JANUARY AND FEBRUARY 2010 

COMMISSION DECISIONS AND ORDERS 

01-12-2010 Pinky's Aggregates, Inc. CENT 2009-848-M Pg. 1 

01-12-2010 Apex Energy, fuc. KENT 2009-1507 Pg. 5 

01-12-2010 Rogers Group, fuc. KENT 2009-1552 Pg. 8 

01-12-2010 Seymour Stone PENN 2010-51-M Pg. 12 

01-12-2010 J. S. Redpath Corporation WEST 2010-93-M Pg. 15 

01-12-2010 Long Branch Energy WEV A 2009-1982 Pg. 19 

01-13-2010 Allgeier Martin & Associates, Inc. CENT 2010-50-M Pg. 23 

01-13-2010 XMV,Inc. WEV A 2008-1783 Pg. 27 

01-19-2010 Paulson Rock Products LAKE 2010-72-M Pg. 30 

01-20-2010 Higgins Stone Company, Inc. CENT 2009-179-M Pg. 33 

01-25-2010 Drum Sand & Gravel, fuc. CENT 2009-833-M Pg. 37 

01-25-2010 Specialty Rock Products, Inc. KENT 2009-1289-M Pg. 41 

01-25-2010 WKJ Contrator' s fuc. KENT 2010-73 Pg. 45 

01-25-2010 Cedar Lake Sand & Gravel Co. LAKE 2009-265-M Pg. 49 

01-25-2010 Frasure Creek Mining, LLC. WEV A 2010-90 Pg. 54 

01-25-2010 Williams & Sons Slate & Tile, Inc. PENN 2006-75-M Pg. 57 

01-26-2010 R & K Coal Company, fuc. PENN 2008-290 Pg. 61 

01-27-2010 Kiokee Mining, LLC. VA 2009-269 Pg. 64 

01-27-2010 Banner Blue Coal Company VA 2009-438 Pg. 68 

01-27-2010 Performance Coal Company WEV A 2009-370 Pg. 72 

01-28-2010 F & G Resources, LLC. KENT 2009-1076 Pg. 76 

02-02-2010 Coal River Mining, LLC. WEV A 2006-125-R Pg. 82 

02-18-2010 ~ockhouse Creek Development, LLC. WEVA2009-516 Pg. 101 

02-18-2010 West Virginia Mine Power, fuc. WEV A 2009-527 Pg. 104 

02-18-2010 Mingo Logan Coal Company WEV A 2009-1107 Pg. 109 

02-18-2010 White Buck Coal Company WEVA 2009-1314 Pg. 112 

02-22-2010 Brooks Run Mining Company, LLC. WEV A 2009-1880 Pg. 116 

ADMINISTRATIVE LAW JUDGE DECISIONS 

01-05-2010 SCP Investments, LLC. (on remand) SE 2009-148-M Pg. 119 

01-20-2010 Black Castle Mining Co. WEV A 2006-891-R Pg. 132 

01-26-2010 United Taconite, LLC. LAKE 2008-93-RM Pg. 146 

01-28-2010 Mach Mining, LLC. LAKE 2010-1-R Pg. 149 

02-12-2010 Oak Grove Resources, LLC. SE 2010-350-R Pg. 169 

02-18-2010 Gilbert Development Corp. WEST 2008-201-M Pg. 185 

02-22-2010 Sec. Labor /Jose Chaparro v. 

Comunidad Agricola Bianchi, fuc. SE 2010-295-DM Pg.206 

02-24-2010 Mach Mining, LLC. LAKE 2009-323-R Pg. 213 

02-25-2010 Ohio County Coal Company, LLC. KENT 2007-273 Pg.220 

02-25-2010 PC Sand & Gravel YORK 2008-104-M Pg.235 

i 

ADMINISTRATIVE LAW JUDGE ORDERS 

01-22-2010 

01-29-2010 

02-12-2010 

Billy Brannon v. Panther Mining, LLC. 

Claysville Quarry 

Knox Creek Coal Corporation 

ii 

KENT 2009-302-D 

SE 2008-71-M 

VA 2009-81-R 

Pg. 239 

Pg.242 

Pg.245 

JANUARY AND FEBRUARY 2010 

Review was granted in the following cases during the months of Januazy and Februaiy: 

Secretary of Labor, MSHA v. Ernest N. Matney, employed by Knox Creek Coal Corporation, 

Docket No. VA 2008-215. (Judge Feldman, December 3, 2009) 

Secretary of Labor, MSHA v. R & K Coal Company, Docket No. PENN 2009-290. (Unpublished 

Default order issued by Chief Judge Lesnick on January 5, 2010) 

Secretary of Labor, MSHA v. Black Castle Mining Company, Docket No. WEVA 2006-891-R, 

etc. (Judge Hodgdon, January 20, 2010) 

No case was filed in which review was denied during the months of January and February 

iii 

COMMISSION DEOSIONS AND ORDERS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

PINKY'S AGGREGATES, INC. 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

January 12, 2010 

Docket No. CENT 2009-848-M 

A.C. No. 32-00793-188600 

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

ORDER 

BY THE COMMISSION: 

This matter arises under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 

et seq. (2006) ("Mine Act"). On September 22, 2009, the Commission received from Pinky's 

Aggregates, Inc. ("PA") a letter seeking to reopen a penalty assessment that had become a final 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

32 FMSHRC Page 1 
The operator states that it received Proposed Assessment No, 000188600 on June 25, 

2009. PA submits that it failed to contest the proposed assessment in a timely manner because the 

assessment was "misplaced." The operator contends that the proposed assessment involves 

serious citations and requests that this matter be reopened . 

. The Secretary of Labor does not oppose PA' s request to reopen the proposed assessment. 

However, she urges the operator to take all steps necessary to ensure that, in the future, any 

penalty assessments are contested in a timely manner. 

32 FMSHRC Page 2 
Having reviewed PA's request to reopen and the Secretary's response, we conclude that 

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

proposed penalty assessment. The operator's statement that it failed to timely contest the 

proposed penalties because the proposed assessment was "misplaced" does not provide the 

Commission with an adequate basis to reopen without further elaboration. Accordingly, we 

hereby deny the request for relief without prejudice. See FKZ Coal Inc., 29 FMSHRC 177, 178 

(Apr. 2007). The words "without prejudice" mean that PA may submit another request to reopen 

Assessment No. 000188600 so that it can contest the proposed penalties. 1 

Robert F. Cohen, Jr., Commissioner 

1 If PA submits another request to reopen, it must establish good cause for not contesting 

the citations and proposed penalties within 30 days from the date it received the proposed 

assessment from MSHA. Under Rule 60(b) of the Federal Rules of Civil Procedure, the 

existence of "good cause" may be shown by a number of different factors including mistake, 

inadvertence, surprise, or excusable neglect on the part of the party seeking relief, or the 

discovery of new evidence, or fraud, misrepresentation, or other misconduct by the adverse party. 

PA should include a full description of the facts supporting its claim of"good cause," including 

how the mistake or other problem prevented PA from responding within the time limits provided 

in the Mine Act, as part of its request to reopen. PA should also submit copies of supporting 

documents with its request to reopen. 

32 FMSHRC Page 3 
Distribution: 

Jenny Letvin, Office Administrator 

Pinky's Aggregates, Inc. 

3731 86th St., N.E. 

Rolette, ND 58366 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

32 FMSHRC Page 4 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

APEX ENERGY, INC. 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

January 12, 2010 

Docket No. KENT 2009-1507 

A.C. No. 15-18040-184621 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On September 2, 2009, the Commission received from Apex 

Energy, Inc. ("Apex") a request to reopen a penalty assessment that had become a final order of 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

32 FMSHRC Page 5 
On May 6, 2009, the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued Proposed Assessment No. 000184621 to Apex, proposing penalties for various 

citations. Apex's safety director states that on May 20, 2009; he indicated on the proposed 

assessment form that Apex intended to contest the penalties for seven citations. He further states 

that Apex mistakenly mailed the contest, together with payment for the uncontested penalties, to 

MSHA' s office in St. Louis, Missouri, rather than to the Civil Penalty Compliance Office in 

Arlington, Virginia. The Secretary states that she does not oppose the reopening of the proposed 

penalty assessment. She notes that MSHA's St. Louis payment processing center received a 

payment from Apex for the uncontested penalties. 

Having reviewed Apex's request and the Secretary's response, in the interests of justice, 

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

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

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

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

-

Michael F. Dilft:y, Co 

Robert F. Cohen, Jr., Commissioner 

32 FMSHRC Page 6 
Distribution: 

Craig Spartan, Safety Dir. 

Apex Energy, Inc. 

P.O. Box 2100 

Pikeville, KY 41502 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

32 FMSHRC Page 7 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

ROGERS GROUP, INC. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

January 12, 2010 

Docket No. KENT 2009-1552-M 

A.C. No. 15-00013-190469 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On September l, 2009, the Commission received from 

Rogers Group, fuc. ("Rogers") a request to reopen a penalty assessment that had become a final 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

32 FMSHRC Page 8 
On July 8, 2009, the Department of Labor's Mine Safety and Health Administration 

C'MSHA") issued Proposed Assessment No. 000190469 to Rogers, proposing penalties for eight 

citations and an order that had been issued to Rogers in May 2009. Rogers states that it did not 

realize that the citations from the same inspections "came in two dockets." The Secretary states 

that she does not oppose Roger's request to reopen the assessment. 

32 FMSHRC Page 9 
Having reviewed Rogers' request to reopen and the Secretary's response, we conclude 

that the operator has 'not provided a sufficiently detailed explanation for its failure to timely 

contest the proposed penalty assessment. The operator's statement that it failed to timely contest 

the proposed penalties because it did not realize that citations from the same inspection "came in 

two dockets" does not provide the Commission with an adequate basis to reopen without further 

elaboration. Accordingly, we hereby deny the request for relief without prejudice. See Eastern 

Assoc. Coal, LLC, 30 FMSHRC 392, 394 (May 2008); James Hamilton Constr., 29 FMSHRC 

569, 570 {July 2007). The words ''without prejudice" mean that Rogers may submit another 

request to reopen Assessment No. 000190469 so that it can contest the proposed penalties.1 

Robert F. Cohen, Jr., Commissioner 

1 If Rogers submits another request to reopen, it must establish good cause for not 

contesting the citations and proposed penalties within 30 days from the date it received the 

proposed assessment from MSHA. Under Rule 60(b) of the Federal Rules of Civil Procedure, 

the existence of "good cause" may be shown by a number of different factors including mistake, 

inadvertence, surprise, or excusable neglect on the part of the party seeking relief, or the 

discovery of new evidence, or fraud, misrepresentation, or other misconduct by the adverse party. 

Rogers should include a full description of the facts supporting its claim of"good cause," 

including how the mistake or other problem prevented Rogers from responding within the time 

limits provided in the Mine Act, as part of its request to reopen. Rogers should also submit 

copies of supporting documents with its request to reopen. 

32 FMSHRC Page 10 
Distribution: 

Karonica Glover 

Safety Mngr. 

Rogers Group, Inc. 

P.O. Box 25250 

Nashville, TN 37202 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

32 FMSHRC Page 11 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

SEYMOUR STONE 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

January 12, 2010 

Docket No. PENN 2010-51-M 

A.C. No. 36-09754-189609 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On October 19, 2009, the Commission received from 

Seymour Stone ("Seymour") a request to reopen a penalty assessment that had become a final 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

32 FMSHRC Page 12 
The Department of Labor's Mine Safety and Health Administration ("MSHA") issued 

Proposed Assessment No. 000189609 to Seymour on June 30, 2009, proposing penalties for six 

citations and an order that had been issued to Seymour the previous month. Seymour appears to 

have sent its contest of all seven penalties to the local MSHA district office. The Secretary of 

Labor does not oppose reopening, but states that the proposed assessment fonn instructs that 

notices of contest are to be mailed to MSHA's Civil Penalty Compliance Office in Arlington, 

Virginia. 

The Secretary correctly points out that the proposed assessment fonn specifies that 

contests of proposed penalties are to be sent to the Arlington office. Nevertheless, we note that 

Seymour appears to have sent its contest to the local MSHA district office within the 30-day 

period for contests, and there is no indication that Seymour has previously sent contests to the 

wrong ·address. 1 Having reviewed Seymour's request and the Secretary's response, in the 

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

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

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

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

Robert F. Cohen, Jr., Commissioner 

1 We caution Seymour that it must send any future notices of contest regarding proposed 

penalties to the address specified on the proposed assessment form. 

32 FMSHRC Page 13 
Distribution: 

Scott R. Fressenden 

Seymour Stone 

64 Fessenden Rd. 

Roulette, PA 167 46 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 25t1t Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

32 FMSHRC Page 14 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

J.S. REDPATH CORPORATION 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

January 12, 2010 

Docket No. WEST 2010-93-M 

A.C. No. 26-02300-188847 R83 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On October 20, 2009, the Commission received a request 

from J.S. Redpath Corporation ("Redpath") to reopen a penalty assessment that had become a 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

32 FMSHRC Page 15 
The Department of Labor's Mine Safety and Health Administration ("MSHA") issued 

Proposed Assessment No. 000188847 to Redpath on June 23, 2009, proposing a penalty for a 

citation that had been issued to Redpath on May 12, 2009. By letter dated May 27, 2009, 

Redpath had already requested a conference on the citation with the local MSHA district office. 

Redpath subsequently contested the penalty for that citation by mailing the form to the same 

office, with a cover letter dated July 1, 2009. Because the contest form should have been mailed 

to MSHA's Civil Penalty Compliance Office in Arlington, Virginia, Redpath received a 

delinquency notice dated September 17, 2009, from MSHA. 

The Secretary of Labor opposes reopening in this instance. She points out that both the 

proposed assessment form and the letter Redpath received from the local MSHA office, dated 

June 16, 2009, acknowledging the conference request, specified that any contest of a proposed 

penalty is to be sent to MSHA's Arlington office. The Secretary also states that Redpath · 

previously had properly contested penalties. 

32 FMSHRC Page 16 
Having reviewed Redpath's request and the Secretary's response, in the interests of 

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

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

Part 2700. While what the Secretary states is correct, there is nothing in the record to indicate 

that Redpath' s previous contests involved citations or orders on which it had already requested a 

conference. Redpath did send its contest to the local MSHA district office within the 30-day 

period for contests. Accordingly, consistent with Rule 28, the Secretary shall file a petition for 

assessment of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28. 1 

Robert F. Cohen, Jr., Commissioner 

1 We caution Redpath that it must send any future notice of contest regarding proposed 

penalties to the address specified on the proposed assessment form, regardless of whether it has 

an outstanding conference request on any underlying citation or order. 

32 FMSHRC Page 17 
Distribution: 

Tanya Getz, Safety Representative 

1410 Greg St., Suite #404 

Sparks, NV 89431 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra J aJDes, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

32 FMSHRC Page 18 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

LONG BRANCH ENERGY 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

January 12, 2010 

Docket No. WEVA 2009-1982 

A.C. No. 46-08305-192713 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On September 29, 2009, the Commission received from Long 

Branch Energy ("Long Branch") a request to reopen a penalty assessment that had become a final 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. l995). 

32 FMSHRC Page 19 
Long Branch states that it mailed its contest of Proposed Assessment No. 000192713 to 

the Department of Labor's Mine Safety and Health Administration ("MSHA") approximately 

five days after the 30-day deadline. In a detailed submission and affidavit, Long Branch's 

president, who was responsible for filing notices of contest to penalty assessments, submits that 

he received the proposed assessment on August 4, 2009. He explains that on September 3, he 

indicated on the form that Long Branch was contesting four proposed penalties. On 

September 8, after a long holiday weekend, the operator's president realized that he had 

mistakenly failed to mail the form on September 3, and immediately mailed the form. Long 

Branch states that after it received a letter from MSHA on September 21 stating that the four 

penalties had become final orders, it promptly filed the request to reopen. 

The Secretary does not oppose Long Branch's request to reopen the proposed assessment. 

However, she urges the operator to take all steps necessary to ensure that, in the future, any 

penalty assessments are contested in a timely manner. 

32 FMSHRC Page 20 
Having reviewed Long Branch's request and the Secretary's response, in the interests of 

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

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

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

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

Mic ss10ner 

Robert F. Cohen, Jr., Commissioner 

32 FMSHRC Page 21 
Distribution: 

Gregory D. Patterson 

Long Branch Energy 

P.O. Box 776 

Danville, WV 25053 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

32 FMSHRC Page 22 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

ALLGEIER MARTIN & 

ASSOCIATES, INC. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

January 13, 2010 

Docket No. CENT 2010-50-M 

A.C. No. 23-00028-191940 CKP 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Acf'). On October 20, 2009, the Commission received from 

Carthage Crushed Limestone ("Carthage") a request to reopen a penalty assessment issued to 

Carthage's coJ).tractor, Allgeier Martin & Associates, Inc. ("Allgeier'') that had become a final 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

32 FMSHRC Page 23 
for a failure to timely respond, the case may be reopened and appropriate proceedings on the 

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

The Department of Labor's Mine Safety and Health Administration ("MSHA") issued 

Proposed Assessment No. 000191940 to Allgeier on July 22, 2009, proposing penalties for a 

citation and an order that had previously been issued to Allgeier. The contest form received by 

MSHA indicated that the penalty for the citation was being contested, but not the penalty for the 

order. The request to reopen indicates that Allgeier intended to contest both penalties, but 

apparently failed to indicate this on the form that was submitted to MSHA by Carthage. The 

motion to reopen was filed immediately after an MSHA delinquency notice was received for the 

uncontested penalty. The Secretary of Labor does not oppose reopening. 

32 FMSHRC Page 24 
Having reviewed the request and the Secretary's response, in the interests of justice, we 

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

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

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

penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28. 1 

Robert F. Cohen, Jr., Commissioner 

1 The request to reopen was filed by Jack Slates, who identifies himself as a 

Environmental Safety & Health Engineer with Carthage. Commission Procedural Rule 3 

provides that, in order to practice before the Commission, a person must either be an attorney or 

fall into one of the categories in Rule 3(b ), which include parties, representatives of miners, an 

"owner, partner, officer or employee" of certain parties, or "[a]ny other person with the 

pennission of the presiding judge or the Commission." 29 C.F.R. § 2700.3(b). Carthage is not a 

party in this proceeding, and it is unclear whether Mr. Slates satisfied the requirements of Rule 3 

when he filed the request on behalf of Allgeier. We have determined that, despite this, we will 

consider the merits of the request in this instance. However, in any future proceeding before the 

Commission, including further proceedings in this case, Allgeier must be represented by its 

owner, partner, officer, or employee, or Mr. Slates must demonstrate to the Commission or 

presiding judge that he fits within one of the categories set forth in Rule 3(b)(l)-(3) or seek 

permission to practice before the Commission or judge pursuant to Rule 3(b)(4). 

32 FMSHRC Page 25 
Distribution: 

Jack L. Slates 

Carthage Crusher Limestone 

1331 Civil War Rd. 

P .0. Box 1086 

Carthage, MO 64836 

W. Christian Schumann,. Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

32 FMSHRC Page 26 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

XMV,INC. 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

January 13, 2010 

Docket No. WEY A 2008-1783 

A.C. No. 46-09017-155948 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On September 4, 2008, and May 26, 2009, the Commission 

received from XMV, Inc. ("XMV") requests to reopen a penalty assessment that had become a 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

32 FMSHRC Page 27 
On May 11, 2009, the Commission denied without prejudice XMV's request on the basis 

that the operator had failed to provide a "sufficiently detailed explanation for its failure to timely 

contest the proposed penalty assessment." XMV, Inc., 31FMSHRC523, 525 (May 2009). On 

May 22, 2009, XMV filed a second motion to reopen the penalty assessment with affidavits and 

documentation that fully explain the reason for its delay in contesting the assessment. XMV 

described a miscommunication between it and its counsel as to whether the operator's Safety 

Director or counsel would file the notice of contest. This occurred at a time when the Safety 

Director was extremely busy addressing a problem involving a section 104(b) withdrawal order 

at the mine. Operator's counsel discovered the delinquency three weeks after it occurred, and 

promptly requested reopening. The Secretary has not opposed the requests to reopen. 

Having reviewed XMV's requests and the Secretary's response, in the interest of justice, 

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

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

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

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

Robert F. Cohen, Jr., Commissioner 

32 FMSHRC Page 28 
Distribution: 

M. Scott Meachum, Esq. 

Flaherty, Sensabaugh & Bonasso, PLLC 

200 Capitol St. 

P.O. Box 3843 

Charleston, WV 25338 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

32 FMSHRC Page 29 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

PAULSON ROCK PRODUCTS 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, D~ 20001 

January 19, 2010 

Docket No. LAKE 2010-72-M 

AC. No. 21-03213-191480 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On October 23, 2009, the Commission received from Paulson 

Rock Products ("Paulson'') a request to reopen a penalty assessment that had become a final 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

32 FMSHRC Page 30 
The Department of Labor's Mine Safety and Health Administration ("MSHA") issued 

Proposed Assessment No. 000191480 to Paulson on July 16, 2009, proposing penalties for nine 

citations that had been issued to the operator in May 2009. Paulson states that upon receiving the 

assessment it called, and spoke with, an individual in the local MSHA district office. According 

to Paulson, it understood from the conversation that it needed to contest the penalties through 

that office, so it sent the local MSHA office a letter detailing the grounds on which it was 

contesting six of the penalties and underlying citations. The Secretary of Labor does not oppose 

reopening, but states that the proposed assessment form instructs that notices of contest are to be 

mailed to MSHA's Civil Penalty Compliance Office in Arlington, Virginia. 

The Secretary correctly points out that the proposed assessment form specifies that 

contests of proposed penalties are to be sent to the Arlington office. Nevertheless, we note that 

Paulson sent its letter to the local MSHA district office within the 30-day period for contests, and 

there is no indication that Paulson has previously sent contests to the wrong address. 1 

Having reviewed Paulson's request and the Secretary's response, in the interests of 

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

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

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

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

Robert F. Cohen, Jr., Commissioner 

1 We caution Paulson that it must send any future notices of contest regarding proposed 

penalties to the address specified on the proposed assessment form. 

32 FMSHRC Page 31 
Distribution: 

Miki Paulson, Office Mngr; 

Paulson Rock Products 

P.O. Box 

Mantorville, MN 55955 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

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

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

January 20, 2010 

Docket No. CENT 2009-179-M 

A.C. No. 14-01650-156893 

HIGGINS STONE COMP ANY, INC. 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On December 29, 2008, the Commission received from 

Higgins Stone Company ("Higgins") a letter seeking to reopen a penalty assessment that had 

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

§ 815(a). 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

32 FMSHRC Page 33 
In its letter, Higgins asserts that the proposed assessment was lost when it moved its 

office to a new city. However, Higgins does not indicate when the move took place or provide 

any details regarding its handling of the proposed assessment. In addition, Higgins does not 

indicate which of the 16 violations contained in the assessment it seeks to contest. 

The Secretary states that although she does not oppose the reopening of the proposed 

penalty assessment, she urges that Higgins take all "steps necessary to ensure that future penalty 

assessments it wishes to contest are processed in a timely manner," including ensuring that ''the 

operator's address of record is accurate for any future notification of proposed assessments." 

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

has failed to provide an adequate basis for the Commission to reopen the proposed penalty 

assessment. Higgins has failed to substantiate its proferred justification for its delays in 

responding to the proposed assessment and does not specify which violations it wishes to contest. 

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

establishing an entitlement to extraordinary relief. At a minimum, the applicant for such relief 

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

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

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

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

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

knowledgeable of the situation and pertinent d~cuments should be included with the request to 

reopen. 

32 FMSHRC Page 34 
Accordingly, we hereby deny without prejudice Higgin' s request. FKZ Coal Inc., 29 

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

"without prejudice" mean that Higgins may submit another request to reopen the assessment so 

that it can contest the penalty assessment.1 

M L~Cil+ 

Robert F. Cohen, Jr., Commissioner 

1 Higgins should include in another request a full description of the facts supporting its 

explanation, including ( 1) the date it moved its office; (2) how it initially handled the proposed 

assessment; and (3) how quickly it acted upon receiving the November 3, 2008 delinquency 

notice. Higgins should also confirm that it has notified MSHA of its new address. 

32 FMSHRC Page 35 
Distribution: 

Angie S. Fair/Michael Higgins 

Higgins Stone Co., Inc. 

407 Miller Dr. 

Wamego, KY 66547 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

32 FMSHRC Page 36 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

DRUM SAND & GRAVEL, INC. 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

January 25, 2010 

Docket No. CENT 2009-833-M 

A.C. No. 03-01773-187135 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On September 16, 2009, the Commission received a request 

to reopen a penalty assessment issued to Drum Sand & Gravel, Inc. ("Drum") that had become a 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

On June 9, 2009, the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued Proposed Assessment No. 000187135 to Drum. Drum's request to reopen 

32 FMSHRC Page 37 
does not address any attempt on its part to file a contest of the proposed penalty assessment or to 

pay any of the penalties proposed by the assessment. Rather, Drum states why it wishes to 

contest various citations. 

The Secretary responds that the request to reopen should be denied in that it includes no 

explanation for why the contest form was not timely filed. The Secretary notes that MSHA's 

records show that the proposed assessment was delivered on June 16, 2009, and became a final 

order of the Commission on July 16, 2009. 

32 FMSHRC Page 38 
Because Drum's request for relief does not explain the company's failure to contest the 

proposed assessment on a timely basis, and is not based on any of the grounds for relief set forth 

in Rule 60(b ), we hereby deny the request for relief without prejudice. See FKZ Coal Inc., 29 

FMSHRC 177, 178 (Apr. 2007). The words "without prejudice" mean that Drum may submit 

another request to reopen the assessment. 1 

RobertF. Cohen, Jr., Commissioner 

1 If Drum submits another request to reopen, it must establish good cause for not 

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

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

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

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

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

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

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

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

to reopen and specify which proposed penalties it is contesting. 

32 FMSHRC Page 39 
Distribution: 

Jeff Drum, President 

Drum Sand & Gravel 

18800 Massengill Rd. 

P.O. Box 196 

Harrisburg, AR 72432 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

32 FMSHRC Page 40 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

January 25, 2010 

Docket No. KENT 2009-1289-M 

A.C. No. 15-17075-178181 

Docket No. KENT 2009-1290-M 

A.C. No. 15-17075-180774 

SPECIALTY ROCK PRODUCTS, INC. 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On July 6, 2009, the Commission received from Specialty 

Rock Products~ Inc. ("Specialty Rock") a motion by counsel seeking to reopen two penalty 

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

Mine Act, 30 U.S.C; § 815(a). 1 

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

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

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

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

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

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

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

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

consolidate docket numbers KENT 2009-1289-M and KENT 2009-1290-M, both captioned 

Specialty Rock Products, Inc., and both involving similar procedilral issues. 29 C.F.R. 

§ 2700.12. 

32 FMSHRC Page 41 
reopen final section 105(a) orders, the Commission has found guidance in Rule 60(b) of the 

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

from a final order of the Commission on the basis of inadvertence or mistake. See 29 C.F .R. 

§ 2700. l (b) ("the Commission and its Judges shall be guided so far as practicable by the Federal 

Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. We have also observed that default is a 

harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to 

timely respond, the case may be reopened and appropriate proceedings on the merits permitted. 

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

On March 3, 2009, the Department of Labor's Mine Safety and Health Administration 

(''MSHA") issued Proposed Assessment No. 000178181 to Specialty Rock, and on April 1, 2009, 

it issued Proposed Assessment No. 000180774 to Specialty Rock. The operator alleges that it 

sent its contests of the two proposed assessments to MSHA's Franklin, Tennessee, office rather 

than to the correct address ofMSHA's Civil Penalty Compliance Office in Arlington, Virginia, 

as indicated on the proposed assessment forms. The contests were apparently sent within the 30-

day time period for contesting proposed assessments although they were sent to the wrong 

office. 2 The Secretary does not oppose the operator's request to reopen. 

2 The operator also alleges that it attempted to contest two citations (Citation Nos. 

7771505 and 7771504) which were not assessed penalties in the proposed assessments that it 

seeks to reopen. It attached to its request to reopen a letter to MSHA requesting a conference on 

those citations, a response from MSHA instructing the operator that a conference would be 

scheduled once it contested the proposed assessment related to those citations, and its response 

contesting the citations. There is nothing in the record before us indicating if, or when, MSHA 

issued proposed assessments on these two citations, or the operator's response to such proposed 

assessments, if issued. The operator does not appear to request any relief with regard to the two 

citations. 

32 FMSHRC Page 42 
Having reviewed Specialty Rock's request and the Secretary's response, in the interests of 

justice, we hereby reopen Penalty Assessment Nos. 000178181 and 000180774 and remand the 

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

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

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

See 29 C.F.R. § 2700.28.3 

Michael 

Robert F. Cohen, Jr., Commissioner 

3 As to Citation Nos. 7771505 and 7771504, based on the operator's submission, the 

status of these two violations is unclear from the record. Because the operator does not request 

relief with regard to the citations, we do not address the question of whether any relief should be 

granted. 

32 FMSHRC Page 43 
Distribution: 

Wm. R. Whitledge, Esq. 

24 Court St. 

P.0.Box279 

Madisonville, KY 42431 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

32 FMSHRC Page 44 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMJNISTRATION (MSHA) 

v. 

WKJ CONTRACTOR'S INC. 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

January 25, 2010 

Docket No. KENT 2010-73 

A.C. No. 15-19116-157695 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On January 8, 2009, and October 15, 2009, the Commission 

received from WKJ Contractor's fuc. ("WKJ") motions by counsel seeking to reopen a penalty 

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

Mine Act, 30 U.S.C. § 815(a). 

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

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

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

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

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

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

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

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

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

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

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

by the Federal Rules of Civil Procedure"); JWR, 15 FMSHRC at 787. Under Rule 60(b ), any 

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

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

& Gravel, Inc., 26 FMSHRC 795, 796 (Oct. 2004). We have also observed that default is a harsh 

remedy and that, if the defaulting party can make a showing of good cause for a failure to timely 

32 FMSHRC Page 45 
respond, the case may be reopened and appropriate proceedings on the merits permitted. See 

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

On May 22, 2009, in Docket No. KENT 2009-624, the Commission denied without 

prejudice WKJ' s :first request to reopen on the basis that the operator failed to provide an 

explanation for why it failed to timely contest the proposed penalty assessment by returning the 

completed assessment form to the Civil Penalty Compliance Office of the Department of Labor's 

Mine Safety and Health Administration ("MSHA") in Arlington, Virginia, as instructed by the 

assessment form. WKJ Contractor's Inc., 31 FMSHRC 551, 552 (May 2009). Instead, the 

operator explained that it attempted to contest the underlying citation by mailing a notice of 

contest to MSHA's office in Barbourville, Kentucky, rather than to the Commission. 1 The 

Commission instructed the operator that if it submitted another request to reopen, it must 

establish good cause for not contesting the proposed penalty assessment within 30 days from the 

date the proposed assessment was received from MSHA. Id. We stated in part that WKJ should 

include "a full description of the facts supporting its claim of 'good cause,' including how the 

mistake or other problem prevented WKJ from responding within the time limits," and that it 

should also submit copies of supporting documents with its request to reopen. Id. at 553 n.3. 

On October 9, 2009, WKJ filed a second motion to reopen. In the motion, counsel for 

WKJ states that after it filed its contest of the underlying citation with MSHA's office in 

Kentucky, it was informed by MSHA that "all correspondence should have been sent to the 

Washington, DC, address," and that, since that time, all correspondence has been sent to that 

address. 

On November 13, the Secretary filed an opposition to WKJ's request to reopen. She 

states that the operator filed its second request more than one year after the penalty assessment 

became a final order on August 28, 2009, and that the request is untimely under Rule 60(b ). The 

Secretary also notes in part that the operator makes no showing of the exceptional circumstances 

1 The Mine Act sets forth a scheme of dual filing relating to contests of citations and 

orders (29 C.F.R. Part 2700, Subpart B), and contests of proposed penalties (29 C.F.R. Part 2700, 

Subpart C). The filing of a contest of a citation does not constitute a challenge to a proposed 

penalty for that citation. See 29 <;.F.R. § 2700.2l(a) ("The filing of a notice of contest of a 

citation or order issued under section 104 of the Act . . . does not constitute a challenge to a 

proposed penalty assessment that may subsequently be issued by the Secretary under 

section 105(a) of the Act ... which is based on that citation or order."); 29 C.F.R. § 2700.26 ("A 

person who wishes to contest a proposed penalty assessment must provide such notification 

regardless of whether the person has previously contested the underlying citation .... "). The 

operator explained that it had mailed its contest ofa citation to a regional MSHA office, rather 

than to the Commission, which is an independent agency that is separate from MSHA. However, 

the operator offered no explanation for why it failed to send the proposed penalty assessment 

form to MSHA in its Arlington, Virginia, office. 

32 FMSHRC Page 46 
that warrant reopening because the operator failed to explain why it failed to return the 

completed assessment form to MSHA's Civil Penalty Compliance Office in Arlington, Virginia. 

We conclude that WKJ' s request for relief was not made within a reasonable time and 

fails to provide an adequate basis for reopening. WKJ waited almost five months before filing its 

second motion to reopen and has not offered any reason for that delay. WKJ, as the movant, 

carries the burden of establishing its entitlement to relief Delay in seeking that relief, if 

unexplained, has been a relevant consideration in denial of motions to reopen. Left Fork Mining 

Co., 31 FMSHRC 8, 11(Jan.2009). Moreover, the operator again fails to offer any explanation 

for its failure to timely contest the proposed penalty assessment and merely reiterates the 

circumstances regarding the misfiling of its separate contest of the underlying citation. The 

operator has failed to provide the Commission with any basis to warrant reopening. Accordingly, 

we deny WKJ's request for relief 

M~dan,Ch#~ 

Robert F. Cohen, Jr., Commissioner 

32 FMSHRC Page 47 
Distribution: 

James W. Craft, II, Esq. 

WKJ Contractor's Inc. 

21 North Webb Ave. 

Whitesburg, KY 41858 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

32 FMSHRC Page 48 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMlNISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

January 25, 2010 

Docket No. LAKE 2009-265-M 

A.C. No. 47-00792-173702 

CEDAR LAKE SAND & GRAVEL CO. 

Docket No. LAKE 2009-694-M 

A.C. No. 47-00792-175338 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On September 4, 2009, the Commission received from Cedar 

Lake Sand & Gravel Co. ("Cedar Lake") a request to reopen a penalty assessment that had 

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

§ 815(a). 1 

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

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

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

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

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

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

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

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

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

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

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

consolidate docket numbers LAKE 2009-265-M and LAKE 2009-694-M, both captioned Cedar 

Lake Sand & Gravel Co., and both involving similar factual and procedural issues. 29 C.F.R. 

§ 2700.12. 

32 FMSHRC Page 49 
See 29 C.F.R. § 2700;l(b) (''the Commission and its Judges shall be guided so far as practicable 

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

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

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

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

On October 17, 2008, the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued Citation Nos. 7840542, 7840543, and 7840547 to Cedar Lake. On 

November 17, 2008, Cedar Lake's counsel filed notices contesting the three citations pursuant to 

29 C.F.R. § 2700.20. The notices of contest for Citation Nos. 7840542, 7840543, and 7840547 

were docketed in LAKE 2009-101-RM, LAKE 2009-102-RM, and LAKE 2009-103-RM, 

respectively, and those contest proceedings were stayed. 

On January 6, 2009, MSHA issued Proposed Assessment No. 000173702 to Cedar Lake, 

proposing civil penalties for Citation Nos. 7840542 and 7840543. The operator timely contested 

the proposed penalties pursuant to 29 C.F.R. § 2700.26. The Secretary moved for an extension 

of time to file a petition for assessment of penalty for the Citations, and the motion was granted. 

On June 8, 2009, the Secretary filed a petition for assessment of penalty, pursuant to 29 C.F .R. 

§ 2700.28, and the matter was docketed as a civil penalty proceeding in LAKE 2009-265-M. 

After Cedar Lake failed to file an answer to the petition for assessment of penalty, Chief 

Administrative Law Judge Robert J. Lesnick issued an order on November 9, 2009, directing 

Cedar Lake to file an answer within 30 days of the date of that order or to show good reason for 

its failure to do so. The Judge stated that, otherwise, Cedar Lake will be placed in default and 

ordered to pay the amount of the proposed penalties. 

On January 27, 2009, MSHA issued Proposed Assessment No. 000175338 to Cedar Lake, 

proposing a·civil penalty for Citation No. 7840547. Cedar Lake did not timely contest the 

proposed penalty,· and the proposed assessment became a final order of the Commission pursuant 

to section 105(a) of the Mine Act. 30 U.S.C. § 815(a); see also 29 C.F.R. § 2700.27. 

On September 4, 2009, the Commission received a letter from Cedar Lake's counsel 

requesting that the Commission reopen all proposed penalty assessments related to Citation Nos. 

7840542, 7840543, and 7840547. Counsel explains that he entered his appearance as counsel 

when he filed the contests of the citations in November 2008, but that counsel received no 

subsequent filings from MSHA. The operator's counsel submits a contest of the proposed 

penalty assessments in the event the Commission grants Cedar Lake's request to reopen. The 

Secretary does not oppose the operator's motion. 

The Mine Act sets forth a scheme of dual filing relating to contests of citations and orders 

(29 C.F.R. Part 2700, Subpart B), and contests of proposed penalties (29 C.F.R. Part 2700, 

Subpart C). The filing of a contest of a citation does not constitute a challenge to. a proposed 

penalty for that citation. See 29 C.F.R. § 2700.2l(a) ("The filing of a notice of contest of a 

citation or order issued under section 104 of the Act . . . does not constitute a challenge to a 

32 FMSHRC Page 50 
proposed penalty assessment that may subsequently be issued by the Secretary under section 

105(a) of the Act ... which is based on that citation or order."); 29 C.F.R. § 2700.26 ("A person 

who wishes to contest a proposed penalty assessment must provide such notification regardless 

of whether the person has previously contested the underlying citation .... "). Thus, after filing . 

the notices of contest of Citation Nos. 7840542, 7840543, and 7840547 in November 2008, the 

operator was still required to file contests of the proposed penalties associated with those 

citations.2 The operator timely contested the proposed penalties associated with Citation Nos. 

7840542 and 7840543, but failed to do so with respect to the proposed penalty associated with 

Citation No. 7840547. In addition, to date the operator has not filed an answer to the petition for 

assessment of penalty filed by the Secretary in Docket No. LAKE 2009-265-M (A.C. No. 47-

00792-173702) relating to Citation Nos. 7840542 and 7840543.3 

2 We note that contests of citations and orders are filed with the Commission, and that 

MSHA, which is separate from the Commission, issues the proposed penalty assessments. Thus, 

even if an attorney enters an appearance with the Commission by filing a contest of a citation 

under 29 C.F.R. Part 2700, Subpart B, MSHA sends a proposed penalty assessment to the 

operator's address of record listed with MSHA. 

3 Pursuant to our rules, when an operator wishes to contest a penalty assessment, it must 

notify the Secretary. Commission Procedural Rule 26, 29 C.F.R. § 2700.26. However, after an 

operator successfully contests a penalty assessment by notifying the Secretary, the Secretary files 

a penalty petition with the Commission, and then the operator must file an answer to that 

petition. Commission Procedural Rule 29, 29 C.F.R. § 2700.29. The "answer'' submitted by the 

operator in .this case does not satisfy the requirement of Rule 29, as it does not respond to a 

penalty petition. 

32 FMSHRC Page 51 
Having reviewed Cedar Lake's request and the Secretary's response, in the interests of 

justice, we hereby reopen Proposed Penalty Assessment No. 000175338 relating to Citation No. 

7840547 (LAKE 2009-694-M). We remand this matter to the Chief Administrative Law Judge 

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

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

assessment of penalty within 45 days of the date of this order relating to Proposed Penalty 

Assessment No. 000175338, and the operator shall file an answer to that petition within 30 days 

after service of the petition. See 29 C.F.R. §§ 2700.28, 2700.29. The operator must also file an 

answer to the petition for assessment of penalty filed relating to Proposed Assessment 

No. 000173702 for Citation Nos. 7840542 and 7840543 (LAKE 2009-265-M) within 30 days of 

the date of this order. See 29 C.F .R. § 2700.29. 

Robert F. Cohen, Jr., Commissioner 

32 FMSHRC Page 52 
Distribution: 

Troy D. Thompson, Esq. 

Axley Brynelson, LLP. 

P.O. Box 1767 

Madison, WI 53701-1767 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra J atnes, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 25t1t Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

32 FMSHRC Page 53 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

FRASURE CREEK MINING, LLC 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

January 25, 2010 

Docket No. WEV A 2010-90 

AC. No. 46-09209-190396 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On October 20, 2009, the Commission received from Frasure 

Creek Mining, LLC (''Frasure Creek") a motion by counsel to reopen a penalty assessment that 

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

U.S.C. § 815(a). 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

32 FMSHRC Page 54 
On July 7, 2009, the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued Proposed Assessment No. 000190396 to Frasure Creek, proposing a penalty 

for a citation that had been issued to the operator approximately a month earlier. Frasure Creek 

states that it had previously indicated its intent to contest the citation by requesting a conference 

on it with the local MSHA office, but it did not realize that the assessment had been issued until 

it received a delinquency notice from MSHA. Frasure Creek explains that the employee who 

was responsible for forwarding assessments to the appropriate management official was 

terminated in August 2009, and that while the company soon thereafter searched her files for 

assessments and found some, the assessment at issue was never located. The Secretary states that 

she does not oppose Frasure Creek's request to reopen the assessment. 

Having reviewed Frasure Creek's request and the Secretary's response, in the interests of 

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

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

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

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

Robert F. Cohen, Jr., Commissioner 

32 FMSHRC Page 55 
Distribution: 

Christopher D. Pence, Esq. 

Allen, Guthrie, & Thomas, PLLC 

500 Lee Street, East, Suite 800 

P.O. Box 3394 

Charleston, WV 25333 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

32 FMSHRC Page 56 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

WILLIAMS & SONS 

SLATE & TILE, INC. 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

January 25, 2010 

Docket No. PENN 2006-75-M 

A.C. No. 36-07156-47898 

Docket No. PENN 2006-76-M 

A.C. No. 36-07156-67440 A 

Docket No. PENN 2006-77-M 

A.C. No. 36-07156-70601 

Docket No. PENN 2006-78-M 

A.C. No. 36-07156-45867 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On September 15, 2009, the Commission received a motion 

from the Secretary of Labor seeking to reopen dismissal orders issued by Chief Administrative 

Law Judge Robert Lesnick in these proceedings. The orders involve four proposed penalty 

assessments issued to Williams & Sons Slate & Tile, Inc. ("Williams") that had become final 

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

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

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

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

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

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

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

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

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

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

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

32 FMSHRC Page 57 
See 29 C.F.R. § 2700.l(b) ("the Commission and its Judges shall be guided so far as practicable 

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

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

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

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

The Department of Labor's Mine Safety and Health Administration ("MSHA") issued the 

following proposed assessments to Williams on the dates noted: A.C. No. 36-07156-45867 

(PENN 2006-78-M), issued on December 16, 2004; A.C. No. 36.;07156-47898 (PENN 

2006-75-M), issued on January 13, 2005; A.C. No. 36-07156-67440 A (PENN 2006-76-M), 

issued on September 15, 2005; and A.C. No. 36-07156-70601(PENN2006-77-M), issued on 

October 28, 2005. When Williams failed to timely contest the proposed penalty assessments, the 

proposed assessments became final orders of the Commission by operation of section 105( a) of 

the Mine Act. 

Williams subsequently filed a motion requesting the Commission to reopen the penalty 

assessments. On February 27, 2006, the Commission issued an order remanding the matter to the 

Chief Judge for a determination of whether good cause existed for Williams' failure to timely 

contest the penalty proposals and whether relief from the final orders should be granted. 

Williams & Sons Slate & Tile, Inc., 28 FMSHRC 13, 15 (Feb. 2006). 

On January 7, 2008, the Chief Judge issued an order reopening the penalty assessments 

and directing the Secretary to file petitions for assessment of penalty pursuant to 29 C.F .R. 

§ 2700.28. The Judge reopened the orders based on an explanation provided by the operator by 

sworn statement dated December 26, 2006, that it failed to timely contest the proposed penalty 

assessments due to its owner's medical conditions and treatments. 

By letter dated January 22, 2008, the Secretary informed the Judge that Williams had paid 

all of the subject Civil penalties in full. The Secretary further stated that the operator did not wish 

to pursue the cases further. Based upon these representations, the Judge issued orders dismissing 

these proceedings on January 26, 2009. Pursuant to section 113(d) of the Mine Act, the Judge's 

dismissal orders became final orders of the Commission 40 days after their issuance, on March 9, 

2009. 30 u.s.c. § 823(d)(l) .. 

On September 15, 2009, the Commission received a request to reopen the dismissal 

orders from the Secretary. The Secretary explains that she recently ascertained that the penalties 

had not, in fact, been paid by the operator. Rather, MSHA had misapplied payments from 

another company with a similar name to Williams' account. The operator has not responded to 

the Secretary's motion. 

Having reviewed the Secretary's motion, we remand this matter to the Chief Judge for a 

determination of whether the dismissal orders should be reopened. Ifit is determined that relief 

32 FMSHRC Page 58 
from the final orders is appropriate, this case shall proceed pursuant to the Mine Act and the 

Commission's Procedural Rules, 29 C.F.R. Part 2700. 

Robert F. Cohen, Jr., Commissioner 

32 FMSHRC Page 59 
Distribution: 

Robert S. Williams, Sr. 

Williams & Sons Slate & Tile, Inc. 

6596 Sullivan Trail 

Wind Gap, PA 18091-9798 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

32 FMSHRC Page 60 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

R & K COAL COMP ANY, INC. 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

January 26, 2010 

Docket No. PENN 2008-290 

A.C. No. 36-08341-143134 

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

DIRECTION FOR REVIEW AND ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On April 22, 2009, Chief Administrative Law Judge Robert 

Lesnick issued to R & K Coal Company, Inc. ("R & K") an Order to Show Cause for failure to 

answer the Secretary of Labor's petition for assessment of penalty. On January 5, 2010, Chief 

Judge Lesnick issued an Order of Default dismissing this civil penalty proceeding for failure to 

respond to the.show cause order. 

On January 11, 2010, the Commission received from R & Ka request to set aside the 

default order. Attached to its request is a letter from Independent Miners and Associates 

("IMA") addressed to the Chief Judge dated April 24, 2009, that appears to be R & K's answer to 

the Secretary's petition. In addition, a fax cover sheet from IMA to the Regional Solicitor's 

Office dated April 24, 2009, is attached to the request. 

The judge'sjurisdiction in this matter terminated when his decision was issued on 

January 5, 2010. 29 C.F.R. § 2700.69(b). Relief from a judge's decision maybe sought by filing 

a petition for discretionary review within 30 days of its issuance. 30 U.S.C. § 823( d)(2); 29 

C.F.R. § 2700.70(a). We deem R & K's request to constitute a timely filed petition for 

discretionary review, which we grant. See, e.g., Middle States Res., Inc., 10 FMSHRC 1130 

(Sept. 1988). 

R & K allegedly submitted an answer in· April 2009 to the Secretary's petition for 

assessment of penalty. However, the Commission apparently did not receive R & K's answer at 

that time. Accordingly, the judge entered a default judgment against R & K. Based on the 

32 FMSHRC Page 61 
present record, we are unable to determine whether R & K timely submitted its answer, and if so, 

why it apparently was not received. 

Having reviewed R & K's request, in the interest of justice, we remand this matter to the 

Chief Administrative Law Judge, who shall determine whether relief from default is warranted, 

and for further proceedings as appropriate pursuant to the Mine Act and the Commission's 

Procedural Rules, 29 C.F.R. Part 2700.1 

Robert F. Cohen, Jr., Commissioner 

1 The request for relief and R & K's answer were filed by IMA. Commission Procedural 

Rule 3 provides that, in order to practice before the Commission, a person must either be ~ 

attorney or fall into one of the categories in Rule 3(b ), which include parties, representatives of 

miners, an owner, partner, officer or employee of certain parties, or "[a]ny other person with the 

permission of the presiding judge or the Commission." 29 C.F.R. § 2700.3(b). IMA is not a 

party in this proceeding, and it is unclear whether IMA satisfied the requirements of Rule 3 when 

it filed the request and answer on behalf of R & K. We have determined· that, despite this, we 

will act on the petition in this instance. However, in any future proceeding before the 

Commission, including further proceedings in this case, R & K must be represented by its owner, 

partner, officer, or employee, or IMA must demonstrate to the Commission or presiding judge 

that it fits within one of the categories set forth in Rule 3(b)(l)-(3) or seek permission to practice 

before the Commission or judge pursuant to Rule 3(b )( 4). 

32 FMSHRC Page 62 
Distribution: 

Jerry W. Lucas, Owner 

R&KCoalCo. 

642 Suedburg Rd. 

Pine Grove, PA 17963 

Cindy Rothermel 

Independent Miners Assoc. 

44 North Crescent, St. 

Tremon, PA 17981 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209:-2296 

Robin Rosenbluth, Esq. 

Office of the Solicitor 

U.S. Dept. of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

32 FMSHRC Page 63 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

M1NE SAFETY AND HEALTII 

ADMINISTRATION (MSHA) 

v. 

KEOKEE MINING, LLC 

601 NEW JERSEY AVENUE. NW 

SUITE9500 

WASHINGTON, DC 20001 

January 27, 2010 

Docket No. VA 2009-269 

A.C. No. 44-06947-158919 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq: (2006) ("Mine Act"). On May 7, 2009, the Commission received a request to 

reopen a penalty assessment issued to Keokee Mining, LLC ("Keokee") that had become a final 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

32 FMSHRC Page 64 
On July 31, 2008, the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued Proposed Assessment No. 000158919 to Keokee, proposing penalties for three 

citations and Order No. 6636916. Keokee states that it received the proposed assessment soon 

after it was issued and forwarded it to its counsel to contest the penalty for the order. The 

operator states that its counsel failed to file the contest through "inadvertence and oversight." 

Keokee maintains that it became aware that the proposed assessment had not been contested on 

May 4, 2009, when it contacted its counsel about individual civil penalties that the Secretary 

assessed against one ofKeokee;s supervisors. 

The Secretary opposes reopening on the ground that Keokee has failed to make a showing 

of the exceptional circumstances that warrant reopening. The Secretary argues that the operator's 

conclusory statement that its counsel failed to timely contest the proposed penalty through 

inadvertence and oversight is insufficient to establish a basis for reopening. In addition, the 

Secretary contends that the operator fails to explain why, after it was informed that it had not 

contested the penalty assessment, it took as long as it did to request reopening. The Secretary 

asserts that although MSHA sent Keokee a delinquency notice on November 4, 2008, and the 

operator paid the assessment by check dated December 4, 2008, the operator did not request 

reopening until May 2009, approximately seven months after receiving the delinquency notice 

and six months after payment. 

32 FMSHRC Page 65 
Having reviewed Keokee's request to reopen and the Secretary's response thereto, we 

agree that Keokee has failed to provide an adequate basis for the Commission to reopen the 

penalty assessment. Keokee's conclusory statement that its counsel failed to timely contest the 

proposed assessment through "inadvertence and oversight" lacks sufficient detail and does not 

provide the Commission with an adequate basis to reopen.

1 Furthermore, Keokee has failed to 

explain its delay in responding to the delinquency notice.2 Keokee has also failed to explain why 

it is seeking reopening after paying the assessment. Accordingly, we hereby deny without 

prejudice Keokee's request. FKZ Coal Inc., 29 FMSHRC 177, 178 (Apr. 2007); Petra 

Materials, 31FMSHRC47, 49 (Jan. 2009). 

Robert F. Cohen, Jr., Commissioner 

1 In requesting relief from a final order, a client may be held accountable for the acts and 

omissions of its _attorney. See Pioneer Inv. Servs. Co. v. Hrunswick Assoc. Ltd. Partnership, 507 

U.S. 380, 396-97 (1993) (holding that the neglect of both respondents and their counsel is 

relevant in detemiining whether respondents' failure to file their proofs of claim in a bankruptcy 

proceeding prior to the bar date was excusable); Easley v. Kirmsee, 3 82 F .3d 693, 698-700 (7th 

Cir. 2004) (although attorney carelessness may constitute "excusable neglect" under Rule 

60(b )(1 ), attorney inattentiveness to litigation, such as failure to comply with pretrial scheduling 

orders and filing deadlines, is not excusable, and clients must be held accountable for. the acts 

and omissions of their attorneys). 

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

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

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

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

issue that Keokee failed to explain why, after it was informed of the delinquency, it took as long 

as it did to request reopening, the operator did not file a reply providing an explanation. We 

encourage parties seeking reopening to provide further information in response to pertinent 

questions raised in the Secretary's response. See, e.g., Climax Molybdenum Co., 30 FMSHRC 

439, 440 n.l (June 2008). 

32 FMSHRC Page 66 
Distribution: 

Timothy W. Gresham, Esq. 

Penn, Stuart & Eskridge 

P.O. Box 2288 

Abingdon, VA 24212 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

32 FMSHRC Page 67 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

January27, 2010 

Docket No. VA 2009-438 

A.C. No. 44-06685-182176 

BANNER BLUE COAL COMPANY 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On September 24, 2009, the Commission received from 

Banner Blue Coal Company ("Banner'') a motion by counsel seeking to reopen a penalty 

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

Mine Act, 30 U.S.C. § 815(a). 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

. 32 FMSHRC Page 68 
On April 14, 2009, the Department of Labor's Mine Safety and Health Ad.ministration 

("MSHA") issued Proposed Assessment No. 000182176 to Banner, which listed proposed 

penalties for 34 citations. In a detailed submission, the operator states that it intended to contest 

the proposed penalties for nine of those citations but that it failed to do so in a timely manner. 

The operator's safety director states in an affidavit that, on May 14, 2009, the proposed 

assessment form was completed and forwarded to the human resources department, and, on 

May 15, the form was forwarded to the accounts payable department along with four other 

matters. The safety director states that, at this time, the corporate headquarters was being moved, 

and that the subject proposed assessment "was lost in the shuffle." He submits that the mistake 

was discovered two months later and that the contest was mailed to MSHA on July 24, 2009. 

The operator states that MSHA notified Banner that its contest was untimely by letter dated 

August 13, 2009. After receiving the letter, Banner investigated the matter and filed its request 

to reopen. 

The Secretary responds that she does not oppose the operator's request to reopen. She 

notes, however, that a delinquency notice was mailed to the operator on July 9, 2009. 

