiced by 

the . . . delay in filing.” 15 FMSHRC 2089 at *2094. It went on to note that claiming “inherent 

prejudice” from a delay is insufficient as there must be factual basis to support a claim of 

prejudice. Id. In any event, the Court finds here that the Secretary has established adequate 

cause for its delay. 

34 FMSHRC Page 923
provision.9

 Thus, in terms of any concerns about fair play and due process, Mr. Reasor had 

actual knowledge as to what the Agency was considering for him in short order. Any prudent 

individual would be about preparing defenses from that time forward, as opposed to waiting to 

see if delay by MSHA could constitute a bar to its action. In the same vein, a prudent person, 

aware of MSHA’s intentions, would be gathering evidence related to the events and talking with 

potential witnesses to guard against memories dimming.10 

Accordingly, based on the foregoing, the Court concludes that, measured in the context 

of the large number of contested cases and the immense backlog which developed in connection 

with that, the Secretary has acted within a reasonable time. Further, Respondent Reasor has 

presented no evidence of any actual prejudice from the delay. Therefore, the Motion to Dismiss 

is DENIED. 

While the motion has been ruled upon, none of the foregoing suggests at all that the 

“reasonable time” provision is meaningless. To the contrary, as the Court has indicated, Mr. 

Reasor will be able to present evidence that the delay prejudiced his defense, but this will have 

to be in a real, not a speculative, or presumptive, manner. 

/s/ William B. Moran 

William B. Moran 

Administrative Law Judge 

9

 As noted, MSHA completed its investigation into the fatality on January 14, 2010. 

Significantly, Respondent Reasor was notified by certified letter, dated October 14, 2010, that 

MSHA was proposing to issue an individual civil penalty against him. Thus, Mr. Reasor had 

actual knowledge that MSHA was considering the individual action against him as of that date, 

nine months after its investigation was finished. Reply at 3, n. 1. 

10 Notwithstanding that observation, the Court notes again that, as the burden of proof 

remains with the government, there is nothing to prevent the Respondent from asserting defenses 

at any hearing which may ensue, relating to lost evidence, as well as to witnesses who have 

become unavailable or whose memories have faded through time 

34 FMSHRC Page 924
Distribution: 

A. Scott Hecker, Esq. 

Office of the Solicitor 

1100 Wilson Boulevard 

22nd Floor West 

Arlington, VA 22209-2247 

William E. Bradshaw, P.C., Esq. 

302 Shawnee Avenue 

P.O. Box 267 

Big Stone Gap, VA 24219 

34 FMSHRC Page 925
 

 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
 601 NEW JERSEY AVENUE N. W., SUITE 9500
 

WASHINGTON, D.C. 20001
 

(202) 434-9933

 April 13, 2012 

SECRETARY OF LABOR,

 MINE SAFETY AND HEALTH

 : 

:

CIVIL PENALTY PROCEEDING

 ADMINISTRATION, (MSHA),

Petitioner

 : 

: 

Docket No. VA 2011-680 

A.C. No. 44-07087-262627 A

 : 

v. :

 : 

ROBERT J. SILCOX, employed by

BIG LAUREL MINING CORPORATION, 

Respondent

 : 

: 

: 

Mine No 2 

ORDER ON MOTION TO DISMISS 

Respondent, Robert J. Silcox, through Counsel, seeks an Order dismissing the 

Secretary’s Petition on the grounds that the Secretary “failed to act in a timely manner.” Motion 

at 1. 

The events leading up to this matter began with an accident at the mine on or about August 19, 

2009. Respondent relates that MSHA’s accident report was completed and Orders were issued1 

to the mine, with both those events occurring on or about January 14, 2010. The Orders were 

then terminated that same day. Thereafter, on or about August 8, 2011, the Secretary notified 

Mr. Silcox that she intended to propose a penalty against him under section 110(c) of the Mine 

Act. 

Citing section 105(a) of the Mine Act, Respondent notes that it provides that when the 

Secretary has issued a citation or order, within a reasonable time after the termination of the 

related inspection or investigation, the Secretary is to notify the respondent of the proposed 

penalty for such violation.2

 Respondent contends that, as a matter of law, because the proposed 

penalty was issued nearly two years after the accident which precipitated these events, prejudice 

inherently resulted. Respondent urges that “[b]ecause memories grow dim with the passage of 

time and witnesses disappear, the accused becomes less able to present a defense and the 

advantage shifts to the government. Prejudice in such a situation is inherent.” Motion at 2. 

1

 The Orders were identified as numbers 8158868 and 8158998-8159001. Motion at 1. 

2

 The parties agree that, per section 105(a), the “reasonable time” requirement is triggered 

only after MSHA completes its investigation. There is also no dispute that the MSHA 

investigation was concluded on January 14, 2010. 

34 FMSHRC Page 926
Analogizing a section 110(c) matter to a criminal proceeding, Respondent asserts that fair 

play and due process concepts “must be even more carefully protected.” Id., citing 

administrative law judge decisions.3

 (emphasis in motion). 

The Secretary filed a “Reply” 4 to the Respondent’s Motion, arguing, on several grounds, 

that the assessments here were issued within a “reasonable time.”5 The Secretary first notes that, 

following MSHA’s investigation of the fatal accident at the mine, its section 110(c) investigation 

continued. The Secretary observes that the Commission itself has acknowledged that the 

Agency’s increased enforcement efforts, coupled with a concomitant increase in matters being 

contested by mine operators, has led to longer times for the Agency to process matters of all 

sorts. The Secretary also contends that, even if one uses the different, longer, time frame 

measure suggested by the Respondent, its efforts were still completed within a reasonable time. 

This contention is based on the “deliberate and careful investigation” MSHA must carry out, a 

responsibility it considers to be more significant where an individual is the subject of the 

investigation. Reply at 3-4. 

3

 No Commission decisions were cited. Decisions by administrative law judges have no 

precedential effect. Their value is to the extent that reasoning in such decisions is persuasive. 

Respondent cited Sec. v. Cox, 19 FMSHRC 1094 (June 1997) and Sec. v. Morgan, 20 FMSHRC 

38 (Jan. 1998). The Court examined the cited cases and notes that Morgan acknowledges that 

each case must be decided on its own facts, while in Cox documents were missing, a key witness 

had died and other witnesses had left the company. 

4

 While the Secretary described its reaction as a “Reply” to the motion, the Commission’s 

Rules describe it as a “statement in opposition.” 29 C.F.R. 2700.10(d). The term “reply” seems 

to be most appropriately applied, not to the reaction to a motion, but to the document filef by the 

moving party in reaction to a response. Accordingly, it is a “response” that is filed to a motion 

and a “reply” may follow, usually upon leave of court, to the response. See, for e.g., Sicherman 

v. Nationwide Life Ins. Co., Slip Copy, 2012 WL 1122074, E.D.Pa.,2012, April 04, 2012, U.S. v. 

Basham, Slip Copy, 2012 WL 1130657, D.S.C.,2012, April 04, 2012, noting that Basham filed a 

response to the government’s motion, that the government then filed a reply, and that Basham 

then filed a surreply. 

5

 There is no disagreement about the relevant dates; the contentions here pertain to 

whether, given the agreed upon time frames, the assessments were issued within a “reasonable 

time.” 