32 FMSHRC Page 69 
Having reviewed Banner's request and the Secretary's response, in the interests of justice, 

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

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

2700. 1 Accordingly, consistent with Rule 28, the Secretary shall filea petition for assessment of 

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

Robert F. Cohen, Jr., Commissioner 

1 The Commission has previously recognized that an operator's failure to respond to a 

delinquency notice may constitute grounds for dismissal with prejudice. See, e.g., Newmont USA 

Ltd., 31 FMSHRC 862, 863 n.2 (Aug. 2009). It has explained that, accordingly, an operator who 

does not explain why, after it was informed of a delinquency, it took as long as it did to request 

reopening, does so at its peril. Id. We have encouraged parties seeking reopening to provide 

further information in response to pertinent issues raised in the Secretary's response. Id. Here, 

Banner did not file a reply to the Secretary's response explaining whether it received the 

delinquency notice. It appears, however, that Banner filed its contest of the proposed penalty 

close to the time that the delinquency notice was issued. In addition, it appears that Banner filed 

its request to reopen within a reasonable time after receiving MSHA's August 13 letter. 

32 FMSHRC Page 70 
Distribution: 

Matthew H. Nelson, Esq. 

Dinsmore & Shohl, LLP 

215 Don Knotts Blvd., Suite 310 

Morgantown, WV 26501 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

32 FMSHRC Page 71 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE 9500 

WASHINGTON, DC 20001 

January 27, 2010 

Docket No. WEVA2009-370 

A.C. No. 46-08436-157026 

PERFORMANCE COAL COMP ANY 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) (''Mine Act"). On December 1, 2008, the Commission received from 

Performance Coal Company ("Performance'') a motion by counsel seeking to reopen a penalty 

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

Mine Act, 3,0 U.S.C. § 815(a). 

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

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

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

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

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

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

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

reopen final section I 05( a) orders, the Commission has found guidance in Rule 60(b) of the 

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

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

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

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

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

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

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

32 FMSHRC Page 72 
On July 15, 2008, the Department of Labor's Mine Safety and Health Administration 

issued a proposed penalty assessment for 19 violations totaling $34,269 to Performance. 

Performance states that it received the proposed penalty assessment on July 25, 2008. It explains 

that it failed to timely process the proposed assessment because of a change in safety directors at 

the company around the time of its receipt of the proposed assessment. Specifically, 

Performance states that the transition occurred between June and August 2008. fu June and July 

2008, Performance states that its current safety director was frequently out of the office for up to 

two weeks at a time, while the new safety director, who did not assume responsibility until 

August, was being trained. It asserts that during this transition, the proposed assessment was 

misplaced when files and offices were moved and was not discovered until October 20, 2008.1 

Upon discovering the overdue assessment, the operator states that it promptly submitted the 

assessment to its counsel on October 21. 

The Secretary opposes reopening the proposed penalty assessment, maintaining that 

Performance has failed to establish the existence of"exceptional circumstances." Specifically, 

the Secretary contends that for two months, the operator's system for handling penalty 

assessments was inadequate, which militates against reopening. She states that inadequate or 

unreliable internal procedures do not constitute an adequate excuse to reopen. 

1 We are concerned by the admission of the current safety director that "any forms 

received during this transition process between safety directors would not have been promptly 

received." Af£ of Gregory Raines at 2. During periods of personnel changes, back-up systems 

should be instituted to make sure that penalties are contested in a timely manner. Rather than 

assuming that late-filed penalty contests are "justifiable and unavoidable" during such 

transitions, Mot. at 4, a prudent operator would institute an alternate procedure to ensure that 

penalties are contested by the clear statutory deadline. 

32 FMSHRC Page 73 
Having reviewed Perfonnance's request and the Secretary's response, we conclude that 

Performance has failed to provide a sufficiently detailed explanation for its failure to timely 

contest the proposed penalty assessment. Performance's explanation that it failed to file a timely 

contest due to a "change in safety directors," without further elaboration, does not provide the 

Commission with an adequate basis to justify reopening of the assessment. 2 Accordingly, we 

deny without prejudice Perfonnance' s request. See, e.g., Eastern Associated Coal LLC, 30 

FMSHRC 392, 394 (May 2008); James Hamilton Constr., 29 FMSHRC 569, 570 (July 2007). 

Robert F. Cohen, Jr., Commissioner 

2 We note that in addition to the operator's initial two month delay in handling the final 

proposed penalty assessment, it appears that counsel for the operator delayed for approximately 

40 more days in filing a request to reopen without any explanation for this delay. Thus, the law 

finn took I 0 days longer to act than the Mine Act pennits for contesting the penalty in the first 

instance. A party seeking to reopen a final proposed assessment must explain such delays, in 

addition to any delays in failing to timely contest. 

32 FMSHRC Page 74 
Distribution: 

Carol Ann Marunich, Esq. 

Dinsmore & Shohl, LLP 

215 Don Knotts Blvd., Suite 310 

Morgantown, WV 26501 

Myra James, Chief 

Office of Civil Penalty Compliance· 

MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

32 FMSHRC Page 75 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

F & G RESOURCES, LLC 

SUITE9500 

WASHINGTON, DC 20001 

January 28, 2010 

Docket No. KENT 2009-1076 

A.C. No. 15-18516-161572 

Docket No. KENT 2009-1077 

A.C. No. 15-18516-170126 

Docket No. KENT 2009-1078 

A.C. No. 15-18571-173098 

Docket No. KENT 2009-1079 

A.C. No. 15-18516-175641 

Docket No. KENT 2009-:-1080 

A.C. No. 15-18571-175642 

Docket No. KENT 2009-1081 

A.C. No. 15-18516-178191 

Docket No. KENT 2009-1082 

A.C. No. 15-18571-178192 

Docket No. KENT 2009-1083 

A.C. No. 15-18516-180784 

Docket No. KENT 2009-1084 

A.C. No. 15-18571-180786 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On May 20, 2009, the Commission received a request to 

reopen nine penalty assessments issued to F & G Resources, LLC ("F & G") that may have 

32 FMSHRC Page 76 
become final orders of the Commission pursuant to section 105(a} of the Mine Act, 30 U.S.C. 

§ 815(a}. 1 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Docket Nos. KENT 2009-1078: KENT 2009-1080: KENT 2009-1082; 

and KENT 2009-1084 

F & G states that it never received Proposed Assessment Nos. 000173098, 000175642, 

000178192 and 000180786. The Secretary confirms that the four proposed assessments were 

returned to the Department of Labor's Mine Safety and Health Administration ("MSHA") as 

undelivered. The Secretary submits that in order to achieve proper service, she will mail the 

proposed assessments by U.S. Postal Service, Certified Mail, to the address provided in the 

operator's reopening request. 

Having reviewed F & G's request and the Secretary's response, we find F & G's request 

to reopen Proposed Assessment Nos. 000173098, 000175642, 000178192 and 000180786 to be 

moot. The Secretary may proceed as she has outlined in her response, and, if any of the proposed 

penalties are contested by F & G, this case shall proceed pursuant to the Mine Act and the 

Commission's Procedural Rules, 29 C.F.R. Part 2700. See Lehigh Cement Co., 28 FMSHRC 

440, 441 (July 2006). 

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

consolidate docket numbers KENT 2009-1076 through KENT 2009-1084, all captioned F & G 

Resources, LLC, and involving similar factual and procedural issues. 29 C.F.R. § 2700.12. 

32 FMSHRC Page 77 
Docket No. KENT 2009-1081 

F & G states that it never received Proposed Assessment No. 000178191 and attaches an 

MSHA Civil Penalty Collection Report that indicates that the proposed assessment became a 

final order on April 9, 2009. The Secretary responds that Proposed Assessment No. 000178191 

was timely contested and is the subject of Docket Nos. KENT 2009-919 and KENT 2009-920. 

Accordingly, having reviewed F & G's request and the Secretary's response, we find 

F & G's request to reopen Proposed Assessment No. 000178191 to be moot. F & G may pursue 

its contest of the proposed assessment in Docket Nos. KENT 2009-919 and KENT 2009-920.2 

Docket Nos. KENT 2009-1076: KENT 2009-1077; KENT 2009-1079; 

and KENT 2009-1083 

In its motion to reopen, F & G states that it never received Proposed Assessment Nos. 

000161572, 000170126, 000175641, and 000180784. It asserts that its superintendent either did 

not know or understand the significance of the assessment sheets, and that the sheets were 

apparently misplaced or lost. 

The Secretary opposes reopening these four proposed assessments because she contends 

that the operator failed to demonstrate the exceptional circumstances that warrant reopening. She 

asserts that the superintendent's ignorance of the rules and law is not a permissible ground for 

reopening under Rule 60(b )(1 ). The Secretary further states that the operator failed to explain 

why, after it was informed that it had not contested some of the penalty assessments, it took as 

long as it did to request reopening. The Secretary explains that MSHA's records indicate that the 

operator requested reopening six months, three months, and one month, respectively, after being 

notified of the delinquencies regarding Proposed Assessment Nos. 000161572, 000170126, and 

000175641. 

F & G subsequently filed an amended motion to reopen in which it states that after further 

investigation, it discovered that Proposed Assessment Nos. 000161572, 000170126, and 

00017 5641 were never delivered to the person and address that were listed on the legal 

identification form. It explains that the proposed assessments were delivered to and signed for by 

the General Manager of the operator who owned the Gracie No. 1 Mine before F & G. 

In its amended motion, F & G does not explain why it did not contest Proposed 

Assessment No. 000180784 (Docket No. KENT 2009-1083). 

2 As indicated on the Civil Penalty Collection Report attached to F & G's amended 

motion to reopen, 15 of the 25 violations contained in Proposed Assessment No. 000178191 

remain unpaid. Our action here does not change the status of the 15 delinquent citations 

contained in Proposed Assessment No. 000178191. 

32 FMSHRC Page 78 
We note that the record shows that all four of these proposed assessments were delivered 

to the same address (F & G Resources, LLC; Attn: Robert Gregory Jr. -Owner; 1014 N. 12th St. 

Ste. 2A; Middlesboro, KY 40965). Likewise, Proposed Assessment No: 000178191, which 

F & G partially contested, was delivered to this same address. The fact that F & G received and 

dealt with another proposed assessment during the period when it was failing to contest the four 

proposed assessments at issue here is relevant to the issue of receipt or non-receipt of these four 

proposed assessments. 

Having reviewed F & G's requests and the Secretary's response, in the interests of justice, 

we remand Proposed Assessment Nos. 000161572, 000170126, 000175641, and 000180784 to 

the Chief Administrative Law Judge for a determination of whether F & G's request should be 

granted in whole or in part. 

The present record is insufficient to resolve certain issues. On remand, the Chief Judge 

should take additional evidence and determine whether F & G received the proposed assessments 

and delinquency notices, and whether the operator unreasonably delayed in filing its motion to 

reopen.3 

3 fu considering whether an operator has unreasonably delayed in filing a motion to 

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

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

e.g., Left Fork Mining Co., 31FMSHRC8, 11(Jan.2009). Although the Secretary raised the 

issue that F & G failed to explain why, after it was informed of the delinquency, it took as long as 

it did to request reopening, the operator did not file a reply providing an explanation. We 

encourage parties seeking reopening to provide further information in response to pertinent 

questions raised in the Secretary's response. See, e.g., Climax Molybdenum Co., 30 FMSHRC 

439, 440 n.1 (June 2008). 

32 FMSHRC Page 79 
The Judge shall order further appropriate proceedings based upon those determinations in 

accordance with the principles described herein, the Mine Act, and the Commission's Procedural 

Rules, 29 C.F.R. Part 2700. 

Robert F. Cohen, Jr., Commissioner 

32 FMSHRC Page 80 
Distribution: 

Richard Cohelia 

F & G Resources, LLC 

P.O. Box 576 

Middlesboro, KY 40965 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

32 FMSHRC Page 81 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

COAL RIVER MINING, LLC 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

February 2, 2010 

Docket Nos. WEVA 2006-125-R 

WEV A 2006-126-R 

WEV A 2006-127-R 

WEVA 2006-128-R 

WEVA 2007-196 

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

DECISION 

BY THE COMMISSION: 

These consolidated contest and civil penalty proceedings arise under the Federal Mine 

Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2006) ("Mine Act" or "Act"). 

Administratj.ve Law Judge David Barbour upheld in whole or part both a citation charging Coal 

River Mining, LLC ("Coal River") with a violation of30 C.F.R. § 75.340(a)1 and three orders, 

issued by the Department of Labor's Mine Safety and Health Administration ("MSHA"). 

31FMSHRC192 (Jan. 2009) (ALJ). The Commission subsequently granted the Secretary of 

Labor's petition for discretionary review, which challenged (1) the judge's determination that the 

section 75.340(a) violation was not attributable to Coal River's unwarrantable failure to comply, 

and (2) the penalties the judge assessed for that citation and the three orders. For the reasons that 

1 Section 75.340(a) provides in pertinent part: 

(a) Underground transformer stations, battery charging 

stations, substations, rectifiers, and water pumps shall be housed in 

noncombustible structures or areas or be equipped with a fire 

suppression system meeting the requirements of§ 75.1107-3 

through §75.1107-16. 

30 C.F.R. § 75.340(a). 

32 FMSHRC Page 82 
follow, we vacate and remand the judge's finding regarding the unwarrantability of the section 

75.340(a) violation and the penalty he assessed for that violation, and affirm the penalties he 

assessed for the three orders. 

I. 

Factual and Procedural Background 

This case arose out of MSHA' s investigation of an incident at Coal River's Tiny Creek 

No. 2 Mine, an underground coal mine in Lincoln County, WestVirginia. 31 FMSHRC at 193-

94. During the evening shift on January 27, 2006, batteries being charged on the ground at a 

battery charging station overheated. Id. at 194; Gov't Ex. 9, atl (MSHA Accident Investigation 

Report). 

The response to the batteries' overheating was influenced by the recent multi-fatality 

mine explosion at Sago and fire at Aracoma, which created a sense of 1irgency as the situation at 

the Tiny Creek Mine unfolded. Tr. 591, 771-773. First, the overheating triggered the mine's 

alarm system. 2 That in turn prompted Coal River to act quickly to evacuate all 30 or so miners 

underground, cut power to the section, and contact MSHA and rescue teams. 31 FMSHRC at 

195; Tr. 313, 771-72, 775; Gov't Ex. 8 (MSHA Preliminary Accident Report). There were no 

injuries. 31 FMSHRC at 195. As noted by MSHA's lead accident investigator, Fred Willis, 

removing power from the charger, as soon as the CO monitor sounded, allowed the charger to 

cool and "prevent[ed] a major fire." Tr. 313-14; see also Tr. 250. 

MSHA personnel traveled to the mine that night and issued a section 103(k) order. 31 

FMSHRC at 195-96.3 While that order was in effect, MSHA interviewed miners and went 

2 The release of high levels of hydrogen from batteries while they are charging or when 

they overheat can trigger carbon monoxide ("CO") sensor systems. 31 FMSHRC at 196 n. 7. 

The Sago and Aracoma accidents had prompted MSHA to order operators to adjust the settings 

on such systems to detect and alert operators to the presence of lower levels of gases. Tr. 28. 

3 Section 103(k) of the Mine Act provides: 

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, 

32 FMSHRC Page 83 
underground, where it inspected the battery charging station at Spad No. 1965. Id. at 198. The 

investigation led to the issuance of three citations and three orders. Gov't Ex. 1-6. Coal River 

contested one of the citations and the three orders. All four of the contested citations and orders 

were designated by MSHA as significant and substantial ("S&S") and attributable to Coal 

River's unwarrantable failure.4 31 FMSHRC at 193. 

A. Citation No. 7249165 

At the time ofthe overheating incident, Coal River was using two scoops on the section, 

each with its own battery charging station: (1) a Fairchild 35 C model, that the operator 

primarily depended upon; and (2) a much older model, referred to as a 488. Tr. 690, 697, 810-

11; Gov't Ex. 31, at 29. The scoops, which were used for such tasks as carrying supplies and 

cleaning the section, were powered by rechargeable batteries. Tr. 13 8, 697. 

Both scoops had two sets of dedicated batteries, though the second set of batteries for the 

488 was rarely used. Tr. 810-11.5 A scoop with only one set of batteries could only be charged 

at the battery charging station while its batteries remained on it, in which case the scoop would 

be idled. Tr. 641-42. With the availability of the second set of batteries, a scoop's batteries also 

could be removed using the scoop's hydraulic jack and placed on the ground for charging at the 

station. Tr. 174. In the latter instance, the scoop could then use the alternate set ofbatterieswhich would have been previously charged on the ground while the scoop was being used . 

elsewhere - and go back into service. Tr. 301, 633, 637, 757, 914. 

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). 

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

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

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

unwarrantable failure terminology is taken from the same section, and 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." 

5 The Fairchild 35 C scoop would generally run on a fully charged set of batteries for six 

to eight hours, though the time period could be as little as four hours and as great as 12 hours, 

depending on how hard the scoop was being used and the condition of the batteries. Tr. 709. 

Fully charging the scoop's batteries at a battery charging station would generally take eight to 12 

hours and then it would take another four to eight hours more for the batteries to cool before they 

could be safely used. Tr. 258-59, 534-35, 558, 580-81. 

32 FMSHRC Page 84 
The two battery charging stations would be set up and generally moved as mining 

progressed, and as frequently as was called for by conditions in the mine. Tr. 708; Gov. Ex. 31, 

at 23. In January 2006, the two battery charging stations had been set up in a location where, 

within a few days, deteriorating roof conditions prompted Superintendent B.K. Smith to direct 

third shift foreman Mark Blackburn to move the stations to an area with better roof. 

31 FMSHRC at 196-97; Tr. 681, 682-83, 784-86. In testifying at the hearing in this matter, 

Blackburn described in detail the steps that would usually be taken to complete the 

move to, and setup at, a new location for a battery charging station, some of which Smith echoed 

in his testimony. 31 FMSHRC at 197. 

At the time of the events relevant to this proceeding, Coal River's battery charging 

stations were neither equipped with fire suppression systems nor housed in noncombustible 

structures. Coal River therefore would apply Pyro-Chem to the ribs and roof around a battery 

charging station as a fire retardant that would provide the fireproofing required by section 

75.340(a) for charging batteries on the ground at such stations. Id. at 198; Tr. 708. Blackburn 

testified that the normal practice would be to spray a new battery charging station area with PyroChem before transporting the charger, batteries, and ancillary items to the new location, so as to 

avoid getting the chemical on that equipment. Tr. 703-04, 718. 

In moving the battery charging station to Spad No. 1965, however, Coal River did not 

spray the new area first, because the deteriorating roof made the removal of the battery charger, 

batteries, and other items to the new location a priority. Tr. 691, 703-04, 718-19. Blackburn 

moved the equipment and other items to Spad No. 1965 to start the process of setting up the new 

station, and assigned Section Foreman Ronnie Bias and his crew the task of completing the setup 

of the station. 31 FMSHRC at 197; Tr. 691, 710, 719-20.6 Blackburn stated that he specifically 

instructed Bias to spray the area at Spad No. 1965 with Pyro-Chem. Tr. 691, 719-20. 

Coal River stored Pyro-Chem that it was not planning on immediately using on the 

surface, bringing it inside a couple of days prior to use so that it could thaw in the event it was 

frozen. Tr. 693. In this instance the chemical had frozen, so it could not be immediately applied 

by Bias' crew at the time. Tr. 691-93, 797. As a result; it was left near the battery station to 

thaw. Tr. 638. 

The next morning, at the end of the shift, both Blackburn and Smith learned from Bias 

that it had been impossible to apply the Pyro-Chem. Tr. 707, 797. According to Blackburn, 

Smith responded "[O]kay we'll get someone to take care of it." 31 FMSHRC at 197; Tr. 707. 

Smith testified that he told a foreman that the Pyro-Chem had not been applied and expected that 

the foreman would pass the information along. 31 FMSHRC at 197; Tr. 831-32. In addition, 

6 Because of an error in the transcript, the judge misstated Bias's name as "Byans." 

Additionally, the judge said that Bias was the section foreman on the incoming shift, 31 

FMSHRC at 197, when the record indicates that Bias was section foreman on the third shift, the 

same shift as the shift when Blackburn moved the batter charger. Tr. 690-91, 719. 

32 FMSHRC Page 85 
according to Blackburn, Bias informed incoming day shift Section Foreman Keith Pack that the 

Pyro-Chem had not been applied at the new battery charging station, and that, consequently, 

batteries should not be charged on the ground there, only on the scoop. Tr. 721-22. 

It is undisputed that Coal River had not sprayed Pyro-Chem at Spad No. 1965 by the 

evening of January 27. 31 FMSHRC at 200. Batteries were being charged on the ground there 

that night, and they apparently released hydrogen gas which triggered the mine's CO sensors. Id. 

at 194-95. This led to the shut-off of power, mine evacuation, resulting MSHA investigation, 

and issuance of Citation No. 7249165. Id. at 195, 200; Gov't Ex. l, 8, 9. Because of the lack of 

Pyro-Chem at the battery charging station at Spad No. 1965, Coal River was charged with an 

S&S and unwarrantable violation of section 75.340(a). 31 FMSHRC at 193, 200; Gov't Ex. 1. 

MSHA later proposed a civil penalty of $10,300. 31 FMSHRC at 216; Gov't Ex. 7. 

B. Order Nos. 7249166. 7249167. and 7249168 

Order No. 7249166 alleged that Coal River's failure to detect the missing Pyro-Chem at 

Spad No. 1965 during preshift examinations violated 30 C.F.R. § 75.360(b)(9). Gov't Ex. 2. 

That standard requires a preshift examiner to "examine for hazardous conditions ... at ... 

[ u ]nderground electrical installations." 

fu Order No. 7249167, MSHA asserted that the lack of fireproofing and the condition of 

the batteries at Spad No. 1965 established a violation of30 C.F.R. § 75.512. Gov't Ex. 3. That 

regulation requires that all electric equipment be "frequently examined, tested, and properly 

maintained ... to assure safe operating conditions." 

Order No. 7249168 alleged that the condition of the batteries that were being charged at 

the station violated 30 C.F.R. § 75.503. Gov't Ex. 4. Under that standard, an operator is 

obligated to keep electric face equipment in "permissible condition." 

MSHA proposed civil penalties of $10,300 each for Order Nos. 7249166 and 7249167. 

31 FMSHRC at 193; Gov't Ex. 7. The agency also eventually requested an identical penalty for 

Order No. 7249168.7 

7 MSHA initially proposed a penalty of only $5,300 for Order No .. 7249168, because the 

order indicated that only one miner.was endangered by the violation alleged therein, in contrast 

to the indications in the other contested citation and orders that eight miners were endangered by 

those alleged violations. 31 FMSHRC at 193 & n.2; Gov't Ex. 7. At the hearing, the Secretary 

stated that this was a mistake, that eight miners were also endangered by the violation alleged in 

Order No. 7249168, and the judge granted the Secretary's motion to modify the order. 

31 FMSHRC at 193 n.2; Tr. 282, 414. fu her post-hearing brief, the Secretary requested that the 

judge also assess a penalty of $10,300 for that order. S. Post-Hearing Br. at 44. 

32 FMSHRC Page 86 
C. Judge's Decision 

Because Pyro-Chem had not been applied at Spad No. 1965, the judge affirmed the 

citation charging a violation of section 75.340(a). 31 FMSHRC at 206-07. He also concluded 

that, given the condition of the battery cables, there was a likelihood of fire and that the danger 

from such a fire would be even greater because of the failure to provide fire suppression 

measures. Thus, he concluded that the violation was S&S. Id. The judge further determined 

that because Coal River intended to apply Pyro'-Chem at Spad No: 1965 but was thwarted by the 

chemical being frozen, the operator's failure to apply it did not rise to the level of unwarrantable 

failure. Id. at 207-08. The judge credited the testimony of the mine's superintendent as to the 

company's commitment to safety, found that there had been no showing that the failure to 

provide required fire protection was a habitual practice at the mine, and conduded that the lack 

ofPyro-Chem was not obvious because of the presence ofrock dust on the ribs at Spad 

No. 1965. Id. 

With regard to the three orders, the judge similarly affirmed Order No. 7249166, agreeing 

that the violation of the preshift examination requirement was S&S, but holding that it was not 

attributable to Coal River's unwarrantable failure. 31 FMSHRC at 208-10, 217-18. The judge 

also affirmed Order No. 7249167, holding that Coal River's weekly electrical examination of the 

batteries at Spad No. 1965 violated section 75.512 and that the violation was both S&S and 

unwarrantable. Id. at 210-13, 218.8 As for Order No. 7249168, the permissibility violation, the 

judge affirmed that Coal River violated section 75.503 and agreed that the violation was S&S 

and unwarrantable. Id. at 213-15.9 For the two violations that the judge found to be 

unwarrantable, he assessed penalties of $4,000 each. Id. at 217. For the two that he concluded 

were not unwarrantable, he assessed the penalties at $2,000 each. Id. at 216. 

8 The judge found the weekly examination of the electrical equipment to be in violation 

of the standard and S&S because he found that water levels in the battery cells were low or nonexistent at the time of the last weekly examination, which caused the batteries to overheat on 

January 27, and because of the presence of hazardous spliced battery cables. The judge found 

unwarrantable failure because the weekly examiners did not have a practice of always checking 

the water in batteries of electrically powered equipment, and because Coal River did not know 

that the use of spliced cables was prohibited. 31 FMSHRC at 211-12. 

9 The judge found that electrical equipment was not kept in permissible condition 

because two battery cables were spliced, because the cables used on the scoop's batteries were 

not approved by MSHA, and because of the lack of proper clamps securing the cables. The 

spliced cables and lack of proper clamps caused the violation to be S&S. The judge found the 

violation to be an unwarrantable failure because Coal River relied on its electrical equipment 

vendor to supply and service the batteries without checking on the compliance-readiness of the 

equipment it was provided, and thus abrogated its responsibilities. 31 FMSHRC at 213-15. 

32 FMSHRC Page 87 
II. 

Disposition 

A. Unwarrantable Failure 

The Secretary requests that the Commission reverse the judge's determination that the 

violation of section 75.340(a) was not due to Coal River's unwarrantable failure to comply. 

PDR at 21-22. The Secretary contends that the judge erred in his unwarrantable failure analysis 

because he focused on the conduct of the mine superintendent, when in fact three lower level 

supervisors were also involved in the violation, and that the judge failed to hold the four 

supervisors to the higher level of care the Commission requires of supervisory personnel. 

PDR at 12, 14. The Secretary further argues that the non-obvious nature of the violation is 

irrelevant, given that the supervisors knew that Pyro-Chem had not been applied and thus were 

aware that Coal River was in violation of section 75.340(a). Id. at 12-14. The Secretary also 

maintains that the judge erred in his analysis by failing to take the danger of the violation into 

account and that the violation existed from between several days to a couple of weeks. 

Id. at 14-16. 

Coal River responds that the judge's conclusion that the violation was not attributable to 

unwarrantable failure is supported by substantial evidence. CR Br. at 1. The operator maintains 

that the supervisors were not aware of the violation, because, while they knew that the PyroChem had not been applied, they did not know that batteries were being charged on the ground at 

the station. Id. at 4-5, 9-10. Coal River also points to the lack of a history of this type of 

violation by Coal River as supporting the judge's determination that the Secretary had failed to 

establish reckless conduct on the part of the operator in this instance. Id. at 6-7. 

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

§ 814( d), and refers to more serious conduct by an operator in connection with a violation. fu 

Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987), the Commission determined that 

unwarrantable failure is aggravated conduct constituting more than ordinary negligence. Id. at 

2001. Unwarrantable failure is characterized by such conduct as "reckless disregard," 

"intentional misconduct," "indifference," or a "serious lack of reasonable care." Id. at 2003-04; 

Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 194 (Feb. 1991); see also Buck Creek Coal, 

Inc. v. MSHA, 52 F.3d 133, 136 (7th Cir. 1995) (approving Commission's unwarrantable failure 

test). 

The Commission has recognized that whether conduct is "aggravated" in the context of 

unwarrantable failure is determined by considering the facts and circumstances of each case to 

determine if any aggravating or mitigating circumstances exist. Aggravating factors include the 

length of time that the violation has existed, the extent of the violative condition, whether the 

operator has been placed on notice that greater efforts were necessary for compliance, the 

operator's efforts in abating the violative condition, whether the violation was obvious or posed a 

32 FMSHRC Page 88 
high degree of danger, and the operator's knowledge of the existence of the violation. See 

Consolidation Coal Co., 22 FMSHRC 340, 353 (Mar. 2000) ("Consof'); Cyprus Emerald Res. 

Corp., 20 FMSHRC 790, 813 (Aug. 1998), rev'd on other grounds, 195 F.3d 42 (D.C. Cir. 

1999); Midwest Material Co., 19 FMSHRC 30, 43 (Jan. 1997); Mullins & Sons Coal Co., 

16 FMSHRC 192, 195 (Feb. 1994); Peabody Coal Co., 14 FMSHRC 1258, 1261(Aug.1992); 

EethEnergy Mines, Inc., 14 FMSHRC 1232, 1243-44 (Aug. 1992); Quin/and Coals, Inc., 

10 FMSHRC 705; 709 (June 1988). 

All of the relevant facts and circumstances of each case must be examined to determine if 

an actor's conduct is aggravated, or whether mitigating circumstances exist. Consol, 

22 FMSHRC at 353. The Commission has made clear that it is necessary for a judge to consider 

all relevant factors. Windsor Coal Co., 21FMSHRC997, 1001 {Sept. 1999); San Juan Coal 

Co., 29 FMSHRC 125, 129-31(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 by the judge. JO Coal Co., 

31 FMSHRC 1346, 1351 (Dec. 2009). 10 

In this case, there is record evidence to support the judge's findings on some of the 

unwarrantable failure factors, such as his finding that ''there was no showing the failure to 

provide fire protection was a habitual practice at the mine." 31 · FMSHRC at 207 (citing Tr. 696, 

802). Other factors are irrelevant in this instance, such as the extent of the violative condition, 

and the operator's previous abatement efforts after having been placed on notice of the condition, 

as there is no evidence of such notice. However, with regard to four of the factors, the judge 

either failed to consider all of the evidence, so that his findings with respect to these factors lack 

10 Commission Procedural Rule 69(a) requires that a Commission judge's decision "shall 

include all findings of fact and conclusions of law, and the reasons or bases for them, on all the 

material issues of fact, law or discretion presented by the record." 29 C.F.R. § 2700.69(a). As 

the D.C. Circuit has emphasized, "[p ]erhaps the most essential purpose served by the 

requirement of an articulated decision is the facilitation of judicial review." Harborlite Corp. v. 

ICC, 613 F.2d 1088, 1092 (D.C. Cir. 1979). Without findings of fact and some justification for 

the conclusions reached by a judge, the Commission cannot perform its review function 

effectively. Anaconda Co., 3 FMSHRC 299, 299-300 (Feb. 1981). Thus, the Commission has 

held that a judge must analyze and weigh all probative record evidence, make appropriate 

:findings, and explain the reasons for his or her decision. Mid-Continent Res., Inc., 16 FMSHRC 

1218, 1222 (June 1994). 

32 FMSHRC Page 89 
the required support in the record, 11 or he neglected to take the factor into account at all in his 

analysis. 

1. Knowledge of the Violation 

Coal River was charged with violating section 75.340(a) because batteries were charged 

on the ground at a battery charging station where none of the required fireproofing measures had 

been taken. 12 The judge in his unwarrantable failure analysis did not address the extent of Coal 

River's knowledge of the violation. 

As the Secretary points out, it is undisputed that supervisory personnel at Coal River were 

aware that the area lacked the required fireproofing. PDR at 12. As was discussed, four different 

supervisors at Coal River were aware that Pyro-Chem had not been applied at Spad No. 1965 at 

the point in time at which the operator intended to apply it: Blackburn, Bias, Smith, and Pack. 

Because supervisors are held to a higher standard of care, the Commission, in determining 

unwarrantability, takes into account the extent of involvement of supervisory personnel in a 

violation. See Lopke Quarries, Inc., 23 FMSHRC 705, 711 (July 2001) (citing REB Enters., Inc., 

20 FMSHRC 203, 225 (Mar. 1998)). Here, the judge should have considered the involvement of 

11 When reviewing an administrative law judge's factual determinations, the Commission 

is bound by the terms of the Mine Act to apply the substantial evidence test. 30 U.S.C. 

§ 823(d)(2)(A)(ii)(I). "Substantial evidence" means "'such relevant evidence as a reasonable 

mind might accept as adequate to support [the judge's] conclusion."' Rochester & Pittsburgh 

Coal Co., 11FMSHRC2159, 2163 (Nov. 1989) (quoting Consolidated Edison Co. v. NLRB, 

305 U.S. 197, 229 (1938)). 

12 Citation No. 7249165 states: 

The unattended 35 C scoop charger serial Number 0577MC2406 

located at spad No. 1965 was not provided with a fire suppression 

system or enclosed in a noncombustible structure. Batteries were 

being charged on the bottom off the scoop and were not provided 

with fire suppression systems required by 75.1107-3 through 

75.1107-16. Management is aware of this requirement in that 

previous station area was fire proofed. Through interviews this 

charger station has existed for 2 to 3 weeks. This violation is an 

unwarrantable failure to comply with a mandatory standard. 

Gov't Ex. 1 (emphases added). Below, the Secretary suggested that Coal River could have 

avoided a violation by removing the batteries from the charging station area until the area had· 

been fireproofed as required by section 75.340(a), or indicated with a sign that batteries were not 

to be charged on the ground at that location. S. Post-Hearing Br. at 16-18. 

32 FMSHRC Page 90 
all four supervisors in the section 75.340(a) violation when determining whether the violation 

was unwarrantable. 

In addition, the evidence is that the frozen bags of Pyro-Chem were left nearby the 

charging station to thaw. Tr. 638. Those bags were a visible reminder to those who knew that 

the Pyro-Chem had not been applied that the battery charging station had been set up without the 

required fireproofing. 

While conceding that the supervisors were aware that Pyro-Chem had not been· applied as 

intended at the battery charging station, Coal River argues that there is no evidence that those 

supervisors were informed or otherwise knew that batteries were being charged on the ground at 

the charging station. CR Br. at 4-6. Coal River is correct as far as the evidence goes. There is 

no evidence that witnesses observed batteries being charged on the ground there following the 

move of the charging station. Tr. 346-47, 741, 744. Blackb1im testified that it was company 

practice not to charge batteries on the ground at a station until the station had been sprayed with 

Pyro-Chem. Tr. 701. 13 

Even if it is true that supervisors did not have direct knowledge of batteries being charged 

on the ground, and regardless of Coal River's overall commitment to safety, in this instance it is 

clear that miners used the station at Spad No. 1965 to charge batteries on the ground, at least on 

January 27. Moreover, there is much in the record to establish that Coal River relied on the 

Fairchild 35 C scoop to such an extent that it would have been difficult for the operator not to 

charge scoop batteries on the ground for any extended length of time. 

At the hearing, Blackburn testified that there always should be a set of Fairchild 35 C 

scoop batteries on charge, which would tend to indicate continual or near-continual use of the 

station. Tr. 709. This is consistent with the earlier deposition testimony of Pack, who stated that 

it was not unusual for a scoop operator to tell him that he needed to switch out dying batteries for 

charged ones, and in such instances the dying batteries would be left at the station to recharge 

while the operator returned with the scoop to continue working. Gov't Ex. 30, at 29-31. fu 

addition, evening shift section foreman Mickey Webb testified at his deposition that, while the 

only batteries he saw being charged at Spad No. 1965 were on a scoop, it would have been 

13 However, fireboss Jerry Vance, Jr., who performed two pre-shift examinations each 

day in the area of the violation in January, 2006, did not specifically recall seeing batteries being 

charged either on the scoop or on the ground, or whether there were batteries there which were 

not actually connected to the charger. Tr. 743-44. Vance also said that at the time of the 

violation, he was not aware that the law required a fire suppressant such as Pyro-Chem in 

addition to rock dust. Tr. 754. In other words, the evidence of record does not directly establish 

either instances of charging batteries on the ground at Spad No. 1965 between the time of the 

battery charger move and the January 27 incident, or its absence. 

32 FMSHRC Page 91 
unusual for Coal River, in light of its extensive use of the Fairchild 35 C scoop, to operate for 

even a couple of days without charging scoop batteries on the ground. Gov't Ex. 32, at 21-23.14 

fu determining whether the section 75.340(a) violation was unwarrantable, the judge 

should have taken the foregoing h1to account, particularly smce the Secretary pomted out below 

that the operator's practice was to charge batteries on the ground to keep the Fairchild 35 C 

scoop m service. 15 S. Post-Hearing Br. at 16. The factor of an operator's knowledge may be 

established, and a finding of unwarrantable failure supported, where an operator reasonably 

should have known of a violative condition. See Emery, 9 FMSHRC at 2002-04; Drummond 

Co., Inc., 13 FMSHRC 1362, 1367-68 (Sept. 1991) (quoting Eastern Assoc. Coal Corp., 

13 FMSHRC 178, 187 (Feb. 1991) ("Emery makes clear that unwarrantable failure may stem 

from what an operator 'had reason to know' or 'should have known"')). On remand, the judge 

must consider whether, under the circumstances, the Coal River supervisors reasonably should 

have known that batteries would be charged on the ground at Spad No. 1965 once the battery 

charging station was set up there. 

2. Duration 

The Commission has emphasized that duration of the violative condition is a necessary 

element of the unwarrantable failure analysis. See Windsor Coal, 21 FMSHRC at 1001-04 

(remanding for consideration of duration evidence of cited conditions). Here, the issue of 

duration of the violation is· a particularly critical one, because the longer the battery station lacked 

the required fireproofing, the more likely it would be that miners would charge batteries on the 

ground there, given that the second set of batteries was there and there were no signs warning 

milers not to charge batteries on the ground. 

fu decidmg the section 75.340(a) issues, the judge did not directly address the amount of 

time that elapsed between the setup of the battery charging station at Spad No. 1965 and when 

the batteries overheated. See 31 FMSHRC at 207-08. He did, however, address the duration 

issue elsewhere in his decision, in the context of affinnmg m part the order charging that Coal 

River violated the pre-shift exammation requirements of section 75.360(b)(9). See id. at 208-09. 

Similar to the citation for the section 75.340(a) violation, this order stated that, accordmg to 

mterviews with miners and Coal River management, the battery charging station had been at 

14 Four deposition transcripts, including those of Pack and Webb, were made part of the 

hearing record. Tr. 407-12. 

15 It is not unreasonable to expect that if Coal River was refrainmg from charging 

batteries on the ground, there would be evidence of the operator havmg to idle the Fairchild 35 C 

scoop, which would eventually lead to a halt in production. There is no record evidence of such 

a stoppage. On remand, the judge may consider the inference that the lack of evidence of the 

idling of the scoop indicates that its batteries were being charged on the ground m violation of 

section 75.340(a), prior to the incident on January 27. 

32 FMSHRC Page 92 
Spad No. 1965 for two to three weeks. Gov't Ex. 2, at 1. The judge concluded that it was 

impossible to establish with certainty when the station was moved to Spad No. 1965. 

31 FMSHRC at 209. He did rule, however, that the Secretary had failed to establish that the 

move had occurred as early as two to three weeks prior to the overheating incident. Id. at 208. 

On review, the Secretary argues that there is undisputed evidence that the lack of fire 

suppression existed for at least several days, that such a duration supports a finding of 

unwarrantable failure, and that the judge erred in not considering the duration of the violation in 

his analysis. Id. at 15-16. 16 Coal River responds that the judge simply found that the Secretary 

did not carry her burden on the issue of the duration 0fthe violation. CR Br. at 10. 

We appreciate that the state of the record in this case does not permit the judge to make a 

conclusive finding regarding exactly how much time elapsed between the setup of the battery 

charging station and the overhearing incident. Nevertheless, the duration ofthe violation remains 

a relevant consideration for purposes of determining whether the violation was unwarrantable. 

Even imperfect evidence of duration in the record should be taken into account by the judge. 

The judge rejected MSHA's position that two or more weeks had elapsed, and the 

Secretary on review does not challenge that rejection, but there is other evidence in the record 

regarding a shorter duration that nevertheless may still be considered significant under the 

circumstances. For instance, Blackburn testified that the overheating incident occurred a couple 

of days after the setup of the battery charging station. Tr. 708. Smith was less certain, stating it 

could have been from a few days to a week. Tr. 794. Vance said the charging station could have 

been at Spad No. 1965 for a week to two weeks. Tr. 738-39. On remand, the judge, after 

weighing the varying accounts regarding the length of time Spad No. 1965 remained without 

fireproofing, should consider the duration factor in determining whether Coal River's failure to 

fireproof the area was unwarrantable under the circumstances. Depending on the judge's 

findings on the other factors, the violation of section 75.340(a) can be found to have been 

unwarrantable even if a relatively short period of time passed between the setup of the battery 

station and the overheating incident. Cf Midwest Material Co., 19 FMSHRC at 34-36 (finding 

violation to be attributable to operator's unwarrantable failure where the duration was only a 

period of a few minutes, because it posed a high degree of danger, involved a foreman, and the 

violative condition may have continued but for occurrence of accident); Lafarge Constr. 

Materials, 20 FMSHRC 1140, 1145-48 (Oct. 1998} (same). 

16 Below, MSHA Inspector Willis testified that the agency would have designated the 

violation as high negligence even if the condition had existed for only two to three days. 

Tr. 315-16. 

32 FMSHRC Page 93 
3. Obviousness 

There is little dispute that the lack of fireproofing at Spad No. 1965 was not obvious. 

Given that Coal River routinely sprayed rock dust on top of Pyro-Chem, and the relative 

difficulty of distinguishing color between the two substances in the underground environment, it 

would have been difficult for anyone to detect that Pyro-Chem had not been applied at Spad No. 

1965. See 31 FMSHRC at 209-10. The record is replete with evidence to support the judge's 

finding to that effect. Tr. 603-04, 633-34, 695, 742, 802. 

It appears from his analysis that the judge viewed this lack of obviousness to be a 

mitigating factor in this instance. However, because the operator knew that the absence of PyroChem would be obscured by the presence of rock dust, we do not necessarily agree that the 

operator's degree of fault is mitigated in this instance by the lack of obviousness of that absence~ 

The likelihood of batteries being eventually charged on the ground at the station was actually 

increased because of the coating of rock dust. The evidence is that if any miner who did not 

know that Pyro-Chem had not been applied there looked at the Spad No. 1965 battery station, he 

could not tell that the required fireproofing was lacking because of the rock dust on the roof and 

ribs. Tr. 817. Consequently, a scoop operator would have had no way of knowing from the 

appearance of the area that batteries should not have been charged on the ground there. 

On remand, the judge should consider in his unwarrantable failure analysis that the lack 

of obviousness could have tended to increase the likelihood of a violation in this instance, i.e., 

batteries being charged on the ground in an area that lacked required fireproofing. See San Juan, 

29 FMSHRC at 129 (facts and circumstances of case determine whether an unwarrantable failure 

factor aggravates or mitigates an operator's negligence). 

· 4. The Degree of Danger 

The Commission has relied upon the high degree of danger posed by a violation to 

support an unwarrantable failure finding. See BethEnergy, i4 FMSHRC at 1243-44 (finding 

unwarrantable failure where unsaddled beams "presented a danger" to miners entering the area); 

Warren Steen Constr., Inc., 14 FMSHRC 1125, 1129(July1992) (finding violation to be 

aggravated and unwarrantable based upon "common knowledge that power lines are hazardous, 

and ... that precautions are required when working near power lines with heavy equipment"); 

Quin/and Coals, 10 FMSHRC at 709 (finding unwarrantable failure where roof conditions were 

''highly dangerous"). 

In concluding that the violation was not attributable to Coal River's unwarrantable 

failure, the judge did not consider the factor of the danger posed in this instance. 31 FMSHRC at 

207-08. The judge failed to do so even though he concluded that the violation of section 

75.340(a) was S&S. Id. at 206-07. In reaching that conclusion (which Coal River did not 

appeal), the judge found Inspector Maynard's testimony on how the process of charging batteries 

can result in fires, hydrogen buildup, and explosions to be "persuasive." Id. at 206 (citing 

32 FMSHRC Page 94 
Tr. 181). The judge also acknowledged that the requirements of section 75.340(a) are designed 

to greatly minimize such hazards, and that the lack of fireproofing at Spad No. 1965 increased 

the hazard of the ribs catching fire and the fire spreading, which would be extremely dangerous 

in the underground mine environment. Id. at 206:..07. 

While these findings are not necessarily dispositive of the unwarrantability of the 

violation of section 75.340(a), they are highly relevant to the degree of danger posed by the 

violation in this instance. On remand, in determining unwarrantability, the judge must consider 

the dangers posed by Coal River's failure to fireproof the battery station at Spad No. 1965. 

In summary, we remand this case to the judge for a determination of whether, considering 

all of the facts and circumstances, the violation of section 75.340(a) that occurred when batteries 

were charged on the ground at Spad No. 1965 was attributable to Coal River's conduct that rose 

to the level of unwarrantable failure, i.e. conduct that constituted "reckless disregard," 

"intentional misconduct," "indifference," or a "serious lack of reasonable care." This means that 

the judge must consider Coal River's conduct throughout the period at issue, beginning with the 

failure to apply the Pyro-Chem and ending with the charging of batteries on the ground at Spad 

No. 1965 that resulted in the overheating incident: In addition, should the judge on remand reach 

a different conclusion as to whether the violation was unwarrantable, he should reassess the 

associated penalty in light ofhis revised findings. 17 

B. The Judge's Penalty Assessments as to the Orders 

The Secretary requests that the Commission vacate the penalties that the judge assessed 

for the orders and remand the case to the judge with instructions for assessing appropriate 

penalties for the violations. PDR at 21-22. The Secretary contends that the judge did not 

adequately explain in assessing the penalties why he diverged to the extent that he did from the 

Secretary's proposed penalties. Id. at 19-20. The Secretary also argues that the judge's finding 

that Coal River demonstrated "more than good faith" in abating the violations is neither 

supported by substantial evidence nor permissible under the six statutory factors he was limited 

to considering in assessing the penalties. Id. at 20-21. Coal River responds that it was well 

within the judge's discretion to assess the penalty amounts he did, given that his findings on the 

operator's good faith and low history of violations are supported by record evidence. CR Br. at 

10-14. 

Commission judges are accorded broad discretion in assessing civil penalties under the 

Mine Act. Cantera Green, 22 FMSHRC 616, 620 (May 2000). In determining the amount of the 

penalty, neither the judge nor the Commission shall be bound by a penalty recommended by the 

Secretary. Sellersburg Stone Co., 5 FMSHRC 287, 291 (Mar. 1983), aff'd, 736 F.2d 1147 (7th 

Cir. 1984). However, such discretion is not unbounded and must reflect proper consideration of 

17 For the reasons below, we otherwise reject the Secretary's challenge to the penalty that 

the judge assessed with respect to the section 75.340(a) citation. 

32 FMSHRC Page 95 
the penalty criteria set forth in section 11 O(i) and the deterrent purposes of the Act. 18 

Cantera Green, 22 FMSHRC at 620. In reviewing a judge's penalty assessment, the 

Commission must determine whether the judge's findings with regard to the penalty criteria are 

supported by substantial evidence. Assessments "lacking record support, infected by plain error, 

or otherwise constituting an abuse of discretion are not immune from reversal." U.S. Steel Corp., 

6 FMSHRC 1423, 1432 (June 1984). Additionally, the Commission in Sellersburg, 5 FMSHRC 

at 293, explained that ~'when ... it is determined that penalties are appropriate which 

substantially diverge from those originally proposed, it behooves the Commission and its judges 

to provide a sufficient explanation of the bases underlying the penalties assessed by the 

Commission." In Cantera Green, the Commission clarified that "[w]hile the findings and 

explanations relating to a penalty assessment do not have to be exhaustive, they must at least 

provide the Commission with a basis for determining whether the judge complied with the 

requirement to consider and make findings concerning the section 1 lO(i) penalty criteria." 22 

FMSH.RC at 621. 

Here, the judge, in assessing the penalties, provided an adequate explanation for why he 

diverged to the extent that he did from the Secretary's proposed penalties. First of all, it is clear 

that the judge reduced two of the penalties by $2,000 each because he did not affirm the findings 

of high negligence sought by the Secretary, but instead found moderate negligence with respect 

to the two orders associated with those penalties. This was, roughly, a 20 percent reduction from 

the Secretary's proposed penalty amounts for those two violations. 19 Ascribing such weight to 

the degree of negligence factor is well within a judge's broad discretion in assessing penalties de 

novo under the Mine Act. See, e.g., Spartan Mining Co., 30 FMSHRC 699, 725 (Aug. 2008) 

(upholding 800 percent increase of proposed penalty based on gravity and negligence factors). 

18 Section 11 O(i) provides in part: 

In assessing civil monetary penalties, the Commission shall 

consider the operator's history of previous violations, the 

appropriateness of such penalty to the size of the business of the 

operator charged, whether the operator was negligent, the effect on 

the operator's ability to continue in business, the gravity of the 

violation, and the demonstrated good faith of the person charged in 

attempting to achieve rapid compliance after notification of a 

violation. 

30 u.s.c. § 820(i). 

19 For the two orders that the judge affirmed and agreed with the Secretary on the degree 

of negligence, he reduced the penalties from the requested $10,300 to $4,000. For the citation 

and order that the judge affirmed but reduced the degree of negligence, he reduced the 

Secretary's proposed penalties even further, from $10,300 to $2,000. 31 FMSHRC at 216-17. 

32 FMSHRC Page 96 
As for the judge's additional $6,300 reduction to each of the penalties from the 

Secretary's proposal, the Secretary argues that such reductions were based solely on the judge's 

findings regarding Coal River's abatement efforts. PDR at 20-21. That is not accurate, however, 

because for each of the penalties, the judge directly justified his large reduction from the 

Secretary's proposed penalties based on two of the section 11 O(i) factors. In addition to taking 

into account Coal River's actions in responding to the violations, the judge relied upon the 

operator's "low history of prior violations." 31 FMSHRC at 216-1 7. 

Substantial evidence supports the judge with regard to this factor. Coal River states in its 

brief that the total amount of penalties it was assessed and paid in 2006 was only $5,662. 

CR }3r. at 11. Even more importantly, the Secretary in her brief below recited statistics 

establishing the operator's ratio of violations per inspection day, and concluded that "[t]his low 

history of previous violations reflects Coal River's 'excellent' reputation for mine safety." 

S. Post-Hearing Br. at 44 (citing Tr. 206 (testimony ofMSHA Inspector James Maynard)). 

As for the Secretary's argument that the judge's focus on the operator's abatement efforts 

went beyond the terms of section 11 O(i), here we do not agree that the judge strayed beyond the 

confines of the Mine Act when he put as much emphasis as he did on the operator's abatement 

efforts. Section 11 O(i) states that the judge must consider "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) (emphasis added). The term "demonstrated" makes the question of the 

operator's "good faith" one that can be answered in degree, just as other section 1 lO(i) factors, 

such as negligence, can be answered. 

fu this instance, the judge found that the degree of good faith demonstrated by the 

operator was "much more than ordinary good faith." 31 FMSHRC at 215. In so doing, the judge 

was not using an additional factor in his assessment; rather, he was indicating the weight he was 

giving that factor. In fact, the judge stated as much. See 31 FMSHRC at 216 ("I will give much 

more weight than normal to the good faith criteria when I assess penalties in this case."). fu 

assessing penalties de novo, it is within the discretion of the Commission, and thus of its judges 

acting in the first instance, to accord different weights to the six penalty factors. See Thunder 

Basin Coal Co., 19 FMSHRC 1495, 1503 (Sept. 1997) ("there is no requirement that equal 

weight must be assigned to each of the penalty assessment criteria"). 

The Secretary maintains that because Coal River did no more than what the law requires, 

the judge's finding that ''much more than ordinary good faith" was demonstrated by Coal River is 

not supported by substantial evidence. PDR at 20-21. While we might agree that the judge, in 

characterizing the operator's response to be "much" more than good faith, was perhaps overly 

effusive in his praise, the record supports the conclusion that Coal River did act quickly to do 

more than necessary to abate the violations in question. fu addition to purchasing new and more 

32 FMSHRC Page 97 
reliable fire suppression systems that would be used at battery charging stations, 20 the company 

changed its practices throughout its mines in response to the incident on January 2 7. 

31 FMSHRC at 216. Although we might not have come to the same conclusion as the judge, we 

believe that substantial evidence supports the judge's finding that Coal River demonstrated 

"much more than ordinary good faith." Thus, we affirm the penalties that the judge assessed as 

to the three orders. 

20 After being charged with violating section 75.340(a), Coal River stopped using PyroChem to fireproof battery charging station areas. It purchased and began using a dry chemical 

solution fire suppression system that would attach to the station itself. 31 FMSHRC at 215-16; 

Tr. 659-660, 710, 762-63. 

32 FMSHRC Page 98 
ID. 

Conclusion 

For the foregoing reasons, we vacate and remand the judge's finding as to whether the 

section 75.340(a) violation was attributable to Coal River's unwarrantable failure, the operator's 

degree of negligence in connection with the violation, and the penalty the judge assessed for that 

violation. As to the three orders, we affirm the penalties that the judge assessed. 

Robert F. Cohen, Jr., Commissioner 

32 FMSHRC Page 99 
Distribution: 

Cheryl C. Blair-Kijewski, Esq. 

Office of the Solicitor 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 22nd Floor 

Arlington, VA 22209-2296 

F. Thomas Rubenstein, Esq. 

Dinsmore & Shohl, LLP 

215 Don Knotts Blvd., Suite 310 

Morgantown, WV 26501 

Administrative Law Judge David F. Barbour 

Federal Mine Safety & Health Review Commission 

Office of Administrative Law Judges 

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

Washington, D.C. 20001-2021 

32 FMSHRC Page 100 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

601 NEW JERSEY AVENUE, NW 

SECRETARY OF LABOR, 

M1NE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

ROCK.HOUSE CREEK 

DEVELOPMENT LLC. 

SUITE 9500 

WASHINGTON, DC 20001 

February 18, 2010 

Docket No. WEVA 2009-516 

A.C. No. 46-08778-160570 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On December 22, 2008, the Commission received from 

Rockhouse Creek Development LLC. ("Rockhouse") a motion seeking to reopen a penalty 

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

Mine Act, 30 U.S.C. § 815(a). 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

32 FMSHRC Page 101 
The operator states that it intended to contest the proposed penalty assessment and 

e-mailed it to coW1Sel on a timely basis. However, the record indicates that, due to counsel's 

error, the case was not properly calendared by counsel's firm, and no contest was submitted. 

When the operator realized the mistake, it promptly sought re-opening. Although the Secretary 

does not oppose the reopening of the proposed penalty, she strongly urges both counsel and the 

operator to revise their present contest system so that it is more reliable. 

Having reviewed Rockhouse's request and the Secretary's response, in the interests of 

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

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

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

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

Robert F. Cohen, Jr., Commissioner 

32 FMSHRC Page 102 
Distribution: 

Carol Ann Marunich, Esq. 

Dinsmore & Shohl, LLP 

215 Don Knotts Blvd., Suite 310 

Morgantown, WV 26501 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

32 FMSHRC Page 103 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

February 18, 2010 

Docket No. WEV A 2009-527 

A.C. No. 46-08522-150745 

Docket No. WEV A 2009-528 

A.C. No. 46-08522-162132 · 

Docket No. WEV A 2009-529 

A.C. No. 46-08909-150748 

Docket No. WEV A 2009-530 

A.C. No. 46-08909-159267 

WEST VIRGINIA MINE POWER, INC. Docket No. WEV A 2009-531 

A.C. No. 46-08909-162134 

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

ORDER 

BY: Jordan, Chairman; Young and Cohen, Commissioners 

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

§ 801 et seq. (2006) ("Mine Act''). On December 24, 2008, the Commission received from West 

Virginia Mine Power, Inc. ("WVMP") a motion by counsel seeking to reopen five penalty 

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

Mine Act, 30 U.S.C. § 815(a).1 

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

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

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

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

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

consolidate docket numbers WEVA 2009-527, WEVA 2009-528, WEVA 2009-529, WEVA 

2009-530, and WEVA 2009-531, all captioned West Virginia Mine Power, Inc., and involving 

similar procedural issues. 29 C.F.R. § 2700.12. 

32 FMSHRC Page 104 
We have held, however, that in appropriate circumstances, we possess jurisdiction to 

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

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

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

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

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

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

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

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

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

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

WVMP explains that at the time the proposed penalty assessments were issued the mines 

were under new management and did not have an effective means of receiving and processing the 

assessment forms in a timely manner. It further claims that due to excusable neglect, 

inadvertence or mistake related to the new management and safety teams running the mines, it 

did not timely contest the proposed assessments it seeks to reopen. It contends that in November 

2008, the Safety Director for the mines conferred with counsel to review the delinquent cases and 

decided to pay some of the delinquent cases and to reopen the five identified in its motion. In the 

affidavit attached to the motion, the Safety Director states that he has instituted a new system to 

better handle the assessment forms at the mines to prevent future delinquencies. 

The Secretary opposes reopening the proposed penalty assessment, maintaining that 

WVMP has failed to establish the existence of"exceptional circumstances." Specifically, the 

Secretary contends that WVMP's "inadequate or unreliable internal procedures" do not justify 

reopening. She also notes that as of the time she filed her response, the operator had ignored the 

assessments it had received for the past 8.5 months and had a total of 88 outstanding assessments 

totaling $97 ,670 for the two mines at issue. 

32 FMSHRC Page I 05 
Having reviewed WVMP's request and the Secretary's response, we deny the motion 

with prejudice. We have held that an inadequate or unreliable system for receiving and 

processing proposed assessments does not constitute inadvertence, mistake or excusable neglect 

so as to justify the reopening of an assessment which has become final under section 105( c) of 

the Mine Act. Highland Mining Co., 31FMSHRC1313, 1315 (Nov. 2009); Pinnacle Mining 

Co., 30 FMSHRC 1061 (Dec. 2008); Pinnacle Mining Co., 30 FMSHRC 1066 (Dec. 2008). The 

Secretary correctly points out that WVMP has conceded that it "did not have an effective means 

of receiving ... and processing" assessments in a timely manner. Mot. at 1. Furthermore, the 

lack of such an effective system appears to have been a chroni.c and longstanding problem. 

WVMP did not respond to the Secretary's allegation that it has ignored 88 outstanding 

assessments for over 8 months, and we therefore accept the Secretary's representation as true and 

conclude that WVMP has failed to establish good cause for reopening the proposed penalty 

assessments. 

Robert F. Cohen, Jr., Commissioner 

32 FMSHRC Page 106 
Commissioner Duffy, dissenting: 

WVMP' s explanation that it failed to file timely contests due to "new mine 

management," without any further elaboration, does not provide the Commission with an 

adequate basis to justify reopening of the assessment. However, in such cases, our denials have 

usually been without prejudice. See, e.g., Eastern Associated Coal LLC, 30 FMSHRC 392, 394 

(May 2008); James Hamilton Constr., 29 FMSHRC 569, 570 (July 2007). 

My colleagues are rightly concerned that in this case a number of assessments, covering a 

large number of proposed penalties, were not properly processed. However, unlike they, I would 

not go so far as to deny the requests to reopen with prejudice, based on our treatment of other 

operators who have admitted to a "chronic and longstanding problem" in responding to penalty 

assessments. See slip op. at 3 (citing cases). fu those cases, there was no claim that the operator 

had new management. Moreover, here the operator has already demonstrated an improvement in 

responding to assessments in 2009. See West Virgi.nia Mine Power, Inc. 31 FMSHRC 600, 601 

(June 2009) (granting motion to reopen where contest was filed one day late). Consequently, I 

cannot agree that the admission of inadequate procedures in the earlier motion to reopen justifies 

denial of that motion with prejudice. 

32 FMSHRC Page 107 
Distribution: 

F. Thomas Rubenstein, Esq. 

Dinsmore & Shohl, LLP 

215 Don Knotts Blvd., Suite 310 

Morgantown, WV 26501 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

32 FMSHRC Page 108 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMlNISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

February 18, 2010 

Docket No. WEV A 2009-1107 

A.C. No. 46-09029-170281 

MINGO LOGAN COAL COMPANY 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On April 2, 2009, the Commission received a motion by 

counsel to reopen a penalty assessment issued to Mingo Logan Coal Company ("Mingo Logan") 

that had become a final order of the Commission pursuant to section105(a) of the Mine Act, 30 

U.S.C. § 815(a). 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

32 FMSHRC Page 109 
On December 3, 2008, the Department of Labor's Mine Safety and Health Administration 

(''MSHA") issued Proposed Assessment No .. 000170281 to Mingo Logan, proposing penalties for 

30 citations that had been issued to the operator for alleged violations at its Mountaineer II Mine. 

According to the affidavit from that mine's safety manager, on December 11, 2008, he had sent 

MSHA a contest form indicating Mingo Logan's desire to contest 16 of the proposed penalties. 

Attached to the affidavit is a copy of the contest form with certain boxes checked and a 

handwritten note allegedly indicating when the form was mailed. The affidavit further states that 

on the same day Mingo Logan sent MSHA a check for the uncontested penalties. Nevertheless, 

Mingo Logan received a delinquency notice from MSHA dated February 26, 2009, regarding the 

penalties on the assessment form that Mingo Logan claimed it had contested. Upon receipt of the 

delinquency notice, Mingo Logan immediately contacted MSHA, and then filed this motion to 

reopen the penalty assessment. 

The Secretary states that she does not oppose the reopening of the assessment, but notes 

that there is no record of MSHA having received the contest form. She also notes that this is the 

second time in the last year that the operator has brought a motion to reopen claiming that it 

mailed the contest form to MSHA but there is no record of MSHA receiving the contest. Mingo 

Logan Coal Co., 31 FMSHRC 575 (June 2009). The Secretary urges that the operator ensure 

that in the future it submits the contest form to MSHA's Civil Penalty Compliance Office in 

Arlington, Virginia. 

Having reviewed Mingo Logan's motion and the Secretary's response, in the interests of 

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

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

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

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

Robert F. Cohen, Jr., Commissioner 

32 FMSHRC Page 110 
Distribution: 

Donna C. Kelly, Esq. 

Dinsmore & Shohl, LLP 

P.O. Box 11887 

900 Lee Street, Suite 600 

Charleston, WV 25339 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

32 FMSHRC Page 111 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

February 18, 2010 

Docket No. WEVA-2009-1314 

A.C. No. 46-08365-148880 

WHITE BUCK COAL COMPANY 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) (''Mine Act''). On April 28, 2009, the Commission received from White 

Buck Coal Company ( .. White Buck") a request to reopen a penalty assessment that has become a 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

32 FMSHRC Page 112 
On April 29, 2008, the Department of Labor's Mine Safety and Health Administration 

("MSHA") issued Proposed Assessment No. 00148880, which covered 65 citations. White Buck 

asserts that due to a turnover in its safety directors it did not become aware of the delinquent 

penalty assessment until nearly eleven months after the assessment became a final order. The 

Secretary states that she does not oppose the reopening of the proposed penalty assessment but 

urges the operator to take all steps necessary to ensure that future penalty assessments are 

contested in a timely malln.er. 1 

1 We consider the Secretary's position in this case in light of the provisions of the 

''Informal Agreement between Dinsmore & Shohl Attorneys and Department of Labor- MSHA 

- Attorneys Regarding Matters Involving Massey Energy Company Subsidiaries" dated 

September 13, 2006. Therein, the Secretary agreed not to object to any motion to reopen a matter 

in which any Massey Energy subsidiary failed to timely return MSHA Form 1000-179 or 

inadvertently paid a penalty it intended to contest so long as the motion to reopen is filed within a 

reasonable time. Thus, we assume that the Secretary is not considering the substantive merits of 

a motion to reopen from any Massey Energy subsidiary so long as the motion is filed within a 

reasonable time. Such agreements obviously are not binding on the Commission, and the 

Secretary's position in conformance with the agreement in this case has no bearing on our 

determination on the merits of the operator's proffered excuse. The Commission has been 

informed that, since the time the Secretary filed her response, she has rescinded the agreement. 

32 FMSHRC Page 113 
Having reviewed White Buck's request and the Secretary's response, in the interests of 

justice, we hereby remand this matter to the Chief Administrative Law Judge for a determination 

of whether good cause exists for White Buck's failure to timely contest the penalty proposal, 

whether the delay in seeking reopeningwas reasonable,2 and whether relief from the final order 

should be granted. If it is determined that such relief is appropriate, this case shall proceed 

pursuant to the Mine Act and the Commission's Procedural Rules, 29 C.F.R. Part 2700. 

Robert F. Cohen, Jr., Commissioner 

2 Among other things, the Administrative Law Judge handling the case should determine 

whether the operator received delinquency letters from MSHA or collection notices from the 

Department of the Treasury that would have provided notice to the operator that the proposed 

assessment had been issued and was delinquent. 

32 FMSHRC Page 114 
Distribution: 

Max L. Corley, ill, Esq. 

Dinsmore & Shohl, LLP 

P. 0. Box 11887 

900 Lee Street, Suite 600 

Charleston, WV 25339 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. Of Labor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

32 FMSHRC Page 115 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA) 

v. 

BROOKS RUN MINING 

COMP ANY, LLC 

601 NEW JERSEY AVENUE, NW 

SUITE9500 

WASHINGTON, DC 20001 

February 22, 2010 

Docket No. WEV A 2009-1880 

A.C. No. 46-09066-184966 

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

ORDER 

BY THE COMMISSION: 

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

§ 801 et seq. (2006) ("Mine Act"). On August 27, 2009, the Commission received from Brooks 

Run Mining Company, LLC ("Brooks Run") a motion made by counsel seeking to reopen a 

penalty asse~sment that had become a final order of the Commission pursuant to section 105(a) 

of the Mine Act; 30 U.S.C. § 815(a). 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

32 FMSHRC Page 116 
merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995). 

The record indicates that the operator's contest form was received by the Postal Service 

but subsequently lost in the mail. The operator's safety representative did not learn that the 

contest form had not been submitted until he received a delinquency notice from the Secretary. 

The motion to reopen was filed promptly. The Secretary states that she does not oppose the 

reopening of the proposed penalty assessment. 

Having reviewed Brooks Run's request and the Secretary's response, in the interests of 

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

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

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

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

Robert F. Cohen, Jr., Commissioner 

32 FMSHRC Page 117 
Distribution: 

Curtis R. A. Capehart, Esq. 

Dinsmore & Shohl, LLP 

P. 0. Box 11887 

900 Lee Street, Suite 6-00 

Charleston, WV 25339 

Max L. Corley, III, Esq. 

Dinsmore & Shohl, LLP 

P. 0. Box 11887 

900 Lee Street, Suite 600 

Charleston, WV 25339 

W. Christian Schumann, Esq. 

Office of the Solicitor 

U.S. Department of Labor 

1100 Wilson Blvd., Room 2220 

Arlington, VA 22209-2296 

Myra James, Chief 

Office of Civil Penalty Compliance 

MSHA 

U.S. Dept. OfLabor 

1100 Wilson Blvd., 25th Floor 

Arlington, VA 22209-3939 

Chief Administrative Law Judge Robert J. Lesnick 

Federal Mine Safety & Health Review Commission 

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

Washington, D.C. 20001-2021 

32 FMSHRC Page 118 
ADMINISTRATIVE LAW JUDGE DECISIONS 

FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

Washington, DC 20001 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

SCP INVESTMENTS, LLC, 

Respondent 

January 5, 2010 

CIVIL PENALTY PROCEEDINGS 

Docket No. SE 2006-148-M 

A.C. No. 40-03268-80642 

Docket No. SE 2006-163-M 

A.C. No. 40-03268-82949 

Old County Quarry 

DECISION ON REMAND 

Before: Judge Feldman 

These consolidated civil penalty matters have been remanded by the Commission 

for further consideration. 31 FMSHRC 821 (Aug. 2009). These matters concern two statutory 

provisions of section 103( f) of the Federal Mine Safety and Health Act of 1977, as amended, 

30 U.S.C. § 813(f) ("Mine Act" or "Act"), concerning walkaround rights andjurisdiction. 

More specifically, these cases concern the impact, if any, on the viability of citations issued 

as a consequence of an inspection that was conducted after the impermissible denial of the 

statutory section 103(f) right of Pat Stone, as a representative and owner-operator of the 

Old County Q~arry, to accompany the inspector during his inspection. 

At issue are eleven citations alleging several violations of the Secretary's mandatory 

safety standards, and a 104(g)fl) order issued because of a failure to provide personnel with 

new miner training. The Secretary seeks to.assess a total civil penalty of $1,087.00 for the 

alleged violations. The cited violative conditions have been corrected and the subject citations 

and order have been terminated. Consequently, there are no unresolved continuing safety issues. 

The initial decision vacated the eleven citations and the one order in issue. 

The citations and order issued during the inspection were vacated based on an abuse of the 

mine inspector's discretion in denying walkaround rights. 30 FMSHRC 544 (June 2008) (ALJ). 

The initial decision stated: 

Section 103( f) does not mandate that -an inspector must be accompanied by a mine 

operator during an inspection. Thus, I am cognizant that the failure of a mine 

operator to accompany an inspector is not a jurisdictional bar to the issuance of 

citations for violations of the Secretary's mandatory safety standards observed 

during the inspection. See Emery Mining, 10 FMSHRC at 289. However, 

32 FMSHRC Page 119 
section 103(f) provides the "opportunity" for the mine operator to exercise its 

right to be present during an inspection. This right cannot arbitrarily be denied. 

In other words, the jurisdiction to enforce does not provide a license to abuse. 

30 FMSHRC at 548, :fn. 3. 

Although the Commission reinstated. the citations and order vacated in the 

initial decision and remanded these matters for further action, it did so on jurisdictional grounds. 

31 FMSHRC 821. It did not reach a majority consensus concerning the action I now should 

take. Pennsylvania Electric Co., 12 FMSHRC 1562, 1563-65 {Aug. 1990), ajf'd on other 

grounds, 969 F.2d 1501 (3rd Cir. 1992) ('•Penelec") {disposition by the Commission 

requires a majority vote). Two Commissioners suggested that I conduct an exclusionary 

hearing to determine what prejudice, if any, resulted from the denial of walkaround rights. 

31 FMSHRC at 822. One Commissioner suggested that I exercise my discretion to determine 

the appropriate civil penalty given the mine operator's lack of an opportunity to present probative 

evidence during the inspection. Id. The remaining Commissioner concluded the refusal of 

walk:around rights has no effect in this case. Id. 

Although the Commission's remand lacked a majority consensus, a majority of 

the Commissioners agreed with respect to two issues that now are the law of the case. 

The Commissioners unanimously concluded there was jurisdiction to conduct the inspection. 

A majority of the Commissioners also concluded that Stone's statutory 103(f) walkaround rights 

were violated. See, eg., 31 FMSHRC at 827, 838. 

I. Statutory Framework 

These matters concern two statutory provisions of section 103{f) of the Federal Mine 

Safety and Health Act of 1977, as amended, 30 U.S.C. § 813(f) {""Mine Act" or ••Act"). 

The first provision of section 103{f) provides that: ••[ s ]ubject to regulations issued by the 

Secretary, a representative of the operator ... shall be given an opportunity to accompany 

the Secretary or his authorized representative during the physical inspection of any coal · 

or other mine made pursuant to subsection {a), for the purpose of aiding such inspection .... " 

30 U.S.C. § 813{f). The second provision of section 103{f) specifies that compliance with this 

subsection is not ••a jurisdictional prerequisite" to enforcement. Id. 

With respect to the first provision, the right of a mine operator, or, a miner's 

representative, to accompany an inspector is a fundamental right that is recognized in 

Commission case law as well as the legislative history. In this regard, it has been noted that 

••[t]he right to accompany an inspector on all 103 inspections has been consistently recognized by 

the Commission and the courts." Consolidation Coal Co., 16 FMSHRC 713, 719 {Apr. 1994). 

32 FMSHRC Page 120 
The failure to comply with MSHA filing requirements, that occurred by virtue of Stone's failure 

to register as a mine operator, is not a basis for denying section 103(f) ''walk:around rights." 

£mery Mining Corporation, 10 FMSHRC 276, 277 (Mar. 1988) (failure ofa non-employee 

miners' representative to file identifying infonnation required by 30 C.F .R. Part 40 does not 

pennit an operator to refuse the representative entry to its mine for purposes of exercising 

section 103(f) walkaround rights). Nor does an assertion that an area to be inspected is too 

dangerous provide an adequate justification for denying walkaround rights. Consol. Coal, 

16 FMSHRC at 718-19. 

As noted by the Commission, the legislative history of the 1977 Mine Act mandates that 

MSHA is required to permit representatives of miners and operators to accompany inspectors. 

The legislative history states that the Mine Act: 

contains a provision based on that in the [Federal Coal Mine Health and Safety] 

Act [of 1969 ("Coal Act')] requiring that representatives of the operator and 

miners be permitted to accompany inspectors in order to assist in conducting a 

full inspection. It is not intended, however, that the absence of such participation 

vitiate any citations and penalties issued as a result of an inspection. 

31 FMSHRC at 831-32 (citing S. Rep. No. 95-181, at 28 (1977), reprinted in Senate Subcomm. 

On Labor, Comm. On Human Res., Legislative History of the Federal Mine Safety and Health 

Act of 1977, at 616 (1978)) (emphasis added). 

There is a crucial substantive difference between the legislative history's reference to 

"the absence of such [walkaround] participation" that "is not intended [to vitiate] any citations 

and penalties," and, the unauthorized denial of such walkaround rights that a majority of the 

Commission has detennined occurred in this case. The Commission also recognized the 

substantive distinction between an operator's unavailability, or its decision not to participate in 

an inspection, and MSHA's refusal to allow its participation. While an operator's absence 

generally is benign, the Commission concluded that the arbitrary and unreasonable refusal in this 

case constituted an "impennissible" violation of the mine operator's section 103(f) statutory 

walkaround right. 31 FMSHRC at 827, 829, 830-31, 838. In fact, two Commissioners 

concluded Stone's treatment lacked "common decency."1 31 FMSHRC at 829. 

1 Specifically, two Commissioners concluded "common decency compels the conclusion 

that Mr. Stone be given something in writing providing him the legal basis for his exclusion from 

the inspection .... " 31 FMSHRC at 829. 

32 FMSHRC Page 121 
The important substantive distinction between "absence" and "denial" brings us to the 

second operative provision of section 103(f) that" [c]ompliance with this subsection shall not be 

a jurisdictional prerequisite to the enforcement of any provision of this act." 30 U.S.C. § 813(f). 

Obviously, the only party that can object to jurisdiction under section 103(f) is the mine operator. 

The only reasonable meaning of this provision is that a mine operator cannot successfully attack 

citations onjurisdictional grounds simply because it was not available during an inspection or 

refused to participate.2 Surely, it does not give the Secretary the authority to arbitrarily deny a 

fundamental statutory walkaround right that the legislative authors noted the Secretary was 

'required' to respect. 

The disposition of this matter is not affected because the subject citations were issued 

pursuant to the authority to conduct mine inspections delegated to the Secretary in section I 03(f). 

The Commission was created by Congress as an "independent adjudicative body authorized to 

hear disputes arising under the Mine Act." Emery West Mining Corp. v. FMSHRC, 40 F3d 457, 

459 (D.C. Cir. 1994) citing 30 U.S.C. §§ 81S(d), 823. The Commission is authorized by 

Congress to review, upon a mine operator's contest, enforcement actions of the Secretary to 

determine if citations should be affirmed, modified, or vacated. 30 U.S.C. §§ 813(a), 814(a), 

8IS(d). The rights of miners' representatives and representatives of mine operators to 

accompany inspectors are equally important, and, their participation in inspections enhances 

safety. In exercising its responsibilities, the Commission routinely considers whether citations 

should be set aside based on abuse of discretion, prejudice, or due process considerations. 

The Secretary's view that these fundamental fairness issues are immaterial in this case 

must be rejected. 

II. September 1. 2009. Show Cause Order 

In view of the determination by a Commission majority that the Stone's section 103(f) 

walkaround right was impennissibly violated, on September 1, 2009, the Secretary was 

ordered to show cause why the citations issued as a consequence of the December 2005 

inspection should not be vacated on abuse of discretion, prejudice, and/or due process grounds. 

31FMSHRC1273. The Order to Show Cause noted that the denial of Stone's walkaround right 

does not effect the propriety of the Part 46 training violations in I04(g)(l) Order No. 6122908 

and Citation No. 6122916 as these violations were not cited as a consequence of the physical 

inspection of the mine. Id. at 1275. An analysis of the Secretary's responses to questions posed 

in the Order to Show Cause follows. 

2 I previously have denied a mine operator's attempt to prevent an inspection 

because it refused to provide a representative to accompany the inspector. FR. Carroll, Inc., 

26 FMSHRC 97 (Feb. 2004) (ALJ). 

32 FMSHRC Page 122 
a. Abuse of Discretion 

The show cause order requested the Secretary to state whether she believed the 

inspector's denial of Stone's walkaround right constituted an abuse of discretion in light of the 

Commission's determination that Stone's 103(f) right was violated, Commission case law, and 

the Secretary's history of prosecution of cases involving a denial of a miners representative's 

103(f) walkaround rights. 31FMSHRC.at827, 829, 830-31, 838. Specifically, the Secretary 

was requested to address Utah Power & Light Co., 13 FMSHRC 1617, 1623 n.6 (Oct. 1991), 

quoting Bothyo v. Moyer, 772 F.2d 353, 355 {7th Cir. 1985) {an "abuse of discretion" has 

occurred when ''there is no evidence to support the decision or if the decision is based on an 

improper understanding of the law."). 31 FMSHRC at 1275. (Emphasis added). 

The Secretary responded that the inspector does not have the discretion to violate the 

statute assuming, for the sake of argument, that Stone's right was impennissibly violated. 

Sec'y Resp., at 1-2. 

The Secretary's reticence to concede the occurrence of the abuse of discretion in this case 

is disconcerting. Section 103(f), as well as its legislative history, requires the Secretary to afford 

representatives of the operator and miners an opportunity to accompany an inspector subject to 

the Secretary's regulations. Initially, the Secretary alleged Stone was disqualified from observing 

the inspection due to a lack of Part 46 new miner training. 30 C.F.R. Part 46. The Secretary now 

admits, albeit hesitantly, that Part 46 new miner training is not required to accompany an 

inspector. 3 The Secretary has not proffered any regulation that justifies the denial of Stone's 

right to participate in the inspection. The Secretary's stance in this proceeding with regard to her 

own denial of Stone's section 103(f) rights is ironic in view of her history of prosecution of 

alleged 103{f) violations against mine operators. See, eg., Consol. Coal, 16 FMSHRC at 714 

{issuance of 104(a) citation for failure of an operator to allow an authorized representative of 

miners to accompany an authorized representative of the Secretary). fu the final analysis, 

the Commission has concludeq that the denial of Stone's walkaround right was an impermissible 

violation of section 103{f). Since the inspector's action was contrary to the applicable statutory 

provisions, the denial of Stone's rights was based on an "improper understanding of the law" 

that constitutes an abuse of discretion. Utah Power & Light, 13 FMSHRC at 1623 n.6. 

Assuming the inspector abused his discretion, the Secretary was requested to address 

whether longstanding case law supports the proposition that a citation can be vacated based on a 

mine inspector's relevant and material abuse of discretion. Specifically, the Secretary was asked 

to address the decisions in Energy West Mining Company, 18 FMSHRC 565, 569 {Apr. 1996) 

and its progeny (abuse of discretion as a basis for vacating a 104(b) order otherwise validly 

issued); and Rochester & Pittsburgh Coal Company, 11 FMSHRC 2159, 2163-64 (Nov. 1989) 

3 As noted by the Commission, although initially asserting the contrary, the 

Secretary now concedes that the denial of Stone's walkaround right cannot be based on his 

lack of 30 C.F.R. § 46.5 new miner training. 31 FMSHRC 828-29. 

32 FMSHRC Page 123 
quoting Old Ben Coal Corp. v. Interior Bd. of Mine Op. App., 523 F.2d at 31 (71

h Cir. 1975) and 

its progeny {findings and decisions of an inspector are supportable unless there is evidence that 

he abused his discretion or authority). 31 FMSHRC at 1275. 

The Secretary's response seeks to distinguish the abuse of discretion in this case from 

abuses of discretion in Energy West and Rochester & Pittsburgh Coal concerning the 

reasonableness of 104(b) orders and imminent danger orders,· respectively. In this case, the 

Secretary asserts that the abuse of discretion was the decision to exclude the operator from the 

inspection rather than an error in judgement related to the merits of the subject citations. 

Secy Resp., at 3. 

The Secretary misses the point. The abuse of discretion with respect to 104(b) orders, 

imminent danger orders, and the subject citations, that were issued without the operator's 

presence and participation, all involve issues of fundamental fairness. A 104(b) order 

can be vacated if the MSHA inspector requires an unreasonably short abatement period. 

A 107( a) imminent danger order can be set aside if an inspector unreasonably concluded that the 

hazard created by the violation could cause death or serious injury before the condition can be 

abated. In each instance, subjecting the mine operator to withdrawal orders was unjustified by 

the circumstances. 

Here too, Stone's withdrawal from his mine property was unjustified. Significantly, the 

subject citations posed no significant danger to Stone. For example, the health and safety 

haz~ds created by no on-site toilet facilities, inadequate guarding, an absence of traffic signs, a 

lack of"no smoking" signs, and fire extinguishers that were not periodically tested, clearly did 

not present any walk.around dangers. In the absence of any extraordinarily hazardous conditions, 

the Secretary has not presented a rational basis for the denial of Stone's walkaround right. 

Moreover, the Secretary's contention that a denial ofwalkaround rights is warranted 

because an inspector cannot predict what hazardous conditions exist before entering a mine is 

unavailing. As a threshold matter, such an approach would justify the denial of all walk.around 

rights. Moreover, a representative of a mine operator can alert an inspector to potential dangers 

based his familiarity with the mine. Consequently, as in the cases vacating 104(b) and 107(a) 

withdrawal orders, imposing liability on the mine operator, given the unwarranted forced 

withdrawal of Stone from the mine site, is not justified by the circumstances. Accordingly, the 

inspector's abuse of discretion provides an adequate basis for vacating the subject citations. 

b. Due Process 

In its remand, two of the Commissioners suggested "[t]he only possible basis to 

overcome the [jurisdictional] statutory language would have to be constitutional in nature, such 

as the Due Process Clause." 31 FMSHRC at 834, fu. 14. Although the inspector's jurisdiction to 

conduct the December 2005 inspection in issue is beyond dispute, Commission case law reflects 

that violations of due process are grounds for vacating citations otherwise jurisdictionally and 

substantively valid. American Coal Company, 29 FMSHRC 941, 952-53 (Dec. 2007) citing 

32 FMSHRC Page 124 
Gates & Fox Co. V. OSHRC, 790 F.2d 1189, 1193 (9th Cir. 1982). (considerations of due process 

prevents imposition of a civil penalty and validation of a citation otherwise properly issued). 

Consequently, the Order to Show Cause, requested the Secretary to address whether the MSHA 

inspector's unreasonable denial of the mine operator's statutory section 103(f) walkaround right 

constitutes a due process violation. 31 FMSHRC at 1275. 

The Secretary responded that: 

Assuming that the inspector's determination was contrary to § 103( f), there is no 

evidence that the determination was based on anything other than the inspector's 

misunderstanding of the law. Even assuming the inspector's misunderstanding of 

the law constituted negligence, negligence does not support a substantive due 

process claim. 

Sec'y Resp., at 7, citing County of Sacramento v. Lewis, 523 U.S. 833, 845-50 (1998); Davidson 

v. Cannon, 474 U.S. 344, 347-48 (1986); Daniels v. Williams, 474 U.S.327, 330-32 (1986). 

The Secretary's reliance on the aforementioned cases involving negligence is misplaced. 

They involve the death or injury of victims of alleged negligence by government officials as a 

consequence of a vehicular police chase and unsafe prison conditions. In each of these cases, 

the court concluded that the negligence of government officials does not give rise to 

Fifth Amendment "right to life" claims. These cases do not concern the arbitrary denial of a 

statutory right. 

Moreover, the Secretary's assertion that a negligent misunderstanding of the law is not a 

material consideration when due process issues arise is surprising. The inadmissable confession 

obtained in violation of the right to counsel, the illegally obtained evidence acquired without a 

search warrant; and the instant arbitrary denial of a fundamental statutory right, cannot be 

overlooked based on a claim of carelessness. It is clear that the denial of Stone's right to 

accompany the inspector depriyed the mine operator of its statutory right to provide exculpatory 

information during the course of the inspection. Nor are, as the Secretary suggests, subsequent 

post-inspection close-out conferences with MSHA officials to discuss the merits of citations 

substitutes for 103(f) statutory rights. Sec'y Resp., at 5-6. 

In addition to relying on "excusable negligence", the Secretary, citing Valot v. Southeast 

Local Sch. Dist. Bd. Of Educ., 107 F.3d 1220, 1228 (6th Cir. 1997), notes that there are two 

categories of substantive due process claims. Within the first category are deprivations of a 

particular constitutional guarantee. Id. The second category consists of actions that "shock the 

conscience." Id. The Secretary asserts that neither category is applicable to the facts in this case. 

Sec'y Resp., at 4-5. 

32 FMSHRC Page 125 
The Fifth Amendment provides, in pertinent part, that "no person shall be ... deprived of 

life, liberty, or property, without due process of law .... " Stone was removed from his property 

against his will as a result of an abuse of governmental authority. Even though it was of short 

duration, Stone's removal must not be viewed as a trivial matter. Consequently, the inspector's 

action could reasonably be viewed as a violation of Stone's Fifth Amendment Constitutional 

property right. 

However, even ifthe section 103(f) walkaround right violation does not constitute a due 

process deprivation of a right to property under the Fifth Amendment, it nevertheless constitutes a 

denial of due process because of the erroneous denial of Stone's right to participate in the 

inspection. The Supreme Court has identified the elements of government conduct that can result 

in violations of due process. The Court has stated: 

. . . the truism [is] that "due process," unlike some legal rules, is not a technical 

conception with a fixed content unrelated to time, place and circumstances." · 

Cafeteria Workers v. McElroy, 367 U.S. 886, 895, 81 S.Ct. 1743, 1748, 6 L.Ed.2d 

1230 (1961). "(D)ue process is flexible and calls for such procedural protections 

as the particular situation demands." Morrissey v. Brewer, 408 U.S. 471, 581, 92 

S.Ct. 2593, 2600, 33 L.Ed.2d 484 (1972). Accordingly, resolution of the issue 

whether the administrative procedures provided here are constitutionally sufficient 

requires analysis of the governmental and private interests that are affected. Arnett 

v. Kennedy, supra, 416 U.S., at 167-168, 94 S.Ct., at 1650-1651 (Powell, J., 

concurring in part): Goldberg v. Kelly, supra, 397 U.S. at 263-266, 90 S.Ct., at 

1018-1020; Cafeteria Workers v. McElroy, supra, 367 U.S., at 895, 81 S.Ct., at 

17 48-17 49. More precisely, our prior decisions indicate that identification of the 

specific dictates of due process generally requires consideration of three distinct 

factors. First, the private interest that will be affected by the official action; 

second, the risk of an erroneous deprivation of such interest through the procedures 

used, and the probable value if, any, of additional or substitute procedural 

safeguards; and finally, the Government's interest, including the function involved 

and the fiscal and administrative burdens that the additional or substitute 

procedural requirements would entail. See, e.g., Goldberg v. Kelly , supra, 397 

U.S., at 263-271, 90 S.Ct., at 1018-1022. 

Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976) (emphasis added). 

Thus, the Court has identified three factors for determining whether a violation of 

due process has occurred. With respect to the first "private interest" factor, a major objective of 

the Mine Act is to encourage the efforts of mine operators and miners " ... to prevent the 

existence of ... [hazardous] conditions and practices in ... mines." 30 U.S.C. § 801(e). 

That is why section 103(f) of the Act confers the right ofrepresentatives of mine operators and 

miners to accompany inspectors during inspections "for the purpose of aiding such inspection." 

30 U.S.C. § 813(f). In fact, the Commission recently noted that it examines decisions of 

32 FMSHRC Page 126 
administrative law judges for abuses of discretion to " ... ensure that [each decision] effectuates 

the purposes of the Mine Act." Sec'y of Labor olb/o Gatlin v. KenAmerican Resources, Inc., 

31 FMSHRC 1050, 1053-54 (Oct. 2009) citing Sec'y of Labor olblo Rieke v. Akzo Nobel 

Salt, Inc., 19 FMSHRC 1254, 1258 (July 1997). An MSHA inspector must not be held to a lesser 

standard. Consequently, the deprivation of Stone's private interest to accompany the inspector for 

the purpose of providing material information and "for the purpose of aiding [in the] inspection" 

is readily apparent. 30 U.S.C. § 813(f). · 

Second, the Commission has already concluded that the inspector erroneously deprived 

Stone of his right to participate in the inspection. 31 FMSHRC at 827, 838. The Secretary's 

assertion, in essence, that a close-out conference is an acceptable substitute for walkaround rights 

that provides a procedural safeguard to protect Stone's rights is unavailing. The legislative 

history makes clear that Congress did not intend to empower the Secretary to arbitrarily deny 

Section 103(f) walkaround rights in favor of a substitute procedure. 

Finally, and most importantly, there is no Government interest that justifies the denial of 

Stone's right. In this regard, notwithstanding that new miner training is not a prerequisite to 

mine inspection participation, the Secretary has, in effect, conceded that Stone was a qualified 

miner. Significantly, MSHA allowed Stone to provide Part 46 new miner and hazard 

training to his personnel despite the fact that Stone had never received formal Part 46 training. 

30 C.F.R. §§ 46.5, 46.11; see also 31 FMSHRC at 830. In fact, Stone's participation furthers, 

rather than burdens, the Government's interest in encouraging a safer mining environment. As 

previously noted, a mine operator is familiar with the particular conditions that are unique to each 

mine. Consequently, the mine operator is an asset to a successful mine inspection that seeks to 

identify hazardous conditions and to address the necessary remedial actions required to alleviate 

the dangers. Id. Allowing walkaround rights does not result in any administrative burden. 

Finally, vacating the subject citations as a consequence of this due process violation does 

not adversely affect safety as these citations have been terminated because the necessary 

abatement actions have been taI<:en to correct the alleged violative conditions. 

Consequently, even if the inspector's action did not specifically violate the 

Fifth Amendment, Stone was the victim of an abuse of government authority that constitutes 

a due process violation. Longstanding Commission case law dictates that violations of due 

process are grounds for vacating citations otherwise substantively valid. American Coal 

Company, 29 FMSHRC at 952-53 (lack of due process notice ofMSHA's interpretation 

of a regulation). Accordingly, the subject violations can be vacated on due process grounds. 

(1) Exclusion of Evidence 

The Commission did not reach a majority consensus on how to proceed in light of the 

potential due process violation in this case. Two Commissioners suggested an exclusionary 

hearing to determine what information, if any, Stone would have provided during the inspection 

in defense of each citation. 31 FMSHRC at 836-37. Having been deprived of the opportunity, 

32 FMSHRC Page 127 
we will never know what information Stone would have provided during the December 2005 

inspection. Any testimony he now may give concerning what he might have said is entitled to 

little weight because it is remote in time and self-serving. In other words, the Secretary's 

denial of Stone's due process has undermined the value of Stone's testimony. ,Certainly, the 

Government should not benefit from its own misconduct. Rather, two Commissioners suggested 

that I determine, in view of the denial of Stone's 103(f) walkaround right, whether "none, some, 

or all of the evidence resulting from the inspection" should be excluded. 31 FMSHRC at 836-37. 

Once due process issues arise, all direct and indirect evidence obtained as a result of a 

government official's abuse is excluded. See, eg., Weeks v. United States, 232 U.S. 383 (1914); 

Nardonev. United States, 308 U.S. 338, 341 (1939) (suppression of":fruit of poison tree"); 

Wong Sun v. United States, 371U.S.471, 484 (1963). The material facts are not in dispute 

and the mine operator is appearing prose, Consequently, the exclusionary hearing suggested 

by the Commissioners to determine whether a due process violation has occurred has 

been accomplished, in effect, as a result of the Secretary's opportunity to provide answers to 

the September 1, 2009, Order to Show Cause. 31FMSHRC1273. Having given the Secretary 

the opportunity to address the due process issue, and, having determined that Stone's right to due 

process was violated, all evidence obtained as a result of the inspector's observations of the mine 

conditions during the inspection must be excluded. Weeks, supra. 

c. Prejudice 

The Order to Show Cause requested the Secretary to address whether an unreasonable 

denial of a mine operator's walkaround right is prejudicial per se, and whether prejudice provides 

a basis for vacating the citations in issue. 31 FMSHRC at 1276. The Secretary responded that 

the arbitrary denial ofwalkaround rights is not prejudice per se in view of the Commission's 

remand. Although one Commissioner concluded the mine operator was prejudiced, the 

remaining Commissioners did not specifically address this issue. With respect to whether 

prejudice provides a basis for vacating the subject citations, the Secretary responded that the 

operator has not been prejudiced because it has not shown an inability to defend itself in these 

proceedings. 

The exercise of a section 103(f) right is not contingent on an operator's showing of a need 

to accompany the inspector for the purposes of litigation. Although walkaround rights are 

qualified rather than absolute, they can only be denied pursuant to the Secretary's regulations, 

or in instances where there is a legitimate government need to preclude the mine operator's 

participation. Government officials must not be permitted to arbitrarily decide when statutory 

rights will be granted. Consequently, the unreasonable denial of a section 103(f) walkaround 

right is prejudicial per se regardless of whether it interferes with an operator's ability to defend 

itself. Moreover, the operator's ability to defend itself has been adversely affected by the absence 

of its opportunity to provide material contemporaneous information at the time of the inspection. 

32 FMSHRC Page 128 
Finally, the Commission may deny MSHA' s issuance of a modified citation if it results 

in legally recognizable prejudice to the operator. The Secretary may be precluded from 

modifying a citation to allege a different standard upon a showing of prejudice even if the facts 

support a violation of the modified standard. Cyprus Empire Corp., 12 FMSHRC 911, 916 

(May 1990). In other words, prejudice provides a basis for precluding enforcement regardless 

of whether a cited safety standard was in fact violated. 

Thus, the Secretary's section 103(:t) violation is both prejudicial per se, and, prejudicial 

based on its adverse impact on the operator's ability to defend. Consequently, consistent with 

Commission case law, the resultant prejudice provides an additional basis for vacating the 

subject citations. 

III. Part 46 Training Violations 

As stated above, the September 1, 2009, Order to Show Cause noted that the denial of 

Stone's walkaround right does not effect the propriety of the Part 46 training violations in 

104(g)(l) Order No. 6122908 and Citation No. 6122916 as these violations were not cited as a 

consequence of the physical inspection of the mine. 31 FMSHRC at 1275. Consequently, during 

an October 23, 2009, telephone conference with Stone andthe Secretary's counsel, I explained 

that there is no basis for disturbing the operator's liability for these two violations if it is not 

contended that Part 46 training had occurred. ·As a result, Stone reluctantly agreed to withdraw 

the operator's contest of 104(g)(l) Order No. 6122908 and Citation No. 6122916, and to pay 

the total $281.00 civil penalty for these two training violations. Letter from Pat Stone to 

Judge Feldman (Oct. 24, 2009). 

IV. Ultimate Findings and Conclusions 

In the final analysis, the Commission is a quasi-judicial independent agency created by 

Congress to adjudicate Mine Act disputes. Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 215 

(1994). Although an executive branch agency, Commission decisions are reviewable by the 

Court of Appeals. Id. at 208 citing 30 U.S.C. § 816(a){l). Due process, abuse of discretion and 

prejudice are related concepts that are applied by the judiciary to remedy abuses of governmental 

authority. As recognized throughout these proceedings, while the decision to allow walkaround 

rights is committed to the broad discretion of the inspector, the right to accompany an inspector 

is an important right that must not arbitrarily be denied. 30 FMSHRC at 550. 

As noted in the Commission's remand in this matter: 

... the Commission has recognized the critical role that section 103(:t) plays in the 

overall enforcement scheme of the Act, and has cautioned that "[ w ]e are not 

prepared to restrict the rights afforded by that section absent a clear indication in 

the statutory language or legislative history of an intent to do so, or absent an 

appropriate limitation imposed by Secretarial regulation. 

32 FMSHRC Page 129 
31 FMSHRC at 827 citing Consolidation Coal Co., 3 FMSHRC 617, 618 (Mar. 1981). 

The Secretary has failed to provide any rational justification for the denial of Stone's right to 

accompany the inspector. Accordingly, the subject citations shall be vacated as a consequence of 

the denial of Stone's section 103(f) right to be present during the inspection. The alternative is to 

ignore the denial of this important statutory right. 

As a final note, due process violations and abuses of discretion generally occur as a result 

of errors in judgement or misunderstandings of the law rather than because of intentional 

wrongdoing, bad. faith or misconduct. United States v. Nolen, 4 72 F .3d 362, 376 (5th Cir. 2006) 

(citations omitted). I am certain the inspector had a good faith belief that Stone was not entitled 

to exercise his walkaround right because the mine operator had not filed a mine identity report, 

and/or, because Stone had not received Part 46 new miner training. The inspector was wrong. 

ORDER 

In view of the above, IT IS ORDERED that Citation Nos. 6122909, 6122910 and 

6122911 (alleged guarding violations), 6122912 (alleged warning sign violation), 6122913 

(alleged traffic control violation), 6122914 (alleged lack of a work place examination program), 

6122915 (alleged failure of periodic fire extinguisher examinations), 6122917 (alleged failure to 

implement a hazardous chemical identification and training program), 6122918 (alleged lack 

of first aid materials), and 6122919 (alleged lack of toilet facilities) ARE VACATED 

on due process, abuse of discretion and/or prejudice grounds. 

IT IS FURTHER ORDERED that the contests of SCP Investments, LLC, of the 

Part 46 training violations in 104(g)(l) Order No. 6122908 (lack of new miner training) and 

Citation No: 6122916 (lack of approved training plan) ARE DISMISSED. 

IT IS FURTHERORDERED that SCP Investments, LLC, shall pay, within 45 days 

of the date of this decision, a total civil penalty of$281.00 in satisfaction of 104(g)(l) Order 

No. 6122908 and Citation No. 6122916. 

IT IS FURTHER ORDERED that upon timely payment of the $281.00 civil.penalty, 

the civil penalty proceedings in Docket Nos. SE 2006-148-M and SE 2006-163-M 

ARE DISMISSED. 

Jerold Feldman 

Administrative Law Judge 

32 FMSHRC Page 130 
Distribution: (Certified Mail) 

W. Christian Schumann, Esq., Office of the Solicitor, U.S. Department of Labor, 

1100 Wilson Blvd., Room 2220, Arlington, VA 22209-2296 

Christian P. Barber, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street, 

Suite 230, Nashville, TN 37219 

Pat Stone, SCP Investments, LLC, P.O. Box 82, Crab Orchard, 1N 37723 

/rps 

32 FMSHRC Page 131 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

601 NEW JERSEY AVENUE, N.W., SUITE 9500 

WASHINGTON, DC 20001-2021 . 

TELEPHONE: 202-434-9950 I FAX: 202-434-9949 

BLACK CASTLE MINING CO., 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

BLACK CASTLE MINING CO., 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

v .. 

MICHAEL VIRA, employed by 

BLACK CASTLE MINING CO., 

Respondent 

January 20, 2009 

DECISION 

CONTEST PROCEEDING 

Docket No. WEVA 2006-891-R 

Citation No. 7247101; 07/12/2006 

Black Castle Mining Co. 

Mine ID: 46-07938 

CIVIL PENALTY PROCEEDING 

Docket No. WEV A 2007-288 

A.C. No. 46-07938-109302 

Mine: Black Castle Mining Co. 

CIVIL PENALTY PROCEEDING 

DocketNo. WEVA2007-421 

A.C. No. 46-07938-115566A 

Mine: Black Castle Mining Co. 

Appearances: Robert S. Wilson, Esq., and Lucy C. Chiu, Esq., Office of the Solicitor, Arlington, 

Virginia, for Petitioner; 

Carol Ann Marunich, Esq., and Robert M. Stonestreet, Esq., Dinsmore & Shohl, 

LLP, Morgantown and Charleston, West Virginia, for Respondent Black Castle 

Mining Company; 

David J. Hardy, Esq., and Christopher D. Pence, Esq., Allen, Guthrie, McHugh & 

Thomas, PLLC, Charleston, West Virginia, for Respondent Michael Vira. 

32 FMSI1RC Page 132 
Before: Judge Hodgdon 

These consolidated cases are before me on a Notice of Contest, brought by Black Castle 

Mining Co., and two Petitions for Assessment of Civil Penalty, brought by the Secretary of 

Labor, acting through her Mine Safety and Health Administration (MSHA), against Black Castle 

Mining Co., and Michael Vira, an employee of Black Castle Mining, pursuant to sections 105 

and l lO(c) of the Federai Mine Safety and Health Act of 1977, as amended, 30 U.S.C. §§ 815 

and 820( c ). The cases involve an alleged violation of the Secretary's mandatory health and 

safety standards and seek penalties of $60,000.00 from Black Castle Mining and $9,000.00 from 

Michael Vira. A trial was held in Charleston, West Virginia. For the reasons set forth below, I 

vacate the citation, grant the contest and dismiss the proceedings. 

Back&round 

Black Castle Mining Company operates a large surface coal mine in Boone County, West 

Virginia. Black Castle is a subsidiary of Massey Coal Services, Inc., and Massey Energy 

Company. On Wednesday, February 1, 2006, Paul Moss was fatally injured when the bulldozer 

be was operating, in the East of Stollings Amendment area of the mine, contacted and ruptured a 

16-inch low-pressure, high-volume natural gas line which burst into flames. The parties have 

stipulated to the basic facts surrounding the accident, which are set out below in narrative form. 

(Tr. 48-58.) 

On the morning of Monday, January 30, 2006, a planning meeting was held at which the 

start of benching operations in the East of Stollings Amendment site was discussed. The meeting 

was attended by William Marcum, Production Manager for Black Castle, and Michael Boothe, 

Drill and Blast Foreman. They decided to assign bulldozer operator Paul Moss to clear an area 

known as the Judy Low Gap area for an access road to lead to where Moss would clear a drill 

bench for mining the Clarion coal seam. The fact that a gas line, owned and operated by 

Equitable Gas, was buried in the area of East of Stollings Amendment site was discussed at the 

meeting. 

On Tuesday morning, Moss began constructing an access road uphill from the Judy Low 

Gap area to locate the Clarion coal seam outcrop. Once he reached the seam, he was to construct 

a drill bench to allow drilling equipment to be brought to the site to start a new highwall. By 

3:30 p.m. that afternoon, Moss had roughed in an access road in close proximity to the Stockton 

coal seam, which was located below the Clarion coal seam. He had not reached the Clarion seam 

when he stopped for the day. 

On Wednesday morning, Moss returned to the area to continue construction of the access 

road and drill bench. Boothe observed Moss' arrival at the site and asked him over the CB radio 

if he was "okay." Moss replied that he was fine. Shortly after 8:30 a.m., Michael Vira, Mine 

Superintendent, spoke to Moss over the CB and told him to stay 100 feet away from the gas line. 

Later that morning, Mike Black, General Mine Foreman, called Moss on the CB as he drove 

32 FMSHRC Page 133 
through the East of Stollings Amendment and asked Moss if he was alright. Moss responded that 

he was doing fine. At approximately 11 :30 a.m., Boothe spoke to Moss on the CB and then went 

to see him where he was working. Boothe and Moss talked about how far off of the coal seam 

Moss was currently working and Moss told Boothe that his progress would be a little slow. The 

accident occurred sometime after 2:00 p.m. that afternoon. 

The accident was investigated by MSHA Inspector James R. Humphrey. At the 

conclusion of his investigation, some five months after the accident, he issued a citation to Black 

Castle which is the subject of this proceeding. Sometime later, a section 110( c) special 

investigation, 30 U.S.C. § 820(c), resulted in Vira being charged personally with the same 

violation. 1 

Findin&s of Fact and Conclusions of Law 

Inspector Humphrey issued Citation No. 7247101 to Black Castle on July 12, 2006. It 

alleges a violation of section 77.l 713(a), 30 C.F.R. § 77.1713(a), of the Secretary's regulations 

because: 

An adequate daily examination for hazardous conditions 

was not made of the active working area in the East of Stollings 

area of the mine. A bulldozer operator was working in this area, 

developing a drill bench at the Clarion coal seam level. The area 

was not adequately examined by a certified person for hazardous 

conditions and an existing hazardous condition, which was neither 

reported nor corrected, contributed to a fatal accident. 

An active 16-inch diameter gas line was buried and was not 

adequately marked in the. area where the bulldozer was being 

operated. The area was not adequately examined to determine the 

location and-extent of the gas line. Mine management knew that 

the gas line was located in the general area where the bulldozer 

was being operated and knew that the gas line was not marked. 

The presence of the unmarked gas line constituted a hazardous 

condition which should have been reported and corrected during 

the required daily inspection. Although management conducted an 

onshift examination of the general area, this hazardous condition 

was neither reported nor corrected. Management instructed the 

bulldozer operator to locate the Clarion coal seam crop and to 

1 Section 110( c) provides that: "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 the same civil penalties 

... that maybe imposed upon a person under subsection[] (a) .... " 

32 FMSHRC Page 134 
(Govt. Ex. 1.) 

develop a drill bench at that level. While carrying out this task, the 

bulldozer contacted the gas line causing it to rupture. The natural 

gas ignited, flames engulfed the bulldozer and the operator 

received fatal injuries. 

This violation is an unwarrantable failure to comply with 

the cited mandatory standard. 

Section 77.l 713(a) requires that: 

At least once during each working shift, or more often if 

necessary for safety, each active working area and each active 

surface installation shall be examined by a certified person 

designated by the operator to conduct such examinations for 

hazardous conditions and any hazardous conditions noted during 

such examinations shall be reported to the operator and shall be 

corrected by the operator. 

The Secretary argues that the company and Vira did not conduct an adequate on-shift 

examination of the access road and drill bench area because they did not mark the gas line more 

specifically than it was marked. It is the Secretary's position that they failed to do this despite 

the fact that Moss had expressed concern about the location of the gas line which should have put 

them on notice that additional action was necessary. It is the Respondents' view that the access 

road and drill bench were not active working areas within the meaning of the regulation and, 

even if they were, the gas line was adequately marked and the on-shift examination was 

satisfactory. As discussed below, I conclude that Vira's on-shift examination of the area on 

behalf of the company was adequate and that no violation occurred. 

Active Working Area 

The main thrust of the Respondents' defense in this matter is that section 77.1713(a) is 

not applicable because the accident did not occur in an "active working area" of the mine. The 

argument is based on the findings and decision in Central Ohio Coal Co., 12 FMSHRC1014 

(May 1990) (ALJ). Acknowledging that section 77.2(a), 30 C.F.R. § 77.2(a), states that "active 

workings means any place in a coal mine where miners are normally required to work or travel," 

the judge held that that was not the definition of"active working area" in section 77.l 713(a). Id. 

at 1017-18. He concluded that '"active working area' in§ 77.l 713(a) means the 'pit' or 'mining 

area' of a surface coal mine and not simply any location where miners are normally required to 

work or travel." Id. at 1019. Consequently, he found that a 16-mile-long railroad that generally 

ran through a remote area of the mine was not an "active working area" of the mine requiring 

32 FMSHRC Page 135 
daily examination. Id. at 1021. Relying on this decision, the Respondents' contend that the 

pipeline right-of-way is analogous to the railroad track. (Black Castle Br. at 12., Vira Br. at 24.) 

This argument is not persuasive. As the Secretary correctly notes, the Commission's 

rules state that: ''A decision of a Judge is not a precedent binding on upon the Commission." 

29 C.F .R. § 2700.29( d). Furthermore, even if Central Ohio were binding, it would not be 

applicable in this case since the bulldozer operator was working on a bench for drilling so that 

mining could be performed and thus the area was clearly a "mining area." The pipeline right-ofway was obviously close enough to the access road in the low gap area to be included in the 

"active working area." Whether it was close enough to the area where Moss was cropping the 

bench when the accident occurred is a closer question. Nevertheless, for the purposes of this 

decision, I will assume that it was part of the "active working area." 

The preshift and on-shift examinations 

Michael Vira conducted both preshift and on-shift examinations of the area on January 

31, 2006, and February 1, 2006, the day of the accident.2 (Stip. 47, Tr. 57.) He did not note any 

hazardous conditions on any of the examination reports for any of the examinations. (Govt. Ex. 

6.) According to the Secretary, his examinations were inadequate because he neither mentioned 

nor additionally marked the gas line. 

Brian Miller, Superintendent of pipelines for Equitable Resources, testified that the 32 

mile pipeline had been on the north section of the Black Castle mine, going east to west, since at 

least the 1940's. (Tr. 80-81.) He said that the pipeline was marked with "paint, ribbons, flags or 

sometimes carsonite markers that stay permanent." (Tr. 83.) He stated that the pipeline was also 

marked by mowing the vegetation along it and for a distance on either side of it. (Tr. 99, 107.) 

In addition, Rejean Boulet, the owner/foreman for East Cumberland, the contractor hired by 

Black Castle to cut trees on the property, testified they left a row of trees on each side of the gas 

line right-of-way fo further mark it. (Tr. 286.) Marcum testified that the gas line was marked 

with a clear right-of-way, cleared path down to the natural ground, as well as by yellow stakes. 

(Tr. 624.) He also said that this particular right-of-way was used by members of the public on 

all-terrain vehicles (ATV), so that the center four feet of the right-of-way was usually muddy. 

(Tr. 625-27.) 