34 FMSHRC Page 927
 

7XUQLQJWR&KHYURQ86$,QFY1DWXUDO5HVRXUFHV'HIHQVH&RXQFLO,QF86

(1984), (“Chevron”), the Secretary also states that its interpretation of the “reasonable time” 

provision is due deference and it notes that in Sec’y of Labor v. Twentymile Coal Co., 411 F.3d 

256, 261 (D.C. Cir. 2005), that court concluded that the Secretary’s interpretation of “reasonable 

time” was afforded deference where a 17 month span had elapsed.6 

Moving to a different basis of defense to the motion, the Secretary contends that, even if 

one were to assume that the time frame was not reasonable, dismissal would not be the 

appropriate remedy. Reply at 5. Citing Brock v. Pierce County, 476 U.S. 253, 265 (1986), 

a case which dealt with a Comprehensive Employment and Training Act matter. There, the 

Supreme Court viewed a 120 day time period as intending “to spur the Secretary to action, not 

limit the scope of his authority.” Reply at 6. Thus, finding no case contradicting that tenet, the 

Secretary asserts that, absent an express statement from Congress that precludes government 

action after a time period expires, the government should not be precluded from acting on that 

basis alone. Supporting this view, the Secretary observes that Congress did not include any 

consequence for failing to complete an investigation within a reasonable time. Id. at 7. In fact, 

the contrary conclusion was indicated in the Mine Act’s legislative history.7 

The Secretary’s Reply goes on to present additional reasons why the Respondent’s 

Motion should be denied.8 It notes that a contrary conclusion would effectively amount to a 

windfall to the Respondent. Id. at 11. The Court agrees that, within the four corners of 

Respondent’s Motion, granting it would amount to a windfall. 

Last, the Secretary observes that, even if it were assumed that a penalty could be avoided 

on the basis that MSHA did not act within a reasonable time, prejudice must exist from the 

delay. While citing a host of cases in support of that principle under other Acts, the Secretary 

notes that, in an apt analogy, the Commission itself has endorsed that approach. In Sec’y of 

6

 The Secretary notes that, then Chairman Duffy, in a concurring opinion, stated in Sec’y 

v. Marfork Coal, 29 FMSHRC 626, 637-638 n. 10 (2007), that it was for the Secretary to 

determine a reasonable time for purposes of section 105(a). Reply at 5. 

7

 The Secretary cites in this regard S. Rep. No. 95-181, 95th Cong., 1st Sess. 34, reprinted 

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

Legislative History of the Federal Mine Safety and Health Act of 1977, at 622 (1978). Reply at 8. 

8

 Briefly summarized, these assert that the Act contemplates a civil penalty is to be 

imposed for every violation, and that there is no exclusion from this principle simply because the 

penalty is being assessed against an individual. Reply at 8-10. Viewing the criteria for the 

assessment of a civil penalty as the sole criteria to be weighed, the Secretary submits that the 

Commission cannot graft on to those criteria, the idea that the civil penalty can be eliminated in 

order to coerce the Secretary into acting more promptly in the future. Reply at 10. The Court 

agrees with this point but notes again that the Respondent is not barred from asserting defenses 

at a hearing demonstrating that government inaction has harmed his defenses in a tangible way. 

34 FMSHRC Page 928
 

Labor v. Old Dominion Power Co., 6 FMSHRC 1886 (1984), rev’d on other grounds, 772 F.2d 

92 (4th Cir. 1985), it addressed the mine operator’s “reasonable promptness” argument, observing 

that the mine had not shown any prejudice from the delay and further noting its full awareness 

since the miner’s fatal accident.9 

FURTHER DISCUSSION. 

As the Secretary has noted, using two years as the time frame to assess whether MSHA 

issued its proposed civil penalty, per section 105(a) of the Mine Act, within a reasonable time is 

an incorrect measure because the starting point is after the termination of the pertinent inspection 

or investigation. Here, that means after January 14, 2010. Accordingly, the “two year” time 

frame becomes 1 year 7 months and 1 week. More significant, in terms of the jeopardy one faces 

under a section 110(c) proceeding, than either of these measures, is that Mr. Silcox was notified 

9

 Consistent with its obligations as an officer of the court, the Secretary acknowledges 

case law adverse to its position. The Court lauds the Secretary’s high ethics approach. She 

notes that in Sec’y of Labor v. Steele Branch Mining, 18 FMSHRC 6, 14 (1996)(Steele Branch), 

which case adopted a two-step analysis articulated in Sec’y of Labor v. Rhone-Poulenc of 

Wyoming Co., 15 FMSHRC 2089, 2092-93 (1993) (Rhone-Poulenc) , aff’d on other grounds, 57 

F.3d 982 (10th Cir. 1995), the Commission expressed that the issue of prejudice should be 

examined only after adequate cause for the delay has been established. Reply at 14. The Court 

has examined these cases but does not come away with the same perspective as the Secretary 

about their import. To begin, in Steele Branch the problem was an unavailable MSHA witness. 

The Commission stated that its examination looks at “the reason of the delay and whether the 

delay prejudiced the operator.” Not only did the operator fail to show any prejudice, but the 

Commission took “official notice . . . of the Secretary’s unusually high caseload in 1992, and the 

resultant delay it caused in the penalty proposal process.” If that could be said then, the principle 

applies a fortiori now, with Congress having allotted significant additional funds to MSHA’s 

budget, and the Commission’s, to deal with such matters. In Rhone-Poulenc, the Tenth Circuit, 

in upholding the Commission found that adequate cause was shown for the Secretary’s late 

filing of a proposed civil penalty. It too noted the Commission’s recognition of high workload 

coupled with insufficient staff as grounds establishing adequate cause. Although it is true that 

the Commission spoke of a necessity to show adequate cause for a delay and indicated that if that 

is not shown, a dismissal could be shown, regardless of whether the mine operator demonstrated 

prejudice, it is noteworthy that the Tenth Circuit, noting the Secretary’s position that prejudice 

must be shown, decided it was unnecessary to reach that question. 57 F.3d at *984. It is also 

worth pointing out that the Commission did not state in any absolute fashion that prejudice is not 

part of the conversation, as it observed that “even if the Secretary provides an adequate reason 

for the delay, dismissal my be warranted if the operator demonstrates that it was prejudiced by 

the . . . delay in filing.” 15 FMSHRC 2089 at *2094. It went on to note that claiming “inherent 

prejudice” from a delay is insufficient as there must be factual basis to support a claim of 

prejudice. Id. In any event, the Court finds here that the Secretary has established adequate 

cause for its delay. 

34 FMSHRC Page 929
 

about five months after the orders were issued that he was being considered for a penalty under 

that provision.10 Thus, in terms of any concerns about fair play and due process, Mr. Silcox had 

actual knowledge as to what the Agency was considering for him in short order. Any prudent 

individual would be about preparing defenses from that time forward, as opposed to waiting to 

see if delay by MSHA could constitute a bar to its action. In the same vein, a prudent person, 

aware of MSHA’s intentions, would be gathering evidence related to the events, and talking with 

potential witnesses to guard against memories dimming.11 

Accordingly, based on the foregoing, the Court concludes that, measured in the context 

of the large number of contested cases and the immense backlog which developed in connection 

with that, the Secretary has acted within a reasonable time. Further, Respondent Silcox has 

presented no evidence of any actual prejudice from the delay. Therefore, the Motion to Dismiss 

is DENIED. 

While the motion has been ruled upon, none of the foregoing suggests at all that the 

“reasonable time” provision is meaningless. To the contrary, as the Court has indicated, Mr. 

Silcox will be able to present evidence that the delay prejudiced his defense, but this will have to 

be in a real, not a speculative, or presumptive, manner. 

/s/ William B. Moran 

William B. Moran 

Administrative Law Judge 

10 As noted, MSHA completed its investigation into the fatality on January 14, 2010. 

Significantly, Respondent Silcox was notified by certified letter, dated June 21, 2010, that 

MSHA was proposing to issue an individual civil penalty against him. Thus, Mr. Silcox had 

actual knowledge that MSHA was considering the individual action against him as of that date, 

about five months after its investigation was finished. Reply at 3, and n. 1. 