According to Vira, who had been at the mine since 1989, Black Castle had been mining 

near the gas line throughout the last ten to twelve years before the accident. (Tr. 772-73.) 

Marcum, who had only been at the mine since August or September 2005, testified that: "We 

were always mining in the vicinity of the gas line." (Tr. 610.) Never had it occurred to anyone 

to note the gas line as a hazardous condition in the preshift or on-shift book. (Tr. 772-73.) 

2 The Secretary's regulations only require an on-shift examination. However, the state 

regulations require a preshift examination, so Vira conducted both. 

32 FMSHRC Page 136 
Marcum testified that in performing a preshift or on-shift examination, he would be 

.. looking for anything that substantially could cause imminent harm or serious injury, a bad 

highwall, insufficient berm roadways, grade elevation, those types ofmajor issues." (Tr. 604.) 

Specifically, with regard to bench areas he would be examining for hazards "against potential 

bodily harm, an example may be a low berm or a break or a wash out, som~thing we trim over or 

fall into that would get you in trouble, a weak berm. Something of that nature." (Tr. 604.) He 

said he would also make sure that the ground control plan was being followed. (Tr. 605.) Vira 

agreed that he ''would look over for any kind of abnormalities or anything that would be a 

hazardous situation." (Tr. 781.) In other words, the examiner would be looking for changes in 

conditions from the previous examination of the area which could be hazardous. 

In fact, not only was the gas line not a new condition or presence, but all of the miners 

were aware ofit. Vira acknowledged that the presence of the gas line was a well-known fact and 

talked about on the job. (Tr. 147-48.) Kenneth Smith, an excavator and bulldozer operator at 

Black Castle, related that the gas line had been brought up in safety meetings for the five and 

one-half years he had worked for the company prior to the time of the accident. (Tr. 206.) 

Boulet stated that he knew there was a gas line on the property and where it was. (Tr. 285.) 

Marcum agreed that the presence of the gas line on the East of Stollings Amendment was 

common knowledge at the mine. (Tr. 327.) Boothe testified that "everybody at Black Castle 

knew the gas line was there .... " (Tr. 380.) 

Inasmuch as the gas line had been present on the mine, in the vicinity of mining 

operations, for at least the last ten years, was marked, at a minimum, by a mowed or muddy 

right-of-way edged by trees, and everyone at the mine was aware of it, it is not surprising that 

prior to the accident it was not perceived as an hazardous condition necessary to report on daily 

examinations. Accordingly, I find that the preshift and on-shift examinations conducted by Vira 

were adequate 'and did not violate section 77. l 713(a) . 

. More Often if Necessazy for Safety 

This does not end the inquiry, however. The regulation requires examinations be 

conducted more often than once a shift, "if necessary for safety." Therefore, the evidence must 

be examined to determine whether Vira and/or Black Castle were subsequently put on notice that 

the pipeline could be an hazardous condition. 

Marcum met Moss in the Judy Low Gap area on Monday, January 30, prior to his 

commencing work on Tuesday. {Tr. 328, 330.) He testified that: 

We walked over to this area near this vicinity [the area 

between the access road and the gas line right-of-way in Govt. Ex. 

4-28] and we looked at it. I said, Paul, here's your [gas]line, this is 

your line, this is your right-of-way. I said, I need you to take your 

tractor travel through right here. Don't even drop your blade. Just 

32 FMSHRC Page 137 
travel through here, get up here on top where the line will veer up 

the mountain away from us, start your cut, come around through 

here [the access road at the top of the hill in Govt. Ex. 4-28] and go 

down the mountain. 

(Tr. 330.) The road onthe left in Govt. Ex. 4-28 is the road Marcum was telling Moss to create. 

(Tr. 331.) Marcum said that Moss never asked any questions about the gas line. (Tr. 633.) He 

insisted that: "Mr. Moss never showed any concern at all about the gas line." (Tr. 634.) 

Boothe, Moss' immediate supervisor, also met with Moss at the Judy Low Gap site. (Tr. 

666.) The purpose of the meeting was to show him where the gas line was. (Tr. 667.) He 

testified that: 

I showed him where he was entering. I actually took my arms and 

I said, the right-of-way, Paul. I said, the right-of-way for the gas 

line is on the ridge. And we were sitting in my truck and he looked 

out of the windshield, and I told him-I said we'll be entering 

here, varying levels. I said once you get through the low gap, I said 

you'll be fine. And I said the right-of-way is the top of the ridge, 

so the gas line is in the right-of way. 

(Tr. 669.) According to Boothe, Moss did not ask any questions about what he was to do or 

about the gas line. {Tr. 669-70.) 

Moss began working on the access road on January 31. He had not completed it when he 

had problems with his bulldozer and shut down for the day. (Tr. 674.) 

On the morning of the accident, Moss and Kenneth Smith rode to work together as they 

did everyday. (Tr. 198.) They left Smith's house around 4:15 a.m. (Tr. 198.) Smith testified 

that, as they were getting close to work, Moss said that "he [was] going to be working in a new 

area and he believed there was a gas line over there and he wasn't sure where it was."3 (Tr. 199-

200.) Smith said, "I told him if he didn't know where it was to get a hold of someone to show 

him where it was at." (Tr. 200:) 

Later that morning, around 9:00 a.m., Smith said that he heard Moss calling on the CB 

radio for Boothe. (Tr. 207.) He related that the call was answered not by Boothe, but by Vira. 

(Tr. 209.) With regard to their conversation, he testified that: "I heard part of it and the part that I 

heard was that Paul was concerned he might be getting too close to the gas line." (Tr. 209.) He 

said that Vira "told him to stay 100 feet from it." (Tr. 209.) 

3 The phrasing of this statement is curious, if it took place on the day of the accident, 

since Moss had already worked on the day before right next to the gas line. 

32 FMSHRC Page 138 
On that same morning, Jackson Woodard, a Black Castle bulldozer operator, was 

working on a hill opposite from Moss, but from where he could see him. (Tr. 233.) He testified 

that: 

(Tr. 234.) 

When Paul got up on the bench he called me on the CB and asked 

me about the level that he needed to start benching on. I told him 

that I wouldn't-haven't been up that high on the hill[,] I mean 

where he was at I could see him, but there was no way I could tell 

him exactly the coal seam level that he should be benching on, but 

I told him that I can call one of the foreman and have them get with 

him and I had a coal operator to call Mike Boothe which was 

Paul's immediate foreman at the time. That was at 7:00, 7:30 or it 

was even earlier. I'm not exactly sure, but it was in that time 

frame. Paul went ahead and worked until a little while later and 

Mike Boothe had gone down to talk to Paul at the time. Mike Vira 

came by to take my preshift on my dozer and I told Mike to call 

Paul. They talked a minute. Mike told Paul to make sure that he 

stayed at least 100 feet away from that gas line and that was 

basically all of the conversation that they had. 

Elmer Bishop, an East Cumberland employee, testified that he was running an excavator 

on the day of the accident. (Tr. 294.) He testified that at around 8:00 a.m. he heard Moss call 

Vira. (Tr. 296.) He stated that Moss "hollered at Bubba [Vira] and told him he didn't know 

where the gas line was at, or he didn't have no idea where it was at." (Tr. 296.) He said Vira 

responded, ''.just take your time and be careful, I'll send a surveyor there. As far as I recall that's 

what was said." (Tr. 297.) 

Lonnie L. Wood testified that he was a survey lineman for Black Castle on February 1 

and was assigned with another man to mark 400 or 500 feet of the gas line in the low gap area. 

(Tr. 563-64.) He said when they first showed up in the area, they encountered Moss who asked 

them to call Boothe. (Tr. 571.) He related that Moss asked if they were marking the gas line and 

they responded that they were. (Tr. 565.) He testified that: 

(Tr. 565.) 

We told him we was setting - we was standing right in the 

way of the gas line when we had our conversation. We told him it 

was about 10 or 15 feet behind us, and it was going in each 

direction, going left and right, just follow the ridge line. It just 

went on across the property. We didn't say how far it went. It just 

went across the ridge line. 

32 FMSHRC Page 139 
Wood said that they had a second conversation with Moss about an hour later when they 

finished their work at the ''top of the mountain." (Tr. 573.) He claimed that he did not remember 

making a statement to the accident investigator that he told Moss in the second conversation that 

he was not sure in which direction the gas line was going, but agreed that it was his voice on a 

recording, made by the investigator, making such a statement. (Tr. 566-71.) 

Vira testified, with regard to his conversation with Moss, that: "Paul asked me how far he 

needed to stay away from the gas line. I told him a hundred feet." (Tr. 177, 768.) He also 

testified that Moss asked to see Boothe that morning and he told Boothe that Moss wanted to see 

him. (Tr. 179-80, 770, 775.) Moss did not say why he wanted to see Boothe. (769-70.) Vira 

denied that he had a conversation with Moss as described by Bishop. (Tr. 769.) 

Boothe testified that Vira told him at the foremen's meeting that Moss wanted to talk to 

him. (Tr. 392.) He said that Vira did not tell him why Moss wanted to talk to him. (Tr. 392-93.) 

He said that he met Moss on the Clarion level, where he was cropping the Clarion seam, while 

Moss had stopped for lunch. (Tr. 393.) He stated that Moss did not say anything to him about 

the gas line at the meeting. (Tr. 394.) He testified that the conversation occurred as follows: 

(Tr. 396-97.) 

When I got there he was talking to the surveyors, the 

surveyors were going back to their vehicle. I got out. He climbed 

down off his dozer, come out on the ground and came back to me 

and we just talked about general stuff for a moment and I asked 

him what was going on, and we walked to the front of the dozer. 

He was on the clearing crop. I was always joking with him, telling 

him good job and all that. I told him, I says, this is great. I said, 

you know, what do you need? And he said, well, we're getting, 

you know - as I progressed, he says, rocks getting a little harder. 

I want you to know it's going to be slow. I said, no problem. He 

said, you know, just want you to know with the high wall, you 

know, it's going to be a slow process. And I told him, I said, 

again, don't worry about it. I said stay on the clearing and no 

problem. I'm not going to get on you for going slow. 

In analyzing these statements, the first one is Moss remarking to Smith on the way to 

work that he was not sure where the gas line was in the area he was working. This is properly 

characterized as a remark rather than an expression of serious concern because of the following 

exchange: 

Q. I just want to ask you a little bit more about your conversation 

that morning. You said you talked about his concern of the gas 

line. Did that stand most of the time you were driving to work? 

32 FMSHRC Page 140 
A. No. fu fact we were probably getting pretty close to work when 

he brought that up. 

Moreover, however the statement is characterized, it did not put Vira or anyone else in 

management at Black Castle on notice of any concerns Moss might have had. 

Next is the CB conversation with Vira. Vira said that Moss asked how far he should stay 

from the gas line. Smith overheard the conversation on the radio and, without stating exactly 

what Moss said, recounted that Moss was concerned he might be getting too close to the gas line. 

Bishop also overheard a conversation between Moss and Vira and claimed that Moss said that he 

did not know where the gas line was. Vira testified that Moss asked him how far he should stay 

from the gas line and he told him to stay 100 feet away from it. Smith heard Vira tell Moss to 

stay 100 feet from the gas line. Woodard, who did not hear what Moss said, heard Vira tell Moss 

to stay at least I 00 feet from it. Bishop contended that Vira told Moss to be careful and he would 

send a surveyor there. 

With the exception of Bishop's, it is easy to reconcile the statements. It does not strain 

credulity to conclude that when Smith heard Moss ask how far he should stay from the gas line, 

he inferred that Moss was concerned that he was getting too close to the gas line. It is also 

plausible that Bishop interpreted the statement as Moss saying he did not know where the gas 

line was. What is not reconcilable is Bishop's declaration that Vira said that he would send a 

surveyor over. There is no doubt that Vira told Moss to stay I 00 feet from the gas line. Two 

witnesses who have no apparent interest in the outcome of this case, Smith and Woodard, 

verified that that was what was said. No one has made the claim that there was more than one 

conversation between Moss and Vira concerning the gas line and, other than Bishop's curious 

statement, there is no evidence of more than one. Accordingly, I find that Moss asked Vira how 

far he should stay from the gas line and Vira told him to stay at least I 00 feet away. To the 

extent that Bishop's statements cannot be reconciled with the other witnesses, I find that he is not 

credible. -

Wood testified that the surveyors pointed out the gas line to Moss. He did not describe 

any particular concerns or uncertainty about the gas line on the part of Moss. 

Finally, Boothe testified that at their last meeting, he and Moss did not discuss the gas 

line at all. 

Considering all ofthis, I find that Moss did not give Vira or Black Castle management 

any reason to believe that the gas line needed to be marked better than it was. Moss' remark to 

Smith on the way to work was apparently just that. If it was an expression of serious concern, he 

certainly did not take Smith's advice to ask someone to show him where the gas line was. 

Instead, he asked Vira how far from the gas line he should stay. When Vira told him 100 feet, he 

apparently was sati~fied. There certainly is no evidence that he said anything to the affect of - "I 

don't know where the gas line is, how can I stay 100 feet from it?" or, "Have someone mark it 

32 FMSHRC Page 141 
for me," or anything like that. Later, when Black asked him ifhe was all right, Moss said he was 

doing fine and did not mention the gas line. Still later, when he talked with the surveyors, while 

he expressed some curiosity about where the gas line went, he did not state any concerns or ask 

them to proceed to where he was working and show him where the gas line was. 

The Secretary's case depends on finding that Moss expressed considerable concern about 

the location of the gas line and that the company did not adequately address his concern. 

However, as noted above, he really did not express concern or ask many questions. The 

Secretary's case also relies heavily on the assumption that Boothe did not tell the truth when he 

testified that he had no discussion of the gas line with Moss at their last meeting. That 

assumption further depends on the previous contention that Moss was very concerned about the 

location of the gas line, so he must have asked Boothe about it. 

The Secretary is viewing the case through the emotions of the accident.. Prior to the 

accident, there was no reason, other than being aware of the gas line, for Black Castle or its 

employees to be particularly concerned about the gas line. They had worked around it for years. 

Everyone knew where it was. Everyone knew it was marked by the right of way, even if they did 

not know the exact location of the gas line within the right of way. Based on the evidence in this 

case, there was no reason for Boothe to suspect that Moss was concerned about the gas line. 

Furthermore, it was not unusual for Moss to talk to Boothe during the day. The fact that he 

wanted to tell Boothe the job was going to be slow, rather than ask him about the gas line, is 

perfectly reasonable under the circumstances. There is nothing in this case which leads to the 

conclusion that Boothe was not credible. 

Moreover, if Moss had followed Vira's guidance and stayed 100 feet from the right-ofway, this unfortunate accident would not have happened. (Tr. 498.) The closest Moss' job 

called for him to work to the gas line was in the low gap area. Both Marcum and Boothe made 

clear to him where the gas line was located in that area and he obviously had no problems. 

Phillip Marsh, who was president of Black Castle at the time the accident, testifying based on a 

scale map of the area, noted that Moss was approximately 75 feet from the gas line when he 

began cropping the Clarion seam. (Tr. 735, Resp. Ex. 3.) The map indicates that as Moss 

cropped the seam he was moving away from the gas line. (Resp. Ex. 3.) Based on the map and 

Marsh's testimony, Moss was 265 vertical feet from the seam when he struck the gas line. (Tr. 

711, Resp. Ex. 3.) However, because he apparently could not go straight uphill, Moss had 

actually trammed 500 feet from the Clarion seam when he struck the gas line. (Tr. 711, Resp. 

Ex. 3.) 

No one knows why Moss took the bulldozer where he did. (Tr. 495.) The Secretary 

speculates that he may have been removing loose material from the bench, removing cut trees or 

creating an access road to the next higher coal seam. (Sec. Br. 30-32.) There is no evidence to 

support these theories. The pictures of the scene, while they show material in the blade of the 

bulldozer, do not show loose material or trees being moved, or the necessity for such activity. 

(Govt. Exs. 4-3, 4-14.) As Marcum testified: 

32 FMSHRC Page 142 
(Tr. 645-46.) 

Q. During your investigation of the accident site after this 

accident, did you have a chance to see whether there was any loose 

material that needed to be taken down for safety purposes? 

A. I've been all over that area, and again, I saw no reason that he 

was there for any productive issue. 

Q. After this accident, did you know whether there were any trees 

lying on the ground near this area? 

A. There were trees all over the area. 

Q. And in performing the benching area on the Clarion Seam, 

would Mr. Moss have had to remove any of those trees for safety 

purposes? 

A. Not in this area, no. 

Q. And why not? 

A. Much higher than the bench and completely out of the way. 

Black Castle had no reason to anticipate that Moss would go above the Clarion seam 

because it had nothing to do with his work assignment. (Tr. 641.) In fact, the supervisors were 

not the only ortes who were surprised by the location of the bulldozer at the time of the accident. 

Woodard testified that: 

-

I'm not exactly sure what time the accident was, but it was in the 

neighborhood of2:30, in that ballpark. I looked over there and 

Paul was coming down towards that gas line at that time and 

distance wise he would have probably been, I'm just guessing, 

maybe 75 feet before he hit that line. I called Paul on the CB 

because it struck me funny that he would have been as far away 

from the place that he was benching and I wasn't sure what was 

going on[.] I was just going to ask him. Paul did not answer me 

(Tr. 235-36.) Bishop also testified that he was surprised to see Moss up on the ridge because he 

knew the gas line was up there. (Tr. 300-01.) 

32 FMSHRC Page 143 
I find that up until the time of the accident; neither Moss nor anyone else had given Vira 

or any other Black Castle person in authority an indication that marking of the actual gas line was 

necessary. Accordingly, I conclude that conducting an additional on-shift examination or further 

marking the gas line was not necessary for safety. 

Conclusion 

No one knows why this tragic accident occurred. But the Secretary has not proven that it 

occurred because of an inadequate on-shift examination or a failure to mark the gas line better 

than it was. The evidence is clear that the Black Castle miners and the employees of the 

company's contractors were aware that the gas line was on the property and that it was marked by 

the right-of-way. Had Moss followed Vira's instructions to stay 100 feet from the gas line by 

staying 100 feet from the right-of-way, the accident would not have happened. Had he remained 

on the Clarion seam, the accident would not have happened. Black Castle's belief that the rightof-way sufficiently marked the gas line, based on the facts available at the time, was certainly 

reasonable. Accordingly, I conclude that neither the company nor Vira violated section 

77.1713(a). 

Order 

In view of the above, Citation No. 7247101 is VACATED, the contest in Docket No. 

WEVA 2006-891-R is GRANTED, and the proceedings in Docket Nos. WEV A 2007-288 and 

WEVA 2007-421 are DISMISSED. 

d 4M'. .d./_J__ 

T. Todd Hod~r­ Senior Administrative Law Judg~ 

32 FMSHRC Page 144 
Distribution: 

Robert S. Wilson, Esq., and Lucy C. Chiu, Esq., Office of the Solicitor, U.S. Department of 

Labor, 1100 Wilson Blvd., 22nd Floor West, Arlington, VA 22209-2247 

Carol Ann Marunich, Esq., Dinsmore & Sholes, LLP, 215 Don Knotts Ave., Suite 310, 

Morgantown, WV 2650i 

Robert M. Stonestreet, Esq., Dinsmore & Sholes, LLP, Huntington Square, 900 Lee St., Suite 

600, Charleston, WV 25301 

David J. Hardy, Esq., and Christopher D. Pence, Esq., Allen Guthrie McHugh & Thomas, PLLC, 

500 Lee St., Suite 800, P.O. Box 3394, Charleston, WV 25333-3394 

32 FMSHRC Page 145 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

Washington, DC 20001 

UNITED TACONITE, LLC, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMlNISTRATION (MSHA), 

Respondent 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMlNISTRATION, (MSHA), 

Petitioner 

v. 

UNITED TACONITE, LLC, 

Respondent 

January 26, 2010 

. 

•. 

CONTEST PROCEEDINGS 

Docket No. LAKE 2008-93-RM 

Citation No. 6154850; 11/20/2007 

Docket No. LAKE 2008-94-RM 

Citation No. 6154851; 11/20/2007 

United Mine 

CIVIL PENALTY PROCEEDING 

Docket No. LAKE 2008-501-M 

A.C. No. 21-03403-154315 

United Mine 

DECISION APPROVING SETTLEMENT 

AND 

ORDER DENYING INTERVENTION 

Before: Judge Feldman 

These contest and civil penalty proceedings are before me based upon a petition for 

assessment of civil penalty filed pursuant to section 105(d) of the Federal Mine Safety 

and Health Act of 1977 (the Act), 30 U.S.C. § 815(d). These proceedings concern the 

April 18, 2007, fatality of a United Taconite LLC (''UTAC") drill operator. The accident 

occurred when the drill operator attempted to level a large Pit Viper 351 drill that was positioned 

on a steep grade. The leveling jacks on the drill failed to maintain adequate contact with the 

ground causing the drill to tip on its side fatally injuring the operator. The drill was 

manufactured by Atlas Copco. 

After conducting an accident investigation, the Mine Safety and Health 

Administration ("MSHA'') issued two citations for alleged violations of mandatory safety 

standards. Citation No. 6154850 alleges a violation of the mandatory safety standard in 

30 C.F.R. § 56.14205 that prohibits machinery and equipment from being used beyond the design 

capacity intended by the manufacturer where such use creates a hazard to persons. There is 

pending civil litigation involving UTAC and Atlas Copco concerning the proper use of the 

Pit Viper 351 drill at the time of the accident. 

32 FMSHRC Page 146 
Citation No. 6154851 alleges a violation of 30 C.F.R. § 48.27(a)(3) of the Secretary's 

regulations that requires equipment operators to be instructed in safe operating procedures 

applicable to the installation or use of new equipment, particularly when such installation or use 

involves new or different operating procedures. The Secretary initially proposed a total civil 

penalty of $32,500.00 for each citation totaling $65,000.00 in civil penalties. 

These matters were scheduled for hearing on October 20, 2009. Shortly prior to the 

scheduled hearing, the Secretary and UTAC advised that they had settled all matters in issue. 

Before me is the parties'· Motion for the Approval of Settlement. The Secretary now proposes to 

reduce the civil penalty from $65,000.00 to $1,000.00. The substantial reduction in proposed 

penalty is based on the Secretary vacating Citation No. 6154850 because of the apparent 

uncertainty of litigation. The Secretary's discretion to withdraw a citation is not subject to 

review. RBK Construction, Inc., 15 FMSHRC 2099, 2101. 

In addition, the Secretary moves to modify Citation No. 6154851 to reflect the cited 

violation is 30 C.F.R § 48.29(a) rather than 30 C.F.R. § 48.27(a)(3). Section 48.29(a) provides, 

in pertinent part, that upon a miner's completion of each MSHA approved training program, the 

operator shall record and certify on MSHA form 5000-23 that the miner has received the 

specified training. The standard was modified after information learned in discovery suggested 

that miners were trained, but that such training was not recorded. Consequently, the Secretary 

moves to delete the significant and substantial (S&S) designation in Citation No. 6154851, and 

she proposes a significant reduction in civil penalty from $32,500.00 to $1,000.00. The 

Secretary's motion to amend Citation No. 6154851 to reflect 30 C.F.R § 48.29(a) as the alleged 

violated mandatory safety standard shall be granted. 

Also before me is a Motion to futervene filed on behalf of William W. Walker and 

Steven W. Beck. The motion asserts that Walker and Beck are "affected miners" as 

contemplated by Commission Rule 4(b)(l), 29 C.F.R § 2700.4(b)(l). Although Walker and 

Beck were not present at the time of the accident, as employees of a contractor, they participated, 

over a period of time, in the setup of the PV 351 drill involved the accident, as well as in the 

training of UT AC mine personnel in the use of the drill. Commission Rule 4(b )(1) provides, in 

pertinent part, that affected miners may intervene and participate in hearing proceedings. 

However, intervention is not a matter of right. Rather, the right to intervene is committed to the 

sound discretion of the Judge. 29 C.F.R § 2700.4(b)(2)(C)(ii). UTAC opposes the intervention 

motion based on its assertion that Walker and Beck are not "miners." 

Without addressing the issue of whether Walker and Beck are "affected miners," the 

Motion to Intervene shall be denied because these contest and civil penalty matters between the 

Secretary and UT AC have settled obviating the need for a hearing. However, the settlement 

terms must be strictly construed for the purpose of settlement only. The approval of this 

settlement is not a finding on liability with regard to any civil litigation arising out of the 

April 18, 2007, drill accident with respect to United Taconite LLC, Atlas Copco, 

William W. Walker, Steven W. Beck, and/or any other person or entity that may be a party in 

relevant civil litigation. 

32 FMSHRC Page 147 
I have considered the representations and documentation submitted in these matters and 

I conclude that the proffered settlement is appropriate under the criteria set forth in Section 11 O(i) 

of the Act. WHEREFORE, the motion for approval of settlement IS GRANTED, and 

IT IS ORDERED Citation No. 6154850 IS VACATED. 

IT IS FURTHER ORDERED that, consistent with the parties' settlement agreement, 

the Secretary's motion to amend Citation No. 6154851 IS GRANTED. 

IT IS FURTHER ORDERED that the respondent pay a civil penalty of $1,000.00 

within 30 days of this order in satisfaction of the two citations in issue. Upon receipt of timely 

payment, the captioned contest and civil penalty cases ARE DISMISSED. 

IT IS FURTHER ORDERED that the Motion to Intervene filed on behalf of 

William W. Walker and Steven W. Beck IS DENIED. 

Distribution: 

Jerold Feldman 

Administrative Law Judge 

Suzzane Dunne, Esq., Office of the Solicitor, U.S. Department of Labor, 230 S. Dearborn Street, 

gth Floor, Chicago, IL 60604 

R. Henry Moore; Esq., Jackson Kelly, PLLC, Three Gateway Center, Suite 1340, 

401 Liberty Avenue, Pittsburgh, PA 15222 

R. Brian Hendrix, Esq., Patton Boggs, LLP, 2550 M Street, N.W. 20037 

/rps 

32 FMSHRC Page 148 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

72119th STREET, SUITE 443 

MACH MINING, LLC, 

Contestant, 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Respondent 

DENVER, CO 80202-2500 

303-844-5267/FAX 303-844-5268 

January 28, 2010 

DECISION 

CONTEST PROCEEDINGS 

Docket No. LAKE 2010-1-R 

Citation No. 6680550; 9/29/09 

Docket No. LAKE 2010-2-R 

Citation No. 6680551; 9129109 

Mach#l Mine 

Mind ID 11-03141 

Appearances: Thomas Paige, Office of the Solicitor, U.S. Department of Labor, Arlington, 

Virginia and Peter Nessen, Office of the Solicitor, Chicago, Illinois, for Petitioner: 

Before: 

Daniel Wolff, Crowell & Moring, LLP, Washington, D.C. and David Hardy, 

Allen Guthrie & Thomas, PLLC., Charleston, West Virginia for Respondent 

Judge Miller 

These cases are before me upon Contestant's request for an expedited hearing to 

challenge Citation Nos. 6680550 and 6680551 issued pursuant to section 105(d) of the Federal 

Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (the "Act" or ''Mine Act"). The 

citations allege that Mach Minjng was operating its #1 Mine with an unapproved ventilation plan 

(both a site specific and a base ventilation plan) in violation of 30 C.F.R § 75.370(d). The cited 

standard requires, in essence, that the mine operator develop and follow a ventilation plan 

approved by the Secretary. 

On June 4, 2009, Mach Mining ("Mach" or "Contestant") submitted a ventilation plan, 

which included a base plan and site specific plan, to the Mine Safety and Health Administration 

("MSHA"). The parties entered into negotiations and discussed various plan provisions. In 

September, 2009, Mach communicated its intent to implement the unapproved plan in order to 

bring these contests. By agreement between MSHA and the Contestant the mine began 

operation without an approved plan in place and, subsequently, on September 29, 2009, was 

issued two citations by MSHA Inspector Keith Roberts. In addition, MSHA sent a deficiency 

letter to Mach that addressed the points remaining at issue. The letter and the citations list the 

specific items that are in dispute in the site specific plan for the #3 longwall panel and the base, 

or general, plan at the mine. At hearing, the parties stipulated to specific items listed in the 

32 FMSHRC Page 149 
citations that remain in dispute for review by this Court. Specifically, the parties stipulated that 

the basis for the Secretary's disapproval of the ventilation plans involved the following issues: 

1) Issue #1 in Citation No. 6680550 (panel #3) and Issue #6 in Citation No. 

6680551 (general plan): Means of evaluating the effectiveness of the 

bleeders, bleeder evaluation points. 

2) Issue #2 in Citation No. 6680550 and Issue# 15 in Citation No. 6680551: 

Use of regulators as ventilation controls in the worked-out areas. 

3) Issue #3 in Citation No. 6680550 and Issue #14 in Citation No. 6680551: 

Use of stoppings as ventilation controls in the active tailgate entry. 

4) Issue #4 in Citation No. 66805 50 and Issue # 9 in Citation No. 66805 51 : 

Use of belt air to ventilate the working longwall face. 

5) Issue #1 in Citation No. 6680551: Requirement to specify means of 

compliance with 30 C.F.R. § 75.332, continuous mining machines and 

split air. 

6) Issue #3 in Citation No. 6680551: Requirement to show means of 

ventilating idle places and places where the roof bolter is operating. 

7) Issue #4 in Citation No. 6680551: Inclusion of a depth-of-water action 

level to avoid issues regarding safe travelways. 

8) Issue #8 in Citation No. 6680551: Requirement to change the manner of 

shuttle car operation. 

9) Issue #11 in Citation No. 6680551: Requirement to use something other 

than check curtains in the headgate entry to direct air across the face. 

MSHA argues that the above items, except issue #4 in Citation No. 6680551, should be 

included in the plan in a manner that meets MSHA's goals of providing a safe and effective 

ventilation plan. Mach argues that the plan it has used for panels #1 and #2 in the mine has 

worked successfully and, therefore, will work successfully for panel #3 without any change. 

Further, Mach alleges that its ventilation system is superior to other systems due to the high 

capacity fans that allow it t~ ventilate without "artificial" controls. 

The Secretary maintains that the MSHA district manager was not arbitrary and capricious 

in finding that Mach's current ventilation plan is not suitable for the mining conditions at the #1 

Mine while, on the other hand; the plan proposed by MSHA is suitable. The Secretary argues 

that the district manager, with the assistance of others at MSHA, reviewed all factors and 

reached a reasonable conclusion regarding the plans. 

The contested citations allege violations of 30 C.F.R. § 75.370(d), which states that "[n]o 

proposed ventilation plan shall be implemented before it is approved by the district manager." 

fu deciding whether to approve a proposed ventilation plan MSHA looks to § 75.370(a), which 

provides in pertinent part that "[t]he operator shall develop and follow a ventilation plan 

approved by the district manager [and] [t]he plan shall be designed to control methane and 

respirable dust and shall be suitable to the conditions and mining system at the mine." 30 C.F.R. 

§ 75.370(a). 

32 FMSHRC Page 150 
As a general matter, the Commission has held that plan formulation under the Mine Act 

requires MSHA and the operator to negotiate in good faith for a reasonable period of time 

concerning disputed plan provisions. Carbon County Coal Co., 7 FMSHRC 1367, 1371 (Sept. 

1985). "Two key elements of good faith consultation are giving notice of a party's position and 

adequate discussion of disputed provisions." C. W. Mining Co., 18 FMSHRC 1740, 1747 (Oct. 

1996). In this proceeding there is some question as to whether Mach negotiated in good faith. 

Mach requested that negotiations end a number of times in order to take the matter to hearing. It 

is no secret that Mach was up against a deadline to set up the #3 panel so that the longwall could 

be moved on time. In addition, there is testimony from one of Mach's witnesses regarding the 

use of the hearing process to resolve ventilation plan disputes in other districts, which could 

imply that Mach failed to negotiate in good faith. (Tr. 480). Further, Mach hired two experts, 

Hartsog and Blandford, in July and August 2009 to advise the mine and create courtroom 

exhibits for the anticipated hearing. (Tr. 505, 572-573, 587-589). However, in spite of such 

evidence, the record supports the premise that the Secretary and Mach had extensive back and 

forth discussions over a period of eight months. See Emerald Coal Res., LP, 29 FMSRHC 956, 

967 (Dec. 2007). The discussions between the district manager and Mach included telephone 

calls, emails, letters and meetings, at both the district and national level. During the negotiations 

both parties made adjustments in their positions regarding the issues. The discussions were 

ongoing and, based upon those talks, several of the issues were removed from consideration. 

While I believe the Secretary's argument that Mach failed to negotiate in good faith has some 

merit, the evidence presented indicates that what negotiations did occur adequately met the 

requirement of good faith consultation. 

For reasons that follow below, I affirm Citation No. 6680550 and Citation No. 6680551 

and dismiss Mach's contest proceeding. 

Findings of Fact 

Mach employs a longwall mining system at the #1 Mine. (Tr. 143-144). The dispute in 

this case centers on whether Mach's proposed system of ventilating panel #3 is suitable, as well 

as whether the base, or general, plan is suitable to the conditions at the mine. Mach's ventilation 

system is a "push-pull" fan system, designed to flood the entire mine with air. The "push" of 

this system is provided by a large capacity intake fan that sends air into the mine, while the 

"pull" is provided by a large capacity exhaust fan at the back of the bleeder shafts that pulls air 

out of the mine. Some stoppings and curtains are utilized in the system, but fewer than in a 

traditional system. Mach's position is that, because the fans put such velocities and volumes of 

air into the mine by utilizing pressure differentials, the air flows across the face, adequately 

ventilates the gob area and exits by way of the bleeders. In Mach's view, the system works well 

and should not be changed or adjusted. The ventilation system design is a relatively new one 

that has provided ample air to ventilate the #1 and #2 panels during mining. However, the 

system is not flexible or easily altered, making it difficult to meet changing needs as mining 

progresses. 

32 FMSHRC Page 151 
Mach's system utilizes the development sections to create the main entries and the gate 

road entries for the longwall. (Tr. 143). The development system makes use of three mine 

entries with connected cross-cuts. (Tr. 148). At the time the citations were issued the mine had 

developed and mined the #1 panel and was in the process of mining the #2 panel. Part of the 

dispute in this case arose when Mach began to develop panel #3. While mining the #2 panel the 

mine encountered adverse roof conditions, primarily in the bleeder entries of the mine. In an 

effort to avoid further adverse roof conditions,. the mine developed panel #3 1000 feet beyond 

the bleeders of panels #1 and #2. This extended development was done without consultation or 

approval of MSHA. 

Inspector Keith Roberts, who has more than 30 years of mining experience, testified that 

he reviewed the two plans at issue for the #1 Mine. After consultation with the district manager, 

and armed with information from MSHA and a survey team, Roberts drafted the list of 

deficiencies contained in the citations. He did so with the input of technical support, including 

that of Dennis Beiter, a ventilation specialist. After discussing his findings with the district 

manager, he, along with MSHA personnel, discussed the two ventilation plans with Mach. On 

several occasions, all parties traveled to Arlington to speak with higher ranking authorities 

regarding the plans. Roberts visited the mine on several occasions and consulted with 

inspectors, supervisors, and the operator about the various issues that continued to be disputed. 

Robert Phillips, the MSHA district manager in Vincennes, Indiana at the time of this 

dispute, has been in the mining industry in various positions since 1960 and has been employed 

by MSHA for 27 years. At the time Phillips started working in this position he was notified that 

roof control problems existed at the Mach #1 Mine, and that the mine was operating with a 

"conditional" ventilation plan. In. response, Phillips spoke with his roof control specialist about 

reviewing that plan and arranged to have the ventilation plan reviewed so that an unconditional 

plan could be put into place. About the same time, the Contestant asked for a review of the 

ventilation plan for the #3 panel, which had been developed 1000 feet beyond the bleeders of 

panel #1 and #2. MSHA issued a citation for failing to follow a ventilation plan and, after a 

contest, Judge Manning agr~ed that Mach had made a substantial change to the ventilation that 

required plan approval. Mach Mining, 31 FMSHRC 709, 714-715 (May 2009) (AU). Mach and 

MSHA were engaged in two plan discussions: one for the overall mine, and one specifically for · 

the #3 panel area that was being developed with an eye toward mining after the #2 panel was 

complete. Mach was eager to develop the #3 panel so that it was ready to mine once the #2 

panel was complete. Consequently, it pushed MSHA to make findings with regard to the 

ventilation in that area so that it could have a plan in place to meet the mine's timeline for 

development. While Mach pushed ahead its plans for the #3 panel, it was also negotiating on a 

base, or overall, plan for the mine. 

District Manager Phillips explained that each district has its own procedure for 

processing and approving ventilation plans. First, Phillips reviews the plans in a cursory manner 

and then forwards the plan for review to his technical assistant. From there, the plan is 

forwarded to the proper supervisor for ventilation. The plan is then faxed to the field office 

responsible for the mine where the inspector assigned to the mine reviews and provides remarks 

32 FMSHRC Page 152 
on the plan. The plan then goes back and forth between the inspector and his supervisor before 

the remarks are sent to the ventilation supervisor in the district. Phillips,· in order to keep track 

of the progress of the plan, requires comments from his staff and from the mine to be put in 

writing rather than exchanged verbally. If there are issues, he asks for assistance, as he did here, 

from the technical support division ofMSHA. Mach's proposed plan, Gov. Ex. 1, dated June 4, 

2009 and the proposed plan for the #3 panel, Gov. Ex. 2, dated September 3, 2009, went through 

such a process. After much discussion and review, both plans were rejected on September 29, 

2009. (Tr. 299-302). 

I find District Manager Phillips to be thoughtful in his deliberation regarding the plan, 

and cautious in reviewing every comment and document provided to the district. He sought the 

assistance of not only the technical support division, but also the headquarters office in 

Arlington, Virginia. Phillips credibly testified that he considered all input when making his 

decision regarding the tWo plans and signing the letters regarding the deficiencies in the plans 

submitted by Mach. 

a. Use of Belt Air to Ventilate the Working Longwall Areas. Issue #4 in Citation No. 

6680550 (Panel #3) and Issue #9 in Citation No. 6680551 (General Mine Ventilation 

Plan). 

The Secretary's position is that Mach did not justify the use of belt air as required by the 

Secretary's new regulation found at 30 C.F.R. § 75.350(b) that requires the operator to provide 

substantial justification for the use of belt air. The new regulation, according to its preamble, 

requires a mine operator to have a compelling "need" to use belt air. Flame-Resistant Conveyor 

Belt, Fire Prevention and Detection, and Use of Air from the Belt Entry, 73 Fed. Reg. 80580-01, 

80591-92 (Dec. 31, 2008) Mach, on the other hand, stresses that its system is designed to use 

belt air, which ,it has used successfully on the first two panels. In Mach's view, the system 

delivers twice the required air to the face and, as a result, there have been no respirable dust 

citations or methane ignitions. Mach argues that the use of belt air is necessary to keep the 

Iongwall face ventilated and, further, it is "safer" to use belt air than not. 

Phillips and Roberts credibly addressed the issue of belt air in their testimony. Phillips 

explained that a new belt air rule was implemented in March, 2009. The Mach "conditional" 

plan had been approved prior to the new rule and the mine was using belt air to ventilate the 

working areas in the #2 panel. In an effort to give Mach more time to address the issue, MSHA 

agreed that Mach could continue to use belt air in the #2 panel while discussing the new plan. 

However, MSHA did not approve the use of belt air for the #3 panel. In reviewing the Mach 

plan, Phillips relied on a memo outlining the new belt air rule that was prepared by MSHA and 

circulated to all district managers. Gov. Ex. 3. The memo explains the new belt air regulation 

and instructs the district managers to look to four specific items in evaluating the use of belt air. 

First, the operator must evaluate the hazardous condition it believes will be addressed by using 

air from the belt entry. In most cases, the hazard will be either methane or dust at the working 

area. Second, the operator must evaluate how the belt air will mitigate the hazard and explore 

other possible solutions. Third, the operator must review technology and safety measures that it 

32 FMSHRC Page 153 
will implement to use belt air. Fourth, and finally, the district manager must determine whether 

the use of belt air would afford at least the same measure of protection as not using belt air. The 

guidance given to the district managers tracks the standard and explains the regulation and its 

intent. Id. 

Phillips explained the long history of belt air, including the belt air committee and its 

recommendations regarding the use of belt air. He discussed the general hazards associated With 

using belt air in working areas, including smoke and fire carried to the working face from the 

belt. According to Phillips, Mach failed to address the four criteria necessary for him to make a 

reasoned decision, and therefore did not justify the use of belt air in its plan. Phillips requires 

more of an explanation and Mach has not provided it. (Tr. 314-317). 

Roberts agreed with Phillips regarding the use of belt air. In his testimony, Roberts 

described how Mach's proposed plan depicts the use of belt air to ventilate the working sections. 

However, he stated that Mach failed to identify a hazardous condition that would justify the use 

of belt air and, in addition, did not discuss providing at least the same measure of protection as 

entries that were not using belt air. Further, Roberts reviewed the new regulation and 

administrative documents and understands that a mine operator must meet all of the 

requirements in the regulation in order to justify the use of belt air. (Tr.78-80). 

Mach's position is that it would be "less safe" ifit were not permitted to use belt air to 

ventilate the longwall face. Mach used belt air to ventilate the longwall face in panel #1 and #2 

and, therefore, according to Mach, its safety is justified. Mach has had no dust violations in the 

belt entry on the active longwall section or longwall face. (Tr. 110, 397). Mach argues that 

hazards would be present without the use of belt air, and believes it has justified the use to the 

district manager. Mach argues that it submitted some additional information to the district 

manager at a meeting in Arlington, Virginia, but was under the impression that belt air would not 

be allowed and did not pursue it further. (Tr. 346-349). Gary Hartsog, Mach's expert witness, 

testified that eliininating the use of belt air would cause problems with the overall ventilation 

system. He explained that in order to direct the belt air outby, the mine must tum down the 

bleeder fan to such a low setting that there would not be enough air going through the gob to 

keep it adequately ventilated. (Tr. 520). While Hartsog acknowledged the inherent dangers 

recognized by the belt air technical study panel, he nevertheless believed that it was safe to use 

belt air at the #1 Mine. (Tr. 578-581). · 

Phillips agreed that Mach had expressed concerns about discontinuing the use of belt air. 

However, there is no evidence in the record that Mach provided sufficient information during its 

meetings with MSHA to explain its position. Mach, in tum, agrees that MSHA believes Mach 

had not submitted enough information. The citations and the letters explain to Mach that they 

have not provided sufficient information to the District to make an appropriate evaluation of the 

use of belt air. At the present time, given that Mach has not provided sufficient information to 

justify the use of belt air, the plan proposed by MSHA is suitable. 

32 FMSHRC Page 154 
b. Bleeder Evaluation Points. Issue #1 in Citation No. 6680550 (Panel #3) and Issue #6 in 

Citation No. 6680551 (General Ventilation Plan): Means of Evaluating the Effectiveness 

of the Bleeders and Specifically Evaluation Points in the Bleeder System. 

MSHA requires Machto·evaluate the effectiveness of the bleeders, and, as part of that 

obligation, requires bleeder evaluation points at specific locations. MSHA argues, among other 

things, that 30 C.F.R. § 75.364(a)(2)(iii) requires that at least one bleeder be walked every seven 

days. The purpose of the regulation is to ensure that the bleeders are free from obstructions and 

that proper air quantity, quality, and direction continue throughout the system. Mach counters 

that, because of unstable roof, it is not safe to walk the bleeders and it is not necessary because 

the air is tested at the point it exits the mine. Mach believes that, given the velocity and pressure 

differential of the air, there is no need to risk evaluating the bleeder areas when a reading is 

taken "around the perimeter" and at the end of the system. According to Mach, the risk 

associated with walking the bleeders far outweighs the information obtained. Mach points out 

that it has evaluated its bleeders for the first two panels and will continue to do so for panel #3, 

but without using the evaluation points sought by MSHA. 

Dennis Beiter is employed by MSHA in the Pittsburgh Safety and Health Technology 

Center as the supervisor of the Ventilation Division. (Tr.136). He spends half of his time 

supervising and the other half participating in mine investigations, face ventilation 

investigations, and investigations into explosions, accidents, fires and ignitions. Beiter has 

worked in underground coal mines.in Pennsylvania and Illinois, and has worked for MSHA as a 

mining engineer in ventilation since 1991. He holds a Bachelor of Science in mining 

engineering from Pennsylvania State University and served on a committee that explored issues 

associated with bleeders and gob in the aftermath of a fatal explosion at South Mountain. As a 

member of that committee, he drafted a report on the bleeder and gob issues and made 

recommendations for education regarding bleeder ventilation systems in underground coal 

mines. (Tr. 13'8-139). He is well qualified as an expert in underground coal mine ventilation 

and ventilation surveys. 

Beiter and his team conducted two ventilation surveys at the Mach Mine. The first 

survey was conducted from March 31 through April 2, 2009, and the second in June. ·(Tr. 145). 

At the time of the first survey, the mine had completed mining panel #1 and had advanced about 

1000 feet in panel #2. (Tr. 150). Beiter conducted an air pressure and air quantity investigation. 

He also conducted a tracer gas study, collected bottle samples, took underground readings at 

identified locations, measured pressure differentials, and used chemical smoke and hand-held 

gas detectors to determine the direction of airflow and the levels of methane and oxygen. A 

map attached to his report provides an overview of the bleeder system, the pressure differentials, 

and the key locations of the ventilation system. Gov. Ex. 4 Figure 1. It also indicates all places· 

where readings and measurements were taken during the survey. (Tr. 14 7- 148). Beiter relied 

on this map, as well as others, during his testimony. Gov. Ex. 4 Figure 1, 4. 

Beiter and his team, along with representatives from the mine, traveled every bleeder 

entry and stood in every cross-cut, except those that were not safe due to the deteriorating roof 

32 FMSHRC Page 155 
condition in the bleeder entries. They used chemical smoke to determine air movement in all of 

the cross-cuts between the bleeder entries and the south mains for headgate number one. (Tr. 

157, 163). Beiter, or persons in his party, traveled both tailgate entries, the number three entry, 

and the tailgate travelway in their entirety. They encountered deep water with bridges spanning 

the water in many locations. (Tr. 162). They traveled the bleeder entries from headgate number 

two to the bleeder shafts and outby tailgate number one for four cross-cuts, collecting 

information regarding :the adequacy of the airflow distribution and the adequacy of the dilution 

of gases. (Tr. 180). Traveling the bleeders was necessary to determine if the ventilation system 

was effective, as well as to determine what effect the roof falls had on the system. (Tr. 181-

181 ). 

The #1 Mine uses an intake shaft with a blower fan located at the surface to bring air into 

the mine. As the air enters the mine, it is forced into the mine with the blowing fan at the top of 

the intake shaft. (Tr. 149). At the other end of the mine are two bleeder shafts, one cross-cut 

apart, that join one another before reaching the bleeder shaft fan. (Tr. 150). The air reaches the 

bleeder shaft through the bleeder entries, which are perpendicular to the longwall panels and the 

gate entries. (Tr. 152). 

When Beiter's team began the first survey, panel #1 had been mined and was now the 

gob area. Panel #2 was in the process of being mined and the bleeder entries were connected 

with the bleeders for panel #1. The bleeders in panel #2 were changed from panel #1 when the 

mine encountered extremely bad roof. Five bleeder entries were mined from headgate number 

two to headgate one, and two entries continued on but were never were fully developed to reach 

the bleeder shafts. (Tr .. 154). As the mine began to develop panel #3 in preparation for a move 

of the longwall from panel #2, the bleeder entries were again changed. Without MSHA's 

knowledge, Mach developed the bleeder entries of panel #3 an additional 1000 feet beyond the 

bleeders for panels #1 and #2. According to Beiter, the change in the bleeder entries has an 

effect on the ventilation and, in turn, on the ventilation plan. Beiter testified that the fact that one 

panel is mined, which in turn creates a gob area, affects the ventilation plan as each panel moves 

forward. 

Based upon the studies completed by the technical support team, Beiter explained that 

when the air movement was examined between the number two entry and the number three entry 

of the tailgate, it sometimes traveled from two to three, and at other times from three to two. (Tr. 

166). Beiter was able to determine that the air flow from headgate number one to tailgate 

number one passed over the gob, or worked-out area. He stated that "[ e ]ven though there is a 

significant volume of airflow ... from headgate one towards tailgate one in the big sense, in the 

little sense at each cross-cut, there's not a significant volume you can measure." (Tr. 186). He 

explained that when panel #1 is mined out and panel #2 is being mined, the existence of panel #2 

has an effect on how the air from the gob gets to the bleeder system. (Tr. 187). Further, he 

stated: 

In the three entry longwall development system, as the two panels are mined out, 

one subsequent to the other, the only opening left between the panels is the 

32 FMSHRC Page 156 
middle entry. The number one entry falls for the mining of panel one. Panel two 

caves entry number three. Now you have some open area along the perimeter of 

the walk that ... has some open area to it. The primary place for air to flow and 

gas to accumulate in volume are in those open entries inby [the] face and along 

the cave material itself. (Tr. 187). 

Beiter confirmed that Mach must have evaluation points to determine the air quality and 

quantity before the air reaches the bleeder entries and at points within the bleeder system. He 

suggested that evaluation points be placed at the areas proposed by MSHA because the 

evaluation points are necessary for panel number #3 and for the base ventilation plan. He 

confirmed that the mining of panel #3 changed in design from the previous panels. When the 

panel #3 entries were driven, they were driven beyond those of panel #2, creating a "stair-step" 

in the bleeder entries inbypanel #3. (Tr. 194-195). In order to determine ifthe system is 

functioning effectively, Beiter would require a number of measuring points and evaluation 

points. (Tr. 198-199). 

Mach places much emphasis on the fact that both ofBeiter's surveys contain the same 

conclusion, i.e., the bleeder system was working effectively on the date of each survey. 

However, the reports generated as a result of the surveys go on to reach a number of other 

conclusions. The conclusion ofBeiter's team was that the "adequacy of the airflow distribution 

in the bleeder system and the dilution of methane elsewhere in the bleeder system in addition to 

the 30 C.F.R. Part 75.323(e) location(s), could not be determined from information collected [by 

the mine] at the required weekly examination locations for the bleeder system." Gov. Ex. 5 at 7. 

Beiter and his team were able to make their recommendation and conclude that, based upon 

measurements at evaluation points that are not contained in the proposed plan of Mach, the 

system was working effectively on the day of the survey. For this reason, Beiter believes that in 

order to adequately evaluate the system, readings at the evaluation points recommended by 

MSHA are important. Mach's proposal lacks "consideration of a very significant piece of 

information, and that's the adequacy of the airflow to dilute the contaminants that are being 

liberated in that worked-out area to safe levels." (Tr. 209). That is why Beiter suggested the 

location of evaluation points at the back end of panel #3 and the bleeder entries. (Tr. 209). 

Evaluation at those areas would provide representative information regarding airflow and the 

dilution of contaminants. (Tr. 209). 

Beiter explained that Mach had requested a change to the mine ventilation plan for its #1 

Mine to allow the use of a step bleeder system as it developed the #3 panel. He explained that 

MSHA could not approve the plan primarily because of the location of the evaluation points for 

the ventilation system. Mach asserts that it is sufficient if it tests and finds little, if any, methane 

at the point the air exits the mine. However, the exit point does not explain to Mach or MSHA 

where the air is going or what the readings are at the working areas or idle areas in the mine. It 

is critical, as Beiter explained, that the system be evaluated and tested at various points in the 

mme. 

32 FMSHRC Page 157 
Anthony Webb, the general mine manager for the Mach #1 Mine, explained the mine's 

current method of evaluating the bleeder system and confirmed that it is the method used in 

panels #1 and #2. (Tr. 378-380). Webb testified, as he did with each issue, from notes that were 

handed to him by his attorney, thereby making his testimony less believable. He testified 

primarily about the quantity of air that moved in the system. He believes that the evaluation 

points suggested by MSHA cannot be representative of what is going on in the flow path of the 

system. (Tr. 389). Webb maintains that during the prospective mining of panel #3, ;ventilation 

will not be any less effective given that the mine fan still has 30% unused capacity left and, 

therefore, further evaluation points sought by MSHA are unnecessary. (Tr. 388). In Webb's 

view the value of the data must be weighed against the risk of obtaining it. (Tr. 390). 

Mach argues that it has developed an "alternative method of evaluation" of its bleeder 

system through the evaluation and monitoring of points located around the perimeter of the 

bleeder system. Mach claims it is able to obtain all relevant information, including the air 

quantity, quality, and direction, without endangering the lives of miners by requiring them to 

walk the bleeder entries. According to Mach, the evaluation points around the perimeter tell the 

examiner that the air is moving in the right direction, while the evaluation point on the surface 

reads the quantity and quality of air that exits the bleeder system. Mach's expert, Gary Hartsog, 

agrees that the evaluation points proposed by Mach are effective to evaluate the "ventilation 

system." (Tr. 548-49). Hartsog, who has an engineering degree from West Virginia University, 

conducted his own ventilation survey after reviewing the two conducted by MSHA .. (Tr. 513). 

He reached the same conclusion as Beiter, i.e., that the system was effective at the time of his 

survey. However, he did not make any recommendations or address the recommendations made 

by MSHA as a result of their own ventilation surveys. 

Mach admits that wide variations in air quality, as portrayed in Beiter' s survey, are 

coming through the bleeder system. Mach Brief at 1 O; (Tr. 236-237). Hartsog says that 

traveling the bleeder system would provide "minimal relevant information." (Tr. 556). In his 

opinion, the evaluation around the perimeter would provide sufficient information to evaluate the 

effectiveness of the bleeders. (Tr. 549). Hartsog admits, however, that taking air measurements 

at the exhaust fan will not iridicate where, and in what quality, the air has traveled in the bleeders 

There is no question that there are adverse roof conditions existing in bleeders which 

may deteriorate further as mining progresses. However, those adverse roof conditions may have 

an effect on the ventilation system. (Tr. 552). The district manager's reliance on the 

information gathered by Beiter and the conclusions reached by Beiter' s team are all wellfounded and suitable for this mine. I conclude that, unlike Hartsog's proposals, the evaluation 

points recommended by Beiter give a complete view of the effectiveness of the ventilation 

system. 

c. Stoppings in Active Tailgate Entries. Issue #3 in Citation No. 6680550 (Panel #3) and 

Issue #14 in Citation No. 6680551 (General Ventilation Plan): Use of Stoppings as 

Ventilation Controls in the Active Tailgate Entry. 

32 FMSHRC Page 158 
The Secretary argues that Beiter' s survey established that air was moving toward the 

active tailgate entry, rather than away from the active tailgate entry, and that stoppings should 

have been in place to assure the correct movement of air. (Tr. 210-11 ). The stopping line 

required by MSHA would protect the active tailgate entry from methane and move air away 

from that entry. Mach argues, again, that its system is effective without imposing new 

ventilation controls. Mach alleges that MSHA failed to prove that the use of controls in the #1 

Mine is safer and therefore more suitable to the mine. 