11 Notwithstanding that observation, the Court also notes that, as the burden of proof 

remains with the government, there is nothing to prevent the Respondent from asserting defenses 

at any hearing which may ensue, relating to lost evidence, and witnesses who have become 

unavailable or whose memories have faded through time 

34 FMSHRC Page 930
Distribution: 

A. Scott Hecker, Esq. 

Office of the Solicitor 

1100 Wilson Boulevard 

22nd Floor West 

Arlington, VA 22209-2247 

Patrick F. Nash, Esq. 

Attorney at Law 

129 West Short Street 

Lexington, Kentucky 40507 

34 FMSHRC Page 931
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

Office of Administrative Law Judges
 

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

Washington, D.C. 20001
 

April 20, 2012 

JIM WALTER RESOURCES, INC., : CONTEST PROCEEDING 

Contestant, : 

v. : Docket No. SE 2010-581-R 

: Order No. 6698547; 02/18/2010 

SECRETARY OF LABOR, : 

MINE SAFETY AND HEALTH : 

ADMINISTRATION (MSHA), : Mine ID 01-01401 

Respondent. : No. 7 Mine 

: 

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH : 

ADMINISTRATION (MSHA), : Docket No. SE 2010-760 

Petitioner, :	 A.C. No. 01-01401-215760 

v.	 : 

: 

JIM WALTER RESOURCES, INC.,	 : 

Respondent. : Mine: No. 7 Mine 

ORDER GRANTING MOTION TO AMEND 

ORDER DENYING MOTION FOR PARTIAL SUMMARY DECISION 

This case is before upon the Notice of Contest of Jim Walter Resources, Inc. (“JWR”), 

and the Secretary’s Petition for the Assessment of Civil Penalty pursuant to section 105 of the 

Federal Mine Safety and Health Act of 1977 (“Mine Act”). 30 U.S.C. § 815. On January 19, 

2012, I issued my Notice of Hearing and Order to File Prehearing Report scheduling this matter 

for hearing on May 1 and 2, 2012. Two pretrial issues are before me. First, the Secretary filed 

her Motion to Amend to Cite Standard in the Alternative on December 16, 2011 (“Motion to 

Amend”). On April 16, 2012, the Secretary renewed her Motion by filing her Amended Motion 

to Amend to Cite Standard in the Alternative (“Amended Motion to Amend”).1

 JWR did not 

submit responses to either of the Secretary’s Motions. 

The second issue before me is Contestant JWR’s April 5, 2012, Motion for Partial 

Summary Decision (“MPSD”) seeking dismissal of the section 107(a) imminent danger order 

contested in Docket No. SE 2010-581-R. The Secretary filed her response to the Motion on 

April 19, 2012. For the reasons set forth below, the Secretary’s Motion to Amend is GRANTED 

and JWR’s Motion for Partial Summary Decision is DENIED. 

1

 Referencing the Secretary’s original December 16, 2011, request to amend the cited 

standard, the Amended Motion to Amend merely restates the requests of the Secretary’s original 

Motion. 

34 FMSHRC Page 932
I. Motion to Amend 

The Secretary’s Motion to Amend seeks to revise the cited standard of Citation No. 

6698187 in Docket No. SE 2010-760 from 30 C.F.R. § 75.204(c)(1) to § 75.202(a). (Mot. 

Amend 1.) The Secretary submits that § 75.202(a) more accurately addresses the cited 

conditions. (Id.) She does not seek to change her factual pleadings and asserts that the facts, 

evidence, and witnesses involved in this matter remain the same. (Id.) 

The Commission analogizes the amendment of citations to Federal Rule of Civil 

Procedure 15(a), which states that leave for amendment “shall be freely given when justice so 

requires.” Wyoming Fuel Co., 14 FMSHRC 1282, 1290 (Aug. 1992) (quoting Fed. R. Civ. P. 

15(a)). Only bad faith of the moving party, purposeful delay, or legal prejudice should bar such 

amendments. 14 FMSHRC at 1290 (citing Cyprus Empire Corp., 12 FMSHRC 911 (May 1990); 

3 J. Moore & R. Freer, Moore’s Federal Practice 15.08[2], 15-47 to 15-49 (2d ed. 1991)). 

Here, the Secretary has established good cause to amend the cited standard of Citation 

No. 6698187. JWR has not shown any legal prejudice that would preclude amendment of the 

citation. JWR’s only mention of either of the Secretary’s Motions can be found in a footnote to 

its April 16, 2012, Amended Prehearing Report. There, JWR notifies the Court it “will submit a 

more formal opposition” if the parties are unable to settle the citation prior to the hearing. (Am. 

PHR 1 n.1.) No purposeful delay is evident or alleged. Accordingly, it is ORDERED that the 

cited standard of Citation No. 6698187 be amended to 30 C.F.R. § 75.202(a). 

II. Motion for Partial Summary Decision 

In its Motion for Partial Summary Decision, JWR seeks dismissal of Docket No. 

SE 2010-581-R involving its contest of Order No. 6698547.2 MSHA Inspector John Terpo 

issued this order on February 18, 2010, during his inspection of JWR’s No.7 Mine. As Inspector 

Terpo examined the No. 2 Longwall Section Face, he saw a miner walk in the conveyor pan line 

along the longwall face and issued the order. (Notice of Contest, Attach. A.) Order No. 

6698547 specifically alleges: 

A replacement shield hydraulic jack leg was located at the No. 9 shield on the No. 

2 Longwall Section face. The shield was advanced in the walkway area to the 

conveyor pan line to the extent that there was little or no clearance for personnel 

to travel due to the jack leg. A miner walking from the headgate side down the 

face was observed climbing into the conveyor pan line cable troth at shield 9 in 

order to get down the face. Once clearing the shield with the replacement jack leg 

he stepped back into the walkway. The shearer was advancing down the face at 

this time and the conveyor chain was transporting coal and rock. An oral 107(a) 

2

 This Order abbreviates citations to the Secretary’s exhibits as “MPSD Gov’t Ex.” 

34 FMSHRC Page 933
imminent danger order was issued to John Hamilton, Section Foreman at 0940 

hours. 

(Id.) 

JWR argues the undisputed facts of record establish that Inspector Terpo abused his 

discretion in issuing Order No. 6698547. According to JWR, Inspector Terpo improperly issued 

the Order after the alleged imminent danger had passed. (MPSD 7–12.) JWR also asserts that 

Inspector Terpo reacted impulsively to the miner’s walk through the conveyor pan and failed to 

conduct a reasonable investigation prior to issuing the Order. (Id. at 12–14.) JWR further 

argues that the hazardous risks associated with the conditions cited by Inspector Terpo did not 

rise to the degree of imminence required by the imminent danger standard. (Id. at 14–18.) 

The Secretary responds that significant factual discrepancies remain and summary 

decision is not appropriate. (Resp. MPSD 1–5.) The Secretary further argues that Inspector 

Terpo issued the Order contemporaneously with the allegedly dangerous condition he observed. 

(Id. at 5–8.) Finally, the Secretary argues that Inspector Terpo had a reasonable basis upon 

which to issue the Order. (Id. at 8–10.) 

A. Standard for Granting Summary Decision 

Under Commission Rule 67, “A motion for summary decision shall be granted only if the 

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

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

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

The Commission “‘has long recognized that [] ‘summary decision is an extraordinary 

procedure,’’ and has analogized it to Rule 56 of the Federal Rules of Civil Procedure, under 

which ‘the Supreme Court has indicated that summary judgment is authorized only ‘upon proper 

showings of the lack of a genuine, triable issue of material fact.’’” Hanson Aggregates New 

York, Inc., 29 FMSHRC 4, 9 (Jan. 2007) (quoting Energy West Mining Co., 16 FMSHRC 1414, 

1419 (July 1994)). In reviewing the record on summary judgment, the Court must evaluate the 

evidence in “‘the light most favorable to . . . the party opposing the motion.” Hanson 

Aggregates, 29 FMSHRC at 9 (quoting Poller v. Columbia Broad. Sys., 368 U.S. 464, 473 

(1962)). Any inferences “‘drawn from the underlying facts contained in [the] materials 

[supporting the motion] must be viewed in the light most favorable to the party opposing the 

motion.’” Hanson Aggregates, 29 FMSHRC at 9 (quoting United States v. Diebold, Inc., 369 

U.S. 654, 655 (1962)). 

34 FMSHRC Page 934
 

B. Standard of Review for Imminent Danger Orders 

Section 107(a) of the Mine Act states: 

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

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

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

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

operator of such mine to cause all persons, except those referred to in section 

814(c) of this title, to be withdrawn from, and to be prohibited from entering, such 

area until an authorized representative of the Secretary determines that such 

imminent danger and the conditions or practices which caused such imminent 

danger no longer exist. 

30 U.S.C. § 817(a). The Mine Act defines an “imminent danger” as “any condition or practice in 

a coal or other mine which could reasonably be expected to cause death or serious physical harm 

before such condition or practice can be abated.” Id. § 802(j). More specifically, “‘an imminent 

danger exists when the condition or practice observed could reasonably be expected to cause 

death or serious physical harm to a miner if normal mining operations were permitted to proceed 

in the area before the dangerous condition is eliminated.’” Rochester & Pittsburgh Coal Co. 

(R&P Coal), 11 FMSHRC 2159, 2163 (Nov. 1989) (emphasis in original) (quoting Eastern 

Assoc’d Coal Corp. v. IBMA, 491 F.2d 277, 278 (4th Cir. 1974)). The hazardous condition must 

have “a reasonable potential to cause death or serious injury within a short period of time.” Utah 

Power & Light Co., 13 FMSHRC 1617, 1622 (Oct. 1991). 

Because an inspector must act immediately in response to an imminently dangerous 

condition or practice, the Court must measure the validity of an imminent danger order under the 

abuse of discretion standard. R&P Coal, 11 FMSHRC at 2164 (quoting Old Ben Coal Corp. v. 

IBMA, 523 F.2d 25, 31 (7th Cir. 1975). Though the Court must afford wide discretion to an 

inspector’s judgment, “the reasonableness of an inspector’s imminent danger finding is subject 

to subsequent examination at [an] evidentiary hearing.” Island Creek Coal Co., 15 FMSHRC 

339, 346–47 (Mar. 1993). The inspector’s decision must be reasonable in light of the 

information available to him or her at the time the order is issued. Cumberland Coal Res., LP, 

28 FMSHRC 545, 558 (Aug. 2006); Island Creek Coal, 15 FMSHRC at 348. An imminent 

danger order does not require an underlying violation of a mandatory health or safety standard to 

be valid. Cyprus Empire, 12 FMSHRC at 918. 

C. Analysis and Conclusions of Law 

In the case before me, JWR argues that no issues of material fact remain surrounding the 

imminent danger order. According to JWR, “It is undisputed that the present [imminent danger 

order] was exclusively based on [the miner’s] act of stepping onto the cable trough. It is also 

undisputed that the [imminent danger order] was issued after [the miner] withdrew himself from 

the cable trough and any danger he faced while on it.” (MPSD 11 (emphasis in original).) In 

34 FMSHRC Page 935
 

 

short, JWR criticizes the order because it was based solely on the miner’s transgression, rather 

than a comprehensive view of the mine’s conditions. JWR also believes the order was 

improperly issued because it came after the miner had left the longwall conveyor pan. 

JWR’s contentions do not have a basis in undisputed material fact. The Secretary points 

to evidence supporting her view that Inspector Terpo based his imminent danger order on 

multiple factors, including the operation of the longwall equipment as well as concern for the 

other miners on the section. (Resp. MPSD at 3; MPSD Gov’t Ex. 7 at 95:19–97:22, 110:6–9, 

116:4–11.) A close reading of Inspector Terpo’s deposition testimony also demonstrates that the 

precise timing of the issuance of his imminent danger order is not clear-cut. (MPSD Gov’t Ex. 7 

at 101:6–102:3, 107:14–108:2.) The miner’s walk through the conveyor pan did not take long, 

and Inspector Terpo did not indicate precisely how his order fit into this chain of events. (Id.) 

The noisy environment in which Inspector Terpo initially issued his Order, which was orally, 

further muddies the analysis. (Id.) A hearing is necessary so I can conduct a proper credibility 

determination of the evidence.

 JWR also asserts that the imminent danger order resulted from Inspector Terpo’s 

impulsive reaction, as opposed to a reasonable investigation of the circumstances. (MPSD 

12–14.) JWR bases its criticism on the fact that Inspector Terpo could not identify a violation at 

the time he issued the Order. (Id.) This argument fails as a matter of law. An imminent danger 

order need not involve the violation of a mandatory standard. Cyprus Empire, 12 FMSHRC at 

918. The order merely needs to involve a practice or condition associated with the reasonable 

potential to cause death or serious injury within a short period of time. Utah Power & Light, 13 

FMSHRC at 1622. 

Finally, JWR argues that Inspector Terpo did not establish a sufficient level of imminent 

danger that could justify the Order. (MPSD 14–18.) The Commission has recognized that 

“[w]ithout considering the ‘percentage of probability that an accident will happen,’ the inspector 

must determine whether the condition presents an impending threat to life and limb.” Utah 

Power & Light, 13 FMSHRC at 1622 (quoting S. Rep. No. 95-181, at 35 (1977), reprinted in 

1977 U.S.C.C.A.N. 3401, 3438). Inspector Terpo identified a number of ways a serious or fatal 

injury could have resulted from this condition. (MPSD Gov’t Ex. 7 at 96:3–97:22.) 

Significant issues of material fact remain with respect to Order No. 6698547 issued 

pursuant to section 107(a). I conclude that the record before me does not support summary 

decision of Order No. 6698547. Accordingly, JWR’s Motion for Partial Summary Decision is 

DENIED. 

/s/ Alan G. Paez 

Alan G. Paez 

Administrative Law Judge 

34 FMSHRC Page 936
Distribution: (Via Electronic Mail & U.S. Mail) 

Sophia E. Haynes, Esq., U.S. Department of Labor, Office of the Solicitor, 61 Forsyth Street, 

SW, Room 7T10, Atlanta, GA 30303 

John B. Holmes, III, Esq., Maynard, Cooper & Gale, P.C., 1901 Sixth Avenue North, 2400 

Regions/Harbert Plaza Birmingham, AL 35203 

/jts 

34 FMSHRC Page 937
 

 

 

 

 

 

 

 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

Office of Administrative Law Judges
	

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

Washington, D.C. 20001
	

April 23, 2012 

JIM WALTER RESOURCES, INC., : CONTEST PROCEEDING 

Contestant, : 

v. : Docket No. SE 2010-581-R 

: Order No. 6698547; 02/18/2010 

SECRETARY OF LABOR, : 

MINE SAFETY AND HEALTH : 

ADMINISTRATION (MSHA), : Mine ID 01-01401 

Respondent. : No. 7 Mine 

: 

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING 

MINE SAFETY AND HEALTH : 

ADMINISTRATION (MSHA), : Docket No. SE 2010-760 

Petitioner, : A.C. No. 01-01401-215760 

v. : 

: 

JIM WALTER RESOURCES, INC., : 

Respondent. : Mine: No. 7 Mine 

ORDER GRANTING MOTION TO CONTINUE HEARING
 

ORDER SCHEDULING CONFERENCE CALL
 

This case is before upon the Notice of Contest of Jim Walter Resources, Inc. (“JWR”), 

and the Secretary’s Petition for the Assessment of Civil Penalty pursuant to section 105 of the 

Federal Mine Safety and Health Act of 1977 (“Mine Act”). 30 U.S.C. § 815. It is set for hearing 

on May 1 and 2, 2012, pursuant to my January 19, 2012, Notice of Hearing and Order to File 

Prehearing Report. On April 5, 2012, JWR filed its Motion for Partial Summary Decision 

(“MPSD”). The Secretary filed her response to the MPSD on April 16. Also on April 16, JWR 

filed its Motion to Continue Hearing, indicating the Secretary’s objection to the continuance. 