It is Beiter' s opinion that there should be ventilation controls in the bleeder entries of 

panel #3 that are sufficient to control and distribute the airflow. (Tr. 206). The lack of 

ventilation controls makes it difficult to control airflow distribution in the system. He explained 

that during his survey it was clear that the controls in headgate number two were critical to 

controlling the airflow of the system. Those controls worked in conjunction with the curtains 

near the face to build pressure across the worked-out area and provide airflow across the 

longwall face and into the bleeder entries. The controls, not part of the Mach proposal, are 

important to establish pressure differential and direction of airflow into the worked-out area, in 

the headgate, and on the longwall face. (Tr. 206). 

Stoppings are necessary, based upon the MSHA survey, to "prevent the vast majority of 

any airflow that was in the number two entry and its contaminants from entering into the tailgate 

entry." (Tr. 211). Beiter's opinion is based not only on the two surveys conducted at the mine, 

but also on his observation of notable changes in the air movement when stoppings were put in 

place during the course of the second survey. The second survey was conducted in the same 

manner as the first and, like the first survey, was conducted with Mach personnel. (Tr. 212-213). 

The longwall face had progressed at the time of the second survey from about 800 feet to 

approximately 4800 feet in the second panel. (Tr. 215). Ventilation controls, i.e~, stoppings, that 

were in place for the first survey had been removed by the time of the second survey. Gov. Ex. 5 

Figure 5. The second survey began on June 9. When the survey team returned on June 11, the 

stoppings had been reconstructed in the same manner as they had been for the first ventilation 

survey. According to Beiter and his team, the stoppings made a significant difference in airflow 

patterns and pressure differential. (Tr. 217). The pressure differential changed when the 

ventilation controls were reconstructed prior to the team's arrival on June 11. (Tr. 221). The 

result was that the direction of air movement carried the liberated gases into the caved areas. 

(Tr. 222). Mach argues thatthe change in the stoppings is insignificant, that the ventilation 

controls will compromise the overall Mach system, and that they are difficult to construct. 

Mach, however, presented no real evidence that the tailgates would be adequately ventilated 

without the stoppings in place. Beiter's view of the need for stoppings, however, has a 

legitimate basis in fact and is a sound basis for the inclusion in the ventilation plan. 

d. Bleeder Entry Ventilation Controls. Issue #2 in Citation No. 6680550 and Issue #15 in 

Citation No. 6680551: Use ofRegu1ators as Ventilation Controls in the Worked-out 

Areas. 

32 FMSHRC Page 159 
The Secretary argues that because Mach chose to drive the #3 panel 1000 feet outby the 

bleeder entries of panel #1 and #2, it created a stair-step effect that requires controls to ensure 

proper ventilation in the bleeder entries. MSHA proposes a permanent stopping line and other 

controls across the bleeders behind panel #3. The ventilation controls are needed to ensure that 

air does not short circuit and travel through caved areas or around the comer of the stair-step. 

(Tr. 198-199, 203, 205-207). 

At the time ofBeiter's second survey, Mach removed ventilation control stoppings 

behind panel #2, which resulted in a redistribution of air in the bleeder system. (Tr. 216-217, 

220-222). Mach's expert, Hartsog, believes that the controls suggested by Beiter would only add 

resistance in the system and slow down the air movement. (Tr. 564). Hartsog failed to explain 

how the air would avoid a short circuit without some control in place. Hartsog also opined that it 

would be difficult to get to the area to build stoppings. He testified that it would take enormous 

time and effort to get the materials into the bleeders for construction, and that it might prove to 

be dangerous to undertake construction given the roof conditions. (Tr. 552-554). Consequently, 

Mach argues that no stoppings should be built in the bleeder system because it would be labor 

intensive and the roof is bad. In addition, Mach believes that its ventilation design works 

effectively because there are few, if any, ventilation controls to block or redirect air flow. (Tr. 

419-20, 550-56). 

The Secretary has demonstrated the need for ventilation controls in the bleeder entries 

and the importance of those controls to be included in the ventilation plan of the mine. 

e. Ventilation of Idle Places and Places where Roof Bolter is Operating. Issue #3 in 

Citation No. 6680551: Requirement to Show Means of Ventilating Idle Places and Places 

Where the Roof Bolter is Operating. 

The' Secretary argues that a methane buildup hazard is created when a curtain is not 

present to direct air into idle areas that have been cut but not yet bolted. 

Mach argues that MSHA failed to demonstrate a basis for requiring Mach to ventilate its 

idle areas or areas where roof bolting operations were occurring. Mach has not been asked in the 

past to use a line curtain to direct air from the main ventilation into idle places or into areas 

where roofbolting is occurring. (Tr. 90, 355). It is Mach's opinion that, by not using the line 

curtain the mine avoids directing dust from the continuous miner, that may be working in the 

area, onto its roof bolters. MSHA, on the other hand, is concerned with methane accumulations 

in those areas. Mach counters that the mine has not experienced a methane buildup in idle areas, 

or areas where roof bolts are being installed. In addition, Mach avers that roof bolting machines 

are equipped with methane monitors and that the bolters use a probe to sweep the area in front of 

them as they progress. (Tr. 408). 

Roberts explained the potential methane hazard that exists if the area where roofbolters 

are working is not adequately ventilated. The line curtain, in most cases, is used when the 

continuous miner is cutting, and therefore is already in place and may be adjusted to 

32 FMSHRC Page 160 
accommodate the roofbolters. (Tr. 18-25). Phillips agreed, and added that an additional factor 

that must be considered is the nature of roof bolting in causing a spark and, in turn, an ignition if 

methane has been allowed to build while an area is idle. (Tr. 69). The Secretary points out that 

adjustments can be made and that it is far safer to avoid a methane buildup in those idle areas, or 

areas that are being roof-bolted, than it is to completely disregard having a curtain for fear that 

more dust will reach the roof bolter operator. The Secretary demonstrates a legitimate concern 

for the possibility of a methane buildup in those areas that are currently idle but will eventually 

require the roof bolter to enter and bolt the roof. 

f Continuous Miners on the Same Air Split. Issue #1 in Citation No. 6680551: 

Requirement to Specify Means of Compliance with 30 C.F.R. § 75.332. 

As a result of a complaint at the mine, Inspector Roberts issued a citation alleging a 

violation of 30 C.F.R. § 75.332(a). Roberts found that, contrary to the regulation, two 

continuous mining machines were operating on the same split of air. (Tr. 57). Roberts, in 

advising the district manager to include a provision regarding the use of split air in the mine 

ventilation plan, explained that MSHA wants to assure that the mine has a plan in place to deal 

with two continuous miners working on the same split of air. (Tr. 70-71, 66,-67). However, 

both Hartsog and Webb testified that Mach is using an appropriate system to meet the 

requirements of the standards and it is not necessary to have the provision in the plan. (Tr. 405-

407, 568). 

The Secretary avers that, in order to assure compliance, it is appropriate to include a 

provision regarding the use of air splits when two continuous miners are operating. MSHA 

relies, rightly, on the premise that additional provisions, including the subject air split provision, 

may be required to be included in the plan as "required by the district manager." Gov. Brief at 

18; 30 C.F.R. § 75.371. 

g. Issue #4 in Citation No. 6680551: Inclusion of a Depth-of-Water Action Level. 

Mach asks the Secretary to include a provision in the plan allowing the accumulation of 

up to 12 inches of water before any action is taken. Mach seeks a means to ascertain when a 

citation may be issued for accumulation of water in the bleeder entries in violation of 30 C.F.R. 

§ 75.37l(a). Webb testified on behalf of Mach that 12 inches of water is not a hazard and 

therefore the proposal is sound. MSHA refused the provision as an attempt on the part of Mach 

to circumvent the regulation, something that the district manager will not allow. I conclude that 

the district manager was well within his discretion to deny a proposed plan that places limits on a 

mandatory standard. 

h. Issue #8 in Citation No. 6680551: Requirement to Change the Manner of Shuttle Car 

Operation, and Issue #11 in Citation No. 6680551: Requirement to Use Something Other 

than Check Curtains in the Headgate Entry to Direct Air Across the Face. 

32 FMSHRC Page 161 
The Secretary did not present evidence at hearing or brief the issue of the requirement to 

change the manner of shuttle car operation, or the requirement to use something other than check 

curtains in the headgate entry to direct air across the face. As a result, I refrain from addressing 

these issues. 

Conclusions of Law 

While plan contests are based on consultations between the Secretary and the operator, 

the Commission has recognized that "the Secretary is [not] in the same position as a private 

party conducting ann's length negotiations in a free market." C. W. Mining Co., 18 FMSHRC 

1740, 1746 (Oct. 1996). As one court has noted, "the Secretary must independently exercise 

[her] judgment with respect to the content of ... plans in connection with final approval of the 

plan." UMWA v. Dole, 870 F.2d 662, 669 n. 10 (D.C. Cir. 1989), quoting S. Rep. No. 95-181, at 

25 (1977), reprinted in Senate Subcomm. on Labor, Comm. on Human Res., Legislative History 

of the Federal Mine Safety and Health Act of 1977, at 613 (1978). 

The framework for resolution of a plan dispute has been established by the Commission 

in a number of cases, including Twentymile Coal Co., 30 FMSHRC 736, 748 (Aug. 2008). The 

Commission has held that, "absent bad faith or arbitrary action, the Secretary retains the 

discretion to insist upon the inclusion of specific provisions as a condition of the plan's 

approval." C. W. Mining Co., 18 FMSHRC at 1746. At issue is whether the Secretary properly 

exercised her discretion and judgment in the plan approval process. The standard of review 

incorporates an element of reasonableness. See Monterey Coal, 5 FMSHRC 1010 at 1019 (June 

1983 ). I must therefore look at the issue of suitability in terms of the discretion of the district 

manager. 

a. Unsuitability of the Current Mach Plan. 

There are two plans at issue in this case: (1) a general plan for the entire mine and (2) a 

specific plan for the mining of panel #3. MSHA issued a citation for each plan. Because the 

issues are fundamentally the same in each citation they may be addressed together. The general 

plan was in effect when Phillips came to District 8. At that time there was no plan for the 

development and mining of panel #3. Rather, the plans in place were conditional plans. After 

his arrival, Phillips instructed his ventilation supervisor to contact Mach and start working on a 

plan that was not "conditional." 

The ventilation plan that was in place at the Mach #1 Mine was found to be unsuitable in 

a number of ways. First, it did not address the #3 longwall panel that had already been 

developed an extended distance beyond the bleeders of panels #1 and #2. In developing the 

panel #3 bleeders 1000 feet beyond those in panels #1 and #2, the mine created a stair-step in the 

bleeder system and had no means of evaluating the area. This was a substantial change in the 

ventilation plan and it needed to be addressed. In addition, the longer Mach continued to mine 

under that plan, the more gob it created, which in tum necessitated ventilation changes to meet 

32 FMSHRC Page 162 
the changing circumstances in the mine. Further, as mining progresses and Mach moves forward 

with panel #3, the air has a longer route to travel. The plan in place contained no provision for 

these contingencies and therefore was not suitable. Finally, the mine had been conditionally 

granted the use of belt air, but, following the implementation of the new belt air regulation, the 

district manager was directed to review the matter. As a result, it is clear that the plan in place 

was no longer suitable for the mine. 

The ventilation surveys conducted by Beiter and technical support at the mine 

demonstrate that the ventilation was good at the time of the survey. Mach takes this to mean that 

the plan in place was working, i.e., suitable, and need not be changed. In fact, the experts who 

testified on behalf of Mach assert that the ventilation system is so good, that it will last 

throughout the mining of six panels or more. MSHA counters that the system no longer 

functions properly as new panels are developed and specifically as the # 3 panel begins. 

Mach's argument fails to take into account the changing conditions at the mine, i.e., the 

stair-step bleeder that has been created, the fact that the air course is longer, and the fact that 

there is a much larger mined-out area, or gob, to ventilate. I agree with the district manager that 

the plan in place was not suitable to the Mach mine and therefore was subject to review by 

MSHA. 

b. Suitability of the MSHA Plan. 

Next, the Secretary must show that the district manager did not abuse his discretion in 

detennining that the MSHA plan is suitable to the conditions at the Mach #1 Mine. Specifically, 

the Secretary must show that the actions of the district manager were not arbitrary and capricious 

in his review and decision-making regarding the plan and its suitability. The Commission has 

defined "suitable" as " 'matching or correspondent,' 'adapted to a use or purpose: fit,' 

'appropriate from the view point of ... convenience, or fitness: proper, right,' 'having the 

necessary qualifications: meeting requirements.' " See Secretary v. Peabody Coal Company 18 

FMSHRC 686, 690 (May 1996)( omission in original), quoting Webster's Third New 

International Dictionary 2286 (1986), affd 111F.3d963 (D.C. Cir. 1997). The evaluation 

points proposed by MSHA, the ventilation controls, and the belt air all must be suitable to this 

Illllle. 

The evidence presented by the Secretary clearly demonstrates that the MSHA proposal is 

suitable as it relates to the evaluation points for the bleeder system. First, Bieter' s testimony is 

well founded that measuring the quality and quantity of air traveling through the system at 

various points is a crucial part of the ventilation plan, and that the perimeter checks or the 

exhaust check proposed by Mach is not adequate. The bleeder system was changed by Mach 

and created an even greater need for reliable evaluations of the system. Mach argues that the 

plan in place is good enough and that the extended bleeders have not changed that. MSHA 

refutes this argument based upon the surveys conducted by Beiter. Beiter testified that, if the 

mine uses the evaluation points it proposes, the information will not be sufficient to evaluate the 

effectiveness of the system. 

32 FMSHRC Page 163 
Beiter explained that ventilation controls are necessary in the bleeders and the tailgate 

area, and that the proposal by MSHA is suitable. He was able to witness the changes in the air 

quantities and qualities when he conducted his second survey. Midway into that second survey, 

the mine made changes by installing stoppings in certain areas. Given these changes, Beiter 

opined that the ventilation controls are important and essential to an effective system. 

The ventilation surveys conducted by MSHA's technical support people indicate that, 

while the ventilation system works well, it is important nevertheless to evaluate it at different 

locations in the mine to be sure that there is no methane or dust in those areas. An evaluation at 

the exhaust fan where all air exits the mine is not a credible indication of air quality and quantity 

as air travels through the mine. The evaluation points proposed by MSHA are critical in 

providing the information necessary to determine the effectiveness of the ventilation system. If 

the areas cave as the mine says they will, given the roof stresses Mach observed, then those areas 

will affect the air, which in tum requires an even greater need to regularly and reliably confirm 

the effectiveness of the bleeders and the ventilation as a whole. MSHA has demonstrated that its 

plan, which requires the mine to evaluate the air at the recommended evaluation points, is 

suitable to the mine. The Secretary has demonstrated that, as successive panels are mined, 

additional airflow paths through the larger worked-out area are created. These additional airflow 

paths, coupled with the creation of open areas where gases can accumulate, result in a more 

complex system, which, if not properly addressed, poses a hazard to miners. (Tr. 224). 

While Mach's #1 Mine currently uses belt air, MSHA has determined that it may not be 

suitable. MSHA considers belt air and its associated hazards so important that it commissioned 

a panel to look into the issue and author a report. As a result of that report a new regulation was 

promulgated and district managers were given guidelines to follow when making a 

determination as to whether the use of belt air is appropriate in each circumstance. The 

regulation, which became effective in March 2009, imposes a higher standard upon mine 

operators to show that the use of belt air to ventilate the face is a safe option. The panel and the 

MSHA directive both indicate that belt air should not be used at the face unless there is no safe 

alternative. Based upon the testimony, the use of belt air has not been eliminated from 

consideration by the Secretary. However, Mach has a duty to provide further information and 

justification in order to continue the use of belt air. Mach's argument focuses on how 

detrimental reversing the belt air would be to the overall ventilation plan. However, Mach did 

not attempt to address the possibility of directing the air in some other manner or offer an 

alternative to belt air that is workable. Instead Mach relies upon its argument that it is safer to 

use belt air because, if the mine is required to tum the belt air around, it will take. away air meant 

to ventilate the face and gob. 

I credit Beiter' s testimony far more than the generalization made by Mach's expert, 

Hartsog. Beiter spent significant time in the mine and conducted two very thorough studies of 

the ventilation system in its entirety. Beiter examined all of the changes made by the mine and 

the effect those changes had on ventilation. The district manager relied on the information · 

provided by Beiter and his team, and rightfully determined that the plan proposed by MSHA is 

suitable for this mine. 

32 FMSHRC Page 164 
The parties agree, and I concur, that the current ventilation system at the Mach #1 Mine 

is a new system that utilizes a high volume of air with the intention of keeping all areas free of 

methane and dust. The #1 Mine is well built and incorporates a good ventilation system as well 

as wide entries and up-to-date technology. Although the mine has received dust citations, it has 

not received a citation for dust at the working face in the two years it has been in operation. The 

measurements taken at the exhaust fan after the air has left the mine have never shown a 

methane concentration greater than .4. However, all of this is not enough to convince me that, as 

Mach asserts, the ventilation plan does not now need, nor ever will need, any changes. 

c. Decision of the District Manager. 

The Commission in Twentymile Coal applied the following guidance in determining if 

the actions of the district manager are arbitrary and capricious: 

The scope of review under the "arbitrary and capricious" standard is narrow and a 

court is not to substitute its judgment for that of the agency. Nevertheless, the 

agency must examine the relevant data and articulate a satisfactory explanation 

for its action including a "rational connection between the facts found and the 

choice made." In reviewing the explanation, we must "consider whether the 

decision was based on a consideration of the relevant factors and whether there 

has been a clear error of judgment." Normally, an agency rule would be arbitrary 

and capricious if the agency has relied on factors which Congress has not 

intended it to consider, entirely failed to consider an important aspect of the 

problem, offered an explanation for its decision that runs counter to the evidence 

before the agency, or is so implausible that it could not be ascribed to a difference 

in view or the product of agency expertise. 30 FMSHRC at 754-755, quoting 

Motor Vehicle Mfr 's Ass 'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 

(1983). 

I find that the district manager in this case went beyond the requirements of examining 

relevant data by seeking out data, information, and opinions from a number of highly qualified 

people. He articulated a satisfactory explanation both for his finding that the Mach plan was not 

suitable to the mine and for his determination that the provisions sought by MSHA are suitable. 

The record clearly demonstrates that the district manager had a solid basis to determine that 

Mach's plan was not suitable. He understood that the mine was operating on a "conditional" 

plan, and that the plan contained the use of belt air to ventilate working areas. He was aware that 

the mine had started to develop the #3 panel, had created a stair-step in the bleeder area, and that 

the mine had suffered a number of roof falls that may have affected the ventilation. 

Further, I find that District Manager Phillips did not abuse his discretion in determining 

that the plan changes requested by MSHA are suitable to this mine. Based upon the information 

provided to him from multiple sources, i.e., input from the agency and from the mine, he 

determined that the use of belt air needed further examination, that there must be relevant 

32 FMSHRC Page 165 
evaluation points in the bleeder system, that ventilation controls must be put in place, 

particularly in the bleeders and the tailgate area, and that the area where the roof bolters are 

operating must be ventilated. The changes proposed by MSHA are within reason and are 

suitable to the conditions as they currently exist at the mine. There is a clear connection between 

the facts found by Phillips and the decisions that he made. His reasoning and explanation fit 

squarely with the information and evidence that was before him. 

I find the approach of the district manager to be reasonable given all of the 

circumstances. In other words, the district manager's refusal to approve the Mach plan without 

the provisions listed in the citations was not arbitrary and capricious. The district manager was 

reasonable in determining that the plan in place at Mach was not suitable, both in general terms 

and in terms of the mining about to begin in the #3 longwall panel. Phillips did not approach the 

plans in a vacuum, but instead sought and received input from inspectors, their supervisors, roof 

and ventilation control specialists, MSHA' s technical support division, and finally from the 

MSHA headquarters office in Arlington. Phillips spent months discussing the issues with Mach, 

requesting further information, meeting with them, and reviewing material. He has been in the 

mining industry for more than forty years and has extensive experience with ventilation and 

ventilation plans. He was familiar with the Mach #1 Mine, its ventilation system, and its 

arguments regarding the plan. He reviewed all of the information presented to him, followed the 

instructions of the agency and Congress in assessing the use of belt air, understood the risks of 

the plan, and, in the end, made a reasonable decision regarding the suitability of the plan 

provisions proposed by MSHA. 

Mach argues that the district manager is seeking to make material changes to the mine's 

ventilation plan and that the changes make the mine unsafe, and the ventilation ineffective. This 

argument focuses primarily on the issues of ventilation controls, belt air, and evaluation points. 

Mach argues that it makes the system less effective to use ventilation controls and eliminate the 

use of belt air, that by using the evaluation points proposed by MSHA the mine is less safe as the 

roof deteriorates, and that building stoppings is not safe and requires an unusual amount of labor. 

I reject Mach's proposal that the Secretary be required to prove that the hazard addressed 

by a new plan provision either exists or is reasonably likely to occur, i.e., that the mine is less 

safe ifthe MSHA plan is put in place. "Section 303(0) of the Act, in setting forth the 

requirement that a ventilation plan be suitable to mining conditions, does not require that plan 

provisions be based on the existence of specific hazards or the likelihood that specific hazards 

may occur." Peabody Coal, 18 FMSHRC at 690. I conclude that the Secretary carried her 

burden of proving the suitability of the new MSHA plan provisions, once she identified a 

specific mine condition not addressed in the previously approved ventilation plan and addressed 

by the new provision. Id. 

While MSHA agrees with Mach that the "push/pull" ventilation system is generally a 

good one, the nuances of the system need work. Mach's view is that the system is good and 

needs no changes now or in the future. Mach wants little, if any, MSHA involvement in the 

mine ventilation plan. It appears that while the system is a good one, it has little flexibility to 

32 FMSHRC Page 166 
meet the changing conditions in the mine. I find that the Mach experts diminished their 

credibility by insisting that the ventilation system works in all conditions ad infinitum. Such 

insistence ignores a realistic assessment of the potential for change as mining progresses. On the 

other hand, MSHA has reviewed and recognized that changes in the mine are inevitable and the 

plan must be flexible and meet such change. I find that the district manager was not arbitrary 

and capricious, that he made well thought-out decisions, and that the plan MSHA proposed is 

suitable to this mine. 

d. Other Matters. 

I find no value in Mach's argument that MSHA approved its ventilation plan when it 

terminated a citation on September 9, 2009. The regulation is clear that a ventilation plan must 

be approved, in writing, by the district manager. 30 C.F.R § 75.370. There can be no dispute 

that this did not occur here. 

I find no merit to Mach's argument that they should not be subject to both a general plan 

and a site specific plan for the #3 panel. The Secretary explained why the two discussions were 

ongoing. It appears that separating the discussions of the #3 panel from the general plan 

provided Mach an opportunity to focus on that which was most important to it, i.e., having a plan 

in place to move forward on their mining schedule. 

During the course of the hearing, Mach attempted to introduce evidence concerning the 

ventilation plans at other mines, ventilation or dust surveys at other mines, and information that 

had not been provided to the district manager dtiring the course of the negotiations regarding the 

ventilation plans. I refused to allow that evidence for several reasons, but most importantly 

because it is not relevant to the decision regarding the circumstances and suitability of the plan 

to this mine. While I understand that many plans are based upon the experience at other mines, 

it is extremely 'unlikely that two underground coal mines would present exactly the same factual 

situation and the same needs in their ventilation plan. 

Since I must examine whether the actions of the district manager are arbitrary and 

capricious, I must look at how he made his decision, what he had before him at the time, and 

what information he used. Any document generated after that time is not relevant and will not 

assist me in making an informed decision in this matter. The same can be said about the 

testimony of a former district manager, who does not have the same information in front of him; 

it has no probative value. District managers are individuals and may make different 

determinations even if it were possible to exactly re-formulate what went into one decision. 

32 FMSHRC Page 167 
I conclude that the Secretary has met her burden of proving that the district manager did 

not abuse his discretion in determining that the prior Mach ventilation plan is no longer suitable 

to the mine and that the plan provisions proposed by MSHA are suitable. Accordingly, Citation 

No. 6680550 and Citation No. 6680551 are affirmed and Contest Proceedings, Docket Nos. 

LAKE 2010-1-R and LAKE 2010-2-R are hereby dismissed. 

Distribution: 

Peter Nessen, Esq., Office of the Solicitor, U.S. Department of Labor, 230 South Dearborn 

Street, Suite 844, Chicago, Il.. 60604-1502 (via certified mail) 

Thomas Paige, Esq., Office of the Solicitor, U.S. Department of Labor, 1100 Wilson Boulevard, 

22ru1 Floor West, Arlington, VA 22209-2247 (via certified mail) · 

Daniel W. Wolff, Esq., Crowell & Moring LLP, 1001 Pennsylvania Avenue NW, Washington, 

D.C 20004-2595 (via certified mail) 

David J. Hardy, Esq., Allen Guthrie & Thomas, PLLC, P.O. Box 3394, Charleston, WV 25333-

3394 (via certified mail) 

32 FMSHRC Page 168 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

601 New Jersey Avenue, NW, Suite 9500 

Washington, DC 20001-2021 

OAK GROVE RESOURCES, LLC, 

Contestant 

v. 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), 

Respondent 

Telephone No.: 202-434-9950 

Telecopier No.: 202-434-9954 

February 12, 2010 

CONTEST PROCEEDING 

Docket No. SE 2010-350-R 

Order No. 6698830; 01/06/2010 

Oak Grove Mine 

Mine ID 01-00851 

DECISION 

Appearances: Jennifer D. Booth, Esq., Thomas A. Grooms, Esq., Office of the Solicitor, U.S. 

Department of Labor, Nashville, Tennessee, on behalf of the Secretary of Labor; 

Laura E. Beverage, Esq., Arthur M. Wolfson, Esq., Jackson Kelly, PLLC, Denver, 

Colorado, on behalf of Oak Grove Resources, LLC. 

Before: Judge Zielinski 

This case is before me on a Notice of Contest filed by Oak Grove Resources, LLC, 

pursuant to section 105 of the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 815. 

Oak Grove contests the Secretary's issuance and refusal to terminate Order No. 6698830, issued 

pursuant to section 104( d)(2) of the Act, which curtailed mining on its 11-East longwall panel. 

Oak Grove's motion for an expedited hearing was granted, and a hearing was held in 

Birmingham, Alabama on Jamiary 26, 27 and 28, 2010. At the conclusion of the hearing, the 

parties made oral arguments, and a decision was rendered from the bench. This decision 

memorializes the bench decision issued on January 28, 2010. For the reasons stated in the bench 

decision, as further explained below, Order No. 6698830 is affirmed and the Secretary's refusal 

to abate the violation and terminate the order is found not to be arbitrary and capricious. 

Consequently, the Notice of Contest is dismissed. 

Findings of Fact - Conclusions of Law 

Oak Grove Resources operates the Oak Grove Mine, an underground coal mine, in 

Jefferson County, Alabama. A substantial amount of its coal production is obtained through 

operation of longwall mining equipment, and it has mined a number of longwall panels on the 

East section of the mine, served by the Main East Bleeder system. The panel currently being 

mined is designated "11 East L W38" ("11-East"), which is the north-most of a series of panels 

mined in that section. The panel runs in an east-west direction. Mining commenced at the east 

32 FMSHRC Page 169 
end on March 2, 2009, and had proceeded west approximately 6,000 feet. The mined-out area of 

the 11-East panel, the "gob," is ventilated by the Main East Bleeder system, the primary 

component of which is the No. 6 Fan, located off the northeast comer of the panel. That 

centrifugal exhaust fan also provides ventilation for fourteen or more other mined-out longwall 

panels through lengthy bleeder entries that run from the end of the track entry, to the east and 

north behind (east) of the old panels. The bleeder system is depicted in a number of exhibits, 

noteably, Government Exhibit No. 35. The bleeder entry is accessed from the track entry. 

Because of its low height, it must be traversed largely by "duckwalking." It takes almost a whole 

shift to traverse the south side of the bleeder entry from the end of the track to Measuring Point 

Location ("MPL'') No. 781, a bleeder examination point near the southeast comer of the 11-East 

panel. Prior to January 6, 2010, persons traveling in the bleeder entry had no ability to 

communicate with the surface or miners in other locations of the mine. 

Mined-out areas, like the 11-East gob, continue to generate methane, and must be 

ventilated "so that methane-air mixtures and other gases, dusts, and fumes from throughout the 

worked-out areas are continuously diluted and routed into a return air course or to the surface of 

the mine." 30 C.F.R. § 75.334(a)(l). The ventilation system for mined-out areas must be 

examined at least every seven days. 30 C.F.R. § 75.364(a). Part of the weekly examination must 

include: 

At least one entry of each set of bleeder entries used as part of a bleeder system 

under§ 75.334 shall be traveled in its entirety. Measurements of methane and 

oxygen concentrations and air quantities and a test to determine if air is moving in 

the proper direction shall be made at the measurement point locations specified in 

the mine ventilation plan to determine the effectiveness of the bleeder system. 

30 C.F.R. § 75.364(a)(2)(iii). 

If the bleeder system used does not continuously dilute and move methane-air 

mixtures and other gases, dusts, and fumes away from worked-out areas into a 

return air course or to the surface of the mine, or it cannot be determined by 

examinations under§ 75.364 that the bleeder system is working effectively, the 

worked-out area shall be sealed. 

30 C.F.R. § 75.334(d). 

Oak Grove had positioned air-powered pumps in the bleeder entries to control water 

accumulations. It began to experience problems with the pumps around mid-December, 2009. 

By the end of the month, the problems had grown, and there were significant accumulations of 

water in low spots of the bleeder entries. 1 On or about January 1, it initiated efforts to drill bore 

1 · Oak Grove's efforts to repair and replace pumps were stymied for three to four days 

by an order issued by MSHA barring access to the area. The order related to dangerous 

32 FMSHRC Page 170 
holes down to the bleeder entries near the rear of the 11-East panel to provide electrical power 

for more powerful electric pumps, communication lines, and additional compressed air capacity. 

On January 5, Edward Boylen, an MSHA inspector with considerable mining experience 

involving design, set-up and operation oflongwall mining systems, commenced a regular 

inspection of the Oak Grove mine. He met with mine officials, reviewed records, and became 

aware that there had been roof falls in the bleeder entries on the headgate side of the 11-East 

panel and water accumulations in the bleeder system. He decided to travel to the longwall and 

conduct a spot inspection, but did not complete it.2 When he exited the mine, he examined charts 

of pressure measurements at the No. 6 exhaust fan, and found that the pressure differential had 

almost doubled since December 15, 2009, indicating that there were significant restrictions in the 

bleeder system flow. That same day, members of the United Mine Workers of America, the 

union representing miners at Oak Grove, met with MSHA officials and expressed concerns about 

the safety of miners who were involved in efforts to pump water from the bleeder system. 3 

MSHA determined to inspect the mine the following day. 4 On the morning of January 6, 

2010, Boylen and Jacky Shubert, an MSHA field office supervisor, arrived at the mine to conduct 

an inspection of the bleeder system. They met with Oak Grove officials and examined records of 

weekly bleeder examinations and noted that a complete inspection had last been accomplished on 

December 14, 2009. Ex. G-9. The record reflected that the mine had been idle on December 21, 

that on December 29 and January 4 two MPLs on the headgate side of the 11-East panel could 

not be examined because the entries were impassible due to a roof fall, and that no measurements 

had been taken at nine other MPLs established in Oak Grove's approved ventilation plan. Oak 

Grove managers readily acknowledged that 11 MPLs were not being visited during the weekly 

atmospheres behind some seals located several miles from the 11-East panel. 

2 The Oak Grove mine liberated in excess of one million cubic feet of methane in a 

24-hour period, and was subject to spot inspections by MSHA pursuant to section 103(i) of the 

Act. 30 USC § 813(i). 

3 Oak Grove officials also met with MSHA on January 5, on a variety of topics. The 

meeting was not related to the UMW A's meeting, and Oak Grove officials were unaware of the 

other meeting. 

4 MSHA was very concerned about information related by the Union members about 

conditions in the bleeder entries. MSHA phoned Oak Grove and advised, in essence, that the 

longwall should not be in production. Oak Grove called back later, questioning MSHA's 

authority to impose such a condition in the absence of any official enforcement action. Joseph 

O'Donnell, Jr., assistant district manager for MSHA' s District 11, then advised Oak Grove to 

"forget" the earlier call, and that MSHA would see them in the morning. 

32 FMSHRC Page 171 
examinations. 5 

Shubert and Boylen traveled to the South end of the Main East Bleeder system, and began 

to walk up the bleeder entry. They encountered accumulations of water in five locations that they 

determined presented unsafe travel conditions, including water at MPL 476 that was waist to 

chest deep for a distance as far as a cap light would shine, and water had accumulated to the roof 

of the entry inby MPL 483. They decided not to attempt to proceed further. They exited the 

bleeder entries some 12 hours after they had entered, and Boylen issued two orders pursuant to 

section 104(d)(2) of the Act.6 

Order No. 6698829 alleged a violation of30 C.F.R. § 75.370(a)(l), which requires that 

operators develop and follow a ventilation plan approved by the MSHA district manager. 

Ex. G-1. Oak Grove's approved ventilation plan required that bleeder entries be maintained with 

additional roof support and that water be pumped to maintain free air flow and safe travel. 

Ex. G-7. Oak Grove had clearly failed to comply with its ventilation plan. Water accumulated in 

the bleeder entries had rendered them unsafe for travel, and impassible. Moreover, the 

conditions had existed at least since December 29, when the MPLs could not be examined. The 

order barred entry beyond the first-identified hazardous water accumulation until the entry had 

been pumped and was safe for travel. Ex. G-1. The order was modified on January 8 to allow 

5 Boylen also determined that Oak Grove was not conducting proper preshift 

examinations of the area where miners were working oli pumps in the bleeder system. Because it 

took about six hours to reach the work area and men in the bleeder entries had no means of 

communication, miners were simply following examiners into the bleeder entries. Normal 

preshift examinations, required to be conducted within three hours of a scheduled shift were not 

conducted for the bleeder work. 

6 Sectfon I 04( d)(2) of the Act provides: 

(2) If a withdrawal order with respect to any area in a coal or other 

mine has been issued pursuant to paragraph (1 ), a withdrawal order 

shall promptly be issued by an authorized representative of the 

Secretary who finds upon any subsequent inspection the existence 

in such mine of violations similar to those that resulted in the 

issuance of the withdrawal order under. paragraph ( 1) until such 

time as an inspection of such mine discloses no similar violations. 

Following an inspection of such mine which discloses no similar 

violations, the provisions of paragraph (1) shall again be applicable 

to that mine. 

The underlying section 104(d)(l) withdrawal order had been issued on October 21, 2003, and 

Oak Grove had not experienced a .. clean" inspection since that date. Consequently, it remained 

on the section 104(d)(2) .. chain." Ex. G-5, G-6. 

32 FMSHRC Page 172 
certified persons, accompanied by a limited number of miners, to travel further inby, to an 

electric pump station to move and maintain pumps that were beginning to run "dry," possibly 

creating a further hazard. 7 

The second order, Order No. 6698830, alleged a violation of 30 C.F.R. § 75.334(d), 

which requires that a worked-out area be sealed if its bleeder system does not continuously dilute 

and move methane-air niixtures and other noxious gases out of the mine, or if it cannot be 

determined from the required weekly examinations that the bleeder system is working 

effectively. 

The violation was described in the "Condition and Practice" section of the Order as 

follows: 8 

The mine operator is not maintaining the Main East Bleeder system. There are 

eleven MPL evaluation stations that are not being examined by certified officials. 

Water was allowed to roof inby MPL 483. Thus the bleeder system was not 

inspected to determine its effectiveness in diluting and removing methane-air 

mixtures and other gases. This bleeder area has existed for at least 10 shifts and 

the longwall had continued operating under normal production. Located on the 

headgate side of the operating longwall there are roof falls in the No. 1 and No. 2 

entries preventing passage for bleeder inspection to the No. 6 Exhaust Fan. The 

air returning off the tailgate of the operating longwall was not being monitored, 

due to the fact that the 11 MPLs were not being checked. Upon inspection of the 

mine fan charts for the No. 6 exhaust fan, it was revealed that the water gauge, in 

a two-week period, went from a reading of 15 to a reading of 31. A 

75.364(a)(2)(iii) citation was written on 12/30/2009 because the bleeder could not 

be made in its entirety. The mine operator has engaged in more than ordinary 

negligence by allowing the bleeder to remain unexamined, while the longwall was 

in normal production mode. This violation is an unwarrantable failure to comply 

with a mandatory standard. 

Ex. G-2. 

The orders required idling of the longwall. On January 8, 2010, Oak Grove filed notices 

of contest of the orders with the Commission, along with a motion for an expedited hearing. 

7 Order No. 6698829 was terminated on January 15, because the water in the cited 

areas had been pumped down. Because that order had been terminated, Oak Grove's contest 

action involving it was not made a subject of the expedited hearing. 

8 Grammar and spelling errors have been corrected in quotations from documents 

prepared in the field . 

32 FMSHRC Page 173 
The weekly examination regulation, section 75.364, provides that: "In lieu of the 

requirements of section 364(a)(2)(i) and (iii) of this section, an alternative method of evaluation 

may be specified in the ventilation plan provided the alternative method results in proper 

evaluation of the effectiveness of the bleeder system." 30 C.F.R. § 75.364(a)(2)(iv). Oak Grove 

officials met with MSHA on January 8, following which, Paul Hafera, the General Manager, 

faxed a letter requesting additional access to the bleeder entries to maintain conditions and pump 

water. Ex. G-22. MSHA erroneously construed the letter as a request to amend the ventilation 

plan to address bleeder evaluation, denied the request and specified information that would be 

required for review of such a plan. Ex. G-23. The following day, Saturday, Oak Grove faxed a 

letter in response to MSHA's reply. Ex. G-24. It proposed establishment of temporary bleeder 

evaluation points, to be examined daily, as substitutes for the MPLs that could not be accessed, 

and suggested an alternative bleeder evaluation plan. Two temporary evaluation points, BE 1 (T) 

and BE 2 (T) would be established in the No. 1 and No. 2 headgate entries, outby the roof fall. 

They would approximate the conditions at the two inaccessible headgate MPLs, Nos. 550 and 

551, as depicted on a map submitted with the letter. Ex. G-24A. Because MPL 483 and those 

further inby were not accessible, it was proposed that MPLs 439, 440 and 441, be designated 

temporary evaluation points, which would show conditions in the south side of the bleeder up to 

that location, i.e., behind the old 9-East panel. Another temporary evaluation point, BE 6 (T), 

would be established at the No. 6 Fan. Oak Grove represented that "the air quantity difference 

between that temporary BE points and the fan measuring point will be significant and will be the 

sum of the air that is passing through old 9 East, Old 10 East, New 10 East and the longwall gobs 

of 10 East and the active 11 East." Ex. G-24. 

Oak Grove stated that the plan was .. being submitted in order to terminate order 

# 66988[30] which alleges Oak Grove has violated 30CFR75.334(d)." Ex. G-24. This approach 

later became known as the "subtraction" method for evaluating the effectiveness of the bleeder 

system. The quantity and quality of air entering the bleeder system at known points, would be 

subtracted from the amount leaving the system through the No. 6 Fan, and it was assumed that 

the remainder wa8 exiting the 11-East tailgate entries. 

MSHA responded on January 11, the following Monday, denying approval of the plan, 

and specifying nine "issues and/or items of concern" that Oak Grove had to address, including 

"the means by which the air quality in the untravelable areas will be determined." Ex. G-25. It 

also noted that MSHA's understanding was that the plan supplement had been submitted to allow 

temporary evaluations until the bleeder entries could be traveled in their entirety, not to allow 

resumption of longwall mining. 

Oak Grove responded by letter dated January 13, with an attached map depicting 

temporary bleeder evaluation points, MPLs and other information, and clarifying that it was 

intended to secure termination of the section 334(d) Order so that mining could be resumed. 

Ex. G-26. Also clarified was Oak Grove's proposed "subtraction" method to evaluate the 

effectiveness of the bleeder system. It proposed to determine the quantity of air passing through 

the three MPLs at the back of the tailgate entries of the 11-East panel, MPLs 556, 557 and 569, 

32 FMSHRC Page 174 
by subtracting from the quantity measured at the No. 6 Fa.Il, the quantities measured in the No. 1 

and No. 2 headgate entries, BE 1 (T) and BE 2 (T) (approximating readings at MPLs 550 and 

551 ), and the quantity measured at the then-accessible MPL 483 (approximating the reading at 

MPL581). 

The MSHA district office obtained input from MSHA's technical support and 

certification center prior to preparing a response. Thomas Morley, an MSHA engineer and 

ventilation expert, reviewed the Oak Grove proposal and advised the district office by e-mail. 

Morley also testified at the hearing. Morley expressed concern about the assumptions underlying 

the "subtraction" alternative and the reliability of the results. His e-mail read, in part: 

The proposed method of substitution reading where the 11 East Headgate and 

Bleeder 483 quantities are subtracted from the total at the fan does not account for 

air flow in the headgate of the 10 East panel. 

The proposed method of substitution reading does not account for air that may be 

traveling the setup entries of previous panels. 

The quantity of air shown 4 crosscuts in by the face in the tailgate is 5,593 cfm 

[cubic feet per minute]. The total quantity at the fan and in the bleeder is so much 

larger than the amount of air in the tailgate that a determination of quantity or 

quality can not be reliably made for air exiting the active tailgate by substitution. 

Ex. G-38. 

MSHA responded to Oak Grove's January 13 submittal by letter dated January 15, 

denying approval of the plan amendments. Ex. G-27. It viewed Oak Grove's proposal as an 

alternative method of evaluating the effectiveness of the bleeder system under section 

75.364(a)(2)(iv), and determin~d that it did not adequately provide for proper evaluation of the 

bleeder system. The letter made clear that MSHA' s position was that: 

Any plan submitted for approval of an alternative method for evaluating the 

effectiveness of the bleeder system must provide no less than the same 

information as would be gathered during normal weekly examinations. This 

information includes measurements of methane and oxygen concentrations and 

tests to detennine that air is moving in the proper direction. Of prime concern is 

the air quantity and quality, particularly methane concentrations, on the tailgate 

end of the 11-East longwall panel at the back end. An alternative plan for 

evaluating the effectiveness of the East Bleeder System must specify how air 

quality will be determined in the areas that cannot be traveled, particularly where 

air would normally be exiting the gob on the tailgate end. In addition, the 

adequacy of the plan submitted January 14, 20(10], cannot be evaluated because 

air entering and/or exiting the "Old" I 0-East entries outby the "Old" 10-East 

32 FMSHRC Page 175 
Longwall face, including the establishment of evaluation points in this area, is not 

specified in the submitted plan. The air entering/exiting this area directly impacts 

the East Bleeder System and the ability to make a proper evaluation of its 

effectiveness. 

Ex. G-27. 

Specific concerns were identified at page 2 of the letter, including the following points: 

Air quantities across the old longwall start-lines, particularly the I 0-East and 

I I-East panels, are not accounted for in the proposed calculation. fu order for an 

adequate review of any such plan to. be conducted, the plan must include all air 

quantities entering and leaving the East Bleeder System so that it may be possible 

to calculate such air quantities. Such air quantities must be shown on the map 

and, if calculated, must include the method of calculation. 

The total air quantity at the fan and in the bleeder entries is so much greater than 

the quantity shown inbythe longwall face on the tailgate end (5,593 cfin) that a 

calculated determination of air quantity and quality exiting the worked-out area on 

the tailgate end at the back may not be reliable. 

The low air quantity just inby the longwall face on the tailgate end (5,593 cfm) is 

very low and does not ensure adequate ventilation of the worked-out area. This is 

particularly significant since the air quality cannot be measured directly. 

Ex. G-27. 

Further correspondence was exchanged. Oak Grove forwarded a letter dated January 18, 

2010, to which MSHA responded on January 20, advising that, in its opinion,. the supplement 

provided no additional information. Ex. G-28, G-29. Oak Grove sought to move the longwall 

shearer back to the headgate, a request that was also denied. Ex. G-30, G-32. Oak Grove further 

clarified its proposal by letter dated January 21, 2010, which MSHA denied onJanuary 22, 

partially on the understanding that a new proposal would be forthcoming following a meeting 

that day. Ex. G-31, G-33. Oak Grove's final proposal, prior to the hearing, was a January 23, 

letter, with attached mine map, showing air readings and calculations. Ex. G-34, G-34A. 

Pumping had progressed to the point that MPL 581 was accessible, and Oak Grove proposed to 

use readings from that evaluation point to calculate, or approximate, the quantity of air exiting 

the tailgate entries at the back end of the 11-East panel. Noteably, approximate locations where 

water remained roofed were highlighted in blue, and it was represented that, "Airflow is passing 

by and through these areas and being accounted for." Ex. G-34 at 2. 

MSHA did not respond to the January 23 letter. That letter, and the attached map, were 

the subjects of considerable testimony at the hearing, which commenced on January 26, 2010. At 

32 FMSHRC Page 176 
that time Order No. 6698830 remained in effect, barring production on the active longwall panel. 

The Issues 

There are two primary issues, resolution of either of which in Oak Grove's favor, would 

remove the bar to production. The first is the validity of the Order. If the Order is found to be 

valid, the second issue is the reasonableness of the conditions set for abatement of the violation, 

specifically, the validity ofMSHA's disapprovals of Oak Grove's proposed amendments to its 

ventilation plan, that would have established an alternative method for evaluation of the bleeder 

system. 

The Order 

The order was clearly valid. Section 75.364(a)(2)(iii) requires that bleeder system entries 

be examined weekly, and that air quality and quantity be measured at evaluation points specified 

in the operator's approved ventilation plan. Section 75.334(d) provides that, if the effectiveness 

of the bleeder system cannot be ascertained by the weekly examinations, the worked-out area 

must be sealed. Oak Grove was well aware that it had not conducted a proper weekly 

examination of the bleeder system since December 14, over three weeks prior to January 6, 2010. 

During the weekly examinations on December 29 and January 4, eleven MPLs specified in the 

ventilation plan for evaluation of the bleeder system serving the 11-East panel had not been 

examined, and no measurements had been taken. 

Records of pressures at the No. 6 Fan indicated that significant changes were occurring in 

the bleeder system. The pressure differential at the fan increased by 50% from December 15 to 

January 2, indicating that there was significant additional resistence to air flow in the system.9 

Nevertheless, 0ak Grove operated the longwall on January 4, 5 and 6, and it made no apparent 

effort to propose an alternative method of evaluating the bleeder system until after the order had 

been issued. Ex. G-19. 

The cited regulation was violated. The violation was extensive, open, obvious, and was 

known to the operator. 10 High level officials of Oak Grove, including the General Mine 

9 The pressure differential at the fan, essentially the vacuum created by the exhaust 

fan, was recorded in inches of water, referred to as the ''water gauge," or "W.G." Prior to 

December 15 the W.G. was averaging about 20 inches. It rose steadily, to a level above 30, by 

January2. Ex. G-19. 

10 The Order was issued pursuant to section 104(d)(2) of the Act, and alleged that the 

operator's negligence was high, and that the violation was a result of the Oak Grove's 

unwarrantable failure to comply with the standard. The unwarrantable failure terminology is 

taken from section 104(d) of the Act, 30 U.S.C. § 814(d), and refers to more serious conduct by 

an operator in connection with a violation. In Emery Mining Corp., 9 FMSHRC 1997 

32 FMSHRC Page 177 
Foreman, had signed off on reports of incomplete examinations recorded in the weekly 

examination book. Oak Grove management officials candidly told Shubert and Boylen, on 

January 6, that the MPLs were not being examined due to roof falls and water accumulations. 

Tr. I-100. 11 The violation was of high gravity. Operation of the longwall with an ineffective 

bleeder system, or a bleeder system whose effectiveness could not be determined, posed a serious 

risk of a serious injuries to miners. 12 Resistence to air flow through the bleeder system had 

increased by 50% over the past.three weeks, indicating significant changes in the bleeder system. 

The mine liberates substantial amounts of methane. Methane could have been accumulating in 

the gob, backing up along the tailgate entry. Roof falls in the gob could push explosive 

concentrations of methane onto the longwall face, where there were numerous ignition sources. 

The significant possibility of an ignition was not obviated by safety devices on the face 

equipment. 

(Dec. 1987), the Commission determined that unwarrantable failure is aggravated conduct 

constituting more than ordinary negligence. Id. at 2001. Unwarrantable failure is characterized 

by such conduct as "reckless disregard," "intentional misconduct," "indifference," or a "serious 

lack ofreasonable care." Id. at 2003-04; Rochester & Pittsburgh Coal Co., 13 FMSHRC 189, 

194 (Feb. 1991) ("R&P''); see also Buck Creek [Coal, Inc. v. FMSHRC, 52 F.3d 133, 136 

(7th Cir. 1995)] (approving Commission's unwarrantable failure test). Aggravating factors 

include the length of time that the violation has existed, the extent of the violative condition, 

whether the operator has been placed on notice that greater efforts are necessary for compliance, 

the operator's efforts in abating the violative condition, whether the violation is obvious or poses 

a high degree of danger, and the operator's knowledge of the existence of the violation. Because 

supervisors are held to a high standard of care, another important factor supporting an 

unwarrantable failure determination is the involvement of a supervisor in the violation. REB 

Enters., Inc.~ 20 FMSHRC 203, 225 (Mar. 1998). Lopke Quarries, Inc., 23 FMSHRC 705, 711 

(July2001). 

11 The hearing transcript consists of three separately numbered volumes. The volume 

associated with the first day of the hearing is identified as "Tr. I-x," day two "Tr. Il-x" and day 

three "TR.-III,..x." 

12 The Order alleges that the violation was significant and substantial ("S&S"). An 

S&S violation is described in section 104( d)(l) of the Act as a violation "of such nature as could 

significantly and substantially contribute to the cause and effect of a coal or other mine safety or 

health hazard." A violation is properly designated S&S "if, based upon the particular facts 

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

result in an injury or illness of a reasonably serious nature." Cement Div., Nat'/ Gypsum Co., 

3 FMSHRC 822, 825 (Apr. 1981). See also Mathies Coal Co., 6 FMSHRC I, 3-4 (Jan. 1984) 

(footnote omitted); see also, Buck Creek Coal, Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); 

Austin Power, Inc. v. Secretary of Labor, 861F.2d99, 103-04 (5th Cir. 1988), affg Austin 

Power, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987) (approving Mathies criteria). U.S. Steel Mining 

Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985). 

32 FMSHRC Page 178 
Oak Grove points to the fact that another MSHA inspector issued a less serious section 

104(a) citatfon on December 30, 2009, because the bleeder entries were not travelable. Ex. C-1. 

The original time allowed for abatement ofthat citation, December 31, was extended on January 

14 to January 29, 2010. This was somewhat of a mixed signal from MSHA. However, the 

longwall was not operating on December 30 or after January 6, which could explain the 

abatement period determinations. The issuance of the citation, and the abatement period, do not 

excuse Oak Grove's conduct. It knew that no weekly examination of the bleeder entries had 

been done since December 14, and that conditions had deteriorated since that time, such that a 

considerable portion of the south bleeder entries, as well as critical portions of the I I-East 

headgate entries, were inaccessible. Yet it resumed production on the longwall. The longwall 

was operated on January 4 (2 shifts), January 5 (2 shifts), and January 6 (1 shift). Ex. G-10. 

I find that Order No. 6698830, which was issued as an S&S violation pursuant to section 

104(d)(2) of the Act based upon Oak Grove's unwarrantable failure to comply with a mandatory 

standard, was valid in all respects, and reject Oak Grove's contest of the Order. 

Abatement 

MSHA's refusal to abate the order, by approving Oak Grove's proposed amendments to 

its ventilation plan presented, in essence, a plan dispute. The law applicable to plan disputes is 

well-settled. Both MSHA and the operator must negotiate in good faith, stating their positions 

on the issues and explaining them. If the parties have :fulfilled their obligations to negotiate, then 

it must be determined whether MSHA's rejection ofplan provisions proposed by the operator 

was arbitrary and capricious. 13 

13 The law applicable to plan disputes was recently explained by the Commission in 

One of the cornerstone principles with regard to plan formulation under 

the Mine Act is that MSHA and the affected operator must negotiate in good faith 

for a reasonable period concerning a disputed plan provision. Carbon County 

Coal Co., 7 FMSHRC 1367, 1371(Sept.1985). The Commission has noted, 

"Two key elements of good faith consultation are giving notice of a party's 

position and adequate discussion of disputed provisions." C. W. Mining Co., 

18 FMSHRC 1740, 1747 (Oct. 1996). 

While the contents of a plan are based on consultations between the 

Secretary and the operators, the Commission has recognized that "the Secretary is 

[not] in the same position as a private party conducting arm's length negotiations 

in a free market." Id. at 1746. As one court has noted, "the Secretary must 

independently exercise [her] judgment with respect to the content of ... plans in 

connection with [her] fmal approval of the plan." UMWA v. Dole, 870 F.2d 662, 

669 n.10 (D.C. Cir. 1989), quoting S. Rep. No. 181, 95th Cong., 25 (1977), 

reprinted in Senate Subcom. on Labor, Com. on Human Res., 95th Cong., 

32 FMSHRC Page 179 
Here, both parties engaged in rapid-fire exchanges of correspondence, and fulfilled their 

obligations to negotiate in good faith over the disputed plan provisions. Consequently, the issue 

to be decided is whether MSHA's disapproval of the proposed amendments was arbitrary and 

capricious. I conclude that it was not. 

While it presented Oak Grove with a series of"concerns" that it wanted addressed to 

evaluate plan submittals, MSHA had made clear that its primary focus was assuring reliable 

measurement, or calculation, of the air exiting the tailgate side of the I I-East panel at the back of 

the gob. Ex. G-27. The MPLs that were intended to provide that information were Nos. 556, 

557 and 569, at which were measured the quality and quantity of air exiting the No. I, 2 and 3 

tailgate entries. They are highlighted in yellow on Government exhibit 34A. MSHA had also 

made clear that it did not believe that Oak Grove's subtraction method accounted for all air 

entering and exiting the bleeder system, particularly air entering from the I 0-East headgate and 

set up entries. Ex. G-27. 

MSHA's point was well-taken. As is evident on Government exhibit 34A, there are two 

passages from the No. I headgate entry of the IO-East panel to the bleeder entries behind the 

I I-East panel. They are circled in orange on the exhibit, and labeled "cut thru." The east cutthrough has an air lock that prevents passage of air from the I 0-East panel. However, the west 

cut-through is open and, in fact, is the passage for air from the south bleeder, which has passed 

through MPL 581, into the bleeder entry behind the I I-East panel. Air traveling inby in the 

IO-East headgate entries and entering the bleeder entries through the cut-through would not have 

passed through MPL 581, and would not have been accounted for in Oak Grove's subtraction 

method. 

MSHA's concern was that such air was entering the system, and it had serious 

reservations· about the proposed subtraction method. As depicted on Government exhibit 34A, 

Oak Grove's example of readings on January 22, showed that 230,000 cfm of air was exiting the 

system at the No. -6 fan. The quantity of air entering the system from the I I-East headgate entries 

(BE I (T) and BE 2 (T), approximating the flow in MPLs 550 and 551), was 29,472 cfin. The 

quantity of air entering the bleeder from the south, as measured at MPL 581, was 178,320 cfm. 

Legislative History of the Federal Mine Safety and Health Act of 1977, at 613 

(1978). Ultimately, the plan approval process involves an element of judgment on 

the Secretary's part. Peabody Coal Co., 18 FMSHRC 686, 692(May1996) 

("Peabody II''). "[A ]bsent bad faith or arbitrary action, the Secretary retains the 

discretion to insist upon the inclusion of specific provisions as a condition of the 

plan's approval." C. W. Mining, 18 FMSHRC at 1746; see also Monterey Coal Co., 

5 FMSHRC 1010, 1019 (June 1983) (withdrawal of approval of water 

impoundment plan was not arbitrary or capricious where MSHA's conduct 

throughout the process was reasonable). 

Emerald Coal Res. LP, 29 FMSHRC 956, 966 (Dec. 2007) 

32 FMSHRC Page 180 
That left a balance of22,253 cfm that Oak Grove attributed to flow from the tailgate side of the 

11 -East panel. 

However, as the exhibit shows, there was also a total of 24,000 cfm flowing inby in the 

No. 1 and No. 2 heagate entries of the 10-East panel. It appears that that air could flow inby and 

enter the bleeder system through the cut-through. 14 If the 24,000 cfm entering the 10-East 

headgate entries was entering the bleeder through the cut-through, without passing through MPL 

581, then it also needed to be subtracted from the total exiting the system to approximate the 

flow from the 11-East tailgate area. The result, a negative 1, 7 4 7 cfm, would indicate that air was 

flowing outby in the 11-East tailgate, i.e., backing up methane in the gob toward the face. 

Oak Grove's Safety Manager, Timothy Thompson, and General Manager testified at the 

hearing that, in their opinion, the air from the 10-East headgate was not able to flow through the 

cut-through, but, rather, was flowing into the bleeder entries upstream, i.e., south, ofMPL 581. 

As such, it would have formed a portion of the flow at MPL 581, and would have been accounted 

for in the proposed subtraction evaluation method. While Oak Grove maintained in its letter that 

air from the 10-East panel was accounted for, it did not explain its theory of flow in its 

correspondence with MSHA. Thompson did not believe that the theory had been advanced to 

MSHA. Tr. III-158. Morley, MSHA' s ventilation expert, did not believe that it was likely that 

the 10-East headgate air was flowing into the bleeder upstream ofMPL 581, because stoppings 

along the entries would have required that it flow down through the gob into the tailgate entries. 

Tr. II-194-96. 

Possible errors in flow measurements were also a concern to MSHA, as expressed in its 

January 15 letter. Flow volume at the No. 6 Fan, the air exiting the system, was determined by 

one of two methods. Oak Grove's January 23 submission proposed measurement of the No. 6 

Fan volume by reference to performance specifications published by the fan manufacturer. A 

chart entitled "typical performance curve" ("fan curve") for the centrifugal exhaust No. 6 Fan 

displays volume of flow through the fan as functions of the pressure differential across the fan, 

measured in inches of water, i.e., "water gauge" or "W.G.," and the angle setting of the fan 

louvers. Ex. G-20. With the fan louvers at 90 degrees, i.e., fully open, and a water gauge reading 

of 30 inches, the chart yields a flow volume of 220,000 cfm. 

A second method involves use of a Pitot tube, a device that measures the pressures 

generated by flowing air, and consists of two concentric tubes bent in an. "L" shape. The open 

end of the inner tube, which is pointed into the air flow, measures the total pressure within the 

stream, including that generated by the air velocity. Holes in the sides of the outer tube, 

14 Oak Grove believed that the No. 1 headgate entry had been roofed with water, as 

shown on the map. The No. 2 entry, which was not completely separated from the No. 1 entry, 

extended to the area of the cut-through, and there were several areas where falls had occurred in 

that vicinity. Oak Grove had represented in its January 23 letter that air was flowing by and 

through the areas that were roofed with water. 

32 FMSHRC Page 181 
transverse to the air flow, measure the "static" pressure, i.e., the pressure without the velocity 

component. The volume of flow can then be calculated based upon the two readings and other 

available information, such as the density of the air and the area of the discharge ducts. The Pitot 

tube method is regarded as a more accurate means of determining flow velocity and volume. 

Tr. Il-207. 

Flow volume in the bleeder entries was determined by measuring the velocity of air flow 

at various points in the entry, and multiplying the velocity by the area of the entry opening. Air 

velocity was measured with an anemometer, a small fan that is rotated by the air current. It is 

held in the mine airway for a specified time, while being moved steadily over the entire area of 

the entry. The velocity of air flow is then displayed as a function of the number of fan 

revolutions and the specified time. The error rate for anemometer readings ranges from five to 

ten percent. Tr. II-267. However, Larry Bennett, Oak Grove's chief engineer, explained that at 

higher velocities, like those experienced near MPL 581, it was well known in the industry that 

such readings could be 10-20% high. Tr. ffi-35-36. Morley generally agreed that anemometer 

readings would likely be high at higher velocities. Tr. Il-257. 

Morley had expressed concern in his January 15 e-mail about the reliability of the 

calculation of volumes in the range of20,000 cfin from much larger volumes in the range of 

200,000 cfin, because the measurements might have significant error rates. Oak Grove's final 

supplemental plan relied on measurements of flow volume at the No. 6 Fan determined by 

relating the water gauge reading to the fan curve. The map included with the submission, shows 

230,000 cfin exiting the No. 6 Fan, based upon a water gauge reading of29.0 inches. 

Ex. G-34A, G-20. After subtracting the measurements at MPL 581 (178,320 cfin) and Bl (T) 

and B2 (T) (29, 427 cfin), Oak Grove's subtraction method yielded a volume of22,253 cfin, 

which it assumed was entering the bleeder system from the 11-East tailgate. 

However, in Morley's experience, fans seldom performed exactly as predicted by 

manufacturer's performance curves. Tr. Il-229. The potential error rate was illustrated by 

Bennett's testimony. He and an MSHA inspector, Steve Harrison, measured the flow volume at 

the fan with a Pitot tube, and determined it to be 197,197 cfin. Tr. ffi-18-23. To check the 

reasonableness of that measurement, they consulted the fan curve at the then water gauge reading 

of 30.438 inches, which yielded a figure of212,000 cfin. Assuming the accuracy of the Pitot 

tube measurement, the fan curve reading was high by 15,000 c:fm, or 7.6%. 

Seven and six-tenths percent of the 230,000 c:fin exit volume reflected on the January 22 

map, is 17,480 c:fm. Consequently, the exit volume was more likely in the range of212,500 c.fin. 

If the south bleeder and headgate volumes are assumed to be accurate, that would leave 

4, 753 c:fm, rather than 22,253 cfin, that could have been entering the bleeders from the 11-East 

tailgate, or other potential sources. Of course, if the anemometer measurement at MPL 581 was 

high by 10% or more, as Bennett believed, the fan volume error would have been more than 

offset. 

32 FMSHRC Page 182 
MSHA's disapprovals of the ventilation plan amendments submitted by Oak Grove were 

primarily based on, 1) disagreement with the underlying assu.mption of the subtraction method, 

i.e., that the entire remainder of the subtraction of the 11-East headgate and MPL 581 volumes 

from the No. 6 fan volume was attributable to flow from the· 11-East tailgate; and, 2) that errors 

in measurements of relatively high flow volumes produced an unreliable result. · 

Oak Grove advanced explanations for concerns raised by MSHA. It believed that flows 

from other sources, such as the IO-East headgate and set-up entries of the old panels, were 

accounted for because they were being drawn into the bleeder entries in the area of the 10-East 

tailgate, and were included in the flow through MPL 581. However, MSHA's belief, as 

ex.pressed by Morley, was that at least some of the 24,000 cfm flowing into the 10-East headgate, 

as well as air that might be coursing through the old set-up entries, was entering the bleeder 

through the cut-through, inby MPL 581, and was erroneously being characterized as flow from 

the 11-East tailgate. Morley explained that it was possible that the 10-East headgate air could be 

flowing either way, the trouble was that "we don't know." Tr. ill-196. MSHA was also 

concerned that errors in measurements of volumes in the range of200,000 cfm rendered 

unreliable calculations resulting in much smaller volumes, another unknown quantity .. 

Oak Grove argues that MSHA's rejection of several proposals and requests for additional 

infonnation evidence a mindset that it would accept only evaluations made at the inaccessible 

MPLs at the back of the 11-East tailgate entries, and that that insistence was arbitrary and 

capricious. There is little question that MSHA's primary concern was that any bleeder 

evaluation method include reliable data demonstrating that there was an acceptable quantity and 

quality of air exiting the back of the 11-East tailgate entries. That was the most important 

indicator that the bleeder system was working properly in the active longwall panel. It did not 

rule out alternative methods, including the subtraction proposal. However, for the reasons 

explained above, MSHA did not believe that the proposals advanced by Oak Grove would 

reliably confirm that the bleeder system was working effectively. MSHA's reservations were 

reasonable. 

As noted in the decision announced from the bench, Oak Grove's assumptions about air 

flow through the bleeder system may have been correct. It could have been that none of the 

10-East headgate flow traveled through the cut-through, and that all of it is accounted for in the 

MPL 581 measurement. It could have been that errors in anemometer readings at MPL 581 

offset errors in fan curve volumes. It could have been that the significant pressure differential 

across the regulators in the headgate and inby MPL 581 meant that there was sufficient low 

pressure at the back of the 11-East tailgate entries to continuously dilute methane and other 

noxious gases and move them out of the mined-out area of the 11-East panel. Tue problem is 

that there are reasons to doubt the accuracy of Oak Grove's theories and assumptions, and, most 

importantly, there is no way to verify their accuracy. 

Under section 334(d), the effectiveness of the bleeder system must be detennined by 

examinations. Here, the critical infonnation that was no longer available was measurement of air 

quantity and quality exiting the tailgate entries of the 11-East panel. Predictions of quantity and 

32 FMSHRC Page 183 
quality of critical air flow based upon assumptions are simply not adequate, unless it can be 

demonstrated that such assumptions are so reliable as to be the equivalent of actual 

measurements. The potential consequences of an erroneous assumption that the bleeder system 

is working effectively, demand a high level of reliability. MSHA's position that 10-East 

headgate and set-up entry flows were not accounted for in the subtraction method was equally as 

plausible as Oak Grove's contention. Its concerns about the reliability of results based upon 

measurement errors were also plausible. Absent verifiable explanations satisfying its concerns, 

the denials of the proposed alternative evaluation methods were reasonable. 

MSHA's denial of proposed amendments to Oak Grove's ventilation plan that were 

designed to abate Order No. 6698830 were not arbitrary or capricious. 

ORDER 

Oak Grove's contest of Order No. 6698830, both as to the violation itself and the 

rejection of the proposed abatement measures, is DISMISSED. 

Distribution (Electronic and Certified Mail): 

Laura E. Beverage, Esq., Arthur M. Wolfson, Esq., Jackson Kelly PLLC, 1099 18th Street, Suite 

2150, Denver, CO 80202 

Jennifer D. Booth, Esq., Thomas A. Grooms, Esq., Office of the Solicitor, U.S. Department of 

Labor, 618 Church Street, Suite 230, Nashville, TN 37219-2456 

32 FMSHRC Page 184 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

721 191h Street, Suite 443 

Denver, CO 80202-2500 

303-844-35nJFAX 303-844-5268 

February 18, 2010 

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), 

Petitioner 

CIVILPENALTYPROCEEDJNG 

Docket No. WEST 2008-201-M 

A.C. No. 42-02159-130699 

v. 

GILBERT DEVELOPMENT CORP., 

Respondent 

Mine: SR9/ Harrisburg Pit 

Appearances: 

Before: 

DECISION 

Jennifer A. Casey, Esq., Office of the Solicitor, U.S. Department 

of Labor, Denver, Colorado, and Hillary A. Smith, Conference and 

Litigation Representative, Mine Safety and Health Administration, 

Denver, Colorado, for Petitioner; 

Michael F. Leavitt, Esq., and Bryan J. Pattison, Esq., Durham, 

Jones & Pinegar, St. George, Utah, for Respondent. 

Judge Manning 

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

of Labor, acting through the Mine Safety and Health Administration (''MSHA") against Gilbert 

Development Corporation ("Gilbert Development") pursuant to sections 105 and 110 of the 

Federal Mine Safety-and Health Act of 1977, 30 U.S.C. §§ 815 and 820 (the "Mine Act"). An 

evidentiary hearing was held in St. George, Utah and the parties introduced testimony and 

documentary evidence. For the reasons set forth below, I find that the Secretary established a 

violation of the safety standard, but that the violation was not the result of the company's 

unwarrantable failure to comply with the safety standard. 

Gilbert Development is made up of several divisions that engage in different types of 

enterprises. The division at issue here is engaged in mining aggregate. (Tr. 211). It has mined 

gravel since the early 1970s and it has operations in several states. The company produces 

materials for asphalt and concrete products and for roadway and embankment projects. The 

quarry and crusher operation involved in this case is located in Washington County, Utah. 

32 FMSHRC Page 185 
I. BACKGROUND 

A. The Citation. 

On June 19, 2007, Inspector Michael Ok:uniewicz issued Citation No. 6319158 under 

section 104(d)(l) of the Mine Act, alleging a violation of30 C.F.R. § 56.12016, in part, as 

follows: 

A non-fatal accident occurred at this mine on 06/14/2007 when an 

employee tried to energize a defective 480 volt Square D electrical 

circuit breaker causing a short and arc flash. The employee 

received bums to the face and right arm. 

The main line 480 breaker that supplied power to the defective 

breaker was deenergized and locked out prior to the employee 

coming on shift due to an electrical problem in the defective box 

found on the previous shift. There was no sign nor warning notices 

posted at the power switch to indicate the hazard. All employees 

that were working on the switch did not add their locks to the gang 

lock to prevent the removal. The key for the lock was 

inadvertently left where an employee was able to find it and 

energize the electrical system causing the short. 

The mine superintendent and foreman who were working on the 

defective circuit breaker engaged in aggravated conduct in that they 

failed to properly lock out the 480 volt power to the plant and the 

defective main circuit breaker they were working on. 

The inspector deteffilined than an injury was reasonably likely and that a fatal accident 

could occur'. He determined that the violation was of a significant and substantial nature 

("S&S") and that the company's negligence was high. (Ex. G-1). Section 56.12016, entitled 

"Work on electrically-powered equipment" provides: 

Electrically powered equipment shall be deenergized before 

mechanical work is done on such equipment. Power switches shall 

be locked out or other measures taken which shall prevent the 

equipment from being energized without the knowledge of the 

·individuals working on it. Suitable warning notices shall be posted 

at the power switch and signed by the individuals who are to do the 

work. Such locks or preventative devices shall be removed only by 

the persons who installed them or by authorized personnel. 

32 FMSHRC Page 186 
The Secretary proposes a penalty of $60,000.00 for this citation. 1 

II. SUMMARY OF THE EVIDENCE 

The evidence introduced by the parties presented significantly different accounts of what 

happened at the plant on June 13-14, 2007. The basic configuration of the quarry is not disputed. 

Rock was extracted froni the earth and transported to the plant, where it was crushed, screened, 

and sorted. Material was conveyed through the plant on belts and piles of product were created 

through the use of stacker conveyors. At the time of the accident, power for the electrical 

equipment was purchased from the local utility. The power entered through the main breaker. 

From there, the power was wired to various power boxes in the nearby electrical trailer. (Ex. J1 ). These power boxes were very large cabinets, about the size of refrigerators, but not as deep. 

The power boxes contained circuit breakers for various pieces of electrical equipment. There 

was a pegboard in the electrical trailer that was used to store the locks used to lock out the power 

at the main breaker. The keys to these locks and danger tags were also kept on the pegboard. 

The power box at issue in this case was the second box in the electrical trailer and it 

contained the breaker for an impact crusher. The power boxes were kept closed at all times, 

unless repairs were being made on equipment in that box. The handle on the second power box, 

used to close the circuit breaker that supplied power to the crusher, was on the right-hand side of 

the box atthe front. This handle could not be pushed down to close the circuit breaker and 

energize the circuit if the door to the power box were not completely closed. 

A. Katherine Gonzales. 

Katherine Gonzales, who worked for Gilbert Development for about three years, testified 

for the Secretafy. She was employed as the tower operator at the crusher and she testified that 

she was responsible for, among other things, conducting a general morning walkthrough of the 

plant, turning on the main power breaker and four power boxes, wanning up the plant, shutting 

down and restarting the plant during lunch, and shutting down the plant at the end of the day. 

(Tr. 107, 109-110). 

Gonzales testified that on April 23, 2007, the plant switched from being powered by a 

portable generator to receiving power from the local electric utility company. (Tr. 110-111 ). She 

said that once the plant started receiving power from the utility, she did not initially start up the 

plant in the morning. (Tr. 130). She testified, however, that about two weeks after this switch, 

she resumed her morning startup responsibilities. (Tr. 112). 

Gonzales testified thatat the end of her shift on June 13, 2007, she shut off the main 

power to the plant, placed a lock with the letter "K" written on the lock at the main breaker (the 

1 The proposed penalty was specially assessed under 30 C.F.R. § 100.5. Under the 

regular assessment formula, the penalty would have been $3,689.00. (Ex. G-7). 

32 FMSHRC Page 187 
''K." lock) along with a blank tag, and left the plant sometime between 3:00 p.m .. and 3:30 p.m. 

(Tr. 114, 117, 123-124). There was no rock on the conveyor belts at the time she left and she 

was unaware of any problems at the plant when she left that day. She also testified that she was 

not aware of a meeting planned for the morning of June 14 at the shop. (Tr. 117-18, 135). 

Gonzales said that, although there had been power problems at the plant the previous week, she 

was not aware of any problems the week of June 14. (Tr. 133 ). 

Gonzales testified that she arrived at the plant on June 14 at about 6:00 a.m. She did not 

notice anything unusual, except that a water truck had tipped over. (Tr. 119). She believed that 

she should start up the plant so that everything would be ready to go once the water truck was up 

and running. (Tr. 107, 120, 136). 

Gonzales testified that, if problems develop at the plant when she is not there, someone 

calls her or leaves a note on the pegboard in the electrical trailer. (Tr. 123). She was not notified 

of any problems on June 14. She conducted a walkthrough of the plant and began the process of 

starting it up. She testified that she took the key from the pegboard in the electrical trailer, 

unlocked and removed the "K" lock and tag from the main breaker, and turned on the main 

power. (Tr. 116, 120, 123). If the tag for the lock had been filled out or signed, she said that she 

would not have removed the lock from the main power breaker. (Tr. 126). She then hung up the 

"K" lock and key on the pegboard and began throwing the switches on the power boxes in the 

trailer. The door to the first power box was open about 1/4 of an inch but, because there was no 

indication that anything was wrong, she shut the door and threw the switch. (Tr. 120). The door 

of the second electrical box was closed. She testified that there was nothing posted on the box, 

there were no wires lying on the floor or hanging out of the box, and there were no tools lying in 

the area. (Tr. 125-126). Gonzales testified that when she attempted to turn the power on at the 

second box, her hand became stuck to the switch, her arm started shaking, and she felt something 

surge through her. (Tr. 120-121, 137). There was an explosive blast that blew open the door of 

the box and threw her across the trailer. (Tr. 120-121). Gonzales shut off the power at the main 

switch and was taken to the hospital where she was treated for burns. (Tr. 121-122, 13 8). 

Gonzales testified that she remembers everything that happened that morning. She said 

that, if there had been a tag or lock on the second power box, she would not have attempted to 

turn it on. (Tr. 126). She also said that, if the key to the lock at the main breaker had been 

secured, she would not have been able to turn on the main power breaker. 

Gonzales testified that her procedure at the end of each working day was to lock out and 

tag out the plant by turning off the power at the main breaker, placing the "K" lock and "danger 

do not operate" tag on the bre¥er, and returning the key for the lock to the pegboard in the 

trailer. (Tr. 113-114, 123-124). This trailer is never locked. She sometimes left notes on the 

pegboard for the mechanics so that repair work could be completed after hours. 

Gonzales initially testified that she was never issued her own lock and she assumed that 

the ''K." on the lock could be used by employees whose name started with "K" including herself 

32 FMSHRC Page 188 
("Katy''). (Tr. 114). She later testified that everyone had their own lock, except for her. (Tr. 

115, 132). She was presented with a number oflocks during cross-examination at the hearing 

and she testified that she had seen one of the locks but that she had never seen the lock labeled 

"GDC." (Tr. 131). 

B. Inspector Michael Okuniewicz. 

Inspector Okuniewicz is the field office supervisor for Utah. He testified that his office 

received a call from the local Utah OSHA office that someone had reported that an injured 

employee had not been provided with prompt medical attention. On June 18, 2007, Okuniewicz 

went to the pit to investigate. Based on his investigation, Okuniewicz said that a "K" lock was 

present on the main breaker on the morning of June 14. This lock belonged to Keith Gilbert, 

vice-president of Gilbert Development, but it was considered to be a common lock available to 

all employees to lock out the plant at the end of the day. (Tr. 25, 51, 60). It was the lock 

Gonzales had used every day to lock out the plant at night. Gonzales also placed a blank danger 

tag on the lock every evening to prevent potential vandalism. 

Okuniewicz determined that there had been a discussion at the pit on June 13, 2007, 

about problems with the electrical system. (Tr. 17, 19). Keith Gilbert and Frank Taylor, a 

mechanic, had been working on the second power box, which controlled power to the crusher. 

(Tr. 27-28). When they were unable to complete the repairs, Taylor removed his lock from the 

main breaker but Keith Gilbert kept his lock in place. Id. On the morning of June 14, as part of 

her daily routine, Gonzales attempted to start the plant by opening the "K" lock at the main 

breaker and proceeding to switch on each of the power boxes in the electrical trailer. (Tr. 19-0, 

33, 49, 53). Okuniewicz testified that the power box for the crusher was not locked or tagged out 

and there was no indication of any problem with the box. (Tr. 26, 55). A short occurred when 

she turned on the power for this box, which resulted in an arc flash. (Tr. 20). Okuniewicz 

testified that an arc flash occurs when there is a major ground fault, resulting in a large flash with 

explosive force that can cause electrocution, burns, and other injuries. (Tr. 33-34). Gonzales 

suffered severe bums as a result of this flash. Okuniewicz did not notice any damage to the 

handle of the power box or to the locking mechanism for the power box. (Tr. 97). He said that 

burn marks and soot were the only physical evidence that the door to the box was blown open by 

the electrical flash. Okuniewicz determined that there was no rock on the conveyor belts at this 

time. (Tr. 55). 

Okuniewicz relied on the statements of Ms. Gonzales when he investigated this accident. 

She told him about her daily routine and what happened on June 13 and 14. (Tr. 49-52). He 

admitted that he relied exclusively on her rendition of her responsibilities and the events that led 

up to the accident. (Tr. 75-76). 

Ok:uniewicz testified that he issued the citation because: ( 1) there was no signature or 

description of the hazard on the tag that was attached to the lock at the main breaker box or at the 

defective power box for the crusher, and (2) the key to the lock that was used at the main breaker 

32 FMSHRC Page 189 
box was not secured, thereby allowing anyone to use it to unlock the lock. (Tr. 21-22, 35, 54, 70, 

77, 80). Even though the safety standard does not specifically discuss securing the key, materials 

available to industry show that the key should be secured. (Tr. 82; Ex. G-11 ). The accident 

would not have occurred if these procedures had been followed. 

Okuniewicz said that he issued the citation under section 56.12016 because the work 

being done was mechanical as opposed to electrical work, which would have been cited under 

section 56.12017. (Tr. 36-37, 85-86). 

C. Inspector Thomas Barrin&fon. 

Inspector Barrington is an MSHA electrical inspector based in Utah. He testified that the 

fault, which caused an arc flash, occurred inside the subject power box. (Tr. 156, 165). 

Barrington determined that, at the time of the accident, work had been started on the subject 

power box but that it had not been completed. The bum pattern at the bottom of the box was 

typical of an arc flash. (Tr. 157; Ex. G-4). ·Barrington believes that the power box's locking 

mechanism made contact with part of the dismantled breaker inside the box and caused the arc 

flash. (Tr. 157-158). He admitted that, if the door of a power box were blown open, there would 

be damage to the parts on the box that keep the door closed. (Tr. 205-206). The breakers in the 

box could not be energized if the door is not closed. Id. Jn addition, these breakers could not be 

energized if the main breaker is locked out. 

Barrington testified that the accident would not have occurred if the company were using 

a proper lockout/tagout procedure. (Tr. 159-159). Specifically, he testified that a signed, dated 

tag must be placed on the lock and the tag must identify the hazard. The key to the lock must 

also be secured. (Tr. 159, 161, 190, 197). If someone else's lock is on a piece of equipment and 

there is a danger tag attached, then the lock should not be opened by anyone but the person who 

installed it. (Tr.201-202). Following some of the steps necessary for a lockout/tagout procedure 

is not sufficient; all of the steps must be followed. (Tr. 163 ). Barrington admitted that, prior to 

the accident, he had reviewed and approved Gilbert Development's lockout/tagout procedure, 

including the use of the pegboard in the trailer. (Tr. 207). 

D. Dale Gilbert 

Dale Gilbert is a Vice-President of Gilbert Development and he oversees all of its 

operations. He is an MSHA-approved training instructor. Dale Gilbert testified that, when Ms. 

Gonzales was transferred to the pit, she was responsible for starting the plant. (Tr. 220). She did 

not have any mechanical experience or capabilities, so other people would conduct th.e pre-shift 

inspection of the plant. If the plant required maintenance during the day, Gonzales would shut 

down the plant, put her lock on the main breaker, and call for a mechanic. (Tr. 220, 265). Dale 

Gilbert testified that Gonzales was relieved of the duty to start up the plant in the morning when 

the plant started getting its power from the local electric utility in April 2007. (Tr. 221-224, 263-

264). After the switch to commercial power, only mechanics were allowed to start up the plant 

32 FMSHRC Page 190 
in the morning. (Tr. 223-224). Keith Gilbert and Samuel Paioletti, who is a project manager, 

could also start the plant. Subsequently, Gonzales was trained to restart the plant when it had 

been shut down during the day, but she still had to get a mechanic to certify that the plant was 

ready for startup. (Tr. 224, 251 ). Gonzales was fully trained on the company's lockout/tagout 

procedures and she was aware that she was never permitted to remove someone else's lock. (Tr. 

243, 247). 

Dale Gilbert testified that at about 2:00 p.m. on June 13, 2007, he was notified that there 

had been a power bump at the crusher. (Tr. 227). When he arrived at the plant, Gonzales and 

another employee were shoveling material from the tail pulleys and Keith Gilbert and Taylor 

were attempting to diagnose the problem. There were several locks on the main breaker. Keith 

Gilbert and Taylor determined that the breaker in the power box for the crusher had melted and 

that new breaker parts were required to fix it. (Tr. 229, 262). Dale Gilbert testified that as he 

was leaving, he noticed that Gonzales was in the electrical trailer with Keith Gilbert and Taylor. 

(Tr. 230). At a meeting at the end of the shift, it was decided that the plant would be down on 

June 14 and, until the problem was fixed, the crusher crew would do other work for Gilbert 

Development. (Tr. 232-233). A meeting was scheduled for 7:00 a.m; on June 14 to discuss this 

work. Dale Gilbert noticed that, at the end of the day, the door for the power box for the crusher 

was open and the breaker face plate was tied off and hanging outside of the box. (Tr. 243). 

Dale Gilbert was at the pit when the accident occurred. When he was summoned up to 

the crusher, the electrical trailer was on fire and Gonzales had bums on her face and anns. (Tr. 

235). He instructed an employee to take Gonzales to the hospital. Gonzales was treated and then 

discharged from the hospital that afternoon. She returned to the Gilbert Development office 

sometime after 2:00 p.m. on June 14. (Tr. 237). Dale Gilbert testified that she was very 

apologetic and asked if she was going to be fired. (Tr. 238-239). 

Dale Gilbert testified that the company conducted an internal investigation of the 

accident. The company determined that Gonzales had removed Keith Gilbert's lock from the 

main breaker, turned on the main power and dislodged the plate and mechanical cable that was 

outside the power box for the crusher. When she dislodged the plate and cable, the plate swung 

between the right side of the box and the power legs which caused the plate to hit the hot bar. 

(Tr. 241, 243, 257). An arc flash occurred as a result. He said that the door to the power box 

must have been open when these events occurred because there was no damage to the door or 

door latch. (Tr. 244). 

Dale Gilbert testified that a tag is not placed on the lock at the main breaker when the 

plant is shut down at night. (Tr. 250, 255). Rather, the "GDC lock" was used as a lockout 

device. (Ex. R-6). If, on the other hand, maintenance was to be performed or the plant was not 

to be started the next morning, then an individual mechanic would place a lock with his name on 

it along with a danger tag at the main breaker. (Tr. 250-252; Ex. R-5). Each employee, 

including Gonzales, had his or her own lock and key. (Tr. 264-265). All of the locks were kept 

on a pegboard at the trailer. If the mechanic fixed the problem during the night, he would 

32 FMSHRC Page 191 
remove his lock at the main breaker and replace it with the "GDC" lock to indicate that the plant 

could be started. (Tr. 255). 

E. Samuel Paioletti 

Paioletti is a project manager for Gilbert Development. He normally works in the office, 

but he also helps as a supervisor some of the time. He testified that the company has had the 

same lockout/tagout policy since the plant opened. (Tr. 285). Each employee had his own 

personalized lock and key which, when not in use, was hung on the pegboard in the trailer. (Tr. 

280-282, 293). .When that employee needed to perform maintenance or otherwise shut down the 

plant, he placed his own lock on the main breaker to lock out the power. (Tr. 281, 283, 31 7J. If 

more than one person were working on the plant, multiple locks would be used. The reason the 

keys were kept on the pegboard was to prevent employees from accidently losing them or taking 

them home. Employees were trained to only remove their own lock from the main breaker and to 

leave other locks alone. (Tr. 318-319, 294). He admitted that the company had not put this 

policy in writing. (Tr. 316-317). Paioletti testified that, prior to this accident, MSHA inspectors 

had approved the company's lockout/tagout pr<;>cedure after reviewing the procedure and asking 

employees to perform an actual lockout/tagout. (Tr. 294, 296). 

Paioletti was an MSHA-approved trainer. He testified that employees, including 

Gonzales, were trained on the proper lockout/tagout procedure. (Tr. 277, 279-280, 286"'.287, 

290). He also testified that a meeting was held to discuss the transition from generator power to 

commercial line power. Employees were instructed that, once the switch to line power was 

made, only management employees were authorized to start up the plant in the morning. (Tr. 

291-292). 

The ~'GDC" lock was a general company lock that was to be used at night to keep the 

plant from being energized by outsiders. (Tr. 281, 283-284). The company started using this 

lock after it switched from generator power to commercial line power. (Tr. 284). This lock was 

never used with a tag and it was never used where maintenance or repairs were being performed. 

The presence of the "GDC" lock at the main breaker indicated that the plant was not under 

repair, but if another lock were present, it was a signal that the plant was locked out and should 

not be started until that lock was removed. (Tr. 285). 

Paioletti testified that he was working at the office on June 13 and 14, 2007. (Tr. 300-

301). He said that the plant had not been operating since the afternoon of June 13 and that 

material was on the conveyor belts. (Tr. 302-303). This material remained on the belts until the 

plant was operated again about a week after the accident. (Tr. 306-307). 

F. Frank Taylor 

Taylor is a former Gilbert Development employee. When he worked for the company he 

was the head mechanic. {Tr. 323-324). He worked directly under Keith Gilbert. He testified 

32 FMSHRC Page 192 
that training sessions were held when the switch was made to commercial line power and 

Gonzales was present for these meetings. (Tr. 330-331; Ex. R~2). It was explained that 

whenever someone is performing maintenance, he must install his own lock at the main breaker 

and that only he is permitted to remove this lock. (Tr. 330-331, 327-328, 358). Because 

company policy prohibited anyone from touching another person's lock, Taylor believes that it 

did not matter that all of the keys were kept on the pegboard. (Tr. 358). The "GDC" lock was 

not part of this lockout program and was used to lock the main breaker at night to keep vandals 

from starting the plant. {Tr. 332, 363). 

Taylor testified that he normally started the plant each morning. {Tr. 328). Keith Gilbert 

or Paioletti would start it when he was not there. Taylor said that he usually arrived at work 

about an hour before everyone else and he would conduct the pre-shift examination. (Tr. 333). 

Taylor testified that Gonzales was never responsible for these walkthrough inspections. Id. He 

could not recall anytime when Gonzales arrived at work before he did or when she started the 

plant before he inspected it to make sure that it was safe to operate. Id. Gonzales would 

sometimes start the plant in the middle of the day if it had been shut down, but she never started 

it by herself in the morning. {Tr. 334). If everything was fine during his inspection, he would 

remove the "GDC" lock at the main breaker and start the plant. (Tr. 328-329). He would then 

tum on the power boxes in the trailer. If, however, he saw an employee's lock at the main 

breaker, he would not remove it or attempt to turn on the power. (Tr. 335). A personal lock and· 

danger tag at the main breaker indicated that there was a problem with the plant. (Tr. 332, 334). 

He would then go and find that person or contact Keith Gilbert to see what the problem was. {Tr. 

335). Even if there was a tag with the "GDC" lock, he would find out what was going on before 

he attempted to start the plant. (Tr. 336). 

Taylor testified that on June 13, the plant experienced a problem with its electrical system 

that prevented the breaker in the second power box from resetting. {Tr. 338-339). Taylor then 

put his lock on the main breaker and Keith Gilbert put his lock on as well. They both then 

attempted to troubleshoot the problem. The plant, belts, and screens were all loaded with 

material. {Tr. 348). He said that Gonzales and another employee also put their locks on the main 

breaker and began shoveling the tail pulleys. (Tr. 340). Taylor then began to troubleshoot the 

problem in the second power box by removing the breaker plate and detaching the mechanism 

that turns on the breaker via a mechanical cable attached to the handle outside the box. Once 

detached, the cable with the attached switching mechanism hung down into the power wires that 

entered the box from the bottom. (Tr. 340). As a consequence, Taylor said that he pulled the 

breaker plate, cable, and switch mechanism out of the power box and wedged them into a ledge 

outside the box so that they were secure and would not curl back into the box. (Tr. 340, 348, 

358-359). Taylor testified that about 3:00 p.m., Keith Gilbert told Gonzales and another 

employee to remove their locks and he advised them that he did not think that the plant would be 

running the next day so they should report to an area near the shop the following morning. {Tr. 

341-342). Keith Gilbert told Taylor that he was going to get a certified electrician to come to the 

mine the next day to repair the power box. (Tr. 343). Taylor testified that he took his tools and 

placed them in the bottom of the power box and he left the door to the box open so it was 

32 FMSHRC Page 193 
obvious that the box was being worked on. (Tr. 347). Taylor then removed his lock from the 

main breaker when he left for the day, but Keith Gilbert's lock and tag remained. (Tr. 343.,344, 

349). 

Taylor testified that he arrived at the pit at about 6:00 a.m. on June 14 and began starting 

the mobile equipment before heading to the meeting place near the shop. (Tr. 349, 356). 

Gonzales was not present when he arrived at the pit and she was not at the meeting near the shop. 

(Tr. 350). About 15 to 20 minutes after the meeting ended, a water truck drove off an incline. 

(Tr. 351-352). Shortly after he helped right the truck, Dale Gilbert informed them that there was 

a fire at the crusher plant. (Tr. 352-353). 

G. Keith Gilbert 

Keith Gilbert is a Vice-President of Gilbert Development and is in charge of day-to-day 

operations at the pit. He testified that the company uses two types oflocks to lock out the main 

breaker: (1) the "GDC" lock and (2) personalized locks for each employee. The "GDC" lockis 

used to lock out the main breaker at the end of the day when there are no problems at the plant. 

(Tr. 376). He said that Gonzales was never instructed to use a tag when attaching the "GDC" 

lock at the end of the day. (Tr. 377). Keith Gilbert's testimony on the use of the different types 

oflocks is the same as the company's other witnesses. (Tr. 372-378). He said that if an 

employee saw a danger tag on the lock for the main breaker in the morning, he would know that 

the plant was not operational and would call the person whose lock was present to determine 

what to do. (Tr. 377, 428-429). Gonzales had her own lock to use. (Tr. 373). 

Keith Gilbert also testified that only he, Taylor, and Paioletti were authorized to conduct 

the morning walkthrough and examination of the plant. (Tr. 380). Gonzales was never given 

this responsibility even when power was obtained from a generator. (Tr. 382). She would 

sometimes start ihe plant after accompanying Keith Gilbert, Taylor, or Paioletti during the 

walkthrough, but at no time did she start the plant when none of them were around. (Tr. 381-

382). The main breaker was not locked out at night when the plant was powered by a portable 

generator. (Tr. 378-379). When the change to commercial power occurred, everyone attended a 

meeting about the change, the lockout/tagout procedures, and the procedure for starting the plant 

each morning. (Tr. 3 79, 431; Ex. R-2). Gonzales was never trained to independently start the 

plant in the morning. (Tr. 383). 

Keith Gilbert testified that he was at another work site on June 13 when he heard that 

there had been a power bump at the crusher and the plant had shut down. Taylor's lock was on 

the main breaker when he arrived at the plant and he added his lock and tag. (Tr. 388-389). 

When the problem could not be immediately fixed, he ordered Gonzales and another employee to 

put their locks on the main breaker. (Tr. 388-389). He and Taylor began to troubleshoot the 

problem. Keith Gilbert's description of the removal of the breaker plate and mechanical cable 

conforms to Taylor's. (Tr. 390). They determined that the breaker would need to be replaced. 

(Tr. 391 ) .. Keith Gilbert testified that he told Gonzales to remove her lock and meet at the shop 

32 FMSHRC Page 194 
the next morning. (Tr. 391-392). He said that Gonzales appeared to be attentive. Gonzales then 

left for the day. (Tr. 393). Keith Gilbert left his lock and warning tag on the main breaker and 

hung his key on the pegboard in the trailer. {Tr. 395, 397). Keith Gilbert testified that when he 

left for the day, there were tools lying in the bottom of the second power box, the breaker was 

tom apart, and the door to the power box was wide open. (Tr. 395-397), 

Keith Gilbert testified that he arrived at work at 5:00 a.m. on June 14. He met with his 

managers and discussed the day's work. The mobile equipment used in the pit was started at 

about 6:00 a.m. and crew began to arrive at 6:30 am. (Tr. 400).2 The managers met with the 

crew before 7:00 a.m. to discuss the day's work, but Gonzales was not present. (Tr. 401). While 

attempting to right a water truck, he received a call that there had been an accident at the crusher 

and that Gonzales was injured. (Tr. 403-405). Keith Gilbert wondered what had happened 

because he had locked out the main breakers with his own lock. (Tr. 405). Dale Gilbert 

proceeded to the crusher to find out what had happened. 

Keith Gilbert also testified that the company conducted an internal investigation into the 

accident. The investigation revealed that on the morning of June 14, Gonzales removed Keith 

Gilbert's lock and tag from the main breakers and hung them on the pegboard. (Tr. 415). She 

switched on the main breaker and then began turning on the power boxes inside the trailer. 

When she arrived at the second power box, she took the cable and plate that were outside the box 

and threw them into the box. (Tr. 415). The cable touched the two power legs at the bottom of 

the box. A flash occurred, which resulted in an explosion and subsequent fire. (Tr. 415). One of 

the reasons that the company reached the conclusion that the door was open when the flash 

occurred was because neither the door nor the doors' s latch or hinges were charred or damaged 

by the flash. (Tr. 415-416). 

Keith Gilbert said that, during the month prior to the accident, Gonzales had been arriving 

late to work and leaving unexpectedly. (Tr. 401). Gilbert Construction's managers verbally 

warned her several times about her attendance problems. (Tr. 401, 432-433). 

After the citation was issued, the only change that was made to the company's 

lockout/tagout procedures was that keys for the individual locks were kept in that person's 

pocket rather than on the pegboard when the main breaker was locked out. (Tr. 412). 

H. Tina Shumway 

The Secretary called Tina Shumway as a rebuttal witness. Shumway began working for 

Gilbert Development in August 2006, but started working for Rinker Material Corporation in 

December of that year. Rinker operated the scale house at the same location. {Tr. 442-443). 

Shumway worked at this scale house, which was about 200 yards from where Gonzales worked 

at the tower for the crusher. Shumway testified that she normally arrived at the scale house at 

2 Even though the plant was down for repairs, work could still be performed in the pit. 

32 FMSHRC Page 195 
about 6:45 a.m. She testified that Gonzales was usually already at work when she arrived, but 

that she never noticed any management people at the facility at that time. (Tr. 447-448, 460). 

Shumway testified that she could not see the crushing plant but she could hear the radio 

communications. She admitted that her knowledge of Gonzales' duties is based solely on her 

conversations with Gonzales and what she heard over the radio. (Tr. 46 l ). 

Shumway testified that she arrived at work on June 13, 2007, at about 6:45 a.m. 

Everything seemed to be normal that day and she did not see any maintenance or repair work 

being performed. (Tr. 449) .. Shumway also arrived at work at 6:45 a.m. on June 14. Nothing 

seemed to be unusual and the crusher did not appear to be loaded with material. (Tr. 450). At 

some point after she arrived, she heard over the radio that there was a fire at Gilbert 

Development. Id. She noticed Gonzales walking with her arms out in front of her. Shumway 

testified that she grabbed a bucket of water and went to help Gonzales, who was hysterical. (Tr. 

451). Gonzales had bums on her arms and face and bum marks on the bottoms of her shoes. 

Shumway testified that Gonzales told her that the second power box blew up when she tried to 

tum it on. (Tr. 451-452).3 

ID. SUMMARY OF THE PARTIES' ARGUl\'lENTS 

A. Secretary of Labor 

The Secretary argues that Gilbert Development violated section 56.12016, or in the 

alternative section 56.12017, when it failed to properly lock out and tag out the plant while 

mechanical work was being conducted on an electrical power box. Specifically, the Secretary 

cites Gilbert Development's failure to secure the key to the lock that was used at the main 

breaker as well as the failure to sign and date the tag that was with the lock. (Tr. 473-475). 

The Secretary argues that Gonzales, a longstanding employee with no disciplinary record, 

was acting as she had been trained when she removed the lock and tag from the main breaker and 

started the plant the morning of the accident. (Tr. 469-470, 472). Gonzales was not aware, and 

there was nothing to indicate, that there was anything wrong with the plant that morning. (Tr. 

469-470). A "GDC lock" did not exist as evidenced by the fact that it was not on the pegboard 

on the day of the accident. (Tt. 470-471). Gilbert Development did not offer any evidence to 

dispute this fact and Gonzales testified that the only key on the pegboard that morning was the 

key to the "K" lock. Id. Had Gilbert Development adhered to a proper lockout/tagout practice, 

the accident would never have occurred. (Tr. 473). 

The Secretary also argues that the violation should be upheld as S&S given that electrical 

accidents are one of the leading causes of serious injuries and.fatalities. If the violative condition 

3 Counsel for Gilbert Development moved to have Ms. Shumway' s testimony stricken 

from the record because she was not listed as a potential witness in the Secretary's list of 

witnesses. (Tr. 482-483). The motion is denied because she was called as a rebuttal witness. 

32 FMSHRC Page 196 
had not been abated, there was a reasonable likelihood that it would have contributed to an injury 

of a reasonably serious nature. (Tr. 478). Further, the Secretary argues that the violation was a 

result of high negligence on the part of Gilbert Development given that a high level manager, 

who was involved in the training of the lockout procedures, was the individual who· failed to 

follow the required procedure. (Tr. 478-479). The violation was properly characterized as an 

unwarrantable failure because management demonstrated a serious lack ofreasonable care by not 

securing the key to the IOck that had been placed on the main breaker. (Tr. 479-480). 

B. Gilbert Development Corporation 

Gilbert Development argues that the citation should be vacated because the power at the 

main breaker was properly locked out and tagged out with Keith Gilbert's lock and a danger tag. 

Gonzales had been advised that the No. 2 power box was not in working order and that the plant 

would not be in operation on the morning of June 14. {Tr. 484-485, 487-488). Further, the 

citation was improperly issued under section 56.12016 and should have been issued under 

section 56.12017, which does not require a signature on a tag. (Tr. 483-484). In either case, the 

name written on the lock that was used to lock out the main power breaker served the same 

purpose that a signature on a tag would have served. Gonzales' statement that a tag is always 

present on the lock, even when there is no problem, is simply not true. (Tr. 485). The fact that 

the key was not secured does not make any difference because company policy dictates that no 

employee is permitted to touch another person's lock and, further, MSHA testified that the use of 

a common pegboard was not a problem. (Tr. 489-490). Gilbert Development also argues that 

the testimony of the Secretary's rebuttal witness, should be stricken because the witness was not 

disclosed prior to the hearing and her testimony was neither relevant nor credible. (Tr. 482-483). 

Gilbert Development argues that, should a violation be established, it should not be 

considered to oe S&S because the Secretary did not establish that it is reasonably likely that ( 1) 

an employee would ignore their training, (2) that an employee would remove someone else's lock 

with a tag attached to it, and (3) that an employee would, as a consequence, be seriously injured. 

(Tr. 493-496). In addition, the alleged violation was not the result of high negligence because 

there were a number of mitigating factors involved, including the fact that Gonzales had been 

properly trained by the company, she was aware of the problem at the plant, and she failed to 

attend the scheduled meeting on the morning of the accident. {Tr. 497-499). Further, the alleged 

violation was not the result of an unwarrantable failure because Gilbert Development 

immediately eliminated the violative condition by removing the pegboard that MSHA had 

previously approved and requiring all employees to secure keys in their pocket. (Tr. 503-504). 

Additionally, the gravity should be adjusted from fatal to lost workdays to reflect what actually 

occurred. Finally, the proposed penalty should be reduced. (Tr. 506-507). 

32 FMSHRC Page 197 
IV. DISCUSSION WITH FINDINGS OF FACT 

AND CONCLUSIONS OF LAW 

A. The Accident. 

It is important to understand that my responsibility in this case is to determine whether 

Gilbert Development violated the Secretary's safety standard as alleged by the inspector. It is not 

my primary obligation to determine the cause of the accident. The accident has a bearing on the 

merits of this case, however, especially when considering the gravity of any violation and the 

negligence of Gilbert Development. 

I have carefully reviewed the testimony, the exhibits, and the parties' arguments. Based 

on my careful examination of the record and weighing of the evidence, I conclude that the 

accident did not occur as described by Ms. Gonzales. The physical evidence does not 

corroborate her testimony. She testified that the door to the second power box was closed and 

that when she pulled down the handle to close the circuit breaker in the box, her hand became 

stuck to the handle, her arm started shaking, and she felt something surge through her. Gonzales 

testified that there was an explosive blast that blew open the door of the box and threw her across 

the trailer. This rendition of the events is inconsistent with the physical evidence. There was no 

damage to the door for the power box or to the hinges or the latching mechanism for the door. 

Two holes were blasted out of the bottom right side of the box and the adjacent area on the inside 

of the box was charred black. Yet, the inside of the door showed little or no evidence of an 

electrical blast. This fact is evidenced by the photographs presented by the Secretary as well as 

the testimony of company witnesses. (Tr. 414-415; Ex. G-4). Gilbert Development brought the 

power box to the parking lot of the courthouse. Upon examining the box, I determined that the 

frame, body, and door for the box had not been cleaned or altered since the accident. The 

markings on the inside of the door were the same as shown on the photographs and were entirely 

consistent with the company's position that the electrical short and blast occurred while the door 

to the box was open. 

I also credit the key testimony of the company's witnesses, as summarized above, with 

respect to the events that occurred on June 13 and 14, 2007. I find that the reliable evidence 

establishes that, after the plant ·started receiving its power from the local utility, it was not the 

responsibility of Gonzales to start the plant each morning. Although there may have been days 

when a member of management told her to start the plant after the walkthrough examination had 

been completed, she had been instructed to no longer independently start the plant in the morning 

after the generator was no longer the power source. I also find that the preponderance of the 

reliable evidence establishes that the door to the power box at issue was open when Gonzales 

entered the electrical trailer on June 14. Something that she did that morning caused live 

electrical components to short out, which caused the accident. I find that she had been told to 

report to the shop that morning, rather than to the plant, and that she had been advised that the 

plant was down for repairs when she left on June 13. Since the plant began receiving power from 

the local utility on April 23, 2007, the plant was locked out at the main breaker at night to 

32 FMSHRC Page 198 
prevent intruders from energizing the circuits. I find that the lock that was normally used was 

marked "GDC" rather than with "K." In addition, I find that a danger tag was not normally 

attached to the lock when the plant was shut down for the evening. If the plant was under repair 

at the end of the shift, a lock other than the "GDC" lock was used and a danger tag was attached. 

The Secretary based her entire case on the account of Ms. Gonzales as to the lockout 

procedures used and the events that occurred on June 13-14. For example, the Secretary 

contends that there never was a "GDC" lock provided at the plant. Ms. Gonzales testified that 

she had never seen a lock labeled "GDC" at the plant. (Tr. 131-132). Based on her statements, · 

the Secretary argued that there was nothing out of the ordinary when Gonzales tried to start the 

plant on the morning of June 14 because the ''K" lock was often used to lock out the plant at 

night. (Tr. 470-471). 

Gonzales also testified that she arrived at the plant at about 6:00 a.m. on June 14. (Tr. 

119-120, 134). She said that after she walked around the plant for a short time to make sure that 

no employees were doing any work, she put her purse in the tower and then attempted to start the 

plant. She saw that men were working on getting the water truck upright when she was in the 

tower. Id. The evidence establishes, however, that men did not start working on the water truck 

until some time after the close of the crew meeting at 7:00 a.m. that day. (Tr. 233, 350-352, 356, 

403-404). Gonzales was injured sometime after that at about 7:15 a.m. on June 14. Under this 

chronology, it is clear that she could not have arrived at the plant as early as 6:00 a.m. Company 

witnesses testified that, starting about a month before the accident, Gonzales had often arrived 

late for work and she had been warned about her tardiness. (Tr. 300, 401-402, 406-407). I credit 

the testimony presented by the company where there is a disparity between its evidence and the 

testimony of Gonzales. 

B. ApJ)licable Safety Standard. 

The issue remains whether Gilbert Development violated the safety standard cited by the 

inspector. At the hearing, the Secretary sought to allege, in the alternative, a violation of 

56.12017.4 (Tr. 476-477). Inspector Okuniewicz testified that he cited section 56.12016 because 

"mechanical work" was being perfoniled. (Tr. 34-35, 36-37). "They were troubleshooting inside 

4 Section 56.12017, entitled "Work on power circuits," provides: 

Power circuits shall be deenergized before work is done on such 

circuits unless hot-line tools are used. Suitable warning signs shall 

be posted by the individuals who are to do the work. Switches 

shall be locked out or other measures taken which shall prevent the 

power circuit from being energized without the knowledge of the 

individuals working on them. Such locks, signs, or preventive 

devices shall be removed only by the person who installed them or 

by authorized personnel. 

32 FMSHRC Page 199 
the box to possibly replace either a circuit breaker or a main switch." Id. He said that section 

56.12017; on the other hand, is for "work on electrical power systems." (Tr. 37). Inspector 

Barrington testified that the company was not "so much at the time troubleshooting the circuitry 

(because] the power was removed and they were actually working on mechanical applications for 

a power circuit." (Tr. 191). He envisions section 56.12017 as applying to ''troubleshooting high 

voltage circuitry or exten~ing high voltage circuitry off a ... power pole, but also 

troubleshooting low voltage circuitry." (Tr. 191-192). He also testified that 56.12017 applies to 

"working on energized components until you find the problem and then you use lockout/tagout 

that gives you that option more than anything else." (Tr. 192). Barrington admitted that he 

would have issued the citation under section 56.12017 because he is an electrician. (Tr. 193). 

There are two significant differences between these safety standards. First, section 

56. 12016 requires that warning notices be posted and signed by the individuals who are to do the 

work while section 56.12017 provides that warning signs shall be posted by the individuals who 

are to do the work. Section 56.12016 applies to work on "electrically powered equipment" while 

section 56.1201 7 applies to work on "power circuits." Based on the plain meaning of the 

language, I hold that section 56,12017 applies to this situation. A circuit breaker is not 

"electrically powered equipment." A circuit breaker is simply a "switch that automatically 

interrupts an electric circuit under an infrequent abnormal condition." (Webster's New 

Collegiate Dictionary 200 (1979)). Indeed, the circuit breaker at issue was a switch in the 

electrical circuit providing power to the crusher. If the crusher were being repaired, section 

56.12016 would apply, but here the power circuit for the crusher was under repair. While it is 

true that replacing a circuit breaker requires some mechanical work, the replacement of the 

circuit breaker repairs the power circuit rather than electrically-powered equipment. As a 

consequence, the fact that the warning tag attached to the lock at the main breaker was not signed 

is irrelevant because it is not required under section 56.12017. 

I grant the Secretary's motion to charge Gilbert Development with a violation of section 

56.12017, in the alternative. The two safety standards are virtually identical except as noted 

above. The evidence presented by Gilbert Development was equally applicable to either 

standard. Although Gilbert Development objected to the motion to amend, it recognized that the 

court had the authority to grant the motion. {Tr. 483-484). Such amendments are permitted 

under the Federal Rules of Civil Procedure. Fed. R. Civ. P. 8(d)(2), 15(b). I have granted similar 

motions to amend in the past. CDK Contracting Company, 23 FMSHRC 783 (July 2001) (AU). 

In that case, the motion was filed by the Secretary prior to the hearing so I determined that the 

respondent was not prejudiced by the amendment to the Secretary's pleading. In this case, 

although the motion was made during the hearing, Gilbert Development was not prejudiced 

because it had been able "to discern what conditions required abatement" and the evidence it 

presented at the hearing was equally relevant to both safety standards. Empire Iron Mining 

Partnership, 29 FMSHRC 999, 1003-04 (Dec. 2007) (quoting Cyprus Tonopah Mining Corp., 15 

FMSHRC 367, 379 (Mar. 1993)). 

32 FMSHRC Page 200 
C. Fact of Violation. 

It is clear that the power circuit had been deenergized before the work was performed on 

the power box for the crusher. In addition, several locks were placed on the main breaker during 

the afternoon of June 13. When it was determined that the condition could not be corrected 

before the end of the shift, all of the locks were removed except the "K" lock and a danger tag 

was placed on that lock. · As a consequence, the subject power circuit could not be energized 

without removing the lock. 