The next day, the Secretary’s counsel informed my Law Clerk that one of her witnesses had 

training during the week of the hearing and stated that she would not oppose a continuance “if 

the Court is inclined to continue this case per Respondent’s request.” On April 20, 2012, I issued 

my Order Granting Motion to Amend and Order Denying the MPSD. 

As support for its request to continue the hearing, JWR asserts that my decision on the 

MPSD could affect Citation No. 6698548 at issue in SE 2010-760 and as such, my decision on 

the MPSD should precede adjudication of the citation at the hearing. The parties’ counsel have a 

history of resolving on my docket without hearing, and in light of the record in this case, I have 

determined that continuing the hearing date of this matter is in the best interests of justice. 

34 FMSHRC Page 938
 

 

JWR’s Motion to Continue Hearing is hereby GRANTED and the hearing in this case is 

CONTINUED until a later date. Counsel for the parties is hereby ORDERED to participate in 

a conference call with my Law Clerk, Joshua Shaw, on Tuesday, May 1, 2012, at 10:30 a.m. 

ET to discuss scheduling a new hearing on this case. They shall dial 1-866-867-4769 and enter 

passcode 847-269 to connect to the call. 

/s/ Alan G. Paez 

Alan G. Paez 

Administrative Law Judge 

Distribution: 

Sophia E. Haynes, Esq., U.S. Department of Labor, Office of the Solicitor, 61 Forsyth Street, 

SW, Room 7T10, Atlanta, GA 30303 

John B. Holmes III, Esq., Maynard, Cooper & Gale, P.C., 1901 Sixth Avenue North, 2400 

Regions/Harbert Plaza Birmingham, AL 35203 

/jts 

34 FMSHRC Page 939
 

 

 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

Washington, D.C. 20001 

April 25, 2012 

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDINGS

 MINE SAFETY AND HEALTH :

 ADMINISTRATION (MSHA), : Docket No. KENT 2009-955 

Petitioner : A.C. No. 15-18911-181323

 :

 v. : Docket No. KENT 2009-1426

 : A.C. No. 15-18911-192304

 : 

CAM MINING, LLC, : Mine # 28 

Respondent : 

NOTICE OF RESCHEDULED HEARING 

The hearing in these proceedings had been scheduled for May 1, 2012, in the vicinity of 

Pikeville, Kentucky. During an April 19, 2012, telephone conference, for the reasons discussed 

below, the parties were advised that the hearing would be moved to the Commission’s 

Headquarters in Washington, D.C. After being informed of the change in hearing location, 

the Secretary requested a continuance for the purpose of providing additional time to complete 

travel arrangements. Good cause having been shown, the Secretary’s request for continuance 

IS GRANTED. The parties have agreed that June 6, 2012, is a suitable revised hearing date. 

These matters concern 46 violations for which the Secretary has proposed a total civil 

penalty of $44,996.00. During the course of several telephone conferences culminating in the 

April 19, 2012, conference, the parties advised that they have settled 44 of the 46 subject 

violations. The two citations that remain are 104(d)(2) Order No. 8222328 in Docket No. 

KENT 2009-1426 and 104(a) Citation 8222333 in Docket No. KENT 2009-955. 

104(d)(2) Order No. 8222328 in Docket No. KENT 2009-1426, issued on 

February 10, 2009, concerns an alleged violation of 30 C.F.R. § 75.400 that prohibits 

accumulations of float coal dust on electrical equipment. The cited violation was initially 

attributed to a moderate degree of negligence. The citation was subsequently modified to a 

104(d)(2) order that specified the negligence as high. The modification was based on the 

Respondent’s history of previous violations of section 75.400. The modified 104(d) order states, 

in pertinent part, “[t]hese accumulations are evident through the box[’s] inspection window and 

appear to be approximately 1/8 of an inch in depth and are deposited upon the energized 

components and the box[’s] floor.” The Secretary proposes a civil penalty of $6,224.00 for 

104(d)(2) Order No. 8222328. 

34 FMSHRC Page 940
104(a) Citation 8222333 in Docket No. KENT 2009-955, issued on February 11, 2009, 

concerns an alleged violation of 30 C.F.R § 75.512-2 that requires weekly examinations of 

electrical equipment to ensure that electrical equipment is maintained in a safe condition. 

The cited violation was attributable to a moderate degree of negligence. The Secretary proposes 

a civil penalty of $585.00 for Citation No. 8222333. The Citation, in pertinent part, states: 

The examination record indicates that the examination performed on 2-9-09 

revealed no hazardous conditions. However, on 2-10-09 an MSHA inspector 

observed accumulations of black float coal dust deposited on the inside, energized 

phase conductors and floor, which resulted in the issuance of a violation of 

75.400 [104(d)(2) Order No. 8222328]. This condition was observed through the 

box[’s] provided inspection window and would be obvious to any reasonably 

prudent person familiar with the requirements of this type of examination. 

During the telephone conferences, I expressed my recognition of the parties’ good faith 

efforts in reaching a settlement for the vast majority of the citations at issue in these proceedings. 

With regard to the subject accumulations, counsel for both parties agreed that the accumulations 

were observed through the window of an electrical box. The parties further agreed that the 

accumulations were neither objectively measured nor analyzed for combustible content. 

With respect to the fact of the violations, counsel for the Respondent asserted that 

the cited 1/8 of an inch accumulations primarily consisted of inert rock dust. However, 

I urged the parties to resolve the issue of the fact of the violations based on Commission case 

law that affords broad discretion to mine inspectors in determining whether accumulations 

violate section 75.400. See Old Ben Coal Company, 2 FMSHRC 2806, 2808 (October 1980); 

Amax Coal Co., 19 FMSHRC 846, 847, 849 (May 1997); Jim Walter Resources, Inc., 

19 FMSHRC 480, 483 (Mar. 1997); Enlow Fork Mining Co., 19 FMSHRC 5, 19-20 (Jan. 1997) 

(Marks, concurring). 

Turning to the issue of unwarrantable failure, the parties were requested to focus on 

whether the cited accumulations, only estimated to be between 1/16 and 1/8 of an inch in depth, 

were of sufficient magnitude to support an unwarrantable failure. In this regard, the parties were 

directed to consider in their settlement negotiations the indicia of an unwarrantable failure that 

include the extent of a violative condition, the length of time that it has existed, whether the 

violation is obvious, whether the violation poses a high degree of danger, whether the operator 

has been placed on notice that greater efforts are necessary for compliance, and the operator’s 

compliance efforts made prior to the issuance of the citation or order. Enlow Fork Mining Co., 

19 FMSHRC 5, 11-12, 17 (Jan. 1997); Mullins & Sons Coal Co., 16 FMSHRC 192, 195 

(Feb. 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992); Quinland Coals, Inc., 

10 FMSHRC 705, 709 (June 1988); Kitt Energy Corp., 6 FMSHRC 1596, 1603 (July 1984). 

34 FMSHRC Page 941
The various factors considered in determining whether a violation is unwarrantable must 

be viewed in the context of the factual circumstances in a particular case, and some factors may 

be entitled to more weight in a particular factual scenario. See Consolidation Coal, 23 FMSHRC 

588, 593 (June 2001) (citations omitted). While the history of previous violations is relevant, a 

subsequent violation of section 75.400 manifest by accumulations of no more than 1/8 of an inch 

is not per se unwarrantable. Thus, the parties should consider in any settlement negotiations, 

or in preparation for a hearing, whether there are any additional aggravating factors, given the 

de minimis extent of the subject accumulations. In this regard, the cited accumulations were 

originally attributed to a moderate degree of negligence. So too, the failure of the electrical 

examiner to note the accumulations was also attributed to moderate negligence reflecting that 

the accumulations may not have been conspicuous. 