Nevertheless, I find that Gilbert Development violated section 56.12017. Because the 

key to the "K" lock was hung on the pegboard in the electrical trailer, the company's lockout 

procedure did not "prevent the power circuit from being energized without the knowledge of the 

individuals working" on that circuit. Although the work had been performed by Taylor and 

Keith Gilbert, Gonzales was able to easily remove the single lock and energize the circuit 

without their knowledge. The company had a procedure in place, that it communicated orally to 

its employees, that only the person doing the work was to remove a lock on a power circuit. That 

procedure was easily circumvented, however. Whether the person who installs the lock must 

keep the key on his person at all times is not directly at issue under the facts in this case. What is 

clear in this case is that, under Gilbert Development's lockout/tagout procedures, the keys to the 

locks were easily accessible to any and all employees. Such procedures are not effective to 

~·prevent the power circuit from being energized without the knowledge of the individuals 

working on them." 

Gilbert Development argues that in many industrial applications, plastic tabs or locks can 

be used in lieu of metal locks. (Tr. 434, 506). It contends that anyone could remove such 

devices by twisting them off. It is not clear that MSHA would approve such devices and, in any 

event, it takes more of an affirmative act to remove them. In this case, the lock that was used 

was marked in an ambiguous manner. Ms. Gonzales testified that she thought that the "K" on 

the lock stood for Keith or Katy. (Tr. 114, 130-131 ). I believe that when she arrived at the plant 

that day, she did not see anyone else around and was a little confused. There was testimony that 

she was experiencing personal problems at that time. Her attendance at work had started to slide. 

She knew she was late for work that day and believed that it would be a good idea to energize the 

plant. She had forgotten that everyone was to meet at the shop that morning. When she saw the 

"K" lock on the main breaker, she opened it believing that she had the authority to do so. The 

lockout/tagout requirement is designed to protect miners from these kinds of careless mistakes. 

If the key for the "K" lock had not been placed on the pegboard, Gonzales would not have been 

able to energize the power boxes in the electrical trailer. In addition, if the tag had been marked 

with Keith Gilbert's name or it had listed the work to be performed, it is doubtful that Gonzales 

would have removed the lock. To abate the citation, Gilbert Development stopped keeping the 

keys on the pegboard. 

32 FMSHRC Page 201 
D. Sienificant and Substantial. 

An S&S violation is described in section 104( d)(l) of the Act as a violation "of such 

nature as could significantly and substantially contribute to the cause and effect of a coal or other 

mine safety or health hazard." A violation is properly designated S&S "if, based upon the 

particular facts surrounding that violation, there exists a reasonable likelihood that the hazard 

contributed to will result in an injury or illness of a reasonably serious nature." Cement Div., 

Nat'/ Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). 

The Commission has explained that: 

In order to establish that a violation of a mandatory safety 

standard is significant and substantial under National Gypsum, the 

Secretary of Labor must prove: (1) the underlying violation of a 

mandatory safety standard; (2) a discrete safety hazard - that is, a 

measure of danger to safety- contributed to by the violation; (3) a 

reasonable likelihood that the hazard contributed to will result in 

an injury; and (4) a reasonable likelihood that the injury in question 

will be of a reasonably serious nature. 

Mathies Coal Co., 6 FMSHRC 1, 3-4 (Jan. 1984) (footnote omitted); see also, Buck Creek Coal, 

Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Secretary of Labor, 861 

F.2d 99, 103-04 (5th Cir. 1988), affg Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987) 

(approving Mathies criteria). 

In U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985), the Commission 

provided additional guidance: 

We have explained further that the third element of the Mathies 

formula "requires that the Secretary establish a reasonable 

likelihood that the hazard contributed to will result in an event in 

which there is an injury." U.S. Steel Mining Co., Inc., 6 FMSHRC 

1834, 1836 (August 1984). We have emphasized that, in 

accordance with the language of section 104( d)( 1 ), it is the 

contribution of a violation to the cause and effect of a hazard that 

must be significant and substantial. U.S. Steel Mining Co., Inc., 6 

FMSHRC 1866, 1868 (August 1984); U.S. Steel Mining Co., Inc., 

6 FMSHRC 1573, 1574-75(July1984). 

This evaluation is made in terms of"continued normal mining operations." U.S. Steel, 

6 FMSHRC at 1574. The question of whether a particular violation is S&S must be based on the 

particular facts surrounding the violation. Texasgulf, Inc., 10 FMSHRC 498 (Apr. 1988); 

Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987). 

32 FMSHRC Page 202 
As stated above, the Secretary argues that the violation was S&S because, if the violative 

condition had not been abated, there was a reasonable likelihood that the cited condition would 

have contributed to an injury of a reasonably serious nature assuming continued mining 

operations. Gilbert Development maintains that the violation was not S&S because the Secretary 

did not establish that it was reasonably likely that an employee would ignore the training, remove 

someone else's lock with a danger tag attached, and that an employee would be seriously injured 

as a result. 

I find that the Secretary established 311 S&S violation. The safety standard is designed to 

prevent someone, as a result of ordinary human carelessness, from energizing a circuit when it is 

under repair. Even a skilled employee may suffer a lapse of attentiveness, either from fatigue or 

distractions, despite a comprehensive training program. I find that it was reasonably likely that, 

assuming continued mining operations, someone other than the person doing repair work would 

remove a lock from the main breaker and energize the circuits. I reach this conclusion taking 

into consideration the fact that (1) the key to the lock in question was kept on the nearby 

pegboard making it available to any employee, and (2) the lock was ambiguously marked with 

the letter "K" as the only identifier. Although there was a danger tag attached to the lock, it was 

not marked to indicate the work to be performed or who placed it there. Since the main breaker 

is only locked out during working hours if repair work is being performed, it was reasonably 

likely that someone would be seriously injured if the lock were removed and the main breaker 

energized by someone other than the miners doing the work. 

E. Unwarrantable Failure and Nqlii:ence. 

In Lopke Quarries, Inc., 23 FMSHRC 705, 711 (July 2001 ), the Commission restated the 

law applicable to determining whether a violation is the result of an unwarrantable failure: 

The unwarrantable failure terminology is taken from 

section 104(d) of the Act, 30 U.S.C. § 814(d), and refers to more 

serious conduct by an operator in connection with a violation. In 

Emery Mining Corp., 9 FMSHRC 1997 (Dec. 1987), the 

Commission determined that unwarrantable failure is aggravated 

conduct constituting more than ordinary negligence. Id. at 200 I. 

Unwarrantable failure is characterized by such conduct as "reckless 

disregard," "intentional misconduct," "indifference," or a "serious 

lack ofreasonable care." Id. at 2003-04; Rochester & Pittsburgh 

Coal Co., 13 FMSHRC 189, 194 (Feb. 1991) C'R&P"); see also 

Buck Creek [Coal, Inc. v. FMSHRC, 52 F.3d 133, 136 (7th Cir. 

1995)] (approving Commission's unwarrantable failure test). 

Whether conduct is "aggravated" in the context of an 

unwarrantable failure analysis is determined by looking at all the 

facts and circumstances of each case to see if any aggravating 

32 FMSHRC Page 203 
factors exist, such as the length of time that the violation has 

existed, the extent of the violative condition, whether the operator 

has been placed on notice that greater efforts are necessary for 

compliance, the operator's efforts in abating the violative 

condition, whether the violation is obvious or poses a high degree 

of danger, and the operator's knowledge of the existence of the 

violation. See Consolidation Coal Co., 22 FMSHRC 340, 353 

(Mar. 2000) ... ; Cyprus Emerald Res. Corp., 20 FMSHRC 790, 

813 (Aug. 1998), rev'd on other grounds, 195 F.3d 42 (D.C. Cir. 

1999); Midwest Material Co., 19 FMSHRC 30, 34 (Jan. 1997); 

Mullins & Sons Coal Co., 16 FMSHRC 192, 195 (Feb. 1994); 

Peabody Coal Co., 14 FMSHRC 1258, 1261 (Aug. 1992); 

BethEnergy Mines, Inc., 14 FMSHRC 1232, 1243-44 (Aug. 1992); 

Quin/and Coals, Inc., 10 FMSHRC 705, 709 (June 1988). All of 

the relevant facts and circumstances of each case must be 

examined to determine if an actor's conduct is aggravated, or 

whether mitigating circumstances exist. Consol, 22 FMSHRC at 

353. Because supervisors are held to a high standard of care, 

another important factor supporting an unwarrantable failure 

determination is the involvement of a supervisor in the violation. 

REB Enters., Inc., 20 FMSHRC 203, 225 (Mar. 1998). 

I find that the Secretary did not establish that the violation was the result of Gilbert 

Development's unwarrantable failure to comply with the safety standard. Its conduct was not 

aggravated. It had been using the same lockout/tagout system for some time. Inspector 

Barrington, an electrical specialist with MSHA, testified that, during a recent inspection of the 

plant, he examined and approved the company's lockout/tagout policies, including the use of the 

pegboard. (Tr. 207- 208). The company had never been issued a citation for violating the 

Secretary's lockout/tagout standards. Gilbert Development had good reason to believe that its 

lockout/tagout system complied with the Secretary's safety standards and that it was a safe, 

foolproof system. It had an extensive training program and genuinely believed that its employees 

understood these policies. But for the unusual chain of events that occurred on June 13 and 14, 

2007, it is highly likely that Gilbert Development would have continued to use the same 

lockout/tagout system without being cited by MSHA. The company was not on notice that 

greater efforts were necessary to comply with the safety standard, the violation was not obvious, 

and the company did not realize that it was violating any safety standard. The company's 

conduct did not amount to "reckless disregard," "intentional misconduct," "indifference," or even 

a "serious lack of reasonable care." 

For the same reasons stated above, I also find that the company's negligence was low to 

moderate. As stated above, Gilbert Development had been using its lockout/tagout system for 

some time without incident. It reasonably relied on the fact that fuspector Barrington did not find 

any problems with its lockout/tagout system during his inspection of the plant prior to the 

32 FMSHRC Page 204 
accident involved in this case. Inspector Barrington is an electrical specialist with MSHA and is 

certified to do electrical work by the State of Utah. (Tr. 153). Gilbert Development and its 

managers genuinely believed that it was in compliance with MSHA's lockout/tagout standards. 

Potential deficiencies in its lockout procedures were not revealed until the accident. 

V. APPROPRIATE CIVIL PENALTY 

Section 11 O(i) of the Mine Act sets forth the criteria to be considered in determining an 

appropriate civil penalty. The record shows that Gilbert Development had seven paid violations 

at this facility during the two years preceding June 19, 2007. (Ex. G-8). None of these violations 

were S&S. The mine is now permanently closed but it worked about 19,000 employee-hours in 

2007 and 2,500 employee-hours in 2008 making it a relatively small operation. The violation 

was abated in good faith. No evidence was presented to show that the penalty assessed in this 

decision will'have an adverse effect on Gilbert Development's ability to continue in business. 

The violation was serious and Gilbert Development's negligence was low. Based on the penalty 

criteria, I find that a penalty of $5 ,000.00 is appropriate. 

VI. ORDER 

For the reasons set forth above, the unwarrantable failure designation in Citation No. 

6319158 is deleted and the citation is MODIFIED to a section 104(a) citation with low 

negligence and Gilbert Development Corporation is ORDERED TO PAY the Secretary of 

Labor the sum of $5,000.00 within 40 days of the date of this decision.5 on payment of the 

penalty, this case is DISMISSED. . ~ . 

~chard W. Manning 

Administrative Law Judge 

Distribution: 

Jennifer A. Casey, Esq., Office of the Solicitor, U.S. Department of Labor, 1999 Broadway, Suite 

1600, Denver, CO 80202 (Certified Mail) 

Hillary A. Smith, Conference & Litigation Representative, Mine Safety and Health 

Administration, P.O. Box 25367, Denver, CO 80225-0367 (Certified Mail) 

Michael F. Leavitt, Esq:, Durham, Jones & Pinegar, P.C., 192 East 200 North, Third Floor, St. 

George, UT 84770 (Certified Mail) 

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

Payment Office, P.O. Box 790390, St. Louis, MO 63179-0390. 

32 FMSHRC Page 205 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

601 New Jersey Avenue, NW, Suite 9500 

Washington, DC 20001 ~2021 

Telephone No. (202) 434-9980 

Fax No. (202) 434-9949 

February 22, 2010 

SECRETARY OF LABOR, MSHA, on 

behalf of JOSE A. CHAPARRO 

Complainant, 

TEMPORARY REINSTATEMENT 

PROCEEDING 

Docket No. SE 2010-295-DM 

v. 

COMUNIDAD AGRICOLA BIANCHI, INC., : Mine ID 54-00350 

Respondent, · CAB Aggregate 

DECISION AND ORDER REINSTATING JOSE A. CHAPARRO 

Appearances: Allison L. Bowles, Esq., Marc G. Sheris, Esq., U.S. Department of Labor, New 

York, New York, on behalf of the Complainant 

Rafael Sanchez-Hernandez, Esq., San Juan, Puerto, Rico, on behalf of the 

Respondent 

Before: Judge Barbour 

This matter is before me on an Application for Temporary Reinstatement filed by the 

Secretary on behalf of Jose A. Chaparro pursuant to section 105(c)(2) of the Federal Mine Safety 

and Health Act of 1977, 30 U.S.C. § 815(c)(2). Chaparro filed a complaint with the Secretary's 

Mine Safety and Health Administration (MSHA) alleging that his August 15, 2009, layoff was 

motivated by his protected activity. The Secretary contends that Chaparro' s complaint was not 

frivolous, and she.seeks an order requiring Comunidad Agricola Bianchi ("CAB") to reinstate 

Chaparro to his former position pending the completion of an investigation and final decision on 

the merits of Chaparro' s discrimination complaint. A hearing on the application was held in San 

Juan, Puerto Rico, on February 2, 2010. 1 For the reasons that follow, I grant the application and 

1

The hearing was not conducted within the time specified by the Commission's Rules, 29 

C.F.R. § 2700.45{c), because counsels were unavailable for trial in January. It was held on the 

first day all the lawyers could be present, with the understanding that should I order 

Chaparro' s reinstatement, his employment would be regarded as beginning on the date the order 

would have been issued had the case been conducted as required. See Notice of Hearing (January 

6, 2010.) fu like manner, because of weather considerations and the undersigned's travel 

schedule, this decision and order was not issued within the time required by the Commission's 

rules, and I intend the retroactive nature of the order also to cure this defect. 

32 FMSHRC Page 206 
order Chaparro' s temporary reinstatement. 2 

THE EVIDENCE 

CAB Aggregate is a sand processing facility located in the Commonwealth of Puerto 

Rico. Among other things, the facility includes a drag line, sand screening equipment and 

conveyor belts. It also includes a shop area where equipment is maintained and repaired. Jose 

Chaparro was first hired by CAB in 2008 to work as an equipment operator at the facility. When 

be was hired, Chaparro signed a contract that specified the company could suspend him without 

cause during the first 90 days of his employment.3 After Chaparro worked for approximately five 

weeks, the company's administrator, Reynat Jimenez, concluded that Chaparro's job 

performance was unsatisfactory. As a result, the company invoked the probationary contract and 

suspended Chaparro. Jimenez testified, and Chaparro did not deny, that following his 

suspension, Chaparro repeatedly called CAB management personnel and requested that he be 

given another chance. Chaparro told company officials that he wanted to come back and that he 

would work in any capacity. 

In 2009, Jimenez decided to give Chaparro another chance. As a result, CAB rehired 

Chaparro on June 1, 2009, this time as a maintenance worker. Chaparro' s duties included 

servicing equipment both on-site and at the shop. He cleaned the shop floors and collected oil. 

When he was rehired, Chaparro again signed a probationary contract. The contract was dated 

June 1, 2009. As before, the company retained the right to fire Chaparro for any reason during 

the first 90 days of his employment. 

Jimenez, who was one ofChaparro's supervisors during his second employment, 

maintained that there were again problems with Chaparro's job performance. Jimenez described 

Chaparro's work as poor in all respects. Jimenez testified that in carrying out his maintenance 

2

Prior to the hearing, the Secretary filed a motion in limine seeking to bar the company 

from presenting evidence to establish a testimonial conflict or an affirmative or rebuttal defense. 

I denied the motion, not because I disagreed with the Secretary's legal position which stressed 

the limited scope of the hearing, but because I believed a better, more inclusive record would 

result from hearing the case in the usual manner, that is, from the company's witnesses being 

subjected to objections to individual questions and without the company being bound by prior 

restraints in presenting its evidence. 

3

The contract was referred to by the parties as a "probationary contract." In addition, 

throughout the course of the hearing, witnesses and lawyers used the word "suspend" and 

"suspension" as synonyms for being terminated, fired, or laid off: 

32 FMSHRC Page 207 
duties, Chaparro was a danger to himself and to others.4 In fact, Jimenez went so far as to 

describe Chaparro's work performance as "extremely dangerous." 

Because of Chaparro' s alleged poor performance, Jimenez raised the issue of whether the 

company should again fire Chaparro. Jimenez and CAB's president spoke early in August, and 

they decided Chaparro should again be suspended pursuant to the provisional contract. However, 

Chaparro had injured his hand and was receiving workmen's compensation. Puerto Rican law 

forbade firing a worker while he or she was in that status. In addition, according to Jimenez, if 

the·company waited until August 14 to act, Chaparro not only would be off workmen's 

compensation, he would receive pay for a full work period because the pay period ended on 

August 14. 

On Friday, August 14, Chaparro reported for work at the sand processing facility. 

However, he had to leave work early to see a doctor about his hand. Jimenez wanted to speak 

with Chaparro in person, but because he had left the facility, Jimenez called Chaparro to tell him 

he was being suspended. Chaparro did not answer the telephone. On Sunday, August 16, 

Jimenez called again and left a message for Chaparro that he was suspended as of August 14. 

For his part, Chaparro agreed that he was hired in 2008 as an equipment operator and that 

he was suspended before he worked 90 days. He also agreed that he was rehired on June 1, 2009, 

and was suspended a second time on August 14. 5 However, he maintained he was not fired 

because of his unsatisfactory and unsafe job performance; rather, he was let go because he 

cooperated, and was continuing to cooperate, with MSHA in its investigation of an earlier 

accident at the mine, one involving Chaparro. 

According to Chaparro, after he was hired in June, he was working at the sand screen 

when a bucket came down and pinched him between the funnel at the top of the screen and the 

bucket. MSHA inspector Isaac Villahermosa was assigned to investigate the accident. On 

August 14, Villahermosa went to the mine to interview Chaparro. Jimenez knew when and why 

Villahermosa was coming to the mine, but he did not try to prevent Chaparro from meeting with 

Villahermosa. 

Villahermosa arrived and began the interview with Chaparro. He spoke with Chaparro 

for no more than 30 minutes when Chaparro left to see his doctor about his hand.6 Before he left, 

4

For example, Jimenez complained that Chaparro would not follow instructions and 

would not wear gloves or a hard hat. 

5 Although Chaparro was formally advised he was suspended after August 14,. the parties 

appear to agree that the effective date of the suspension was the 14th, and it is certain that August 

14 was the last date Chaparro did any work for CAB. 

6There is no allegation that Chaparro's hand injury was related to the June accident. 

32 FMSHRC Page 208 
Chaparro and Villahermosa agreed to continue the interview on Monday, August 17. 

According to Chaparro, on either Saturday, August 15, or Sunday, August 16, he was 

called by Jimenez and told that he was being suspended until further notice. On Monday, August 

17, Chaparro returned to the facility, where he was told that Jimenez wanted to see him and that 

Villahermosa wanted to talk to him. It was agreed that he should speak with Jimenez first and 

that he should then meetwlth Villahermosa alone and in the company's on-site office. 

At the meeting with Jimenez, Chaparro again was told that he was fired. 7 Because he no 

longer worked for CAB, Chaparro and Villahermosa decided to continue their conversation at a 

fast food restaurant rather than at the mine office. They left the facility. Their resultant off-site 

conversation lasted about two hours. 8 

According to Chaparro, around November 20, 2009, Villahermosa called and asked if 

Chaparro had filed a discrimination complaint with MSHA. Chaparro maintained this was the 

first time anyone had informed him of his right to do so. Shortly thereafter, on November24, 

2009, Chaparro filed a complaint with the agency, asserting he was discharged on August 14 so 

that he would not "talk about what went on at the sand plant." See Application for Temporary 

Reinstatement, Exh. B at 6. The Secretary's application for temporary reinstatement followed. 

FINDINGS OF FACT AND CONCLUSIONS OF LAW 

Section 105(c)(2) of the Act, 30 U.S.C. § 815(c)(2), provides in pertinentpart that the 

Secretary shall investigate a discrimination complaint, "and if the Secretary finds that such 

complaint was not frivolously brought, the Commission, on an expedited basis upon application 

of the Secretary, shall order the immediate reinstatement of the miner pending final order on the 

complaint." The Commission has established a procedure for making this determination. 

Commission Rule 45(d), 29 C.F.R. § 2700.45(d) states: 

The scope of a hearing on an application for temporary 

reinstatement is limited to a determination as to whether 

the complaint was frivolously brought. The burden of 

proof is upon the Secretary to establish that the complaint 

was not frivolously brought. In support of [her] 

application for temporary reinstatement, the Secretary 

may limit [her] presentation to the testimony of the 

7

Chaparro's termination was entirely oral. It does not appear that he ever was given a 

written notice that he was suspended. · 

8

While it is clear that when Chaparro and Villahermosa met the second time both knew 

Chaparro had been fired, Chaparro maintained Villahermosa did not advise him of his rights 

under section 105( c )(2) of the Act. 

32 FMSHRC Page 209 
complainant. The respondent shall have an opportunity 

to examine any witness called by the Secretary and may 

present testimony and documentary evidence in support 

of its position that the complaint was not frivolously 

brought. 

As the above makes clear, and as I noted at the hearing, the scope of a temporary 

reinstatement hearing is narrow, being limited to a determination by the judge as to whether a 

miner's complaint was frivolously brought. Sec'y of Labor on behalf of Price v. Jim Walter 

Resources, Inc., 9 FMSHRC 1305, 1306 (August 1987); aff'd sub nom. Jim Walter Resources, 

Inc. v. FMSHRC, 920 F.2d 738 (11th Cir. 1990). 

In adopting section 105( c ), Congress indicated that a complaint is not frivolously brought 

if it "appears to have merit." S. Rep. No. 181, 95th Cong. 151 Sess. 36-37 (1977), reprinted in 

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

Legislative History of Federal Mine Safety and Health Act of 1977, at 6240625 (1978). The 

"not frivolously brought" standard has been equated to the "reasonable cause to believe" standard 

applied in other contexts. Jim Walter Resources, Inc., 920 F .2d at 747; Secy of Labor on behalf 

ofBussanich v. Centralia Mining Co., 22 FMSHRC 153, 157 (February 2000). 

While an application for temporary reinstatement need not prove a prima-facie case of 

discrimination, it is useful to review the elements of a discrimination claim in order to assess 

whether the evidence meets the non-frivolous test. Under section 105( c) of the Act, a 

complaining min~ bears the burden of establishing: (1) that he or she engaged in protected 

activity, and (2) that the adverse action complained of was motivated in any part by that activity. 

Sec'y of Labor on behalf of Paula v. Consolidation Coal Co., 2 FMSHRC 2786 (October 1980), 

rev'd on other grounds sub nom.; Consolidation Coal Co. v. Marshall, 773 F.2d 1211 (3rd. Cir. 

1981 ); Secy of Labor on behalf of Robinette v. United Castle Coal Co., 3 FMSHRC 803 (April 

1981); Sec'y of Labor on behalf of Jenkins v. Hecla-Day Mines Corp., 6 FMSHRC 1842 (August 

1984); Sec'y of Labor on behalf of Chacon v. Phelps Dodge Corp., 3 FMSHRC 2508 (November 

1981), rev'd on other grounds sub nom.; Donovan v. Phelps Dodge Corp., 709 F.2d 86 (D.C. 

Cir. 1983). 

Here, the Secretary has established that Chaparro engaged in protected activity. Chaparro 

participated in MSHA's investigation of allegedly unsafe conditions when he spoke with 

Villahermosa on August 14, 2009, regarding the accident at the facility. Speaking with an 

MSHA inspector about conditions at a facility where the complainant works is protected under 

the Act. Therefore, she established the first part of a prima facie case of discrimination. 

The next step is to establish an unlawful motive for adverse action of which the miner 

complains. To do this, the Secretary had to show that Jimenez's notification to Chaparro that he 

was laid off was at least in part designed to punish him for participation in MSHA's investigation 

of conditions at CAB' s facility. The Commission has :frequently acknowledged the difficulty of 

32 FMSHRC Page 210 
establishing "a motivational nexus between protected activity and that adverse action that is the 

subject of the complaint." See, e.g., Sec '.Yon behalf of Baier v. Durango Gravel, 21 FMSHRC 

953 (September 1999). Consequently, the Commission has held that, "(1) knowledge of 

protected activity; (2) hostility or animus towards the protected activity; and (3) coincidence in 

time between the protected activity and the adverse action" are all indications of discriminatory 

intent. Id. at 957. 

In seeking reinstatement for Chaparro, the Secretary does not need to establish a prima 

facie case of discrimination in order to establish the complaint was not :frivolously brought. It is 

sufficient to show protected activity (something she did) and to show that a non-frivolous issue 

existed as to whether Chaparro's termination was at least in part motivated by Chaparro's 

discussion with Villahermosa on August 14. 

The Secretary has established that Chaparro' s supervisor knew of Chaparro' s protected 

activity and that Chaparro was laid off shortly after her engaged in the activity. The coincidence 

in time between the protected activity and Chaparro's termination can be a basis on which to 

infer an illegal motive on CAB's part. Durango Gravel, 21 FMSHRC at 957. Whether it is 

the actual motive or a part of the actual motive need not be decided at this point. By establishing 

that Chaparro engaged in protected activity, that Jimenez knew of the activity, and that Chaparro 

was terminated almost immediately thereafter, the Secretary has established that Chaparro's 

complaint was "not :frivolously brought."9 

ORDER 

For these reasons, CAB IS ORDERED to reinstate Chaparro to the position he held on 

August 14, 2009, or to an equivalent position, at the same rate of pay and with the same hours 

and benefits to' which he was then entitled. Chaparro's reinstatement will be deemed effective as 

of January 14, 2010,_ the date this decision and the order would have been issued had the case 

been heard according to the Commission's rules, and Chaparro will be entitled to back pay and 

benefits from that date until the date his reinstatement is effective. 

Chaparro's reinstatement is not open-ended. It will end upon a final order on Chaparro's 

complaint. 30 U.S.C. § 815 (c)(2). Therefore, it is incumbent on the Secretary to determine 

promptly whether or not she will file a complaint with the Commission under section 105( c )(2) 

of the Act based on Chaparro's November 24, 2009, complaint to MSHA. Accordingly, the 

9

The "not :frivolously brought" standard has been described as setting a "low" burden of 

proof. In practice, the standard means that all the Secretary must do to prevail is establish 

protected activity and one of the circumstantial indicatives of motive. When the pretrial 

pleadings support finding that protected activity occurred and that a nexus in time exists between 

the activity and the adverse action, it is questionable whether a hearing is ever required. Yet, 

Commission Rule 45(b) states that if the respondent requests a hearing, the hearing "shall be 

held." One might well ask, to what effect? Perhaps the Commission should revisit the rule. 

32 FMSHRC Page 211 
Secretary IS ORDERED to advise counsel for CAB and me of her decision by March 24, 2010, 

and, if a decision has not been made by that date, to advise us no later than April 24, 2010. If a 

decision is not made by April 24, I will entertain a motion to terminate the reinstatement for 

failure to diligently comply with the law. Surely, five months is adequate time within which to 

decide whether or not to go forward. 

Administrative Law Judge 

Distribution: (Certified Mail) 

Marc G. Sheris, Esq., Allison L Bowles, Esq., U.S. Department of Labor, Office of the Solicitor, 

201 Varick Street, Room 983, New York, NY 10014 

Rafael Sanchez Hernandez, Esq., P.O. Box 11672, San Juan, PR 00910-2772 

Reynat Jimenez, Comunidad Agricola Bianchi, Inc., Carr. 429 KM 1.2 Bo. Borrero, Aguada, PR 

00602 

Jose A. Chaparro, HC-03, Box 32560, Aguada, PR 00602 

/ej 

32 FMSHRC Page 212 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

601 NEW JERSEY AVENUE, N.W., SUITE 9500 

WASHINGTON, DC 20001-2021 

TELEPHONE: 202-434-9964 / FAX: 202-434-9949 

February 24, 2010 

MACH MINING, LLC, 

Contestant 

CONTEST PROCEEDINGS 

v. 

SECRETARY OF LABOR, 

MINE SAFETY & HEALTH 

ADMINISTRATION, (MSHA) 

Respondent 

Docket No. LAKE 2009-323-R 

Citation No. 8414211; 02/12/2009 

Docket No. LAKE 2009-324-R 

Citation No. 8414214; 02/12/2009 

Mach#l Mine 

Mine ID 11-03141 

DECISION 

Appearances: Christopher D. Pence, Esq., and David J. Hardy, Esq., Allen, Guthrie, McHugh & 

Thomas, PLLC, Charleston, West Virginia, for the Contestant, 

Before: 

Barbara M. Villalobos, Esq., Office of the Solicitor, U.S. Department of Labor, 

Chicago, Illinois, for the Respondent. 

Judge Weisberger 

Introduction 

These cases are before me based on Notices of Contest filed by Mach Mining, LLC, 

("Mach") challenging the issuance of two citations alleging violations of the provisions of two 

mandatory standards1 relating to the requirement ofproviciing escapeways. Pursuant to notice, a 

hearing was held in St. Louis, Missouri, on May 14, 2009. 2 The parties were directed to file 

briefs addressing the limited issue of whether the cited area was a ''working section", and thus 

1

Citation No. 8414211 (Docket No. LAKE 2009-323-R) alleges a violation of 30 C.F.R. § 

75.380(d)(l) which requires that escapeways be maintained in a safe condition. Citation No. 

8414214 (Docket No. LAKE 2009-324-R) alleges a violation of 30 C.F.R. § 75.364(b)(5), which 

requires an examination of an escapeway for hazardous conditions. At the conclusion of the 

hearing held on May 14, 2009, the Secretary made a motion to amend the latter citation by 

changing the alleged violative standard to 30 C.F.R. § 75.364(h), which requires that a record be 

made of hazardous conditions found during weekly examinations. After the parties argued the 

merits of the motion, it was granted. 

2

The record was kept open to allow for the possibility of an additional evidentiary 

hearing. 

32 FMSHRC Page 213 
triggering the requirements of escapeways.3 Each party subsequently filed a brief, and a reply. 

On July 15, 2009, the undersigned issued a partial decision determining that the cited area was a 

"working section". 

A conference call was held on November 9, 2009; the parties indicated that they did not 

seek an opportunity to present additional evidence relating to the remaining issues regarding 

Citation No. 8414211 (Docket No. LAKE 2009-323-R), which alleges a violation of 30 C.F.R. § 

75.380(d)(l ). Subsequently, the parties each filed a brief and a reply addressing these issues.4 

II. Whether the primacy escapeway to the Headgate #4 section of Mach #1 Mine was 

maintained in a safe operating condition pursuant to Section 75.380(d). supra. 

A. The Parties' Positions 

Mach argues that the escapeway at issue in these cases was "fully passable and traversed 

without incident on February 12, 2009," when the citation was issued. Contestant's Second PostHearing Brief at 8. Mach further avers that the material in the escapeway was not significant 

enough to prevent miners from exiting the mine safely in the event of an emergency. Id. 

Moreover, Mach contends that even if a violation of the regulation existed, the violation was not 

significant and substantial because the material present in the escapeway was not a discrete safety 

hazard, potential injury from the material was unlikely, and any injury would not be serious. Id. 

at 10. 

The Secretary argues that the objects present in the escapeway, including water, a "gob" 

pile, concrete blocks, wood pallets and crib ties, created an "obstacle course". Accordingly, the 

Secretary contends, the conditions created slip, trip and fall hazards for the inspector, and thus, 

miners fac:irig an emergency situation would have confronted these obstacles under more 

challenging circumstances. Furthermore, the Secretary argues that the violation was significant 

and substantial. 

B. Standard 

Title 30, Code of Federal Regulations requires each mine escapeway to be "[m]aintained 

in a safe condition to always assure passage of anyone, including disabled persons." 30 C.F .R. § 

3

Pursuant to 30 C.F.R. § 75.380(b)(l), an operator is required to provide an escapeway 

"for each working section." Thus, the existence of a working section is a predicate for the 

imposition of all regulatory mandates relating to escapeways, including those set forth in 

Sections 75.380(d)(l), and 75.364(h), the standards at issue in the cases at bar. 

4

The parties agreed that if it is found that the Contestant violated Section 75.380(d)(l), 

supra the standard at issue in this case at bar, then a hearing be scheduled on May 5, 2010, 

regarding the remaining citation, No. 8414214 (Docket No. LAKE 2009-324-R). 

32 FMSHRC Page 214 
75.380(d)(l). The relevant legislative history provides that the required escapeways "allow 

persons to escape quickly to the surface in the event of an emergency." S.Rep. No. 91-411, at 83, 

Legis. Hist., at 209 (1975). 

In American Coal Company, the Commission held that an operator violates Section 

7 5 .380(b )(1 )' s requirement to "provide" escapeways when its miners are "substantially hindered 

or impeded from accessing designated escapeways." 29 FMSHRC at 948. In reaching this 

conclusion, the Commission set forth the following regarding the purpose and legislative history 

of escapeways which is equally applicable to the case at bar: 

There is no disputing that escapeways are needed for miners to quickly exit 

an underground mine and that impediments to a designated escapeway may prevent 

miners from being able to do so. The legislative history of the escapeway standard 

states that the purpose of requiring escapeways is "to allow persons to escape quickly 

to the surface in the event of an emergency." S. Rep. No. 91-411, at 83,Legis. Hist., 

at 209 (1975). 

29 FMSHRC at 948 (emphasis added). 

Based on the regulatory scheme and legislative history, it is manifest that the purpose of 

escapeways is to allow miners to quickly escape. 

The Commission has been guided by this legislative history, and "has relied upon 

Congressional recognition of the importance of maintaining separate and distinct travelable 

escapeways that are maintained in a safe condition." Maple Creek Mine, 26 FMSHR.C 539, 543 

(June 2004)(citing Consolidation Coal Co., 15 FMSHRC 1555, 1557 (Aug. 1993)). The 

Commission has found such language "plain and unambiguous," and that the standard 

"establishes a general functional test of 'passability. "' Utah Power and Light Company, 11 

FMSHRC 1926, 1930 (Oct. 1989). Moreover, the Commission has stated that "section 75.380 

obligates operators to continually maintain the condition of escapeways," so that passage of all 

miners, including those who are disabled or injured, can quickly pass from the beginning of the 

escapeway to the surface, and that "such passage is not hindered." American Coal Company, 29 

FMSHRC 941, 948 (Dec. 2007)(emphasis added). 

The parties agree that the escapeway included a number of items, including water, rows 

of blocks at the bottom of the regulator, a gob pile, loose concrete blocks, take-up track, and a 

pallet of crib ties. However, significant disagreement remains regarding the nature and effect of 

these materials on the passability of the escapeway. 

C. Summary of the Testimony 

Bobby Jones, a coal mine inspector for the Mine Safety and Health Administration, 

testified for the Secretary. Jones characterized the escapeway as an "obstacle course". (Tr. 39, 

70). Jones stated that he measured the standing water, which was 20 feet long, spanned rib to rib, 

32 FMSHRC Page 215 
ranged in depth from two inches to eight inches, and was generally clear. He also noted that the 

mine's clay floor was uneven and slick when wet. Jones testified that he observed six to eight 

concrete blocks loosely strewn on the ground on the inby side of the regulator. He further 

observed 10 to 12 blocks on the outby side of the regulator, which was described as a hole cut 

out of the wall that served as the stopping. According to his testimony, there were also three 

rows of concrete blocks at the J:>ase of the regulator. Moreover, while crossing through the 

regulator, Jones stepped on the blocks, and with the air flowing through the regulator pushing 

him, he stumbled through the opening. 

Jones testified that he encountered a pile of gob, which consisted of "clay, rock and debris 

from the area that had been pushed into a pile." (Tr. 53) He estimated the pile of gob to be five 

to eight feet long, stretching rib to rib, and varying in height, from three feet at its highest point to 

approximately 18 inches at its lowest. Jones next discussed a section of"take-up track" that was 

atop the gob pile. He identified the track as a steel frame-like structure, and estimated it to be 10 

inches tall, 10 feet long and six feet wide. Jones further noted a bundle of crib ties placed on a 

pallet. 

Based on the testimony of its witnesses, Mach contends that any alleged obstacles were 

items commonly found in mines and routinely negotiated by passing miners. Jeff Wilkins, the 

examiner at the mine, testified that, during his walk-through with the inspector, he looked 

through the regulator and observed "probably three inches of water" approximately three or four 

feet away. (Tr. 206). Wilkins also observed two rows of blocks at the bottom of the regulator, 

one of which was obscured by the pile of gob. Wilkins estimated the pile of gob was "probably 

about 18 inches high." (Tr. 201 ). He also estimated that the gob pile was approximately two feet 

from the right rib and six feet from the left rib. 

Anthony Webb, Mine Manager for Mach, testified that there was an unobstructed span of 

10 feet from the left rib to the pile of gob. He also stated that the gob pile was nine feet wide, 18 

inches at its tallest point, and 2 Yi feet deep. The gob pile included the piece of take-up track. 

Webb testified that he measlired the distance from the left rib to the take-up track to be 10 feet. 

Wilkins testified that there were "probably six blocks to the left scattered" in front of the 

regulator. (Tr. 204-205). By the time Webb arrived at the Headgate #4 site, he did not see any 

blocks outby the regulator, and was told that they had been moved. Finally, Webb testified that 

the pallet of crib ties, located at the bottom of the stairway, covered approximately one foot of 

the stair width, effectively reducing the width of the stairway from six feet to five feet. Wilkins, 

however, testified that the pallet of crib ties projected approximately six inches into the width of 

the stairway. 

D. Discussion 

I take cognizance of the fact that the inspection that resulted in the citation at issue here 

was conducted by Jones, who was escorted by Wilkins. I give their testimony greater weight 

32 FMSHRC Page 216 
than that of Webb, as they observed the conditions as they existed during the inspection. In 

contrast, Webb observed and photographed the area approximately 4 Yz hours later; in that 

intervening period, the ledge of the regulator had been removed, as were the concrete blocks that 

had been on the ground. 

With regard to the depth of the water in the escapeway, I accord more weight to Jones' 

version based on his testimony that he measured the water with a tape measure, while Wilkins 

estimated the depth from three or four feet away. Moreover, with regard to the conflict regarding 

the number of rows of block in the regulator, I give greater weight to the testimony of Jones, who 

observed the regulator from both sides. In contrast, Wilkins did not cross through the regulator. 

Thus, he only observed the ledge from one side; he observed two rows of blocks, but noted that 

one row was obscured by the pile of gob. Similarly, I find Jones's testimony regarding the height 

of the gob pile more credible because he based his estimation on a fixed point, the ledge of the 

regulator. 5 

I find that the combination of the pallet of crib ties, take-up track, pile of gob, loosely 

strewn concrete blocks on either side of the regulator, and the presence of water on the floor 

would hinder and delay the emergency evacuation of miners, especially any who were injured. 

Thus, the clear purpose of Section 75,380(d), i.e., to allow persons to escape quickly in the event 

of an emergency (Legislative History, supra, at 209; American Coal, supra, at 948), would be 

thwarted. Hence, I conclude that the escapeway was not maintained in a safe condition; 

accordingly, Contestant violated Section 75.380(d), supra.6 

5

With regard to the rest of the measurements, I note that all three witnesses vary only 

slightly from one another in their estimations. Hence, for purposes of this decision, it is not 

necessary to resolve the minor conflict in this testimony. 

6

Mach argues that the case law requires that a significant obstruction that precludes 

passage through the escapeway must exist before a citation can be upheld. Contestant's Second 

Post.,.Hearing Brief at 6. According to Mach, violations are found "where safe passage through 

the cited escapeway is extremely difficult due to hazardous conditions." Id. at 7. Mach relies on 

Maple Creek, supra, (Commission cited the Judge's conclusion that the water, which was black 

and murky, of varying depths, approximately 420 feet long, did not satisfy the passability test set 

forth in Utah Power. 26 FMSHRC 539, 547 (June 2004), aff'd in part and rev'd in part, 27 

FMSHRC 555 (Aug. 2005)). 

Mach correctly notes that the conditions in the present case are not as severe as those that 

existed in Maple Creek, supra. However, Maple Creek, supra, does not mandate a finding of 

compliance with Section 75.380(d), supra, in all cases where conditions are not as severe as 

those presented in Maple Creek, supra. Each case must ultimately be determined on its own 

facts. 

32 FMSHRC Page 217 
ID. Significant and Substantial 

Jones designated the violation in the present case as "significant and substantial". A 

violation is "significant and substantial" if "based upon the particular facts surrounding the 

violation, there exists a reasonable likelihood that the hazard contributed to will result in an 

injury or illness of a rea$onably serious nature." Cement Division, National Gypsum Co., 3 

FMSHRC 822, 825 (Apr. 1981 ). The Commission, in Mathies Coal Co., 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. 

6 FMSHRC l, 3-4 (Jan. 1984)(footnote omitted). 

I have found the condition of the escapeway to be a violation of a mandatory safety 

standard. With regard to the second element of the Mathies test, Mach asserts that with good. 

visibility, miners "could easily have maneuvered around the clearly visible material." Id . . Mach 

argues that if visibility was low, miners could have held the lifeline and would likewise avoid 

any trip or fall risk. However, I note that in low visibility, the miners ;would have followed the 

lifeline, which went through or directly over these obstacles. Id. As set forth above, Jones 

described various objects in the escapeway along with the presence of a wet and slick :floor. 

Based on all of the above, I find the conditions of the escapeway constituted a discrete safety 

hazard. 

In evaluating the reasonable likelihood of an injury to satisfy the third criterion of the 

Mathies test, the evaluation should be made in the context of normal "continuing mining 

operations." U.S. -Steel Mining Co., 6 FMSHRC 1573, 1574 (July 1984). I find, due to the 

combination of accumulated items in the escapeway, as set forth above, that the hazard of 

stumbling and tripping, and the resultant impediment to a prompt evacuation in an emergency, 

was reasonably likely to have resulted in an injury to a miner, especially given the multitude of 

dangers, such as explosions, fires, collapses and other risks facing miners on a continual basis 

that require swift evacuation. 

The final element of the Mathies test is the likelihood that the injury would be of a 

reasonably serious nature. Jones testified that the concrete blocks laying on the inby and outby 

sides of the regulator presented "a slip/trip hazard where miners could fall and have strains, 

sprains, broken limbs, any number of injuries like that." (Tr. 62). Likewise, Jones added that if a 

miner were to slip, trip or fall on a concrete block, or on the gob pile and fall onto the take-up 

track, "there is a very real possibility of broken bones and strains and sprains, back and neck 

injuries." (Tr. 68). Considering the nature of the obstacles, particularly the concrete blocks, the 

32 FMSHRC Page 218 
steel take-up track and the pallet of crib ties, I find that it is reasonably likely that an injury 

sustained by a miner would be of a reasonably serious nature. 

Accordingly, I find that the violation is significant and substantial. 

ORDER 

It is Ordered that Docket No. LAKE 2009-323-R be Dismissed. It is further Ordered 

that Docket No. LAKE 2009-324-R be severed from Docket No. LAKE 2009-323-R, and 

scheduled for hearing on May 5, 2010, at a site to be designated in a subsequent notice. 

Distribution: (CERTIFIED MAIL) 

&.bS;.;- Administrative Law Judge 

202-434-9964 

Christopher D. Pence, Esq., and David J. Hardy, Esq., Allen, Guthrie, McHugh & Thomas, 

PLLC, 500 Lee Street, East, Suite 800, P.O. Box 3394, Charleston, WV 25333 · 

Barbara M. Villalobos, Esq., Office of the Solicitor, U.S. Department of Labor, 230 S. Dearborn 

Street, 8th Floor, Chicago, IL 60604 

32 FMSHRC Page 219 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

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

SECRETARY OF LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

Washington, D.C. 20001 

February 25, 2010 

CIVIL PENALTY PROCEEDINGS 

Docket No. KENT 2007-273 

A.C.No. 15-17587-115853 

Docket No. KENT 2007-497 

A.C. No. 15-17587-123693 

OHIO COUNTY COAL COMPANY, LLC, 

Respondent 

Mine: Freedom 

DECISION 

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

Nashville, Tennessee, on behalf of the Secretary of Labor; 

Melissa M. Robinson, Esq., William B. King, Il, Esq., Jackson Kelly, PLLC, 

Charleston, West Virginia, on behalf of Ohio County Coal Company. 

Before: Judge Zielinski 

These cases are before me on Petitions for Assessment of Civil Penalties filed by the 

Secretary of Labor pursuant to section 105 of the Federal Mine Safety and Health Act of 1977, 

30 U.S.C. § 815. The Petitions allege that Ohio County Coal Company, LLC, is liable for six 

violations of the Secretary's Mandatory Safety Standards for Underground Coal Mines, and 

propose the imposition of civil penalties in the total amount of $20,281.00. Prior to the 

scheduled hearing, the parties filed motions to approve settlements of Citation Nos. 8988718 and 

6695143 in Docket No. KENT 2007-497. A hearing was held in Evansville, Indiana, and the 

parties filed briefs after receipt of the transcript. At the commencement of the hearing, the 

parties moved for approval of a settlement agreement resolving the remaining two violations in 

Docket No. KENT 2007,-497. The proposed settlements will be approved herein. For the 

reasons set forth below, I find that Ohio County committed the two violations alleged in Docket 

No. KENT 2007-273, and impose civil penalties in the total amount of $1,800.00 for those 

violations. 

Findings ofFact -Conclusions ofLaw 

Ohio County operates the Freedom Mine, located in Henderson County, Kentucky. Ohio 

County's controlling entity is Patriot Coal Corporation. On December 12, 2006, Anthony 

Fazzolare, an MSHA inspector, conducted an inspection of the mine. The citations remaining at 

issue were issued during that inspection. Ohio County timely contested the violations and the 

assessed civil penalties. 

32 FMSHRC Page 220 
Citation No. 6692136 

Citation No. 6692136 alleges a violation of30 C.F.R. § 75.342(a)(4), which requires that 

methane monitors be maintained in "proper operating condition and shall be calibrated with a 

known air-methane mixture at least once every 31 days." 

The violation was described in the "Condition and Practice" section of the Citation as 

follows: 1 

The machine-mounted methane monitor on the Joy Continuous Miner, Co. 

No. M-12, located in MMU 001-0, was not being maintained in an operable 

condition. When tested with a known amount of CH4 (2.5% ), the monitor would 

only read 2.1 % CH4. These monitors must read the exact amount of CH4 present 

while cutting coal. This is a known problem at this mine, and several meetings 

have been held with company officials and MSHA inspectors to discuss the 

problem. This is the 19th violation of this standard at this mine since 01/01/2006. 

Ex.RG-1. 

Fazzolare determined that it was reasonably likely that the violation would result in a lost 

work days or restricted duty injury, that the violation was significant and substantial ("S&S"), 

that one person was affected, and that the operator's negligence was high. A specially assessed 

civil penalty in the amount of$5,100.00 was proposed for this violation. 

The Violation 

Most of the_ methane liberated in the process of mining coal is liberated where coal is 

being cut, which at the Freedom mine is the cutting head of a continuous mining machine. 

Continuous miners are required to have methane monitors mounted in a location "as close to the 

working face as practicable" and in the primary flow of air away from the cutting head. 

30 C.F.R. § 75.342. They are to sound an audible warning when they detect a methane 

concentration of 1 %, and to cut power to the miner if the concentration reaches 2%. Operators of 

continuous mining machines are also required to conduct methane checks with a hand-held 

monitor every 20 minutes. They typically carry their monitors in an exposed pouch on the chest 

of their coveralls. The monitors remain activated, and will provide a visual and audible warning 

when they encounter a methane concentration of 1 %. 

As noted in the citation, the Freedom mine had a history of problems maintaining 

calibration of methane monitors on its continuous mining machines, and had received numerous 

citations over the course of many months for monitors that did not provide accurate readings 

1 Grammar and spelling errors have been corrected in quotations from documents 

prepared in the field. 

32 FMSHRC Page 221 
when tested by MSHA inspectors. Eighteen of the previously issued citations were introduced 

into evidence. Ex. G-3. The problem was not unique to the Freedom mine. Two other mines 

operated by Patriot, the Dodge Hill and Highland mines, also used monitors manufactured by 

General Monitors, and were encountering simi.Iar problems. Safety managers at Dodge Hill had 

been in extended discussions with MSHA officials, induding inspectors and representatives of 

MSHA's Directorate of Technical Support, in an effort to solve the problem. 

Walter Wood became manager of maintenance at Freedom in January 2006. From past 

experience, he knew it was difficult to maintain calibration on machine mounted methane 

monitors, and implemented a policy requiring that the monitors be calibrated weekly. Around 

May or June, after several citations had been issued, he was aware that the calibration problems 

continued. He required that calibration be performed every other day. He also made adjustments 

to the calibration procedure over the course of several months, and consulted with MSHA 

inspectors, his cohorts at Dodge Hill and Highland, and with representatives of the manufacturer. 

Nevertheless, it proved extremely difficult to maintain calibration of the monitors, and the 

monitor tested by Fazzolare on December 12 was not in calibration. 

Ohio County does not contest the fact of violation. It argues that the violation was not 

S&S and that its negligence was less than high, and requests a corresponding reduction in the 

assessed penalty. 

Significant and Substantial 

An S&S violation is described in section 104(d)(l) of the Act as a violation "of such 

nature as could significantly and substantially contribute to the cause and effect of a coal or other 

mine safety or health hazard." A violation is properly designated S&S "if, based upon the 

particular facts surrounding that violation, there exists a reasonable likelihood that the hazard 

contributed to will result in an injury or illness of a reasonably serious nature." Cement Div., 

Nat'! Gypsum Co., 3 FMSHRC 822, 825 (Apr. 1981). 

The Commission has explained that: 

In order to establish that a violation of a mandatory safety standard is 

significant and substantial under National Gypsum, the Secretary of Labor must 

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

safety hazard--that is, a measure of danger to safety--contributed to by the 

violation; (3) a reasonable likelihood that the hazard contributed to will result in 

an injury; and ( 4) a reasonable likelihood that the injury in question will be of a 

reasonably serious nature. 

Mathies Coal Co., 6 FMSHRC l, 3-4 (Jan. 1984) (footnote omitted); see also, Buck Creek Coal, 

Inc. v. MSHA, 52 F.3d 133, 135 (7th Cir. 1999); Austin Power, Inc. v. Secretary of Labor, 861 

32 FMSHRC Page 222 
F.2d 99, 103-04 (5th Cir. 1988), ajfg Austin Power, Inc., 9 FMSHRC 2015, 2021 (Dec. 1987) 

(approving Mathies criteria). 

fu U.S. Steel Mining Co., Inc., 7 FMSHRC 1125, 1129 (Aug. 1985), the Commission 

provided additional guidance: 

We have explained further that the third element of the Mathies formula "requires · 

that the Secretary establish a reasonable likelihood that the hazard contributed to 

will result in an event in which there is an injury." U.S. Steel Mining Co., Inc., 

6 FMSHRC 1834, 1836 (August 1984). We have emphasized that, in accordance 

with the language of section 104( d)(l ), it is the contribution of a violation to the 

cause and effect of a hazard that must be significant and substantial. U.S. Steel 

Mining Co., Inc., 6 FMSHRC 1866, 1868 (August 1984); U.S. Steel Mining Co., 

Inc., 6 FMSHRC 1573, 1574-75(July1984). 

This evaluation is made in terms of "continued normal mining operations." U.S. Steel, 

6 FMSHRC at 1574. The question of whether a particular violation is significant and substantial 

must be based on the particular facts surrounding the violation. Texasgulf, Inc., l 0 FMSHRC 

498 (Apr. 1988); Youghiogheny & Ohio Coal Co., 9 FMSHRC 2007 (Dec. 1987). 

The fact of the violation has been established. A measure of danger to safety was 

contributed to by the failure to properly maintain the methane monitor. An injury to a miner 

resulting from a methane ignition would most likely be reasonably serious. Therefore, the 

primary issue in the S&S analysis is whether the violation was reasonably likely to result in an 

injury causing event. 

The Secretary argues that the violation was reasonably likely to result in a methane 

ignition causing smoke inhalation and/or burns to the continuous miner operator. Conceding that 

very little methane is liberated at Freedom, the Secretary nevertheless maintains that the violation 

was S&S because on one day in 2001 an abandoned oil well was encountered at Freedom 

releasing enough methane to shut power to a continuous miner, and because "all mines are 

capable of producing methane." Sec'y. Br. at 4-5. Charles Jones, an MSHA supervisory mine 

inspector, was present at the Freedom mine in 2001 when a continuous miner encountered an 

abandoned oil well that was not shown on the mine map. Tr. 91-93. Methane was released in 

sufficient quantity to cut power to the miner. The methane did not ignite and was quickly 

dissipated by the mine's ventilation system. Later that day, another well was struck, but it is 

unknown whether a significant quantity of methane was liberated. Jones also believed that there 

were other wildcat wells in the vicinity of the Freedom mine that would not be shown on the 

mine map, and that there is "no such thing as a non-gassy mine." Tr. 95-96. Fazzolare, too, 

believed that there were wildcat wells in the area, and that "all mines are gassy." Tr. 109, 121. 

Both conceded, however, that very little methane was liberated at Freedom, dangerous levels of 

methane had never been found, and there had not been any methane ignitions at the mine. 

Tr. 97-98, 121-22. 

32 FMSHRC Page 223 
Approximately 12,000 to 13,000 cubic feet of methane was liberated at the Freedom mine 

in a 24-hour period. In contrast, the Dodge Hill and Highland mines liberated close to 500,000 

cubic feet of methane, and were subject to 15-day spot inspections under the Act. Tr. 123. 

James Nichols, a safety professional at Freedom, testified that the reason that the oil wells were 

struck in 2001 was that an engineering firm had failed to activate a "layer" in a computer-based 

mine mapping program and, as a result, the wells were not depicted on the mine map at that time. 

Tr. 133,138. Freedom had since done extensive surveying and testing to identify abandoned 

wells, and he was confident that there were no wells, whether metal cased or not, that were not 

reflected on the mine map. Tr. 133-37. 

While the cutting head of a continuous miner would present an ignition source, there 

would have had to have been a significant quantity of methane present to result in an explosion 

or fire. Methane typically is explosive in concentrations of 5%-15%. Fazzolare testified that it 

may ignite at a concentration as low as 3% in the presence of coal dust, and that there typically is 

more coal dust in mine atmospheres during winter months, because they are dryer. However, he 

did not identify the basis for that statement, which was not reflected in the citation or his notes. 

Nor did he indicate that such dust was, in fact, present in the Freedom mine. Nichols testified 

that the mine operates on a blowing ventilation system, which makes it less susceptible to drying 

during cold weather. Tr. 134. The monitor in question gave a reading of 2.1 % when exposed to 

a 2.5% mixture. Of the previously issued monitor calibration citations, 15 of 18 were not rated 

as S&S. Fazzolare had issued 14 of the prior citations, only one (a reading of 1.1 %) as an S&S 

violation, and also had rated as non-S&S a permissibility violation issued five days earlier 

because of the low levels of methane at the mine. Tr. 114-15; Ex. G-3. Jones who had cited 

three monitor calibration violations, two S&S and one non-S&S, explained that one of the S&S 

determinations was made because the monitor read less than 1 % when exposed to the 2.5% 

mixture, i.e, it was essentially non-functional. Tr. 101. The other two violations were virtually 

identical, arid were issued on March 1 and May 22, 2009. The March violation, which was 

issued during a winter alert period, was rated as non-S&S, and the May violation was rated as 

S&S. Jones did not explain why those violations were treated <J!fferently. 

Considering the uniformly low levels of methane encountered at the Freedom mine, it 

was unlikely that a fire or explosion would result from the violation. MSHA inspectors, 

including Fazzolare and Jones, had reached the same conclusion on the vast majority of 

previously issued citations, under virtually identical circumstances. Additionally, the fact that 

the monitor was examined frequently, was calibrated at least every other day, and was reading 

only 0.4% less than the actual concentration of methane, makes it unlikely that the monitor 

would not have provided a warning and cut power to the miner in the unlikely event that 

dangerous levels of methane were encountered. 

The Commission and courts have observed that an experienced MSHA inspector's 

opinion that a violation is S&S is entitled to substantial weight. Harlan Cumberland Coal Co., 

20 FMSHRC 1275, 1278-79 (Dec. 1998); Buck Creek Coal, Inc., v. MSHA, 52 F.3d 133, 135-36 

(7th Cir. 1995). Fazzolare certainly qualifies as an experienced MSHA inspector. However, 

32 FMSHRC Page 224 
while it is possible that a miner could have been injUred as a result of the violation, I find that the 

Secretary has failed to prove that it was reasonably likely that an injury causing event would 

occur, as opposed to could occur. See Amax Coal Co., 18 FMSHRC 1355, 1358-59 (Aug. 1996) 

(to prove S&S nature of violation, Secretary must prove that it is reasonably likely that an injury 

producing event will occur, not that one could occur). Accordingly, I :find that the violation was 

not S&S, and that it was unlikely that the violation would result in a lost work days or restricted 

duty injury. 

Negligence 

The Secretary argues that Ohio County's negligence was high because it was well aware 

that the monitors were not maintaining calibration and· did not take adequate steps to address the 

problem.2 Fazzolare determined that Ohio County's negligence was high because he believed 

that it was not doing enough to address the calibration problem, which had been ongoing for 

several months, and had resulted in the issuance of numerous violations. Tr. 106-07. He 

originally testified that he ''was aware of the steps being taken," but later acknowledged that he 

did not know "everything they were doing." Tr. 105, 120. He knew that calibration was required 

every shift at Dodge Hill and every day at Highland, and believed that Freedom was not 

calibrating the monitors often enough. Tr. 109. However, he acknowledged that problems 

persisted at Highland, that only limited improvement was realized at Dodge Hill, and that both of 

those mines liberated substantially more methane than Freedom. Tr. 122. 

2 The Secretary raised two arguments that proved to be in the nature of red herrings. She 

placed emphasis on the fact that Freedom did not seek to use monitors made by a different 

manufacturer. However, Wood testified that, in his experience, the monitor made by the only 

other available manufacturer was less reliable than General Monitors'. Tr. 41. The Secretary did 

not seek to introduce any evidence to challenge that assertion, or to demonstrate that another 

viable option was available. She suggested that Freedom could have petitioned for a 

modification of the requirement for placement of the monitors, or sought to amend its ventilation 

plan to move the monitors. However, she did not seek to introduce evidence to establish that 

relocating the monitors may have offered a solution, and Fazzolare testified that neither 

Highland, nor Dodge Hill, which was working with MSHA's technical support group, had 

proposed a petition or amendment. The Secretary did not seek to introduce evidence to establish 

that any permissible change in location could have improved the situation. In any event, 

monitors are required to be located as close as possible to the face and in the primary stream of 

air passing from the cutting head. Patriot's maintenance director was informed of developments 

at Dodge Hill, and would have been aware of any suggestion by MSHA or General Monitors, to 

change the location of the sensor. Obviously, none of the involved parties believed that such a 

change would be beneficial, because none was advanced. For the Secretary to rely on the fact 

that Freedom did not seek such a change is disingenuous at best. Fazzolare opined that changing 

the location of the monitor would not have improved the calibration problem, which was 

attributable to a defective cap design. The retrofit of the calibration cup eventually resolved the 

issue many months later. 

32 FMSHRC Page 225 
Ohio County was certainly well aware that the monitors were not maintaining calibration. 

Wood knew of the problem when he became maintenance manager in January of 2006. 

Calibration of monitors was his responsibility throughout the pertinent time period, and he was 

aware of all pertinent developments with respect to monitor calibration, including the issuance of 

citations by MSHA. While the steps he took did not resolve the problem, it is not at all clear that 

they amounted to high negligence. 

Freedom's response to the problem was incremental. Based on his previous experience, 

Wood implemented a policy in January 2006 requiring that monitors be calibrated every week, 

rather than every 31 days as required by the regulation. Around May or June he was aware that 

there were still problems, and he directed that calibrations be perfonned every other day. Tr. 14. 

Over the course of the next few months, be consulted with the chiefs of maintenance on each 

shift to check on the status of monitor calibrations. He implemented changes to the calibration 

procedure, requiring that specific personnel perfonn the calibrations, and that they be perfonned 

after the machines had warmed up. Efforts were made to better guard the monitors, and more 

comprehensive records were kept of calibration problems and perfonnance. Tr. 30. In addition 

to calibration, bump tests were required to verify the accuracy of monitor readings, a procedure 

later required by MSHA.3 

Wood talked to MSHA inspectors about the problems, and was advised to consult the 

manufacturer and his counterparts at other mines. Tr. 59. He contacted representatives of 

General Monitors, and implemented suggestions that they made, including cleaning and 

replacing the sniffer caps, modifying the sniffer caps, and checking.the power sources and the 

resistence of the cables for the monitors. Tr. 47-48. General advised Freedom to wash the 

sniffer caps frequently. However, Freedom found that washing was ineffective, so the caps were 

replaced, rather than re-used. Wood set up a meeting at the mine with General Monitors' field 

service representative, to discuss the issues. Fazzolare attended, at Wood's invitation. All four 

continuous mining machines were checked, and Freedom's procedures were reviewed. General's 

representative concluded that, "everything we [Freedom] were doing was proper and right." 

Tr. 47-48. 

3 In order to calibrate the monitor, a calibration cup is placed over the monitor's sniffer 

cap. Air with no methane content is passed through the monitor for 2-5 minutes. A magnet is 

then placed on the monitor's "read" switch, which puts it into calibration mode. Air containing 

2.5% methane is then passed through the monitor. When the monitor has calibrated itself, i.e., 

sets its reading at 2.5% for the known mixture, the display flashes "cc," indicating that 

calibration is complete. This process does not indicate whether the monitor was providing 

accurate measurements of methane content prior to being calibrated. In order to test whether a 

monitor is providing accurate readings, it is sqbjected to a "bump test." Air with 2.5% methane 

content is passed through the monitor, and the monitor's display is observed over a period of 

time. If the monitor displays a reading between 2.3% and 2. 7%, within six minutes of exposure, 

it is determined to be in calibration. 

32 FMSHRC Page 226 
Wood was also in communication with Steve Withers, Patriot's chief maintenance 

director, who was responsible for three mines, Freedom, Highland and Dodge Hill. Wood was 

aware, through Withers, that Dodge Hill was working with MSHA's technical support group in 

attempting to resolve the calibration problems. Dodge Hill had implemented a policy of 

calibrating the monitors every shift, but it continued to have problems, although not as many. 

Tr. 122. Highland required calibration every day, which proved oflittle help in addressing the 

problem. Tr. 108, 122. Wood was aware of the progress, or lack thereof, that all parties were 

making on resolving what was uniformly viewed as a problem with the sniffer cap and/or 

calibration cup design. Withers had representatives of General visit the Freedom and Dodge Hill 

mines to attempt to resolve the calibration issues. Their only suggestion was to attempt to dry 

the monitor's sensing unit for a longer period prior to doing a bump test. Tr. 48-50. Freedom 

responded to that suggestion, which proved to be unavailing. 

The inability of methane monitors manufactured by General Monitors to maintain 

calibration was an ongoing and widespread problem, for which there was no simple solution. 

The operators, the manufacturer and MSHA's technical support personnel were working to 

resolve the problem during the pertinent time period, without much success. As Fazzolare 

indicated, the problem was believed to be related to the design of the sniffer cap and/or 

calibration cup. Tr. 129. Miner operators were required to check the monitor cap after mining 

one place, and to change the protective cap after mining two places. Fazzolare conceded that 

nothing could have been done to assure that the monitors remained in calibration. Tr. 122. 

Almost a year after the subject citation was issued, the calibration cup was re-designed and the 

calibration procedure was modified to require a bump test to verify the accuracy of the 

calibration. MSHA issued a Program Information Bulletin in November of 2007 informing mine 

operators of the retrofit program. 4 Throughout the process, MSHA did not retract its approval of 

the General monitors. 

The problem_ was largely resolved by a re-design of the calibration cup. Apparently, 

efforts to improve the design of the sniffer cap are ongoing. Tr. 51, 63. Throughout the latter 

part of 2006, the efforts of General, MSHA and the operators to solve the problem were 

unsuccessful. There is no evidence that Freedom failed to implement any measures that were 

suggested by those involved in the process that had proved to be effective. The only thing being 

done differently, was that at Dodge Hill calibrations were done every shift, with some 

improvement, and at Highland, calibrations were done every day, with little or no improvement. 

As previously noted, those were gassy mines, and both continued to have problems. 

I find Ohio County's negligence with respect to the violation to have been no more than 

low. 

4 MSHA Program Information Bulletin No. P07-27, "General Monitors Model 420, 

420d, S500, and S800 Machine Mounted Methane Monitoring Systems," November 2, 2007. 

Ex. R-3. 

32 FMSHRC Page 227 
Citation No. 6692140 

Citation No. 6692140 alleges a violation of30 C.F.R. § 75.380(d)(7)(i), which requires 

that a "continuous directional lifeline or equivalent device" be "installed and maintained 

throughout the entire length of each escapeway." 

The violation was described in the "Condition and Practice" section of the Citation as 

follows: 

The operator failed to install and maintain a continuous directional lifeline or 

equivalent device in the primary escapeway for MMU 001-0. The closest 

continuous directional lifeline or equivalent device was located on the 1st West 

Sub Mains, more than 1,000 feet from the working unit. If a fire were to start on 

any of the Intake air courses, the miners attempting to evacuate the unit could 

easily become disoriented in the smoke and become lost in their attempt to escape 

the mine. 

Ex. G-4. 

Fazzolare determined that it was reasonably likely that the violation would result in a 

permanently disabling injmy, that the violation was significant and substantial ("S&S"), that 

eleven persons were affected, and that the operator's negligence was high. A specially assessed 

civil penalty in the amount of$8,400.00 was proposed for this violation. 

The Violation 

Prior to 2006, there was no federal requirement that coal mines have directional lifelines 

in escapeways.5 As a result of well-publicized mine disasters in January 2006, regulations were 

promulgated and legislation was enacted requiring their installation in all underground coal 

mines. The first requirement, an Emergency Temporary Standard ("ETS"), was published by the 

Secretary on March 9, 2006. 71 Fed. Reg. 12251. The ETS amended 30 C.F.R. § 75.380(d) by 

adding sub-paragraph (7), establishing a requirement for continuous directional lifelines 

throughout escapeways. 30 C.F.R. § 75.380(d)(7)(i), 71 Fed. Reg. 12269. It was recognized in 

the ETS that mine operators would have difficulty obtaining lifelines, and other newly required 

equipment. It provided that "MSHA will accept as good faith evidence of compliance, purchase 

orders or contracts to buy lifelines or SCSRs." 71 Fed. Reg. 12258. 

The MINER Act, which became effective on June 15, 2006, amended the Mine Act and 

addressed many of the requirements of the ETS. It included a requirement that mine operators 

develop emergency response plans that provided for directional lifelines in escapeways. Ohio 

5 Three states, Kentucky, West Virginia and Virginia, had required directional durable 

lifeline cords in escapeways for many years. 71 Fed. Reg. 12257 (March 9, 2006). 

32 FMSHRC Page 228 
County complied with the Act, providing in its August 2006 emergency response plan that 

escapeways would have lifelines. On December 8, 2006, the Secretary promulgated the 

Emergency Mine Evacuation Final Rule ("Final Rule"). 71 Fed. Reg. 71429. The Final Rule 

reconciled the ETS with applicable provisions of the MINER Act, and made permanent the 

amendments to the regufation at issue here. Because the ETS was scheduled to lapse on 

December 8, the Department of Labor found good cause to waive the 60-day effective date 

requirement for major rules, and made the Final Rule effective on the date of publication. 

71 Fed. Reg. 71450. The Final Rule provided for good faith compliance for certain specified 

equipment and training requirements, but, it did not include a good faith compliance provision 

for installation oflifelines. 71 Fed. Reg. 71431. 

On May 3, 2007, MSHA published guidance to operators on compliance with the Final 

Rule. Emergency Mine Evacuation Final Rule Questions and Answers ("Q&A"), May 3, 2007. 

Ex. R-12. Question numbered 3 of the Q&A read as follows: 

Q3. When does the final rule take effect? 

A. The final rule was effective immediately upon publication in the Federal 

Register on December 8, 2006. There are specific compliance dates for certain 

items, such as 60 days from the date of publication to submit revised training 

plans. For certain equipment not addressed in the specific compliance dates, such 

as SCSRs, multi-gas detectors, etc., that may be in short supply and back ordered, 

the mine operator must have executed a purchase order to procure this equipment 

within 30 days of publication and must make a good-faith effort to obtain and 

deploy this equipment as soon as practicable. 

Ex. R-12 at 1. ' 

In response to the ETS, Ohio County had purchased and installed lifelines in its primary 

and secondary escapeways. Blue/white reflective lifeline was used in its primary escapeways, 

and green/white lifeline was used in its secondary escapeways. In mid;.November 2006, Ohio 

County's supply oflifelines was becoming depleted. Tr. 155. On November 28, it ordered 20 

units ofblue/white lifeline from its supplier, United Central Industrial Supply. Tr. 156-57; 

Ex. R-10, R-11. Normally, United Central delivers supplies within two days of receiving an 

order. Tr. 156-57; Ex. R-10. However, United Central did not have the lifeline in stock. The 

Affidavit of Charles Fuller, manager of United Central's Madisonville, Kentuck:)r facility, states 

that there was an industry-wide shortage of continuous directional lifelines in November and 

December of2006. Ex. R-10. United Central ordered 20 units of blue/white lifeline from its 

supplier on December 7. It delivered 10 units oflifeline to Ohio County on December 12, and 

the remaining 10 units on December 15. Ex. R-10, R-11. Ohio County receives supplies at its 

warehouse, verifies the items received, stocks the material, and notifies the mine foreman or the 

safety department of receipt so that installation can be scheduled. Tr. 158. While the lifeline 

32 FMSHRC Page 229 
was received in the warehouse on December 12, it had not been installed at the time of the 

inspection, and Fazzolare issued the citation at 8:45 p.m., on December 12. 

Ohio County argues that the Final Rule "provides the same good faith compliance 

provisions as did the ETS." Resp. Br. at 29. It relies on the May 2007 Q&A published by 

MSHAas evidence that the good faith compliance provision was intended to be extended to 

lifelines as well in the Final Rule. Since Ohio County had issued a purchase order for lifelines on 

November 28, it contends that it was in full compliance with the good faith provision, and cannot 

be found in violation of the Final Rule. The Secretary argues that lifelines were required to be 

installed "on or before December 8, 2006," i.e., that the Final Rule did not include a good faith 

compliance provision for lifelines. Sec'y. Br. at 6. The Secretary concedes that the Final Rule 

became effective onJy "a few days" before the citation was issued, but argues that Ohio County 

was on notice of the lifeline requirement since publication of the ETS in March, 2006. Sec'y. 

Br. at 7. The Secretary objected to admission of the Q&A, noting that Ohio County could not 

have relied on the May 2007 publication. 

MSHA's belatedly published Q&A certainly appears to announce that, at least as of 

May 3, 2007, ¢.e Secretary would employ a good faith compliance rule in enforcing the lifeline 

requirement. However, there is no such provision in the text of the Final Rule, and I am 

compelled to accept the Secretary's argument that the Final Rule terminated the ETS' s good faith 

compliance rule immediately upon its publication.6 Operators, like Ohio County, that had 

outstanding purchase orders for lifelines that needed to be installed, and were in full compliance 

with the ETS on December 7, were in violation of the Final Rule on December 8, 2006. I find 

that Ohio County violated the standard, as alleged. 7 

6 In publishing the Final Rule, the Department of Labor noted that "SCSRs and lifelines 

were proven techllologies long available in the marketplace and already installed and used in the 

underground coal mining industry." 71 Fed. Reg 71448. Ohio County does not contend that 

enforcement of the Final Rule is barred by lack of fair notice of elimination of the good faith 

compliance rule, or that the Secretary's finding of good cause to waive a delay in the effective 

date of the Rule was ineffective. 

7 Ohio County argues that the Secretary did not prove that there was no "equivalent 

device" in the escapeway and, thus, cannot establish a violation. While Fazzolare could not 

describe an equivalent device, he correctly noted that it would have to be a "continuous 

directional lifeline." Tr. 147. The ETS and Final Rule cited as examples of equivalent devices 

"a pipe or handrail." 71 Fed. Reg 12257,71436. There is no evidence that there was anything in 

the escapeway that could have been considered an equivalent device, and Ohio County does not 

so contend. I reject Ohio County's argument on both factual and legal grounds. Ohio County 

was free to attempt to prove that it had installed an equivalent device that would meet the 

requirements of the standard. For obvious reasons, it chose not to do so. 

32 FMSHRC Page 230 
S&S 

Fazzolare determined that the violation was S&S because a miner attempting to use the 

primary escapeway in the event of a fire would easily become disoriented in smoke and could not 

tell where he was going. Tr. 145. He had issued the violation for the defective methane monitor, 

which he had also determined to be S&S, and he felt that that was "significant." Tr. 153. 

However, that violation was found to be not S&S because it was unlikely that a methane ignition 

would occur. The Secretary did not prove that there was any other type of fire that was 

reasonably likely to occur in the mine. 

Moreover, even if a fire had occurred, the occurrence of a reasonably serious injury would 

have been unlikely. The Freedom mine operates on a blowing ventilation system, and the main 

intake air flow is inby in the primary escapeway, i.e., miners attempting to evacuate the mine 

would travel upstream in the intake air. Once they had traveled 1,000 feet, they would have 

encountered a proper lifeline. In the event of a fire, it was highly unlikely that there would be 

smoke in the primary escapeway. There were virtually no potential fire sources in the intake 

entry. Nichols explained that the only thing located in the intake entry was a well-insulated high 

voltage cable, and that rock dust was applied throughout. Tr. 179-80. Smoke generated by a fire 

elsewhere in the mine would not enter the escapeway, but would travel out the return. Tr. 177. 

Permanent stoppings separate the intake entries from other entries. Tr. 179. While Fazzolare 

believed that smoke could enter the escapeway if a ventilation control was not in place, e.g., a 

man-door had been left open, that does not seem likely. The higher air pressure in the intake 

would cause fresh air to flow through an open man-door into the return. It would not allow 

smoke-filled air to enter the escapeway. 

The Secretary has not carried her burden of proving that an injury causing event was 

reasonably likely to have occurred as a result of the violation. I find that the violation was not 

S&S, and that it was_ unlikely that the violation would result in a permanently disabling injury. 

Negligence 

From the perspective of compliance with applicable standards, it is difficult to fault Ohio 

County for its failure to have lifeline installed in the last 1,000 feet of the primary escapeway on 

December 12. When its supply oflifeline was low, it placed an order with its supplier. Having 

issued the purchase order, it was in full compliance with the ETS. Under normal circumstances, 

it would have received the lifeline by November 30. Through no fault of Ohio County's, the 

lifeline was not received until December 12. Ohio County was in compliance with the applicable 

standard through December 7. On December 8, it was no longer in compliance, because the 

Final Rule became effective. 

The Secretary points to the fact that one of the Patriot mines apparently made its own 

lifeline, and argues that the Freedom mine could also have done so. Tr. 168. However, there is 

no evidence as to the length of time it would have taken to fabricate lifeline, or whether 

32 FMSHRC Page 231 
necessary materials were available. Jn any event, the Final Rule was published on Thursday, 

December 8, 2006, and the lifeline was delivered the following Tuesday, December 12. 

Assuming that Ohio County was aware of the publication, I find that it was not unreasonable for 

Ohio County to have relied on its procurement system, and its pending order, to secure a supply 

oflifeline manufactured in compliance with MSHA's requirements, 

The Secretary also argues that Ohio County made estimates of how much coal it was 

going to mine six months in the future, and that it should have predicted how far its entries would 

have been advanced and how much lifeline it would have needed sufficiently in advance that it 

should not have exhausted its supply. The Secretary's argument has some appeal, but it fails to 

consider the regulatory framework. While Ohio County's claim that it had sufficient supplies of 

lifeline when it placed the November 28 order is open to question, by issuing the purchase order 

it was in full compliance with the ETS, the only applicable standard. 8 It was not obligated to 

assure that it never exhausted its stock of lifeline, which was in short supply. If lifeline had been 

readily obtainable, it would have received the lifeline within a day or two, and it most likely 

would have been installed before publication of the Final Rule, and the December 12 inspection. 

It was the Final Rule's summary elimination of the good faith compliance provision for lifelines 

that rendered Ohio County in violation. As previously noted, it was notunreasonable for Ohio 

County to have relied on its procurement system, and its pending order, to secure a supply of 

lifeline manufactured in compliance with MSHA's requirements. 

The Secretary also cites, as evidence of negligence, that Ohio County knew that lifeline 

had to be installed in the escapewaybefore December 12, but did not assure that the lifeline 

delivered that day was installed prior to issuance of the citation at 8 :45 p.m. Ohio County points 

out that there is no evidence of the time that the lifeline was delivered. There is also nothing to 

indicate that it was on notice to expect a delivery that day. Ohio County's procedure for handling 

deliveries of supplies at its warehouse was that shipments were examined to verify the material 

and quantity, records were updated to show that the material was in stock, and appropriate 

personnel were notified so that installation could be scheduled. The process appears appropriate 

from a business standpoint, and appears to be consistent with the Q&A guidelines later published 

by MSHA, wherein it is noted that mandated equipment on back order was to be deployed "as 

soon as practicable." Ex. R-12 atJ. The fact that Ohio County did not implement a special 

procedure to assure that lifeline was installed immediately upon delivery does not significantly 

increase the level of Ohio County's negligence. 

Upon consideration of all of these factors, I find Ohio County's negligence with respect 

to the violation to have been no more than low. 

8 Nichols testifi_ed that there was sufficient lifeline in stock when the order was placed. 

Tr. 155. However, mining advanced approximately 70 feet per day, and it would have taken 

close to two weeks to have advanced 1,000 feet. Tr. 175-76. November 28, the date of the order, 

was 14 days prior to December 12, the date the citation was issued. 

32 FMSHRC Page 232 
The Appropriate Civil Penalties 

Ohio County is a large operator, with a very large controlling entity. The assessment data 

reflects that it averaged 1.6 violations per inspection day during the relevant period, a relatively 

high incidence of violations. Ohio County does not contend that payment of the proposed 

penalties will affect its ability to continue in business. The violations were promptly abated. 

Citation No. 6692136 is affirmed. However, the gravity of the violation was less serious 

than alleged. It was not S&S. In addition, the operator's negligence was low. A specially 

assessed civil penalty of$5,100.00 was proposed by the Secretary. The lowering of the levels of 

negligence and gravity justify a significant reduction in the proposed penalty. Upon 

consideration of the above, the factors enumerated in section 11 O(i) of the Act, and informed by 

the Secretary's then-applicable penalty assessment regulations, 

I impose a penalty in the amount of$300.00. 

Citation No. 6692140 is affirmed. However, the gravity of the violation was less serious 

than alleged. It was not S&S. In addition, the operator's negligence was low. A civil penalty of 

$8,400.00 was proposed by the Secretary. The lowering of the levels of negligence and gravity 

justify a significant reduction in the proposed penalty. Upon consideration of the above, the 

factors enumerated in section 1 lO(i) of the Act, and informed by the Secretary's then-applicable 

penalty assessment regulations, I impose a penalty in the amount of $1,500.00. 

The Settlements 

Through two written motions, and an oral motion made at the hearing, the parties sought 

approval of negotiated settlement agreements resolving the four alleged violations in Docket No. 

KENT 2007-497. Ohio County has agreed to withdraw its contest and pay the assessed penalties 

as to Citation Nos. 6692607, 6695143 and 6695144, and the parties propose that the penalty for 

Citation No. 9898718 be reduced from $4,500.00 to $3,000.00. I have considered the 

representations and evidence submitted and conclude that the proffered settlements are 

appropriate under the criteria set forth in section 11 O(i) of the Act. 

WHEREFORE, the motions for approval of settlement are GRANTED, and it is 

ORDERED that Respondent pay a penalty of$6,281.00 for the citations that are the subject of 

the settlement agreements. 

ORDER 

Citation Nos. 6692136 and 6692140 are AFFIRMED, as modified, and Respondent is 

ORDERED to pay a civil penalty in the amount of$1,800.00 for those violations. 

32 FMSHRC Page 233 
Respondent shall pay civil penalties in the total amount of $8,081.00 for the settled and 

contested violations within 30 days. 

Distribution (Certified Mail): 

Julia K. Shreve, Esq., and Melissa Robinson, Esq., Jackson Kelly, PLLC, 1600 Laidley Tower, 

P.O. Box 553, Charleston, WV 25322 

Mazy Sue Taylor, Esq., Office of the Solicitor, U.S. Department of Labor, 618 Church Street, 

Suite 230, Nashville, TN 37219-2456 

32 FMSHRC Page 234 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF THE CHIEF ADMINISTRATIVE LAW JUDGE 

601 NEW JERSEY AVENUE, N.W., SUITE 9500 

WASHINGTON, DC 20001-2021 

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

SECRETARY OF LABOR 

MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

PC SAND & GRAVEL, 

Respondent 

February 25, 2010 

CIVIL PENALTY PROCEEDING 

Docket No. YORK 2008-I 04-M 

A.C. No. 28-00975-137827 

PioCosta TI A PC Sand & Gravel 

DECISION AND ORDER APPROVING SETTLEMENT 

This case is before me upon a petition for assessment of civil penalty under Section 

IOS(d) of the Federal Mine Safety and Health Act of 1977 (the Act). The parties filed a Joint 

Motion to Approve Settlement, which was received on September 8, 2008. On August 21, 2009, 

the undersigned issued an Order to Submit More Information. The Secretary was ordered to 

submit additional information supporting the vacation of thirteen citations as a part of the 

settlement. By letter, dated August 31, 2009, the Secretary, through her representative, argued 

that she has "unreviewable prosecutorial discretion to vacate citations after issuance." 

In support of her position, the Secretary cites RBK Construction, Inc., 15 FMSHRC 2099 

(Oct. 1993). In RBK Construction, the Commission held that the Secretary had the authority to 

vacate the citations, citing the decision of the U.S. Supreme Court in Cuyahoga Valley Ry. Co. v. 

United Transportation Union, 474 U.S. 3 (1985). In Cuyahoga Valley Ry. Co., the Supreme 

Court concluded that, based on the distinct roles of the Secretary and the Commission, 

established by the Mine Act, the Secretary's decision to withdraw a citation is not reviewable by 

the Commission. 474 U.S. at 7-8. 

RBK Construction dealt solely with citation withdrawals; the present case, however, 

involves the vacation of citations in the context of a motion to approve a settlement agreement. 

Section 11 O(k) of the Mine Act states, in relevant part, that .. No proposed penalty which has been 

contested before the Commission under Section 105(a) shall be compromised, mitigated, or 

settled except with the approval of the Commission." 30 U.S.C. § 820(k)(emphasis added). 

Interestingly, the Secretary has previously recognized a difference between cases involving 

vacated citations and cases involving settlements. In RBK Construction, for example, the 

Secretary argued before the Commission "that 11 O(k) applies only to settlements of penalties, not 

to vacations of citations or orders." 15 FMSHRC at 2101. 

32 FMSHRC Page 235 
Moreover, Section 307 of the Act empowers the Secretary to promulgate rules and 

regulations to enforce the Act. 30 U.S.C. § 801(g). The regulation entitled ''Penalty 

Assessment", included in Section 2700.31, reads: 

(a) General. A proposed penalty that has been contested before the Commission 

may be settled only with the approval of the Commission upon motion. 

(b) Settlement Motion. A motion to approve settlement shall include the 

following information for each violation: 

(1) The amount of the penalty proposed by the Secretary; 

(2) The amount of the penalty agreed to in settlement; and 

(3) Facts in support of the penalty agreed to by the parties. 

( c) Order approving settlement. Any order by the Judge approving a settlement 

shall set forth the reasons for approval and shall be supported by the record. Such 

order shall become the final decision of the Commission 40 days after the 

issuance unless the Commission has directed that the order be reviewed. 

29 C.F.R. § 2700.31. 

Under the Rules, promulgated by the Secretary, a settlement must be moved, and 

approved, by the Commission. 29 C.F .R. § 2700.31 (a). Furthermore, a motion t() approve 

settlement must include facts supporting the agreed-to penalty. 29 C.F.R. § 2700.31(b)(3). In 

the present case, such relevant facts were not included in the initial motion. Similarly, the 

regulations require that an order approving a settlement, issued by an administrative law judge, 

"set forth the reasons for approval and shall be supported by the record." 29 C.F.R. § 2700.3l(c). 

Based on the motion filed by the parties, the record was incomplete, and did not provide 

adequate re~sons upon which to base approval. 

Despite the initial resistance to offer any explanation for the withdrawal of thirteen 

citations, however, the Secretary complied with my order by proffering legitimate reasons for 

vacating the citations in the August 31, 2009 letter. Accordingly, I find the record now 

substantiates approval of the parties' joint motion and that the proffered settlement is acceptable 

under the criteria set forth in Section 11 O(i) of the Act. 

32 FMSHRC Page 236 
WHEREFORE, the Joint Motion to Approve Settlement in GRANTED and it is 

ORDERED that Respondent pay a penalty of $784.00, within 60 days of this order.1 

~~.w Robert J. Lesnick 

Chief Administrative Law Judge 

Distribution:· 

Suzanne L. Demitrio, Esq., Office of the Solicitor, U.S. Department of Labor, Room 983, 

201 Varick Street, New York, NY 10014 

Joshua A. Zielinski, Esq., McElroy, Deutsch, Mulvaney & Carpenter, LLP, Three Gateway 

Center, 100 Mulberry Street, Newark, NJ 07102-4079 

/sr 

1

Payment should be sent to: MINE SAFETY AND HEALTH ADMINISTRATION, U.S. DEPARTMENT 

OF LABOR, PAYMENT OFFICE, P. 0. BOX 790390, ST. LOUIS, MO 63179-0390 

32 FMSHRC Page 237 
32 FMSHRC Page 238 
ADMINISTRATIVE LAW JUDGE ORDERS 

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES 

601 NEW JERSEY AVENUE, NW., SUITE 9500 

WASHINGTON, D.C. 20001 

BILLY BRANNON, 

Complainant 

v. 

PANTHER MINING, LLC, 

Respondent 

BILLY BRANNON, 

Complainant 

v. 

PANTHER MINING, LLC and 

MARK D. SHELTON, 

Respondents 

SECRETARY OF LABOR, 

on behalf of BILLY BRANNON, 

Complainant, 

v. 

PANTHER MINING, LLC, 

Respondent 

January 22, 2010 

DISCRIMINATION PROCEEDING 

Docket No. KENT 2009-302-D 

BARB CD 2008-07 

No. 1 Mine 

Mine ID 15-18198 

DISCRIMINATION PROCEEDING 

Docket No. KENT 2009-1225-D 

BARB CD 2009-07 

No. 1 Mine 

Mine ID 36-00017 

DISCRIMINATION PROCEEDING 

Docket No. KENT 2009-1259-D 

BARB CD 2009-09 

No. 1 Mine 

Mine ID 15-18198 

BLACK MOUNTAIN RESOURCES, LLC, 

Respondent 

ORDER DENYING MOTION TO COMPEL 

Docket No. KENT 2009-1259-D is a discrimination case based on a complaint brought 

under section 105( c )(2) of the Mine Act by the Secretary of Labor ("Secretary") on behalf of 

Billy Brannon ("Brannon") against Panther Mining, LLC and its parent, Black Mountain 

Resources, LLC (collectively, "Panther"). While the party filing the section 105(c)(2) complaint 

is th~ Secretary, pursuant to Commission Rule 4(a), Brannon is a party in his own right. 29 

32 FMSHRC Page 239 
C.F.R. § 2700.4(a). Brannon, as a party, is represented by counsel, Tony Oppegard. The section 

105(c)(2) case has been consolidated with two related proceedings: KENT 2009-302-D, a 

section 105( c )(3) discrimination case brought by Brannon against Panther; and KENT 2009-

1225-D, a second section 105( c )(3) discrimination case brought by Brannon against Panther. 1 

The consolidated cases will be heard beginning on March 2, 2010. 

On January 11, 2010, the Commission received and docketed Panther's Fifth Motion to 

Compel Discovery in Docket No. KENT 2009-1259-D. For reasons stated below, Panther's 

motion IS DENIED. 

Panther seeks an order requiring Mr. Oppegard to submit to a deposition. Panther notes 

that in her Amended Complaint. the Secretary alleges Brannon "initiated" safety complaints to 

MSHA and to the Kentucky Office of Mine Safety and Licensing ("KOMSL''). Amended 

Complaint~ 8. However, according to Panther, Brannon actually reported the conditions by 

telephone to his attorney, Tony Oppegard, but told Oppegard that he; Brannon, did not consider 

the conditions to be dangerous. Panther asserts that Oppegard, not Brannon, reported the 

conditions to MSHA inspector Craig Clark and to KOMSL, and that Oppegard described the 

conditions to Clark as an imminent danger. Panther also states that another client of Oppegard, 

Scott Howard, was a party to both the telephone call from Brannon to Oppegard and to the call 

from Oppegard to Clark. Mot. at 1-2. 

Panther further notes that on March 27, the day Brannon was fired, Oppegard wrote to 

Rick Raleigh, Black Mountain's personnel director, informing him that Brannon was the source 

of the previous day's imminent danger complaint. Brannon's subsequent complaint to MSHA 

indicated that Brannon believed Oppegard's letter to Raleigh caused Panther to terminate 

Brannon. Panther contends that Brannon did not believe a safety hazard existed when he called 

Oppegard and that the report he made to Oppegard was "part of an ongoing campaign to harass 

and intimidate his employer and mine management." Mot. at 2. 

Panther wants to question Oppegard about these events. It states that it notified Oppegard 

of its intent to depose him on December 29, and that Oppegard lodged no objection. However, 

when the time came to be sworn and deposed, Oppegard refused. Mot. at 2. Therefore, Panther 

moves Oppegard be ordered to ·appear and to be deposed. 

Brannon opposes the motion. He maintains that because the information Panther seeks 

can be obtained through other witnesses, Oppegard' s deposition should not be allowed. He also 

maintains the information sought by Panther is irrelevant and that Panther is "attempting to 

harass Brannon and his counset"2 Response at 3. 

1

Docket No. KENT 2009-1259-D is the last-filed of the three cases. 

2

Because I agree with Brannon's first assertion regarding Panther's ability to obtain the 

information it seeks through other sources, I do not reach the issue of relevance. Nor do I ascribe 

32 FMSHRC Page 240 
Granting a motion to order the deposition of opposing counsel would be an 

unprecedented and extraordinary act. I have never heard of such an order being issued in a 

matter brought under the Mine Act, and the parties have not directed me to; nor have I otherwise 

learned of any such order ever being issued by the Commission or its judges. I expect the reason 

is because allowing the deposition of opposing counsel is bad policy. It is bad for the legal 

system. It is bad for Commission litigants. It is bad for the Commission. As Brannon points 

out, the United States CoUrt of Appeals for the gm Circuit put it best: 

Talcing the deposition of opposing counsel not 

only disrupts the adversarial system and lowers 

the standards of the profession, but it also adds 

to the already burdensome time and costs of 

litigation. It is not hard to imagine additional 

pretrial delays to resolve work-product and 

attorney-client objections, as well as delays 

to resolve collateral issues raised by the 

attorney's testimony. 

Shelton v. American Motors Corporation, 805 F.2d 1323, 1327 (8th Cir. 1986). For these 

reasons I will be hard pressed to ever allow a party to depose opposing counsel, and this is 

doubly true where, as here, other persons who can be deposed were parties to the events in 

question. 

JJw~ David Barbo\ir 

Adininistrative Law Judge 

Distribution: 

MaryBeth Zamer Bernui, Esq., U.S. Department of Labor, Office of the Solicitor, 618 Church 

Street, Suite 230, Nashville, TN 37219-2456 

Tony Oppegard, Esq., P.O. Box 22446, Lexington, KY 40522 

Wes Addington, Esq., Appalachian Citizens Law Center, 317 Main Street, Whitesburg, KY 

41858 . 

Stephen M. Hodges, Esq., Penn, Stuart & Eskridge, P. 0. Box 2288, Abington, VA 24212 

/ej 

a motive to Panther's motion. 

32 FMSHRC Page 241 
FEDERAL MINE SAFETY AND HEAL TH REVIEW COMMISSION 

OFFICE OF ADMINISTRATIVE lAW JUDGES 

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

Washington, D.C. 20001 

SECRETARY OF LABOR, 

. MINE SAFETY AND HEALTH 

ADMINISTRATION (MSHA), 

Petitioner 

v. 

CLAYSVILLE QUARRY, 

Respondent 

January 29, 2010 

CIVIL PENALTY PROCEEDING 

Docket No. SE 2008-71-M 

A.C. No. 40-03269-127960 

Claysville Quarry 

ORDER CANCELING HEARING 

AND 

ORDER REQUESTING PENALTY CRITERIA INFORMATION 

Dennis Roy Hinch is the owner/operator of the Claysville Quarry. The facility is a 

dimensional stone quarry where stone used in the installation of patios and walkways is extracted 

and stacked on pallets for customer delivery. Hinch performs the blasting. The quarry employs a 

total of four additional employees who operate mine equipment. Hinch uses the services of 

Francisco Morales Stone Stackers, a contractor that supplies the laborers that load the 

dimensional stone onto the pallets. This information was provided by Hinch during conference 

calls with both parties to this proceeding conducted on January 20 and January 27, 2010. 

On August 21, 2007, 104(g)(l) Order No. 6123908 was issued for an alleged violation of 

the mandatory training standard in section 46.8( a)(l) that requires the training of new miners. 

The citation was issued because Hinch failed to provide new miner training to nine contract 

employees who were stacking stone on pallets. The Secretary designated the citations as 

significant and substantial (S&S) and attributed the violation to a high degree of negligence. 

The Secretary proposes a civil penalty of$3,224.00 for this 104(g)(l) order. 

During the January 27, 2010, conference call Hinch stipulated to the fact of the 

violation and its designation as S&S in nature. This matter had been scheduled for hearing on 

February 9, 2010. However, there are now no unresolved issues of material factual that require a 

hearing. As discussed below, the only remaining issue is the application of the facts in this 

matter to the statutory section 11 O(i) penalty criteria. 30 U.S.C. § 820(i). Consequently, 

IT IS ORDERED that the scheduled hearing IS CANCELED. 

32 FMSHRC Page 242 
Commission judges make de novo findings with respect to the penalty criteria in 

section l lO(i) of the Mine Act, and they are not bound by the Secretary's proposed 

civil penalties. Sellersburg Stone Co., 5 FMSHRC 287, 291 (Mar. 1983), aff'd, 

736 F.2d 1147 (71h Cir. 1984). Section l lO(i) of the Act sets forth the statutory civil penalty 

criteria used to determine the appropriate civil penalty to be assessed. In this regard, 

section 11 O(i) provides, in pertinent part: 

The Commission shall consider the operator's history of previous violations, the 

appropriateness of such penalty to the size of the business of the operator charged, 

whether the operator was negligent, the effect on the operator's ability to continue 

in business, the gravity of the violation, and the demonstrated good faith of the 

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

violation. 

During the January 27th conference call Hinch stated: that his Claysville Quarry has been 

previously cited for approximately six citations; that the quarry is a small business with only four 

employees; that he was unaware of the requirement of training contract employees; that the 

$3,224.00 penalty proposed by the Secretary would be a hardship given his small business size; 

and that he immediately provided the required training after the l 04(g) order was issued. 

The Commission has noted that 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 1503 (Sept. 1997). Rather, the judge must qualitatively analyze each of 

the penalty criteria to determine the appropriate civil penalty to be assessed. Cantera Green, 

22 FMSHRC 616, 625-26 (May 2000). 

In view of the above, IT IS ORDERED that the Secretary address the application of the 

penalty criteria in seetion 11 O(i) to the facts of this case. Specifically, the Secretary should 

answer yes or no, with a supporting explanation, if appropriate, to the following questions: 

(1) Is the Claysville Quarry history of violations an aggravating factor in the 

imposition of the civil penalty the Secretary proposes in this matter? 

(2) Is the Claysville Quarry properly designated as a small operator? 

(3) Is the proposed $3,224.00 civil penalty disproportionate to the size of the 

operator's business, particularly in view of the total $281. 00 civil penalty 

proposed for two training violations in SCP Investments, LLC, Docket Nos. SE 

2006-148-M and SE 2006-163-M? 

32 FMSHRC Page 243 
( 4) Did the Claysville Quarry demonstrate good faith in attempting to achieve 

rapid compliance after notification of the violation? 

(5) Is there a correlation between the number of persons affected and the degree 

of negligence attributable to the Claysville Quarry for the subject training 

violation? 

ORDER 

IT IS ORDERED that the Secretary shall provide answers to the above questions within 

21 days of the date of this Order. The Secretary may provide any additional information and 

arguments that she deems appropriate to support her assertion that the proposed civil penalty 

in this matter should not be substantially reduced. Failure to timely respond may result in 

vacating the subject 104(g)(l) order. IT IS FURTHER ORDERED that Claysville Quarry 

shall file a response to the Secretary's submission within 14 days of the receipt of the 

Secretary's answers. 

Distribution: (Certified Mail) 

Jerold Feldman 

Administrative Law Judge 

Brian C. Winfrey, Esq., Office of the Solicitor, 618 Church Street, Suite 230, 

Nashville, TN 37219 

Dennis Roy Hinch, Owner, Claysville Quarry, 3458 Old Highway 70, Crossville, TN 38572 

/rps 

32 FMSHRC Page 244 
FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION 

601 New Jersey Avenue, NW, Suite 9500 

KNOX CREEK COAL CORP., 

Contestant 

v. 

SECRETARY OF-LABOR, 

MINE SAFETY AND HEALTH 

ADMINISTRATION, (MSHA), 

Respondent 

Washington, DC 20001-2021 

Telephone No.: 202-434-9980 

Telecopier No.: 202-434-9949 

February 12, 2010 

CONTEST PROCEEDINGS 

Docket No. VA2010-81-R 

OrderNo. 8169137; 11/04/2009 

Docket No. VA 2010-82-R 

Citation No. 8169140; 11104/2009 

Docket No. VA 2010-83-R 

Citation No. 8169138; 11104/2009 

Docket No. VA 2010-84-R 

Citation No. 8170372;1 l/02/2009 

Docket No. VA 2010-85-R 

Citation No. 8170368; 11102/2009 

Docket No. VA 2010-86-R 

Citation No. 8164762; 1110112009 

Docket No. VA 2010-87-R 

Citation No. 8170373; 11104/2009 

Docket No. VA 2010-88-R 

Citation No. 8170374; 11104/2009 

Docket No. VA 2010-89-R 

Citation No. 8170375; 11/04/2009 

Docket No. VA 2010-90-R 

Citation No. 8170376; 11/04/2009 

Docket No. VA 2010-91-R 

Citation No. 8170350; 10/26/2009 

Docket No. VA 2010-92-R 

Citation No. 8169126; 10/27/2009 

Docket No. VA 2010-93-R 

Citation No. 8169127; 10/27/2009 

32 FMSHRC Page 245 
Docket No. VA 2010-94-R 

Citation No. 7318304; 11/03/2009 

Docket No. VA 2010-95-R 

Citation No. 8170358; 10/28/2009 

Docket No. VA 2010-96-R 

Citation No. 8170360; 10/28/2009 

Docket No. VA 2010-97-R 

Citation No. 8170352; 10/26/2009 

Docket No. VA 2010-98-R 

Citation No. 8170353;10/26/2009 

Docket No. VA 2010-99-R 

Citation No. 8170361; 10/28/2009 

Docket No. VA 2010-100-R 

Citation No. 8170364; 10/30/2009 

Docket No. VA2010-101-R 

Citation No. 8170363; 10/20/2009 

Docket No. VA 2010-102-R 

Order No. 8170395;1 l/10/2009 

Docket No. VA 2010-103-R 

Citation No. 8170387; 11109/2009 

Docket No. VA 2010-104-R 

Citation No. 8169146;1 l/16/2009 

Docket No. VA 2010-105-R 

Citation No. 8169147; 11/16/2009 

Docket No. VA 2010-106-R 

Citation No. 8169149;1 l/16/2009 

Docket No. VA 2010-107-R 

Citation No. 8170398; 11/16/2009 

Docket No. VA 2010-108-R 

Citation No. 8169141; 11/09/2009 

32.FMSHRC Page 246 
Docket No. VA 2010-109-R 

Citation No. 8169142;1 l/09/2009 

Docket No. VA 2010-110-R 

Citation No. 8169143; 11/09/2009 

Docket No. VA 2010-111-R 

Citation No. 8170391;1 l/09/2009 

Docket No. VA 2010-112-R 

Citation No. 8170393; 11109/2009 

Docket No. VA2010-113-R 

Citation No. 8170394; 11/09/2009 

TillerNo. 1 

Mine ID 44-06804 

ORDER DENYING MOTION TO AMEND CITATIONS IN PART 

AND 

GRANTING MOTION TO AMEND IN PART 

In these contest cases, the Secretary has moved to amend Citation No. 8169137 

(VA 2010-81-R), which was issued for an alleged violation of30 C.F.R. § 75.1403, to 

allege as alternative violations section 75.1403 and 30 C.F.R..§ 75.363(a), and to amend Citation 

No. 8170372 (VA 2008-84-R), which she maintains was issued for a violation of30 C.F.R. § 

75.1403-lO(j), to allege as alternative violations 30 C.F.R. § 75.1403 and 30 C.F.R. § 

75. l 725(a).1 The Secretary's motion is triggered by the fact that the Commission's judges have 

reached different conclusions on the question of whether section 75.1403 can be a basis for an 

inspector's finding that a violation is a significant and substantial contribution to a mine safety 

hazard ("S&S" finding). As the Secretary notes, Judges Feldman and Miller have held such a 

finding can be made (Wolf Run Mining, 30 FMSHRC 1198, 1206 (January 2009); Black Beauty 

Coal Co., Docket No. LAKE 2008-327 (September 3, 2009)), while Judge Zielinski and I have 

held it cannot (Cumberland Coal Resources. LP, 30 FMSHRC 1180 (December 2008); Big 

Ridge, Inc. 30 FMSHRC 1172 (November 2008); Rockhouse Energy Mining Co., 31 FMSHRC 

622 (May 2009)). Counsel for the Secretary asserts that the Commission's holding in Empire 

Iron Mining Partnerships, 29 FMSHRC 999, l 005 (December 2007), allowing the Secretary to 

1

While the Secretary states in the motion that Citation No. 8170372 was issued alleging a 

violation of section 7 5.1403-1 O(j), she subsequently has made clear the statement is erroneous 

and that the citation alleges a violation of section 7 5 .1403. Accordingly, I will treat the motion 

as one to amend Citation No. 8170372 from a citation alleging a violation of section 75.1403 to 

one alleging alternative violations of either section 75.1403 or section 75. l 725(a). 

32 FMSHRC Page 247 
amend a citation to charge alternative violations where a prior decision created "some legal doubt 

regarding which of the two standards applied," is pertinent to this situation, as is the fact that the 

trial at issue will not be unduly delayed and the company will not suffer recognizable prejudice if 

the motion is granted. Motion 3-4 (citing Wyoming Fuel Co., 14 FMSHRC 1282, 1289-90 

(August 1992)). 

The company Qpposes the motion. It asserts that unlike the situation in Empire, there is 

no doubt about which standard applies. The company quotes from the motion wherein the 

Secretary explicitly states that she wants to "cite violations in the alternative because, although 

she believes that violations of ... [section] 75.1403 can be designated S&S, that question is 

currently in dispute and unresolved." Mem. Opposing Sec. 's Mot. 4 (quoting Motion 2). fu the 

company's view, the Secretary is moving for amendments not to clarify which standard applies, 

but to save her S&S allegations. Id. As the company puts it, the Secretary is attempting "to 

procure S&S designations where judges have held that none exist." Id. at 2. 

Further, the company claims that allowing the amendment will be prejudicial. With 

regard to Citation No. 8169137, she asserts that violations of section 75.1403 and section 

75.363(a) may be based on entirely different facts and that with the hearing near, it is too late to 

require the company to reassess the facts and prepare new defenses. Mem. Opposing Sec.' s Mot. 

5-6. The company makes essentially the same argument with regard to Citation No. 8170372. 

The company notes that section 7 5 .1725 requires mobile equipment to be maintained in safe 

operating condition and to be removed from service immediately when not so maintained, 

whereas section 75.1403 requires compliance with a specific safeguard particular to the 

conditions in the mine. (fu this instance, the safeguard required is Notice to Provide Safeguards 

6636286 (February 4, 2008).) Id. 7. 

RULING 

I do p.ot agree with the company that the situation here is antithetical to that in Empire. 

Rather, I believe that the principles underlying the holding in Empire are fully applicable in this 

situation. The Secretary never has wavered in maintaining section 7 5 .1403 can serve as a basis 

for an S&S finding and that section 75.1403 is a proper standard to cite. It is true that the 

Secretary is trying to "save" her inspector's S&S findings by pleading in the alternative, but there 

is nothing wrong with such an approach. S&S findings play an important role in and of 

themselves. They may trigger the enhanced enforcement tools of section 104( d) of the Act, as 

well as be the basis for a pattern of violation designations. 30 U.S.C. § 814(e). The findings are 

essential for the Secretary to be able to effectuate the safety goals of the Mine Act, and the ability 

to plead in the alternative is, as I have noted before, necessary at times to prevent the government 

from being deprived of the tool[s] that are needed to achieve the Act's objectives. Empire Iron 

Mining Partnership, 29 FMSHRC 317, 327 (April 2007). 

For this reason, I believe I would grant the motion but for the fact that doing so would 

prejudice the company. The company is right when it points out that section 75.1403 and section 

75.363(a) are different in their requirements. The violation of section 75.1403 set forth in 

Citation No. 8169137 alleges a violation of the safeguard requirement set forth in a notice to 

32 FMSHRC Page 248 
provide safeguard No. 7325844 issued on April 15, 2002. This safeguard is unique to the mine. 

On the other hand, section 75.363(a) is a standard that is applicable to all mines, one that requires 

the posting of danger signs to warn of hazardous conditions. (The signs must remain posted until 

the hazard is corrected.) The conditions set forth in Citation No. 8169137 --not maintaining the 

track haulage way in a safe operating condition in the No. 4 entry along the No. 5 conveyor belt 

from crosscut 4 to crosscut 6 for 120 feet by allowing water to accumulate, causing the rails to be 

unseen by track equipment operators -- are not at all similar to the failure to post signs warning of 

hazardous conditions. 

The hearing on this matter will begin on March 16, 2010. It is being conducted on a 

"speeded up" basis because Knox Creek is operating under the threat of being designated as 

exhibiting a pattern of violations at its Tiller No. 1 Mine. 20 U.S.C. §814(e). As the company 

points out, there are different considerations involved in defending against the particular 

violation of section 75.1403 as set forth in notice to provide safeguard No. 7325844 and in 

defending against the more general requirements of section 75.353(a). It is too late in the day to 

allow the amendment. The Secretary must prevail on the citation as alleged or not at all. 

The same is true of the motion to amend Citation No. 8170372 from a citation alleging a 

violation of section 75.1403 to one alleging in the alternative a violation of section 75. l 725(a). 

The violation of section 75.1403 set forth in Citation No. 8170372 alleges a violation of the 

safeguard requirements set forth in notice to provide safeguard No. 6636286 issued on February 

4, 2008. The facts needed to show whether the safeguard notice was violated if, as the Secretary 

alleges, a rubber-tired mantrip used in the mine was not provided with a well-maintained parking 

brake (see Citation No. 8170372) may differ significantly from those required to show whether 

the mantrip was maintained in safe operating condition and, if not, whether it was removed from 

service as requjred by section 75.1725(a). Allowing the amendment would prejudice Knox 

Creek, and the Secretary must proceed on the basis of the citation as issued originally. 

For these reasons, the Secretary's motion to amend Citations No. 8169137 

(VA 2010-81-R) and 8170372 (VA 2010-84-R) to allege alternative violations IS 

DENIED. 

32 FMSHRC Page 249 
The Secretary also moves to amend Citation No. 8170372 to state that the depth 

of the water was ''2.5 inches to 4 inches" instead of"l inch to 4 inches." She asserts the 

amendment is necessary to correct a typographical error. The company does not 

address this part of the motion, and it IS GRAN'fED. 

Administrative Law Judge 

Distribution: 

Douglas N. White, Esq., U.S. Department of Labor, Office of the Solicitor, 1100 Wilson Blvd., 

22nd Floor West, Arlington, VA 22209-2247 

Alexander Macia, Esq., Mark E. Heath, Esq., Spilman, Thomas & Battle, PLLC., 300 Kanawha 

Blvd., East., P.O. Box 273, Charleston, WV 25321-0273 

/ej 

32 FMSHRC Page 250 

G:l> U.S. GOVERNMENT PRINTING OFFICE: 201o-358-021/83801