Although there do not appear to be irreconcilable differences with regard to the fact of 

the violations, the parties apparently have been unable to reach an agreement with respect to 

unwarrantable failure. In the absence of settlement, these matters shall proceed to hearing. 

However, in view of the circumstances discussed above reflecting the parties’ inability to reach 

a settlement, given the Commission’s limited resources and unprecedented case load, the 

hearing in these matters shall be moved from Pikeville, Kentucky to the Commission’s 

Headquarters. IT IS ORDERED that any settlement must be presented to me in writing on 

or before May 22, 2012. Any settlement thereafter must be presented on the record at the 

hearing. The hearing will commence at 10:00 a.m. on June 6, 2012, at the following location: 

Federal Mine Safety and Health Review Commission
 

601 New Jersey Avenue, NW, Suite 9500

 Backley Hearing Room, 9th Floor
 

Washington, DC 20001
 

Any person who plans to attend this hearing and requires special accessibility features 

and/or any auxiliary aids, such as sign language interpreters, must request them in advance 

(subject to the limitations set forth in § 2706.160(d)). 

/s/ Jerold Feldman 

Jerold Feldman 

Administrative Law Judge 

Distribution: 

Schean G. Belton, Esq., U.S. Department of Labor, Office of the Solicitor, 618 Church Street, 

Suite 230, Nashville, TN 37219 

Mark E. Heath, Esq., Spilman, Thomas, & Battle, PLLC, 300 Kanawha Blvd., East, 

P.O. Box 273, Charleston, WV 25321-0273 

/jel 

34 FMSHRC Page 942
 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
 601 NEW JERSEY AVENUE N. W., SUITE 9500
 

WASHINGTON, D.C. 20001
 

(202) 434-9933

 April 27, 2012 

SECRETARY OF LABOR, : CIVIL PENALTY PROCEEDING

 MINE SAFETY AND HEALTH :

 ADMINISTRATION, (MSHA), : Docket No. VA 2011-678 

Petitioner : A.C. No. 44-07087-262629 A

 : 

v. :

 : 

STEPHEN M. REASOR, employed by : Mine No 2

 BIG LAUREL MINING CORPORATION : 

Respondent : 

ORDER REGARDING SECRETARY’S REQUEST FOR CLARIFICATION OF 

ORDER ON MOTION TO DISMISS 

On April 13, 2012, the Court issued its Order on Motion to Dismiss in this matter, 

finding that the Secretary acted within a reasonable time in issuing its notification of intent to 

propose a penalty against Mr. Reasor, that its proposed penalty was issued within a reasonable 

time, and that no prejudice was demonstrated by the passage of time involved. Now the 

Secretary has asked for clarification of the Court’s Order, as to whether the “reasonable time” 

requirement is measured from the conclusion of the Agency’s accident investigation or the 

conclusion of its section 110(c) investigation. 

The Secretary’s request for clarification is reasonable. At the outset, the Court believes 

that its prior Order clearly suggested that, and now expressly finds that, even if the “reasonable 

time” were to be measured from the time of the conclusion of the Agency’s accident 

investigation, the Secretary acted within a reasonable time. However, now focusing on the 

proper starting point for measuring the reasonable time, the Court, for the reasons which follow, 

finds that the time begins to run at the conclusion of the Agency’s section 110(c) investigation. 

The language employed by section 110(c) does not offer any direct guidance about 

investigations or time periods, but it does note that individuals who violate a mandatory health or 

safety standard are subject to the same civil penalties as mine operators. In section 110(c) 

matters the Commission looks to section 105(a) of the Mine Act, applying the same “reasonable 

time” requirement for notifying a mine operator of a proposed civil penalty. Accordingly, the 

reasonable time notification aspect applies in both instances to a time “after the termination of 

such inspection or investigation.” It would seem that, as there are distinct investigations for a 

section 104 matter and a 110(c) matter, the conclusion of any investigation associated with a 

section 110(c) matter is the only reasonable point in time to gauge the Secretary’s action. 

34 FMSHRC Page 943
Decisions by Commission administrative law judges and the Commission itself support 

this conclusion. For example, in Laurel Run Mining Co., 19 FMSHRC 437, 1997 WL 144994 

(Feb. 1997), a section 110(c) action, the respondent made a similar claim that the Secretary had 

failed to act within a reasonable time in issuing its proposed penalty against Laurel Run’s agent. 

There, the accident investigation was completed in October 1994 but the proposed penalty 

assessment was not made until some 21 months later, in July 1996. The judge stated that the 

operable time period in such cases is the “period between completion of MSHA’s 110(c) 

investigation . . . and [the] notification [date] of the proposed penalties . . . .” Id. at * 441. Thus, 

applying that time measure, the judge determined that 12, not 21, months had elapsed. Applying 

that measure, the judge found that delay to be within the “reasonable time” period.1 

In Wayne Jones, Mike Sumpter et al, 20 FMSHRC 1267, 1998 WL 993717, (Nov. 1998), 

another case alleging that civil penalties were not filed within a reasonable time, an Order and a 

determination to conduct a 110(c) investigation occurred during August 1996 but a special 

investigator was not assigned in the matter until February 1997. That investigative process took 

until October 1997 before it was referred to the Solicitor’s Office and it was not until February 

1998 that the individual respondents were notified of MSHA’s intent to assess 110(c) penalties 

against them. The judge noted that, while section 104(a) of the Mine Act requires citations to be 

issued with reasonable promptness, there is no binding authority to require dismissal based on 

Secretarial delay in its investigation. Id. at *1270. Distinguishing the decision of another 

administrative law judge,2 the judge in Wayne Jones, Mike Sumpter et al found that there were 

credible reasons for the delay, citing the Agency’s heavy case load. Describing dismissal as a 

harsh remedy, the judge rejected the claim that passage of time itself demonstrated inevitable 

fading of memories, stating that “prejudice will not be incurred from passage of time alone.” Id. 

at 1271. Implicitly, the judge was evaluating the “reasonable time” from the point in time when 

it was decided to perform, and then conclude, a special investigation, as that court referenced the 

1

 As an additional observation, it is also noteworthy, at least from this Court’s 

perspective, the judge in Laurel Run noted that the respondents failed to show any prejudice 

from the delay and “[w]hether the passage of time [a]ffects the weight that should be afforded to 

particular testimony is a matter for the trier of fact. [As the] Secretary has the burden of proof in 

these matters . . . any alleged fading of memories would most probably inure to the benefit of the 

respondent[].” Id. 

2

 In Doyal Morgan, Employed by Asarco, 20 FMSHRC 38, 1998 WL 4332, (Jan. 1998), 

another judge dealt with the same issue. There, the judge noted that the Commission addresses 

delayed penalty assessment issues in the same fashion whether they stem from section 110(a) or 

section 110(c) matters. That is, per the Commission’s decision in Steele Branch Mining, 18 

FMSHRC 6, 14 (January 1996), late penalty filings are permitted where the Secretary 

demonstrates adequate cause for the delay and the respondent is unable to show prejudice from 

it. However, under the facts presented, the judge found that the Solicitor had not justified the 

late filing. 

34 FMSHRC Page 944
 

 

 

time period when the Section 110(c) investigation was being conducted.3 Id. at *1268, *1271. 

In Paiute Aggregates Inc., 24 FMSHRC 943, 2002 WL 31934297 (Oct. 2002), the same 

“reasonable time” issue was presented. As in Laurel Run Mining Co. (supra), the judge in 

Paiute Aggregates used as his time measure the date the date of the 110(c) investigation and its 

completion in evaluating the “reasonable time” issue. 4 Id. at *943-944. Also, in CDK 

Contracting Company, 25 FMSHRC 71, 2003 WL 21439207 (Feb. 2003), the same “reasonable 

time” issue was at hand. There the court was considering civil penalties against the mine, but the 

case is still instructive as the judge was measuring the time that elapsed after the termination of 

the accident investigation.5 

Last, in Sec’y v. Sedgman and David Gill, Employed by Sedgman,

6

 28 FMSHRC 322, 

2006 WL 1970212 (June 2006) (“Sedgman and Gill”), a majority of the Commission found that 

an 11 month delay in assessing the civil penalty was not unreasonable, “given the ongoing 

section 110(c) investigation.” A fatality had occurred at the mine’s preparation plant. There, the 

Secretary, following an accident investigation report, issued citations to Sedgman in early 

February 2002, with a proposed penalty for that in May 2002, and subsequently, a second 

proposed penalty arising out of the same matter was issued on December 31, 2002, a period of 

3

 It is recognized that the underlying Order and the decision to launch the 110(c) 

investigation occurred within a few weeks of each other, but that fact does not take away from 

the judge’s determination that the measure of a reasonable time is connected with the separate 

110(c) investigation. 

4

 Citing the Commission’s Steele Branch Mining decision, 18 FMSHRC 6, 14 (Jan. 

1996), the judge in Paiute Aggregates Inc. noted that the reason for delay and whether delay 

prejudiced the operator were the factors identified by the Commission. In addition, the judge 

observed that the Commission took “official notice” that the Secretary then had an unusually 

high case load and that such constituted adequate reason for the delay. Further, the Commission 

expressed that the Mine Act’s design precluded automatic dismissal of an untimely filed petition. 

The court found the nine month delay involved in Paiute Aggregates to be a reasonable time, and 

further, if it were assumed that some portion of that was not sufficiently prompt, adequate cause 

was demonstrated for such delay. There was no evidence that the Agency had made “deliberate 

choices” in its resource allocation producing chronic under-staffing. It would be fair to assume 

that the Commission would not want to become involved in MSHA’s or the Solicitor’s staffing 

decisions. 

5 Again, as a collateral observation, the Court here notes that the judge in CDK 

Contracting Company also observed that the “mere potential for prejudice is insufficient [and 

that] [d]ismissal of civil penalty proceedings because of a delay that was not prejudicial would 

clearly run counter to the concern for safe and healthful working conditions [which was the 

impetus] that led to the creation of the civil penalty program.” Id. at * 73. 

6 Sedgman was a general contractor hired by Jim Walter Resources. 

34 FMSHRC Page 945
 

11 months after the February 2002 citation had been issued. The Commission’s recounting of 

the facts noted that “[d]uring that time and beyond, MSHA conducted a special investigation that 

culminated on April 2, 2003, in charges being brought against Gill . . . under section 110(c) of 

the Act . . . [and] [o]n August 18, 2003, the Secretary proposed a penalty . . . against Gill.” Id. at 

* 4. Thus, the Commission itself has recognized these are separate investigations which are not 

to be blurred, as a section 110(c) matter is distinct from one made under section 105(a). Id. at 

*14. 

In the same case, the Commission noted that in Twentymile Coal Co., 26 FMSHRC 666, 

(Aug. 2004), rev’d on other grounds, 411 F.3d 256 (D.C. Cir. 2005) (“Twentymile I”), the D.C. 

Circuit rejected the Commission’s calculation for determining the reasonable time for 

notification of its proposed penalty by determining that the date of the issuance of the accident 

report was the measure, not the date the citation or order was issued, nor the date it was 

terminated. In opting for the accident report’s issuance, the D.C. Circuit was deferring to the 

Secretary’s interpretation, finding it to be reasonable. Id. at *13. 

Accordingly, for the reasons set forth above, the Court finds that the measuring point for 

assessing the “reasonable time” for notification of a proposed penalty in a section 110(c) matter 

is upon the conclusion of MSHA’s 110(c) investigation. 

/s/ William B. Moran 

William B. Moran 

Distribution: 

A. Scott Hecker, Esq. 

Office of the Solicitor 

1100 Wilson Boulevard 

22nd Floor West 

Arlington, VA 22209-2247 

William E. Bradshaw, P.C., Esq. 

302 Shawnee Avenue 

P.O. Box 267 

Big Stone Gap, VA 24219 

34 FMSHRC Page 946
 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION
 601 NEW JERSEY AVENUE N. W., SUITE 9500
 

WASHINGTON, D.C. 20001
 

(202) 434-9933

 April 27, 2012 

SECRETARY OF LABOR,

 MINE SAFETY AND HEALTH

 : 

:

CIVIL PENALTY PROCEEDING

 ADMINISTRATION, (MSHA),

Petitioner

 : 

: 

Docket No. VA 2011-680 

A.C. No. 44-07087-262627 A

 : 

v. :

 : 

ROBERT J. SILCOX, employed by

BIG LAUREL MINING CORPORATION, 

Respondent

 : 

: 

: 

Mine No 2 

ORDER REGARDING SECRETARY’S REQUEST FOR CLARIFICATION OF 

ORDER ON MOTION TO DISMISS 

On April 13, 2012, the Court issued its Order on Motion to Dismiss in this matter, 

finding that the Secretary acted within a reasonable time in issuing its notification of intent to 

propose a penalty against Mr. Reasor, that its proposed penalty was issued within a reasonable 

time, and that no prejudice was demonstrated by the passage of time involved. Now the 

Secretary has asked for clarification of the Court’s Order, as to whether the “reasonable time” 

requirement is measured from the conclusion of the Agency’s accident investigation or the 

conclusion of its section 110(c) investigation. 

The Secretary’s request for clarification is reasonable. At the outset, the Court believes 

that its prior Order clearly suggested that, and now expressly finds that, even if the “reasonable 

time” were to be measured from the time of the conclusion of the Agency’s accident 

investigation, the Secretary acted within a reasonable time. However, now focusing on the 

proper starting point for measuring the reasonable time, the Court, for the reasons which follow, 

finds that the time begins to run at the conclusion of the Agency’s section 110(c) investigation. 

The language employed by section 110(c) does not offer any direct guidance about 

investigations or time periods, but it does note that individuals who violate a mandatory health or 

safety standard are subject to the same civil penalties as mine operators. In section 110(c) 

matters the Commission looks to section 105(a) of the Mine Act, applying the same “reasonable 

time” requirement for notifying a mine operator of a proposed civil penalty. Accordingly, the 

reasonable time notification aspect applies in both instances to a time “after the termination of 

such inspection or investigation.” It would seem that, as there are distinct investigations for a 

section 104 matter and a 110(c) matter, the conclusion of any investigation associated with a 

section 110(c) matter is the only reasonable point in time to gauge the Secretary’s action. 

34 FMSHRC Page 947
Decisions by Commission administrative law judges and the Commission itself support 

this conclusion. For example, in Laurel Run Mining Co., 19 FMSHRC 437, 1997 WL 144994 

(Feb. 1997), a section 110(c) action, the respondent made a similar claim that the Secretary had 

failed to act within a reasonable time in issuing its proposed penalty against Laurel Run’s agent. 

There, the accident investigation was completed in October 1994 but the proposed penalty 

assessment was not made until some 21 months later, in July 1996. The judge stated that the 

operable time period in such cases is the “period between completion of MSHA’s 110(c) 

investigation . . . and [the] notification [date] of the proposed penalties . . . .” Id. at * 441. Thus, 

applying that time measure, the judge determined that 12, not 21, months had elapsed. Applying 

that measure, the judge found that delay to be within the “reasonable time” period.1 

In Wayne Jones, Mike Sumpter et al, 20 FMSHRC 1267, 1998 WL 993717, (Nov. 1998), 

another case alleging that civil penalties were not filed within a reasonable time, an Order and a 

determination to conduct a 110(c) investigation occurred during August 1996 but a special 

investigator was not assigned in the matter until February 1997. That investigative process took 

until October 1997 before it was referred to the Solicitor’s Office and it was not until February 

1998 that the individual respondents were notified of MSHA’s intent to assess 110(c) penalties 

against them. The judge noted that, while section 104(a) of the Mine Act requires citations to be 

issued with reasonable promptness, there is no binding authority to require dismissal based on 

Secretarial delay in its investigation. Id. at *1270. Distinguishing the decision of another 

administrative law judge,2 the judge in Wayne Jones, Mike Sumpter et al found that there were 

credible reasons for the delay, citing the Agency’s heavy case load. Describing dismissal as a 

harsh remedy, the judge rejected the claim that passage of time itself demonstrated inevitable 

fading of memories, stating that “prejudice will not be incurred from passage of time alone.” Id. 

1

 As an additional observation, it is also noteworthy, at least from this Court’s 

perspective, the judge in Laurel Run noted that the respondents failed to show any prejudice 

from the delay and “[w]hether the passage of time [a]ffects the weight that should be afforded to 

particular testimony is a matter for the trier of fact. [As the] Secretary has the burden of proof in 

these matters . . . any alleged fading of memories would most probably inure to the benefit of the 

respondent[].” Id. 

2

 In Doyal Morgan, Employed by Asarco, 20 FMSHRC 38, 1998 WL 4332, (Jan. 1998), 

another judge dealt with the same issue. There, the judge noted that the Commission addresses 

delayed penalty assessment issues in the same fashion whether they stem from section 110(a) or 

section 110(c) matters. That is, per the Commission’s decision in Steele Branch Mining, 18 

FMSHRC 6, 14 (January 1996), late penalty filings are permitted where the Secretary 

demonstrates adequate cause for the delay and the respondent is unable to show prejudice from 

it. However, under the facts presented, the judge found that the Solicitor had not justified the 

late filing. 

34 FMSHRC Page 948
 

 

 

 at 1271. Implicitly, the judge was evaluating the “reasonable time” from the point in time when 

it was decided to perform, and then conclude, a special investigation, as that court referenced the 

time period when the Section 110(c) investigation was being conducted.3 Id. at *1268, *1271. 

In Paiute Aggregates Inc., 24 FMSHRC 943, 2002 WL 31934297 (Oct. 2002), the same 

“reasonable time” issue was presented. As in Laurel Run Mining Co. (supra), the judge in 

Paiute Aggregates used as his time measure the date the date of the 110(c) investigation and its 

completion in evaluating the “reasonable time” issue. 4 Id. at *943-944. Also, in CDK 

Contracting Company, 25 FMSHRC 71, 2003 WL 21439207 (Feb. 2003), the same “reasonable 

time” issue was at hand. There the court was considering civil penalties against the mine, but the 

case is still instructive as the judge was measuring the time that elapsed after the termination of 

the accident investigation.5 

Last, in Sec’y v. Sedgman and David Gill, Employed by Sedgman,

6

 28 FMSHRC 322, 

2006 WL 1970212 (June 2006) (“Sedgman and Gill”), a majority of the Commission found that 

an 11 month delay in assessing the civil penalty was not unreasonable, “given the ongoing 

section 110(c) investigation.” A fatality had occurred at the mine’s preparation plant. There, the 

Secretary, following an accident investigation report, issued citations to Sedgman in early 

3

 It is recognized that the underlying Order and the decision to launch the 110(c) 

investigation occurred within a few weeks of each other, but that fact does not take away from 

the judge’s determination that the measure of a reasonable time is connected with the separate 

110(c) investigation. 

4

 Citing the Commission’s Steele Branch Mining decision, 18 FMSHRC 6, 14 (Jan. 

1996), the judge in Paiute Aggregates Inc. noted that the reason for delay and whether delay 

prejudiced the operator were the factors identified by the Commission. In addition, the judge 

observed that the Commission took “official notice” that the Secretary then had an unusually 

high case load and that such constituted adequate reason for the delay. Further, the Commission 

expressed that the Mine Act’s design precluded automatic dismissal of an untimely filed petition. 

The court found the nine month delay involved in Paiute Aggregates to be a reasonable time, and 

further, if it were assumed that some portion of that was not sufficiently prompt, adequate cause 

was demonstrated for such delay. There was no evidence that the Agency had made “deliberate 

choices” in its resource allocation producing chronic under-staffing. It would be fair to assume 

that the Commission would not want to become involved in MSHA’s or the Solicitor’s staffing 

decisions. 

5 Again, as a collateral observation, the Court here notes that the judge in CDK 

Contracting Company also observed that the “mere potential for prejudice is insufficient [and 

that] [d]ismissal of civil penalty proceedings because of a delay that was not prejudicial would 

clearly run counter to the concern for safe and healthful working conditions [which was the 

impetus] that led to the creation of the civil penalty program.” Id. at * 73. 

6 Sedgman was a general contractor hired by Jim Walter Resources. 

34 FMSHRC Page 949
February 2002, with a proposed penalty for that in May 2002, and subsequently, a second 

proposed penalty arising out of the same matter was issued on December 31, 2002, a period of 

11 months after the February 2002 citation had been issued. The Commission’s recounting of 

the facts noted that “[d]uring that time and beyond, MSHA conducted a special investigation that 

culminated on April 2, 2003, in charges being brought against Gill . . . under section 110(c) of 

the Act . . . [and] [o]n August 18, 2003, the Secretary proposed a penalty . . . against Gill.” Id. at 

* 4. Thus, the Commission itself has recognized these are separate investigations which are not 

to be blurred, as a section 110(c) matter is distinct from one made under section 105(a). Id. at 

*14. 

In the same case, the Commission noted that in Twentymile Coal Co., 26 FMSHRC 666, 

(Aug. 2004), rev’d on other grounds, 411 F.3d 256 (D.C. Cir. 2005) (“Twentymile I”), the D.C. 

Circuit rejected the Commission’s calculation for determining the reasonable time for 

notification of its proposed penalty by determining that the date of the issuance of the accident 

report was the measure, not the date the citation or order was issued, nor the date it was 

terminated. In opting for the accident report’s issuance, the D.C. Circuit was deferring to the 

Secretary’s interpretation, finding it to be reasonable. Id. at *13. 

Accordingly, for the reasons set forth above, the Court finds that the measuring point for 

assessing the “reasonable time” for notification of a proposed penalty in a section 110(c) matter 

is upon the conclusion of MSHA’s 110(c) investigation. 

/s/ William B. Moran 

William B. Moran 

Administrative Law Judge 

Distribution: 

A. Scott Hecker, Esq. 

Office of the Solicitor 

1100 Wilson Boulevard 

22nd Floor West 

Arlington, VA 22209-2247 

Patrick F. Nash, Esq. 

Attorney at Law 

129 West Short Street 

Lexington, Kentucky 40507 

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